Expert Witnesses and Ancient Mysteries in a Colorado Courtroom
(Originally published in the September, 1996 issue of Lingua Franca.)
By DANIEL MENDELSOHN
IT IS A SPECIAL IRONY of the Nussbaum controversy that so much of it boils down to a very academic issue indeed: the meaning of the term that Plato, in an influential text on morals, uses to characterize homosexual acts. Although it began as a fairly minor, almost incidental part of Nussbaum’s argument, the tolmêma debate exploded into one of the trial’s most controversial episodes. The debate revealed not only the wildly divergent readings of the ancient philosophers offered by the two sides in the case, but also their competing world-views.
It would have been hard to predict any of this when Nussbaum took the stand on the afternoon of Friday, October 15, 1993. She began by confirming that she was there “to express opinions in response to John Finnis and other witnesses [for] the state.” (Finnis’s testimony took the form of an affidavit that had been entered into testimony a week before; he himself never appeared as a witness in Denver.) Coaxed along during the direct-examination portion of her testimony by plaintiffs’ attorney Greg Eurich, a pro bono litigator from the prestigious Denver firm of Holland & Hart, Nussbaum testified that although Finnis represented his argument as being based “in reason and based in particular on what he calls the Platonic-Aristotelian tradition of moral philosophy,” it was no such thing. Why? Because Finnis’s understanding of Plato and Aristotle, she argued, was based on erroneous, outdated, and moralizing English translations of the original Greek texts of those philosophers’ works.
On the face of it, few people were better qualified to judge such matters than Nussbaum herself: As the plaintiffs reminded the court, she has been retained by the trustees of the Harvard Loeb Classical Library, the most widely used of the bilingual editions of the Greek and Latin classics, to examine all the translations of Greek philosophy in that series and to recommend revision or even retranslation where necessary. (Finnis says he reads Latin well but needs a dictionary for Greek.) What Nussbaum said on the stand that day suggests why her testimony was potentially so devastating — not only to Finnis’s argument but to his intellectual amour-propre as well. “Now,” Eurich asked, “you’ve just summarized John Finnis’s view and justification for Amendment 2 on moral grounds?”
Nussbaum: Yes, I have.
Eurich: Now, let’s break that down a little bit. He talks, I gather, in part or bases his conclusion in part on the Greek classical tradition, is that correct?
Nussbaum: Yes, that’s right.
Eurich: Would you comment on the extent to which his reading of that classical tradition is an accurate reading in that respect?
Nussbaum: Yeah, I have to say that Finnis is no classicist. He’s a distinguished philosopher and religious authority, but he has no training in classics, and he has access to the ancient texts only through translations. He’s made a pretty cursory examination of even those, but I have to say that the texts he selects, the translations he uses of those texts are some of the worst that I did identify in the assessment that I made for the Loeb Classical Library.
Because of this kind of translation problem, she said, Finnis’s conclusions about homosexuality in the Greek tradition were “simply false.” What was more, she suggested, Finnis’s positions ultimately had more to do with affairs of church than state: “Finnis’s particular views… deriv[e] from the Thomist tradition of Catholic moral philosophy…. Finnis conceals those specifically religious purposes and misrepresents his argument as a secular, rational argument.”
Nussbaum then provided a single — and, as it turned out, ill-fated — example of how Finnis was “tripped up” by poor translation: a passage in a late (and notoriously difficult) Platonic dialogue called the Laws. In this passage, which had been cited by Finnis in his original affidavit, Plato talks about people who mate with members of their own sex, and concludes (in the 1926 Loeb translation cited by Finnis) that “those guilty of such enormities were impelled by their slavery to pleasure.” The word that R.G. Bury, the Loeb translator, renders here as “enormity” is tolmêma, a Greek word that has a variety of connotations ranging from an “act of bold daring” to an “act of outrageous effrontery,” depending on the context. Arguing that Bury’s word choice here was the result of “a great deal of shame and embarrassment about homosexuality in the British and American cultures,” Nussbaum asserted that the phrase in question ought properly to be translated in a “morally neutral” fashion. She herself suggested that “those who first venture to do this” was a more appropriate rendering of the tolmêma passage than “those guilty of such enormities.”
Although it must have seemed pretty recherché at the time, all this fuss about a single word did have larger implications. Nussbaum’s own take on tolmêma allowed her to argue that “in Greek culture of the fifth and fourth centuries bc…homosexual acts between consenting males…are attested as received with great approval”; Finnis, of course, believes otherwise. By challenging Finnis on tolmêma, Nussbaum had fired the first salvo in the Translation Wars; from the Translation Wars it was just a short way to the Dictionary Thing. Both, of course, led inexorably to Paragraph 17.
“WHAT GOT NUSSBAUM INTO TROUBLE,” says Robert George, “is this preposterous claim that moral objections to homosexual conduct in the West originate with Christianity.“ George, who studied with Finnis at Oxford, is so boyish-looking that he seems somewhat out of place in a crammed office in Princeton University’s Corwin Hall; you’re somehow not surprised to learn that he goes by “Robbie.” Three years after his Colorado testimony, he still discusses the case with considerable fervor. Some of this enthusiasm, you can’t help thinking, is a former star pupil’s delight at finding himself playing alongside his onetime teacher; but there’s something else, too, in his manner — a righteous indignation that reminds you of the peroration of Finnis’s Academic Questions article. (Finnis himself declined to be interviewed for this article. “I’ve said what I want to say about both the precise question at stake in the controversy with respect to Professor Nussbaum’s statements, and also in relation to general questions about the abuse of scholarship,” he says from his office in Oxford. “I’ve said it in print.” George wasn’t surprised: “He’s a very meticulous and careful scholar. He wouldn’t talk off the top of his head about scholarship. He’s a real library guy.”)
It was George, at any rate, who first questioned Nussbaum’s testimony. As a defense witness, George testified after Nussbaum did — just a few days later, in fact, on October 20, 1993. Under direct examination by Tim Tymkovich, George baldly stated that Nussbaum’s testimony was “almost all totally misleading or false.” Although he was referring here to a number of claims made by Nussbaum — for example, George alleges that Nussbaum, in responding to Finnis, had misrepresented Finnis as claiming that sex must be procreative in order to be moral — he zeroed in on Nussbaum’s argument about tolmêma, which he describes as being “entirely unsuccessful,” and in his view, “inexplicable.” George, who admits to having no Greek at all, went on, “I went ahead and gathered all the major translations that I could get my hands on, and I found that Finnis’s view was supported unanimously.”
It was as a result of Nussbaum’s effort to counter this contention of George’s that the Dictionary Thing began. Since Nussbaum had already testified, she replied to George’s allegations in a sworn affidavit dated October 21. Her own interpretation of tolmêma, she wrote, was borne out by “the authoritative dictionary relied on by all scholars in this area.” She then proceeded to give the dictionary entry, which indeed lists no pejorative connotation of the word. But what “authoritative dictionary” did she have in mind? The answer to that question would soon land her in trouble. Nussbaum’s affidavit is organized as a series of numbered paragraphs. In paragraph 10, the name of the lexicon in question appears this way:
l, Scott Lexicon of the Ancient Greek Language.
The possible significance of the blank space — a blob of liquid paper on the original document — leaped out at Finnis and George. For the authoritative dictionary that is actually relied on by all Greek scholars is, in fact, customarily listed as “Liddell, Scott & Jones, A Greek-English Lexicon.” Without the “& Jones,” “Liddell and Scott” necessarily refers to an 1897 edition of this basic lexicographical reference tool — a long-superseded edition that in fact lists no pejorative meaning for the word tolmêma. The Jones edition, on the other hand, published in 1940, includes extensive revisions made under the direction of the scholar Henry Stuart Jones. Among the revisions, as both Finnis and George are quick to point out, is the inclusion of “shameless act” as a possible translation of tolmêma.
Had Nussbaum resorted to a bibliographic sleight of hand? Since Finnis first published his observations about Nussbaum’s use of the superseded dictionary, the lengths to which Nussbaum has gone to justify herself have been considerable — and, in the eyes of some, embarrassing. “I like Martha, and I admire her a lot,” one classicist, an expert in Hellenistic philosophy, told me. “But with this dictionary thing, she’s really pooping all over herself.” For instance, Nussbaum claimed in a letter to George that the edition she herself used was, in fact, the one without the supplementation by Jones — a claim rendered somewhat dubious, as George tartly observed in a 1995 Academic Questions article, by the fact that the edition she regularly cites in her own published work is the later, 1940 Jones edition. Nussbaum went on to suggest, in the same letter, that the Jones revisions were at any rate immaterial with respect to the lexicon’s treatment of the classical philosophers, since, she claimed, the 1897 edition was “more reliable on authors of the classical period,” while the material added by Jones pertained to “late and Christian-era authors.”
Unfortunately for Nussbaum, her claims seem to be forcefully answered by the words of Henry Stuart Jones himself. “[T]he references to Plato and Aristotle,” Jones writes of the treatment of those authors in the older, superseded edition, “needed careful revision and some amplification.”
When I bring up these objections in a conversation with Nussbaum herself, she seems exasperated by the whole issue. (Although the matter is now three years old, George’s attack on her in Academic Questions came out only last winter.) Nussbaum in conversation comes across as forceful, articulate, and not at all unsympathetic; you get the impression that she can’t quite understand how a disagreement over the interpretation of ancient Greek texts could have metamorphosed, like something out of Ovid, into a lawyer-headed hydra. “A lexicon is a useful collection of passages, but the interpretations that are made in it have about the same status as any scholar’s interpretation,” she tells me, somewhat impatiently. “Of course the lexicon that I consulted, the older edition, gave only the meaning that I preferred. But in any case, never would I use a lexicon as a crucial determinant of meaning.” According to Nussbaum, what matters is providing the right translation, not using the right dictionary. But it’s still not clear how this point jibes with Nussbaum’s own implication that her claims about tolmêma should be accepted on the grounds that they are supported by an entry in “the most authoritative” lexicon used by classicists. Those sympathetic to Nussbaum — and there are many, starting with the legal team who argued successfully for the plaintiffs in Romer v. Evans — may wish that Nussbaum had dispensed with the whole Dictionary Thing. Instead, she made a dramatic claim in paragraph 17 of her affidavit. In it, she asserts in connection with Laws I 636 C that “the word that I have translated ‘venture’…cannot reasonably be claimed to convey a nuance of guilt” — that is, a pejorative nuance.
“Cannot reasonably be claimed” is what finally got to Finnis. “[T]he issue is not whether the translation offered by Professor Nussbaum for [tolmêma] is correct,” he wrote in his Academic Questions article. “The issue raised here…is exclusively whether the translation…by Bury in the Loeb edition falsifies or substantially misrepresents the sentence, the passage, or the thought of Plato” — in other words, whether someone could “reasonably claim” that tolmêma conveyed moral condemnation. It seems clear that someone could. Which is why Finnis ended up asserting that “the gist of paragraph 17, like that of paragraph 10” — the paragraph with the liquid paper — “is false, and thoroughly deceptive.” And, therefore, perjurious.
THERE WERE OTHER statements that Nussbaum made during her testimony which George later claimed were false. Among them was Nussbaum’s representation of the views of the eminent classicist Sir Kenneth Dover, author of an enormously influential study of classical Greek popular attitudes about sexuality entitled Greek Homosexuality (1978). Under cross-examination by the state, Nussbaum was asked whether Dover had concluded that Socrates, Plato, and Aristotle had “condemned homosexual conduct.” Her answer was that Dover had not. George responded vigorously, even dramatically, to Nussbaum’s testimony when he took the stand. Flourishing Dover’s book, he read aloud the passage in which Dover describes the character of Socrates, as it was depicted by both Plato and his contemporary Xenophon. “There is no doubt that both of them condemn homosexual copulation,” Dover had written. Closing the book, George charged that Nussbaum had “misrepresented the view of Dover on Socrates and the view of Socrates himself.”
(After the trial, remarkably enough, Nussbaum persuaded Dover both to modify some of his views about the meaning of tolmêma, which he’d originally translated as “crimes” in Greek Homosexuality, and to further refine some of his views about Socrates and homosexual acts. In an appendix to a 1994 article about the case, written by Nussbaum for the Virginia Law Review, Dover goes on record as saying that although Socrates condemned homosexual copulation, it was not because he thought it was “wicked, shameful, and depraving.”) Nussbaum was incensed by the charges George made against her during his testimony. And, after consulting with her attorneys, she requested in a letter that George officially retract his accusations before the record for the case was closed. George’s charge that she had misrepresented Dover’s views was, she wrote, “(a) false, (b) produced with reckless disregard for the truth…[and] (c) damaging to my reputation as a scholar.” George — who, like Finnis, is an attorney — did not fail to understand the import of these three allegations. “Those are the actionable elements of libel,” he notes. “It was an outrageous implied threat.”
“I suppose that he interpreted that language to be a threat of a libel suit,” Nussbaum says, when reminded of her letter to George. “He can interpret it as he likes, since I don’t have any actual intent of bringing an action for libel. I am a great believer in respectful dialogue.” But given the seriousness of George’s accusations against her, it’s George’s retort, rather than Nussbaum’s, that keeps ringing in your head. “If Nussbaum really believed she was in the right,” George says heatedly, “why hasn’t she sued us?”
ONE REASON SHE HASN’T, if you ask Nussbaum, is that she’s not a litigious person. When you see her, a striking woman of considerable personal charm and great presence, you’re not surprised to learn that her first love was acting. (Peter Cicchino recalls how Nussbaum’s good looks and stylish clothes “floored” the court when she entered. “They were fixated on her,” he says, recalling the dismayed reaction of the state’s attorneys, who presumably were expecting someone with a gray bun.) But this flair for the theatrical apparently doesn’t include courtroom drama. “Until I went to Colorado, I’d never been in a courtroom, and I prefer not to be in a courtroom,” Nussbaum tells me. “It was in consultation with the lawyers that I used that language [in her letter to George]. They thought that it was a good thing, because they were hoping that once [George] realized he was in error, he would — before the deadline — change some of his statements for the record.”
Nine days after she sent that letter, Nussbaum wrote a second letter to George. It couldn’t have been more different from the first. “Now that we are through with the trial and may resume our lives as scholars…” it began, and it certainly sounded like Nussbaum was relieved to be back home. The Nussbaum that emerged in the second letter was quite different from the feisty and defensive Nussbaum of the affidavits and the courtroom, the Nussbaum of Paragraphs 10 and 17. Here she was eager to persuade rather than dispute: The letter contained a lengthy explication of the Liddell-Scott affair and of her views about tolmêma. “All my cards are on the table,” she wrote. “[L]et’s go over the passages.” In the spirit of “spirited scholarly debate” that she so highly praises, Nussbaum went on to invite George to speak before a working group in law and philosophy that she was to conduct the following spring at Chicago. But George remained unimpressed — and, perhaps, unconvinced. “Yes, she invited me out to meet her fancy friends,” he says. “But my feeling was that it wasn’t just an honest disagreement over scholarly issues.” After showing Nussbaum’s second letter to a trusted friend, he became convinced by the friend’s interpretation: that the second letter was “a blatant attempt to suborn” him — to charm him into softening his views. He declined her invitation. George’s refusal to accept Nussbaum’s overture, his decision to linger over the question of her “honesty” rather than to engage her in open debate, isn’t all that easy to reconcile with his and Finnis’s commitment to “the discourse of truthful scholarship.” Even if you tend to agree with George’s and Finnis’s interpretation of Nussbaum’s statements during the trial, the stuff about blatantly suborning him may be a bit much. Your sense of Nussbaum, both in person and from what you can make of the Colorado affair, is precisely the opposite — that she’s not all that calculating. This is, in fact, something she’s rather proud of. “If they knew anything about me,” she says of Finnis and George, “they’d know that even when I got divorced, I didn’t have a lawyer of my own. I really don’t think litigation is a very appropriate project.” Nussbaum’s actions in Colorado and afterward have, if anything, an oddly ad hoc feeling about them, as if she can’t quite believe that Finnis and George are as intent on pursuing her as they are.
Something Nussbaum tells me suggests why — and helps to explain not just what happened in Colorado, but why it happened as it did. Talking with her, you get the impression that she went to Colorado thinking she’d be participating in some kind of seminar, with all the expansiveness and room for exegesis you get in scholarly debate. The narrowness of the discursive space she found herself in seems to have surprised and frustrated her. “I’d never been an expert witness before, and I’d never been a part of a trial before, actually, and I felt it’s not an ideal situation in which to engage in philosophical and scholarly arguments,” she says. “You know, to me, it was mysterious how one could be examined by lawyers who were not themselves trained in these issues. So that’s one problem.”
That problem was all the more unfortunate because an extended, far-ranging inquiry of the sort Nussbaum was interested in could have illuminated the vast complexities of the very issue that the state wanted to represent as being relatively straightforward — that is, Plato’s attitude about human sexuality. By keeping the argument narrowly focused on copulation (which Plato seems to have been less than thrilled with in general), the state successfully deflected discussion of what any reader of the Symposium and the Phaedrus knows: that the philosopher saw homoerotic affect, if not acts, as fertile ground from which philosophical inquiry can spring . At one point in her oral testimony, Nussbaum tried to open up a discussion on this point; but it was too late. The terms of the debate had been limited, fatally, to “what Plato thought” about sex acts.
As indeed they had to be. From a legal point of view, the question of homosexual desire isn’t especially relevant. After all, there’s no way to prohibit homosexual affect; you can only outlaw — and punish — acts. Perhaps the greatest irony of the Colorado case is that anything unequivocally positive that Nussbaum could have said about Plato’s attitude toward homosexuality is essentially beyond the scope of the law; whereas the Platonic and Greek attitudes about homosexuality that could have an effect on the living law — i.e., attitudes about sex acts — are negative pretty much down the line.
As attorneys, Cicchino and George seemed immediately to grasp this. “It probably wouldn’t have gotten them all that they needed,” George said, referring to a hypothetical, Symposium-based approach. Listening to him, you realize that the entire legal controversy was played out on Finnis’s and George’s terms: acts rather than affects, strict definitions rather than open-ended discussions. An unconscious frustration over this predicament colors Nussbaum’s testimony, perhaps; at any rate, it’s surely why the plaintiffs tried to have the moral philosophy stuff thrown out from the outset.
This sort of frustration is hardly unique to the Colorado Amendment 2 case. Indeed, it may occur whenever humanists, who are typically more comfortable speaking of interpretations than of proof, show up in the courtroom as expert witnesses. In 1979 the EEOC filed a sex-discrimination suit against the Sears, Roebuck company in which two feminist historians were asked to testify. (Sears’s witness was there to argue that there were “fundamental differences” between men and women that could explain disparities in Sears’s hiring record; the EEOC’s, to prove that disparities between male and female hiring were a consequence of employer preferences rather than employee choices. The judge sided with Sears.) In an essay titled “The Sears Case” that appeared in her book Gender and the Politics of History, historian Joan Wallach Scott tartly characterized what happened when humanists took the stand. “In a kind of parody of positivism,” she wrote, “they were forced to swear to the truth or falsehood of these generalizations that had been developed for purposes other than legal contestations and they were forced to treat their interpretive premises as matters of fact.” This appraisal suggests that there’s a generic problem with certain kinds of expert-witness testimony; at any rate, it helps explain — even if it does not justify — Nussbaum’s actions. On the other hand, Scott’s conclusion — that “only in a courtroom” could differing interpretations of highly complex material be taken “as proof of bad faith” — certainly goes a long way to accounting for Finnis’s and George’s reactions. Joan Scott’s comments about expert witness testimony echo another conversation I’d had in connection with the Colorado case — one that vividly restated Scott’s point. In defending Nussbaum’s behavior, Peter Cicchino talked about different “discourses” of the law and of scholarship. When it comes to expert witnesses, he suggested, it may be the discourse of persuasion, rather than the discourse of absolute truth, that ultimately matters. “Experts who are recruited to assist legal arguments argue with a different form of rhetoric,” he remarked. “And this,” he went on, referring to Nussbaum’s testimony, “is a different species of rhetoric. It’s not lying, and it’s not throwing out the ordinary canons of scholarly investigation. You may not agree that it flies on the level of scholarship, but given what we accept as reasonable or respectable or at least as admissible into the discourse of the debate as scholarly positions, her testimony certainly crosses that threshold. It is not, as the law says, prima facie an absurdity. It certainly passes the laugh test.”
Cicchino’s attempt to defend Nussbaum ends up backfiring, of course, if what you’re interested in is what Finnis and George say they are interested in — “the discourse of truthful scholars.” Among many scholars who prize philological meticulousness, what Nussbaum did in Colorado hasn’t passed the laugh test: “pooping all over yourself,” after all, is the stuff of low comedy, not lofty tragic earnestness. That Nussbaum’s eagerness to act with high moral seriousness should have led her to that most Aristophanic of all fates is an irony that only a Greek tragedian, perhaps, could appreciate; but the fact that Cicchino, an attorney, thought Nussbaum had passed the test confirms Scott’s conclusion: that the gap that separates law and scholarship may well be as unbridgeable as the gap that distinguishes tragedy from comedy.