Showing papers in "Law, Culture and the Humanities in 2010"
TL;DR: This article found that judges contrast emotion with reason in order to maintain control of their courtrooms; when faced with emotional expressions in victim impact statements, judges appreciate expressions of compassion and tolerate expressions of grief but are uncomfortable with expressions of anger.
Abstract: Emotional standards and hierarchies in the courtroom may affect judicial reactions to victim impact statements. Based on judicial conversations and courtroom observations in two judicial districts in Minnesota, we suggest that judges contrast emotion with reason in order to maintain control of their courtrooms; when faced with emotional expressions in victim impact statements, judges appreciate expressions of compassion and tolerate expressions of grief but are uncomfortable with expressions of anger. These judicial responses to emotional expression, however, must be contextualized; for example, the judges we spoke with often articulated different reactions to impact statements given by victims of sexual assault, those who are strangers to the perpetrator, and impact statements given by victims of domestic violence, those who are in a relationship with the perpetrator.
50 citations
TL;DR: The view that animal life has a lesser moral value cannot be justified in that all sentient beings are self-aware and have an interest in continuing to live.
Abstract: The animal welfare position, which represents the prevailing paradigm for thinking about our moral and legal obligations to nonhuman animals, maintains that animal life has a lesser value than huma...
34 citations
TL;DR: The authors argue that Foucault does not submit to the moral superiority of humanism and introduce a liberal humanist subject, but rather, his late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions.
Abstract: This article argues that in his late work Foucault does not submit to the ‘‘moral superiority’’ of humanism and introduce a liberal humanist subject. Rather, Foucault’s late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. This helps us in interpreting Foucault’s late supposed ‘‘embrace’’ of, or return to, human rights—which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity.
26 citations
TL;DR: In the 1970s and the 1980s, the role of the prison in modern society was seared into the imagination of the humanities by Michel Foucault's treatment of the Prison in Discipline and Punish as mentioned in this paper.
Abstract: In the 1970s and the 1980s, the role of the prison in modern society was seared into the imagination of the humanities by Michel Foucault’s treatment of the prison in Discipline and Punish: The Birth of the Prison; his genealogy of the modern "soul." At a time when the social sciences had little to say about the nature of imprisonment as a specific historical practice (rather than a problem of social organization), the humanities helped define the prison as a contemporary problem. During this era, ironically, a new model of imprisonment was arising, one based on the mass imprisonment of whole demographic categories of the population rather than the disciplinary investment of the deviant individual. The scale of imprisonment has arisen by more than five fold. Unfortunately the humanities and cultural studies have been slow to reckon with the nature of mass imprisonment. While a new wave of social science scholarship, partially inspired by the earlier work of the humanities, is engaging the topic, the absence of the humanities, especially their critical and normative edge, is significant.
18 citations
TL;DR: In this article, the authors explore the extent to which our current legal frameworks (including the legal discourse of "rights") provide satisfactory responses to the question of justice for non-human animals.
Abstract: Using examples such as factory farming and the recent decision by the Spanish Parliament to grant fundamental rights to great apes, this commentary explores the extent to which our current legal frameworks (including the legal discourse of “rights”) provide satisfactory responses to the question of justice for non-human animals. After briefly sketching appeals to the rights model (both pro and con) for non-human animals in legal pragmatism and in animal rights philosophy, I turn to recent work in biopolitical theory to rearticulate not just the ethical but also the political status of our treatment of non-human animals.
16 citations
TL;DR: The significance of symbols within constitutional law by analyzing the role of laws introducing traditional national symbols into two legal systems characterized by a mixture of secular and traditional traits is discussed in this paper.
Abstract: The article discusses the significance of symbols within constitutional law by analyzing the role of laws introducing traditional national symbols into two legal systems characterized by a mixture of secular and traditional traits—India and Israel. Specifically, it focuses on the legal prohibitions on cattle slaughter in India and on pig growing and pork trading in Israel, animals considered “key symbols” in their respective cultures. Changes in the social and political context emerged as crucial for the legal regulation of these symbols as well as for its durability. Despite the similarities in their starting points, the Indian and the Israeli systems have ultimately taken divergent courses, reflecting differences in their respective contexts and underlying tensions. Whereas Indian cattle slaughter prohibitions are expanding with the constitutional backing of the Indian Supreme Court, pig-related prohibitions in Israel are declining, again with the constitutional backing of the Israeli Supreme Court. The...
12 citations
TL;DR: The current state of statutory and common law denies even minimal protection to the vast majority of animals as discussed by the authors, and much animal law scholarship focuses on moral justifications for increased legal protect...
Abstract: The current state of statutory and common law denies even minimal protection to the vast majority of animals. Much animal law scholarship focuses on moral justifications for increased legal protect...
9 citations
TL;DR: In this article, the authors argue that human interaction with dogs can reveal much about what makes us human, but that in order to take dogs seriously and engage with them in an ethical manner we must interrogate a number of practices that have been accepted in dog breeding and owning circles.
Abstract: This paper focuses on the ethics of human interventions in the lives of companion animals. It argues that human interaction with dogs can reveal much about what makes us human, but that in order to take dogs seriously and engage with them in an ethical manner we must interrogate a number of practices that have been accepted in dog breeding and owning circles. Here my focus is on querying the ethics of practices that involve direct corporeal interventions on the bodies of dogs, in particular legal attempts to prohibit tail-docking. Although Donna Haraway’s work is a major influence on the paper, I depart from her analysis in arguing that suffering must remain the keystone of our ethical relation to companion animals.
8 citations
TL;DR: In this article, the authors argue that a common way in which to apply Levinas' philosophy to legal and political theory is through an "inverted" liberalist model, whereby the pre-political ethical duty to the other is politicized by the state, institutions, and rights.
Abstract: A common way in which to apply Emmanuel Levinas’ philosophy to legal and political theory is through an “inverted” liberalist model, whereby the pre-political ethical duty to the other is politicized by the state, institutions, and rights. This paper argues such a position is untenable in the light of a progressive reading of sovereignty, and takes on the task of thinking an approach to Levinas and politics in the wake of law’s complicity with globalized sovereign biopower. In light of this complicity, and retaining the core of Levinas’ philosophical thesis on subjectivity, it proposes ultimately that political subjectivity must be (i) structured against law, (ii) divorced from the goal of a just polity, and (iii) thought through a phenomenology of injustice.
7 citations
TL;DR: In this article, the authors look at Arendt and Derrida and the way that they seem forced to compromise with sovereignty despite their ardent opposition to it, and the sense of the inevitability of s...
Abstract: In this essay I look at Arendt and Derrida and the way that they seem forced to compromise with sovereignty despite their ardent opposition to it. In both cases, the sense of the inevitability of s...
6 citations
TL;DR: In this article, the role of popular television imagery of torture in shaping the U.S. legal and political debates over the definition of torture, cruel, inhuman, and degrading treatment is explored.
Abstract: In this paper, I explore the role of popular television imagery of torture in shaping the U.S. legal and political debates over the definition of torture, cruel, inhuman, and degrading treatment. Taking the popular show 24 as an instance of a dominant imagery of torture, I analyze how this imagery of torture informs the definitional distinctions adopted by the United States. I argue that the popular imagery of torture with its emphasis on physical brutality continues to influence the legal and political discourse on torture. Apart from legitimizing a narrow definition of torture, the popular imagery also allows the United States to create an arena of acceptability for apparently less severe forms of violence. Thus, the need to call rose by another name is not just an attempt to deny the presence of torture by using narrow definitions but in addition because of the popular imagery, the present time is represented as an actual moment of progress from earlier more brutal times.
TL;DR: This paper analyzed the way in which the image, masculinity and sexual identity of Elvis Presley have been recently culturally deployed by particular social groups, and explored the way the images, masculinity, and sexual identities of Presley were appropriated by particular groups.
Abstract: This paper analyses the way in which the image, masculinity and sexual identity of Elvis Presley have been recently culturally deployed by particular social groups. It explores the way in which the...
TL;DR: In this paper, Constable's meditation on the silence of justice in modern law counters Agamben, and demonstrates why sovereignty, despite its ties to coercive state power, still holds out resources of freedom and self-determination that no one can afford to forego.
Abstract: Law and sovereignty are equivocal terms with competing definitions. Sovereignty can refer to coercive state power or a human being’s right to self-determination. In international law sovereignty usually means legalized state autonomy, but that definition is misleading, as state power relies either on domination or cooperation in order to “feel” like sovereignty. Agamben’s analysis of sovereignty as the “nomos of the west” gives us the hard case against saying sovereignty can stand also for human self-determination. But his definitions of law and sovereignty are too narrow to sustain his theory. Constable’s meditation on the silence of justice in modern law counters Agamben, and demonstrates why sovereignty, despite its ties to coercive state power, still holds out resources of freedom and self-determination that no one can afford to forego.
TL;DR: The authors examines a series of asylum appeals involving Iranian female petitioners in order to understand how the racialization of their brown female bodies negotiates the limits and contradictions of (asylum) law.
Abstract: Gender-based asylum claims remain difficult to win, even when petitioners narrate their claims in conventional language that celebrates United States progressivism. Despite national anxiety over Islam and its portrayal as the anti-feminist, anti-"west" cause of terrorism, garnering asylum for female petitioners on the basis of their objection to Islamic laws, notably those around dress, are rarely if ever successful. Arguing that courts produce meanings around (racial) difference, this article examines a series of asylum appeals involving Iranian female petitioners in order to understand how the racialization of their brown female bodies negotiates the limits and contradictions of (asylum) law.
TL;DR: In this article, the authors focus on the visual analyses of art historians, focusing especially on Pächt and 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.
Abstract: 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.
TL;DR: In this paper, the authors address the question of sovereignty from a perspective that connects the origins of public international law, with a series of onto-theological assumptions about the nature of place that were decisive in the emergence of modern colonialism.
Abstract: This paper addresses the question of sovereignty from a perspective that connects the origins of public international law, with a series of onto-theological assumptions about the nature of place that were decisive in the emergence of modern colonialism. It will argue that insofar as sovereignty depends on some form of transcendence, external or internal, it is and has been ‘’impotent’’ from the very outset. However, contrary to the idea expressed in the well-known tale about the emperor’s new clothes, it is not the case that acknowledgement of this impotence would entail the end of sovereignty. Faced with the truth of its ultimate impotence, the sovereign supplements its role as decider with that of the intrigant. This new figure of sovereignty is embodied in the expert politician who announces the coming catastrophe in order to avert it, or contain it, through the use of ‘’limited’’ but ultimately borderless violence.
TL;DR: In this article, the authors examine the novel Benighted, where the Department for the Ongoing Regulation of Lycanthropic Activity must manage relations between the dominant lycanthropes and the despised underclass of humans, and suggest that within the novel bureaucrats and the bureau function as "hopeful monsters" for the ongoing negotiation of morality.
Abstract: How to govern in the face of radical diversity and seemingly intractable conflict? A key question after 9/11, it is also central to dark fantasy literature.The literary answer is a return to legal rational authority, specifically bureaucracy. We examine the novel, Benighted (Kit Whitfield), where the Department for the Ongoing Regulation of Lycanthropic Activity must manage relations between the dominant lycanthropes and the despised underclass of humans. Developing other attempts to theorize the monster in relation to bureaucracy, we suggest that within the novel bureaucrats and the bureau function as ‘‘hopeful monsters,’’ sites for the ongoing negotiation of morality.
TL;DR: Incarceration helps us think about freedom because it demands consideration of the relationship between body and soul, providing yet another testing ground for the longstanding metaphysical and philosophical question of what makes humans truly free as mentioned in this paper.
Abstract: Incarceration is best understood as an extreme environment which complicates our notions of human freedom. Incarceration helps us think about freedom because it demands consideration of the relationship between body and soul, providing yet another testing ground for the longstanding metaphysical and philosophical question of what makes humans truly free. It also is a remarkable test case for how much of human experience is socially determined and how much individuals can create their own reality because prisons try to substitute external administration for self-discipline entirely. How can we account for resistance to these forms of administration?
TL;DR: In this article, the authors argue that Schmitt's theory of the sovereign exception involves not only a topology, but also a temporality, in that it treats the decision as a single, compacted instant, in which crisis, decision, and decider all miraculously leap into existence.
Abstract: Contemporary understandings of sovereignty have generally followed, or borrowed heavily from, Carl Schmitt’s theory of the exception, which Giorgio Agamben refers to as a “topological” concept. Schmitt conceives of the sovereign as a figure who exists both inside and outside of the juridical order. This paper suggests that Schmitt’s theory of the sovereign exception involves not only a topology, but also a temporality, in that it treats the decision as a single, compacted instant — one in which crisis, decision, and decider all miraculously leap into existence. It further suggests that Agamben’s interpretation of Saint Paul’s “ho nyn kairos” or “time of the now,” and his distinction between the prophet and the apostle, effectively reinforces the Schmittian conception of “sovereign time.” As an alternative, I refer to Jacques Derrida’s work on iteration and undecidability, and maintain that genuine decisions cast us into, rather than delivering us from, the aproias of time.
TL;DR: The authors argue that there is no necessary tradeoff between democratic participation and material success, and that democracy spurs material success at the local level in modern democracies, whether viewed from the perspective of the first democracy (namely, Athens) or from a perspective of seemingly dysfunctional contemporary small democracies (e.g., cities in large modern democratic polities).
Abstract: In this review essay, I have the pleasure of discussing three very good books – in their disparate ways they are all to a considerable extent about the perplexing question about how we can govern ourselves. Most particularly these books consider whether there are necessary tradeoffs between democratic participation and material success. All three books argue that there is no such tradeoff – whether viewed from the perspective of the first democracy (namely Athens), or from the perspective of seemingly dysfunctional contemporary small democracies (e.g., cities in large modern democratic polities), or even from the perspective of all of human history – democracy spurs material success. In this essay, we will consider how this can be so, especially at the local level in modern democracies. I will begin with a little-known aspect of classical Athenian history, one emphasized by Josiah Ober in his book Democracy and Knowledge. That Athens transformed itself from middling backwater to world power seemingly overnight and seemingly only because of the advent of democracy in 508 B.C., was already noted by Herodotus shortly after it happened. Over the decades that followed, the core of the Athenian miracle