Why US courts also won't be saying much about national security surveillance

The answer can be found in the US Supreme Court’s decision in the case of Clapper v. Amnesty International USA (No. 11-1025, decided Feb. 26, 2013). The Court didn’t absolutely rule out judicial review of the expanded forms of surveillance authorized by the 2008 amendments to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881a, but it ruled that the case brought by the plaintiffs in Clapper could not be heard by the federal courts, and narrowed the chances of the courts’ involvement in the future as well. The reason: the plaintiffs, the people who brought the case, didn’t have “standing.”

"Standing" is the doctrine, currently understood as largely mandated by the constitution, that federal courts only hear cases brought by litigants who have something besides ideology at stake. That something is often summed up as the requirement that the plaintiffs must have suffered “injury in fact.”

The idea that only people who've actually suffered "injury in fact" should be able to sue has some real force. If you don't have anything personally at stake, maybe you're imagining disputes that the people actually involved have found better responses to. Meanwhile you're taking up the time of the courts, which have plenty to do, and perhaps provoking them to rulings that will turn out to be misguided when they're someday applied as precedents to people with real controversies. This desire for disputes with real stakes, litigated by the people whose stakes they are, isn't all of what underlies standing doctrine, but let's begin here.

Does the Supreme Court's recent decision that the plaintiffs in Clapper lacked standing fit this "real cases" concern?

We know that the Bush Administration created an electronic surveillance program outside the structures of the Foreign Intelligence Surveillance Act (FISA). After word of this program leaked, Congress ultimately gave the Administration new and broader statutory authority to carry out such surveillance. Under the new legal provisions, court orders (notably absent in the original Bush program) are required, but the Court explains that these orders can be granted without the same level of individualized proof as to the surveillance target and the same specification of the “facilities or places” to be surveilled as with other national security surveillance – and that in turn isn't exactly the same level of proof required for a regular search warrant under the Fourth Amendment.

This new statutory authority may be good or bad, essential or abusive. The one thing that seems inevitable is that a lot of foreign terrorism suspects will get surveilled under it. And from that proposition follows another: though surveillance under this program must be aimed at foreign terrorist suspects outside our borders, some of the people who will be overheard will be Americans talking to those foreigners. Those Americans have a right to be free of surveillance unless it complies with the constitution. It is doubtful whether non-citizens, outside our borders, have any constitutional protection against surveillance, though this point has not been definitively resolved by the Supreme Court. Americans inside the US certainly do have a constitutional right not to be subjected to improper surveillance, but to vindicate that right they have to be able to go to court.

That's the problem. The program's administration is secret, so in general no one is entitled to know that he or she is being surveilled. That means no one can sue.

Or rather it would mean this if the “injury in fact” requirement of US standing law meant that you had to have a proven actual injury in order to have standing. But that isn't the law, and for good reason. Suppose a factory discharges carcinogens into a lake. Will lake users get cancer? Some may, some years in the future. Right now, though, they're in good health; their only injury is the risk that they will later become ill. I'm not belittling that risk. Quite the opposite - that risk is enough injury for standing, as cases described by both the majority and dissent in this case appear to confirm.  

Relying on this theory, the plaintiffs in this case described why it was likely that their communications would get intercepted. For example, a lawyer representing a client charged with terrorism might need to communicate with the client's family and friends to try to build a defense - but some of these people might well be the subjects of surveillance (after all, they're the family and friends of an accused terrorist). So the plaintiffs argued that they themselves were at risk of being surveilled. They also said that they had already had to change their activities so as to reduce this risk because otherwise they could not do their own entirely lawful jobs (and those changes, involving expense and inconvenience, were themselves arguably injury).

A 5-4 majority of the Supreme Court found that the plaintiffs nevertheless lacked standing. In part the Court did so by asserting that when injury hasn’t yet taken place, the prospect of injury supplies standing only if it is “imminent,” meaning “certainly impending.” The majority has to acknowledge, however, that some of the Court’s past decisions phrase the standard not as one of “imminence” in this sense, but rather as a requirement of “substantial risk” – and the dissent elaborates this point in detail. Nevertheless the majority says that the plaintiffs haven’t even shown “substantial risk.” (Majority opinion, footnote 5.)

As a quantitative matter, that response seems hard to sustain. But the more important feature of the majority's argument may be qualitative: they say that in the risk cases, something has definitely happened (the carcinogens, for instance, have flown into the lake), and the issue is only what harm will ensue and when. Here, on the other hand, the plaintiffs cannot say that anything has happened to them - just that it's likely to happen. (Actually, one plaintiff said that the government in fact “had intercepted some 10,000 telephone calls and 20,000 email communications involving” a client he represented - I think this information had mistakenly been revealed by the government - but none of the justices place much weight on this particular feature.) According to the majority, the plaintiffs’ “attenuated chain of inferences” just doesn’t make the case.

Let's grant that to say X has happened and may bring harm is not the same as to say that X may happen and may bring harm (though the dissent suggests that in some past cases the Court in fact was satisfied with “X may happen” showings). These scenarios are different, but why does the difference matter? If we go back to the purposes I cited earlier for having a "standing" requirement - basically, to make sure only real issues are litigated, and only by people with a real stake - it seems to me these plaintiffs fit the bill. If their fears of surveillance were groundless or unreasonable, then we might call their lawsuit hypothetical - but I don’t think the majority ever says these fears are implausible.

Suppose, though, that the law does and should require that the plaintiffs prove they actually were being surveilled. That might make sense - except that, again, the program is secret. Could that problem be surmounted by having a court review surveillance records in camera (that is, in secret)? No, says the majority (in footnote 4 of its opinion), because any determination by the court that someone was being surveilled would inevitably amount to a national security breach. Catch-22. (There's also a depressing hint from the Court on this point, to the effect that lawyers might unlawfully disclose the court's findings to their clients. There have, in fact, been improper disclosures on occasion, but it is sad that the Court sees these cases as so polarized that it will not take for granted the integrity of the bar on this score as a general matter.)

At this point one might say that the court's application of standing law means that no one has standing to sue and therefore that the constitutional issues posed by this surveillance program will forever escape judicial examination. Not quite. In fact, there appear to be plenty of situations in which a court will at least to some extent consider these issues, because the government must get a court order from the Foreign Intelligence Surveillance Court to authorize its surveillance efforts. But that court meets in secret, obviously without any representation for the targets of the surveillance, let alone for the non-targeted US citizens who fear their communications will be caught within the net of the surveillance.

What about cases in the public courts of the land? These too can occur, but not often. One  occasion the Court foresees for such a challenge would be the prosecution of a person against whom the government wishes to use evidence derived from FISA surveillance. Even assuming that at this point someone could sue for unconstitutional surveillance, the problem is that this point is only reached if the government (a) prosecutes and (b) plans to use evidence derived from surveillance. Any surveillance not resulting in prosecution won’t make it to court this way. A second situation cited by the Court is the possibility that a telecommunications company, directed to assist in the surveillance process, will sue to challenge this obligation. That might happen (I think something like it may already have happened at least once), but it depends on the constitutional vigilance of the telecommunications company. With these limited exceptions, it appears there simply will be no way for US citizens who believe their communications have been unconstitutionally captured through this FISA surveillance to challenge that conduct in the courts. 

Is this restricted possibility of judicial review problematic? One way to answer this question is to simply put aside for now the exceptions to the bar on judicial review that we’ve just examined, and consider head-on the idea that no one affected by a law has standing to challenge its constitutionality. Surely that just has to be wrong? Well, perhaps it should be, but actually under our law it isn't. In fact it's well established that there may well be government actions that no one has standing to challenge in the courts. That's okay, the standard answer goes; the place to challenge these acts is in the political process.

Now we come to what I think is the heart of the matter. Standing doctrine is notoriously malleable, and a lot of what drives it is the judges' sense of what issues they want the courts to be involved in. I don't mean that judges duck the cases in which a ruling would injure their political preferences (judges appointed by a President of one party favoring that party, for example). That may happen on occasion, but I'm describing something more principled than that. The principle in question, however, isn't really that there must be someone with a real stake to litigate a case. The ambiguous doctrines surrounding that idea could have been read to validate the plaintiffs' reasonably perceived risk of injury as enough to entitle them to come to court. I think that the “real stake” requirement is best seen as a proxy for another concern that’s part of standing doctrine, one I haven't yet discussed.

The concern in question is the desire of courts not to intervene in decisions that ought to be made through the political process, notably including choices about national security. It's been felt since Marbury v. Madison established the Supreme Court’s power to rule on constitutional issues in 1803 that there are some issues that courts can't handle. For example, consider the question Americans faced in the run-up to World War II: should we go to war against Nazi Germany? Or this question from after we entered the war: should we first invade North Africa or France? Questions like these are immensely important, but they're not, we say, for the courts to make.

As you can see, the issue is no longer whether or not a dispute is hypothetical. Whether and how to fight a war are anything but hypothetical questions, and everyone in the country has a stake in them. The debate, rather, is over whether citizens should seek answers to those questions solely from the political system, or also from the courts. As a general matter, when the only stake litigants have is one they share with everyone else in the country – the interest in good governance, for instance, or the desire to have their tax dollars spent widely – US courts respond by saying that the suitors must seek their relief elsewhere.

It is quite possible to argue that US courts are too hesitant to rule on some issues. Our courts have intervened on some of the great issues of the war on terror, especially around detention without trial at Guantanamo and in the United States (though notably not in Afghanistan). They have also found other claims insufficiently pleaded, as in Ashcroft v. Iqbal, in which Iqbal challenged post-9/11 law enforcement which he said was based on race, religion or national origin, or beyond their power to hear, as in the distressing case brought by Maher Arar to challenge his "extraordinary rendition" to face torture abroad. Courts of some other countries – South Africa and Israel are examples – have been prepared to reach much further into the realms of government choices. I’m inclined to think our courts should go further, but there is a cost: if courts decide issues, then the people’s wishes on those matters, expressed through their choices of elected officials and those officials’ decisions, may get overridden. This isn’t a zero-sum game; sometimes the effect of judicial intervention is to strengthen democracy rather than to weaken it. But it’s a real concern: Platonic guardians may be wise, but they won’t be democratic – and they may turn out not even to be wise.

So what should tell us, in a case like this, whether to read standing doctrine to permit or to prohibit the case being heard? How do we tell when an issue is for the political system and when it’s right for the courts to resolve? I think the answer for the US – the surprisingly simple answer – is: the constitution. Broadly speaking, the constitution doesn’t guarantee us the right to go to court to seek wise public policy choices. The constitution is meant to establish a good and wise government, but its text doesn't give us a direct right to goodness and wisdom. What it gives us is a set of political structures, elections among them, that are meant to promote the chances of good governance.

But the constitution also gives us individual guarantees against some of the worst things a government can do. The list in the US constitution is shorter than in many modern constitutions, and we might be better governed if we had a longer list. We might even argue that the constitution should be understood to protect more than its text directly addresses. But what is in the text is important, and our constitutional text does include a protection against unreasonable search and seizure – the Fourth Amendment. Protecting explicitly listed individual rights like the right to be free of unreasonable searches, or the right to freedom of speech, is at the heart of the role of US courts. To find that these plaintiffs don't have standing means our courts can't effectively perform that role - and that means that the current Supreme Court majority’s account of the law of standing has cut into the core function of courts under our constitution.

Legislators' mistakes -- and what judges should or shouldn't do about them

Suppose that the awful truth is that federal statutes sometimes just aren't written very well. The drafters (legislators, staff members, lobbyists, administration officials or others) choose their words poorly, not as part of some devious political scheme but just by mistake. What should courts do when they're called upon to interpret and apply the resulting laws?

Here's a recent example, the subject of the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons (No. 11-697, decided March 19, 2013). Mr. Kirtsaeng, a Thai, went to graduate school at Cornell. While he studied here, he “asked his friends and family in Thailand to buy copies of foreign edition English-language textbooks at Thai book shops, where they sold at low prices, and mail them to him in the United States,” where Kirtsaeng was able to resell them at higher prices. John Wiley & Sons sued Kirtsaeng for having sold eight of its copyrighted books, and won a judgment against him for $600,000 ($75,000 for each book). (That sum seems somewhat less oppressive if seen in light of the 600 John Wiley volumes that Kirtsaeng apparently imported – but it’s still the kind of number that gives enforcers of intellectual property rights a bad name.)

Here are the statutory provisions (as described by the Supreme Court – I’m not a copyright lawyer!) that were directly in play.

First, as a general proposition a copyright-holder has the exclusive right to publish a book and offer it for sale. That’s in 17 U.S.C. § 106(3).

Second, a publisher has a right to sell books outside the US and bar their importation into the US. That’s in 17 U.S.C. § 602(a)(1), which provides:

Importation into the United States, without the authority of the owner of copyright under this title, of copies … of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies … under section 106 ….

Third, the Supreme Court decided in an earlier case that the section 602(a)(1) right to bar importation only protects (as section 602(a)(1)) itself puts it) “the exclusive right to distribute copies … under section 106(3).” So if an importation wouldn’t violate that exclusive right to publish a book and offer it for sale, then it wouldn’t be illegal.

Fourth, the section 106(3) exclusive right to publish is subject to an exception, called the “first sale” doctrine. This doctrine says, essentially, that the publisher’s exclusive right is exhausted once someone buys the book. So, for example, if I purchase a John Wiley textbook, I’m free to re-sell it later on.

If the “first sale” exception applies to books sold abroad, then the importation limit in section 602(a)(1) loses much if not all of its force – the only books that couldn’t be imported back into the US (and here sold at less than the price for the US editions) would be those that the importer acquired by some method other than purchase.

So: does the “first sale” exception apply to books published abroad, or does it only apply to books published and sold in the US? Here’s the language of the “first sale” provision, 17 U.S.C. § 109(a):

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Clearly section 109(a) does not say that the first sale exception applies only to books published and sold in the US. But does it mean that?

You can see how mistakes could get made in answering questions like these. These texts are difficult, complicated documents with lots of moving parts. They're also being subjected to analysis by a lot of readers, many of them looking for flaws or loopholes and eager to exploit them. I write exams that 100 students take, and almost always I learn things about what I've written from what the students argue. Statutes can get a lot more readers, with a lot more time and experience, scrutinizing their possible meanings.

So, again, mistakes are not surprising. They're not even necessarily proof of carelessness. So what should courts do with them?

There's an old answer to this question, from what was called the Legal Process school. These writers argued that courts were engaged in the broad process of governance just as legislatures and presidents are. As a general proposition, therefore, courts should seek to contribute constructively and cooperatively to this process, and should assume that lawmakers are reasonable people pursuing reasonable purposes reasonably. Concretely, they should try to read statutes so as to minimize the impact of legislators’ mistakes and imprecisions.

But there is another possible answer. This one says that the task of courts is to enforce the rules of the constitutional structure. According to those rules, the words enacted into law are the law, and the interpretive question isn't what they were intended to mean but what they in fact say. If what Congress said was ill-chosen (and even if the choice was inadvertent, and not motivated by some covert political calculation, as these interpreters often suspect), then Congress can amend it - but the courts won't do Congress a favor by pretending the law says something it doesn't.

There is some force to both of these views. I like the idea of courts as part of a shared process of governance, but I certainly wouldn't want courts helping out with government acts of oppression - and there must be some limit on cooperativeness set by the principle of "separation of powers." On the other hand, for me the claim that the text must mean only what it says is less persuasive - among other reasons, since often what it says is unclear. But if the text doesn't have any real grip, then it's not there for us when we need it - for instance, to say that a statute prohibiting torture really does outlaw torture.

So the question is what to do with these somewhat conflicting intuitions. If both have some measure of truth to them, a natural response would be to take both into account. Very broadly speaking, I think that's what all or almost all of the justices of the Supreme Court mean to do. Moreover, as I’ve said on this blog before, I think the ardor of past battles over interpretive theory has somewhat cooled; the opinions I read feature little grand debate about interpretive principles, though a lot of vigorous employment of interpretive tools to vindicate conflicting readings of the law. But after some decades of struggle by the advocates of textualism - who also seem frequently to be conservatives skeptical of liberal "big government" – I think we've arrived at an unfortunate point on the interpretive spectrum.

The location of that point is illustrated by the Supreme Court’s decision about the copyright statute in Kirtsaeng. The majority argues that the statute's "first sale" provision has no geographic limitation stated – an observation that is completely correct. It also marshals quite an array of statutory interpretation arguments to support its conclusion that no geographical limitation should be inferred. For example, it sees an array of practical problems involving “libraries, used-book dealers, technology companies, consumer-goods retailers and museums,” and argues that these problems “are too serious, too extensive, and too likely to come about for us to dismiss them as insignificant – particularly in light of the ever-growing importance of foreign trade to America.”

Suppose (as indeed may be the case) that just as a matter of putting together the lessons of the various tools of statutory interpretation now used by courts, the majority’s reading is more persuasive than the contrary position of the dissent. Maybe the end result is unfortunate – perhaps US publishers do need to be able to block importation and resale of lower-priced editions marketed abroad – but if that’s so then it’s up to Congress to fix the problem.

Now that may be good or bad - and it certainly is supported by close and ingenious statutory interpretation. Moreover, the author of the majority decision, Justice Breyer, is far from a rigid textualist. Still, it's not until we reach Justice Ginsburg's dissent that we learn that apparently the US has over two decades or more steadfastly argued in international negotiations that publishers should have exactly this power, and we've successfully insisted on treaty language steering clear of addressing this issue, despite the desire of many countries to eliminate such power. The majority says that Ginsburg’s evidence about our stance in these decades of international negotiations – evidence which it doesn’t do much to refute – shows “nothing indicative of congressional intent in 1976,” when the current “first sale” statutory language was adopted. But really – is it likely that we've spent all this effort on this point, when meanwhile our own law long since took this power away from publishers?

It seems to me, in other words, that here the Supreme Court has followed the body of interpretive tools to a conclusion that just misses reality. And “missing reality” strikes me as an unfortunate interpretive stance!

Commerce and Authenticity

Is what’s produced for commerce with outsiders inauthentic? That’s one way to describe the fundamental intuition that makes Westerners look for African art produced by Africans for religious ritual and traditional dance – and to draw back from what’s made for trade.

There is, undoubtedly, work done for trade that has little intrinsic meaning and value. We buy it all the time, in fast food and fast merchandise. But the basic idea that commerce and meaning are opposed is obviously false: artists have to eat, and many of them profoundly desire commerce in the sense that they want to speak to their fellow men and women. 

This basic opposition is certainly false some of the time in Africa. You can see this in the account by Brenda Schmahmann in “Stitched-up Women, Pinned-down Men: Gender Politics in Weya and Mapula Needlework, Zimbabwe and South Africa.” (This article is chapter 5 in Sidney Littlefield Kasfir and Till Förster, eds., African Art and Agency in the Workshop (2013) – which those of you who’ve seen my recent posts will know I’ve been reading along in.) Schmahmann describes the history and the products of two projects in which African women, with the assistance of outside professionals, used sewing skills to produce things of beauty and to earn income.

I’ll focus most on the embroidered cloth created by South African women near Pretoria, in a project called the Mapula Embroidery Project. Initiated, it seems, by the Pretoria Council of Churches, and catalyzed by a member of the UNISA (University of South Africa) art and fine art department and colleagues of hers, this project was seeded in the black community of Winterveld and took root there. It took root only with difficulty: local group leaders’ deaths and disappointed hopes undercut it but it survived. You can see some examples of the Mapula work – which strikes me as beautiful and stylistically innocent at the same time – here. (And for examples of the Zimbabwean Weya project’s appliqués, see this link.)

But the work turns out to be deeply political. As Brenda Schmahmann explains, the women embroiderers respond to the tremendous sexual oppression of their lives by creating images of a just world. The Weya appliqué makers are sometimes blunter, but they too tended to the portrayal of the world they wished for. (The Weya project as such ended when funding ran out, though Schmhmann reports that "works in a Weya style continue to be made" (131).) 

Thus an artist named Thandi Sondlo creates a piece called “Nelson Mandela and Graca Machel,” in which Machel says to Mandela, “I like your shirt” and Mandela responds, “And me too I like your dress” – while a child sits between them and below them is an image of “Mr Mbeki [South Africa’s second president] developing the world.” Schmahmann says, “In her representation of Mandela and Machel, Sondlo remedies the lack of reciprocal affirmation that usually characterizes relationships between men and women in her community.” (Text accompanying plate 5 in the book.) It's noteworthy also that Sondlo did not invent the dialogue she presents; rather, she borrowed it and transmuted it from a South African joke in which the first speaker was not Graça Machel but rather Archbishop Desmond Tutu (141). This work is clever as well as moving.

These pieces, understood against the backdrop of the makers’ lives, become both sweet and sad. As to the supposed opposition between commerce and authenticity: the idea seems almost absurd as one thinks about these works, whose authenticity, whose expression of pain and hope, is so immediate and overpowering. 

A mimetic apprenticeship

Here is Silvia Forni’s description of an apprenticeship as a potter in Nsei, Cameroon (in her “Masters, Trend-makers, and Producers: The Village of Nsei, Cameroon, as a Multisited Pottery Workshop,” chapter 3 in Sidney Littlefield Kasfir and Till Förster, eds., African Art and Agency in the Workshop (Indiana University Press 2013):

Initially, the master and apprentice work on the same kind of object, the young man carefully observing the master’s movements while trying to reproduce his gestures and postures. The training involves very little verbal exchange: if the apprentice does not follow the correct procedure, the master will stop working on his piece and will step in to demonstrate the correct way to complete the task. (Kindle location 2134 of 9227)

She goes on to emphasize:

the essentially mimetic character of apprenticeship, a relationship meant to “turn the neophyte’s initial mimicry of his master into unselfconscious movements that are masterful in their own right” (quoting an article by Nicolas Argenti, “People of the Chisel: Apprenticeship, Youth and Elites in Oku (Cameroon),” 29 American Ethnologist  493, 502 (2002)). (Kindle location 2143 of 9227)

One might imagine that this sort of training would lead to a professionalism that consisted solely of imitation. Perhaps it often does. But Forni also says that an “ability to cater to different markets and innovate, although not the norm, seems to characterize the attitude of many of the potters who influence trends in contemporary Nsei pottery.” (Kindle location 2163 of 9227)

Now all this is really quite startling. My impression is that a lot of current educational theory emphasizes the necessity for reflection by the learner, and the value of the teacher enabling or guiding the learner to engage in that kind of thought about what he or she is learning. Those propositions seem to be important elements of understanding adult learning. To be sure, it’s not entirely clear from Forni’s article how old the apprentices here are; at one point she refers to “young men” entering apprenticeship, at another she refers to “boys.” But even if the Nsei apprentices are all young enough not to qualify as adults, the seeming absence of opportunities for reflection appears quite unlike what contemporary American education even for younger students aspires to.

It may be that Nsei potters are reflecting while they practice imitating their masters’ physical movements, but that’s hardly clear. It is clear that the masters are not focused on eliciting any such reflection. To put the matter bluntly: this kind of education doesn’t appear to be reflective. If it is reflective, then any process of education is reflective, because people think about what they are doing, So they do  – but if that truth is enough to ensure the presence of reflection, then educational practice needn’t be shaped to add any further support to what is an inevitable process anyway.

The point of reflection is generally thought to be to give the learner a deeper understanding of what is being learned, so that he or she can go beyond merely reproducing past lessons to address new problems with the benefit of professional skill. But on Forni’s account, it seems that many graduates of this unreflective apprenticeship process achieve creativity nonetheless.

None of this disproves any tenet of American education. It may be that more Nsei potters would develop into creative professionals in a different educational system, even if some develop that way in the nonreflective system they in fact learn in. It may also be that potting, a physical art, requires a more physical, mimetic form of education than some other professions – law, for instance. But I think, nevertheless, that Nsei apprenticeship at least raises some question about how sure we should be about the educational tenets we currently embrace.  

Cannibalism and the teacher-student relationship

Nicolas Argenti, an anthropologist who apprenticed as a Cameroonian woodcarver, recently discussed a ritual by which such apprenticeships traditionally concluded. He does so in “Follow the Wood: Carving and Political Cosmology in Oku, Cameroon,” which is chapter two of African Art and Agency in the Workshop (Sidney Littlefield Kasfir and Till Förster eds.; Indiana University Press 2013). I would give a page reference but I’m reading the book on a Kindle; in Kindle terms, the discussion I’m referring to, and quoting from, occurs around “location 1781 of 9227.”

This ritual is no longer practiced, but evidently it’s still remembered. At the end of the apprentice’s training, the apprentice brings the master “a ritual offering of food and wine.” The master consumes the offering – all of which seems quite amicable, except that the name of the ritual is “eating the apprentice”!

That’s quite a name. Shall we say, putting the matter delicately, that it points to the possible ambivalences of the teacher-student relationship? Perhaps the meal marks the point at which the apprentice’s youthful individuality has been completely consumed by the master. Having been eaten up, the apprentice offers another meal in recognition of his consumption.

Or perhaps the point is almost the opposite – the apprentice has consumed the master’s knowledge and must now, inevitably, replace the master. Argenti says that “the threat posed to his master by the newly accomplished apprentice was neutralized by this ritual act of cannibalism.” A somewhat different reading would be that, by way of apology, and to avoid the master’s natural resentment of this prospect of replacement, the apprentice offers up a meal.

I’d rather think of the event’s overtones, however, as more amused than angry. The master has devoted years to teaching the apprentice, one hopes with the view, as a figure in Middlemarch puts it, that “the earth belongs to the young.” The master is not sad that the apprentice has achieved mastery. On the contrary, the master should be proud of the success of his (or her) teaching. The master also understands that the alternative – a real alternative, as the elders among the Baga or other groups whose ritual traditions are collapsing in the space of a generation or two have actually experienced – is that there will be no more masters, and their knowledge will simply vanish. So the master is not resentful.

Still the master may well be rueful, and less thrilled by the passage of time than is the apprentice now coming into possession of the world. The “eating of the apprentice” then is not sublimated revenge but an ironic, autumnal reflection on one way that we make the best of the fact that we don’t live forever – namely, by passing on what we know to the young.