Theories of citizenship have relied both explicitly and implicitly on the concept of "standing." This article challenges "standing" as a metaphor of citizenship by contrasting it with that of "injury." Examining Claudia Rankine’s Citizen elucidates a poetics of citizenship that both calls attention to what prevents many black citizens in the United States from standing and provides a basis for alternative practices of citizenship. Refusing a politics of ressentiment often tied to identification of social injury, Citizen prefigures a transformed citizenship of tarrying, listening, and transformative interruption of the racialized status quo.
This article explores the post-911 climate of security and the fear and paranoia the hidden face has revealed about Western vulnerability. The article contends that what underpins the preoccupation with the veiled woman is a desire to know and the anxiety of never knowing, what Jacques Lacan calls the Other’s question, the Other’s jouissance. What does the Other desire? This is a question that can never be known but belief in the law’s promise of security offers symbolic refuge. The article explores the Other’s question through the relationship between Western anxiety of the hidden face, and the promise of satisfying answers in the father-like hero and the imperative for law and order, in Christopher Nolan’s film The Dark Knight Rises. The film depicts post-911 security concerns in the conflict between masked villains threatening to destroy Gotham city’s legal and cultural order with another law, which tap into a climate of Islamophobia of Muslims as hidden enemies who threaten to dissolve the civilizational security of "our way of life."
This commentary interrogates, first, Justice Antonin Scalia’s assertion in Employment Division v. Smith that the law must uphold the belief-action distinction in order to preserve democratic norms and, second, the affect that this distinction had on Alfred Smith’s relationship with his faith. I argue that as Smith responded to the law’s repeated requests for justification as to why his religious convictions ought to exempt him from the criminal regulation of peyote, he experienced a profound sense of legal, political, and spiritual disempowerment – a disempowerment compounded by the erasure of the complexities of his faith in both the decision and aftermath of Smith. By way of making this argument, I bring Scalia, Smith, and Smith into sustained conversation with an unlikely interlocutor: Jürgen Habermas. As one of the leading legal and political theorists of religion in the late modern moment, Habermas articulates a vision of democratic life that at once venerates public religious expression and insulates law- and policy-making institutions from faith-based influence. Habermas’s vision is often characterized by contemporary political theorists and legal academics as the ideal to which all religiously plural democracies should aspire, but when his argument is considered alongside the experiences of Smith before the Court, a powerful disjuncture between theory and practice emerges. For although Habermas encourages religious individuals to adopt an epistemic stance of public reason and to engage in cooperative acts of translation in order to settle collaboratively the appropriate limits of religion as well as the law, I argue that, when applied to Smith, these methods of discursive engagement work to not only underscore the absolute primacy of the law over religion, but also to undercut Smith’s own understanding of his faith. I ultimately suggest that this mode of inquiry – that is to say, infusing theory with nuances gleamed from the everyday legal lives of ordinary individuals – generates new pathways through which to ameliorate latent social and political harms.
In a 2006 article, Duncan Kennedy identifies politics as the central dilemma of contemporary legal thought, but affirms that law is non-reducible to politics, which could be read as a partial retraction from the known coda "law is politics." This article suggests an interpretation of his refusal to conflate law and politics not in terms of disavowal, or a way of distancing politics from law, but as an attempt to carve out a space from where to think of the relational aspect between law and politics. This becomes necessary due to a current phenomenon which Pierre Schlag calls "dedifferentiation," where no distinction – and hence no relation – seems to be possible between law and other spheres of life. Opposing that conclusion, this article contends that engendering relations allows us to keep the terms connected in relative motion. The article then moves to describe four distinct modes of framing the relation between law and politics, which gives rise to very different disciplinary projects: law as politics, dating back to the legal realist movement; law as political science, which finds its current expression in empirical and quantitative research; law as political philosophy, generated by a renewed interest in "the political"; and law as political contingent, growing out of a similar interest but challenging the boundary-setting ambitions of philosophy. While the latter has not yet been adequately translated into law, I suggest as an alternative the work of Jacques Rancière, which declines to grant an aura of invincible ubiquity to any totalizing description, including neoliberalism’s attempt to present itself as a world system.
Until recently, transgender plaintiffs claiming sex discrimination were successful only when the discrimination was argued to be based on the plaintiff’s birth sex. Schroer v. Billington is often mistakenly understood to have been decided based on a more expansive understanding of sexed identity. Here, I call upon stasis theory to highlight how Schroer shifts the focus on sex away from sexed identities to structure, calling attention to how sex as system gives rise to discrimination. In so doing, Schroer ultimately refuses law’s responsibility for the maintenance of sex as system and locates the problem of sex with society.
This article argues that in both Joseph Andrews (1742) and Tom Jones (1749), Henry Fielding, who practiced law and wrote novels when both were undergoing significant transformations, takes what could have been archetypal scenes of rape and rescue and makes them illuminating explorations of how juries determine the truth. In presenting these attempted rape scenes within the implicit format of a contemporary rape trial, Fielding directs the reader to observe the missteps in the process of judicial decision-making, as well as the steps and missteps in his or her own determination of the trustworthiness of characters and their testimony.
In this article we engage with the writings of feminist scholars Sandra Gilbert and Susan Gubar, whose landmark work The Madwoman in the Attic critiques the image of the female madwoman or monster. We use Gilbert and Gubar’s thesis of the female monster as the primary analytical framework for excavating three variants of female madness as depicted in three films: madness as neurosis using Laws of Attraction; monstrosity as ambition using Michael Clayton; and madness/monstrosity as failed motherhood using I Am Sam. Our goals for this article are to explore the ways in which popular films featuring female lawyers channel the "madwoman/monster" metaphor; trace those characters in terms of neuroses, ambition, and motherhood; and argue for the possibility of reconfiguring the notion of "madwoman" as a valid and meaningful mode of female subjectivity that expands the field of possibilities for women lawyers.
International legal theorists posit historical moments when conceptions of justice are "constituted by, and constitutive of, the transition" (Teitel). This article uses the framework of transitional justice to understand the cultural work of political allegory in the spring of 1660 on the eve of the English Restoration. Insights from transitional justice (1.) help explain how Anglican royalists convinced wary Presbyterians to assent to a restoration of the monarchy; (2.) permit a new reading of Milton’s allegory of Sin and Death in Paradise Lost; and (3.) facilitate a more critical history of the framework of transitional justice itself.
This article explores the specific identity that the Office of the Prosecutor (OTP) at the International Criminal Court constructs and communicates to the outside world through its press releases. The mapping of the OTP’s essential claims about allegiances, the judicial mandate, and victims, highlights how the OTP imagines and manages its self-asserted moral authority. An in-depth case study of its framing of the turbulent developments in the cases against Kenyan officials shows how the OTP’s discourse is marked by a continuous repetition of goals and values while it simultaneously strategically shifts allegiances and externalizes failure in times of criticism.
This article raises the critical issue as to why there has been assumed to be a boundary to legal knowledge. In response to such an issue I focus upon the works of Jacques Derrida who, amongst other things, was concerned with the boundary of the disciplines of Literature, Philosophy and Law. The article argues that the boundary delimits the law as if the inside of a boundary to territorial-like legal space in legal consciousness. Such a space is not possible without the boundary. Derrida’s most insightful essay in this regard is his study of Franz Kafka’s untitled parable in The Trial. The parable represents a man who waits for an invitation to enter the Law until he nears his end. Derrida responds to the parable in his essay, "Before the Law." This article uses the parable and Derrida’s response to it as a starting-off point for a reconsideration of the boundary of legal knowledge. In this context, Derrida asks this question: "why is Kafka’s parable categorized as Literature or Law?" Such an issue depends upon the boundary of a discipline, according to Derrida. And that focus, in turn, asks whether the boundary pre-exists any text which is represented as "Literature" or "Law" or "Philosophy." This article claims, however, that Derrida’s theory presupposes that law, as a discipline, encloses a territorial-like space in legal consciousness. Each discipline possesses such a space. So too does the state and the university. Inside this bounded space, officials of the Law are free to consciously deliberate, reflect, and render decisions about the context of the Law. Analytically and phenomenologically before the boundary is taken for granted in an academic discipline, however, there is an unbounded non-law. The aporia of Derrida’s theory of the boundary of the Law is that the official or expert knower of the official language inside the boundary cannot assume the imagined boundary of legal knowledge without implicitly claiming to know the exteriority to the boundary. And yet, officials and expert knowers cannot know such an exterior extra-legality because, by virtue of the boundary as encircling a territorial-like space, knowledge is considered legal only when it exists inside the boundary. "The Law" is the consequence of the imagination of the expert knowers of the language as well as of the non-expert who believes in the bounded territorial-like space.
This article explores the intimate relationship between the body, sexuality, technology, popular culture, and incest law. I examine the nature, meaning, and affective resonances of representations of consensual incest, "accidental incest," and "technology facilitated accidental incest" in popular culture, pornography, and public service announcements. Drawing on a pastiche of affect theory; cultural and media studies theories of human-technological relations; queer, feminist and cultural posthumanist theories of embodiment, subjectivity and sexuality; and, Eve Sedgwick’s notion of a "reparative reading" I consider how these experiences and representations expand our emotional and erotic desires and alter our perceptions of our bodies’ parameters, their "proper" sexual objects and kinship relations, and their boundary violations. I argue that these affective residues pose a challenge to the "logic" underpinning the taboo’s intransigence, thus potentially contributing to the destigmatization and decriminalization of consensual adult incestuous relations.
This article considers debates about criminal responsibility for child soldiers as a lens through which we can view intersections between legal and political theory, legal and political practice, and interdisciplinary study of law. The case of Dominic Ongwen, victim and perpetrator of the same crimes, currently before the International Criminal Court, elucidates some challenges to the contemporary model of legal response to complex protracted conflict. The argument discusses how legal standards, political realities, theories of responsibility, and widespread assumptions about time and aging interact in this field of judgment, and aims to point the reader toward broader possibilities for retribution and recovery.
This article claims that the relevance of the ‘truth argument’ to free speech theory is based on an illusion. According to some critical perspectives this illusion consists in the false belief that a free press is a proper means for the mediation of social reality. The Critique of the Political Economy of the Press attributes it to the modes of production of the press in capitalist systems. Some cultural theorists, on the other hand, claim that the press cannot adequately represent reality because reality is non-representable. Building upon but superseding these approaches, this article affirms that the illusion of the free press is not merely a false idea of what the press really is. The illusion is – in contrast – an epistemological necessity: we need the illusion of a free press in order to retain the belief of a correspondence between the world that appears through the press and that same world as it is in itself.
This article places the court cases on cancellation of British citizenship in the context of the wider socio-political debates on citizenship. The political context demonstrates several potential arguments linking citizenship with rights which could have informed the court cases. However, an observable trend is that while some of the decisions flag various substantive rights, most fail to expand upon them. A formal, legal approach to determination of foreign nationality laws and statelessness is evident in the cases rather than a discussion of rights and belonging. This illustrates how legal formalism operates to exclude important aspects of the meaning and content of British citizenship. By avoiding close scrutiny of the rights framework in the national security context the current cases support a minimal view of citizenship as loyalty in exchange for protection. This is reminiscent of the concept of subjecthood from the days of Empire. The article argues that intense proportionality review of the differential enjoyment of substantive rights would be far more revealing of the meaning and content of British citizenship.
Aesthetic theory has the potential to develop a sensorium for the rational and arational forces of law. But the aesthetic knowledge of law is underdeveloped. That is why this article proposes a self-reflective sociological aesthetics of law that is capable of acknowledging human and social forces. The article unfolds its argument in three steps: first, it outlines the main approaches in the field of "law and aesthetics"; second, it connects these approaches in legal aesthetics with sociological and philosophical discussions on aesthetics; and, third, it suggests what distinctive contributions such a connection could make to jurisprudence and legal practice.
This article examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.
This article uses "Contact," an art installation by Olafur Eliasson, and "anti-zoom," an essay by Bruno Latour to reimagine the problem of corporate short-termism. It investigates what it means to propose, under the gaze of law, that directors and investors look to the "long-term" when pursuing corporate purposes. The article contests that it is possible to zoom, as if using a telescopic lens, between the demands of different time frames. It is only after an extended amount of "contact" that one is able to plot the relation of the short to the long term and make sense of it, a finding that problematizes the corporate self-governance of time. A way forward is imagined that makes the thesis of anti-zoom fit for renovating corporate law.
Rousseau’s embrace of ceremony and festivals in his Considerations on the Government of Poland demonstrates one way for republican political thought to develop a substantive treatment of civic virtue. Differentiating the narcissism of spectacle and theater that Rousseau critiques in the Letter to d’Alembert from the Considerations’ call for a generous affect, I demonstrate that the latter is compatible with a republican ethos premised on civic virtue and patriotic attachment to the nation-state. Rousseau argues for the instantiation of political practices that constantly cultivate political virtue and their associated affective orientations. His treatment of civic ceremonies in the Considerations should be read as an attempt to inculcate patriotic affect in republican citizens via constitutional measures.
In the years before the Missouri Compromise, petitioners who won their freedom suits based upon their ancestral links to white women, with land, could participate in the body politic. However, as Maryland legislators began to identify with the plantation south, they invented a legal understanding that would deny ambiguously freed blacks freedom, and justices would re-invent proslavery jurispudence, using the attachment clause, which would remand the previously freed into a status worse than before they had petitioned the court. Those who were freed and could claim citizenship in the years immediately after the American Revolution, by 1810, case law had changed and they lost many of their rights they once held. By using a slave state like Maryland as a microcosm, this research hopes to show the gradual way African Americans were not only denied claims to legal protections but, were deprived of their rightful place as agents in this new democratic experiment.
While many have pointed to Tocqueville’s admiration of the jury system as a schoolhouse for civic participation, I argue that Tocqueville sets up, but forgoes, the opportunity to make jurors empowered enough to counter the ills of democracy that he enumerates, specifically the tyranny of the majority and soft despotism. The education of American women, Tocqueville remarks, prepares them to be independent, confident and astute observers of social conditions, but these characteristics are eclipsed by their domestic responsibilities as wives and mothers. Juxtaposing two sections of Democracy in America that are normally thought of separately (juries and women), I show that Tocqueville falters in his perception of the radical enfranchisement of jurors and women because of his fears about the instability of democracy (with its delusions of equality) just as he provides some of the best arguments for the importance of their political interventions.
This commentary assesses the state of scholarship on law and narrative and argues for a more holistic approach to the topic. Narrative and law do not encounter each other accidentally but are ineluctably intertwined. Law is a dominant narrative form in the modern world; narrative suffuses not just testimony but all legal practice. We urge scholarship that recognizes law and narrative as part of the same socio-cultural project of making the world.
This article argues that the narratives told about the Great War helped to establish the bombardment of civilians during World War II as an ethical, military and legal possibility. It shows that the literary representation of the Great War was antagonistic towards civilians, suggesting that a fairer war would affect the entire nation. Military strategists accepted this premise and planned for a future war that would be directed against civilian populations. International lawyers also adopted this narrative and, constrained by it and their disciplinary conventions, found it hard to posit any strong legal or ethical objections to aerial bombardment.
This study considers Chief Justice John Marshall’s famous opinion in Marbury v. Madison (1803) as a vehicle for investigating contemporary interpretations of both John Marshall and the concept of constitutional legitimacy. In it, I examine how Marshall’s opinion located legitimacy in several aspects of the Constitution, including its protection of rights, its embodiment of the consent of the governed, and its ability to organize and direct national politics. Thus, I suggest that Marshall offers a more comprehensive theory of constitutional legitimacy than many recent conceptualizations. Yet more than simply uniting existing approaches to constitutional legitimacy, I demonstrate that Marbury offers a unique theory of the Constitution’s moral legitimacy as well. This analysis of Marbury invites a new appraisal of Marshall as not only a legal and political thinker, but also a constitutional theorist with a distinctive understanding of the American Constitution and its role in the early years of the republic.
This article takes violence in the law seriously, scrutinizing three sites engaged in violent subject production and resistance: the Guantanamo Bay detention center, supermax prisons in the US, and European refugee camps. The concepts of martyring and torturing serve help to untangle the dynamics of the law’s violence. The violent subject production techniques used in these sites are discussed as torture practices that aim to reproduce the dominant subjectivity. As the law has often proved unable to fully address the situation of the detainee, the prisoner, and the refugee, hunger striking as martyring is discussed as a way to deconstruct hegemonic subjectivity and to force the law to face its own violence.
Taking an interdisciplinary approach the article offers a fresh legal historical understanding of the Fifth Story of the Eighth Day in Giovanni Boccaccio’s Decameron. Detailed analysis of the tale reveals much about the realities of the administration of justice in fourteenth century Florence and contemporary expectations of those exercising judicial authority. In making apparent the expectation that judges would look and act in a certain manner, the article suggests that Boccaccio’s story can be interpreted as offering an insight into the extent to which public perception of a man’s identity as a judge was dependent upon his appearance and attire.
In the formative years of the modern First Amendment, civil liberties lawyers struggled to justify their participation in a legal system they perceived as biased and broken. For decades, they charged, the courts had fiercely protected property rights even while they tolerated broad-based suppression of the "personal rights," such as expressive freedom, through which peaceful challenges to industrial interests might have proceeded. This article focuses on three phases in the relationship between the American Civil Liberties Union (ACLU) and the courts in the period between the world wars: first, the ACLU’s attempt to promote worker mobilization by highlighting judicial hypocrisy; second, its effort to induce incremental legal reform by mobilizing public opinion; and third, its now-familiar reliance on the judiciary to insulate minority views against state intrusion and majoritarian abuses. By reconstructing these competing approaches, the article explores the trade-offs – some anticipated and some unintended – entailed by the ACLU’s mature approach.
The 1963–64 trial of Nelson Mandela and other leading members of the liberation movement was a political trial par excellence. In the courtroom, the Apartheid government was trying the accused for the crime of sabotage but in the court of public opinion, it was using the event of the trial to produce images and ideas aimed at slandering and discrediting the African National Congress (ANC) and the movement for a free and democratic South Africa. The defendants, on their part, used their trial to denounce the racist policies of Apartheid and to outline their vision of a post-Apartheid society. In this article, I want to read Nelson Mandela’s counter-historical mobilization of lived experiences and memories of Africans – the scars, chains, the rage and Apartheid’s unlivable juridical bind – as an act of epistemic resistance that re-opened epistemic battles and effected epistemic renegotiations. By submitting himself to the very law he denounces, strategically positioning himself at law’s aporetic sites and moments – those most fragile frontiers that are so heavily policed from transformative interventions – he bears witness to Apartheid’s rotten foundation. Drawing on modes of critique that are performative and genealogical, those that are possible within law’s frameworks and categories, Mandela both obeys and defies the law, uses and critiques it, resists and claims authority, at the very site he is called to account for charges of sabotage. The article will show, how, by attending to contradictions, discursive dynamics, and points of tension, Mandela the accused creates conditions of possibility for forms of critique that register without being co-opted or domesticated by the discourse and the system it resists.
In the aftermath of anti-Muslim violence in Gujarat, India, in 2002, NGOs and activists encouraged survivors to testify against Hindu perpetrators in court. Through an ethnographic analysis of a criminal trial in the lower courts of Ahmedabad, I show how state officials and perpetrators used legal procedures to transform Muslim survivors into unreliable witnesses in the courtroom. These formal and informal techniques to destabilize Muslim witnesses are best understood not as byproducts of the law’s failure to address mass violence, but as a legal performance of Hindu supremacy. Procedural and positivistic approaches to the rule of law failed to address the law as a performance embedded in the context of Hindu nationalism in Gujarat. Not only do such trials discredit witnesses of mass violence, but they also give a legal form to the subordinate status of religious minorities within a majoritarian political regime.
This article offers a substantial new interpretation of Aeschylus’ Oresteia, one of the most important literary texts to deal with the question of the rule of law, and one of Western jurisprudence’s founding documents. Perhaps in part because of it has fallen under the shadow of Antigone, the play has tended to suffer from a reductionist reading in which legal reason triumphs over the passions. The present article rereads the text drawing on recent scholarship on Aeschylus’ work. It argues that the central figure of the Furies has been misunderstood: they are not simply expressions of violence and passion; on the contrary, they are the most legalistic of all the figures in the play. The model of judgment introduced by Athena in the resolution of Oresteia does not pit law against emotion, or feud against process, but judgment against law. The trilogy begins by presenting the uncertainty of language as law’s curse, and the certain application of the law its cure; it concludes by radically reframing the question. Now the illusory certainty of law is the curse – and the uncertainty of language its cure. Athena’s way positions legal judgment as something more than the mere following of rules. The article then goes on to show that this approach not only casts a new light on orthodox jurisprudence. It is of profound relevance to the work of Giorgio Agamben and the theory of sovereignty he has famously expounded in Homo Sacer. What ultimately separates Athena’s rule of law from mere decisionism or Agamben’s executive and unlimited sovereignty are the external constraints to which she purposely submits herself. Athena demonstrates a vision of judgment as a participatory and transformative process. Above all, she insists on the essential role of public legal argument and public accountability in a discourse of legal legitimacy, which is not simply limited to judges or particular legal decisions. On the contrary, Athena connects the rule of law to a continuing discussion of legal values and judgments which is never finally settled, and in which all of us, as citizens of Athens, are participants.
The discourse of dignity constitutes one of the battlegrounds in the Supreme Court’s Obergefell decision imposing marriage equality. Whereas Justice Kennedy’s majority opinion celebrates the dignity of the institution of marriage, Justice Thomas’s dissent situates dignity outside of the purview of the state. I argue that a queer reading of Obergefell as response to the systemic racism in the US requires the theoretical position implied in Thomas’s view by mobilizing first a Kantian distinction between active citizens, passive citizens, and "savage" ungoverned bodies, and second Judith Butler’s politics of vulnerability.
This commentary shows the advantages of a postcolonial approach to law and literature, using Nuruddin Farah’s novel Maps as a suggestive case study to examine Somalia’s laws and literature and the colonial context embedded in both. Whereas Western and European juridical systems are often silent referents in law and literature scholarship, my reading of Maps also places it in dialogue with Somali customary laws and culture. I conclude my commentary by bringing together the history of Somali customary law and my reading of Maps to offer methodological suggestions for law and literature given this particular postcolonial perspective.
Is human dignity a useful political concept for us today? Some think it is useful precisely because it can mean whatever one wants it to mean; others think it is useless for that same reason. It is certainly productive to acknowledge its elusiveness. Perhaps we can only understand fully what dignity means at instances when society fails to protect the dignity of its members. Perhaps we only know dignity in the face of indignation. Against the background of the ambiguity of the concept, I propose that dignity is democratized when resistance to oppression is considered a fundamental right, defended under the umbrella of human dignity.
Storytelling pervades almost every aspect of the law. Many narrativistic legal elements, however, have in fact been little more than historically transitory. Given the precarious status of narrative at law, I argue we should focus instead on one of the most historically consistent acts of legal storytelling: the judicial opinion. Here I examine in particular the invocation of precedent in legal opinions, what I call "judicial emplotment," as an almost archetypal act of formalized storytelling. As I go on to argue, the courts justify legal outcomes by invoking precedent, thereby placing decisions within a specific and heavily formalized legal-narrative structure.
Conventional legal responses to street art have tended to characterize it as a problem that is best dealt regulated through criminal or property law. This is not necessarily perceived of as a problem by street artists who have actively sought to situate understandings of their work outside of the law. But attitudes are changing. Street art is increasingly seen as having commercial value, enhancing the cityscape, creating new local art markets, attracting tourists, and contributing to the gentrification of impoverished areas. The result is that conventional ways of conceiving of street art have begun to pose new challenges to concepts of crime and property. Drawing on an observational study in London, this article proposes a new theorization of the legal problems posed by street art that pays close attention to the sensual experience of encountering it in the city and to street art as performance rather than artefact.
The installation of Mark Wallinger’s State Britain in the Duveen Galleries of Tate Britain recreated Brian Haw’s protest opposite the Houses of Parliament, which had largely been dismantled by the police under the Serious Organised Crime and Police Act 2005. Wallinger’s work bisected a boundary created by the Act inside which the police could be given greater than usual powers to control demonstrations. The intersection exemplified how, when understood in terms of the performative after Jacques Derrida, art may unsettle the ways in which both the law and aesthetics work to protect the political establishment.
Bringing together legal, literary, and cultural studies, this article builds from a close reading of madness in William Shakespeare’s play Hamlet to some psycho-social theories of malingering and the insanity defense in the modern United States. The basis of these theories is the notion that feigned madness – whether purposeful malingering or a failed insanity defense – often signifies actual madness of a lesser sort. When someone is found to be "faking it," however, that discovery can result in a widespread assumption of mental health in the person on trial, an assumption that often turns out to be wrong.
Pierson v. Post is widely known to both jurists and law students in relation to the question of property rights in wild animals. This article builds on Pierson v. Post and its literature by analyzing the question of ferae naturae in the context of settler and indigenous conflict on the Australian frontier in the nineteenth century. By examining both case law and the cinematic representation of the conflict over property rights on the frontier, it is argued that an understanding of the legal issues relating to ferae naturae is enhanced by an appreciation of the complexity of cross-cultural communication.
In this reflection, I take up the contradiction of calling for justice to be delivered from the same institutions that, under contemporary conditions of settler-colonial and white supremacist hetero-patriarchy, are often themselves the sources of injustice. I argue for an orientation toward justice that grounds itself on its condition of failure, drawing on Beauvoir’s existentialist ethics and queer theory’s embrace of failure as a resource for critical analysis and liberation. From an abolitionist perspective, I thus call for thinking about justice as failure in order to better hear the voices and respond to the demands of those most marginalized by carceral logics and practices.
In this article, I wish to ask about the dignity of weapons, the kind of elevated worth weapons appear to have acquired despite (or because) of their role in the production of indignity, a worth which, perhaps not as paradoxically as it may otherwise appear, constitutes (or rather de-constitutes) human dignity. I shall not take Kant as my guide, though, but the other K, namely, Franz Kafka.
Quotation is ubiquitous in American legal discourse, whether in academic scholarship, legal briefs or judicial opinions. And yet, although quotation is a common object of scholarly attention, there is very little scholarship on quotation in legal discourse. This article addresses this lack by exploring the United States Supreme Court’s quotation practices. Applying Herbert Clark’s model of joint activities, I argue that quotation in judicial opinions is one of the most important mechanisms by which the Supreme Court negotiates legal meaning and preserves its moral authority. Judicial quotation both allows the justices to make rhetorical claims that do not match legal substance and provides a site for the justices to negotiate the meaning of existing language and, therefore, the law itself.
In order to have a more nuanced conversation about the role and size of government, we should attend to our diverse passional experiences of bureaucracy. We overlook our affective experience of bureaucracy in our usual focus on bureaucracy’s impersonality and passionless rule and on cost-benefit analyses of individual regulations. To the extent that we consider bureaucracy’s passional effects, bureaucracy is cast as something that saps passion – understood as energy and vigor – from our lives. Attention to the variety of passional experiences of bureaucracy reveals neglected and salutary aspects of life within and under the shadow of bureaucracy. For example, particular bureaucratic affects are arguably a pedagogy in the realities, compromises and burdens of politics, and may enhance – in desirable ways – our solidarity with those who share our polity.
This article accords with recent liberal defenses of the political significance of dignity and the value in distinguishing between assaults on dignity and assaults on the body aimed at causing physical pain. However, it breaks with liberal individualist approaches in three ways. It shifts its focus of attention from the state to social groups as key sources of dignity injuries; from abstract individuals to collective identities as key targets and sufferers of dignity injuries; and from public points of contact between political regimes and their citizens to interior, intimate, and informal social spaces – some impenetrable by and/or unsuitable for legal intervention – as important theaters in which insults to dignity and struggles against those insults are played out.
This article argues for a shift in how we relate to legal thought, practice and experience. It argues for a specifically acoustic jurisprudence, an orientation towards law attuned to questions of sound and listening. The argument is made in the abstract before moving on to an example intended to establish the political stakes of the intervention. My example is the Long Range Acoustic Device, invented at the turn of the century and used increasingly today by military and police forces as a way of amplifying the authority of the state and, in some instances, enacting serious acoustic violence.
This article examines how socio-legal performance in the public realm might operate to question, expose and exploit social and legal norms that can exist in the everyday. With the tactical deployment of humor – and a particular focus on how the Treaty of Waitangi (1840) may continue to operate as a cultural/political force in Aotearoa/New Zealand today – this article explores the contribution that socio-legal artistic performance might make to reveal the tensions, inherent in the 1840 agreement between British colonizers and Māori, as continuing to affect the very foundations of law in Aotearoa/New Zealand and its everyday contemporary articulations.
The discourse around the merit of public architecture often depicts the architect as having complete autonomy over its design. This belies the constraints placed upon creative solutions by design briefs or the intense negotiations between the State, the architect and the various stakeholders involved in the construction process. Through a case study examining the construction of a courthouse, we demonstrate the difficulties in pursuing improvements to the phenomenological experience of justice within these constraints. It reveals the need for architectural knowledge to be shared for the common good in order to resist practices that replicate existing conditions and inhibit innovation.
Widely derided for its materialistic culture of ‘‘cheap knock-offs,’’ the growing Chinese middle class has struggled to wean itself from the re-production and status-based consumption of counterfeit goods and Western aesthetics. From the Chinese re-production of canonical icons of Western modernity, to the more recent copying of the aesthetics of contemporary architecture abroad, the legality of copying has centered on the visual like-ness of a copy to its original. However, this preoccupation with visual aesthetics has suppressed more productive questions about the critical cultural functioning of copying in better understanding what a copy says about its copier and Chinese national identity.
While courthouses often reveal a profound gap between the professed ideals of justice and their delivery, their designs supposedly symbolize the authority of the community over the individual and lend legitimacy to the discipline occurring within. This article considers what happens to the experience and legitimacy of justice when legal participants no longer enter the courthouse, but appear remotely by videolink. Drawing on empirical evidence regarding the use of videolinks in Australian courts, this article reveals current iterations of distributed courts ignore the important symbolic function of the courthouse as the home of justice and the presence of law.
This article theorizes the politically productive aspects of the term ‘‘crimes against humanity’’ in contradistinction to normative political theories that conceive of international law as applied ethics and to Schmittian approaches to law as the medium of depoliticization. I argue that the criminal against humanity must be distinguished from the enemy of humanity, because crimes against humanity provide a universal yet minimal normative recognition to the offender within a global legal order. Analyzing the distinct patterns of agency and authority that arise from rights and crime respectively, I outline the communal dimension of the criminal law and discuss the performative claim to humanity as a global body politic that attends pronouncements of crimes against humanity by international authorities.
The "affective turn" presents a number of important challenges to law and the humanities. One such challenge concerns our ability to resist the temptation to romanticize the inhuman. Theorists from Nietzsche to Massumi have been so taken by the emancipatory promise of affective intensity that they risk relinquishing responsibility for freedom’s necessary social, political, and legal pre-conditions. Our responsibility for narrative construction and narrative choice carries with it an ethical imperative to understand the orchestration of affect. Downplaying the importance of reflective consciousness (including our capacity for prudent judgment) in favor of spontaneous affective events threatens to rob freedom of its meaning and open democratic societies to grave risks.
Analogical reasoning is common in legal writing, just as analogies are a part of everyday life. Indeed, they may be inescapable features of human cognition. Used well, analogies illuminate the writer’s reasons and persuade the reader. Used poorly, however, they may obscure or even replace the precision and detail in reasoning that is crucial to the development of law. Without entering the ongoing debate about the nature of human thought, this article explores some of the dangers present in the relationship that analogy maintains with law. In particular, the article examines the risks inherent in analogizing across a technological or social divide. The article concludes by noting the long-term consequences of analogies and metaphors in shaping thought and, therefore, society.
Prisoners increasingly appear in court from spaces of incarceration, linked by video technologies, and remote from the physical courtroom in which the legal proceedings take place. During these video-linked court appearances, prisoners are immersed within the oppressive aesthetics of detention, rather than in the dignified courtroom we idealize. This article examines prisoners’ sensorial experience of prison video studios and the impact such space has on their encounters with law. Video link technologies are examined as symptomatic of the sensory bias to sight that ignores the significance of the other senses, diminishing prisoners’ opportunities for engagement with and expressive participation in legal procedure.
Truth Commissions have come to be regarded as a turning point for post-conflict and post-authoritarian states in transition. In this article, I argue that truth commission testimony, broadly defined to include artistic, cultural, and media productions, must be experienced as forms of affective materiality over discursive inscription. Using as an instrumental case study the Truth and Reconciliation Commission of Canada (2008–2015), I conceptualize testimony as a necessary re-fictionalization of the past, present, and future of a nation. The truth commission discourse, especially in Canada, works to protect the perpetrators by (1) disallowing their identities from entering into the public record, and (2) creating bystanders out of those perpetrators that allows for an innocent and ineffective witnessing. The push for forgiveness harnesses an imperative for truth commissions to idealize and idolize the emotional moment of testimony. It is imperative to resist the spectacle of confession and testimony. But the witness must not be discarded. The witness must be found in those cultural institutions beyond truth commission events to include the aesthetics of reconciliation.
This article considers how greater attention to the memory of resistance might alter the parameters of contemporary efforts to reckon with systematic abuse. I take the Eichmann Trial, which featured numerous testimonies on resistance, as a point of departure for considering the implications of distinctive ways of remembering resistance. The article begins by examining how narratives of heroic resistance were integrated into the trial, and considers the responses of two prominent commentators: Hannah Arendt and Haim Gouri. Arendt’s comments offer insight into how exemplary resistance informs the recovering of judgment and agency as responses to complicity, whereas Gouri’s account underscores the role of "unheroic"and anti-heroic testimony in addressing the limitations of exemplars.
For several years now, a group of prominent religious liberty scholars in the United States have been defending what they call a "live-and-let-live" approach to accommodating religious dissent in the era of marriage equality. The proposed approach calls on the state to avoid taking sides on contested moral issues when individuals of faith claim that their religious beliefs require them to refrain from facilitating marriages by same-sex couples. The objective, it is argued, is to adopt policies that allow both sides to live according to their values. This article critiques the "live-and-let-live" solution to religious exemptions from LGBT (lesbian, gay, bisexual, and transgender) equality measures by focusing on questions of harms. It argues that the proposed approach calls for a weighing of harms that is largely unprecedented in the history of American antidiscrimination law and problematic in its own right. The article also explains that the approach is premised on questionable assumptions and predictions about the absence of any meaningful harm to LGBT individuals when business owners provide goods and services to the general public, but refuse to do so for same-sex couples on religious grounds.
My focus is evidence. I understand this concept to be the marshalling of facts (data, etc.) in support of some position. This might be a district attorney presenting evidence to a jury that O. J. is guilty, or a literary critic arguing that Hamlet suffered from an Oedipus complex. But what is the logical connection between the relevant facts and the position they are being used to defend? How are we to distinguish successful cases of the marshalling of evidence – good arguments – from unsuccessful cases – weak arguments? I defend what I take to be a very commonsensical and pedagogically useful theory of [good] evidence. I argue that this view, inference to the best explanation , captures most, if not all, appeals to evidence in everyday contexts, as well as quite specialized domains like science, detective reasoning, and criminal and civil evidence. It also nicely encapsulates the sort of evidence that jurists and critics marshal in defense of particular readings of legal and literary texts. Appeals to evidence in the complicated worlds of teenage romance, detective fiction, criminal law, literary interpretation, and constitutional law all nicely fit the structure and evaluative methodology of inference to the best explanation. But only the diagnoses of lipstick stains, murder victims and bloody gloves can be held to the standards of correspondence and metaphysical realism. Literary and constitutional texts can be explained, and can be better or worse explained, but the truth or falsity of these interpretations is firmly in the realm of the coherence theory.
The last forty years have seen the development of greater labor force attachments by both pregnant and postpartum women. These developing attachments have forced courts and legislatures to reimagine the pregnant body as one that is not in a state of watchful waiting, but rather is engaged in hard labor. The Pregnancy Discrimination Act (PDA) of 1978 is the key statute that protects these women not only from adverse employment actions motivated by bias, but from those motivated by paternalism as well. But the meaning and scope of the PDA has been a source of great controversy in recent years, particularly when applied in the context of accommodation claims. This article considers the Supreme Court’s recent ruling in Young v. United Parcel Service, in which it established a new test for evaluating an employer’s denial of an accommodation to a pregnant worker, despite offering it to at least some other employees with comparable restrictions. In a ruling for the plaintiff, the Court made it harder for employers to be so dismissive of pregnant workers’ requests for accommodation, making it more likely that the pregnant women will, while engaged in hard labor, be treated like everyone else.
This article offers a close reading of Hannah Arendt’s Eichmann in Jerusalem: A Report on the Banality of Evil. It argues that in this text, Arendt consistently, even obsessively, evaluates the legal and moral challenges posed by Eichmann’s trial through the relationship between exception and rule. The article contends that the analytical lens of the exception allows us to appreciate the perplexities that Eichmann in Jerusalem presents – some fifty years after the book’s publication – from a still uncommon perspective, and enables us to attend in new ways to Arendt’s own suppositions, propositions, and contradictions in this text.
This article reveals how the study of medieval English history, in particular its legal institutions, was remodeled and represented by Sir Francis Palgrave in an imaginative and constructive historical narrative, through the pioneering use of the national records. It demonstrates that, beyond the obvious attributes of an equivocally gothic style, the significance of Palgrave’s work lies in its innovative combination of technique and method. The argument of the article then focuses on the significance of Palgrave’s work: of his methods and theories, and how Palgrave’s interpretation of early English legal history was a vivid and innovative example of drawing conclusions from the analysis of the development of legal principles – specifically, those relating to the influences of the demographic, legal and institutional vestiges of the Roman empire on English law. His interpretation exemplified inventiveness and insightfulness of theory, matched by methodical deployment of the archival evidence to which Palgrave had unprecedented access. In Palgrave we will see the imperial idea of "authority" at its acme, before it was eclipsed by the ideas of the Germanist school and with that a reemphasized credence placed on the Common Law historiographical tradition from Coke, through Hale and culminating in Blackstone. The implications of Palgrave’s work have long been underrated, so in conclusion it is the purpose of this article to re-evaluate and revise that underestimation.
Seeing that political communities are often believed to have an imaginary constitutional basis, this article raises the question how we – citizens of those communities – relate to this imaginary basis, and to the legitimacy it claims. As the answers already given tend to focus on the instrumental, here it is argued that insights from fiction theory can be used to shed new light on the mechanisms involved in our ability to adhere to the idea of there being an original (normative) foundation of the state. Drawing from Johan Huizinga and other play-oriented thinkers, the constitutional fiction is reconstructed as a social situation in which the existence and hegemony of a foundational normative framework is pretended to be the case. It is argued that our ability to adhere to this public form of pretense stems from the capacity to have separate spheres of consciousness: one to go along in the enacted world, and one to generate our own personal response to it. In the interaction between these two spheres of consciousness we develop our normative commitments and collective identity, while ascribing them to an imaginary constitution.
This article considers the impact of Ernst Kantorowicz’s The King’s Two Bodies for understanding how claims of sovereignty are authorized and legitimated in a secular age devoid of the divine grace that underwrites the sovereignty of the king in medieval times. Through a reading of Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013), a case concerning the custody of a child of Cherokee descent, it demonstrates that sovereign bodies are constituted, (dis)placed, and recognized through an appeal to biopolitical logics. This insight is important as it invites a form of rhetorical critique that might account for the conditions in which sovereign claims fashion the terms of political community.
Reality television in the United States has often been understood to reinforce the punitive and neoliberal turns American political culture took in the late twentieth century. But in this article, we examine how it can work to unsettle as well as naturalize punitive and neoliberal ideologies. We do so via a case study of To Catch a Predator, a reality-based television program documenting the detection, legal apprehension, and extralegal punishment of adults seeking sex with teenagers. Both the appeal of the show and its susceptibility to the backlash that ultimately shut down its production, we argue, lay in a tacit invitation to viewers to imagine themselves as predators as well as parents or prosecutors.
Testifying to sexual assault can re-traumatize a victim-survivor. This article applies a psychoanalytic framework to existing debate to provide a new interpretation as to why this is still the case despite legal and policy reform. The trauma of testifying to sexual assault is located at the same site where a victim-survivor imagines the law understands and transforms an experience of sexual assault. The sexual assault victim-survivor’s testifying voice is both a medium for fantasy and a violent disruption to it, paradoxically constituting and imposing a violence to their subjectivity. Violence is inflicted through the testifying victim-survivor’s act of speaking, in directing their voice toward the law, and in the ideology associated with sexuality which coats voice and informs fantasy.
As emblematic productions of folk legality, coins are significant in viewing the constitutive relationship between law and politics. Additionally, images on coined money legally manipulate our American cultural historical recollection. The harsh historical reality of the United States in terms of racial violence, imperialist conquest, and the elimination of native peoples is dim against picturesque images of palm trees, Magnolia blossoms, and sailboats. Because these historical controversies legally and socially shape who we culturally are today, that which is valued and semiotically crafted by law should reflect these important and defining struggles in American history. Legal images that appear on coins are visual connections to an American legacy of confronting injustice that is omitted by the bucolic and innocently trivial legal depictions of American history that these coinage programs promote. In this article, I consider the ways in which coined images represent a visual crafting of law through which political memory is selectively depicted. Through a legal semiotics framework of symbolic articulation and analysis, I assert that the coinage issued under the United States Department of the Treasury’s Coinage Programs since 1999 depicts the politicization of folk art as a type of legal currency that illustrates and memorializes a nationalistic cultural identity. Here, coins literally become specialized portrayals of American history in which discrimination, conquest, and injustice are intentionally visually unrepresented in favor of pictures of trees, animals, mountains, and even fruit. Through such legislation as The 50 States Commemorative Coin Program Act of 1997 [Public Law 105-124], The Native American $1 Coin Act of 2007 [Public Law 110-82], and The District of Columbia and United States Territories Quarters Program under the Consolidated Appropriations Act of 2008 [H.R. 2764], coins are being issued as legal statements of who we as Americans are and where we have come from.
This article examines the legal, moral and social injustices resulting from women not having the right to serve as jurors, in the context of Susan Glaspell’s "A Jury of Her Peers." I demonstrate how Glaspell provides a fictional window into moral justice based upon jury nullification, exercised by disempowered women, and I establish how Glaspell’s narrative helped to lay the foundation for legal recognition of women’s rights to serve as jurors, and acceptance of Battered Woman’s Syndrome as a defense. I conclude that Glaspell was an agent for change, whose work contributed to equal justice for women under law.
This article seeks to clarify the meaning of marriage for Millian liberals by examining marriage in the context of the nineteenth century common law. JS Mill argues that the family can become a school for free institutions. He identifies a ‘‘morality of justice’’ that must replace chivalry or submission as the normal mode of gendered relations. By using pamphlets, speeches, and legal commentaries, it is possible to explain the meaning of Mill’s ‘‘morality of justice,’’ and also to distinguish his liberal conception of marriage from its common law foundations and from sacramental approaches that define marital dissolubility and flexibility differently.
This article argues that in England over the course of the eighteenth and nineteenth centuries, the understanding of adultery as a tort was complicated by an accompanying discourse of what I will call "quasi-criminality." Specifically – while formally trivialized – adultery remained linked to a threat to English kingship. The tension between the weight of relevant monarchical history and the absence of contemporary criminal enforcement created a new cultural narrative about adultery which attempted, itself, to serve a penal function. Examining the development of this discourse alongside the relevant law illuminates the complex social process through which public and private wrongs become distinguished – or conflated.
This article interrogates the specter of resistance in the writings of Giorgio Agamben and Michel Foucault, arguing they open up divergent ways of theorizing resistance to power. This article’s focus is on both philosophers’ use and interpretation of the dispositif, or apparatus, which controls and orders subjects, and which is the target for forms of resistance. Whereas for Foucault resistance is a practice existing as a transcendent possibility for any individual, Agamben reads such transcendent forms of resistance as ultimately reinforcing the control of the dispositif, arguing that only a turn to ontology and immanent politics can resistance be meaningful.
During the three years in which Gordimer drafted The House Gun (1998), she relied heavily on South African case law, international jurisprudence, and the discerning editorial eye of Nelson Mandela’s lawyer, George Bizos. As such, my reading of The House Gun brings new attention to the novel’s engagement with the reconciliatory efforts of the Truth and Reconciliation Commission and the juridical work of the South African Constitutional Court to redefine the terms of reconciliation in the country. Through language in a fictional courtroom, Gordimer’s novel turns the process of repair into one that is always immediate and ongoing. It shifts the primarily retributive focus of the law into a reparative and open-ended endeavor. Justice no longer is something that "is done," Gordimer explains, but rather is a process equally conceived by law and literature. The novel depicts harm in terms of the interpersonal, spatial, and legal fractures it creates. In this way, it expresses reconciliation in the Commission’s language of bridging an injurious past with a present always open to healing.
This article deals with three elements of the adversarial judicial process, conventionally viewed as expressing justice, and examines their meaning in the Hollywood courtroom film genre. These include the space (architecture and design) of the courtroom, the element of the lawyer’s duty, and the narrative of the legal process. We suggest that characteristics of the actual adversarial judicial process, accepted as showing how justice is achieved, are actually presented in a critical manner in courtroom films, and are often used to indicate the difficulty in attaining justice through the judicial process. This finding is surprising, given the law’s emphasis on the characteristics of justice as part of its social legitimization, and in light of the central tendency of genre films to support existing social institutions, the institution of the law among them.
This article explores the abolition in 1846 of the deodand – the object or animal declared responsible for death by an inquest jury – and its relationship with the family of the deceased. Drawing on the work of Jacques Donzelot, it argues that the deodand brought contingency into the heart of law, and that its replacement with a legal right to compensation for dependents was a move to rationalize the investigation of death. This rationalization had consequences; limiting the place of the unruly community, centering and regulated the family, and disconnecting the inquest from the material of death.
This commentary reflects on two very different revivals of Ernst Kantorowicz’s The King’s Two Bodies: A Study in Medieval Political Theology in the field of early modern studies, the first during the heyday of New Historicism and the second in the current post-New Historicist moment that is still defining itself. The first revival focused on the literal meaning of king’s two bodies, the second on its figurative and fictional nature. The first trained its lens on the doctrine’s absolutist potential, the second on its constitutionalist strain. To account for these political and literary shifts I turn to a larger trend in literary and humanistic studies, the desire to move away from ideology critique and to reframe the humanities in terms of its capacity to articulate "a new vision for human community," to borrow Victoria Kahn’s phrase. I argue that the peculiarly ironic status of the king’s two bodies offers a way to intervene in this debate, which I term "the humanities’ two bodies." The commentary concludes by offering Laertes’ popular rebellion in Hamlet as a brief test case of the limits and promise of this most recent turn in the career of Kantorowicz’s protean text.
Criminal courts in culturally heterogeneous societies around the world face the challenges of a multicultural reality. This study explores how judges silenced the cultural difference issue in cultural conflict cases. Over fifty years of Israeli criminal judicial discourse in cultural conflict criminal cases was analyzed. The qualitative analysis reveals the different ways in which the legal discourse silenced the cultural issue, including different ways to refrain from talking about cultural background, and diverse ways to mask the cultural issue.
In this article, I analyze the legal discourses surrounding three scientific techniques – lie detectors, brain scans, and narcoanalysis – that are currently being used in criminal investigations in India. I focus on two main themes: First, I analyze the significance of these techniques emerging in a context where custodial torture and deaths occur routinely; Second, I explore the role of the courts in assessing the techniques that were presented as an explicit shift in the mode of state power. I suggest that the legal discourses can be read as indicative both of a liberal state’s desire to modernize as well as its specifically postcolonial nature. I argue that contrary to the contention of the courts that the use of these techniques would replace torture in investigations, the edifice defended by the courts actually reflects a flawed attempt at an art of government.
In Commonwealth of Pennsylvania v. Jamal Knox and Rashee Beasley (2013), the defendants were charged with making "terroristic threats" after their rap song "F* the Police" appeared on YouTube. This unique case (similar only to U.S. v. Elonis of the same year) exposes significant issues within the law: ambiguity surrounding the law’s definitions of threat and the problematic assumption at court that rap as evidence is a literal text or confessional. It also, however, reveals a certain consistency in the court’s treatment of music: general dismissal. That mishandling of music, in this case, allowed for a rather drastic translation of "F* the Police" – a court-constituted violence credited to the defendants alone.
This article compares the slave narratives that were published in antebellum America with the more recent testimonies of death row exonerees. The structure, content and themes of the narratives and testimonies are compared, and particular attention is paid to the abolitionist purposes of the two. The methods adopted to achieve those purposes are also explored, and it is suggested that today’s exonerees can learn much from the slave narratives in order to make their testimonies more effective as tools of abolitionism.
This article considers Grey Owl’s tenure in Saskatchewan’s Prince Albert National Park as a "telling instance" of the ways in which iconic Canadian wilderness spaces have been constructed in white settler culture and law – not only through the erasure of Indigenous people(s), but also through highly visible forms of cultural appropriation, including the installation of "imaginary Indians." Placed in the context of the complex history of Treaty Six, the story of Grey Owl reveals how white settler culture and law have been constructed with reference to two "imaginary Indians": the "Bolshevik Indian" and the "Park Ranger Indian." The former, figured as a source of lawlessness and destruction, is erased from the terrain of the nation; the latter, represented in this case by Grey Owl, figures the "consent" of "Indians" to settler law, "naturalizes" Canadian sovereignty, and bestows upon the nation a heritage of "Indian" culture that it is otherwise felt to be lacking.
Critics of the same-sex rights discourse claim that recent struggles for sexual equality is fostering a process of normalization that exerts both heteronormative and homonormative effects. This article follows this clue and seeks to identify some of the factors and the channels of the "transformation of desire" which is currently affecting the homosexual imagery. By looking at some key judgments both in the U.S. and Europe, it explores how lesbians, gays, and bisexuals acquire socio-political visibility and how the latter impacts on them. By capitalizing on a semiotic view of law, the article explains how the access to the legal field has forced lesbians, gays, and bisexuals to frame the theme of homosexuality in conformity with a categorial grid typical of traditional kinship models.
The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else less clearly recognized. The King’s Two Bodies is a lamentation. In Kantorowicz’s poignant eulogy, the sovereign that medieval lawyers had made in the imago dei, was revealed at last to be an idol. Profound reverence for the rule of law crumbled into absent-minded legality. The lawful sovereign became diabolical power, forever deciding exceptions but incapable of justice or grace. In The King’s Two Bodies, Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.
This article offers a method of reading the courtroom which produces an alternative mapping of the space. My method combines a reading of Antonin Artaud’s Theatre of Cruelty with a Deleuzian theoretical analysis. I suggest that this is a useful method since it allows examination of the spatial praxes of the courtroom which pulsate with a power to organize, terrorize and to judge. This method is also able to conceptualize the presence of ‘‘screaming’’ bodies and living matter which are appropriated to build, as well as feed the presence and functioning of the courtroom space, or organism. By using a method that articulates the cry of these bodies in the shadow of the organism, it becomes clear that this cry is both unwelcome and suppressed by the courtroom. The howl of anxious bodies enduring the process and space of the law can be materialized through interruptions to the courtroom, such as when bodies stand when they should not and when they speak when they should be silent. These vociferous actualizations of the scream serve only to feed the organism they seek to disturb, yet if the scream is listened to before it disrupts, the interruption becomes-imperceptible to the courtroom. Through my Artaudian/Deleuzian reading, I give a voice to the corporeal gasp that lingers before the cry, which is embedded within the embodied multiplicity from which it is possible to draw a creative line of flight. The creative momentum of this line of flight produces a sustainable interruption to the courtroom process, which instead of being consumed by the system, has the potential to produce new courtroom alignments. My text therefore offers an alternative reading of the courtroom, and in doing so also offers a refined understanding of how to productively ‘‘interrupt’’ the courtroom process.
This commentary poses the question of the human by asking how the "human" of crimes against humanity relates to the "human" of the humanities. It does so by first considering Hannah Arendt’s Eichmann in Jerusalem (1961) as a text that establishes the representational aporias of banality and ineffability raised by crimes against humanity, not just through its analytical content but also through the use of literary form. The commentary then offers a close reading of two novels, Kazuo Ishiguro’s The Remains of the Day (1989) and Ian McEwan’s Atonement (2001), tracking the ways their "literary jurisprudence," or engagement with problems of judgment, emerge from the representational cruxes located by Arendt. Rather than read these literary texts as desirable substitutes for legal forms, or as providing ways out of legal aporias, I argue that their literary jurisprudences reveal the challenges of facing the afterlife of judgment, particularly for a humanity left in the wake of ambiguous forms of condemnation and restitution.
Monsters, a mixture of two realms, the animal and the human, have always defined the boundaries of society. Michel Foucault (1974–1975) suggests that monsters are living transgressions, deviations from a preconceived idea of "normal," the kind of irregularity that calls law into question and disables it. Foucault’s theories of monstrosity reach back to Cicero and ancient etymologies, according to which monsters are things or people to be shown or displayed. Building off of Foucault’s notion of the insane as a representation of a monstrosity behind all criminality, this article analyzes qualitative research completed with sex offender parolees. Due to recent legislation, these individuals are forced to live in public with a visual surveillance technology permanently equipped to their body, thus displaying their status as "sex offender." Throughout, we document how, in the modern construction of "monster," technology is now an essential element in the codified relationship of "madness" and society. In conclusion, we suggest that recent legislation does not protect the public from monsters; it actively creates them. To anticipate our conclusions, we document Foucault’s monster-as-spectacle as being alive and well in our current cultural and legal landscapes.
This article stages a rhetorical encounter between Heidegger and Foucault, positing the topos of care to critique the recent turn to "affirmative" biopolitics. For both thinkers, "the question of the human" redounds upon a subject whose being is constituted tropologically, yet "affirmative" biopoliticians misunderstand the rhetoricity of the human question and are caught within a neoliberal ethic. Reading Heidegger’s use of a first-century CE fable in Being of Time alongside Foucault’s final lectures on the fabled death of Socrates and the care of the self, this article explores their rhetorical strategies of self-constitution as a relation of chresis and care.
This article turns to Spinoza to shed new light on what Roberto Esposito, among others, has diagnosed as modernity’s "immunitary dialectic," whereby juridical-political measures taken to safeguard or immunize individual and collective life threaten to debase and even destroy the life in question. I argue that Spinoza’s treatment of the "freedom to philosophize" offers a window onto the plural politics of immunity – that is, the institutions and practices that convert the power to preserve life into tendentially dominative and emancipatory forms.
As the International Criminal Tribunal for the former Yugoslavia (ICTY) nears its end, questions about victimhood and restorative justice remain salient. Can the law adequately attend to victim trauma? Focusing on the remedial notion of "making whole" a victim of atrocity, this article looks to Aleksandar Hemon’s first novel, The Question of Bruno (2000), to illuminate legal limitations to facilitating human recovery. Hemon is a Bosnian immigrant who departed Sarajevo in 1992 and began writing in English several years later. Exhibiting the fragmentation typical in postmodern fiction, Hemon’s work can be situated in a distinct literary moment. Yet the novel also creates new narrative forms that incorporate the reader in a restorative task. While considering the gaps in the remedial procedures at the ICTY, I argue that The Question of Bruno implores its reader to reconstruct a new kind of historical record that heals, while acknowledging the liminal spaces from which many victims speak and write.
Comprised entirely of police surveillance footage initially used to prosecute violators of anti-sodomy laws, William E. Jones’s 2007 film Tearoom embodies the potential value of regarding law itself an artistic medium. The viewing experience it offers contends that when we regard images as artworks, that is, as both a separate, imagined realm and as a specific configuration of materials free of any preordained practical function, we are then most able to grasp law’s dependence on the aesthetic choices of its agents, and in turn, law’s own materiality. Such discernment reflects a more productive relationship between visual art and the law, one founded on symbiosis rather than on decided antagonism or indifference.
This article traces the application, operation and development of copyright law regarding literary works in colonial Australia. It examines the reception of the Literary Copyright Act 1842 (UK) and the Foreign Reprints Act 1847 (UK), exploring early (unsuccessful) attempts to liberalize the Australian book trade by allowing foreign imports of UK-copyright works. It also analyzes the development of colonial copyright legislation from the 1860s, using parliamentary debates and media commentary to explore contemporary attitudes to copyright policy. These inquiries reveal that the Australian colonies were unique throughout the empire in their insistence on toeing the imperial copyright line, in ways that were frequently contrary to the interests of colonial authors and readers.
The aim of this article is to analyze the contribution of the early modern English legal institution to the formulation of the theory of the king’s two bodies. I explore three principal themes in the course of this article, all of which relate directly to central tenets of the thesis proposed by Kantorowicz in The King’s Two Bodies. First, is the centrality of time and continuity to theories of kingship and to the ideology of common law. Secondly, I consider the importance of equity to the formulation of decision-making in English law, and in pursuit of this end, the manipulation by the judiciary of political theology concerning the king’s two bodies. Lastly, I analyze the persuasive power of the trope, and especially the capacity of metaphor and metonym to embody such invisible and intangible juristic concepts as justice, equity, and law itself. Whilst recognizing the magisterial quality of Kantorowicz’s magnum opus, I take issue with some of the more extravagant of the author’s claims for the pervasive power of mystical kingship and its influence over English jurists and the English legal profession.
This article addresses the implications of a new resistance to hate crime legislation that has yet to be addressed in the mainstream legal debate in Canada or the United States. It comes mainly from groups in the US that represent lgbtq communities who are poor and/or of color. These communities are particularly vulnerable to victimization by hate crime yet the groups have repeatedly opposed the inclusion of sexual orientation and gender identity/expression in hate crime legislation. This article addresses the underlying rationale of the new resistance and its implications for the mainstream debate. It begins by undertaking a comparative analysis of hate crime legislation in Canada and the US. It then considers the mainstream legal debate in both countries as well as some statistical data on hate crime. The third section turns to the new resistance as well as emerging data on the connection between victimization and the criminal legal system itself. It then draws on the legal theory of Walter Benjamin to reveal limits in the way that the mainstream legal debate conceptualizes criminalization. The final section of the article considers the implications of Benjamin’s concept of law for both the mainstream debate and the new resistance.
This article reflects upon the way how law and legal regulations on behalf of children have responded to childhood by setting up separate legal regimes. It looks at the origins of child protection and juvenile justice legislation and at the legal framework that deals with child labor. The differences between children and adults are deemed so fundamental that they have justified the setting up of different legal regimes for children, which are thought of as being better equipped to take children’s particularities into account and hence to better prepare them for the future. However, the establishment of separate childhood laws in order to better take into account children’s special needs, has in practice partially pushed children out of existing legal frameworks. This has prevented children from exercising a whole other set of fundamental rights and has not only strengthened but in some instances paradoxically also weakened their legal status.
It is often said that human rights are the rights that people possess simply in virtue of being human – that is, in virtue of their intrinsic, dignity-defining common humanity. Yet, on closer inspection the human rights landscape doesn’t look so even. Once we bring perpetrators of human rights abuse and their victims into the picture, attributions of humanity to persons become unstable. In this article, I trace the ways in which rights discourse ascribes variable humanity to certain categories of people. I set the stage for my discussion of the human in relation to human rights by examining John Locke’s account of the justification for punishment. For Locke, in committing a crime one abrogates one’s humanity and forfeits one’s rights. Likewise, I argue, human rights discourse takes a scalar view of humanity. I consider victims of genocide who are dehumanized as helpless and passive, victims of state persecution who are super-humanized as righteously agentic, and perpetrators of genocide who are dehumanized as out-of-control beasts. In each case I use relevant testimony to argue that the scalar view of humanity is factually incorrect and morally deplorable. For genocide victims, I discuss testimony that Selma Leydesdorff gathered from women who survived the Srebrenica massacre. For a victim of persecution, I discuss Liao Yiwu’s memoire of his detention and imprisonment in China because of his artwork protesting the Tiananmen Square massacre. For perpetrators of genocide, I discuss testimony Jean Hatzfeld gathered from Hutu men who systematically murdered Tutsis in the Rwandan genocide. Finally, I apply my critique of dehumanized and super-humanized victims and dehumanized perpetrators to the problem of transnational trafficking in persons and argue that the view I advocate necessitates reforming immigration policy with respect to persons trafficked into forced labor.
This article examines a little-known archive of illustrated children’s stories written by a nineteenth-century Michigan jurist, James Valentine Campbell. Despite his public reputation as a sober-minded judge and law professor who resisted interjecting his personal views into his decisions, Campbell’s domestic life as an author and performer of children’s stories served as an outlet for criticizing the excesses of the legal profession and proposing alternative methods of dispute resolution. His tales urged children to avoid laws and lawyers and instead to cultivate their own ethical and imaginative capacities for solving problems. His public and private activities intersected in his work as a founding professor at the University of Michigan Law School, training students to remain participants in the democratic process and resist mindlessly applying the law without understanding the deeper social and historical contexts of their work. This case study demonstrates the complexity of American legal subjectivity in the nineteenth century and the importance of considering archives beyond the published legal record.
This article examines the operation of "enmity" in right to die legal appeals. The article asks: (1) why does the law rely on articulations of enmity to rationalize its decisions and (2) what might this tell us about how biopolitics operates in the contemporary neoliberal moment? Drawing on the insight of Roberto Esposito the article makes three key points. First, it notes that biopolitics operating in the contemporary neoliberal moment is increasingly focused on closures around individual human subjects, or what Esposito calls mechanisms of "immunization." Second, it notes that discourses of enmity are perpetuated through legal right to die appeals that shore up these immunity mechanisms, which can partly explain why right to die claims fail on appeal. Finally, it considers more affirmative ways forward in both theory and practice relating to legal right to die appeals.
Through the work of Jean-Luc Nancy, and following recent publications that champion the theoretical significance of jurisdiction, this article reads jurisdiction as a technique of legal fiction-making and as capable of exposing an originary ontological category of "being-with." Rather than thought of purely as an expression of the law’s sovereign authority, it is argued that jurisdiction is a privileged point at which we can see the law’s fragility and thus open to critical intervention and interruption. Following Nancy’s understanding of "writing" and "literature" as that which exposes being-with, I suggest that we might name such strategies of creative intervention "juriswriting." This account of jurisdiction, developed by thinking with Nancy’s account of ontology, is explored with reference to the common law constructions of jurisdiction in the sixteenth and seventeenth centuries.
This article reflects upon the contribution that psychoanalysis can make to our understanding of children’s rights in a liberal legal system. The question of children’s rights has been richly debated over the past half century. Some commentators believe children’s rights would undermine parental authority; others argue that rights would diminish children’s welfare claims. But a major obstacle to children’s rights is our liberal legal system itself. We presume children lack the autonomy that liberalism sets as a precondition to possessing rights. Yet psychoanalytic theory supports the notion of "transitional rights" grounded in children’s special status as children. Unlike liberalism’s baseline rejection of children’s rights, which assumes children’s lack of adult decision-making skills, a psychoanalytic account of children’s transitional rights focuses on the skills and capacities that children have rather than the adult capacities they lack. It captures the emotionally-laden, developmentally-anchored, interpersonally-derived psychological experience of what it means to become a mature, autonomous, rights-bearing adult. The psychoanalytic ideas relevant here concern intrinsic capacities such as attachment, internalization, and fantasy, and the interplay of these capacities with early cognitive and reality-based thinking. To the extent this account of children’s intrinsic experience reveals the importance of early emotional relationships for the unfolding of mature autonomy, we discover the affirmative, constitutive, protective – even Romantic – role of transitional rights in a liberal system of justice.
The article offers a critical appraisal of the rise of international governance in the field of genetics and reproductive technologies as "legal cloning." It critically explores two of the dominant approaches to the homogenization of international law: the instrumentalist approach promoted by legal realists (law and science) and the deterministic approach advanced by legal surrealists (law and science fiction). As an alternative to both, the article offers an account of bio-technology’s modus operandi, and its power to "clone," namely, to reduce human diversity – whether genetic, moral, or legal – not to identity but to a controlled and standardized uniformity. By examining three case studies of international law and transnational law – the UN declaration on human cloning, the recent restriction of the patenting of human embryonic stem cell research by the CJEU – along with Aldous Huxley’s classic novel Brave New World, the article unveils three different ways in which cloning operates in international law: international law versus cloning, international law as cloning, and the cloning of international law.
The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.
The importance of the door for human civilization cannot be overstated. In various cultures, the door has been a central technology for negotiating the distinction between inside and outside, private and public, and profane and sacred. By tracing the material and symbolic significance of the door in American Fourth Amendment case law, this article illuminates the vitality of matter for law’s everyday practices. In particular, it highlights how various door configurations affect the level of constitutional protections granted to those situated on the inside of the door and the important role of vision for establishing legal expectations of privacy. Eventually, I suggest that we might be witnessing the twilight of the "physical door" era and the beginning of a "virtual door" era in Fourth Amendment jurisprudence. As recent physical and technological changes present increasingly sophisticated challenges to the distinctions between inside and outside, private and public, and prohibited and accepted visions, the Supreme Court will need to carefully articulate what is worth protecting on the other side of the door.
This article examines the intersection of marriage and immigration law in the U.S. to consider how transgender subjects are normalized as legible legal subjects and incorporated as citizens through marriage. It focuses on Matter of Lovo (2005), a Board of Immigration Appeals case confirming immigration benefits for marriages involving transgender spouses. My analysis traces how legal regulation develops through the ways different legal documents and actors condition each other as well as the legal subjects they produce. The article addresses key questions about trans citizenship as it is shaped through marriage, immigration, and neoliberalism in the contemporary U.S.
This article contributes to a special symposium on science fiction and international law, examining the blurry lines between science and fiction in the policy discussions concerning the military use of lethal autonomous robots. In response to projects that attempt to build military robots that comport with international humanitarian law [IHL], we investigate whether and how the introduction of lethal autonomous robots might skew international humanitarian norms. Although IHL purports to be a technologically-neutral approach to calculating a proportionate, discriminate, and militarily necessary response, we contend that it permits a deterministic mode of thinking, expanding the scope of that which is perceived of as "necessary" once the technology is adopted. Consequently, we argue, even if lethal autonomous robots comport with IHL, they will operate as a force multiplier of military necessity, thus skewing the proportionality metric and amplifying new forms of destructive, lethal force.
This article engages Michel Foucault’s thesis that post-sovereign law would be increasingly colonized by the disciplinary norm. It explores, through an analysis of prisoner litigation surrounding Maryland’s Patuxent Institution and its defective delinquency statute, how disciplinary power is enabled, understood, and resisted through law. I argue that Article 31B (as the defective delinquency statute was known) set up a zone of expert prerogative and discretion actively maintained and legitimated through jurisprudence. Yet, paradoxically, law also functioned as a conduit for resistance and contestation pitting the epistemological premises of discipline against the functions of legal jurisprudence and the foundations of criminal law. I contend that this dual character of law’s engagement with discipline (i.e., at once open to expert "colonization" and site of structural incompatibility and resistance) illustrates the intractability of the relationship between the disciplinary and law. That is, law both constitutes disciplinary space (and within this normative envelope, discipline can be "unbound") and remains in a state of tension with the forms of power that develop within it (which by their very premises seek to exceed the limits law would place upon them).
The institution of Hobbes’ Leviathan is marked by the transformation of cunning, equally shared by all in the state of nature, into a rational, sovereign politics. The question I take up here by way of Machiavelli and two of his contemporary readers, Derrida and Lefort, what if cunning was politicized rather than replaced by sovereign reason? In other words, what if cunning, a complex political deception, was not abandoned or given over to the sovereign? I argue that Lefort’s reading of Machiavelli, embracing as it does the central role of a shared cunning or ruse between the people and the prince, offers valuable resources for thinking the foundation of political authority for a secular democratic politics, while in contrast, Derrida’s critique of Machiavelli’s cunning illuminates why he is not able to escape a sovereign, theological foundation for political authority and the law.
The music that chronicles the African American experience is marked in profound but subtle and contradictory ways by the law, perhaps the most pervasive presence in black life since enslaved Africans arrived in the New World. From the mournful but veiled complaints of the sorrow songs to Jay Z’s boastful narration of a pretextual traffic stop, at the heart of so much of the music of black culture lies a wary appraisal, and often an outright rejection, of the "justice" of American law. This Commentary reviews the fraught relationship between the law and the tradition of African American music.
This article examines critical responses to the question of constituent power. Rather than a closed, meaning-giving moment, which originates the constitutional structure, the article looks at the various ways in which constituent power can be viewed as "open" and anti-underdetermined. It looks at two issues in particular: the "subject" of constituent power, and the nature of the "power" involved. The article concludes with the suggestion that we think of these works as a series of "strategic hypotheses" which might structure action, rather than a collection of "models" that would have to be applied faithfully to the world.
Rousseau’s constitutional writings place a seemingly eccentric emphasis on public ceremony, festival and pageantry as integral aspects of statecraft. The obvious function of such republican rituals is to promote the participative civic dispositions which provide stability for a deliberative politics based on common goods. In some accounts, therefore, Rousseau’s ritualistic constitutionalism has parallels in the mild ceremonial practices of contemporary liberal states. I argue, however, that Rousseau envisages a much broader purpose for republican ritual: not merely to supplement, but to substitute the complex symbolic rituals of liberal society and thus to supplant the need for private sources of aesthetic and symbolic distinction. Accordingly I argue that his politics of "transparency" is informed by an understanding of social practice which, in some respects, closely resembles Pierre Bourdieu’s account of habitus and symbolic power.
This article offers a contrapuntal discussion of the connections between law and music in a variety of historical and contemporary, Western and non-Western contexts. It aims to introduce a postcolonial inflection into the current debate, using examples drawn from Indigenous law and music in Australia. Working inductively, it demonstrates that music forms part of the nomos or culture of legality in both traditional and modern societies.
This article introduces the subject-matter of a symposium on international law and science-fiction. The impact of new technologies on human rights, humanitarian issues and indeed on what it means to be human in a technological age, suffers from a paucity of international legal attention. The latter has been attributed to various factors ranging from technophobia and technological illiteracy, inclusive of an instrumentalist view of technology, to the sense that such attention is the domain of science-fiction, not of international law. The article extends an invitation to pay attention to the attention science-fiction has given to the man-machine interaction and its impact on the human condition. Placing this invitation in the context of the "law and literature" movement, the article exemplifies its value with respect to two technologies, one directed at creating life or saving it (cloning and organ donation) and the other at ending life (lethal autonomous robots).
Constitutional theorists frequently take the constitutional arrangement as their primary focus of critique. Indeed, for many constitutional scholars, the constitution is presumed as the central place from which to navigate and negotiate political community. However, this approach neglects the ways in which imaginations of political community are also launched at other sites of meaning-making. This commentary reflects on the role of museums in the production of such imaginations. In it, I examine the relationship between museums, constituting, and constitution-making.
Within political theory, it is Jean-Jacques Rousseau who is often associated with the idea that humans have an intrinsic response to the pain of others. Yet, this article argues that he should also be understood as a theorist of the paralyzing effects of guilt and that it was his guilt, not sympathy, which marked the most intense interpersonal moments in his life. As a counterpoint to Rousseau’s assessment, the second part examines the guilt felt by Afrikaner journalist Antjie Krog in her memoir of the South African Truth and Reconciliation Commission, Country of My Skull. Her reflections on the guilt connected to apartheid and to the experience of an extra-marital affair reveal the dynamics of (1) pleasure and (2) paralysis through guilt that seem to animate Rousseau’s writing but that he fails to address directly. Moreover, Krog’s attention to the two variants of guilt and their relationships to the possibility of repair shed light on the gaps and silences in Rousseau’s writing.
In a 1999 essay, J.M. Balkin and Sanford Levinson called for law to be considered as a performing art. Against or perhaps going further than Balkin and Levinson, this commentary claims that while engagement with performance practices in the arts, such as music, is of the utmost value to law and legal theory, we must not take for granted what it means to "perform". Uniting Jacques Derrida’s la Villette performance (with jazz legend, Ornette Coleman) with his writings on performativity in law, this commentary looks to the musical practice of improvisation to trouble the notion of performance as immediate and singular and to question taken for granted distinctions between text and performance, writing and music, composition and improvisation. The consequence of this refined understanding of the performative on legal theory and the actual practice of law is a reconceptualization of law as improvisation, that is, both singular and general, pre-existent and immediate, and a refocusing on the creativity that lies at the heart of law’s conservativism.
In the decades following the end of the Cold War, the process of producing state constitutions has transformed into a veritable industry. This commentary considers contemporary practices of constitution-making as a site for critical reflection. It takes up the provision of "expert" advice in constitution-making processes in relation to three tropes of how these processes are conceived. As an attempt at diagnosing the constitution-making present, this commentary focuses on constitutional "technicity," though aspects of what I term constitutional "romanticism" and "civility" continue to inform this technical turn.
The intertwined rhetoric of precedent and fulfillment underlies the biblical rhetoric of the Sermon on the Mount and the legal rhetoric of the common law. This article wants to draw a parallelism between how Jesus approaches the corpus of Mosaic law in the Sermon on the Mount and how judges approach the corpus of the common law in case after case. Both Jesus and common law judges are fulfillers, not followers, of precedents. The follower of precedent repeats the norms of the past in the present, while the fulfiller of precedent redeems the norms of the past in the present.
This article analyzes ridicule as a regulatory instrument. It discusses the nature and forms of ridicule, its functions across time and cultures, then reviews its place within the paradigm of regulatory pluralism. Ridicule is hardly a regulatory panacea, but it has significant potential to mobilize public interest constituencies, and to raise the consciousness of members of the public who might not otherwise be attuned to conventional policy discourse. This is particularly the case since the advent of social media.
David Foster Wallace’s last novel, The Pale King, revolves around the administration of the federal income tax. Wallace’s portrayal of this system, for all its hilarity and incisiveness, might ultimately seem a bit banal because he emphasizes that the tax system is boring; surely we all knew that. Yet the portrayal of boredom in The Pale King is nuanced and provocative, recalling a long tradition of thinking about modernity and boredom. Most notably, Kierkegaard diagnosed modernity as an age beset by a particular form of boredom. In the modern age people have more and more leisure, but less and less guidance as to how to lead one’s life either through religion or the rigorous patterns of agricultural life, and thus modern people have found themselves bored in a new way. This insight was picked up on by many and was most developed by Martin Heidegger. What can one learn about tax from learning more about boredom? Within the novel it is observed that a new notion of the "interesting" arose along with the new modern kind of boredom. One needs to find something interesting to fend off boredom. Looked at in this way, the most profound way to alter our engagement with a tax system that is boring would not be to make it interesting, but to make it neither boring nor interesting. What would such a tax system look like? Wallace suggests that it would be a system soberly administered by adults, much like the other key parts of the apparatus central to modernity.
Legal and queer theoretic critics charge that the myth of "childhood innocence" perverts and propagates the unwarranted expansion of child pornography law, and mischaracterizes sources of and solutions to sexual violence. This article spells out these criticisms and synthesizes them with recent scholarship on the racialization of innocence. In thinking these literatures together, we are able to survey the complexities of "innocence" as a political idiom for the promotion of social and sexual welfare. I conclude with the reminder that no idiom – whether "innocence," "harm," or "agency" – is purified of normative judgment.
Recent scholarship in the new interdisciplinary field of law and music has done much to explore the relationship between these two cultural forms, in terms of force and meaning, history and structure. More must now be done to show how they matter to one another, how music can charge a social conflict with political urgency and color it with a distinct emotional timbre. The future lies in developing these research trajectories still more intently: towards the embodied and sonic dimensions of music on the one hand, and towards its contemporary relevance on the other. Such a discussion would have to be alert to the places and times in which music inserts a kind of pressing aesthetic note into the political and juridical process. And it would have to think the aesthetic, the legal, and the political in connection with one another. These propositions are explored through a case study of the trial of Pussy Riot in Moscow during 2012. While the prosecution chose to present the group’s actions as a species of ‘religious hatred,’ the defense characterized them as engaging in ‘political dissent.’ But neither adequately capture the role and meaning of the music and aesthetic elements of the performance of the three women. Yet these were integral to Pussy Riot’s actions. While the trial achieved some recognition as a political trial it deserves recognition rather as one of the great trials of modern art.
By treating spatial conflict as one way communities wrestle with the memory and legacy of slavery, this article unites critical landscape analysis, a tool of legal geography, with legal and cultural analysis and recent scholarship on African American reparations. A slave cemetery lay beneath a parking lot in Shockoe Bottom, a neighborhood of downtown Richmond that was once a major slave-trading hub. In recent years, controversy arose over the site’s use, generating racially charged local debate and two failed lawsuits seeking to preserve the site. This article examines the significance of the African Burial Ground controversy by analyzing its symbolic, discursive, spatial, and legal dimensions. Although the law ostensibly protects ancestral graves from desecration, it demands that a plaintiff demonstrate biological descent from the interred in order to make a claim; as this case demonstrates, standing is denied to those whose family histories were obliterated by slavery. I argue that the plaintiff’s lack of standing before the law, which is rooted in slavery, cannot be separated from other, social and political forms of illegitimacy historically inscribed upon African Americans. Here, claims of desecration were relegated to the political arena, where redress was possible but subject to the vagaries of local, state, and national racial politics. Community activists, unable to protect the Burial Ground through the force of the law, instead mobilized the spectacle of the law, and achieved a surprising out-of-court resolution to the conflict.
In "History of the Lie: Prolegomena" (2002) Jacques Derrida examines Hannah Arendt’s analysis of the modern lie in politics in her essays "Lying in Politics" (1972) and "Truth and Politics" (1968/1993). Arendt contrasts the traditional lie, where lies were told and secrets kept for the greater good or to defeat the enemy, with the modern lie, which comprises deception and self-deception on a massive scale. This article investigates the seriousness of different kinds of lies in political life in the light of Arendt and Derrida’s reflections on lying and contemporary lies in politics and shows where concern should focus.
Agamben is perhaps best known for his analysis of the "logic of sovereignty" drawn from Carl Schmitt. This article examines the critique of sovereignty that Agamben develops through his reading of Walter Benjamin’s messianism. For Agamben, Schmitt’s analysis of sovereignty claims that the state of exception is a juridical condition, in that the law survives its suspension in the form of the "force-of-<strike>law</strike>." Drawing on Benjamin, Agamben argues that sovereignty is a fiction that covers over the originary inoperativity of the law and the illegitimacy of authority. The purpose of Agamben’s analysis is to open space for a new understanding of the relationship between law and political action that responds to the contemporary crisis of tradition.
Polygamy, often unmentioned or glossed over by critics, is central to Bram Stoker’s Dracula (1897). Representations of law in relation to the polygamy threat borne by vampires connect the novel to contemporary legal and popular debates about the perceived threat Mormonism posed to patriarchal power within empire and home. Stoker’s treatment of polygamy places the novel within the contemporary contextual canon of anti-polygamy and anti-Mormon novels, thus situating it as a popular participant in the legal debates about polygamy, empire and women’s rights which took place in the fin-de-siécle courts and popular press on both sides of the Atlantic.
Radical constitutional scholarship could make use of a concept of solidarity to enable a new engagement with concepts of welfare and political community. Rather than a welfare state, with all its attendant problems, it is possible to link the concept of solidarity to the notion of a welfare community. A welfare community asserts the importance of common life against capitalist market relationships. Conceiving of the welfare community requires insights from continental philosophy, as well as developments of co-production and core economy thinking. Most importantly, this approach grounds welfare in a political critique of free market capitalism, rather than a theory of rights, and requires a bold assertion of a constitution as a limitation of the socially and economically destructive effects of markets.
This speech, given at the Northeast Law and Society Conference, January 2013, explores some possibilities for a "re-enchantment" of law and for the future of "law and society" scholarship.
This article examines the relationship between law and morality in a selection of animated Disney movies released between 1960 and 1998. The authors analyze all of the fully-animated, G-rated movies that grossed $100 million or more (adjusted for inflation) which shaped the childhood of lawyers practicing today. We find that the predominant representation of the relationship between law and morality is that they are at odds. Law most often is portrayed as having no relationship to morality or, even worse, as an obstacle to justice. These findings have implications for theories of law and morality, justice, and ethics. These findings also raise provocative questions concerning the role of mass media and popular culture on children’s moral development and understanding of the role of law.
Beginning in the 1960s, American males began to plead the "Homosexual Panic Defense" (HPD) when charged with the murder of a homosexual male. Over the next 50 years, legal and literary academics decried the use of the HPD affirming that it relied on prejudicial stereotypes of "bad" homosexuals as sexual predators. This article revisits these critical debates and shows how these legal critics attempt to gentrify the "homosexual" into a good subject in order to justify his right-to-life. I argue that sexuality should never be considered a justification for murder, regardless of the particular homosexual’s status as good or bad.
In this article, we examine the production of privacy knowledge and uses of privacy law in relation to liberal governmentality. Understanding liberal governmentality remains critical insofar as authoritarian practices and liberalism are intertwined. We argue the birth of privacy studies and the rise of the notion of ‘privacy by design’ demonstrate a coupling of security and privacy and the embedding of privacy protocol in surveillance technologies consistent with authoritarian liberalism. We illustrate these arguments through analysis of cases pertaining to public camera surveillance and access to information processes (ATIP) in Canada. The growing prevalence of privacy as an object of knowledge and as a means of governance raise questions about its utility as a remedy for surveillance and begins to reveal how authoritarian practices are incorporated within liberalism.
This article explores the metaphoric content latent in modern conceptions of revolution. Originary theories of modern revolutions relied explicitly on Copernicus’ rethinking of the movements of celestial bodies. There, spectators were significant in characterizing the logic of revolutions despite the appearances of things, revealing a new center of the universe distinct from their own location. Contemporary political theories of revolution obscure this metaphor. My aim here is to highlight tensions implicit in recent democratic theorizing on the role of spectators in legitimizing political revolutions. Recent accounts of revolution have too often presumed that revolutionaries aspire merely to "join" spectators in an already-existing democratic revolution. Here, spectators understand themselves as the center of things, and thus risk mistaking a new political history for their own. Following Kant’s observations on political enthusiasm, I show how spectators can offer legitimation through their own enthusiasm for revolution as historical event, rather than historical norm. Read this way, revolutions become progressive, uncovering new histories and their own requisite normative orders, and reminding spectators of the limits and possibilities of their own politics.
While not entirely out of the norms of Victorian judicial practice, Lord Chief Justice Cockburn’s summing-up of the evidence in Regina v. Castro, aka Arthur Orton, aka Roger Tichborne was extraordinary for its length and detail, as well as for its narrative and rhetorical force. This article examines Cockburn’s summing-up to the jury, arguing that while it is revealing of nineteenth-century British conceptions of identity, it also uncovers the instability and insufficiency of those conceptions for the juridical determination of identity. Thus the summing-up of evidence, and perhaps the entire Tichborne affair, suggested some of the ways that law, in an age of rapid urbanization and increasing geographical and class mobility, would increasingly require supplementation from extralegal disciplines.
Through an examination of the deaths of two young men in a detention center fire in Kashechewan, Ontario, this article examines links between legal testimony, temporality, competing forms of evidence (oral histories, visual recordings and corporeal forms of memory) and the consolidation of particular racial and historical logics through these discursive and visual fields. I argue that an analysis of testimony in colonial inquiries reveals that the relationship between everyday life and exceptional violence often restricts the development of narrative coherence between historical forms of injustice and contemporary instances of violence.
Robert Cover argues that nomoi (normative universes) exist and operate in law-like fashion, serving as a competitor with the state’s law. The state’s response is jurispathic – it attempts to kill off competing nomoi. The HBO series The Wire portrays both the existence of nomoi and the state’s effort to kill it off. It also reveals that the jurispathic effort fails to destroy the community’s commitment to their nomos. Rather than destroy competing nomoi, The Wire portrays how a dialogue can emerge out of law-nomos conflict with the power to alter both law and nomos while promoting certain democratic goods.
This article employs linguistic anthropological methods to examine the debate over whether equal protection doctrine requires legal recognition of same-sex couples’ marriages. It focuses on oral arguments at the Supreme Court of California in the seminal In re Marriage Cases (2008). I argue that the contested use of equal protection terminology simultaneously displays the cultural neutrality of liberal jurisprudence and harbors cultural ideologies about sexual orientation. During oral argument, this duality compressed into grammatical competition over a single shorthand term, equalit(y)(ies). Selecting the singular versus plural form reproduced counterbalanced arguments in favor of uniform equality through marriage or comparable equalities through domestic partnership status. But the ideologies hidden within the grammatical nuance also provided flexibility to overcome that inertia at particular moments.
Legal anecdotes serve to bind populations to law through creating an affective, even affectionate, relationship between law and its communities. An analysis of a legal anecdote involving Justice John Holt (1642–1710) and witchcraft demonstrates how anecdotes can soothe public anxieties over rapid modernization. This particular anecdote asserts the primacy of the literate over the oral, high culture over popular culture, science over superstition, the urban over the rural, and yet creates in the end an affective community united around affection for Holt and the English common law system he represented.
A prominent response to the Occupy movement has been the question "What does Occupy want?" What might we understand about this persistent questioning of the Occupy movement? How might we begin to think about the Occupy movement as resistance to the culture of Wall Street and politicians in recent decades? This article provides some thoughts on the conceptual and discursive relationships between the causes of the global financial crisis, including the neoliberal consensus on financial regulation, and some of the dynamics that have arisen in relation to the Occupy Wall Street movement. In particular, it suggests that Jacques Derrida’s analysis of the tradition of fraternity in modern concepts of democracy, and feminist ideas on "speaking for others" may assist with understanding the relational gender dynamics of this regulatory consensus, the masculinity of the financial industry and the derivatives trading rooms, and one way in which dominant discourses are gendering the Occupy movement.
Whether personal or political, license plates represent a variety of social, cultural, and legal identities. As an enlivened legal semiotic in everyday life, license plates represent the performativity of rights in which the crafting of these legal emblems depends upon the reception of a viewing audience, namely other drivers and law enforcement. License plates mirror what’s debated in American society. In jurisdictional contests involving expressions of speech and assertions of indigenous sovereignty, the license plate richly characterizes the constitutive approach to law as it transpires on roadways across the United States and particularly in Hawai‘i.1
This article takes up the question of perjury and the oath in Derrida’s later work. It proposes that Derrida’s reflections on such theological concepts need to be understood, less as part of a "religious turn," and more in the context of political and juridical theology, or the manner in which modern politics and law are haunted by theology. It shows how, for Derrida, every social relation is structured by an oath, or an implied promise to tell the truth, and a perjury, or a betrayal of that promise. It develops this argument through a consideration of Derrida’s engagements with Levinas and de Man.
This article is an inquiry into the legal rhetoric and jurisprudential tensions presented in television series Battlestar Galactica (BSG) (2003–2009). Gaius Baltar’s trial for treason, which closes the series’ third season, serves as a compelling rumination on collective guilt, vengeance, and injustice, succinctly encapsulating BSG ethos. This study, drawing on rhetorical scholarship, explores the trial’s performative features and through rhetorical analysis illustrates how the legal actors in Baltar’s trial frame justice, set legal precedent, and re-establish community-based order in a tenuous Galactica universe – a universe particularly revealing of post-9/11 anxieties and American jurisprudence in crisis.
This article analyzes the cogency of claims about the purported benefits and risks associated with televising oral argument. It considers two purported benefits of broadcasts (civic education for the sake of greater public understanding of the Court as an institution and for the sake of holding the Court responsible for its policies) and three purported risks (distorted public perceptions of the Court’s work, interfering with the Court’s work, and undermining the Court’s cultural status). The central thesis is that the cogency of claims about these benefits and risks is so beset by uncertainties and ambiguities that justifying claims is thoroughly problematic.
This article argues that the later work of John Rawls offers the best hope for establishing a justifiable and sustainable concept of liberalism. The context for this concern is the work of Carl Schmitt, whose attack on liberal legal practices exposes a deep weakness in most liberal approaches to the concept of law. The divide between positivism and normative legal approaches (expressed in the debates among H.L.A. Hart, Ronald Dworkin, and Hans Kelsen) seems to wither in the face of Schmittian critique, leaving only a depoliticized husk of legal practice. Rawls offers a different approach, a justificatory regime capable of engaging the problem of the sovereign exception while preserving the force of liberal normativity.
The Rwandan genocide now occupies a special place in global memory. "Rwanda," as this event is referred to in short-hand, is widely known as the genocide that could have been prevented, the genocide that was ignored. As commentators caution against contemporary situations becoming the next "Rwanda," this article critically analyzes what "Rwanda" has come to mean for and about the world. It highlights the inherently political and culturally particular nature of this discursive construct, as well as using the Rwandan case study to open out onto a broader consideration of the ethics and politics of global memory constructs per se.
In 1816, the restored Bourbon regime banished a group of French Revolutionary politicians from French soil. Although Louis XVIII created an exception for France’s premier painter Jacques-Louis David, David contested this exercise of sovereignty by refusing to be the beneficiary of a monarchic decision on the exception. In rewriting exile as exit, David alters the Revolutionary conception of national sovereignty he subscribed to decades earlier and enacts self-sovereignty instead. David’s painting Les Adieux de Télémaque et d’Eucharis (1818) confirms the artist’s self-sovereign affirmation of responsibility, potential undecidability, and autonomous error in defiance of Bourbon unaccountability, decisionism, and infallibility.
Since Werner Sombart visited the United States at the beginning of the 20th century, scholars and activists have debated whether the American labor movement is "exceptionally" weak and conservative, and why. While some have accepted Exceptionalism and attributed it to the conservative values of American workers, others have attributed it instead to the power of business and the repressive posture of the American government. This article argues that the American legal tradition contributed to "exceptionalism" by privileging individual rights over collective action, and by limiting the power of organizations, including governments as well as unions, over individual choice. While this individualist bias was modified in the 1930s, the Supreme Court quickly restored the individual bias in American labor law, leading to the collapse of unions in the later 20th century.
While advocates and critics of liberal republics disagree on whether "pure politics" requires ultimate authorization both call upon theories that explain all revolutions as attempts to transcend political theology for the sake of a purely immanent political realm. Their secularist, "political"/programmatic views and hopes on revolution are here contrasted with a reading of Eugene Rosenstock-Huessy’s Out of Revolution whereby "revolution" is read as the autobiography of western man written through a series of great European Revolutions. As products of changes in the vocabulary of occidental Christian political theology these revolutions were structurally unable to transcend authority; but they were able to project western power around the world. Lacking in awareness of its religious vocabulary the late-modern subject inherits this global western power but can no longer rebel as before. The article summarizes Rosenstock-Huessy’s genealogy of revolution in Section II; in Sections I and 3 his insights are brought to bear on theories of revolution-qua-secularization be it in the form of the utopian overcoming of "religion" (Arendt) or in the form of overcoming Christianity’s fabulous and real history – its political theology – while retaining its universality for the sake of emancipation of a "universal" – not western – victim.
This commentary aims to bring to the fore the revolutionary elements of the democratic politics inaugurated by the 1789 Declaration of the Rights of Man and Citizen. This founding event places rights at that gap or hiatus between constituent and constituted power, and it reminds us that rights are not simply normative constraints on an existing political and legal order but also democratic inventions that can institute a new order. The commentary examines the works of two thinkers who offer crucial insights into the key features of this democratic politics of rights: Claude Lefort and Étienne Balibar.
This article provides a reading of Elizabeth Gaskell’s social novel North and South and later historical fiction in the context of nineteenth-century debates about individual liberty and the authority of the state. Focused on the novel’s depiction of modes of dissent and the significance of Gaskell’s turn from contemporary to historical subjects, the article concludes with a reflection on the encounter with history and literature as imaginative and transformative experiences.
When the commitment to liberal rights conflicts with the commitment to democratic procedures, which side ought to prevail? Whereas rights foundationalists hold that rights trump procedures and democratic positivists hold that procedures trump rights, theorists of co-originality affirm both rights and procedures as coeval, equally valid commitments within a liberal democracy. But the notion of co-originality itself can be interpreted in two different ways: either in a rationalist form (as the idea that rights and procedures can be reconciled, so that those rights which limit democratic majorities are understood as being required by the very meaning of democracy itself) or in a paradoxicalist form (as the idea that rights and procedures do inescapably conflict, with neither side having primacy, but such conflicts are understood as conducive to salutary democratic goods like diversity and ongoing activism). Taking Corey Brettschneider and Chantal Mouffe as key exponents of the rationalist and paradoxicalist forms of co-originality, respectively, this article examines how these two renderings of co-originality ought to be understood in relation to each other. After elaborating the implicit critique each account makes of the other, my ultimate point is that one should understand Brettschneider and Mouffe’s alternate forms of co-originality as themselves being co-original. On the one hand, I demonstrate how Brettschneider’s rationalism and Mouffe’s paradoxicalism remain in permanent tension, with each side opposed to – yet nonetheless unable to dispense with – the other. On the other hand, I show how their two divergent notions of co-originality, when viewed not in abstract terms as rival political epistemologies but as practical guides for how actual citizens ought to operate within liberal democracies, can work in tandem with each other without necessarily involving direct conflict.
Does the rejection of pure proceduralism show that we should adopt Brettschneider’s value theory of democracy? The answer, this article suggests, is "no." There are a potentially infinite number of incompatible ways to understand democracy, of which the value theory is, at best, only one. The article illustrates and substantiates its claims by looking at what the secret ballot shows us about the importance of privacy and democracy. Drawing on the reasons to reject Mill’s arguments for open voting, in a previous article by A. Lever, it argues that people’s claims to privacy have a constitutive, as well as an instrumental, importance to democratic government, which is best seen by attending to democracy as a practice, and not merely as a distinctive set of values.
In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government – the value theory of democracy – that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are "co-original," the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such rights.
This article uses genetically modified crops as a springboard for examining the role ascribed to technology by the international institutional framework for responding to food insecurity. It argues that food insecurity is a problem rooted in political will formation rather than in the mechanics of food production. From this starting point, the article examines the failure of various global initiatives to end hunger, highlighting how these initiatives emphasized new technologies for increasing food production while giving short shrift to the thorny structural problems associated with hunger.
This commentary examines two relationships between law and revolutions. In the first, international law collapses revolutions into military warfare, and in the second, state law endows itself with revolutionary powers. What are the meanings of revolution these two relationships articulate and the other meanings they foreclose? Both relationships fail to capture revolution as struggle; instead, they subject revolutions to the measures of violence and change. Against revolutionary struggles, contemporary modern law claims revolutionary capacities for itself. But revolutionary struggles persist precisely because the law knows how to relate to revolutions only through the measures of violence and change, thereby failing to appreciate the peculiar practice of struggle – that of clashing engagement.
This article offers a reading of Hilary Brougher’s film Stephanie Daley (2006), in which a teen is accused of murdering her newborn (neonaticide). Brougher depicts a "phenomenology of unwanted pregnancy" and an example of therapeutic jurisprudence. Part One examines Brougher’s treatment of the "shadow side of pregnancy," and highlights barriers to the empathetic treatment of neonaticide. Part Two emphasizes the process of therapeutic jurisprudence as experienced by the two main characters. Brougher’s film provides a social narrative and phenomenology that may influence laws and legal responses and enlarge social understanding of unwanted pregnancy.
Clarence Thomas is, according to The Weekly Standard, the "leading conservative in America today." More than just an iconic conservative, The National Review esteems Thomas as "an extraordinary man." How are we to understand the ascent of a sitting United States Supreme Court Justice to the status of national hero in the American conservative imagination? And what does Clarence Thomas’s hero-status reveal about that conservative imagination?
I argue, first, that the canonization of Clarence Thomas by American conservative intellectuals speaks to, and revives, long-standing motifs in the American political tradition: rage at, and rejection of, maternal, feminine influence; an associated longing for stable, paternal authority and the self-disciplined, autonomous citizenship that it is believed to produce; and the promotion of law as the primary means by which to achieve social order and to repress the chaos conventionally associated with the maternal realm. Second, I argue that Thomas’s political vision and, especially, his jurisprudential philosophy – which emphasizes a Judge’s responsibility to abdicate individual judgment in the name of fidelity to the desires of the Founding Fathers – reveals an ironic ambiguity at the heart of the conservative political imagination. Indeed, fixation with the paternal authority of law leads modern conservatives, as it does Clarence Thomas, to impose a series of limitations on the individual autonomy that they claim is the fruit of overcoming feminine, maternal influence. The manifold obsessions voiced by Clarence Thomas and his conservative intellectual champions – obsessions with fathers, with mothers, and with law – thus point to a limited citizenship that is at odds with conservatism’s own dreams of mature autonomy.
This article analyzes two convergent processes: (1) the increasing specification of the right to food in international law; and (2) the efforts of transnational agrarian social movements, notably Vía Campesina, to have the United Nations adopt an instrument on the rights of peasants. Because one-seventh of humanity suffers from hunger and because the right to food has wide support among UN member states and is essential for the enjoyment of all other rights, it has become a magnet for diverse kinds of rights claims. Vía Campesina has elaborated a draft instrument that has received growing attention in the UN Human Rights Council. Several of the claimed rights, however, are contentious and have generated opposition from powerful UN member states.
This essay muses on the relationship between law, labor organizing, politics, and the role of academic scholarship on law and work since 1980. As globalization of manufacturing and labor migration have transformed American culture and labor, the boundaries of labor studies have expanded. The more expansive understanding of labor evident in modern scholarship is partly attributable to the decline in union density and the rise of social movements focused on expanding rights of marginalized workers. Yet hyper-capitalism and attacks on labor liberalism have threatened New Deal labor protections and social safety net programs that were core achievements of past labor organizing and foundations for future labor organizing. The rise of income inequality and the decline of middle class jobs, along with right-wing attacks on labor and social welfare legislation, signal a seismic cultural shift that we have only begun to experience and will shape the future of socio-legal studies of labor.
Law and food are distinct concepts, though the discipline (Law and Food) implies a relationship worthy of study. The conjunction ("and") creates meaning. However, its absence also conveys meaning. For example, "meat animal" suggests that animals can be both meat and animal. This conflation has powerful legal implications. National Meat Association v. Harris (2012) makes chillingly plain the law’s indifference to whether a meat animal is alive or dead. This essay examines the way supposedly humane federal practices ignore the systematic brutalization of "food animals" as those animals get processed into marketable flesh. It concludes with some observations about why this legal blindness exists.
This essay stages a reflection on the complex relation that Levinas’ philosophy has to violence and revolution. Confining my commentary largely to one pivotal essay, "Ideology and Idealism," I contend that Levinas must be seen as an advocate of revolution unconditionally oriented by ethics. He must be seen, moreover, as an advocate of nothing less than, in his own words, "permanent revolution." Rather than offer a purely abstracted commentary on Levinas’ concept of permanent revolution, I stage a posthumous face-to-face of Levinas with Mohamed Bouazizi, the Tunisian street vendor who is seen as the catalyst who proceeded, after his self-immolation, to inspire both the Tunisian revolution and the revolutions of the Arab Spring that swept across North Africa and the Middle East. By interlacing Levinas’ profound meditations on violence, revolution and the ideality of justice with Mohamed Bouazizi’s suicide and the revolutions he catalyzed, I propose to illuminate the ethical dimensions of revolt, rebellion and revolution in the context of state violence.
Over the course of the past quarter century, paralleling the decline of organized labor, there has been a marked increase in the role of the state in the industrial relations of advanced capitalist societies. This has come both in the form of state activism in the reconstruction of institutions, and through the replacement of collective self-regulation by employer and labor organizations with legal regulation. Unsurprisingly, these developments have failed to encourage a renewal of trade union collective power, leaving workers increasingly insecure, dependent upon markets, and vulnerable to the vagaries of state power.
This paper argues that law and humanities scholarship as well as socio-legal studies can benefit tremendously by rethinking systematically the modes of expression of law. The force of law passes through a wide variety of media – to name only a few: spoken or written words, gestures, visual images, technical objects, human bodies. Intuitively, we may sense that each of these different sorts of mediators has some effect on the nature of the legality or normative force that it conducts and makes pass. The jurisprudential temptation is to reduce these media out of existence and to theorize, for instance, the essence of legal form apart from the substances that give it reality and materiality. The paper sketches the outlines of an anti-jurisprudence that shifts the focus to those forgotten but undeniable substances, asking how they inflect the force of law differently in each case. The paper’s most important resources are the concept of mediation in Bruno Latour’s actor-network theory and the theory of stratification worked out in the mid-20th century by Danish linguist Louis Hjelmslev, which offers a diagram of expression that can be converted for legal-theoretical application. The upshot of this reflection on the force of law, legal stratification, and the vincula juris through which law passes is that we are obliged to take seriously the media of law’s expression: it is there that law makes society and is itself made.
This essay takes as its focus the work of Mikhail Bakhtin, a leading literary theorist who has, to date, received relatively little attention in the field of law and literature. Central themes in the work of Bakhtin include the dialogic quality of the novel and its ethical implications, its commitment to singularity and context, its comprehensive critique of authority and, tying all of these features together, the importance of form and style to our understanding of the experience of literature. These themes all pay attention less to the subject-matter or content of particular works of literature than to its historical trajectory, its distinctive characteristics, and its approach to language. This is perhaps one important way in which Bakhtin’s approach is distinct from the focus on "narrative" which is so much the staple of law and literature writing. The novel’s "heteroglossia," as Bakhtin puts it – its irony, ambiguity, and "doubleness" – is neither a serendipitous features of certain texts nor a secondary element of normatively driven "story-telling," but structural and stylistic characteristics of the novel as such. Bakhtin thus problematizes the treatment of narrative and the authenticity of voice assumed in much of the standard literature. While Bakhtin brings to these arguments an unprecedented sweep and command of detail, and a highly distinctive vocabulary for analysis, his arguments parallel the work of the other twentieth-century writers on literature. In particular, writing at the same critical historical moment, Bakhtin’s claims are echoed in D.H. Lawrence’s own essays on the novel, and illustrated – indeed, performed – in his fiction.
In this essay, we make a case for reading narratives from the great story collections of medieval India as evidence of legal consciousness. We attempt to redirect the largely empirical approach of legal consciousness studies toward the literary and historical analysis of Sanskrit texts. In so doing, we move beyond a legal history of India that focuses too narrowly on the texts of Sanskrit jurisprudence. We conclude that such analysis provides insight into both the literarily constructed image of law as the hegemonic domain of elite Brahmins and kings and the assumptions and awareness of law and legal procedure among ordinary people in this historical context.
After Emmett Till’s murder in 1955, African-Americans mobilized political mourning to oppose the status quo of white power. Till’s death and media coverage that followed generated an affective connection by white Northern liberals to the plight of African-Americans in the South; as a result, Till’s death and the mourning that followed contributed to subtle but important changes that enabled the burgeoning Civil Rights Movement to appeal to the white majority. This effort succeeded in generating white sympathy because it exposed the distance between formal law and law on the ground and expanded the audience to the conflict.
This article examines the logic of necessity in eminent domain cases in the United States. While much has been written about "public use" justifications as adjudicated by courts, less attention has been paid to necessity. In part this is because public use is an explicit part of Fifth Amendment limitations on "takings" while necessity is part of the buried logic of sovereignty that grounds its exercise. Readings of pivotal cases from McCulloch to Kelo lead us to question recent attempts to revive necessity as a legal standard for reining in eminent domain power.
This essay names and examines an often-used but little discussed category of legal evidence: semi-legible visual evidence. Semi-legible visual evidence can take many forms, including blurry photographs; low-quality films shot by police dashboard cameras, surveillance cameras, or iphones; fingerprints; x-rays; MRIs and PET scans, to name just a few of the many types of visual display introduced in court that are only partly decipherable to a (lay) viewer. Semi-legible images cannot be said simply to speak for themselves; they must be made to speak, through the exertion of effort, expertise, or both. I argue that thinking about these different kinds of visual evidence together has the effect, not only of highlighting semi-legibility as a meaningful evidentiary category, but also of suggesting important but often-unnoticed connections between expertise and visual legibility. In addition, this essay offers a basic taxonomy of semi-legible visual evidence, examining, in turn, blurry images; interpretively ambiguous images; "jigsaw" images, in which an important piece is missing; images semi-legible to laypeople but readily decipherable by those with relevant expertise; and images semi-legible even to experts. For each category, I describe its parameters, focus on strategies by which it may be made more (or less) legible, and discuss particular challenges it offers as evidence. This essay thus aims to contribute to our understanding of the complex methods by which we produce, wield, enhance, read and interpret visual evidence in court.
This essay argues that U.S. judicial decisions in obscenity cases at the beginning of the twentieth century reveal a systematic social process of emotion management that supported, in ways not previously recognized, the emotional culture of the middle class and, through it, middle-class status policy. Using a grounded theory analysis on a sample of 256 U.S. federal judicial opinions between 1873 and 1956, the analysis shows how the evidentiary rules developed by judges in anti-obscenity cases at the turn of the twentieth century were actually "feeling rules" meant to penalize lust, assert social control over women via normative shame, and define normalcy as self-control over inner life.
This article first argues that the thinking behind different theories of collective self-constitution – normative political and reflexive – is commonly restricted by the particularly occidental metaphysics of medieval natural theology which rendered transcendence immanent and domesticated and absolutized God’s unlimited power. The article then shows how this "defective immanence" of constitutional thinking functions ideologically through retroactively colonizing other forms of "theo-politics" in non-occidental monotheistic socio-political organizations.
The law of immigration rests upon the space of the nation-state and on how the movement of bodies in and out of that space is legally imagined. Whether formal legal doctrine recognizes a human body as inside or outside a nation’s territory is deeply consequential. Yet this formal doctrine presumes the nation-state to be a natural and innocent space absent of systems of domination. Case studies of concrete spatial locations demonstrate the social production of space. The case of a Danish reform coupling restrictions on forced marriage with a minimum habitat requirement indicates how space and immigration are produced in relation to gendered notions of race, linking the micro-space of the home with the macro-space of the homeland. The case of African Americans and poor relief in late eighteenth century Massachusetts, whereby immigrant origins were invented to evade town fiscal responsibility, shows how governmental space and immigration are produced as legal fictions. The Commentary concludes with a discussion of cosmopolitanism’s yearning for an ethical place-lessness, and of the challenge posed to nation-state sovereignty and legal imaginings of space by noncitizens whom the state seeks to cast out.
In my article, I establish how the poet’s pro-regicidal tracts The Tenure of Kings and Magistrates and Eikonoklastes support an evolutionary notion of kingship, and in doing so seek to shift the balance from a concept of monarchical rule in which the differentiation between adequate versus criminal leadership is largely inconsequential to one in which the quality of sovereign leadership matters. I specifically demonstrate how Milton follows Dutch scholar Hugo Grotius, leading proponent of just/unjust martial theory during the sixteenth and seventeenth centuries, to determine that restricted modes of battle were necessary means to the creation and perpetuation of an orderly and organized society, which more and more responded to misuses of sovereign authority by supporting the individual’s right to resist and expel a bad king.
Following Foucault’s demystification of liberal rights, this article complicates narratives of cultural enclosure in intellectual-property regulation, and especially their central figure of a right-fully sovereign user constrained by copy protection. First, it problematizes the freedom imagined for the user, as a specific and ambivalent orientation to contemporary cultural transformation. Second, in a reading of the Federal Communication Commission’s proceedings on "broadcast flag" protection for digital television, it reconsiders apparent constraint as productive rather than simply repressive regulation, which goes to constructively map uses and users in new domains of digital media.
Although cinema is now commonly recognized as a significant source of knowledge about law, in this article I argue that it is also a space in which law is questioned, rethought and reimagined. Outside the traditional realms of legal philosophy, cinema is a pre-eminent site of jurisprudence. To illustrate this, I examine the recent films The Proposition (2005) and Australia (2009) as they each critique and justify the sovereignty of a specific legal order over a particular landscape. As part of an Australian tradition of ‘‘unease’’ concerning legal authority, these films provide compelling instances of cinematic jurisprudence.
School bullying has been recognized only relatively recently by policy-makers, media and the courts as a serious and widespread social problem. But despite this recent notice, there has been no evidence that techniques adopted to stop bullying have led to anything more than modest success, implying that we need to do more work to unpack and theorize the nature of bullying. In this article, we consider a recent vampire narrative as a story about bullying. We offer an interpretation of this story via the theories of Claudia Card and Jacques Derrida, arguing that together this archive provides a more nuanced understanding of the kinds of damage inflicted by bullying than has been provided by realist or sociological accounts. In particular, it illuminates damage to the morality of the victim, to their soul, which is a kind of damage that has previously not been given great attention. It also highlights the ways in which practices of judgment can become very tangled when trying to resolve bullying situations, making these experiences resistant to the achievement of justice.
This article operationalizes the work of Giorgio Agamben, through the prism of popular culture and filmic studies. Drawing extensively upon the cinematic experiences of The Road, District 9 and Blindness, a critique is formulated of this pre-eminent scholar’s theory. Beginning with an analysis of the state of exception, Agamben’s chilling assertions are examined. The remainder of the article then discusses the three films, as they provide the perfect vehicle for challenging Agamben’s obsessions and contradictions. Although tied together by the common thread of the camp, the hidden matrix of modernity, each film occupies a distinct position along a spectrum of governmentality. Ultimately, what is exposed goes to the heart of the sensational, diabolical and disturbing world Agamben incarnates.
The article examines the governmentality of noncustodial forms of immigration control over immigrant bodies. It uses the Spiderman cartoon character Venom (Black Spiderman) as a metaphor for expansive and shape-shifting state sovereign power. This plenary power is a machination of the Department of Homeland Security (DHS) and the courts. Like the venom symbiote it takes form from the state having contact with immigrants. Specifically, the article focuses on electronic detention (alternative to detention, or ATD), which limits an immigrant’s freedom, but is technically considered neither detention nor custody. This legal construction leaves almost no accountability. Thus I argue that ATD initiatives create an extra legal space of unchecked power that is deployed on immigrant bodies, and just like Black Spiderman they allow aggression to be amplified to dangerous result.
In the documentary film Defending Our Lives (1993), women imprisoned for killing their abusers narrate their mistreatment by both their partners and the law. This article examines the film’s function in preparing future attorneys to advocate for women in abusive relationships. It argues that the film encourages rhetorical listening by helping future advocates understand the cultural logics informing abused women’s choices. The film compels viewers to examine the broad cultural contexts of intimate partner abuse, including the sometimes hostile responses of the law, disrupting commonplaces about the role of the legal advocate in the pursuit of justice.
There has been a recent shift in perceptions of photography and privacy in Australia. The view that our privacy is under threat has created an atmosphere of paranoia and fueled demands for law reform in relation to photography in public space. As photographers and privacy advocates battle each other by opposing the right to privacy with the right to free expression, there seems little chance of finding a workable solution. This article will consider this issue more deeply by analyzing the links between photography, privacy and the public, and assessing the cultural and political implications of this new climate.
This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinéma vérité), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive and cultural) as authoritative rhetoric that must be disputed and reappropriated to serve the specific goals of justice.
This commentary addresses scholars and activists in liberal national states who advocate on behalf of undocumented immigrants, and offers some reflections on some of the intellectual and political challenges we encounter. I will suggest that the nature of our standard arguments on behalf of immigrants can sometimes give too much ground to current social conditions, and that we may – in our efforts to remain immediately policy-relevant – relinquish the opportunity to develop more fundamental social criticism of existing immigration relations.
Since the passage of the Native American Graves Protection and Repatriation Act of 1990, American Indian funerary remains have been returned from museums, research laboratories, academic institutions, and federal agencies to the tribal communities from whom the deceased originally derived. According to law, however, such repatriation requires first that those tribal communities furnish blood evidence of kinship with the remains. One objective of this article is to stage an intervention in the "ethics of burial" and "politics of dead bodies" debates orbiting around the indigenous repatriation issue. More specifically, however, I mean to cast the indigenous repatriation movement in terms of the broader concerns captured by political theories of transitional justice and reconciliation. The argument I defend suggests that in mapping Sophocles’ fifth century Athenian tragedy, The Antigone, onto these movements some important and hitherto unexplored questions about the meaning of repatriation as a tactic of political repair for historical injustices associated with the violent colonial expropriation of territories can be invoked and grappled with. In particular, I argue that the Antigone reveals a theory of repatriation based on reconciliation as survivance rather than recognition.
Codifications of human rights are widely understood as politically established instruments for evaluating human life. The call for such an apparatus emerges as a response to the age-old problem of social organization, constituting – in extension – a means by which to cope with the overall problem of survival. However, evaluating life is inherently problematic. It is problematic as it presupposes an already existing framework by which to judge all instances of life. In a way then, the impartial evaluation of life seems impossible from a human point of view. Nevertheless, as the problem of survival is one of continuous relevance, attempts to formulate reasonable variables may be viewed as a necessary strategy for organizing a viable society. We aim at investigating the problem of codifying evaluations of life by looking at paradigmatic examples from the discourse of education for sustainable development, using a theoretical framework drawing on the ethics of Nietzsche and Deleuze in particular.
In 1959, Hannah Arendt published an essay in Dissent criticizing the school integration movement. Ever since, the essay has been understood as an anomaly in her work and an affront to the school integration movement that followed Brown v. Board of Education (1954). Rather than being dismissed, this article suggests that Arendt’s "Reflections on Little Rock" should be read alongside her contemporaneous works and appreciated for bringing up a topic that was central to Brown. It argues that Arendt’s "Reflections," like the Brown opinion, was largely concerned with improving black children’s childhoods and that this point brought to light a broader concern for children’s childhoods that preoccupied Arendt deeply in the late 1950s.
This commentary reflects on the imperial qualities of modern sovereignty and law, through the lens of Jacques Derrida’s notion of sovereign "autopositioning." It argues that modern sovereignty is essentially imperial and yet carries an inextinguishable anti-imperial thrust. These characteristics highlight the self-grounded force of sovereign claims and at the same time expose the contingency of those claims. The commentary argues that this relationship between force and contingency creates a need for vigilant critique of and a space for resistance to, sovereign claims.
Digital visual displays construct legal knowledge in new ways and reconstitute our notions of community both inside and outside of law. This article describes three problems that the proliferation of visuals poses for legal theory. The first concerns how to subsume the flood of images in court within a jurisprudence of words. The second probes how some visuals induce belief by seeming to combine access to the real with the allure of dreams. The third asks us to rethink what legal judgment may borrow from popular visual culture while still yielding acceptable justice. Each dimension of legal visuality creates tensions in our conceptions of what law and legal knowledge should be.
This commentary argues that the typical representation of exiles and immigrants in literature be distinguished from their representation in the law, where they are often given not to descriptive and plaintive expressions of their plight, as is the case in so many literary texts, but to simple affirmations of their existence. As the commentary goes on to show, the expression of exilic presence often comes in the form of an illocution – statements that make things happen as opposed to merely describing them – which have the potential to alter our view of exiles and immigrants as outsiders who are powerless and bereft anywhere but in their country of origin.
The advent of the photographic camera in the mid-nineteenth century enabled the "likeness" of an individual to be lifted with relative ease from its possessor and rendered with uncanny precision upon material. This fracturing of the subject into transportable, reproducible objects threatened a novel kind of harm, especially for women. This article brings new research to bear on the origins of the American "right to privacy" (such as the Federal 1888 "Bill to Protect Ladies"), arguing that the foundational 1890 article by Warren and Brandeis was but one of numerous attempts to remedy the unauthorized circulation of women’s photographic portraits. The gendered nature of this "right" means it must also be contextualized within women’s history and the broader struggle for equal citizenship. The "right to privacy" cannot simply be dismissed as a purely conservative doctrine invoking feminine modesty. In its demands for the legal recognition of those pictured as active subjects, rather than "pretty" objects, as individuals rather than nameless faces, as possessors of valuable property, rather than as valuable possessions in themselves, I argue that the "right to privacy" challenged the masculine prerogative of copyright law and pushed back against the reduction of women to silent, compliant images that was occurring on an industrial scale, in the late nineteenth century.
In American immigration cases, the courts have simultaneously imagined different kinds of situations in which immigrants are regulated: situations where the plenary power doctrine suspends the ordinary operation of the law and situations where everyday legal norms are operative. Focusing on the exclusionary era between 1882 and 1905, this article demonstrates how legal discourse imagines and describes the situations in which particular kinds of administrative action are to occur. These situations were fraught with an ambivalent tension between the extraordinary and the ordinary that corresponded to popular literary conventions in the late nineteenth century. Genres like naturalism and the western similarly demarcated ordinary and extraordinary situations, and the law’s composite sense of situation simultaneously drew upon and disseminated narrative conventions that existed in a wider cultural milieu. These correlations can inform our understanding of the connection between sovereignty and administrative discretion.
The essay explores the interactive role of experts in the construction of the intangible object in copyright law. It pays special attention to the interventions and eventual connections of a British design consultant and fashion designer, Victor Herbert, in different copyright cases such as the well-known Designers Guild Ltd v. Russell Williams (Textiles) Ltd [2001]. The article traces the background of his early court appearances as an expert witness and the range of visual techniques and experiments he developed to "materialize" the incorporeal in copyright law.
Contemporary discussions emphasize crisis, fragmentation and reconstruction in the definition of the "new fatherhood." In UK law, attempts to reinstate the "Name of the Father" into familial structures have appeared to shore up conventional family forms against the threat of dissolution. This article examines the difficulties of defining and describing legal and literary fatherhood through examination of two recent works, Bret Easton Ellis’ Lunar Park and John Burnside’s A Lie About My Father. It suggests that the father of memory and imagination possesses qualities of falsehood and emptiness which mirror the intangibility and symbolic overburdening of the paternal signifier as theorized by Lacan and more recently Zizek. Thus, remembered fathers abuse, neglect, and crucially, lie to sons who long both for the presence of the human father and for the magic of the signifier. It then examines the authors’ strategies for forgiveness of their fathers and their attempts to reconcile the liar with the lying signifier, discussing ways in which imagining the father as embodied individual aid in the rehabilitation of the paternal signifier itself, with implications for sociolegal conceptions of fathers and fatherhood.
European and North American crime films since the 1990s reflect changing cinematic styles but also hardening political discourses around criminal responsibility and growing public fears of random violence and predatory strangers. The narrative structure and imagery of "Little Red Riding Hood" conventionally warns about the latter dangers, but can also offer a lesson in self-reliance and the necessity for private action to forestall them. The familiar story provides a malleable cultural referent for a number of films elucidating social, political, and criminological shifts concerning issues of crime, justice, and crime control around the turn of the millennium.
What did President Barack Obama mean when he called empathy an "essential ingredient" in judicial decision making and, thus, the outstanding quality he would look for in his Supreme Court nominees? This article attempts to answer that question by an analysis of Obama’s public statements and published writing. It also provides a comparative study of Obama’s jurisprudence of empathy with Founding Era Justice James Wilson’s jurisprudence of common sense in order to illustrate the dangers of a judge deciding difficult cases with recourse to unconventional, extra-legal tools.
William Godwin’s political philosophy positioned him as a key British radical during the French Revolution. And although his popularity was short-lived, his first novel, Things as They Are; or, the Adventures of Caleb Williams, was tremendously successful and influential in the 1790s. The novel illustrates how the humanities can contribute to our understanding of justice, advocating the Romantic virtue of "sympathy" to transform retributive justice to a more restorative and sustainable model, as many current sociologists promote. This article explores the intersection of three facets of the humanities and punishment: A direct engagement with Godwin’s novel Caleb Williams, its relevance to current punishment theory in America, and my own experience with sympathy and punishment in the prison system.
This article looks at the boundary work performed by Victorian doctors in order to position themselves as beneficial to the court in helping to determine whether a woman had been raped. These doctors provided tangible physical evidence to support already widely-held beliefs about the nature of the rape victim. Such physical evidence could then be used to support, or undermine, the complainant’s allegation. The article concludes that the reliance upon forensic evidence, the result of such boundary construction, is one of the major factors maintaining the current international "justice gap" in rape cases.
Among the most persistent and difficult problems in the field of copyright law is determining whether copying has actually occurred. This article responds to this challenge by proposing that judges and juries consider practices used in disciplines revolving around the close and methodical viewing of visual objects. Of special interest is connoisseurship, long employed by art historians, curators, and collectors to adjudicate the origins, provenance, and authenticity of art. Mindful of law’s emphasis on the spoken and written word, this article focuses especially on the visual analyses of Otto Pächt and Hans Sedlmayr, two art historians whose foundational status in the discipline of art history stems from the extent to which they attempted to systematically translate the experience of looking into words. The article concludes with a brief test case drawn from the high-profile 2005 dispute between architects Thomas Shine and David Childs over the latter’s alleged infringement of the former’s design.