Showing papers in "Law, Culture and the Humanities in 2013"
TL;DR: In this article, the Aboriginal body is considered to be one that is already dead, and thus a body that is not a body to be examined by an inquests into the deaths of Aboriginal people in custody.
Abstract: This article is part of a larger study of inquests into the deaths of Aboriginal people in custody. I suggest that the Aboriginal body is considered to be one that is already dead, and thus a body ...
64 citations
TL;DR: The law of immigration rests upon the space of the nation-state and on how the movement of bodies in and out of that space is legally imagined as mentioned in this paper, and whether formal legal doctrine recognizes a human body as inside or outside a nation's territory is deeply consequential.
Abstract: The law of immigration rests upon the space of the nation-state and on how the movement of bodies in and out of that space is legally imagined. Whether formal legal doctrine recognizes a human body as inside or outside a nation’s territory is deeply consequential. Yet this formal doctrine presumes the nation-state to be a natural and innocent space absent of systems of domination. Case studies of concrete spatial locations demonstrate the social production of space. The case of a Danish reform coupling restrictions on forced marriage with a minimum habitat requirement indicates how space and immigration are produced in relation to gendered notions of race, linking the micro-space of the home with the macro-space of the homeland. The case of African Americans and poor relief in late eighteenth century Massachusetts, whereby immigrant origins were invented to evade town fiscal responsibility, shows how governmental space and immigration are produced as legal fictions. The Commentary concludes with a discuss...
31 citations
TL;DR: In this paper, the authors argue that European empires of the eighteenth and nineteenth centuries were largely unable to produce a consistent and self-contained theory of legal sovereignty, and they propose that European Empires of the eighteen and twenty-first centuries were ill-suited for such a theory.
Abstract: In this commentary I propose that European empires of the eighteenth and nineteenth centuries were largely unable to produce a consistent and self-contained theory of legal sovereignty. Considering...
19 citations
TL;DR: In this article, the authors argue that this assessment is controversial and depends on the definition of legal pluralism, and that the impact of the different traditions of legal plurality is demonstrated.
Abstract: It has been claimed that Felix S. Cohen, one of the leaders of the American legal realism movement of the 1930s, introduced legal pluralism to America. This article argues that this assessment is controversial and depends on the definition of legal pluralism. In its analysis of the concepts of legal pluralism advanced by Cohen and his contemporaries Karl Llewellyn and A. Arthur Schiller, the impact of the different traditions of legal pluralism is demonstrated. In fact, Schiller was the first to introduce many of the basic tenets of current legal pluralism such as the preservation of indigenous law in American legal discourse.
12 citations
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TL;DR: The authors pointed out that the nature of our standard arguments on behalf of immigrants can sometimes give too much ground to current social conditions, and that we may relinquish the opportunity to develop more fundamental social criticism of existing immigration relations.
Abstract: This commentary addresses scholars and activists in liberal national states who advocate on behalf of undocumented immigrants, and offers some reflections on some of the intellectual and political challenges we encounter. I will suggest that the nature of our standard arguments on behalf of immigrants can sometimes give too much ground to current social conditions, and that we may – in our efforts to remain immediately policy-relevant – relinquish the opportunity to develop more fundamental social criticism of existing immigration relations.
8 citations
TL;DR: The authors examines Walter Benjamin's 1921 text, "Critique of violence" in light of its multiple readings and argues that different readings and interpretations of this text have become vital to contemporary discussions of police violence, sovereignty, life in the state of exception, revolution, political theology, and most importantly the question of ethical violence.
Abstract: This article examines Walter Benjamin’s 1921 text, “Critique of Violence” in light of its multiple readings. Specifically, different readings and interpretations of this text have become vital to contemporary discussions of police violence, sovereignty, life in the state of exception, revolution, political theology, and most importantly the question of ethical violence. More specifically, if the context of Benjamin’s own writing was the refusal to kill that marked the end of the First World War and the bloody wake that was left after the failure of the German revolution, a current debate between Judith Butler and Slavoj Žižek concerning an “ethics of non-violence,” considers (among other things) the current situation in Israel/Palestine, and their debate turns on competing readings of Benjamin’s text. As I will show, there are different approaches to politics, to the question of what is to be done, that can be teased out by way of different readings of this small, influential text written almost 90 years ...
5 citations
TL;DR: Saramago's novel Blindness and Seeing as discussed by the authors explores the possibility of the impossible in the face of a silent protest by a sea of what I call atheist citizens; in other words, citizens who no longer believe in the city state.
Abstract: In western philosophy, the terms “gnosis” (knowledge) and “agnosia” (ignorance) are linked to seeing and to blindness: to see is to know while not to see is to be ignorant. In contrast to this genealogy, the anti-philosopher Lacan maintains that seeing does not guarantee knowledge, at least not knowledge of the “truth,” because there is always one point from which we can never see, that is, the blind spot. In a parallel way, however much we talk or write, we never manage to represent the whole truth or what Lacan terms the Real. The experience of analysis, the shattering impact of trauma, or, at times, a work of art, can enable us, however, to lift the veil covering truth. This article addresses Saramago’s twin dystopian fiction Blindness and Seeing and suggests that by pushing the limits of the possible and portraying the possibility of the impossible, Saramago enables us to catch a glimpse of the Real. The trauma depicted in Blindness leads to Saramago’s characters reassessing their relationship to knowledge and in particular their knowledge of the Big Other. Following this trauma, they cease making demands of the Other and in the process vanish him out of existence. The repercussions for our political system, and in particular for democracy, are fleshed out in the sequel Seeing where the State is impotent in the face of a silent protest by a sea of what I call atheist citizens; in other words, citizens who no longer believe in the city state. Saramago’s anti-politics, or politics of atheism, I suggest, are the natural companion to Lacan’s anti-philosophy and ethics of atheism.
5 citations
TL;DR: The authors explored the extent to which the creator of public artwork, so often a handmaiden of the State when helping us to imagine justice, is also capable of presenting us with subversive images of our Goddess which can, and should, disturb us.
Abstract: In recent years there has been a burgeoning interest in the relationship between law, art and politics. New work in the field encourages us to explore the ways in which art can pose a threat to the supposed rationality of modern law by appealing to imagination and emotion. This article explores these general themes with reference to a specific controversy about a series of bas relief sculptures depicting Justitia which were placed on the side of what was arguably the most spectacular law court to be built in England in the nineteenth century. Although this episode has been explored by art historians, hardly any attention has been drawn to what the episode reveals about the political work that art was, and is, expected to undertake on behalf of the elite and legal establishment. This article attempts to bridge that gap by exploring the extent to which the creator of public artwork, so often a handmaiden of the State when helping us to imagine justice, is also capable of presenting us with subversive images of our Goddess which can, and should, disturb us.
5 citations
TL;DR: In this article, the authors focus on three sonnets in which the speaker acknowledges himself as the victim of a crime committed by the young man, but pledges to testify against himself on the young men's behalf.
Abstract: This article is concerned with the uses to which Shakespeare put legal subject matter. I focus on three sonnets in which the speaker acknowledges himself as the victim of a crime committed by the young man, but pledges to testify against himself on the young man’s behalf. This strange justice, I argue, belongs to the philosophical tradition of hospitality, exemplified in a range of writings from St. Paul’s Epistles to work by Derrida and Levinas. Returning Shakespeare’s sonnets to this strand of intellectual history equips us with a set of concepts ideally suited to making sense of the way Shakespeare uses law to reflect upon the nature of selfhood.
5 citations
TL;DR: The authors used Williams' argument in support of that statement as a vehicle for the defense of the principle of the doctrine of faithfulness of the Christian about justice, and used it as a basis for their work.
Abstract: Rowan Williams once asserted that “all that can be said by the Christian about justice rests on a doctrine of God.” This article uses Williams’ argument in support of that statement as a vehicle fo...
4 citations
TL;DR: In this paper, an examination of inmate culture reveals death row as a site of subtle, supple struggle between the modern state and those it would kill, which would to exceed, to whatever extent possible, new biopolitical regimes.
Abstract: Between 1830 and 1930, the removal of legal and extralegal executions from public view in the United States bolstered the law’s efficiency while expanding its reach. Scholars have focused on external political effects, largely ignoring the lives of the condemned in the modern killing states. As they were withdrawn ever further behind prison walls, the condemned rearticulated the meanings of their deaths, which would to exceed, to whatever extent possible, new biopolitical regimes. An examination of inmate culture reveals death row as a site of subtle, supple struggle between the modern state and those it would kill.
TL;DR: The authors argues that the Western forms of evidentiary proof are not amenable to oral history testimony given by indigenous litigants, and suggests that the distance between these two conceptions of "events" and "record" is significant enough to warrant rethinking the place of traditional trial practices in the treatment of oral history.
Abstract: Recent work on political liberalism attempts to find ways to bring divergent cultural practices under a single rubric. This article examines one of the limits of the cultural commensurability of modern liberal legality. It argues that Western forms of evidentiary proof are not amenable to oral history testimony given by indigenous litigants. Current anthropological research on oral history and indigenous culture shows that oral history is not simply a “record” or “chronology” of events, but is a particular cultural practice that draws its members into the fold – and this is an event of its own. Western forms of evidence, however, traditionally treat testimony as “reporting” or as “creating a record” of a prior set of events in time. This article suggests that the distance between these two conceptions of “events” and “record” is significant enough to warrant rethinking the place of traditional trial practices in the treatment of oral history. It also suggests that the Western form of legality is grounded ...
TL;DR: The authors explores the significance of widespread debates in empires about the exercise of arbitrary power, particularly evident in the decades around the turn of the nineteenth century, and explores the implications of such debates in the present day.
Abstract: This article explores the significance of widespread debates in empires about the exercise of arbitrary power. As particularly evident in the decades around the turn of the nineteenth century, colo...
TL;DR: In this article, an empirical engagement of Giorgio Agamben's "spatial theory of power" is presented, through the case-study of civil death in New York, the continuum of exclusion that is capped on one end by homo sacer and the sovereign on the other.
Abstract: This article is an empirical engagement of Giorgio Agamben’s “spatial theory of power.” It explores, through the case-study of civil death in New York, the continuum of exclusion that is capped on one end by homo sacer and the sovereign on the other. I argue that civil death has had a long-running history in America, intimately connected to the expression of sovereign power and its deployment in the penal sphere. I show that despite the longue duree of this disability, and its efficacy as a tool of political and social marginalization, this practice has proved highly unstable for sovereignty and has generated significant resistance in the courts, civil society and prisons themselves. The contested status of civil death, I contend, underscores the dynamic character of resistance to sovereign power and its role in framing the conditions under which state authority can be articulated and maintained.
TL;DR: Apartheid or not apartheid?: that was the question addressed by participants in the third session of the Russell Tribunal on Palestine over the course of its de... as mentioned in this paper, and it was answered by both jurors and expert witnesses.
Abstract: Apartheid or not apartheid?: that was the question addressed by participants – both jurors and expert witnesses – in the third session of the Russell Tribunal on Palestine over the course of its de...
TL;DR: For example, the authors interprets the story of the origins of written law from Book III of Plato's Laws, to the end of filling out the picture we have of his views on the purposes of law.
Abstract: This article interprets the Athenian Stranger's story of the origins of written law from Book III of Plato's Laws, to the end of filling out the picture we have of Plato's views on the purposes of law. The Athenian argues that the origins of written law reside exclusively in the need to address the problem of violent conflict among men resulting from dangerous passions and the scarcity of resources. While recent scholarship on Plato has focused on the promotion of virtue as the highest objective of law, this article clarifies the lower, but immediate and enduring, aspects of Plato's jurisprudence. Language: en
TL;DR: Sotomayor's confirmation to the Supreme Court as the realization of the American dream and Court diversity in a colorblind era was challenged by as mentioned in this paper, who analyzes the epis...
Abstract: This article challenges the celebration of Sonia Sotomayor’s confirmation to the Supreme Court as the realization of the American dream and Court diversity in a colorblind era. It analyzes the epis...
TL;DR: The authors examines the reach and possible limits of "imperial legality" by comparing two kinds of practices intended to enable actors to resolve conflicts and make collective decisions without the force of sovereign impositions: contemporary anarchism and professional consensus building.
Abstract: This article examines the reach and possible limits of “imperial legality” by comparing two kinds of practices intended to enable actors to resolve conflicts and make collective decisions without the force of sovereign impositions: contemporary anarchism, which has become an influential part of the anti-neoliberal globalization movement, on the one hand, and professional consensus building, which is rapidly emerging as part of the alternative dispute resolution (ADR) movement, on the other hand. Although both sets of practices are intensely focused on generating consensus, this comparison highlights the different conceptions of process that they employ. Professional consensus building’s capacity to render itself “merely” procedure – a means to further another set of ends – makes it remarkably easy to scale up to imperial proportions. By contrast, anarchism’s vision of process aspires to collapse distinctions between means and ends, refuses to constrain anyone who does not participate, and seeks transforma...
TL;DR: The impact of new technologies on human rights, humanitarian issues and indeed on what it means to be human is discussed in a symposium on international law and science-fiction as mentioned in this paper.
Abstract: This article introduces the subject-matter of a symposium on international law and science-fiction. The impact of new technologies on human rights, humanitarian issues and indeed on what it means t...
TL;DR: In this article, the authors argue that the Old Testament/Hebrew Bible and early Judaism display a kind of legal discourse that reverentiates faith and law as separate entities, but have they always been?
Abstract: “Law” and “faith” appear to us as separate entities, but have they always been? This article argues that the Old Testament/Hebrew Bible and early Judaism display a kind of legal discourse that reve...
TL;DR: The authors acknowledge the faith that is part of modern law (but that modern law disavows) and provide an account that pays heed to the ways modern law cannot be reduced to a technical enterprise, is more than a mere exercise of power and retains a vital connection to justice.
Abstract: Acknowledging the faith that is part of modern law (but that modern law disavows) allows us to provide a more just account of modern law – an account that pays heed to the ways that modern law cannot be reduced to a technical enterprise, is more than a mere exercise of power, and retains a vital connection to justice. The technical cast of modern thinking makes it difficult to speak faith to modern law, but also makes such an endeavor essential.
TL;DR: In this article, the authors examine the construction of law in China Mieville's weird detective narrative The City & The City (2009) and examine the ways that this Law interdicts the common law in both parts of the fictional split city Besźel-Ul Qoma.
Abstract: This article critically examines the construction of law in China Mieville’s weird detective narrative The City & The City (2009). The discussion charts the excesses of law’s embodiment in Detective Tyador Borlu of the Besźel policzai with and against the primordial natural law discourse of the Law of Breach, and carefully examines the ways that this Law interdicts the common law in both parts of the fictional split city Besźel-Ul Qoma. Using the psychoanalytic concept of jouissance, this article unveils some of the modulations of authority presented by the novel’s unusual arrangement of politics, common law, and natural law.
TL;DR: The authors examines Ai Weiwei's encounters with the government and the law by juxtaposing his experience with that of another controversial figure in art history, Oscar Wilde, and demonstrates the parallels between the two figures, in particular their use of the act of posing as a mode of subversion and resistance.
Abstract: In April 2011, the Chinese artist Ai Weiwei was arrested at the airport in Beijing. To mark the first-year anniversary of his arrest, the artist decided to turn his own life into a form of performance art by installing cameras in his studio; in doing so he both reassures his supporters of his safety and allows the Chinese authorities to monitor his movements. This article examines Ai’s encounters with the government and the law by juxtaposing his experience with that of another controversial figure in art history, Oscar Wilde. It demonstrates the parallels between the two figures, in particular their use of the act of posing as a mode of subversion and resistance. It asks whether Wilde’s experience in the late-Victorian period can shed any light on Ai’s controversies in our own time.
TL;DR: In American immigration cases, the courts have simultaneously imagined different kinds of situations in which immigrants are regulated: situations where the plenary power doctrine suspends the ordinary operation of the law and situations where everyday legal norms are operative as mentioned in this paper.
Abstract: In American immigration cases, the courts have simultaneously imagined different kinds of situations in which immigrants are regulated: situations where the plenary power doctrine suspends the ordinary operation of the law and situations where everyday legal norms are operative. Focusing on the exclusionary era between 1882 and 1905, this article demonstrates how legal discourse imagines and describes the situations in which particular kinds of administrative action are to occur. These situations were fraught with an ambivalent tension between the extraordinary and the ordinary that corresponded to popular literary conventions in the late nineteenth century. Genres like naturalism and the western similarly demarcated ordinary and extraordinary situations, and the law’s composite sense of situation simultaneously drew upon and disseminated narrative conventions that existed in a wider cultural milieu. These correlations can inform our understanding of the connection between sovereignty and administrative d...
TL;DR: In this paper, through a consideration of monster theory and a reading of Maryse Conde's I, Tituba, Black Witch of Salem, the authors argue for an open acknowledgement of the fluid boundary between sacred and secular, epistemological humility in both and a revitalization of debates about the diminishing value and application of mercy.
Abstract: Despite the putative secularity of our culture, the reality is that in many contexts current church-state law is not separationist but preferentialist. Hidden preferentialism restricts political membership and participation and promotes an illusion of security, which reifies dangerous demarcations that make for an increasingly insular, fearful, unjust society. Through a consideration of monster theory and a reading of Maryse Conde’s I, Tituba, Black Witch of Salem, this article argues for (1) open acknowledgement of the fluid boundary between sacred and secular, (2) epistemological humility in both and (3) a revitalization of debates about the diminishing value and application of mercy.
TL;DR: This paper investigated the roots of American exceptionalism in the Puritan conception of the special covenantal relationship of New England (and later, America) with God and argued that the....
Abstract: In this commentary I investigate the roots of American exceptionalism in the Puritan conception of the special covenantal relationship of New England (and later, America) with God. I argue that the...
TL;DR: The authors argue that the typical representation of exiles and immigrants in literature can be distinguished from their representation in the law, where they are often given not to descriptive and plaintive expressions of their plight, as is the case in so many literary texts, but to simple affirmations of their existence.
Abstract: This commentary argues that the typical representation of exiles and immigrants in literature be distinguished from their representation in the law, where they are often given not to descriptive and plaintive expressions of their plight, as is the case in so many literary texts, but to simple affirmations of their existence. As the commentary goes on to show, the expression of exilic presence often comes in the form of an illocution – statements that make things happen as opposed to merely describing them – which have the potential to alter our view of exiles and immigrants as outsiders who are powerless and bereft anywhere but in their country of origin.
TL;DR: The authors argues that modern sovereignty is essentially imperial and yet carries an inextinguishable anti-imperial thrust, highlighting the self-grounded force of sovereign claims and at the same time exposing the contingency of those claims.
Abstract: This commentary reflects on the imperial qualities of modern sovereignty and law, through the lens of Jacques Derrida’s notion of sovereign “autopositioning.” It argues that modern sovereignty is essentially imperial and yet carries an inextinguishable anti-imperial thrust. These characteristics highlight the self-grounded force of sovereign claims and at the same time expose the contingency of those claims. The commentary argues that this relationship between force and contingency creates a need for vigilant critique of and a space for resistance to, sovereign claims.
TL;DR: The trial of the core members of the terrorist group the Red Army Faction (RAF) provided the backdrop to what was the final crescendo of the most tumultuous period in West German history.
Abstract: The trial of the core members of the terrorist group the Red Army Faction (RAF) provided the backdrop to what was the final crescendo of the most tumultuous period in West German history. The trial began in May 1975, with the verdict in Spring 1977 giving way to the “German Autumn,” a violent few months that climaxed with a kidnapping, a hijacking and the prison deaths of the RAF leaders. The defense strategy for the trial was to frustrate the process and ignore the charges in favor of using the proceedings to present the RAF cause and RAF identity. This article outlines how the extralegal use of the high-profile case as a platform to communicate with an audience beyond the courtroom was grounded in an instrumentalization of international legal conventions on “political prisoners” and “prisoners of war” as hooks for the RAF’s rhetoric of anti-fascism and anti-imperialism.