Law, Culture and the Humanities current issue

Editorial

Sarat, A. — 2008-09-01

Thinking Bioethics

Dhadda, B. K. — 2008-09-01

This commentary reflects a broadly deconstructive reading of the relation of law, biotechnology and bioethics in shifting global, biotechnological contexts. I suggest that a reorganization of techno-scientific capital has altered forms of representation as well as mechanisms of expropriation and exploitation. I consider the bioethical implications of biotechnological inventions of living form that have redefined classical categories of thought, the sites of political representation and identity as well as the language of modern law, ethics and politics. I proceed to comment on the globalization of intellectual property rights as an expression of the hegemony of modern law.

Self-contained Bioethics and the Politics of Legal Prohibition

Lezaun, J. — 2008-09-01

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.

From Bioethics to Bio-optics: The Case of the Embryonic Stem Cell

Shai Lavi, — 2008-09-01

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.

Revitalizing Aristotle's Doctrine of Equity

Shanske, D. — 2008-09-01

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.

Victorian Precedents: Narrative Form, Law Reports and Stare Decisis

Ben-Yishai, A. — 2008-09-01

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.

"Slender Knowledge": Sovereignty, Madness, and the Self in Shakespeare's King Lear

Harmon, A.G. — 2008-09-01

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.

Dueling Tragedies: A Critical Read of the Lautenberg Story

Morgan, P., Adelman, M., Soli, S. J. — 2008-09-01

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.

Book Review: Lex Populi: The Jurisprudence of Popular Culture By William P. MacNeil. Stanford: Stanford University Press, 2007. 241 pages. $45 (Cloth). ISBN-10: 0-8047-5367-9

Andrejevic, M. — 2008-09-01

Book Review: Injury: The Politics of Product Design and Safety Law in the United States By Sarah S. Lochlann Jain. Princeton: Princeton University Press, 2006. xvi + 214 pp. $57.50 (Cloth). ISBN 978-0-691-11907-6; $22.95 (Paper). ISBN 978-0-691-11908-3

Bryan, B. — 2008-09-01

Book Review: The Constitution of Law: Legality in a Time of Emergency By David Dyzenhaus. Cambridge, UK: Cambridge University Press, 2006. 250 pp. $39.00 (Paper). ISBN 9-780521677950

Lozano, B. J. — 2008-09-01

Book Review: Law as a Means to an End: Threat to the Rule of Law By Brian Z. Tamanaha. New York and Cambridge: Cambridge University Press, 2006. 268pp. $75.00 (Cloth). ISBN: 0521869528

Olarte Olarte, M. C. — 2008-09-01

Book Review: The Language of Liberal Constitutionalism By Howard Schweber. Cambridge, UK: Cambridge University Press, 2007. 386 pp. $96 (Cloth). ISBN 9780521861328

Parrish, R. — 2008-09-01