Showing papers in "Law, Culture and the Humanities in 2008"
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TL;DR: The notion of performance and performativity have become central terms in the discussion of legal identity over the past decade or two, and performance and theatricality figure in a number of theoretical frameworks as mentioned in this paper.
Abstract: “Performance” and “performativity” have become central terms in the discussion of legal identity over the past decade or two, and “performance” and “theatricality” figure in a number of theoretical...
38 citations
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TL;DR: The authors analyzes the legal discourse of native Hawaiians opposed to proposed federal recognition and argues that this contemporary contest over the means of self-determination reveals the ways in which law and rights provide inescapable idioms for indigenous sovereignty at the same time that they form the primary obstacles that must be overcome.
Abstract: This article analyzes the legal discourse of native Hawaiians opposed to proposed federal recognition. We argue that this contemporary contest over the means of self-determination reveals the ways in which law and rights provide inescapable idioms for indigenous sovereignty at the same time that they form the primary obstacles that must be overcome. Strategic maneuvering through this postcolonial legal dilemma is shown to produce new ideas of law's authority, challenging dominant notions of place and time, as well as the performance of legal recognition.
17 citations
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TL;DR: In this paper, the authors track how difficult material conditions are lived on the level of affect among ordinary underemployed families engaged in the locally named practice "the art of making do" in the contac...
Abstract: This paper tracks how difficult material conditions are lived on the level of affect among ordinary underemployed families engaged in the locally named practice “the art of making do” in the contac...
10 citations
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TL;DR: In this paper, the authors highlight the doctrinal assumptions that the image is a clear and perspicacious representation of a probable truth and that the judge should use it as proof object.
Abstract: Courts make use of a range of images as proof objects. This paper highlights the doctrinal assumptions that the image is a clear and perspicacious representation of a (probable) truth and that the ...
6 citations
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TL;DR: The Shakespeare Moot Court as mentioned in this paper is a form of serious play that inspires participating legal and literary students and professors to think about interdisciplinary in a new way - by doing it, by applying their analytical and argumentative skills to the task of creating the law of Shakespeare, tackling matters of public concern such as same-sex marriage, crimes against humanity and freedom of religion.
Abstract: The Shakespeare Moot Court is a form of serious play that inspires participating legal and literary students and professors to think about interdisciplinary in a new way - by doing it. Members of the Court apply their analytical and argumentative skills to the task of creating the law of Shakespeare, tackling matters of public concern such as same-sex marriage, crimes against humanity, and freedom of religion. In the course, senior Law students and graduate students from English team up to argue cases in the “Court of Shakespeare” (where the sole Institutes, Codex, and Digest are comprised by the plays of William Shakespeare). The Court involves students (as counsel) and Shakespeareans and legal scholars (as judges) in a competitive and collaborative form of play whose object is to engage with Shakespeare’s plays in order to render judgments concerning particular contemporary legal problems. In the first part, this essay reflects on critical practice in Shakespeare studies and the argues that the legal model of the moot court offers this practice dimensions of accountability, corrigibility, and temporality which are essential to the future of the critical practice of literary studies. Above all the Shakespeare Moot Court provides a new and necessary way of restoring Shakespeare criticism, or some significant part of it, to the public realm. In the second part, the argument is reversed. The literary conceit of the Shakespeare Moot Project serves to dramatize that literature’s very different orientation offers to the world of law a vital reminder that the question of judgment is always imbricated in the character, experiences, and subjectivity of the judge. This perspective, which was indeed universally understood as integral to the exercise of judgment, whether literary or legal, in Shakespeare’s time, seems in many ways to have been forgotten or sidelined in most modern understandings of law. For the literary theorist, the “privatization” of literature from the late eighteenth century on has obscured its role in public discourse, as the first part argues. For the legal theorist, as the second part argues, the “publicization” of law from the late eighteenth century on has obscured its connection to personal responsibility. The two arguments together demonstrate that the Enlightenment’s project of defining and dividing disciplines - allocating the realm of public action to law and that of private feeling to literature - has come at the cost of the relevance of one and the humanity of the other.
5 citations
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TL;DR: A poethics of terrorism as discussed by the authors argues that terrorism is an innately mythic construct, and that the world in which the terrorist, and counter-terrorist, operates is one of collective enchantment.
Abstract: The contempoprary experience of terrorism asks considerable questions of classical conceptions of law and legal theory in the field of political violence. These questions are rooted in problems of definition, and they are not reserved to the discipline of law. It has been argued that terrorism is an innately mythic construct, and that the world in which the terrorist, and counter-terrorist, operates, is one of collective enchantment. This article is premised upon this supposition. It argues that a `poethical' approach, one that embraces the particular disciplinary insights of language and literature, presents a vital supplement to present jurisprudential endeavors to comprehend terrorism. The first part of the article argues the case for a poethics of terror. The second and third then discuss the particular treatment of terrorism in the novels of Joseph Conrad, Feodor Dostoevsky and J.M. Coetzee. The final part of the article reiterates the particular strategic value of a poethical approach in our endeavo...
5 citations
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TL;DR: The criminal law has been subject to both increased demands in the societal functions that it is expected to perform, and heightened scrutiny for those points at which it fails to achieve these ends.
Abstract: The criminal law has been subject to both increased demands in the societal functions that it is expected to perform, and heightened scrutiny for those points at which it fails to achieve these ends. The resulting pressures put into question the criminal law's capacity to perform justice. Rather than turning to contemporary sources to assess the criminal law's relationship to claims of justice, the author uses an analysis of the ancient myth found in the Book of Job as a means of exposing the irresolvable tensions at the core of the criminal law system's quest for justice. In the end, injustice manifests as senseless suffering. The profound precariousness of contemporary criminal law is that its prescribed task is to make sense of suffering but it is always unable to wholly achieve this goal and is, indeed, always on the precipice of making things worse.
4 citations
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3 citations
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TL;DR: In this paper, Heidegger argues for the contemporary relevance of the doctrine of equity and argues that it is not a limitation but a strength of a person's absorption in the concrete details of his face-to-face society.
Abstract: This article argues for the contemporary relevance of Aristotle's doctrine of equity. Too often, similar arguments make this doctrine relevant by abstracting from the details of Aristotle's position or, conversely, fixating on details without due consideration of the epochal gap that separates us from Aristotle. After an initial survey of these limited approaches, the article proceeds to a more adequate account of Aristotle's doctrine of equity with the help of Heidegger. In particular, what Heidegger offers is a nuanced argument as to why Aristotle's manifest absorption in the concrete details of his face-to-face society is not a limitation to his doctrine, but a strength. We, no less than Aristotle, are enmeshed in logos, in a background ordering not at the command of our will, but we have a greater difficulty seeing this. Thus, where equity for Aristotle above all required expert engagement with logos, equity bids us first to acknowledge that the logos is.
2 citations
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TL;DR: Wilson's The Piano Lesson as mentioned in this paper is a play that depicts a debate between an African American brother and sister over the ownership of a richly symbolic piano, a family heirloom that represents the Charles family's slave heritage and its endurance through Reconstruction.
Abstract: August Wilson's The Piano Lesson features a debate between an African American brother and sister over the ownership of a richly symbolic piano, a family heirloom that represents the Charles family's slave heritage and its endurance through Reconstruction. Ownership questions like the one presented in The Piano Lesson can usually be resolved in the courts, but Wilson's play suggests that the law might be unable to resolve property disputes so problematically entangled with the legacy of slavery. Wilson offers, instead, a non-legal resolution to the piano debate presented in his play.
2 citations
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TL;DR: The authors argued that the anti-narrative form of the reports enables the communal nature and goal of precedential reasoning: the creation of a common law, dating from "time immemorial".
Abstract: Victorian-era law reports are often choppy or truncated, miserly in detail, and utterly lacking in character descriptions, creating what I have identified as an “anti-narrative” style. This article shows how the law reports use narrative conventions — often in counter-intuitive ways — to manifest the tension between a concrete case and the abstract rule which is its potential precedent. Incorporating a discussion of nineteenth-century theories of legal precedent and the history of common law reporting with a formal analysis, I contend that the insular “anti-narrative” form of the reports enables the communal nature and goal of precedential reasoning: the creation of a common law, dating from “time immemorial.” It also reveals a legal doctrine — and a narrative genre — in crisis.
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TL;DR: In this paper, a shift of views from bioethics to bio-optics is proposed, from asking what we should do, to wondering about how things appear and are.
Abstract: The following paper calls for a shift of views from bioethics to bio-optics, from asking what we should do, to wondering about how things appear and are. It takes as a case study the stem cell controversy and juxtaposes its regulation in Israel and in the United States. As an ethical debate, the embryonic stem cell controversy is often cast as a dispute between liberals and conservatives, scientists and religious fundamentalists. From a bio-optical point of view, however, one may notice a surprising affinity between science and the most extreme religious groups.
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TL;DR: In King Lear, the English law of madness, especially the aspects of testamentary devises, royal accession, waste, and plunder, is thematized in such a way that the conflict between civil order and savage nature is brought to the foreground.
Abstract: In King Lear, the English law of madness, especially the aspects of testamentary devises, royal accession, waste, and plunder, is thematized in such a way that the conflict between civil order and savage nature is brought to the foreground. This dynamic overshadows, and to some extent disguises what truly lies at the heart of ancient Britain's woes: a deficit of ontological self-inquiry on the part of the sovereign and his royal retainer, Gloucester, from which all of the other complications ensue.
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TL;DR: The field shows active interest in three inter-related arenas invoking the practices of "the law's" authorizations: performances of everyday events, complex social spaces in which people test the limits of the legal subject in relation to the norms of, for example, national, cultural, and global citizenship as mentioned in this paper.
Abstract: Prior to recent U.S.-based work about the performance rituals of state killing and “the NEA 4,” Theatre and Performance research demonstrates extensive negotiations with and about “law as a preservative of terror” that in 1966 Theodor Adorno calls “the primal phenomenon of irrational rationality.” Currently, the field shows active interest in three inter-related arenas invoking the practices of “the law's” authorizations. The first involves performances of everyday events, and the complex social spaces in which people test the limits of “the legal subject” in relation to the norms of, for example, national, cultural, and global citizenship. If cultural events, practices, and artifacts of the world provide crucial research materials in theatre and performance projects, the deployment of methodologies in archival documentation collating “the world” and “the past” with the everyday also reach into the rhetorics of evidence. Hence the second, correlating, area of contemporary theatre and performance research ...
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TL;DR: The work of the Council on Bioethics on human cloning as mentioned in this paper is an example of a self-contained bioethics that is deeply suspicious of its own readability to legal forms of interpretation; a tradition for which proximity to the law and a consideration of the actual circumstances of legal action compromises the purity of ethical inquiry.
Abstract: Law and bioethics have traditionally expressed an elective affinity. Bioethics has often spoken "in the language of the law," or at least in a pidgin that the law can easily understand, and bioethicists have conceptualized their principles and arguments in ways that make them amenable to legal translation. However, there has always been a tradition of bioethical reflection, what I describe as "self-contained bioethics," that is deeply suspicious of its own readability to legal forms of interpretation; a tradition for which proximity to the law and a consideration of the actual circumstances of legal action compromises the purity of ethical inquiry.
The article examines the work of President Bush's Council on Bioethics on human cloning as an example of this type of bioethical inquiry. In its 2002 report "Human Cloning and Human Dignity: An Ethical Inquiry" the Council professed to keep specific legal and policy options at arm's length to better explore the ethical significance of the issues at stake without being "skewed" by considerations of practical expediency. The article compares the form of bioethical advice produced by the Council with the opinion on human cloning that its predecessor, the National Bioethics Advisory Commission (NBAC), issued in 1997. In NBAC's report the discussion of the paths of legal action was thoroughly and explicitly integrated into the moral analysis.
Ultimately, the President's Council resorted to the law, understood as an instrument of absolute prohibition, to translate its purified moral argument into social reality in the form of a ban or a moratorium. Yet, by not using legal considerations to focus and refine its bioethical inquiry, and instead resorting to the law merely as a tool of proscription, the Council guarantees that its advice remains as controversial in the short term as ineffective in the long run.
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TL;DR: In this article, the authors examined the dynamics of a storytelling contest between the National Network to End Domestic Violence and a coalition of law enforcement professional organizations regarding the most stringent federal gun control legislation in the United States.
Abstract: Every law tells a story and some of the stories we tell become the law. Conceptualizing law as literature and taking a social science approach, we examine the dynamics of a storytelling contest between the National Network to End Domestic Violence and a coalition of law enforcement professional organizations regarding the most stringent federal gun control legislation in the United States — the 1997 Lautenberg Amendment. Relying upon qualitative content analysis, we discovered that contestants drew upon the same elements of classic tragedy to compose different stories. Our analysis compares the resources and experiences available to each coalition and examines how differences between them affected the stories told. We discuss the role that dueling tragedies play in public policy controversies and evaluate the implications our case study has for understanding the competition for legislation, storytelling research and the conceptualization of law as literature.
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TL;DR: In this paper, Freud raises the question of repression and what he calls the "quota of affect" attached to the particular ideational representatives of instinct that we repress, and the question: which repressions demand the most of sociological positivism.
Abstract: Freud raises the question of repression and what he calls the “quota of affect” attached to the particular ideational representatives of instinct that we repress. The greater the affect attached, the greater the energy needed to repress it; the greater our indifference, the lesser the energy required. Which raises the question: which repressions demand the most of sociological positivism? Third, can we say even more about the various symptoms that signal economies of repression and silencing? Constable does some of this work in her wonderful chapter on Miranda, and really the whole book can be understood as a reading of symptoms. Other sorts of symptoms, either inside or outside language, might be interesting to locate and analyze, and might extend the substantive landscape of Constable’s work even further. Perhaps in the end, with these questions I may appear to have returned to the terrain of the sociological. But really, Freud leads us into a landscape of dreams, and an analysis of the repression of eros to a different imagining of law — one, perhaps, that resembles the close of Auden’s poem. What is law like? Auden asks. And concludes: