Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

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The growth of incarceration in the United States: exploring causes and consequences

The rise in the importance of nonstate actors in generating new norms in world politics has been documented by scholars, but the literature has focused predominantly on nonsecurity (“new”) issue areas. Conversely, although recent constructivist work in international relations has examined the security policies of states, typically it is the state that is doing the constructing of interests. I bridge these two literatures by examining the hard case of transnational civil society working through issue networks to teach state interests in security policy. I analyze the campaign by transnational civil society to generate an international norm prohibiting antipersonnel land mines and trace the effects of several techniques through which states can be said to be socialized. Through generating issues, networking, “grafting,” and using a transnational Socratic method to reverse burdens of proof, the campaign has stimulated systemic normative change through two processes: norm adoption through the conversion of persuaded moral entrepreneurs and emulation resulting from social pressures of identity.

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Reversing the Gun Sights: Transnational Civil Society Targets Land Mines

Forgiveness and related constructs (e.g., repentance, mercy, reconciliation) are ripe for study by social and personality psychologists, including those interested in justice. Current trends in social science, law, management, philosophy, and theology suggest a need to expand existing justice frameworks to incorporate alternatives or complements to retribution, including forgiveness and related processes. In this article, we raise five challenging empirical questions about forgiveness. For each question, we briefly review representative research, raise hypotheses, and suggest specific ways in which social and personality psychologists could make distinctive contributions.

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Forgiveness and Justice: A Research Agenda for Social and Personality Psychology:

The problem of 'justifying' mercy is old, but it has resurfaced recently in light of debates over "restorative justice" alternatives to state-imposed retributive punishment. We wonder whether a victim/offender reconciliation that does not involve a painful sentence can be just; we wonder whether an executive is ever right to pardon out of compassion; we wonder whether judges should have discretion to sentence leniently in cases where defendants are remorseful, have dependents, are ill, have reformed, or are community heroes. Within the retributive punishment tradition that understands punishment as some form of "just deserts" based on the crime alone, all of these exercises of leniency are illegitimate. This book challenges this orthodoxy at its Kantian conceptual roots, rereading the philosophical tradition to argue that mercy is the prerequisite for just punishment, rather than its nemesis. The first step is taking seriously the idea that humans live with each other in time, not as isolated "reasoners" or "choosers" in a conceptual eternity. From this insight follows an account of law as common law, not universal rules; an account of punishment as a response to wrongs that resettles relationships for the future in conditions of uncertainty; and an understanding of mercy as a fundamental ethical requirement never to give up on each other. By unearthing an alternative to our "just deserts" apologies for a cruel and broken penal system, the hope is that all the rich institutional possibilities imagined by the restorative justice movement will become more conceptually acceptable and available. The book is available through Project Muse website.

The Justice of Mercy

A discussion of forgiveness and its relation to the community as a whole. The author argues that forgiveness is not merely personal, emotional, nor private, but rather that forgiveness grounds the basic trust which binds the community together.

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Forgiveness and Public Trust

This paper confronts the relation between law and revelation. What happens when “reasonable minds differ” has been a question for me for a long time, but that question assumed that the differing minds were both reasonable. The problem of what to do when the intersubjective reason of the law confronts the “absolute truth” of divine revelation takes that problem to a new crisis point, one that has contributed to what President Obama recently referred to as an "epistemological crisis" in American politics. 

The paper builds on a previous article in which I took a deep dive into the doctrine of deific decree insanity cases: cases in which a defendant claims that they committed a murder because God told them to do so. One of the most troubling cases that I highlight in this essay involves a murder by leaders of a group calling themselves the Gatekeepers, in which two men believed they had both received a message from God telling them to kill a wayward former acolyte. The case is troubling because these men followed traditional religious approaches to assessing their revelation, and because they seemed in other respects free of mental illness. 

As I confronted these cases, I didn’t want to take the easy way out of declaring that everything “unreasonable” is insanity, which deprives defendants of personhood and demeans their faith. On the other hand, I did not want to give up on the reason of law entirely, which would, I think, result in solipsism and the failure of intersubjectivity. The very long rabbit-hole I went down, in the 88 printed pages and 347 footnotes of the earlier paper, Unreasonable Revelations, left me with an approach to these cases which would acknowledge the possibility of religious revelation, but declare it beyond law’s jurisdiction, and therefore a factor that could not, by itself, excuse a serious crime (though mercy would remain an option). For lesser crimes, American law already has a principle of religious accommodation in the Religious Freedom and Restoration Act that treats religious faith with “judicial shyness.”

In this article, I relate these deific decree cases, weirdly, to constitutional originalism. As I read about the deific decree cases and their legal history, I fell headlong into the history of the Reformation in England. Part of the question for U.S. Constitutional law about how to deal with religious differences stems from the experience of religious persecution during that period, when people were hung or beheaded for either believing in transubstantiation or not, depending on which monarch was currently reigning. It struck me that the Puritan effort to overturn Catholic tradition (and corruption) in favor of a “purification” and return to the original Biblical text (Sola Scriptura) had an analogy to constitutional originalism’s attempt to purify American constitutional tradition by returning to an ur-text or framing moment. This seemed a bit crazy until I very belatedly discovered Sanford Levinson’s book, Constitutional Faith, which makes the same point more elegantly. It seemed to me that originalism’s response to our current American epistemological crisis is to double-down on certainty. Originalism seems to be one response to the crisis which pretends to find a “value free” approach to questions of constitutional values by turning outside law to history.

I argue that this quest for certainty, like the Protestant reformation, does not promote unity or rehabilitate legal reason, but the reverse: it collapses itself into schism and individual solipsism. This happens because both movements (Puritanism and Originalism) reach outside the “humble law” of human tradition and institutions to claim an absolute truth. They destroy “humble law,” but in the process are left chasing an absolute truth that cannot provide what they seek, because all human truth ends up being incompletely intersubjective and temporal and customary and “institutional.” This general insight is not at all interesting or unique. Wittgenstein said rule-following was dependent upon a “form of life;” Nietzsche noted this progression in “how the real world became a myth”; Heidegger said it about the nihilism of metaphysics; Levinas said it when he argued that ethics comes before ontology, etc. So, just as law cannot judge “divine decrees,” law cannot judge “absolute truths.” Law is incomplete, temporal, and has no ur-source. It is simply our way of getting along and trying to treat like cases alike over time, as best we can, together, see to do so.

One point I wish I had made more clearly: I don’t think that history is just solipsism, though some of the passages in this paper suggest that account. Historians have customs about doing history that provide intersubjectivity within the practice of history. The problem is not that history is solipsism, but that law is not history. History looks for hidden truths. Good history reveals something about the past we did not know before. Law looks for founding principles for a just and fair society. Part of what makes for a just and fair society is treating like cases alike. But historians don’t look at history to find moral exemplars (these days) or to find continuities only. They could care less whether the founders were well-intentioned or just wanted to get rich on the slave trade. They don’t look at history to find ideals, or patterns of treating like cases alike, but to find discontinuities with prior histories -- new and different perspectives that have not yet been discovered. 

So when law starts looking to history for absolute truths about founding values, it ties its wagon to bad intentions and discontinuities too, depending on what historians uncover, rather than only on enduring principles of fairness that can establish a just society. The Second Amendment could be read historically as promoting the genocide of Iroquois as easily as promoting a right to self-defense in the home. (Here, the picture differs from Puritanism, which, after all, assumes that the Bible is the product of infallible divine revelation. The Founders, however, were far from infallible and divine). 

So, when law starts looking to history, its own custom is to put on rose-colored glasses, to assume the best intentions of the framers or framing generation, just as courts are required to assume that statutes are constitutional and rational and enacted for the good of the whole. Law looking at history necessarily begins picking and choosing just the bits that seem good and valuable – which is not a value-free enterprise of finding absolute truth, but the same old incremental search for reasonableness that it ever is, only now under a false cloak of objectivity. This picking and choosing of bits of history comes to look like solipsism, if the customs and institutions of legal precedent have been discarded as insufficiently grounded, because now the intersubjective "humble law" reason embedded in the institutions no longer grounds the search for “good bits.” In the end, though, originalist history pretends at objectivity, but ends up finding the institutional norms it took with it into the historical investigation, norms that are grounded in institutional custom and case law, not historical fact -- and are indeed the very sources it pretends to eschew.

Revelation and Legal Personhood

This essay discusses whether, as Judith Shklar might argue, catastrophes are better framed as injustices. Rejecting this view, the paper argues for a definition of catastrophes as events that overturn our normative categories themselves. Using the Book of Job as an extended example, the essay argues that our usual responses to catastrophes, denial or nihilism, leave out the possibility of a stance of openness that allows for heroism and grace to appear.

Catastrophe: Plowing Up the Ground of Reason

What do crime victims want? The answer suggested by Alexandre Dumas’ iconic character Edmund Dantes in The Count of Monte Cristo suggests that victims may want retribution, not revenge. Victims may seek more than restored honor or personal restitution. They may long for justice to prevail as an affirmation that the world still makes sense. Yet, Dumas also reminds us through the novel that human justice is only human and cannot provide this kind of cosmic guarantee. From this perspective, it is revenge, not retribution that looks more measured and more humane.

Linda Ross Meyer

Papers

The Justice of Mercy

Forgiveness and Public Trust

Revelation and Legal Personhood

Catastrophe: Plowing Up the Ground of Reason

The new revenge and the old retribution: insights from monte cristo