Runaway Technology Can Law Keep Up

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 runaway technology

In an era of corporate surveillance, artificial intelligence, deep fakes, genetic

modification, automation, and more, law often seems to take a back seat to
rampant technological change. To listen to Silicon Valley barons, there’s
nothing any of us can do about it. In this riveting work, Joshua Fairfield calls
their bluff. He provides a fresh look at law, at what it actually is, how it works, and
how we can create the kind of laws that help humans thrive in the face of
technological change. He shows that law can keep up with technology because
law is a kind of technology—a social technology built by humans out of
cooperative fictions like firms, nations, and money. However, to secure the
benefits of changing technology for all of us, we need a new kind of law, one
that reflects our evolving understanding of how humans use language to
cooperate.

Joshua A. T. Fairfield is William D. Bain Family Professor of Law, Washington

and Lee University School of Law. He is the author of Owned: Property, Privacy,
and the New Digital Serfdom (2017). A Fulbright and Fernand Braudel Scholar,
Professor Fairfield was a privacy and civil liberties counsel on intelligence
community studies of virtual worlds, and was part of the founding team of
Rosetta Stone.
 Runaway Technology
can law keep up?

JOSHUA A. T. FAIRFIELD
Washington and Lee University School of Law
University Printing House, Cambridge cb2 8bs, United Kingdom
One Liberty Plaza, 20th Floor, New York, ny 10006, USA
477 Williamstown Road, Port Melbourne, vic 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre,
New Delhi – 110025, India
79 Anson Road, #06–04/06, Singapore 079906

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108426121
doi: 10.1017/9781108545839
© Joshua A. T. Fairfield 2021
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2021
Printed in the United Kingdom by TJ Books Limited, Padstow Cornwall
A catalogue record for this publication is available from the British Library.
isbn 978-1-108-42612-1 Hardback
isbn 978-1-108-44457-6 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
To Christine, Mary, Maggie, Hannah, and Grace.
 Contents

Acknowledgements page viii

part i keeping up: law as social technology 1

1 Can Law Keep Up? 3

2 Rates of Change 18

3 Technology Law 53

part ii running on words: law as cooperative fiction 89

4 Language, the Human Superpower 91

5 What Went Wrong with Science? 115

6 Law’s Fruitful Fictions 148

7 Shifting How We Think 172

part iii law and the language we need 213

8 Why We Fail 215

9 Jurisgenesis 248

10 TL;DR 278

Index 284

vii
 Acknowledgements

This book is the result of many conferences and conversations over several
years. I particularly appreciate the editorial vision of Matt Gallaway and Sara
Versluis. I am also deeply indebted to the intellectual input of BJ Ard, Kiel
Brennan-Marquez, Ryan Calo, Ted Castronova, Bryan Choi, Andrew
Ferguson, Cristie Ford, Brett Frischmann, Eric Goldman, Woodrow
Hartzog, Gus Hurwitz, Margaret Hu, Margot Kaminsky, Alexandra Klein,
Matthias Leistner, Arno Lodder, Russ Miller, Aaron Perzanowski, Joel
Reidenberg, Chris Seaman, Andrew Selbst, David Thaw, Ari Waldman, and
Elana Zeide, among many others. I am particularly indebted to the European
University Institute in Florence, Italy and the Frances Lewis Law Center at
Washington and Lee School of Law for grant support, and both the EUI and
the Max Planck Institute for Innovation and Competition in Munich,
Germany, for research support and a place to write. I owe a debt of gratitude
to my research assistants Jessiah Hulle, Patrick Twisdale, and Nathaniel
Reynolds for their assistance in the preparation of the manuscript, to Jacob
Lester for grant writing support, to my father, John Fairfield, for his tireless
reading and commenting on drafts, and to my amanuensis, who listened to
every word.

viii
 part i
keeping up: law as social technology
 1

Can Law Keep Up?

We need to talk. The future is coming fast, and we need to work together to
decide how to meet the challenges of rampant technological progress. Talking
is how humans cooperate. Cooperation, through language, is humans’ super-
power. Language is why humans, and not wolves, run this particular show. But
there are two problems. First, we don’t yet have the kind of language we need
to talk about the problems of the future. Second, you and I don’t yet have the
kind of language we need to talk about how we will build the kind of language
we need. In this book, I will try to build, between us, a language that will let us
talk about the problems of the future.
“Wait,” one might say. “What’s all this about language? I thought this was
a book about law!” It is. Law is language, a special kind. It is language that states
how we have decided to live together. Law is the language that we need to build,
to help us cooperate, in order to deal with the rapid changes introduced by
technology. We need to develop language to permit us to talk about certain hard
problems, and we need to do it quickly. That language is humanity’s scratching
at the surface of reality, building better social tools to handle what it finds.
The news is full of new challenges: dragnet surveillance,1 artificial
intelligence,2 autonomous vehicles,3 biohacking,4 and 3D printing.5 If

1
See, e.g., Raymond Zhong, China Snares Tourists’ Phones in Surveillance Dragnet by Adding
Secret App, N.Y. Times (July 2, 2019), www.nytimes.com/2019/07/02/technology/china-xinjiang-
app.html; Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y.
Times (April 13, 2019), www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-
police.html; Kyllo v. United States, 533 U.S. 27 (2001); United States v. Knotts, 460 U.S. 276
(1983).
2
See, e.g., Janosch Delcker, Europe Divided over Robot “Personhood”, Politico (Apr. 11, 2018),
www.politico.eu/article/europe-divided-over-robot-ai-artificial-intelligence-person
hood/; Zara Stone, Everything You Need to Know about Sophia, the World’s First Robot Citizen,
Forbes (Nov. 7, 2017), www.forbes.com/sites/zarastone/2017/11/07/everything-you-need-to-know
-about-sophia-the-worlds-first-robot-citizen/#24f7c10846fa.
3
See, e.g., Peter Holley, After Crash, Injured Motorcyclist Accuses Robot-Driven Vehicle of
“Negligent Driving”, WA. Post(Jan. 25, 2018), www.washingtonpost.com/news/innovations/
wp/2018/01/25/after-crash-injured-motorcyclist-accuses-robot-driven-vehicle-of-negligent-driving/;
Cleve Wootson Jr., Feds Investigating after a Tesla on Autopilot Barreled into a Parked Firetruck,

3
4 Runaway Technology

law becomes obsolete, lagging behind the ever-increasing rate of techno-

logical advances, what happens to individual rights and freedoms? If law
evolves to grant increased flexibility to government, will those broader,
more far-reaching powers upset the balance between citizen and state? Is
there a way that law can keep pace with innovation while protecting and
preserving the freedoms that create the necessary context for innovation?
If law is to do this, it must not only change, but embrace the concept of
ongoing change, interweaving flexibility and resilience with the more
established concepts of order upon which society is built.
With the widespread adoption of any new technology, there is an assump-
tion that the technology has created a space that law is unable to reach.
Money, for instance, has morphed from dollars to checks to credit cards to
cryptocurrencies like Bitcoin, all faster than regulators can react.6 With
Apple’s introduction of end-to-end encryption on cellular devices7 came
then FBI Director James Comey’s claim that the “Going Dark” phenomenon
would leave the public at risk and law enforcement unable to thwart crime.8 Is
technology doomed to always be regulated by out-of-date rules? Or, worse, is
the world doomed to become lawless, as technology leaves dusty law codes
behind?
The currently accepted narrative is that technology outpaces anti-
quated legal institutions in the blinding rush of progress. Lawyers and
judges are deemed to be at technology’s mercy. But there is another

WA. Post (Jan. 24, 2018), www.washingtonpost.com/news/innovations/wp/2018/01/23/a-tesla-owners

-excuse-for-his-dui-crash-the-car-was-driving/.
4
See, e.g., Emily Baumgaertner, As D.I.Y. Gene Editing Gains Popularity, “Someone Is Going to
Get Hurt”, N.Y. Times (May 14, 2018), www.nytimes.com/2018/05/14/science/biohackers-gene
-editing-virus.html; Antonio Regalado, In Blow to New Tech, European Court Decides CRISPR
Plants Are GMOs, MIT Technology Review (July 25, 2018), www.technologyreview.com
/the-download/611716/in-blow-to-new-tech-europe-court-decides-crispr-plants-are-gmos/.
5
See, e.g., Steve Henn, As 3-D Printing Becomes More Accessible, Copyright Questions Arise,
NPR (Feb. 19, 2013), www.npr.org/sections/alltechconsidered/2013/02/19/171912826/as-3-d-print
ing-become-more-accessible-copyright-questions-arise; Michael D. Shear et al., Judge Blocks
Attempt to Post Blueprints for 3-D Guns, N.Y. Times (July 31, 2018), www.nytimes.com/2018/
07/31/us/politics/3d-guns-trump.html.
6
See, e.g., Peter J. Henning, Policing Cryptocurrencies Has Become a Game of Whack-a-Mole for
Regulators, N.Y. Times (May 31, 2018).
7
Matt Apuzzo et al., Apple and Other Tech Companies Tangle With U.S. over Data Access, N.Y.
Times (Dec. 7, 2015), www.nytimes.com/2015/09/08/us/politics/apple-and-other-tech-
companies-tangle-with-us-over-access-to-data.html.
8
Hon. James B. Comey, Statement before the House Committee on Homeland Security
(Washington, D.C., Oct. 21, 2015) (available at www.fbi.gov/news/testimony/worldwidethreats-
and-homeland-security-challenges).
 Can Law Keep Up? 5

story. Law can keep up. Law itself is the social technology of regulating
human behavioral change under conditions of technological develop-
ment. Law is often far ahead of technology. Lawyers and judges must
wait to regulate—often for years—until a technology matures. The sense
here is that creating law too early will be a mistake. This story tells us
that law is capable of being overhauled, that we might create systems
that can keep up. However, unless we begin now, we will experience an
ever-increasing disconnect between society and its tools, between dem-
ocracy and technology.
This book examines what happens at the nexus of law and technology.
It analyzes the interaction between the two, seeking a framework on
which to build a set of principles to guide legal evolution in the coming
years. It counters the technological fatalist narrative that law is simply too
slow to incorporate technological change. It challenges received wisdom
that law must trail technological change, and argues that law plays
a critical role in anticipating and guiding, in naming and shaping,
technological change.
Upon closer examination, the narrative that law can’t keep up turns out
to be not true, and is a particular problem tied to the United States—we
could regulate these new technologies appropriately and responsibly if we
decided to, and many countries do. Rather, the argument that law can’t
keep up is propaganda advanced by technology companies eager to avoid
legal responsibility for the stunning damage their business models cause
the surrounding society. Consider the role social media companies play
in systematically profiting from compromising democratic elections, for
example. The fact that such propaganda succeeds means there is a hole
in our collective heads, a problem with how we talk about the problems
of the future.

failing narratives
Bad narratives, like the one that law can’t keep up, only live because of the absence
of better ones. Our dominant narratives, the stories we use to organize meaning in
our lives, are failing across the board. Consider the fact that right now, both
science and religion are failing. Science fails to convince flat-earthers,9

9
Moya Sarner, The Rise of the Flat Earthers, Science Focus (Aug. 31, 2019), www
.sciencefocus.com/the-human-body/the-rise-of-the-flat-earthers/ (last accessed Nov. 11, 2019);
Matt J. Weber, How the Internet Made Us Believe in a Flat Earth, Medium (Dec. 12, 2018),
https://medium.com/s/world-wide-wtf/how-the-internet-made-us-believe-in-a-flat-earth
-2e42c3206223.
6 Runaway Technology

anti-vaxxers,10 and racists.11 Religion fails to convince an increasing share

of the young12 and highly educated.13 The question is why our dominant
narratives are dying, leaving us at the mercy of the self-serving ad slogans
of corporations and clickbait articles as our source of truth.
Religion is failing because religious language often lacks a valid epistemol-
ogy: a way of knowing what is factual and what is not. As religious communi-
ties empty themselves of the young, the tolerant, and the educated at truly
startling rates,14 those communities have come increasingly to understand
their myths as representing some kind of pseudoscientific reality. Religion
was never intended to tell us how the world worked, only how to orient
ourselves within it. By making obviously false scientific claims in religious
language, speakers of religious language have revealed that they have no way of
determining facts about the world. Consulting one’s feelings is not a measure
of how the world is.
But if religion fails to convince for lack of valid epistemology, science is
failing for a lack of guiding narrative. Science tells us how to do things, not why
or whether to do them. As we will explore, scientists won’t even admit that they
lack a meta-narrative, a guiding story of why they should conduct some
experiments over others, a reason to pursue some lines of research over others.
The sad truth is that the current meta-narrative of science is that the experi-
ments which scientists pursue are most often in the name of corporate profit,
not human thriving—and the two are not at all the same thing. Science’s false
claims of neutrality: “we’re just doing science!” is the same as technology’s
obviously false claims of neutrality: “we’re just building technology!”
Facebook is not neutral technology, and atom bombs are not neutral science.
They are decisions in a direction. And if we do not straighten out why we do
science, provide some account for where we need to go with scientific progress,
we will end up continuing to blindly create technologies that harm our

10
Jan Hoffman, How Anti-Vaccine Sentiment Took Hold in the United States, N.Y. Times (Sept.
23, 2019), www.nytimes.com/2019/09/23/health/anti-vaccination-movement-us.html.
11
Angela Saini, Why Race Science Is on the Rise Again, The Guardian (May 18, 2019), www
.theguardian.com/books/2019/may/18/race-science-on-the-rise-angela-saini.
12
The Age Gap in Religion around the World: 2. Young Adults around the World Are Less
Religious by Several Measures, Pew Research Center (June 13, 2018), www.pewforum.org/201
8/06/13/young-adults-around-the-world-are-less-religious-by-several-measures/.
13
In America, Does More Education Equal Less Religion?, Pew Research Center (Apr. 26, 2017),
www.pewforum.org/2017/04/26/in-america-does-more-education-equal-less-religion/.
14
See, e.g., Robert P. Jones, Daniel Cox, Betsy Cooper, & Rachel Lienesch,
Exodus: Why Americans Are Leaving the Church and Why They’re Unlikely
to Come Back (2016).
 Can Law Keep Up? 7

democratic institutions and our long-term chances for survival on a dying

planet. In the absence of a well-thought-out reason for our science, a guiding
meta-narrative that keeps us alive, the current meta-narrative of our high
priests of technology is this: we do whatever we want to, just because we can,
hidden behind the propaganda that technology is neutral.

what’s at stake?
Why would I write this book, and why should you read it? Why try to preserve
the rule of law in the face of technological change? The answer is that law
plays a fundamental role in helping humans adapt to new circumstances.
Humans upgrade their ability to cooperate in new circumstances by upgrading
their social software, their language of cooperation, their law. The biggest
change in our circumstances right now is technology. Law is the discipline
that adapts human systems to technological shifts. If we give up on law,
especially now, we’re going to have a very hard time. Put simply, no state
that fails to adapt the rule of law to new technology will survive as a liberal
democracy.
Law helps us sort the difference between what governments can do and
what they actually do. Natural sciences technology, or “hard” technology, has
always upset that balance by increasing the range of things we can do. Law
must adapt, to protect important social values. Consider the development of
the sword or spear: with basic technology, we can deprive each other of life and
limb. Thus law adapted rules to determine when this use of technology was
considered by society to be just (too often, in a war) or unjust (a private
murder). The development of a new technology is not enough. We must
develop social technology: norms and rules surrounding its use that will help
us survive and thrive. Unfortunately, we have moved into something danger-
ously close to a post-legal era, in which what we can do is very nearly equated
with what we should do. Take, for example, the surveillance apparatus used by
most modern surveillance states. Law does not seriously constrain states’
snooping on their citizens, even when the citizenry is in broad agreement
that it should.15 The ability to snoop is equated with its legality. This is
a fundamental failure of law.
We also need a theory by which law can respond to technology because
technology is increasingly putting law directly under attack. Technologies

15
See Jonathan Turley, It’s Too Easy for the Government to Invade Privacy in Name of Security,
The Hill (Nov. 30, 2017), https://thehill.com/opinion/judiciary/362500-its-too-easy-for-the-
government-to-invade-privacy-in-name-of-security.
8 Runaway Technology

have always caused new forms of politics. The development of agriculture

shifted our form of life from herding and hunting to settled life and politics in
the same way that the railroad changed the nature of cities and urbanization.
Politics is often not pretty, but from its manure springs some greenery of
democracy. The difficulty is that if technology poisons the ground, we’ll get
twisted fruit. If technology is permitted to dominate politics, and if politicians
wish to do away with the rule of law, we will see the emergence of very bad
societies. If we do not wish authoritarian nationalism to be the dominant
political form of the twenty-first century, we are going to have to understand
how to help the rule of law survive technological change.

law and language

We can no longer afford to see law as a series of dry and dusty legal codes that,
in the face of evolving technology, are already obsolete by the time the laws are
printed. That vision of law is just going to have to go. We must learn to see the
discipline of law as a method for adapting to technological change, not a series
of presently existing rules. We must attend to change in law, rather than its
present state. It’s like driving a car: many people look at the speedometer to see
how fast they are going. That’s looking at the law as it is now. But we need to be
looking at how fast we are accelerating. That’s a different way to look at law,
and one that is necessary if law is to keep pace with technology.
In order to accelerate law, we need to understand how law works—what fuel
it runs on. Law runs on language. That language is used to create cooperative
fictions like statutes, kingdoms, money, days of the week, contracts, and torts,
but those are only snapshots of what law is.16 Law is a series of made-up
systems, rules, norms—made up by people trying to cooperate. It is
a cooperative fiction created by groups of humans to help them coordinate
their actions at scale. Law bubbles up between us; when we interact with each
other, we build rules and norms about relationships and resources. These rules
and norms expand outward and interact with others, colliding and collaborat-
ing. Over time and across geography, rules and norms spread from relation-
ships to communities to jurisdictions and become law.
Language is humans’ superpower. Humans took over the planet because
they stopped dealing with threats on an evolutionary scale and started solving
problems collectively, through language, by upgrading their cultural and
linguistic software instead of waiting for a genetic evolutionary upgrade.

16
Yuval Noah Harari, Sapiens: A Brief History of Humankind (2015).
 Can Law Keep Up? 9

Language is why humans can cooperate in numbers far greater than bees or
ants.
Changing our language to develop cooperative symbols like the State of
California or the Rule of Law, and cooperative fictions like “all [people] are
created equal” or “next Tuesday” help us follow the laws of the State of
California, to treat people decently under the law, and to make it to
a meeting next Tuesday. We have adapted our language to stay ahead of our
shifting technological circumstances since well before nomads became farm-
ers, farmers became town dwellers, town dwellers organized into nations, and
so on, and so on. Law is the cooperative fiction that lets us live together
productively under conditions of constantly changing technological context.
If anything can help stabilize our life together in the face of rampant techno-
logical change, it is our superpower.
Developing law requires developing language. So we need a clear idea of
what language is, what it does, how it changes, and where it comes from.
Language comes from use by a linguistic community located in a context.
This apparently simple statement underlies a revolution in how we think
about language, rules, and law. This revolution is badly needed. For the
moment, law as a discipline has surrendered its essential function—the
crafting of beautiful cooperative fictions like “all [people] are created
equal”17—to become a not particularly useful subbranch of economics and
empirical survey studies, as I will elaborate in Chapter 6. There is nothing
wrong with the tools of math or microscope, but the legal profession and legal
theorists have badly lost their way. They cannot create new and generous
cooperative fictions that will help us coordinate in the face of technological
change, because they think that their job is to be second-rate economists or
laboratory scientists. Understanding the origins and role of language and law
in human cooperation and survival may help law as a discipline reclaim its
soul.

a conversational method
Law should be understood as a system for adapting human social technology
to human physical technology. Law runs on language, and it upgrades accord-
ing to the rules of language. So as we discuss those rules and the role they play
in the development of law, I would like to do so at the same time.

17
Beautiful despite the multiple obvious problems in the original expression. I use “all people”
to show that our foundational norms must continue to be updated, that the original expression
of a foundational norm cannot be allowed to become a trap.
10 Runaway Technology

My aim is for this book to be an example of this method. This book tries to
develop language we can use to talk about how to develop the kind of language
(law) that will help us survive the future. I will try to state my understanding of
how things are and how things ought to be straightforwardly. It is important to
me to be clear enough to be understood where I am right, and identifiably
wrong where I am wrong. But even if stated forcefully, everything I say here is
to be taken provisionally, as an introduction to a conversation. That is because
a book is only half a conversation. A book is only paper until read, and the
reader brings more than half the meaning to the table. If I mean to say—as I do
mean to say—that life-giving language arises from community and context,
then I must admit that I am missing your half of the conversation. I wish that
this book were closer in form to a conversation, such that you could respond to
what I say here, and I could accept your criticism, and we could develop more
precise and better language for talking about the issue. That is how we would
make progress.
As for my part of the conversation: I’m a lawyer and the William D. Bain
Family Professor of Law at Washington and Lee University School of Law,
trained at the University of Chicago, with experience in both the law-and-
economics and behavioral economics traditions. I have worked in the tech-
nology sector while helping to found the language-teaching startup Rosetta
Stone. I also have extensive research experience as a legal academic writing
about technology subjects, including online communities, the future of prop-
erty, online currencies, and cryptocurrencies, virtual worlds, mixed and aug-
mented reality, and a host of other technology issues. My prior book showed
how norms of private property have been subverted by software developers:
you don’t really own or control Alexa. For several years I worked with the
intelligence community on a range of cutting-edge technology issues and
served as privacy and civil liberties counsel for intelligence community studies
in online communities. My recent work has focused heavily on privacy and
new applications of cryptocurrencies and decentralized ledger technology.
I conducted the research for this book in the United States; Munich,
Germany; and Florence, Italy, under generous invitations from the Max
Planck Institute for Innovation and Competition in Munich and the
European University Institute in Florence.
My method in this book is to start a conversation about the nature of law,
technology, and language that will help us better understand the problems we
face as we try to develop social rules that keep a grip on a fast-changing
technological environment. That environment is changing us, and how we
interact, and we have the opportunity to shape it in turn. The problem is a hard
one, and goes to the root of what law and language are. So in this book you will
 Can Law Keep Up? 11

hear from futurists, computer scientists, legal theorists, economists, historians,

cultural anthropologists, philosophers of language, philosophers of science,
and even the occasional theologian: the set of people who have been occupied
with the question of how we should live together.
And although this book is only one half of the conversation, you will have the
benefit of having both my voice and yours in your head as you read. So when
you disagree with something written here—and you will—it might be useful for
you to think to yourself, “the author would probably agree with me. How can my
idea build on or improve what was written here?” In short, the inevitable
questions and challenges that will arise in your mind as you read these pages
are not necessarily a rejection of this book, its contents, or its method, but rather
are examples and critically important products of that method.

introducing social technology

So, I believe that law can keep up. But the kind of law that can keep up will be
something that is barely recognizable to us now as law. Once we shift our
frame of reference for thinking about law, we can see something fairly simple.
Law can keep up with technology because law is technology: social technol-
ogy, but technology nonetheless.
Let me explain. For much of our culture (this definition is not universal,
and I will offer better definitions later), technology is the practical implemen-
tation of observation-based science,18 a certain method of cognition given its
current form in the early part of the twentieth century (with Karl Popper’s
development of falsifiability),19 yet one dating back to the ancient Greeks. For
some kinds of science, primarily related to what we traditionally understand as
hard technology20—physics, electronics, computation, and the like—we use
formal modeling and experiments to isolate certain elements of human
behavior the way we isolate certain elements of physical interaction, and
that is both a strength and a weakness. The strength is that in an experimental
mode, we strip the world down to just one thing that we are trying to test. We
then jiggle the input and see if it creates any identifiable corresponding jiggle
in the outputs of our system. For example, if I want to know whether eating

18
Technology, Oxford English Dictionary (2018) (defining technology as the “application
of scientific knowledge for practical purposes”).
19
See Karl Popper, Chapter 4: Falsifiability, in The Logic of Scientific Discovery 57–73
(Karl Popper et al. trans., 1983).
20
See generally Zhouying Jin, Global Technological Change: From Hard
Technology to Soft Technology 19–76 (Kelvin Willoughby & Ying Bai trans., 2nd
ed., 2011).
12 Runaway Technology

more rich food increases my weight, I might eat more of it for a couple of
months and see if I gain weight, then eat less of it and see if I lose weight. If
jiggling the input causes a detectable corresponding jiggle in the output,
I might call my experiment a success.
That’s the kind of science we’re used to. But we need to acknowledge that
there is a different kind of observation-based science which is equally as valid
and in fact dominant in the social sciences (as a result of a fork in the scientific
road occasioned by Ludwig Wittgenstein around the middle of the twentieth
century—more on this later).21 The difficulty is that some problems are very
difficult to observe because their scale is greater than our measuring tools.
Human history is one of the more important of these large observational
problems, because by definition we didn’t develop certain analytic tools
until later in our history. There are two components to this. First, every
experiment is a stripped-down model of the world, a friction-free universe
whose essential theoretical characteristic is that it is absolutely nothing like the
real thing. That is, of course, an enormous advantage to helping determine
whether one jiggle creates another. But simplifying the world that way means
that experimental results are extremely limited in terms of what they can tell us
about practical implementation. Or as the old canard puts it, “in theory, there
is no difference between theory and practice. In practice, there is.”22
What this means is that the simpler the experimental universe is, the clearer
the results. Conversely, however, the simpler the universe of the experiment is,
the less likely it is to give us immediately practical and useful outputs. For
practicality, we need something beyond experiments. We need trial and error,
we need actual practical implementation that succeeds or fails in the real
world over long periods of time.
More than that: consider looking at a book, like Harry Potter and the
Sorcerer’s Stone, and trying to explain to a Martian what it is. There is an
answer: it’s a novel about magical children in danger that fits with the
bildungsroman tradition transposed into the English public school setting—
a fairly common genre. But to say those—true—things, you can’t use
a laboratory, as chemists do, or a logical system, as mathematicians do. You
have to interpret culture using tools built by culture. You have to explicate
words using other words.

21
See Allan Janik & Stephen Toulmin, Wittgenstein’s Vienna (1973).
22
This statement is often erroneously attributed to Yogi Berra. See, e.g., Nassim
Nicholas Taleb, Antifragile: Things That Gain from Disorder 213 (2012). In
reality, it is an anonymous remark overheard at a conference on computer science, first
recorded in Walter J. Savitch, Pascal: An Introduction to the Art and
Science of Programming 507 (1984).
 Can Law Keep Up? 13

That is closer to what history and law are. There, we use observation-based
science, but we are observing one massive and messy field experiment and
attempting to extract information from it, rather than stripping the world down
to the one thing we are trying to study. And more: we are trying to make sense
of the narrative of history, culture, law, and language. We are analyzing the
cooperative fictive tools we use to work together using other tools also made of
language.
Of course, the approach of history and law has its drawbacks. We can never
be sure whether the lessons we are learning from law and history are true. We
do not have a chance to go back and run a given battle, or a given parliamen-
tary session, or a given fad or famine again, to see if doing things differently
would have a different result. But the advantage of the approach taken by
history and law is that the findings are pretty robust. We adopt a certain way of
running our society until another way comes along that better addresses the
challenges we face. (Like evolution, our science and law does not necessarily
get “better” or “worse,” it simply addresses or fails in the face of adversely
selecting circumstances.23) We have a lot of bad laws, and we can do much
better, but each law and each legal system has the distinct advantage of having
existed within the real world. It is the product of a long process of trial, error,
and social competition.
What I want to dispel at the outset is the idea that there is a “real” technology
or science, and that disciplines like history and law are somehow either not
technology or not science. In particular, if technology as we traditionally
understand it is the practical implementation of scientific truth, then law is
also the business end, the practical implementation, of social, economic, and
psychological truths.
This then leads to a fundamental vocabulary word for this book. Social
technology is the practical implementation of rules and norms through
human social systems. Families are social technology. Marriage is a social
technology. Summer vacations are social technology. Political parties are
social technology. Nation-states are social technology. Money is social
technology. What binds these together is that they are practical imple-
mentations of core insights about groups, individual human psychology,
resource allocation, hierarchy of human needs, and so on. They are no
less technology for being practical implementations of observations on
human wetware and through human social networks than would be hard
implementations through silicon chips, forged steel, or smokestack-
sporting factories.

23
Thomas Kuhn, The Structure of Scientific Revolutions 205 (1996).
14 Runaway Technology

As Polish science fiction author Stanislaw Lem writes, “Technology is the

domain of problems posed and the methods of solving them.”24 How we ought
to live together is clearly one such problem, and the rule of law is a method for
solving it. Law is clearly a technology—a social technology, made up of
cooperative fictions and symbols in language, but no less a technology for all
that. What is common here is the practical attempt to better human life
through implementation of our best guesses about how to respond to what
we observe.
Here’s an example of what I mean. In his book Industries of the Future,
former State Department tech advisor Alec Ross compares Ripple, one of the
more prominent examples of a cryptocurrency-facilitated money exchange
network, to hawala, a family-based social exchange system ranging from the
Middle East to northern Africa and some parts of India.25 In Ripple’s system,
businesses transfer value through one another to avoid the fees and costs of the
banking system.26 Where needed, Ripple uses a cryptocurrency, XRP, to
bridge gaps and connect systems.27 Similarly, hawala effects money transfer
by paying one member of the network, a hawaladar, who then contacts
another member in another country and instructs him to pay out the
money.28 Notably, the system works entirely by trust: the honor of the hawa-
ladar who receives money is the only bond that secures the right to payment by
the hawaladar who pays the money out.29 So which network of trust is the
technological one, the one built on a consensus ledger and cryptography, or
the one built on honor (itself a social technology), family (same), and social
connection?
Nor can we say that we can distinguish between these systems because
a system made out of humans is always more primitive and less efficient than
a system made out of processors. Consider the example of Amazon’s
Mechanical Turk. In the Mechanical Turk’s system, a large network of
humans performs tasks that computers cannot.30 Mechanical Turk is used

24
Stanislaw Lem, Imaginary Magnitude 135 (Houghton Mifflin 2012).
25
Alec Ross, The Industries of the Future 118–19 (Simon and Schuster 2016).
26
See Real-Time Cross Border Payments for Banks, Ripple, https://ripple.com/use-cases/banks/
(using infographics to illustrate the reduced transaction costs for banks that use the Ripple Net
for cross-border transactions).
27
Alec Ross, The Industries of the Future 119 (Simon and Schuster 2016); see also XRP,
Ripple, https://ripple.com/xrp/ (2018).
28
See Mohammed El-Qorchi, The Hawala System, 39:4 Finance and Development n.p.
(2002) (explaining the process of hawala in detail).
29
Id. (Hawaladars maintain ledgers to track transactions and debts, which can be settled in cash,
goods, or services).
30
See Amazon Mechanical Turk, MTurk, www.mturk.com/.
 Can Law Keep Up? 15

for surveys, businesses seeking a list of all sushi restaurants in Canton, Ohio,
people seeking to identify a specific object in a photograph, and so on.31
Crowdsourcing is a faster way to solve many tasks than computation. That
crowdsourcing has become possible through technology does not change the
fact that crowdsourcing itself is largely social technology.
The upshot of all of this: I suspect that the idea of social technology (which is
itself, of course, a small piece of social technology) will help us understand that
we can evolve and update social tech to handle the social problems that
traditional hard technology poses. Or to put it bluntly, the question of whether
law can keep up with technology is resolved when we understand that law is
technology.

can we succeed?
We can succeed, but we have to move quickly and understand clearly
what we are doing. We are not out of time to make changes to help the
rule of law adapt to new technologies, but we are out of time to begin.
Already, elections are being tipped by mass robotic social engineering,32
Twitter drives international policy,33 and surveillance states track their
citizens’ locations and internet traffic in massive cross-referencing
databases.34 There is no sign that the pace of technological change will
slow. In fact, if progress in miniaturization,35 sensor profusion,36

31
Id.
32
See, e.g., Scott Shane, The Fake Americans Russia Created to Influence the Election, NY
Times (Sep. 7, 2017), www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-
election.html.
33
See, e.g., Krishnadev Calamur, The International Incidents Sparked by Trump’s Twitter Feed in
2017, The Atlantic (Dec. 19, 2017), www.theatlantic.com/international/archive/2017/12/tru
mp-tweets-foreign-policy/547892/.
34
See, e.g., Paul Mozur, Looking through the Eyes of China’s Surveillance State, N.Y. Times
(July 16, 2018), www.nytimes.com/2018/07/16/technology/china-surveillance-state.html.
35
See, e.g., John Markoff, IBM Scientists Find New Way to Shrink Transistors, N.Y. Times (Oct.
1, 2015), www.nytimes.com/2015/10/02/science/ibm-scientists-find-new-way-to-shrink-
transistors.html; Jennifer Chu, Miniaturizing the Brain of a Drone, MIT News (July 11,
2017), http://news.mit.edu/2017/miniaturizing-brain-smart-drones-0712?utm_campaign=Wee
kly%20Newsletters&utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz-
9yIyIZQfpouXbyCXm3lrFk2QOdVN22Fkvx55efgHsiwXfUYBedb7t8m5vmM046k_uOlCld.
36
See, e.g., Sensor Market Growth Is Driven by Proliferation of Smart Homes, MarketWatch
(July 19, 2019), www.marketwatch.com/press-release/sensor-market-growth-is-driven-by-
proliferation-of-smart-homes-2019–07-19; Richard Nabors, Integrated Sensors: The Critical
Element in Future Complex Environment Warfare, Army: Mad Scientist Laboratory,
https://madsciblog.tradoc.army.mil/46-integrated-sensors-the-critical-element-in-future
-complex-environment-warfare/; Sensor Market Is Projected to Reach USD 266.27 Billion by
2023, MarketWatch (Aug. 13, 2018), www.marketwatch.com/press-release/sensor-market-is-
16 Runaway Technology

genomics,37 artificial intelligence,38 DIY biology,39 and automation40 con-

tinues apace, we will see increasing inability to govern according to the
rule of law—unless we do something about it.
Now is the time to use the human superpower—language—that we
have always used to update our social software to face new challenges. We
have done this before, as nomads adapting to agriculture, as family-based
feudal holdings adapting to modern nation-states, as we adapted to the
shifts from agrarian to industrial, and from industrial to information
economies. (Indeed, we had to invent each of those words’ current
meanings so the previous sentence would make sense!) We will adapt to
the future the way we always have: by coming up with new ways to talk
about things so we can have the conversations we need to have. And the
most important conversation we can have is a conversation about conver-
sations, about how to talk about what we need to talk about. Law is the
language of human coordination. Language is how humans update their

projected-to-reach-usd-26627-billion-by-2023-by-product-type-technology-end-users-demand-
and-trends-by-forecasts-2018–08-13.
37
See, e.g., A Brief Guide to Genomics, Nat’l Human Genome Research Inst., www.genome.gov
/about-genomics/fact-sheets/A-Brief-Guide-to-Genomics (last updated Aug. 27, 2015); Jackie
Drees, AdventHealth to Provide Free DNA Tests to 10,000 Florida Residents for Genomics
Study, Becker’s Hospital Review, www.beckershospitalreview.com/healthcare-
information-technology/adventhealth-to-provide-free-dna-tests-to-10–000-florida-residents-for
-genomics-study.html (July 25, 2019); Major Investment in Genomics Research Will Improve the
Lives of Canadians, Genome Canada, www.genomecanada.ca/en/news/major-investment-
in-genomics-research-will-improve-the-lives-of-canadians (Feb. 4, 2019).
38
Rob Matheson, New AI Programming Language Goes Beyond Deep Learning, MIT News
(June 26, 2019), http://news.mit.edu/2019/ai-programming-gen-0626; K. K. Rebecca Lai, et al.,
How A.I. Helped Improve Crowd Counting in Hong Kong Protests, N.Y. Times (July 3, 2019),
www.nytimes.com/interactive/2019/07/03/world/asia/hong-kong-protest-crowd-ai.html;
Gabe Cohn, AI Art at Christie’s Sells for $432,500, N.Y. Times (Oct. 25, 2018), www
.nytimes.com/2018/10/25/arts/design/ai-art-sold-christies.html.
39
Alexandra Ossola, These Biohackers Are Creating Open-Source Insulin, Popular Science (Nov. 18,
2015), www.popsci.com/these-biohackers-are-making-open-source-insulin; Catrin Nye, Biohacker:
Meet the People “Hacking” Their Bodies, BBC News (Dec. 5, 2018), www.bbc.com/news/tech
nology-46442519; Moa Petersen, New Way to Pay: Why Thousands of Swedes Are Deliberately
Inserting Themselves with Microchips, Independent (June 27, 2018), www.independent.co.uk
/life-style/gadgets-and-tech/features/sweden-microchips-contactless-cards-biohackers-dystopian-
future-a8408486.html.
40
See, e.g., Tom Simonite, Robots Will Take Jobs from Men, the Young, and Minorities, Wired
(Jan. 24, 2019), www.wired.com/story/robots-will-take-jobs-from-men-young-minorities/?ver
so=true; Adam Rogers, Welcome to Checkout-Free Retail. Don’t Mind All the Cameras,
Wired (Aug. 28, 2018), www.wired.com/story/zippin-cashier-free-retail-store/?verso=true;
Mattie Milner & Stephen Rice, Robotic Health Care Is Coming to a Hospital Near You,
The Conversation (May 7, 2019), https://theconversation.com/robotic-health-care-is-
coming-to-a-hospital-near-you-116236.
 Can Law Keep Up? 17

social software through symbol and cooperative fiction. Learning how we

create and innovate language, and especially creating a vocabulary and
way of talking about doing that, is going to be our best bet for activating
our human superpower, and surviving the challenges of the future
together. That is what this book is about. So let’s talk.
 2

Rates of Change

Technology is the domain of problems posed and the methods of solving them.
— Stanislaw Lem, Imaginary Magnitude1

Law is an adaptive social technology that helps us cooperate through lan-

guage, symbol, narrative, and fiction. By “fiction” I do not mean not real.
Money, Wednesday, years, California, kilometers, contract law, and legal
concepts like “all men are created equal” and the “rule of law” are very real
in that they affect our behavior and lives, but they are also obviously made up
by humans for purposes of human coordination.2
Our goal in developing these cooperative fictions must be to coordinate our
efforts to survive and thrive in the face of rampant technological change. This
chapter sets the stage for a range of arguments: that law and other social rules
are examples of social technology; that because laws are a form of technology,
they can be produced more rapidly and more accurately than we are currently
doing; and that in order to adapt human society to technological change, we
will have to change not only laws but the concept of law itself.
So, in looking at updating law, where should we focus? Should we focus on
bad laws as they are? I could write an entire chapter on terrible statutes that
horribly mangle technology policy. (Don’t worry, I won’t.) Should we focus on
good laws, ones that currently handle technology policy fairly well? (There are
actually a lot!) My answer is neither: we should focus on the rate of change
in law.
Consider driving a car. If we are worried about someone chasing us who is
driving faster and faster, we should be worried about our zero to sixty, our rate
of acceleration. It’s not how fast we’re going at any given time that matters, it’s

1
Stanislaw Lem, Imaginary Magnitude 135 (2012).
2
Yuval Noah Harari, Sapiens 28–32 (2015).

18
 Rates of Change 19

how fast we can accelerate. If we are worried about staying ahead of the heat,
our current speed matters less than what happens when we press the pedal
down.
With that in mind, we can begin to look at the problem: the rate of change
in hard technology is often faster than the rate of change in law. New designer
drugs,3 like bath salts, come out as fast as the last bunch are criminalized. But
new laws are often obsolete by the time they are published.4 If they are not
obsolete, their attempts to anticipate the future are often disastrous. There is
a rising fatalism about the relationship between law and technology.
Technologists are dangerously close to giving up on the importance of laws.
And lawyers themselves have noticed law’s weakness: technological power
often defeats legal rules. Technological power often overwhelms justice in
even the most everyday settings, from arrests5 to the rights that consumers give
up by clicking “I Accept” to activate their new software-enhanced purchases.6
But there is hope.7 This chapter explains why. First, we identify the prob-
lem: the idea of the technological singularity—the point in time where the

3
See, E. D. Wish, et al., Drug Early Warning from Re-testing Biological Samples: Maryland
Hospital Study, Univ. of Md. (July 2018), https://ndews.umd.edu/resources/drug-early-warning-
re-testing-biological-samples-maryland-hospital-study.
4
See, Many Synthetic Drugs Still Legal after “Bath Salts” Ban, CBS News (Oct. 20, 2015), www
.cbsnews.com/news/many-synthetic-drugs-still-legal-after-bath-salts-ban/.
5
See Maryland v. King, 569 U.S. 435 (2013). See also David Grossman, Report: U.S. Police Are
Abusing Facial Recognition Technology, Popular Mechanics (May 16, 2019), www
.popularmechanics.com/technology/security/a27493840/police-abusing-facial-recognition
-tech/, citing Clare Garvie, Garbage In, Garbage Out: Face Recognition on Flawed Data,
Georgetown Law Center on Privacy and Tech. (May 16, 2019), www.flawedfacedata.com/;
Karen Hao, Police across the US Are Training Crime-Predicting AIs on Falsified Data, MIT
Tech. Rev. (Feb. 13, 2019), www.technologyreview.com/s/612957/predictive-policing-
algorithms-ai-crime-dirty-data/.
6
Jessica Silver-Greenberg & Robert Gebeloff, Beware the Fine Print, Part I: Arbitration
Everywhere, Stacking the Deck of Justice, N.Y. Times DealBook (Oct. 31, 2015), www
.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of
-justice.html; Jessica Silver-Greenberg & Robert Gebeloff, Beware the Fine Print, Part II: In
Arbitration, a “Privatization of the Justice System,” N.Y. Times DealBook (Nov. 1, 2015),
www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-
system.html; Jessica Silver-Greenberg & Robert Gebeloff, Beware the Fine Print, Part III: In
Religious Arbitration, Scripture Is the Rule of Law, N.Y. Times DealBook (Nov. 2, 2015),
www.nytimes.com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule
-of-law.html.
7
See, e.g., Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (In this case, the circuit
court denied the defendant’s motion to compel arbitration. It ruled that “[g]iven the breadth of
the range of technological savvy of online purchasers, consumers cannot be expected to ferret
out hyperlinks to terms and conditions to which they have no reason to suspect they will be
bound.” This case provides an example of the type of hope I present in this passage of how law
can keep up with technology).
20 Runaway Technology

rate of technological change exceeds the human capacity to adapt. We then

explore the legal nihilism that arises from embracing technological change
without first establishing a comprehensive theory of legal change. Next, we
explore solutions. I contend that the idea of the singularity imposes a false kind
of technological fatalism which posits that “hard” technology will surpass
human social technologies like law. Rather than accepting this as an inevit-
able trajectory, I attempt to develop a theory of legal change to keep pace with
any other technological innovation. The process of law is not static. It is the
process of generating rules with pragmatic impact over time in the face of
technological change.

exponential change and existential anxiety

In 2005, the futurist Ray Kurzweil claimed that “the singularity is near” in
a book of that title.8 (The term is derived from mathematics and describes
a mathematical break; a place where some aspect of an otherwise regular
function becomes undefined.) Kurzweil argued we are approaching
a technological singularity—a point at which technology would advance
more and more quickly, until human systems can’t keep up anymore.9
Technology will lead to superhuman intelligence and completely change
how humans view themselves. Kurzweil argued that certain kinds of technol-
ogy progress in an ever-accelerating exponential curve.10 This is important
because accelerating curve projections require different thinking about the
middle future than do linear projections. We stand at a place in history where
we need to know what a plot of the future looks like. If the future looks like
a technological curve that is going straight to infinity and beyond, we need to
make one set of policy interventions. If the future looks more like regular
plodding progress, we need a different set. Right now we stand at the “knee of
the curve,” a perceptual point at which the shape of the future is becoming
clear.
A standard joke by high school math teachers runs like this: a teacher
requires her math students to do twenty problems each night. She also offers
an alternative where students can do one problem a night for the first week,
with the number of math problems due per night doubling each week. For the
first week, students will solve one problem each night. For the second week,

8
Ray Kurzweil, The Singularity Is Near (2005).
9
Id. at 7.
10
For those who can take a joke: all I’m saying in this section is that from the perspective of 2020,
Kurzweil seems to have muffed something a bit. The project of this book is to figure out what.
Another random document with
no related content on Scribd:
 CHAPTER XI
DOSTOIEVSKY’S ANNIVERSARY

St. Petersburg, February 24th.

They are celebrating the 25th anniversary of the death of

Dostoievski, and this fact has brought back to my mind, with great
vividness, a conversation I had with the officers of the battery at Jen-
tzen-tung last September, and which I have already noted in my
diary.
We were sitting in the ante-room of the small Chinese house which
formed our quarters. This ante-room, which had paper windows and
no doors, a floor of mud, and a table composed of boards laid upon
two small tressels, formed our dining-room. We had just finished
dinner, and were drinking tea out of pewter cups. Across the
courtyard from the part of the dwelling where the Chinese herded
together, we could hear the monotonous song of a Chinaman or a
Mongol singing over and over to himself the same strophe, which
rose by the intervals of a scale more subtle than ours and sank again
to die away in the vibrations of one prolonged note, to the
accompaniment of a single-stringed instrument.
The conversation had languished. Somebody was absorbed in a
patience, we were talking of books and novels in a vague, desultory
fashion, when suddenly Hliebnikov, a young Cossack officer, said:
“Who is the greatest writer in the world?” Vague answers were made
as to the comparative merits of Homer, Dante, Shakespeare, and
Molière, but Hliebnikov impatiently waived all this talk aside. Then
turning to me he said: “He knows; there is one writer greater than all
of them, and that is Dostoievski.”
“Dostoievski!” said the doctor. “Dostoievski’s work is like a clinical
laboratory or a dissecting-room. There is no sore spot in the human
soul into which he does not poke his dirty finger. His characters are
either mad or abnormal. His books are those of a madman, and can
only be appreciated by people who are half mad themselves.”
The young Cossack officer did not bother to discuss the question.
He went out into the night in disgust. We continued the argument for
a short time. “There is not a single character,” said the doctor, “in all
Dostoievski’s books who is normal.” The doctor was a cultivated
man, and seeing that we differed we agreed to differ, and we talked
of other things, but I was left wondering why Hliebnikov was so
convinced that Dostoievski was the greatest of all writers, and why he
knew I should agree with him. I have been thinking this over ever
since, and in a sense I do agree with Hliebnikov. I think that
Dostoievski is the greatest writer that has ever lived, if by a great
writer is meant a man whose work, message, or whatever you like to
call it, can do the greatest good, can afford the greatest consolation to
poor humanity. If we mean by the greatest writer the greatest artist,
the most powerful magician, who can bid us soar like Shelley or
Schubert into the seventh heaven of melody, or submerge us like
Wagner beneath heavy seas until we drown with pleasure, or touch
and set all the fibres of our associations and our æsthetic
appreciation vibrating with incommunicable rapture by the magic of
wonderful phrases like Virgil or Keats, or strike into our very heart
with a divine sword like Sappho, Catullus, Heine, or Burns, or ravish
us by the blend of pathos and nobility of purpose with faultless
diction like Leopardi, Gray, and Racine, or bid us understand and
feel the whole burden of mankind in a thin thread of notes like
Beethoven or in a few simple words like Goethe, or evoke for us the
whole pageant of life like Shakespeare to the sound of Renaissance
flutes, or all Heaven and Hell like Dante, by “thoughts that breathe
and words that burn”?
If we are thinking of all these miraculous achievements when we
say a great writer or the greatest writer, then we must not name
Dostoievski. Dostoievski is not of these; in his own province, that of
the novelist, he is as a mere workman, a mere craftsman, one of the
worst, inferior to any French or English ephemeral writer of the day
you like to mention; but, on the other hand, if we mean by a great
writer a man who has given to mankind an inestimable boon, a
priceless gift, a consolation, a help to life, which nothing can equal or
replace, then Dostoievski is a great writer, and perhaps the greatest
writer that has ever lived. I mean that if the Holy Scriptures were
destroyed and no trace were left of them in the world, the books
where mankind, bereft of its Divine and inestimable treasure, would
find the nearest approach to the supreme message of comfort would
be the books of Dostoievski.
Dostoievski is not an artist; his stories and his books are put
together and shaped anyhow. The surroundings and the
circumstances in which he places his characters are fantastic and
impossible to the verge of absurdity. The characters themselves are
also often impossible and fantastic to the verge of absurdity; yet they
are vivid in a way no other characters are vivid, and alive, not only so
that we perceive and recognise their outward appearance, but so that
we know the innermost corners of their souls. His characters, it is
said, are abnormal. One of his principal figures is a murderer who
kills an old woman from ambition to be like Napoleon, and put
himself above the law; another is a victim to epileptic fits. But the
fact should be borne in mind that absolutely normal people, like
absolutely happy nations, have no history; that since the whole of
humanity is suffering and groaning beneath the same burden of life,
the people who in literature are the most important to mankind are
not the most normal, but those who are made of the most complex
machinery and of the most receptive wax, and who are thus able to
receive and to record the deepest and most varied impressions. And
in the same way as Job and David are more important to humanity
than George I. or Louis-Philippe, so are Hamlet and Falstaff more
important than Tom Jones and Mr. Bultitude. And the reason of this
is not because Hamlet and Falstaff are abnormal—although
compared with Tom Jones they are abnormal—but because they are
human: more profoundly human, and more widely human. Hamlet
has been read, played, and understood by succeeding generations in
various countries and tongues, in innumerable different and
contradictory fashions; but in each country, at each period, and in
each tongue, he has been understood by his readers or his audience,
according to their lights, because in him they have seen a reflection
of themselves, because in themselves they have found an echo of
Hamlet. The fact that audiences, actors, readers, and commentators
have all interpreted Hamlet in utterly contradictory ways testifies not
merely to the profound humanity of the character but to its
multiplicity and manysidedness. Every human being recognises in
himself something of Hamlet and something of Falstaff; but every
human being does not necessarily recognise in himself something of
Tom Jones or Mr. Bultitude. At least what in these characters
resembles him is so like himself that he cannot notice the likeness; it
consists in the broad elementary facts of being a human being; but
when he hears Hamlet or Falstaff philosophising or making jokes on
the riddle of life he is suddenly made conscious that he has gone
through the same process himself in the same way.
So it is with Dostoievski. Dostoievski’s characters are mostly
abnormal, but it is in their very abnormality that we recognise their
profound and poignant humanity and a thousand human traits that
we ourselves share. And in showing us humanity at its acutest, at its
intensest pitch of suffering, at the soul’s lowest depth of degradation,
or highest summit of aspiration, he makes us feel his comprehension,
pity, and love for everything that is in us, so that we feel that there is
nothing which we could think or experience; no sensation, no hope,
no ambition, no despair, no disappointment, no regret, no greatness,
no meanness that he would not understand; no wound, no sore for
which he would not have just the very balm and medicine which we
need. Pity and love are the chief elements of the work of Dostoievski
—pity such as King Lear felt on the heath; and just as the terrible
circumstances in which King Lear raves and wanders make his pity
all the greater and the more poignant in its pathos, so do the
fantastic, nightmarish circumstances in which Dostoievski’s
characters live make their humanness more poignant, their love
more lovable, their pity more piteous.
A great writer should see “life steadily and see life whole.”
Dostoievski does not see the whole of life steadily, like Tolstoi, for
instance, but he sees the soul of man whole, and perhaps he sees
more deeply into it than any other writer has done. He shrinks from
nothing. He sees the “soul of goodness in things evil”: not exclusively
the evil, like Zola; nor does he evade the evil like many of our writers.
He sees and pities it. And this is why his work is great. He writes
about the saddest things that can happen; the most melancholy, the
most hopeless, the most terrible things in the world; but his books do
not leave us with a feeling of despair; on the contrary, his own “sweet
reasonableness,” the pity and love with which they are filled are like
balm. We are left with a belief in some great inscrutable goodness,
and his books act upon us as once his conversation did on a fellow
prisoner whom he met on the way to Siberia. The man was on the
verge of suicide; but after Dostoievski had talked to him for an hour
—we may be sure there was no sermonising in that talk—he felt able
to go on, to live even with perpetual penal servitude before him. To
some people, Dostoievski’s books act in just this way, and it is,
therefore, not odd that they think him the greatest of all writers.
 CHAPTER XII
THE POLITICAL PARTIES

Moscow, March 11th.

The political parties which are now crystallising themselves are the
result of the Liberal movement which began in the twenties, and
proceeded steadily until the beginning of the war in 1904, when the
Liberal leaders resolved, for patriotic reasons, to mark time and wait.
This cessation of hostilities did not last long, and the disasters caused
by the war produced so universal a feeling of discontent that the
liberation movement was automatically set in motion once more.
On the 19th of June, 1905, a deputation of the United Zemstva, at
the head of which was Prince S. N. Troubetzkoi, was received by the
Emperor. Prince Troubetzkoi, in a historic speech, expressed with
the utmost frankness and directness the imperative need of sweeping
reform and of the introduction of national representation. The
coalition of the Zemstva formed the first political Russian party, but
it was not until after the great strike, and the granting of the
Manifesto in October, that parties of different shades came into
existence and took definite shape. During the month which followed
the Manifesto the process of crystallisation of parties began, and is
still continuing, and they can now roughly be divided into three
categories—Right, Centre, and Left, the Right being the extreme
Conservatives, the Centre the Constitutional Monarchists, and the
Left consisting of two wings, the Constitutional Democrats on the
right and the Social Democrats and Social Revolutionaries on the
left. Of these the most important is the party of the Constitutional
Democrats, nicknamed the “Cadets.” “Cadets” means “K.D.,” the
word “Constitutional” being spelt with a “K” in Russian, and as the
letter “K” in the Russian alphabet has the same sound as it has in
French, the result is a word which sounds exactly like the French
word “Cadet.” Similarly, Social Revolutionaries are nicknamed
“S.R.’s” and the Social Democrats “S.D.’s.”
In order to understand the origin of the Constitutional Democrats
one must understand the part played by the Zemstva. In 1876 a
group of County Councillors, or Zemstvoists, under the leadership of
M. Petrunkevitch devoted themselves to the task of introducing
reforms in the economical condition of Russia. In 1894 their
representatives, headed by M. Rodichev, were summarily sent about
their business, after putting forward a few moderate demands. In
1902 these men formed with others a “League of Liberation.” M.
Schipov tried to unite these various “Zemstva” in a common
organisation, and some of the members of the Liberation League,
while co-operating with them, started a separate organisation called
the Zemstvo Constitutionalists. Among the members of this group
were names which are well known in Russia, such as Prince
Dolgoroukov, MM. Stachovitch, Kokoshkin, and Lvov. But these
“Zemstvoists” formed only a small group; what they needed, in order
to represent thinking Russia, was to be united with the professional
classes. In November, 1904, the various professions began to group
themselves together in political bodies. Various political unions were
formed, such as those of the engineers, doctors, lawyers, and
schoolmasters. Then Professor Milioukov, one of the leading
pioneers of the Liberal movement, whose name is well known in
Europe and America, united all professional unions into a great
“Union of Unions,” which represented the great mass of educated
Russia. Before the great strike in October, 1905, he created, together
with the best of his colleagues, a new political party, which united the
mass of professional opinion with the small group of Zemstvo
leaders. He had recognised the fact that the Zemstvoists were the
only men who had any political experience, and that they could do
nothing without enrolling the professional class. Therefore it is
owing to Professor Milioukov that the experienced Zemstvo leaders
in October had the whole rank and file of the middle class behind
them, and the Constitutional Democrats, as they are at present,
represent practically the whole “Intelligenzia,” or professional class,
of Russia. This party is the only one which is seriously and practically
organised. This being so, it is the most important of the political
parties.
 Those of the Right have not enough followers to give them
importance, and those of the Left have announced their intention of
boycotting the elections. These various parties are now preparing for
the elections.
We are experiencing now the suspense of an entr’acte before the
curtain rises once more on the next act of the revolutionary drama.
This will probably occur when the Duma meets in April. People of all
parties seem to be agreed as to one thing, that the present state of
things cannot last. There is at present a reaction against reaction.
After the disorders here in December many people were driven to the
Right; now the reactionary conduct of the Government has driven
them back to the Left.
So many people have been arrested lately that there is no longer
room for them in prison. An influential political leader said to me
yesterday that a proof of the incompetence of the police was that they
had not foreseen the armed rising in December, whereas every one
else had foreseen it. “And now,” he said, “they have been, so to speak,
let loose on the paths of repression; old papers and old cases,
sometimes of forty years ago, are raked up, and people are arrested
for no reason except that the old machine, which is broken and
thoroughly out of order, has been set working with renewed energy.”
The following conversation is related to me—if it is not true (and I
am convinced that it is not true) it is typical—as having taken place
between a Minister and his subordinate:—
The Subordinate: There are so many people in prison that there is
no possibility of getting in another man. The prisons are packed, yet
arrests are still being made. What are we to do? Where are these
people to be put?
The Minister: We must let some of the prisoners out.
The Subordinate: How many?
The Minister: Say five thousand.
The Subordinate: Why five thousand?
The Minister: A nice even number.
The Subordinate: But how? Which? How shall we choose them?
The Minister: Let out any five thousand. What does it matter to
them? Any five thousand will be as pleased as any other to be let out.
 It is interesting to note that last November the Minister of the
Interior was reported to have said that if he could be given a free
hand to arrest twenty thousand “intellectuals,” he would stop the
revolution. The twenty thousand have been arrested, but the
revolution has not been stopped.
So far, in spite of the many manifestoes, no guarantee of a
Constitution has been granted. The Emperor has, it is true, declared
that he will fulfil the promises made in his declaration of the 17th of
October, and it is true that if these promises were fulfilled, the result
would be Constitutional Government. But at the same time he
declared that his absolute power remained intact. At first sight this
appears to be a contradiction in terms; but, as the Power which
granted the Manifesto of October 17th was autocratic and unlimited,
and as it made no mention of the future limiting of itself, it is now, as
a matter of fact, not proceeding contrarily to any of its promises. The
liberties which were promised may only have been meant to be
temporary. They could be withdrawn at any moment, since the
Emperor’s autocratic power remained. The Manifesto might only
have been a sign of goodwill of the Emperor towards his people. It
promised certain things, but gave no guarantee as to the fulfilment of
these promises. The whole of Russia, it is true, understood it
otherwise. The whole of Russia understood when this Manifesto was
published that a Constitution had been promised, and that autocracy
was in future to be limited. What Count Witte understood by it, it is
difficult to say. Whether he foresaw or not that this Manifesto by its
vagueness would one day mean much less than it did then, or
whether he only realised this at the same time that he realised that
the Conservative element was much stronger than it was thought to
be, it is impossible to determine. The fact remains that the Emperor
has not withdrawn anything; he has merely not done what he never
said he would do, namely, voluntarily abdicate his autocratic power.
The Conservatives are opposed to any such proceeding; not in the
same way as the extreme reactionaries, some of whom relegated the
portrait of the Emperor to the scullery on the day of the Manifesto
from sheer Conservative principle, but because they say that if the
autocratic power is destroyed the peasant population will be
convulsed, and the danger will be immense. To this Liberals—all
liberal-minded men, not revolutionaries—reply that this supposed
danger is a delusion of the Conservatives, who have unconsciously
invented the fact to support their theory and have not based their
theory on the fact; that many peasants clearly understand and
recognise that there is to be a constitutional régime in Russia; that if
this danger does exist, the risk incurred by it must be taken; that in
any case it is the lesser of two evils, less dangerous than the
maintenance of the autocracy.
Count Witte’s opponents on the Liberal side say that the course of
events up to this moment has been deliberately brought about by
Count Witte; that he disbelieved and disbelieves in Constitutional
Government for Russia; that he provoked disorder in order to crush
the revolutionary element; that the Moderate parties played into his
hands by not meeting him with a united front; that, Duma or no
Duma, he intends everything to remain as before and the power to be
in his hands. What his supporters say I do not know, because I have
never seen one in the flesh, but I have seen many people who say that
what has happened so far has been brought about with infinite skill
and knowledge of the elements with which he had to deal. Further,
they add that Count Witte has no principles and no convictions; that
he has always accommodated himself to the situation of the moment,
and worked in harmony with the men of the moment, whatever they
were; that he has no belief in the force or the stability of any
movement in Russia; that he trusts the Russian character to simmer
down after it has violently fizzed; that he intends to outstay the
fizzing period; that he has a great advantage in the attitude of the
Moderate parties, who, although they do not trust him, play into his
hands by disagreeing on small points and not meeting him with clear
and definite opposition. They add, however, that he has
miscalculated and wrongly gauged the situation this time, because
the simmering down period will only be temporary and the fizzing
will be renewed again with increasing violence, until either the cork
flies into space or the bottle is burst. The cork is autocracy, the bottle
Russia, and the mineral water the revolution. The corkscrew was the
promise of a Constitution with which the cork was partially loosened,
only to be screwed down again by Count Witte’s powerful hand.
Among all the parties the most logical seem to be the Extreme
Conservatives and the Extreme Radicals. The Extreme Conservatives
have said all along that the talk of a Constitution was nonsensical,
and the Manifesto of October 17th a great betrayal; that the only
result of it has been disorder, riot, and bloodshed. They are firmly
based on a principle. The Extreme Radicals are equally firmly based
on a principle, namely, that the autocratic régime must be done away
with at all costs, and that until it is swept away and a Constitution
based on universal suffrage takes its place there is no hope for
Russia. Therefore the danger that the Moderate parties may
eventually be submerged and the two extremes be left face to face,
still exists. As a great quantity of the Radicals are in prison they are
for the time being less perceptible; but this era of repression cannot
last, and it has already created a reaction against itself. But then the
question arises, what will happen when it stops? What will happen
when the valve on which the police have been sitting is released?
The influential political leader with whom I dined last night, and
who is one of the leading members of the party of October 17th, said
that there was not a man in Russia who believed in Witte, that Witte
was a man who had no convictions. I asked why he himself and other
Zemstvo leaders had refused to take part in the administration
directly after the Manifesto had been issued, when posts in the
Cabinet were offered to them. He said their terms had been that the
Cabinet should be exclusively formed of Liberal leaders; but they did
not choose to serve in company with a man like Durnovo, with whom
he would refuse to shake hands.
He added that it would not have bettered their position in the
country with regard to the coming Duma, which he was convinced
would be Liberal. Talking of the Constitutional Democrats he said
they were really republicans but did not dare own it.
 CHAPTER XIII
IN THE COUNTRY

Sosnofka, Government of Tambov,

March 25th.

When one has seen a thing which had hitherto been vaguely familiar
suddenly illuminated by a flood of light, making it real, living, and
vivid, it is difficult to recall one’s old state of mind before the inrush
of the illuminating flood; and still more difficult to discuss that thing
with people who have not had the opportunity of illumination. The
experience is similar to that which a child feels when, after having
worshipped a certain writer of novels or tales, and wondered why he
was not acknowledged by the whole world to be the greatest author
that has ever been, he grows up, and by reading other books, sees the
old favourite in a new light, the light of fresh horizons opened by
great masterpieces; in this new light the old favourite seems to be a
sorry enough impostor, his golden glamour has faded to tinsel. The
grown-up child will now with difficulty try to discover what was the
cause and secret of his old infatuation, and every now and then he
will receive a shock on hearing some fellow grown-up person talk of
the former idol in the same terms as he would have talked of him
when a child, the reason being that this second person has never got
farther; has never reached the illuminating light of new horizons. So
it is with many things; and so it is in my case with Russia. I find it
extremely difficult to recall exactly what I thought Russia was before
I had been there; and I find Russia difficult to describe to those who
have never been there. There is so much when one has been there
that becomes so soon a matter of course that it no longer strikes one,
but which to the newcomer is probably striking.
 The first time I came to Russia I travelled straight to the small
village where I am now staying. What did I imagine Russia to be like?
All I can think of now is that there was a big blank in my mind. I had
read translations of Russian books, but they had left no definite
picture or landscape in my mind; I had read some books about
Russia and got from them very definite pictures of a fantastic
country, which proved to be curiously unlike Russia in every respect.
A country where feudal castles, Pevenseys and Hurstmonceuxs,
loomed in a kind of Rhine-land covered with snow, inhabited by
mute, inglorious Bismarcks, and Princesses who carried about
dynamite in their cigarette-cases and wore bombs in their tiaras;
Princesses who owed much of their being to Ouida, and some of it to
Sardou.
Then everything in these books was so gloriously managed;
everybody was so efficient, so powerful; the Bismarcks so
Machiavellian and so mighty; the Princesses so splendide mendaces.
The background was also gorgeous, barbaric, crowded with Tartars
and Circassians, blazing with scimitars, pennons, armour, and
sequins, like a scene in a Drury Lane pantomime; and every now and
then a fugitive household would gallop in the snow through a
primæval forest, throwing their children to the wolves, so as to
escape being devoured themselves. This, I think, was the impression
of Russia which I derived before I went there from reading French
and English fiction about Russia, from Jules Verne’s “Michel
Strogoff,” and from memories of many melodramas. Then came the
impressions received from reading Russian books, which were again
totally different from this melodramatic atmosphere.
From Russian novels I derived a clear idea of certain types of men
who drank tea out of a samovar and drove forty versts in a vehicle
called a Tarantass. I made the acquaintance of all kinds of people,
who were as real to me as living acquaintances; of Natascha and
Levine, and Pierre and Anna Karenine, and Basaroff, and Dolly, and
many others. But I never saw their setting clearly, I never realised
their background, and I used to see them move before a French or
German background. Then I saw the real thing, and it was utterly
and totally different from my imaginations and my expectations. But
now when I try to give the slightest sketch of what the country is
really like the old difficulty presents itself; the difficulty which arises
from talking of a thing of which one has a clear idea to people who
have a vague and probably false idea of the reality. The first thing one
can safely say is this: eliminate all notions of castles, Rhine country,
feudal keeps, and stone houses in general. Think of an endless plain,
a sheet of dazzling snow in winter, an ocean of golden corn in
summer, a tract of brown earth in autumn, and now in the earliest
days of spring an expanse of white melting snow, with great patches
of brown earth and sometimes green grass appearing at intervals,
and further patches of half-melted snow of a steely-grey colour,
sometimes blue as they catch the reflection of the dazzling sky in the
sunlight. In the distance on one side the plain stretches to infinity, on
the other you may see the delicate shapes of a brown, leafless wood,
the outlines soft in the haze. If I had to describe Russia in three
words I should say a plain, a windmill, and a church. The church is
made of wood, and is built in Byzantine style, with a small cupola
and a minaret. It is painted red and white, or white and pale-green.
Sometimes the cupola is gilt.
The plain is dotted with villages, and one village is very like
another. They consist generally of two rows of houses, forming what
does duty for a street, but the word street would be as misleading as
possible in this case. It would be more exact to say an exceedingly
broad expanse of earth: dusty in summer, and in spring and autumn
a swamp of deep soaking black mud. The houses, at irregular
intervals, sometimes huddled close together, sometimes with wide
gaps between them, succeed each other (the gaps probably caused by
the fact that the houses which were there have been burnt). They are
made of logs, thatched with straw; sometimes (but rarely) they are
made of bricks and roofed with iron. As a rule they look as if they had
been built by Robinson Crusoe. The road is strewn with straw and
rich in abundance of every kind of mess. Every now and then there is
a well of the primitive kind which we see on the banks of the Nile,
and which one imagines to be of the same pattern as those from
which the people in the Old Testament drew their water. The roads
are generally peopled with peasants driving at a leisurely walk in
winter in big wooden sledges and in summer in big wooden carts.
Often the cart is going on by itself with somebody in the extreme
distance every now and then grunting at the horse. A plain, a village,
a church, every now and then a wood of birch-trees, every now and
then a stream, a weir, and a broken-down lock. A great deal of dirt, a
great deal of moisture. An overwhelming feeling of space and
leisureliness, a sense that nothing you could say or do could possibly
hurry anybody or anything, or make the lazy, creaking wheels of life
go faster—that is, I think, the picture which arises first in my mind
when I think of the Russian country.
Then as to the people. With regard to these, there is one fact of
capital importance which must be borne in mind. The people if you
know the language and if you don’t are two separate things. The first
time I went to Russia I did not know a word of the language, and,
though certain facts were obvious with regard to the people, I found
it a vastly different thing when I could talk to them myself. So
different that I am persuaded that those who wish to study this
country and do not know the language are wasting their time, and
might with greater profit study the suburbs of London or the Isle of
Man. And here again a fresh difficulty arises. All the amusing things
one hears said in this country, all that is characteristic and smells of
the Russian land, all that is peculiarly Russian, is like everything
which is peculiarly anything, peculiarly English, Irish, Italian, or
Turkish, untranslatable, and loses all its savour and point in
translation. This is especially true with regard to the Russian
language, which is rich in peculiar phrases and locutions,
diminutives, and terms which range over a whole scale of delicate
shades of endearment and familiarity, such as “little pigeon,” “little
father,” &c., and these phrases translated into any other language
lose all their meaning. However, the main impression I received
when I first came to Russia, and the impression which I received
from the Russian soldiers with whom I mingled in Manchuria in the
war, the impression which is now the strongest with regard to them
is that of humaneness. Those who read in the newspapers of acts of
brutality and ferocity, of houses set on fire and pillaged, of huge
massacres of Jews, of ruthless executions and arbitrary
imprisonments, will rub their eyes perhaps and think that I must be
insane. It is true, nevertheless. A country which is in a state of
revolution is no more in its normal condition than a man when he is
intoxicated. If a man is soaked in alcohol and then murders his wife
and children and sets his house on fire, it does not necessarily prove
that he is not a humane member of society. He may be as gentle as a
dormouse and as timid as a hare by nature. His excitement and
demented behaviour are merely artificial. It seems to me now that
the whole of Russia at this moment is like an intoxicated man; a man
inebriated after starvation, and passing from fits of frenzy to sullen
stupor. The truth of this has been illustrated by things which have
lately occurred in the country. Peasants who have looted the spirit
stores and destroyed every house within reach have repented with
tears on the next day.
The peasants have an infinite capacity for pity and remorse, and
therefore the more violent their outbreaks of fury the more bitter is
their remorse. A peasant has been known to worry himself almost to
death, as if he had committed a terrible crime, because he had
smoked a cigarette before receiving the Blessed Sacrament. If they
can feel acute remorse for such things, much more acute will it be if
they set houses on fire or commit similar outrages. If you talk to a
peasant for two minutes you will notice that he has a fervent belief in
a great, good, and inscrutable Providence. He never accuses man of
the calamities to which flesh is heir. When the railway strike was at
its height, and we were held up at a small side station, the train
attendant repeated all day long that God had sent us a severe trial,
which He had. Yesterday I had a talk with a man who had returned
from the war; he had been a soldier and a surgeon’s assistant, and
had received the Cross of St. George for rescuing a wounded officer
under fire. I asked him if he had been wounded. He said, “No, my
clothes were not even touched; men all around me were wounded.
This was the ordinance of God. God had pity on the orphan’s tears. It
was all prearranged thus that I was to come home. So it was to be.” I
also had tea with a stonemason yesterday who said to me, “I and my
whole family have prayed for you in your absence because these are
times of trouble, and we did not know what bitter cup you might not
have to drink.” Then he gave me three new-laid eggs with which to
eat his very good health.

March 29th.

To-day I went out riding through the leafless woods and I saw one
of the most beautiful sights I have ever seen, a sight peculiarly
characteristic of Russian landscape. We passed a small river that up
to now has been frozen, but the thaw has come and with it the floods
of spring. The whole valley as seen from the higher slopes of the
woods was a sheet of shining water. Beyond it in the distance was a
line of dark-brown woods. The water was grey, with gleaming layers
in it reflecting the white clouds and the blue sky; and on it the bare
trees seemed to float and rise like delicate ghosts, casting clearly
defined brown reflections. The whole place had a look of magic and
enchantment about it, as if out of the elements of the winter, out of
the snow and the ice and the leafless boughs, the spring had devised
and evoked a silvery pageant to celebrate its resurrection.

Moscow, April 6th.

I have spent twelve instructive days in the country; instructive,

because I was able to obtain some first-hand glimpses into the state
of the country, into the actual frame of mind of the peasants; and the
peasants are the obscure and hidden factor which will ultimately
decide the fate of Russian political life. It is difficult to get at the
peasants; it is exceedingly difficult to get them to speak their mind.
You can do so by travelling with them in a third-class carriage,
because then they seem to regard one as a fleeting shadow of no
significance which will soon vanish into space. However, I saw
peasants; I heard them discuss the land question and the manner in
which they proposed to buy their landlords’ property. I also had
some interesting talks with a man who had lived among the peasants
for years. From him and from others I gathered that their attitude at
present was chiefly one of expectation. They are waiting to see how
things turn out. They were continually asking my chief informant
whether anything would come of the “levelling” (Ravnienie); this is,
it appears, what they call the revolutionary movement. It is
extremely significant that they look upon this as a process of
equalisation. The land question in Russia is hopelessly complicated;
it is about ten times as complicated as the land question in Ireland,
and of the same nature. I had glimpses of this complexity. The village
where I was staying was divided into four “societies”; each of these
societies was willing to purchase so much land, but when the matter
was definitely settled with regard to one society two representatives
of two-thirds of that society appeared and stated that they were “Old
Souls” (i.e., they had since the abolition of serfage a separate
arrangement), and wished to purchase the lands separately in order
to avoid its partition; upon which the representatives of the whole
society said that this was impossible, and that they were the
majority. The “Old Souls” retorted finally that a general meeting
should be held, and then it would be seen that the majority was in
favour of them. They were in a minority; and in spite of the
speciousness of their arguments it was difficult to see how the
majority, whose interests were contrary to those of the “Old Souls,”
could be persuaded to support them. This is only one instance out of
many.
Another element of complication is that the peasants who can earn
their living by working on the landlords’ land are naturally greatly
averse from anything like a complete sale of it, and are alarmed by
the possibility of such an idea. Also there is a class of peasants who
work in factories, and therefore are only interested in the land
inasmuch as profit can be derived from it while it belongs to the
landlord. Again, there are others who are without land, who need
land, and who are too poor to buy it. If all the land were given to
them as a present to-morrow the result in the long run would be
deplorable, because the quality of the land—once you eliminate the
landlord and his more advanced methods—would gradually
deteriorate and poverty would merely be spread over a larger area.
One fact is obvious: that many of the peasants have not got enough
land, and to them land is now being sold by a great number of
landlords. To settle the matter further, a radical scheme of agrarian
reform is necessary; many such schemes are being elaborated at this
moment, but those which have seen the light up to the present have
so far proved a source of universal disagreement. The fact which lies
at the root of the matter is of course that if the land question is to be
solved the peasant must be educated to adopt fresher methods of
agriculture than those which were employed in the Garden of Eden;
methods which were doubtless excellent until the fall of man
rendered the cultivation of the soil a matter of painful duty, instead
of pleasant recreation.
I asked my friend who had lived among the peasants and studied
them for years what they thought of things in general. He said that in
this village they had never been inclined to loot (looting can always
arise from the gathering together of six drunken men), that they are
perfectly conscious of what is happening (my friend is one of the
most impartial and fair-minded men alive); they are distrustful and
they say little; but they know. As we were talking of these things I
mentioned the fact that a statement I had made in print about the
peasants in this village and in Russia generally reading Milton’s
“Paradise Lost” had been received with interest in England and in
some quarters with incredulity. It was in this very village and from
the same friend, who had been a teacher there for more than twenty
years, that I first heard of this. It was afterwards confirmed by my
own experience.
“Who denies it?” he asked. “Russians or Englishmen?”
“Englishmen,” I answered. “But why?” he said. “I have only read it
myself once long ago, but I should have thought that it was obvious
that such a work would be likely to make a strong impression.”
I explained that at first sight it appeared to Englishmen incredible
that Russian peasants, who were known to be so backward in many
things, should have taken a fancy to a work which was considered as
a touchstone of rare literary taste in England. I alluded to the
difficulties of the classicism of the style—the scholarly quality of the
verse.
“But is it written in verse?” he asked. And when I explained to him
that “Paradise Lost” was as literary a work as the Æneid he perfectly
understood the incredulity of the English public. As a matter of fact,
it is not at all difficult to understand and even to explain why the
Russian peasant likes “Paradise Lost.” It is popular in exactly the
same way as Bunyan’s “Pilgrim’s Progress” has always been popular
in England. Was it not Dr. Johnson who said that Bunyan’s work was
great because, while it appealed to the most refined critical palate, it
was understood and enjoyed by the simplest of men, by babes and
sucklings? This remark applies to the case of “Paradise Lost” and the
Russian peasant. The fact therefore is not surprising, as would be, for
instance, the admiration of Tommy Atkins for a translation of
Lucretius. It is no more and no less surprising than the popularity of
Bunyan or of any epic story or fairy tale. When people laugh and say
that these tastes are the inventions of essayists they forget that the
epics of the world were the supply resulting from the demand caused
by the deeply-rooted desire of human nature for stories—long stories
of heroic deeds in verse; the further you go back the more plainly this
demand and supply is manifest. Therefore in Russia among the
peasants, a great many of whom cannot read, the desire for epics is
strong at this moment. And those who can read prefer an epic tale to
a modern novel.
Besides this, “Paradise Lost” appeals to the peasants because it is
not only epic, full of fantasy and episode, but also because it is
religious, and, like children, they prefer a story to be true. In
countries where few people read or write, memory flourishes, and in
Russian villages there are regular tellers of fairy tales (skashi) who
hand down from generation to generation fairy tales of incredible
length in prose and in verse.
But to return to my friend the schoolmaster. I asked him if
“Paradise Lost” was still popular in the village. “Yes,” he answered,
“they come and ask me for it every year. Unfortunately,” he added, “I
may not have it in the school library as it is not on the list of books
which are allowed by the censor. It is not forbidden; but it is not on
the official list of books for school use.” Then he said that after all his
experience the taste of the peasants in literature baffled him. “They
will not read modern stories,” he said. “When I ask them why they
like ‘Paradise Lost’ they point to their heart and say, ‘It is near to the
heart; it speaks; you read and a sweetness comes to you.’ Gogol they
do not like. On the other hand they ask for a strange book of
adventures, about a Count or a Baron.” “Baron Munchausen?” I
suggested. “No,” he said, “a Count.” “Not Monte Cristo?” I asked.
“Yes,” he said, “that is it. And what baffles me more than all is that
they like Dostoievski’s ‘Letters from a Dead House.’” (Dostoievski’s
record of his life in prison in Siberia.) Their taste does not to me
personally seem to be so baffling. As for Dostoievski’s book, I am
certain they recognise its great truth, and they feel the sweetness and
simplicity of the writer’s character, and this “speaks” to them also. As
for “Monte Cristo,” is not the beginning of it epical? It was a mistake,
he said, to suppose the peasants were unimaginative. Sometimes this
was manifested in a curious manner. There was a peasant who was
well known as a great drunkard. In one of his fits of drink he
imagined that he had sold his wife to the “Tzar of Turkey,” and that
at midnight her head must be cut off. As the hour drew near he wept
bitterly, said goodbye to his wife, and fetching an axe said with much
lamentation that this terrible deed had to be done because he had
promised her life to the “Tzar of Turkey.” The neighbours eventually
interfered and stopped the execution.