Not so much gibberish as derivative and boring

I was rather amused to see that the Judge hearing the J.K. Rowling copyright infringement case has described Rowling’s plotlines as “gibberish”.

To explain briefly, as outlined in this article from The Times, Rowling is asking the Manhattan Federal Court to block publication of The Harry Potter Lexicon, a guide to places and names in the Harry Potter series penned by Stephen Vander Ark. Vander Ark had been compiling the guide on a website when RDR Books persuaded him to publish it as a book. The trial has been very emotional, with Vander Ark breaking down in the witness box, and Rowling saying that her characters were as dear to her as children. I thought it was all rather melodramatic myself.

As I’ve explained in a previous post, I don’t think the plot lines are gibberish, but I find the series rather derivative, and Books 4 and 5 were very long, badly edited and boring. I never bothered to read Books 6 and 7, something which still amazes those who know of my voracious reading habits. Hence I was somewhat amused to see Rowling accusing Vander Ark of being derivative: her work is just a clever patchwork of motifs from other much better fantasy works.

I wonder if a better course of action for all would have been for Rowling to broker a deal whereby she collaborated with Vander Ark and fixed the bits of the Lexicon that she found to be offensive and derivative. I’ve noticed that where guides to a fantasy book deal are produced, they are often the product of collaboration between the author and a third party. A third party seems to be able to provide some perspective. But I don’t know what Rowling’s contract with her publishers is: perhaps that wouldn’t be possible. Still, it all seems unnecessarily confrontational.

Update

Further news and sensible commentary in this Guardian article, which asks how can Rowling talk about debasement when she is agreeing to the construction of a Harry Potter theme park in the US?

Although I have to confess that my sister and I went to Parc Asterix in Paris when we were young, and that was quite fun and not overly commercial from memory. We chose Parc Asterix over Eurodisney…after all, we had read our Asterix books all over France, and visited the site of Vercingetorix’s defeat in Alesia.

Property law and the One Ring

Can it really be true? Yes, it is true. The blog Law is Cool features an essay about Lord of the Rings from a property law perspective! Here is a brief extract:

Consider the following facts which seem ripped from a first year property law exam:

1. Sauron holds ownership in the Ring through accession, by working one thing (base metals) into a new thing (a ring of power)
2. He is dispossessed by Isildur, who now holds possession in the Ring.
3. Isildur loses the Ring (he has a manifest intent to exclude others but no physical control) when it slips off his finger as he was swimming in the Anduin river to escape from Orcs.
4. Déagol finds the Ring.
5. He is dispossessed by Sméagol (a.k.a. Gollum).
6. Gollum loses the Ring and it is finally found by Bilbo.
7. Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.
8. Sam, assuming that Frodo is dead, takes the Ring according to instructions to help Frodo with the Ring in grave circumstances. Sam is acting here as a (fictional) bailee and he returns possession to Frodo after finding him still alive.
9. At the end of the book, Gollum restores his possession of the ring. Seconds later, he and the Ring are both destroyed. At this point all property held in the Ring disappears.

Gee, I wish I’d thought of that. It is just too cool for words. My favourite part is where the priorities battle between the various parties is described. Perhaps I will use it as an example in future classes.

I have a number of thoughts on the matter, but I’ll have to wait until I’m more awake to develop them.

(via The Volokh Conspiracy)

P.S. check out the comments at both Law is Cool and the Volokh Conspiracy – hilarious.

Through the looking glass darkly?

After the rather serious and contentious nature of my previous post, I thought I might move to less serious material (hat tip to Dave Bath for sharing this with me).

Comparative Law Blog notes that Lewis Carroll’s books Alice in Wonderland and Through the Looking Glass are the most widely quoted children’s books in judgments. I loved those books when I was little.

The passage which is most cited in judicial statements is an interchange between Alice and Humpty Dumpty. Humpty tries to convince Alice that “un-birthdays” are better than birthdays because there is only one birthday, but 364 “un-birthdays” in a year.

‘…As I was saying, that seems to be done right—though I haven’t time to look it over thoroughly just now—and that shows that there are three hundred and sixty-four days when you might get un-birthday presents—’

‘Certainly,’ said Alice.

‘And only one for birthday presents, you know. There’s glory for you!’

‘I don’t know what you mean by “glory,”’ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t— till I tell you. I meant “there’s a nice knock-down argument for you!”’

‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice objected.

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master— that’s all.’

The last three sentences are cited in those cases where a party is trying to argue that it can unilaterally determine the meaning of a word which has multiple meanings. As the Comparative Law Blogger says, this is problematic because:

…the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge.

The problem is that someone who is supposed to follow the law does not know what the law is (until the other side tells them they have breached it). This quote was famously used by Lord Atkin in dissent in Liversedge v Anderson [1941] UKHL 1; (1942) AC 206, and has subsequently been used in Australian cases, including:

• Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 at [30];
• Klason v Australian Capital Territory [2003] ACTSC 104 at [88] (in which the delightful neologism “Humptyspeak” is also coined in para [89]);
• Opal Group Holdings (Aust) Pty Ltd v Franklins Ltd [2002] NSWCA 196 at [41];
• Re Franklin Mint Pty Ltd v Commissioner of Taxation [1993] FCA 28 at [44];
• Minister for Immigration v Yusuf [2001] HCA 30 at [112] – [113];
• Gary Ian Smoker v The Pharmacy Restructuring Authority [1994] FCA 1487 at [7];
• Re Slavko Nikac; Rifat Hassan Gogebakan and Alexander Sorenson v Minister for Immigration [1988] FCA 400 at [41]
• Austral Constructions Pty Ltd; Re Austral Construction Pty Ltd Certified Agreement 2003 PR941051 [2003] AIRC 1467 at [1]; and
• Coomera Land Development Corporation Pty Ltd v Urban Land Development Pty Ltd [2006] QDC 365 at [1].

However, Humpty is not the only Carroll character to have featured in judgments.

The Cheshire Cat has also featured in an New South Wales Supreme Court judgment, Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210 at [40]:

 I would prefer to test the matter by analysing the nature of the defect in the Respondent’s Statement of Liquidated Claim and then determining its consequences for the status of that claim in the context of the relevant rules as applicable to a Local Court dealing with a civil claim. It is only by so doing that one can answer the question whether, in the events that happened, “an action is brought on the cause of action” within the meaning of s63(2) of the Limitation Act 1969 (NSW), so as to be protected from extinguishment as statute barred. The analysis therefore requires consideration of the status of the equitable assignee’s writ or claim. This is in circumstances where the debtor had not at any time moved to set the writ aside or stay the action, such that it might be said to be voidable but not void, as in the case of judicial review setting aside a determination for breach of rules of natural justice. In that analogous context, courts now generally favour a “relative” concept of invalidity. This allows courts to hold that a decision is “void ab initio”, as if it had never been made, but only once a competent court declares that it was so made in breach of rules of natural justice. But even after avoidance the cases confirm that such a decision has practical and even legal effect, like the smile on the cheshire cat, lingering after the cat has vanished. See Lewis Carroll: Alice’s Adventures in Wonderland Ch 6: “I’ve often seen a cat without a grin”, says Alice. “But a grin without a cat, that’s the most curious thing I’ve ever seen in all my life.”; see Aronson & Dyer “Judicial Review of Administrative Action” (LBC, 1996) at 485 and for a good example of such judicial treatment Forbes v Trotting Club (NSW) [1979] HCA 27; (1979) 143 CLR 242 at 277. The present case is stronger; there never was any setting aside nor even an application to do so on this ground before the legal estate was got in. There was simply resistance to the Plaintiff’s substitution application when made after the legal estate was acquired and after a further assignment.

There is a reference to the Walrus and the Carpenter in Re Richard Bateman and Georgina Gay Bateman v Barbara Jean Slayter [1987] FCA 58 at [18]:

Having regard to these matters, as well as to the matters I have already discussed in relation to the cash flow projections, I am satisfied that the directors had no basis for the assertion that there was no risk of loss or the prediction that all loans obtained to set up the business would be repaid within one year or, if the statement that the concept was proven be regarded as merely a matter of opinion, for the assertion of such an opinion. I am satisfied that all three of them must have known the situation. What had been “proven” was that the concept of franchising was capable of returning large sums to the franchisor. In the circumstances, to invite persons to join the company as franchisees upon the basis that they would get the benefit of a proven concept was akin to the invitation to join in a treat which the Walrus and the Carpenter extended to the oysters in Through the Looking Glass.

The Hunting of the Snark has featured in a Queensland judgment, R v Robinson [1998] QCA 50:

It is well known that lay people often wrongly conclude that because a person has repeatedly said that something has occurred, therefore it must for that reason be true. They are often inclined to the view that mere assertion, particularly if repeated, necessarily means that what is asserted is true. Lewis Carroll ‘s statement in Hunting of the Snark that “What I tell you 3 times is true”, is quite incorrect. Merely saying something does not necessarily make it so. There are several references to statements made by the complainant in ex.1 and in his oral evidence. The first was in 1994 to his 18 year old neighbour. Then there was the statement to his mother and his further reference of statements made to his mother, father, grandmother and various other persons above referred to.

The Snark also gets a guernsey in Uniquema Pty Ltd v Commissioner of State Revenue [2002] VSC 157 at [3]: ‘Goodwill can be an elusive concept and as difficult to hunt as a snark.’

The poem Jabberwocky gets a reference in Re Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd [1991] FCA 310 at paras [8] – [9] of the judgment of Burchett J, where the nature of the word “caplet” is considered:

Not every word is a blank disc upon which any recognizable significance can only be moulded by usage; some words have a currency from the moment they are minted, bearing a perceptible, even if previously unfamiliar image. A brilliant example of sustained use of new-coined words to convey an imprecise, but yet vivid, descriptive meaning is to be found in Lewis Carroll’s Through the Looking Glass:

“‘Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.”

“Caplets” is not only more prosaic than this; it conveys, at any rate in the context of the illustrations upon the packet and the actual articles within it, not to say the accompanying repetition in ordinary language, a plain and direct meaning. No one looking at the packet could doubt that the product was sold under the name Tylenol, that the company concerned in its sale was Johnson and Johnson, and that it had been made up in the form of the stated number of caplets. If a person, who had not seen the product before, had any doubt about the exact form of the drug which was a caplet, that doubt could not have survived the briefest examination of the packet and its contents.

Even the Queen of Hearts gets a mention in South Australia v O’Shea [1987] HCA 39 at [10]:

… It was said, on behalf of the State, that the diverse considerations which might have influenced different members of Cabinet “are not the sorts of matters on which one would expect a person to have a right to be heard simply because the right to be heard on matters like that is, with respect, a somewhat empty right”. To echo the rhetoric of Lord Atkin in Liversidge v Anderson (at p 245), I know of only one authority which supports such an approach to the right to be heard in relation to matters founding an effective decision that indefinite incarceration should be imposed or continued otherwise than as punishment for a specific proven offence. “‘No, no,’ said the Queen. ‘Sentence first – verdict afterwards'” (Alice in Wonderland, ch.xii). I reject that approach. 

I wonder what Carroll would have thought if he had know his works would have been so popular with judges? Probably it’s best that some quotes aren’t used, I think I’d get worried if a judge started quoting the Queen’s shout: Off with her head!

Potter Schmotter

Why do we read books? And what makes a book “well-written”? I have been thinking about this in the run-up to the imminent publication of J.K. Rowling’s seventh and final installment to the Harry Potter series. Seems I’m not the only one who is a bit sick of the series.

Litlove wrote a great blog post discussing Daniel Gilbert’s book, Stumbling on Happiness, in which she discusses the way in which Gilbert theorises that human beings are the only animal to think about the future in a imaginative and anticipatory way. Instead of reading literature to better ourselves, Litlove says:

How much more likely, given what Daniel Gilbert is saying, that we find pleasure in literature, for instance, because it gives us a spurious sense of understanding the world better, and being therefore more able to master and control it. The basic premise of stories is to represent a conflict and speculate on the ways it could develop. If we feel anxious about the events that might happen to us in life, then storytelling is a wonderful way to increase our possibilities in the planning department, offering us a tremendous store of solutions, consequences, possible outcomes and manipulative strategies to choose from. Literature rehearses for us all kinds of likely and unlikely situations, and provides those delicious anticipatory, imaginary pleasures we are so hungry for, as well as reassuring, or at least interesting, conclusions with which to assuage our anxieties.

I love these posts which make me think about things I often take for granted. I thought that this was a beautiful analysis.

I am a voracious reader. But what motive do I have for reading so much? To an extent, it’s part of my job: I have to read cases and texts. But I also read for knowledge and information, for inspiration, for fun and to admire the exquisite skill of a particular writer. There are some books I read for comfort, and some books I read when I want to have a good cry. I read some books just once, and others are worn thin because I have read them so many times. Sometimes I never manage to get through a particular book. (I see a trend: those Russian authors are troubling for me – I’ve never finished Crime and Punishment or Anna Karenina).

I think good art is something which:

1. Makes you say, “Ah, that’s how it is” with a sense of recognition (often, in the process, illuminating some detail or nuance of life that you haven’t previously understood yourself);
2. Makes you think about the world in a different way: “What if things were like this? What an interesting/disturbing/thought-provoking way of looking at it!”

I don’t like artwork such as a cow’s head in formaldehyde – it doesn’t “say” anything to me at all, and it doesn’t make me look at things in a new way. There’s no skill in it, and it seems like art purely for shock value alone.

I agree that a sense of anticipation is definitely one of the pleasures of a good novel or movie – one often knows that Boy will get together with Girl, or Detective will discover Murderer, or Fantasy Character will succeed in her quest…but how will it happen? We enjoy recognising the patterns and rehearsing the situation.

Some books are purely for enjoyment. Some we read because they have a “hook” – we simply must find out what happens. I would put The Da Vinci Code in this latter category – it was appallingly written, but I had to find out what happened – it was the archetype of a “page -turner”. We read other books because they are beautifully written – but if there isn’t a hook to pull us through, we might not finish the book (eg, The Eye of the Storm by Patrick White – exquisitely written, but finishing the book is like wading through half-set concrete.) The very best books have a “hook” and are well-written to boot. Mmm, such books are pure pleasure.

I like novels that make me think about the world differently. I have a collection of novels about dystopias. Since my teenage years, I have an idea of writing a novel about a revolution where an underclass rebels but the new leaders are no better than the old (in a science fiction context). But I’ve never written it because it’s probably a bit passe these days.

I also like children’s fantasy novels (perhaps I need them to lighten my cynicism). I find that they are often very well-written and thought provoking. I must confess that I quite enjoyed the first three Harry Potter books. I didn’t take them seriously. But later, I began to dislike the series. There were a few things which changed my mind on this point:

1. I arranged to play a board game with my friend “The Wordies”. The game was based on Book 1 of Harry Potter. Always competitive, I read Book 1 twice over the evening before the game, just to make sure I was primed to win. Unfortunately, my team mate and I found ourselves in Slytherin so all that reading was in vain – the game was arranged so that Slytherin could not win. However, the point is that after reading Book 1 twice over in quick succession, I found that aspects of the story to be very derivative, and the writing style really began to irritate me. (I’m in good company here: Harold Bloom also thinks it is badly written.)
2. After the first three books, I started to see that the books were just written to a formula. Some books are written to a formula, but it doesn’t get boring (eg, Agatha Christie). But Harry just started to get predictable.
3. Books 4 and 5 were far too long and I didn’t really enjoy them. Harry the whining self-indulgent teen really didn’t “gel” with me. And I hate bloody Quidditch.

The first two Harry Potter movies were two of the most boring movies I’ve ever seen, so I never bothered to see any others. Likewise, I never bothered to read Book 6. I won’t bother to read Book 7 either.

I couldn’t quite put my finger on why I was dissatisfied with Harry Potter until I read A.S. Byatt’s biting commentary on it. She said:

“Auden and Tolkien wrote about the skills of inventing “secondary worlds.” Ms. Rowling’s world is a secondary secondary world, made up of intelligently patchworked derivative motifs from all sorts of children’s literature — from the jolly hockey-sticks school story to Roald Dahl, from “Star Wars” to Diana Wynne Jones and Susan Cooper. Toni Morrison pointed out that clichés endure because they represent truths. Derivative narrative clichés work with children because they are comfortingly recognizable and immediately available to the child’s own power of fantasizing.

…

But in the case of the great children’s writers of the recent past, there was a compensating seriousness. There was — and is — a real sense of mystery, powerful forces, dangerous creatures in dark forests. Susan Cooper’s teenage wizard discovers his magic powers and discovers simultaneously that he is in a cosmic battle between good and evil forces. Every bush and cloud glitters with secret significance. Alan Garner peoples real landscapes with malign, inhuman elvish beings that hunt humans.

Reading writers like these, we feel we are being put back in touch with earlier parts of our culture, when supernatural and inhuman creatures — from whom we thought we learned our sense of good and evil — inhabited a world we did not feel we controlled. If we regress, we regress to a lost sense of significance we mourn for. Ursula K. Le Guin’s wizards inhabit an anthropologically coherent world where magic really does act as a force. Ms. Rowling’s magic wood has nothing in common with these lost worlds. It is small, and on the school grounds, and dangerous only because she says it is.”

Source: A.S. Byatt, ‘Harry Potter and the Childish Adult’, New York Times, 7 July 2003 (subscription needed)

To my mind, all great children’s fantasy series have an underlying moral compass. This doesn’t mean that the books should be didactic, but there should be an exploration of what is right and what is wrong. Any good fantasy book is a rehearsal of a battle between good and evil. It helps us rehearse for situations when we face real wrongs in the real world. The Harry Potter series is missing this moral compass. Voldemort is “evil”, but we are never quite sure what is so very “evil” about him, other than his desire to kill Harry (the nasty side of me secretly thinks that perhaps that is a good thing).

Perhaps I can illustrate my point by listing books which I think are great examples of fantasy for children, young adults, and adults:

• The Lord of the Rings and The Hobbit by J.R.R. Tolkien;
• The Chronicles of Narnia by C.S. Lewis (Yeah, I know they’ve got that underlying Christian message, but they’re still darn good books);
• The Chronicles of Prydain by Lloyd Alexander (he manages to end the five book series without any fall in quality – no mean feat);
• The Dark is Rising Series by Susan Cooper (also Seaward);
• Diana Wynne-Jones’ books, including Hexwood, Deep Secret, A Tale of Time City, Howl’s Moving Castle (I think she’s one of the most seriously underrated children’s authors, although Miyazaki’s recent film seems to have led to a greater exposure of her work);
• Alan Garner’s books including The Weirdstone of Brisengamen (which is set at Alderley Edge – near where I lived in the UK – I always hoped I might see the Wizard of Alderley there);
• The Earthsea Series by Ursula K Le Guin (I also love The Left Hand of Darkness and The Lathe of Heaven);
• A Wrinkle in Time by Madeline L’Engle;
• Garth Nix’s Abhorsen series (Australian author);
• Phillip Pullman’s His Dark Materials series;
• Margaret Mahy’s books (real world stories with a magical touch);
• Terry Pratchett.

In a good fantasy novel, characters are put in situations where they are tested, and learn something about themselves (not always positive things). They grow up. The evil is real: those on the dark side enslave, kill and limit the freedoms of others. Often, the evildoers wage war on the forces of good. The consequences of victory for the side of evil impacts on all of society. Such books often explore the possibility of evil arising as a result of a desire to do good, or the possibility of those who seem evil having some good in them.

Harry Potter just seems shallow and simplistic by comparison. Part of the problem, I think is the fact that the world of Harry Potter is too black and white. It lacks subtlety. The attempts to introduce questions about racial purity, discrimination and bullying are didactic and heavy-handed.

For example, Harry Potter is bullied by the Dursleys and by Draco Malfoy, for no apparent reason other than the fact he is Harry Potter. But as far as I know (remember, I haven’t read Book 6), the bullying remains very clichéd. This can be compared with the rivalry of Taran and Prince Ellidyr in The Black Cauldron by Lloyd Alexander. Taran (the hero) is bullied by Ellidyr, but contributes to the problem with his hot temper. He eventually understands that, while you can’t control someone else’s behaviour towards you, you can control the way in which you react to them when they goad you. In the end, Taran sees that Ellidyr’s unkindness is partly spurred by his insecurities and desire to prove himself, and forgives him. Ellidyr finally understands that his conduct is wrong, and finds he has some good qualities. Both end up sacrificing a great deal for the safety of all. Despite the serious questions raised, Alexander handles the matter with humour and compassion, and does not become didactic or preachy. Harry, the Dursleys and Malfoy never seem to get beyond the childish tit-for-tat behaviour portrayed in Book 1. There is no room for learning or growing up.

If we read books to rehearse and anticipate the problems of real life, I’d recommend having a look at some of the books I’ve listed above, which manage to do this a lot better than the Harry Potter series. If my daughter decides to read Harry Potter, I certainly shan’t dissuade her, but I will try to introduce her to some other books as well. I think there’s better examples of the craft out there.