Showing papers in "Law, Culture and the Humanities in 2006"
TL;DR: This paper argued that legal language is itself a myth, in that it is really just ordinary language with a great deal of technical terminology, and that it should be relegated to that status as quickly as possible.
Abstract: Over the centuries, much has been written about the language of the law. The language of lawyers is archaic and conservative. It is full of Latin and French. It is wordy and redundant, pompous and dull, and either highly precise or maddeningly indeterminate. Perhaps the most interesting suggestion is that legal language is itself a myth, in that it is really just ordinary language with a great deal of technical terminology. Some of these assertions have more than a kernel of truth, others are complete myths, and yet others should be relegated to that status as quickly as possible.
37 citations
TL;DR: In any kind of literary analysis, the critic must grapple with linguistic ambiguity, and the law cannot help but operate in a linguistic realm as well as discussed by the authors, yet studies of law and literature by literature scholars in particular remain strangely resistant to both.
Abstract: In any kind of literary analysis, the critic must grapple with linguistic ambiguity, and the law cannot help but operate in a linguistic realm as well. Neither of these claims is terribly startling, yet studies of law and literature by literature scholars in particular remain strangely resistant to both. Literature scholars working in this field surprisingly tend to assert that the law grounds the ephemeral realm of the literary, and thus that the law corrects literature's linguistic quality. This unfortunate theoretical tendency is an effect of a broader problem in literary studies: an aversion to ambiguity that has seeped from studies of the novel into studies of law and literature.
18 citations
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TL;DR: In this paper, Nonet offers an original interpretation of Sophocles' Antigone and through it a powerful rethinking of law as eternal and unchanging, and as binding gods as well as men.
Abstract: Philippe Nonet offers an original interpretation of Sophocles' Antigone and through it a powerful rethinking of law as eternal and unchanging, and as binding gods as well as men. Exploring the question of whether that law, which Nonet calls “Antigone's Law,” is the Antigone's law, I open the possibility that the law Sophocles stands behind is not independent of human art and activity but more at home in the ethical and political life it governs
16 citations
TL;DR: The theoretical tradition of just war theory, when concretized through explicit linkage to specific standards of contemporary human rights law, offers an approach to resolving this dilemma that does not unduly privilege war-making as discussed by the authors.
Abstract: The contemporary international law of war is torn between the pressure to incorporate a doctrine to legitimize limited armed humanitarian intervention and its traditional concerns for nations' sovereignty. Especially because of its organic, interconnected nature, the theoretical tradition of just war theory, when concretized through explicit linkage to specific standards of contemporary human rights law, offers an approach to resolving this dilemma that does not unduly privilege war-making. This approach is both consistent with international law and useful as an example of the relevance of drawing on humanistic reasoning about justice in international jurisprudence. The argument is illustrated by reference to the cases of the failure of humanitarian intervention in Rwanda in 1994, the armed intervention in Kosovo in 1999 and the US-led wars in Iraq in 1991 and 2003.
16 citations
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TL;DR: Antigone's law is the same as Heidegger's law as discussed by the authors, and it is the unsayable law of all law, which fulfills itself in the radiance of τo κάλλλoς.
Abstract: Antigone's law is the same as Heidegger's law. The name of the first is φύσις, the name of the second is Ereignis. Both names are untranslatable. They signify the mutual belonging of being (das Sein) and the essence of man. This law fulfills itself in the radiance of τo κάλλoς. It is the unsayable law of all law.
9 citations
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TL;DR: The relation of the unsayable to the unspeakable, the relation of law to its citations, and the relations of autonomy to heteronomy in Antigone's Law are discussed in this paper.
Abstract: Philippe Nonet's “Antigone's Law” raises interesting questions for the philosophy of law. Nonet's text points to three problematics in particular: the relation of the unsayable to the unspeakable, the relation of law to its citations, and the relation of autonomy to heteronomy.
9 citations
TL;DR: In this paper, the authors take as their focus the discourses that emerged around access to Viagra, focusing on the construction and privileging of a legal familial masculinity, which is heterosexual, genito-centric, naturalistic and above all familial.
Abstract: This article takes as its focus the discourses that emerged around access to Viagra. More specifically, the construction and privileging of a legal familial masculinity is addressed. These responses to Viagra provide the focus for a number of reasons. The debates marked a shift in public consideration of masculine sexuality in a variety of ways. Most notably, it introduced a degree of transparency in the public consideration of what was and what was not appropriate, and hence deserving, masculinity. The article starts by outlining the understanding of masculinity that underpins the subsequent analysis. It then moves to introduce aspects of the relationship between law and masculinity. It considers how the discourses around access relate to broader legal and cultural matrices that privilege a certain masculinity, one which is heterosexual, genito-centric, naturalistic, and above all familial. Importantly, the privileging of penile/ vaginal contact denies the legitimacy of other connections that do not exis...
6 citations
TL;DR: Both law and psychoanalysis make certain truth claims as mentioned in this paper and each has evaluated the truth claims of the other and found them wanting, and both sides have argued that the other side's truth claims are unsatisfactory, while simultaneously insisting on their incommensurability.
Abstract: Both law and psychoanalysis make certain truth claims This essay considers instances in which each has evaluated the truth claims of the other and found them wanting The essay begins by looking at legal materials and commentaries surrounding repressed memories of childhood sexual abuse and the therapies in which such memories come to light Many of these materials contrast psychoanalytic knowledge to legal knowledge, locating speculation and potentially dangerous uncertainty in the former Yet courts and others employ notable analogies between legal and psychoanalytic processes while simultaneously insisting on their incommensurability Following an analysis of this tension, particularly as it plays out in one recent case, the essay turns to Freud's 1906 lecture on the usefulness of psychoanalytic techniques to legal proceedings and their search for facts Freud, too, makes his case through a tenuous analogy between law and psychoanalysis While courts and others may see the two as antagonistic, Freud i
5 citations
TL;DR: In this article, the authors draw on mixed media and genres comparative ethnography (from the margins of neoliberalism), current events (the Bush administration's case for war in Iraq and the campaign to ban same-sex marriage), and literary text (Shakespeare's King Lear).
Abstract: Legal consciousness is vulnerable to sudden and profound change, even when there is no disruption to social or administrative routine. Such dilemmas pose problems that are at once hermeneutic, pragmatic and textual involving issues of recognition, decision making, agency, representation and discursive management, among other things. In this essay, I explore these issues by drawing on mixed media and genres comparative ethnography (from the margins of neoliberalism), current events (the Bush administration's case for war in Iraq and the campaign to ban same-sex marriage), and literary text (Shakespeare's King Lear). Reading across these sources, my purpose is to advance the case for taking the literariness of state power seriously as a register in which core propositions about the relationship between legitimacy and democratic accountability can be asserted and contested through the language of everyday life.
4 citations
TL;DR: Baruch Spinoza as mentioned in this paper argued that philosophy and democracy are mutually reinforcing: philosophers can pursue challenging lines of inquiry in a democracy that grants freedom of speech, and the democracy that welcomes philosophy proves more resilient than a tyranny that polices opinion.
Abstract: In this essay, I challenge genealogies that anoint Baruch Spinoza the founder of liberal democracy and liberal individualism. Spinoza's departure from mainstream liberal individualism manifests most starkly in his argument for freedom of thought and expression–the argument invariably cited to prove Spinoza's liberal credentials. When Spinoza defends freedom of speech, in The Theologico Political Treatise, he endorses a mode of democratic citizenship, and an ethos of public discourse, devoid of the heroic self-display endorsed by theorists like John Stuart Mill. According to Spinoza, philosophy and democracy are mutually reinforcing: philosophers can pursue challenging lines of inquiry in a democracy that grants freedom of speech, and the democracy that welcomes philosophy proves more resilient than a tyranny that polices opinion. Philosophy enhances democracy because philosophers comport themselves in ways that expand egalitarian community: specifically, philosophers observe anonymous protocol. According ...
4 citations
TL;DR: In this article, the authors argue that reading psychoanalytic texts structurally shows that the unconscious and civilisation share the same language, and that the human brain is structured like a language.
Abstract: This paper is premised on Lacan's demonstration that the unconscious is structured like a language. Reading psychoanalytic texts structurally shows that the unconscious and civilisation share the s...
TL;DR: The authors argue that the carceral literature classroom is at odds with the rehabilitative principles that have brought it into being and argue that literature classes provide a context for a rich ethical engagement with the self and the social world it encounters, and in this respect seem to adhere to the moral aims and principles of correctional education.
Abstract: This essay will argue that the carceral literature classroom is at odds with the rehabilitative principles that have brought it into being. Teaching literature and criticism behind bars highlights the difference between a normalizing rationality implemented through institutions of correction and the concept of an ethical selffashioning that enables human beings to think and act in ways not determined purely by the force of their passions. While literature classes provide a context for a rich ethical engagement with the self and the social world it encounters, and in this respect seem to adhere to the moral aims and principles of correctional education, the kind of human potential that criticism claims to emancipate couldn’t be more different from that imagined in the discourse of rehabilitation and reform.
TL;DR: The authors compare Thomas Hobbes' notion of demonology with contemporary notions of "the spectacle" and argue that Hobbes offers these later thinkers a useful distinction between his notions of idolatry and worship, a distinction that helps (particularly in Debord's case) avoid a choice between a lost and true...
Abstract: In this paper, I compare Thomas Hobbes’ notion of demonology with contemporary notions of “the spectacle”, an idea articulated by Guy Debord and embellished (albeit in a somewhat different way and with a different name) by Walter Benjamin. I note that despite the three centuries that separate these authors (and despite Hobbes’ apparent enthusiasm for the spectacle itself as displayed in the frontispiece to Leviathan), Hobbes’ notion of demonology very much echoes these later thinkers–understandings. For Hobbes’ demonology is the practice of taking things that are not for things that are, a confusion between representations and reality. The spectacle functions in much the same way, although in the hands of Debord and Benjamin it takes its particular form as a production of capitalism. In this paper, I argue that Hobbes offers these later thinkers a useful distinction between his notions of idolatry and worship, a distinction that helps (particularly in Debord's case) avoid a choice between a lost and true ...
TL;DR: In this article, the authors develop a plausible explanation for why defenders of slavery and black subordination rejected this argument, which is that the prevailing political ideology of antebellum America contained a substantive conception of rights possession as well as well-entrenched allegations of black inferiority that were exploited to render the "blacks have no rights" thesis conceptually unproblematic.
Abstract: Some antebellum critics of the infamous Dred Scott “blacks have no rights” thesis suggested that this view resulted from a failure to appreciate that the humanity of blacks bestowed rights on them too. One plausible explanation for why many defenders of slavery and black subordination rejected this argument, which I shall develop in this paper, is that the prevailing political ideology of antebellum America contained a substantive conception of rights possession as well as well–entrenched allegations of black inferiority that were exploited to render the “blacks have no rights” thesis conceptually unproblematic. Elucidating the logic of arguments for and against the ‘blacks have no rights’ thesis will contribute to a broader understanding of the bittersweet legacy of rights discourse in American political thought.
TL;DR: In the history of international law and relations, the Westphalian system is commonly used as shorthand to describe the modern paradigm of international relations based on a system of exclusive authority vested in sovereign State actors, and evidenced in the Peace of Westphalia in 1648.
Abstract: In the history of international law and relations, ‘Westphalian system’ is commonly used as shorthand to describe the ‘modern’ paradigm of international relations based on a system of exclusive authority vested in sovereign State actors, and evidenced in the Peace of Westphalia in 1648 The discussion here probes the way in which such ideas about governance took root and consolidated into a consensus among political leaders across seventeenth century Europe What were the means of intellectual exchange and political discourse which facilitated the Westphalian sea-change? This study considers some media which may have been exploited in a significant way in early modern European society for the dissemination of argument and ideas about governance Two major forms are of particular interest in this context: visual art, with its rich iconographical content; and various kinds of dramatic presentation capable of communicating with both elite and popular audiences
TL;DR: The postcolonial history work of the tribunal is entailed by broader changes in democratic practice both in Aotearoa New Zealand as well as in governmental and academic sites as discussed by the authors.
Abstract: levelled, she even suggests that tribunal histories might also be read as texts that perpetuate colonization.) Postcolonialism, for her, is a "critical engagement with the aftermath of colonisation" (5). Yet the "postcolonial" history work of the tribunal is entailed by broader changes in democratic practice in Aotearoa New Zealand as well as in governmental and academic sites. Nuancing postcolonialism in descriptive as well as analytical terms might help us to grasp some of the connections between political, academic and social conflicts in contemporary settler states.
TL;DR: This paper analyzed the tensions in Sigmund Freud's modern contribution to this discussion and revealed a symptomatic crisis in the history of his thought, revealing a symptom of the fact that most of his oeuvre commits Freud to a view that group differences are hereditary and biologically insuperable.
Abstract: Since antiquity philosophers have debated the necessity of group differences and violent conflict. Analyzing the tensions in Sigmund Freud's modern contribution to this discussion reveals a symptomatic crisis in the history of his thought. Although most of his oeuvre commits Freud to a view that group differences are hereditary and biologically insuperable, his last published work, Moses and Monotheism (1938), for the purpose of saving the law of the father, elaborates a theory of group differences based on formal kinship rules.
TL;DR: In this article, Nonet's reading of the Antigone within his larger Heideggerian Destruktion of the tradition of Western legal philosophy is discussed. But it is argued that the sweeping terms of nonet's condemnation of that tradition as a mode of nihilism place significant strains upon his reading of tragedy, and, more importantly, leave little reason to hope that an appreciation of the law Nonet sees embodied in the Gestalt of antigone's person will help us understand or address, even indirectly, the problems with which Recht and Gesetz are
Abstract: In this essay I situate Philippe Nonet's reading of the Antigone within his larger Heideggerian Destruktion of the tradition of Western legal philosophy. I argue that the sweeping terms of Nonet's condemnation of that tradition as a mode of nihilism place significant strains upon his reading of the tragedy, and, more importantly, leave little reason to hope that an appreciation of the law Nonet sees embodied in the Gestalt of Antigone's person will help us understand or address, even indirectly, the problems with which Recht and Gesetz are concerned.
TL;DR: In this article, the authors explore the implications of the material practices and institutional constraints that shape the place of legal writing and its professoriate in contemporary US legal education, and draw lessons from both the history of Rhetoric and composition studies and that of legal education in seeking ways to address the gendered employment discrimination characteristically experienced by teachers of Legal Writing.
Abstract: In this piece of critical, interdisciplinary and situated legal scholarship the author explores the implications of the material practices and institutional constraints that shape the place of Legal Writing and its professoriate in contemporary US legal education, and draws lessons from both the history of Rhetoric and Composition Studies and that of US legal education in seeking ways to address the gendered employment discrimination characteristically experienced by teachers of Legal Writing
TL;DR: The authors explores the emergence of legal language as the salient language for social relations in early modernity, through its prominence in the dramatic poem Samson Agonistes (1671), and explores how law functions as a secularized order of obligations on different levels of metaphor.
Abstract: This study explores the emergence of legal language as the salient language for social relations in early modernity, through its prominence in the last, most personal and most passionate work of John Milton, the dramatic poem Samson Agonistes (1671). In this extraordinary work, law functions as a secularized order of obligations on different levels of metaphor. In each of the poem's major parts some legal construction is introduced metaphorically in such a way as to render coherence, meaning and unity to its central argument. The source of normative obligation is transformed from divine command (or grace) to a secularized paradigm of legality. Through their distinctive and developing voices, the characters reveal their relations as framed by mutual expectations grounded in reciprocal rights and duties, conveniently arranged in the several forms of legal relations. Likewise, claims of transgressions are arranged and presented in recognizable social-normative forms, i.e. along legal lines of English family ...
TL;DR: This paper used a psychoanalytical methodology to examine how the nation secures the ideological coherency of Irish constitutional discourse and explored how the concept of nation, as a little piece of the Real, effectively conceals this cognitive gap.
Abstract: This article uses a psychoanalytical methodology to examine how the nation secures the ideological coherency of Irish constitutional discourse. The 1937 Constitution of Ireland makes a claim to embody the nation, but paradoxically it also seeks to invoke the nation as its own authorizing agency. Drawing particularly on the work of Slavoj Žižek, this article explores how the concept of nation, as a little “piece of the Real,” effectively conceals this cognitive gap. The invocation of nation in the 1937 Constitution of Ireland configures political subjectivity by appealing not just to liberal-legal universality, but also simultaneously to a fantasy frame of Irish nationalism. Psychoanalytical theory is valuable in this context because it allows us to treat the ideological address of constitutional discourse as one that fragments rather than constitutes the subject. The ideological operation of the nation is encapsulated by the “inevitability” with which the legal subject finds something of itself in the par...