George Anastaplo

L’hypocrisie est un hommage que le vice rend á vertu.

─Duc de la Rochefoucald, Maximes, 219


            We should, in assessing conditions in and expectations for China, recall what can be known about the conditions for the establishment and maintenance of Anglo-American constitutionalism. Particularly significant may be the influence of William Shakespeare. Critical to that influence may be what can be learned from the experience of the Roman Republic and from the History of Britain.

There is, in the political tradition of the English-speaking peoples, a legal discipline not generally available worldwide. This can be usefully compared to the system of aspirations collected in the Universal Declaration of Human Rights promulgated in 1948. Such declarations are not apt to be grounded in the experiences and resulting discipline of particular peoples.

This is not to suggest that countries such as the United States and the United Kingdom are not without serious problems. Thus, the United States has at this time three wars to try to manage, while China has none. Or rather, the Chinese regime seems to have several on-going wars at home, as it tries to keep together more than a billion people with significantly diverse experiences and expectations.


            I could be reminded of “the Chinese situation” upon attending at the University of Chicago Law School (on April 6, 2011) an academic symposium on China and International Law. A Chinese Consul General provided instructive Opening Remarks. One could sense, from how some things were said and how other things were avoided, where the sensitive areas are in the Chinese political geography.

The Consul General was a middle-aged man with a good command of the English language. He was obviously quite competent. One could see how he got to be where he is and what he has to do (and not do) to maintain himself.

One could wonder, upon watching him navigate among the issues of interest to an American audience, how spokesmen abroad for either Hitler’s regime or Stalin’s (in time of peace) had to maneuver among the issues of the day. Which is worse, one could also wonder–to pretend to like a questionable regime or really to like it? One can be reminded here of the reservations one might have about “the Macbeth of philosophy,” the Martin Heidegger of the 1930s.


            China can be acclaimed as “rising,” and this after “a Century of Humiliation.” It is a major economic force worldwide, at least for the time being. And it is a nuclear power—but so is so questionable a regime as that in North Korea.

It can be wondered by Western observers how the rulers of China are selected. And how do they justify themselves? Particularly intriguing is the vigorous participation in capitalist enterprises worldwide by a regime that is somehow at least the nominal successor to a grand (and often amazingly brutal) Marxist enterprise.

It can also be wondered whether these are Chinese questions. We in the West take seriously political anniversaries measured by centuries. The Chinese, on the other hand, can routinely assume disciplinary expectations associated with millennia-long dynastic developments.


            The Consul General, without dwelling on the subject, could suggest that his government “respects human rights.” It was not a surprise that nothing was said by him about the current imprisonment of a Nobel Peace Prize laureate or about the Tinnamen Square massacre a generation ago. Nor was anything said about the arrest that very week of a well-known artist who had been prominent in developing spectacles for the Olympic Games recently held in China.

The number of executions in China remains appalling as is the vigourous suppression of restive peoples in the Chinese West. Nor, it seems, have the grotesque excesses of Mao and his henchmen ever been publiclly repudiated, while he himself seems still to have an exalted status. The ruthlessness of the current regime may be seen in the determined policy of “one child per family,” a policy which has begun to trouble even Chinese leaders because of some of its serious unanticipated consequences.

The governors of China do not seem to be embarrassed by the programs of suppression (for example, of the Internet) that they “have” to engage in. Instead, they can insist, “China is a country under the rule of law, and relevant authorities . . . work according to law.” (N.Y. Times, April 8, 2011, p. A4) But so notorious are Chinese practices that “the departing American ambassador [to China] criticized China’s human rights record [on April 6, 2011] in some of the sharpest public comments [made] by a United States official since the Chinese government began a crackdown on dissent this year.” (N.Y. Times, April 7, 2001, p. A9)


            It can be wondered what forms of a decent regime are plausible for China, especially considering its tremendous population and its considerable diventy in languages. India, too, has these challenges–but it also has the legacy (for its political enterprises) of centuries of salutary British influence with respect to the Rule of Law (however nominal at times). Should the Chinese, with their deeply-engrained (however weakened) Confucian influence, aspire to a sensible aristocracy?

Thoughtful Chinese today continue to respect the strong emperors who checked the descents into anarchy that have threatened to cripple Chinese civilization from time to time. One can be reminded of how George Mackay Brown could speak of ruthless actions in the Orkneys which somehow had saluatary consequences for the people at large (For the Islands I Sing [London: John Murray, 1997], pp 8-9):

“The most intriguing part of Orkneyinga Saga concerns the struggle of two cousins, Hakor and Magnus, for the earldom of Orkney. Often the earldom had two claimants, a state of affairs that seems to have been encouraged by the overlord in Norway, because Orkney under a single strong earl was semi-independent; but two claimants allowed the king [in Norway] to play one off against the other. Hakon and Magnus agreed to hold a peace conference on the island of Egilsay on Easter Monday, 1117, Magnus sailed there with a few advisers and the stipulated number of ships: two. Hakon sailed in with eight ships full of warmen, clamouring for the death of Earl Magnus. Magnus spent that night in the church of Egilsay (‘the church island’), and in the morning he went out to meet Hakon ‘as cheerfully as though he was bidden to a feast’. Preparations were made for the execution of Magnus. Hakon told his standard bearer to do the killing. This man, Ofeig; ‘refused indignantly’. None of Hakon’s followers, it seemed, was willing to do such a thing on Easter Monday. At last the axe was put into the hands of Earl Hakon’s cook, a man called Lifolf. And Lifolf, when he knew what he had to do, began to weep. At this point Magnus encouraged his executioner, pointing out that his own rich clothes would be Lifolf’s, and absolving him from all blame. Then, weeping, Lifolf drove the great axe into Magnus’ head. Hakon thereafter was sole Earl of Orkney.

“Such a villainous piece of work should have suffered nemesis, according to our way of thinking since the Greeks gave us tragedy. But in fact Earl Hakon went on to become one of the best earls Orkney ever had, much loved and popular with the islanders.”

Will the remarkably brutal Mao regime, we can wonder, ever be spoken of as that of the treacherous Earl Hakon?

Not every people, it has been argued (by friends of liberty, such as John Stuart Mill), are prepared for free institutions. But it can be particularly distressing to see tyranny “prosper” among peoples who can be remembered as having known much better. The richness of Chinese culture can make us expect commendable institutions among them eventually, if not immediately.


            The discipline of the Chinese can be remarkable. I heard last year a European photographer who had taken pictures of bureaucrats in countries around the world. His Chinese subjects were particularly rigid (if not even fearful) when photographed in their offices, no matter how cordial they had been socially the night before.

How, then, are the “enemies” of the current regime regarded by the non-official community? A possible response may be suggested in the continuation of the Orkney story about the beheading of Earl Hakon related by George Mackay Brown (p. 9):

“At a deeper level than politics, the murder of Earl Magnus began its operations. Almost at once the common people looked on the dead man as a saint. It was not murder but martyrdom. People sick in mind and body began to flock to Magnus’ tomb in Birsay, and extraordinary cures were reported. At first William, Bishop of Orkney, disapproved of such vulgar credulity, but later his eyes were opened—literally and metaphorically—to the presence of something rare and strange and new in the life of the islands: a sweetness and light unknown before. The bones of Magnus were taken to the new cathedral that was being built in Kirkwall, and immured in a pillar there. They are there, cloven skull and bone, today.”

Are there comparable martyrs being developed in China today?

Have there been “saintly” legacies, enriching the community, left as well by the opponents/victims of Hitler’s Germany and Stalin’s Russia? And did the American Civil War somehow deepen the collective soul of the United States? Thus, the uses of adversities should not be lost sight of.


            This does not mean that one should not be cautious about the adversities to which one is exposed. Thus, someone of spirit should recognize the risks of visiting China today. The older one is, the less time and energy is one likely to have to deal adequately with the punitive governmental reactions that one may chance to be provoked to arouse.

Cautionary tales are provided by foreign businessmen who come to be accused by the Chinese government as threats to national security. Is the insecurity of the regime thereby exposed? Or is an intense self-righteousness on exhibit?

Are there among the more influential Chinese any embued with the spirit of Confucianism? Such a spirit encourages thoughtfulness and restraint:     the remarkable subtlety in the promotion of healthy social organization thereby encouraged can empower an enduring rule, behind the scenes, by thoughtful men and women, at least in “the long run.” Consider the salutary Passover Celebration some of us will be observing this evening, including eminently pious Jews who do not seem to be troubled by those archaeologists and other scholars who insist that there never was the Exodus depicted by the Bible.


            I was invited to speak, a couple of years ago, to a Chinese Unification conference. My remarks were given, by me, the title, “What the United States Can Learn from China and Greece”—and, as such, seemed to be well-received, at least for the moment. I suggested that it was to China’s advantage to have Chinese communities, such as in Hong Kong and in Taiwan, experimenting with modern measures independently of Beijing, just as the United States has benefited from the substantial independence of Mexico and Canada.

All this is aside from what is being done these days in Tibet and in the Western parts of China. What, indeed, is the size of A Manageable China? A like inquiry can be suggested about the continuing relevance of the Constitution of 1787, prepared for some three to four million people (and growing), as the population of the United States approaches one-third of a billion—a development that can help account for the steadily growing influence of Presidential Power in this country.

Two days after the China Conference, I heard (on April 8, 2011) at Orchestra Hall, Dimitri Shostakovich’s “Symphony No.5 in D Miner, Op.47” (introduced in “Leningrad” in November 1937). I could wonder, upon reading the program notes on that occasion, how much that can now be said about the Soviet treatment of this composer may anticipate what is to happen in China some day. Those program notes (appended to these remarks) included these observations:

“Like Beethhoven, Tchaikovsky, and Mahler before him, Shostakovich has written a fifth symphony that sets out to triumph over adversity, with the major key supplanting the minor in the final movement. The power of this music is undeniable, although not everyone was satisfied that its deeper content was really politically correct—after hearing Shostakovich’s new symphony for the first time, the great novelist Bons Pasternak wrote, ‘He went and said everything, and no one did anything to him for it.’”


            I could also wonder, during the China Conference itself, what the effects of the Consul General’s remarks were on the dozen or so people in the audience, trained in the law, who were said to have come from China for this event. Were these young professionals (in a sense, perhaps, the principal addressees for this diplomat)—were they persuaded by what they heard about the merits of the Chinese regime? Or were they reminded only that this is the way one has to talk in order to succeed at home?

That is, what is indeed believed by the younger Chinese about the basis and legitimacy of power at home? What will their increasing exposure to foreign ways, in the furtherance of a remarkable economic development, do to the opinions of the thoughtful about the authority of those who insist they are in charge? How sound and hence enduring can any regime be that is grounded in opinions that are dubious, if not even unnatural?

It can be considered providential that I went immediately from the China Conference to hear a lecture about the challenge that had been posed by James Joyce to the reputation of William Shakespeare. I put to the speaker a question which can be adapted to our inquiry as to the merits (and self-esteem) of the tyrants in Beijing:     “Did Joyce, at the end, believe himself superior to Shakespeare—and if he did believe this, what should we think of him?” Thus we can wonder how what is being officially promulgated today measures up to (and is believed by the informed to measure up to) what is available to be inherited by the Chinese from Confucius, Taoism, Buddhism and the like?

Constitutional Law Seminar,
Loyola University School of Law,
Chicago, Illinois

April 18, 2001



April 8, 2011

Dmitri Shostakovich

Born September 25, 1906, Saint Petersburg, Russia

Died August 9, 1975, Moscow, Russia.

Symphony No. 5 in D Minor, Op. 47

Dimitri Shostakovich first came to the United States in March 1949. Before a crowd of 30,000 people in Madison Square Garden, he sat at a piano and played the scherzo from his Fifth Symphony. He arrived here as an official participant in the Cultural and Scientific Conference for World Peace, and he came, against his better judgment, because Stalin had telephoned him and asked him to come.

It is disturbing and symbolic image: this great man, shy and unassuming behind his thick glasses, being trotted out to perform his best-known symphonic music on a piano in a sports arena. This was but one of many battles Shostakovich fought in his war between the public platform and his private thoughts. A photograph taken at the time shows Shostakovich, his eyes avoiding the camera, standing uneasily between Norman Mailer and Arthur Miller.

Dmitri Shostakovich’s Fifth Symphony is perhaps the best-known work of art born from the marriage of politics and music. In 1949, when the Soviet composer came to America, the circumstances of its creation were as famous as the music itself. The facts are few, but telling. On January 28, 1936, which Shostakovich was working on his Fourth Symphony, Pravda denounced his opera Lady Macbeth of Mtsensk in an article called “Muddle instead of Music.” Although the opera had been triumphantly received in both Moscow and Leningrad during the previous two years—and in more than 175 performances—it was suddenly and decisively attacked as fidgety, screaming, neurotic, coarse, primitive, and vulgar. Although Shostakovich himself was not the recipient of such well-chosen adjectives, there was no question of where he now stood in the eyes of Soviet authorities.

Shostakovich went ahead and finished his Fourth Symphony—a vast, exploratory, tragic work—but when it came time to unveil it in public, he had second thought and withdrew the score. (It waited twenty-five years to be performed.) Then, after a long silence, came his official response, written in just three months. Shostakovich now issued “the creative reply of a Soviet artist to justified criticism,” the astonishing phrase that is forever linked with the work’s official title, Symphony no. 5.

Sorting fact from fiction is no mere pastime in discussing Soviet music. On such distinctions hangs our understanding of important musical impulses. Many a listener, as well as political historian, has pondered the justification for the Soviet criticism and the motivation for the reply. For the record, we can consider the composer’s own words, written at the time, although they are less than fully enlightening: “The theme of my Fifth Symphony is the making of a man. I saw man with all his experiences in the center of the composition, which is lyrical in form from beginning to end. In the finale, the tragically tense impulses of the earlier movements are resolved in optimism and joy of living.” There is, of course, some incontrovertible evidence, like the wild success of the Fifth Symphony when it was introduced on November 21, 1937, in Leningrad under the baton of Eugene Mravinsky, and the subsequent official embrace of Shostakovich, speedily returned to favor.

In the end, the music must speak for itself. In place of the “screaming,” “primitive” music that got him in trouble, Shostakovich now gives us clarity and brilliance. And, despite intermittent tensions, we have a happy ending. Like Beethoven, Tchaikovsky, and Mahler before him, Shostakovich has written a fifth symphony that sets out to triumph over adversity, with the major key supplanting the minor in the final movement. The power of this music is undeniable, although not everyone was satisfied that its deeper content was really politically correct—after hearing Shostakovich’s new symphony for the first time, the great novelist Boris Pasternak wrote, “He went and said everything, and no one did anything to him for it.”

Clarity of form and texture is the hallmark of the large—and not uncomplicated—first movement. From the jagged Grosse Fuge-like opening theme to the climatic, grotesque march over a relentless snare-drum rhythm, Shostakovich takes pains not to lose us in intricate lines of counterpoint or disorienting harmonies. For every page of the score that calls on the full resources of the orchestra, there are countless others on which few notes are written. The second theme, for example, is a serene, soaring violin melody of wide leaps—we are never quite certain where it will land next—over simple chords that slowly change colors as they repeat their “tum ta-ta” pattern.

The Allegretto that follows (a traditional scherzo and trip form) is as merry and good-natured as any music that came from Shostakovich’s pen. If this were the only music of his that we knew, we might not be so quick to read a note of irony into the solo violin’s teasing melody in the trio. But this is music in a singularly untroubled vein, and that is precisely what the Madison Square Garden crowd was meant to hear.

Shostakovich claimed he wrote the Largo at white heat in three days—information that is hard to digest once one hears this calm and controlled music, moving slowly over vast, wide-open spaces. The lucid, thin textures occasionally turn spartan—a solo oboe melody against a single sustained violin note, a flute duet accompanied by a quiet harp—but every phrase carries meaning, and every note is indispensable.

If darkness blankets the eloquent Largo, the finale erupts with power and brilliance. A triumphant conclusion was mandatory—particularly after the troubled thoughts of the preceding slow movement. When the D minor struggles finally shift into an affirmative D major blast, it is only our hindsight—our knowledge of the undeniable sorrow and despair of Shostakovich’s last works—that suggest this happy ending is somehow forced.

[By Phillip Huscher, the program annotator for the Chicago Symphony Orchestra]

Compare Edward Rothstein, “In a Subversive Key: A critic speculates about what Shostakovich was really expressing in his string quartets, “The New York Times Book Review, May 8, 2011, pp. 16-17.

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