Apples and Oranges. Maarten Asscher
He took the melting temperature of ice and the boiling point of water and he divided the difference between both temperatures into a hundred degrees. As a result, we all know what we mean when we say it’s 18° Celsius outside. In a similar manner we could divide, by way of a thought experiment, the distance between Freisler’s absolute zero and Cleveringa’s highest point into one hundred degrees, thus providing ourselves with an instrument or scale to measure the moral demeanor of jurists.
Let’s put the ‘Cleveringa Scale’ to the test. When Fred Teeven, State Secretary for Justice in the present Dutch legislature, declared that the killing of a burglar by a resident may be unfortunate, but that it is ‘one of the risks’ burglars are taking, where on our scale would we be inclined to locate a jurist who makes such statements? And what should we think of Amsterdam lawyer Bram Moszkowicz, who claimed that he was under no obligation to adopt the professional standards expected of lawyers? Or of Dutch Minister of Justice Ivo Opstelten who launched a plan to give the government the authority to tap into private computers? The same minister Opstelten who posed in full regalia for an official photo with all the presidents of his tribunals and courts of justice, while Montesquieu’s trias politica principle states with sufficient clarity that they are not his tribunals or courts of justice? What would these lawyers score on the Cleveringa scale? 83? 76? 98?
If Cleveringa’s exemplary attitude during and after the war has anything to teach us—certainly when offset against the ink-black counter image of Roland Freisler—then it has to be that only one thing matters when the hour of truth comes: it’s not about what you say you’re going to do, nor what you’ll say afterwards in hindsight, but what you actually do at the moment it has to be done. Such decisive action at the right moment is referred to in German by the handsome term Zivilcourage, a word roughly equivalent to the English ‘courage of one’s conviction’. The hypothetical Dutch equivalent burgermoed doesn’t appear in recent editions of the standard Dutch lexica. The German term might best be translated ‘heroic courage in plain clothes’, or in other words, acting with heroic courage without a uniform.
Heroic courage is difficult to assess when we associate it with soldiers and civilians; and the same is true for professors in gowns and judges in court regalia. Intangible powers and phenomena need a scale against which we can evaluate their efficacy, to be able to inform one another—also across generations—how dire or how innocent it was. Earthquakes are measured according to the Richter Scale, allowing us to compare the Lisbon earthquake of 1755 with the San Francisco earthquake of 1906. Wind-force is measured on the Beaufort Scale, an instrument that likewise facilitates universal comparisons. The Cleveringa Scale should allow us henceforth to assess the moral character, ethical vigor, and sense of justice of those engaged in the legal profession.
Such rankings, of course, are far from easy to apply. A great deal of heated discussion is likely to accompany any attempt to determine a lawyer’s place on the Cleveringa Scale: should it be 78 or 53 or 91? But I am personally inclined to consider debates of this sort as something to look forward to. European Commissioner for Justice Viviane Reding has recently moved in a similar direction with her call for a ‘justice index’ applicable in every member state. While earthquakes and storm winds are brute and inarticulate forces of nature, the true beauty of a Cleveringa Scale might be that it could allow us, on the basis of such a ranking, not only to assess others, but in particular also to assess ourselves; jurists or not.
HAMLET AND TELEMACHUS
Two Sons
Telemachus and Hamlet. Both unmarried and, on the surface at least, ideal sons-in-law. Both are saddled with the task of avenging their father and restoring his honor. Both long for sufficient courage to grow within them so that they can do what a ghostly apparition asks from them. Both brood at the spectacle of their mother; her reputation is on the line since their father disappeared. Both are notorious doubters, partly because of their character, partly because of their still youthful age. Both—each according to the literary rhetoric of his day—find themselves at the beginning of the story in a contemplative and dispirited mood on account of the loss of their father, a mood that doesn’t inspire the decisive intervention to which they are challenged by the apparition.
‘Who has ever really known who gave him life?’ Telemachus sighs. ‘Would to god I’d been the son of a happy man whom old age overtook in the midst of his possessions!’ Hamlet laments that even ‘bounded in a nutshell’ he could count himself a ‘king of infinite space’, were it not for his bad dreams. Both thus torment themselves with their futile ponderings, close to collapse under the burden of fate’s charge, under the crushing example of their father, who surpassed everyone in power and courage.
As the ghostly manifestation puts it to the elder of the two sons: ‘Few sons are the equal of their fathers; most fall short, all too few surpass them.’
Telemachus at Elsinore; Hamlet on Ithaca. Picture the castle of the spinelessly murdered Danish king in an amusing thought experiment as the decor for Penelope and her suitors, and—vice versa—the court of Claudius and Gertrude flown over as it were to the Ionian Islands. The only one who would survive in one piece would probably be Laertes, the brother of Hamlet’s ill-fated love Ophelia, who would reencounter himself on the distant Greek island as the similarly named elderly father of Odysseus.
In the third scene of the first act of Hamlet, this same Laertes declares of Hamlet, his brother-in-law to be: ‘His will is not his own. / For he himself is subject to his birth.’ In a brief couplet we are presented with the thematic problem that is to torment both Hamlet and Telemachus their entire literary lives: what to do; how to do justice to one’s calling in life and to the example of an incomparable father; how to acquire knowledge of what divine fate has prescribed?
There’s doubtless much to be said against a comparison between Homer’s creation and that of Shakespeare, but from what we have said thus far we can observe at the very least that Telemachus and Hamlet are kindred literary sons. Both are overshadowed by their great mythical example Orestes. He, Orestes, at least knew what to do, and Aeschylus’ Oresteia would be far from misplaced as a set of course notes for the undecided. Indeed, Orestes took merciless revenge on Aegisthus, the cunning killer of his father Agamemnon, slain on his return from the Trojan war.
Telemachus is already presented with the bold Orestes by way of example in the first book of the Odyssey, and by none less than the goddess Athena. ‘Be as brave,’ she tells Telemachus, appearing to him in the form of the stranger Mentor, a Taphian prince. Still lacking in purpose, the young son of Odysseus, who can only stand and watch as boisterous suitors compete with ever diminishing shame for the hand of his mother, receives even more useful advice from Athena. Setting herself up as the protector of both father and son, the goddess urges Telemachus to go on a journey—a mini-Odyssey if you like—to Pylos and Sparta, the respective kingdoms of Nestor and Menelaus. He is to inquire of both kings—his father’s erstwhile companions-in-arms—whether Odysseus is still alive and on his way back from Ithaca. Whatever their response, the goddess insists that he must finally do something: ‘Take matters into your own hands,” Athena urges, offering him the choice between deception and open combat. Hamlet could have used such a goddess, someone who would have urged him to act in such an efficacious manner. Instead, Hamlet racks his brains with a theoretical dilemma: whether it be nobler to suffer or take arms against a sea of troubles.
In ‘sandy Pylos’, in Nestor’s palace, Telemachus is hammered once again with the inspiring example of Orestes. ‘See what a good thing it is,’ says the venerable king, ‘for a man to leave a son behind him to do as Orestes did, who killed false Aegisthus the murderer of his noble father. You too, then—for I see you are tall and handsome—must show your mettle and make yourself a name; then later generations will sing your praises.’
The young Telemachus responds with the following answer, so characteristic of his vacillating temperament and youthful diffidence: ‘Would that the gods might grant me the strength to exact like vengeance on the wicked suitors for their woeful misdeeds and reckless overconfidence. But the gods have no such happiness in store for me nor for my father,