Showing papers in "Law, Culture and the Humanities in 2009"
TL;DR: The authors distinguish between two types of liberals: imperial liberals and liberal pluralists, and examine the proposed distinction with regard to one small aspect of family life, albeit one that affects 20-30 percent of all males in the world in a very intimate way.
Abstract: The aim of this essay is to distinguish between two types of liberals: imperial liberals versus liberal pluralists. The two types I have in mind are those who assume that liberal ways of life are objectively more valuable than illiberal ways of life and should replace them (for the sake of making the world a better place), and those (such as myself) who don't make that universalizing assumption and believe instead that you can't live by liberalism alone. As a thought experiment I am going to examine the proposed distinction with regard to one small aspect of family life, albeit one that affects 20—30 percent of all males in the world in a very intimate way, namely the practice of male circumcision. This is a practice which at least in some of its varieties (for example, Jewish neonatal circumcision) and in the eyes of some of its critics (those who are unimpressed by claims and arguments about health benefits), seems patently illiberal (and even barbaric). Given the characteristic features of Jewish circu...
22 citations
TL;DR: In this article, the authors explore how death becomes political for left liberals and Islamist suicide bombers and explore the continuities between what is called the ''West'' and the theologico-political enterprises inspired by monotheism.
Abstract: This essay explores how death becomes political for left liberals and Islamist suicide bombers. The general objective is to challenge the unexamined assumptions about politics and death that circulate in left liberal denunciations of violence apparently inspired by Islam. To this end the essay discusses a number of influential characterizations of the relationship between death and politics, Islam and legalism, and monotheism and authority. The horror and fascination with the figure of the suicide bomber reveals an unacknowledged affective bond that constitutes the muscular liberal left as a political formation. This relies on disavowing the sacrificial and theological underpinnings of political liberalism itself — ignoring the continuities between what is called the ``West'' and the theologico-political enterprises inspired by monotheism. Exploring the conditions of the muscular liberal turn in left politics, the article suggests that a political crisis has emerged in a globalized world made up of politi...
10 citations
TL;DR: In contrast to mainstream cosmopolitanism, which generally reduces the concept to a liberal politics of global pacification, an essential agonism between cosmos and polis that is further reflected in the aporetic relation between freedom and law is revealed in this paper.
Abstract: This article excavates certain hidden and suppressed moments in the ancient and modern history of cosmopolitanism. In contradistinction to mainstream cosmopolitanism, which generally reduces the concept to a liberal politics of global pacification, an essential agonism between cosmos and polis that is further reflected in the aporetic relation between freedom and law will be revealed. Cosmopolitanism is not only a philosophy of perpetual peace, it is also, paradoxically, a call to perpetual provocation.
8 citations
TL;DR: The authors trace the media coverage of a child pornography investigation to highlight the rhetorical and aesthetic components that, they posit, are related to a pedophilic logic, revealing the latent but omnipresent desire encoded in the media narratives to imagine children and childhood in sexualized contexts.
Abstract: In 2005, the Toronto Police Department’s Sex Crime Unit embarked upon the unprecedented move to go public with forensic evidence related to an on-going child pornography investigation. This strategy provided the public with exceptional glimpses into the taboo arena of child pornography. In this article, I trace the media coverage of this investigation to highlight the rhetorical and aesthetic components that, I posit, are related to a pedophilic logic. My goal is to reveal the latent but omnipresent desire encoded in the media narratives to imagine children and childhood in sexualized contexts. In particular, my analysis maps the literary and photographic aspects of the coverage to highlight the “performative contradiction” of the texts; though the media articulated a one-dimensional story of outrage and condemnation, the rhetorical and pictorial aspects of the story produced meanings that undermined the purported censure of child sexualization.
7 citations
TL;DR: A history of the English legal category monster, a legal category that entered English law in the mid-thirteenth century and survived until the midnineteenth century, can be found in this paper.
Abstract: This article offers a history of the English legal category monster, a legal category that entered English law in the mid-thirteenth and survived until the mid-nineteenth century. The aim of the article is to provide a close textual analysis of an otherwise absent legal history and to locate law's monsters, and the anxieties that they suggest, within their appropriate contexts: social, political, religious and legal. However, while the principal aim of the article is to address a lacuna in legal historical scholarship, and perhaps precisely because of this fact, the history to be detailed offers a series of valuable insights for future study, particularly in the areas of legal history, philosophy and feminist theory. While full elaboration of these themes is beyond its ambit, the article will draw attention to four different and specific contexts in relation to which future scholarship might benefit from an historical study of England's legal monsters.
7 citations
TL;DR: The authors argues that there is a split within liberal thought between a rationalist conception of liberalism, which relies on traditional moral psychology, and romanticist versions of liberal, which adopt the romantic critique of reason and attach a positive value to the supposedly "irrational" faculties of the human psyche, such as passion, emotion, and love.
Abstract: This article explores the connections between liberalism and romanticism, and argues that there is a split within liberal thought between a rationalist conception of liberalism, which relies on traditional moral psychology, and romanticist versions of liberalism, which adopt the romantic critique of reason and attach a positive value to the supposedly “irrational” faculties of the human psyche, such as passion, emotion, and love. Attending to this split within liberal theory provides us with a deeper understanding of what motivates religious fundamentalism and the more general movement of “return to traditional values” in religious and socially conservative quarters. Fundamentalists and other socially and religiously conservative critics of liberalism perceive that the embrace of a romantic picture of human psychology, and the implementation of doctrines of individual freedom and choice in the realm of marital and sexual relations (in the realm of love) undermines the premises of traditional moral psychol...
6 citations
TL;DR: Sarat and Kearns as discussed by the authors explored these writers' understanding of violence, its relationship with law and the relevance of its experiential impact for jurisprudence, before focusing on two methodological issues.
Abstract: Following Robert Cover's essay on law's "field of pain and death", Austin Sarat and Thomas Kearns have presented the bases for a "jurisprudence of violence," part of which requires including experiential accounts of (law's) violence in legal theory. This article explores these writers' understanding of violence, its relationships with law and the relevance of its experiential impact for jurisprudence, before focusing on two methodological issues. First, it argues that discussion of violence needs to be clearly situated and outlines a conceptual map as the basis for further analysis. Second, it questions the concept of experience in this context and addresses some key problems involved in articulating violent experience in textual discourse.
6 citations
TL;DR: The law of war contains a hidden foundation, which is species war as discussed by the authors, and this foundation can be found in the legal and moral decisions about "legitimate violence" with respect to judgements about the "value" of "life".
Abstract: The law of war contains a hidden foundation. This foundation is species war. In this paper I begin to develop the idea of species war and show how our modern conceptions of the laws of war contain within them the historical and contemporary operation of species war. In focussing upon how legal and moral decisions about "legitimate violence" are made with respect to judgements about the "value" of "life," I show how species war operates as a fundamental, but often forgotten category, of legal and political philosophy.
5 citations
TL;DR: In this paper, the authors suggest that legal historians focus their attention on writing and teaching more particularized histories targeting a popular audience, instead of searching for a new grand narrative of law, written to persuade lawyers and judges and change the world.
Abstract: In place of the idea that legal history should search for a new grand narrative of law, written to persuade lawyers and judges and change the world, this article suggests that legal historians focus their attention on writing and teaching more particularized histories targeting a popular audience.
3 citations
TL;DR: In this paper, the authors offer an analysis of some of the ways in which one war and its legal context can be understood as mutually constitutive, and they conclude with the suggestion that this journal and the kinds of scholarship that finds expression here might be counted as part of the "legacy" of the legal war at home.
Abstract: This commentary offers an analysis of some of the ways in which one war — the American War in Vietnam — and its legal context can be understood as mutually constitutive. The focus is on efforts of anti-war legal activists to use elements of legality to reconstitute that war and the effects these engagements had on transformatively re-constituting the cultural domain of the legal itself. After presenting a brief catalog of skirmishes and tactical maneuvers I conclude with the suggestion that this journal and the kinds of scholarship that finds expression here might be counted as part of the “legacy” of the legal war at home.
3 citations
TL;DR: The authors examines how the logic and the spectacle of the law jointly respond to Nietzsche's concern that the one condition that baffles the will is the fact that the past is unalterable.
Abstract: This essay examines how the logic and the spectacle of the law jointly respond to Nietzsche's concern that the one condition that baffles the will is the fact that the past is unalterable. The will cannot will backwards, but justice can, in W.B. Yeats's phrase, dream back by devising a temporality to symbolically redeem the past through a passionate knowledge expressed through haunting spectacles of pain (torture) and payment (punishment). The essay analyzes rhetorical strategies in both literature and legal discourse that offer to transcend the irrevocable in ways that satisfy both the ethical and aesthetic demands of justice: the demands that justice be done by being seen to be done. However, bringing aesthetics to the aid of ethics also has the disruptive effect of opening a gap between the two, of exposing an incommensurability that makes moral repair over time conceivable only through unexpected acts of sacrifice and amnesty — a possibility envisioned in J.M. Coetzee's novel, Disgrace .
TL;DR: The authors present a critical analysis of Plato's Apology and Crito focusing on the moral limits of legal obligation that ground both Socrates' resistance to state injustice and his acceptance of state injustice.
Abstract: This article presents a critical analysis of Plato's Apology and Crito — focusing on the moral limits of legal obligation that ground both Socrates' resistance to state injustice and his acceptance...
TL;DR: This article argued for a new view of land transfers in seventeenth-century New England that attends not only to the Puritans' conception of land but also to the competing conceptualization of land.
Abstract: This paper argues for a new view of land transfers in seventeenth-century New England that attends not only to the Puritans' conception of land but also to the competing conceptualization of land b...
TL;DR: In this article, the authors propose that history can and should be a dangerous form of knowledge, and that Benjamin worked hard to show us how to make it so, however, requires one abandon what most forms of contemporary historical inquiry take for granted, history-as-science.
Abstract: For many years, history has furnished a conceptual and methodological standpoint, historicism, which scholars have employed to enter into engagements with law. But how do the exponents of historicism — whether conventional or critical — define that standpoint, and what is the nature of the object (the past) that their definitions isolate for contemplation? This essay seeks illumination through counterpoint — an exposition of Walter Benjamin's philosophy of history and its key components: recollection, actualization and constellation. I propose that history can and should be a dangerous form of knowledge, and that Benjamin worked hard to show us how. To make it so, however, requires that one abandon what most forms of contemporary historical inquiry take for granted, history-as-science. To show why, I develop an examination and critique of historicist sense-making in the domain of law, both conventional and critical. I also engage with two recent scholarly attempts to move beyond historicism: how they succ...
TL;DR: Gender Violence as mentioned in this paper introduces the concept of global gender violence, providing examples from multiple cultural and national contexts, as well as situating the discussion within broader debates and dilemmas regarding universalism, international law and social movements, and (neo)colonialism.
Abstract: anti-violence campaigns another site where (neo)colonial relationships of power – relationships that use female genital cutting as an example of the “‘dark’ continent and ‘primitive’ customs” (146) – are rehearsed. Merry’s insightful analysis is unevenly distributed within the text. Certain examples like female genital cutting provide space where Merry can question why certain issues become preoccupations within the discourse of global gender violence while other examples, for instance the discussions of trafficking in women (92) or rape in the context of Rwandan genocide (166) provide a less critical lens in terms of the politics of naming and representation. This unevenness gestures to the challenges of writing such a far-reaching book on such a far-reaching topic. Gender Violence strives to introduce the concept of “global gender violence,” providing examples from multiple cultural and national contexts, as well as situating the discussion within broader debates and dilemmas regarding universalism, international law and social movements, and (neo)colonialism. A key strength of the book rests in Merry’s ability to render complex, nuanced issues in accessible terms without succumbing to over-generalizations. This is a testament to Merry’s careful writing. A good introductory teaching text, Gender Violence’s chapters on “Punishment, Safety and Reform: Interventions in Domestic Violence” and “Poverty, Racism, and Migration,” as well as her discussion of female genital cutting (as mentioned above) are particularly strong. Merry’s discussions of the ways masculinity is both produced and performed in the context of domestic violence (65), the simultaneously emancipatory and disciplinary potential of the law (52), the ways in which poverty and racism (of the law and law enforcement) make quantifying gender violence difficult (109), and finally the different meanings domestic violence can have within a non-heteronormative context (17) exemplify the strengths of the text. In chapters three (“Punishment, Safety, and Reform”) and four (“Gender Violence as a Human Rights Violation”) Merry raises the question of how the law – a concept that is as equally culturally and socially specific as “gender” and “violence” – helps to produce the very terms with which we can consider and make legible gender violence. She asks what the role of the law should be in the global context, given the law’s social and cultural specificity.
TL;DR: The authors explored the response of the contemporary legal community to Shakespeare's Hamlet, a play that has garnered much attention from those who would investigate the complex intersections of law and literature and explored the way legal scholars have interpreted Hamlet's "problem," that is to say, his famous delay in carrying out acts of violent retribution at the behest of his murdered father's ghost.
Abstract: This article explores the response of the contemporary legal community to Shakespeare’s Hamlet, a play that has garnered much attention from those who would investigate the complex intersections of law and literature. The particular focus of this article is the way legal scholars have interpreted Hamlet’s "problem," that is to say, his famous delay in carrying out acts of violent retribution at the behest of his murdered father’s ghost. Such scholarly speculations have much to tell us, for to consider the meaning of Hamlet’s delay is also to grapple with such critical issues as the relationship between private vengeance and the law and the ethical meaning of violence in any codified legal system. This article thus surveys several representative readings of the Hamlet’s "problem" in an effort to outline how the contemporary legal community has engaged the deepest legal and ethical questions residing at the center of Shakespeare’s play.
TL;DR: The notion that democratic citizens should substantively identify with the law and see their preferences, will, or morality in it is suggested in Carl Schmitt's The Crisis of Parliamentary Democracy.
Abstract: What should the relationship between citizens and the law in a liberal democracy look like? The idea that citizens should be associated with the laws that govern them is a cornerstone of democratic theory. Yet the specific nature of this relationship has varied widely in theory and practice. I examine one conceptualization of this relationship: the notion that democratic citizens should substantively identify with the law and see their preferences, will, or morality in it. This kind of civic identification with the law is suggested in Carl Schmitt's The Crisis of Parliamentary Democracy. Schmitt's text points both to the seductive appeal of civic identification with the law and to its pernicious potential.
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TL;DR: This paper argued that government sponsorship and promotion of the traditional institution of heterosexual marriage-based family are antithetical to the liberal democratic values that most Americans would claim are foundational principles of their society: liberty and individuality.
Abstract: Anti-gay marriage amendments proliferate, and current welfare legislation includes coercive marriage promotion programs. This article argues that government sponsorship and promotion of the traditional institution of heterosexual marriage-based family are antithetical to the liberal democratic values that most Americans would claim are foundational principles of their society: liberty and individuality. I suggest that, in order to make the social and legal institution of family consistent with professed public values, it should be transformed from the traditional structure into a new structure that is (1) flexible and customizable, and (2) eligible for direct public support for its role in social reproduction.
TL;DR: Alexis Wright's most recent novel, Carpentaria as discussed by the authors, is a remarkable rendering of Australian indigeneities, an interweaving web of narratives which defy the limits of conventional literary forms.
Abstract: Alexis Wright’s most recent novel, Carpentaria, is a remarkable rendering of Australian indigeneities, an interweaving web of narratives which defy the limits of conventional literary forms. Simultaneously evocative of the ancient and modern, spiritual and political, the novel is a unique contribution to Australian literature; more specifically, to the ever expanding body of Indigenous Australian literature; and further, I would suggest, to the broader written expression of Indigenous knowledge and lived experience, as a mode of “Indigenous intellectual activism.”1 Writing by Indigenous Australians has been described as a means of intervention, disruptive of imperatives. Carpentaria functions in this way, expressing both the lament of a dispossessed people to an unresponsive nation, which “chants, but we know your story already” (1); and the persistence of a people seeking hope in the stories, “the big stories and the little ones in between” (12). As a politically and semantically transgressive narrative, Wright’s novel reframes indigeneity and challenges the conventional modes of Indigenous recognition. Inherent within this endeavor is a unique challenge to non-Indigenous law, not only in terms of political protest but also in the presentation of an antinomic Indigenous Law, a transformative aesthetic to which Australian law is called to respond. The novel contains several climactic sequences, in which Indigenous Law is evoked as an annihilating force, destructive of colonial law. These sequences resonate with a Benjaminian notion of divine violence, as expressed in “Critique of Violence,” which opposes mythical violence as lawmaking; and divine violence as law-destroying.2 For Benjamin, divine violence, described as “pure immediate violence” and, ultimately, “sovereign violence,” is located beyond the law, as revolutionary potential.3 The force of Law evoked in Carpentaria, I would suggest, is a radical rendering of the transformative capacity of Indigenous Law. Such transformation is envisaged at several moments, including the dramatic explosion of a commercial mine in an act of guerrilla warfare; and the apocalyptic scene in which a cyclone initiates a flooding of the land, which literally washes away the fabric of colonial settlement.