Law, Culture and the Humanities recent issues

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

Editorial

Sarat, A. — 2008-05-29

Law and the Evidential Image

Haldar, P. — 2008-05-29

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 ideal image would be the result of an acheiropoietic process. In contrast to judicially defined doctrine, evidential practices of looking at images tend to surrender to a clutter of detail and impurities. Images are rather examined and scrutinized with meticulous precision. The works of Ravit Reichman, Carlo Ginzburg, and Jacques Derrida have already done much to radicalize and re-house the concept of the detail. The argument here will be that an understanding of "detailism" as it reveals itself in the evidential practice of looking at images might help provide an alternative understanding of how the trial operates.

Institutionalizing Ensembles: Thinking Theatre, Performance, and "the Law"

Nielsen, L. D. — 2008-05-29

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 concerned with law and the state has to do with "archive fever:" creative methodologies deploying, broadly speaking, the evidences of archival and documentary research. Finally, the third arena takes up questions of the arts, human rights, and cultural policy, with particular focus on the current era of neoliberal governmentality.

Legal Performance Good and Bad

Peters, J. S. — 2008-05-29

"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 writings on law. This essay reviews these discussions, looking at the ways in which they construe legal performance and assessing what they have to say about its nature, meaning, and consequences for the law. Diagnosing a split in the critical literature between a vision of legal theatricality endemically complicit with the law's authoritarian control of the subject and a vision of it as an agent of liberation from authoritarian subjugation, I identity this split with a longer history of ambivalence about the theatricality of the law. On the one hand, this essay is simply a map of what has been said in the past few decades about legal performance. On the other, it serves as a critical introduction to a longer-term study of the role of legal performance (as both instrument and concept) in the historical production and reception of the law.

Contact, Complicity, Conspiracy: Affective Communities and Economies of Affect in Naples

Pine, J. — 2008-05-29

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 contact zone where the informal and illicit economies meet. This zone is where tens of thousands of ordinary underemployed Neapolitans and the camorra, Naples' powerful and diffuse organized crime networks participate in a shared, albeit volatile, affective community. Affect is a pre-personal experience of intensity, the ability to affect or be affected. Affective community in Naples is less an identity or organization than it is a synergy, event or practice. It is experienced as a blend of fear, recognition and tolerance through the phenomena of contact, complicity and conspiracy.

Feeble Echoes of the Heart: A Postcolonial Legal Struggle in Hawai`i

Milner, N., Goldberg-Hiller, J. — 2008-05-29

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.

Towards a Poethics of Terror

Ward, I. — 2008-05-29

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 endeavor to access an ethical, as well as political and cultural, understanding of modern terrorism.

August Wilson's The Piano Lesson and the Limits of Law

Tackach, J., Benoit, E. — 2008-05-29

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.

Book Review: Just Silences: The Limits and Possibilities of Modern Law: By Marianne Constable: Princeton University Press, 2007. 224 pp. $24.95 paper. ISBN13: 978-0-691-13377-5

Umphrey, M. — 2008-05-29

Book Review: Moral Images of Freedom: A Future for Critical Theory: By Drucilla Cornell: Rowman & Littlefield, 2007. 175 pp. $24.95 paper, ISBN: 978-0-8476-9793-9

Barnard-Naude, J. — 2008-05-29

Book Review: Infinitely Demanding: Ethics of Commitment, Politics of Resistance: By Simon Critchley, Verso: London, 2007. 224 pp. $26.95 cloth. ISBN 13 978-1844671212

Thurschwell, A. — 2008-05-29

Book Review: A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States: By Stephen Mihm, 2007, Cambridge: Harvard University Press, 457 pages. $29.95 cloth. ISBN-10: 0-674-02657-8, ISBN-13: 978-0-674-02657-5

Garcia, J. J. — 2008-05-29

Editorial

Sarat, A. — 2008-03-27

"As if" -- the Court of Shakespeare and the Relationships of Law and Literature

Manderson, D. — 2008-03-27

Not Drowning, Waiving: Responsibility to Others in the Court of Shakespeare: Statement of Facts

Yachnin, P., Manderson, D., Goodrich, P., Jordan, C., Strier, R. — 2008-03-27

Black Arts and Good Law: Literary Arguments for Racial Justice in the Time of Plessy

Perry, I. — 2008-03-27

In this article, the author demonstrates how late 19th Century writers who advocated for racial equality used the concepts of symmetry and equality, as represented in the 14th amendment, to argue that racial justice was beautiful — philosophically as well as politically, and to argue for constitutional interpretations which advanced racial justice. This is read as a species of argumentative formalism, nonetheless bearing political goals. In identifying this practice, the author hopes to enrich conversations about the conflict between abstract legal principles, and the belief that law is a product of social and political realities, as it relates to race, by demonstrating that the abstraction of law was appealing and even useful in historic struggles for racial equality.

On the Book of Job, Justice, and The Precariousness of the Criminal Law

Berger, B. L. — 2008-03-27

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.

Book Review: Imperialism, Sovereignty and the Making of International Law By Antony Anghie. Cambridge, UK: Cambridge University Press, 2005. 380 pp. $48 paperback. ISBN 10-0521702720

Kendall, S. — 2008-03-27

Book Review: Outlawed Pigs: Law, Religion and Culture in Israel By Daphne Barak Erez. Madison, WI: University of Wisconsin Press, 2007. Hardback. 200 pp. $45. ISBN 0299221601

Aviram, H. — 2008-03-27

Book Review: Albert Camus the Algerian: Colonialism, Terrorism, Justice By David Carroll. Columbia University Press, 2007. 256 pp. ISBN 978-0-231-14086-7. $29.50 (Hardcover)

Ptacek, M. — 2008-03-27

Book Review: Human Rights & Gender Violence: Translating International Law into Local Justice By Sally Engle Merry. Chicago: University of Chicago Press, 2006. 269 pp. $20 paperback. ISBN 0-226-52074-9

Murthy, H. M. — 2008-03-27

Book Review: Toward a Global Idea of Race By Denise Ferreira da Silva, Borderlines Series, vol. 27, Minneapolis: University of Minnesota Press, 2007. 334 pages. ISBN 978-081664920-4. $25 (paperback)

Hua, J. — 2008-03-27

Book Review: Access to Justice By Deborah Rhode. Oxford, UK: Oxford University Press, 2004. 252 pages. $19.95 paperback. ISBN 978-0-19-530648-4

Stauffer, J. — 2008-03-27

Editorial

Sarat, A. — 2007-10-29

Galactic Jurisprudence: In Space, No One can Hear you Litigate!

MacNeil, W., Davies, L., Black, C. — 2007-10-29

Echo and Mirror: Clone Hysteria, Genetic Determinism and Star Trek Nemesis

Tranter, K., Statham, B. — 2007-10-29

This essay examines the hysteria that surrounded cloning and the law that this hysteria called forth in Australia in 2002. Through a parallel reading of two accounts of clones, the public record of cloning that ended with the Prohibition of Human Cloning Act 2002 (Cth), and Star Trek: Nemesis, it argues that instead of fearing the clone, it is clone hysteria that should be feared. Star Trek: Nemesis exposes the constitute anxieties (clone as double, clone as artefact) of clone hysteria, and offers a partial critique. In doing so it points to the foundational place of genetic determinism in thinking about cloning. Although its critique turns out to be illusionary, the film highlights the need for addressing genetic determinism in clearer thinking and lawmaking about clones and cloning. Law, Culture and the Humanities 2007; 3: 361—380

From Offworld Colonies to Migration Zones: Blade Runner and the Fractured Subject of Jurisprudence

Hutchings, P. J. — 2007-10-29

Looking again at Blade Runner (dir. Ridley Scott, 1982) — after Tampa, after 9/11 — 2019 seems all too close to 2003². Australia's Christmas Island, America's Guantànamo Bay are our offworld colonies, and the disposable "skinjobs" come in a variety of darker colours than those of Scott's film. Through a re-reading of Blade Runner, this paper argues that the theory of right which would be adequate to such a world is the right of the outlaw, for this is a world in which right is subject to power, in which state "law" undoes and exceeds its own foundations. Law, Culture and the Humanities 2007; 3: 381—397

Asimov's Posthuman Pharisees: The Letter of the Law Versus the Spirit of the Law in Isaac Asimov's Robot Novels

Leslie-McCarthy, S. — 2007-10-29

This article examines the ways in which the Robot Novels of Isaac Asimov provide a useful case study for important posthuman legal considerations. In advocating an understanding of law and justice that focuses on the spirit of justice as opposed to formalistic considerations, Asimov demonstrates the challenges that artificial intelligence or robots may pose to the posthuman legal system. It analyzes the legal concerns raised in each of the Robot Novels: The Caves of Steel (1954), The Naked Sun (1956), The Robots of Dawn (1983) and Robots and Empire (1985), and suggests that Asimov's portrayal of posthuman justice emphasizes the necessity of formulating "law" that is underpinned by a notion of the fundamental kinship of "intelligent" beings rather than a nominal equality within what is fundamentally a slave society. Law, Culture and the Humanities 2007; 3: 398—415

Free Flesh: The Matrix, the War on Iraq and the Torture of Democracy

Rogers, J. — 2007-10-29

Something is always lost to the sovereign, democratic, liberal or otherwise. This is the very function of law, but in contemporary times of (anti) terror, when obedience demands obeisance and protection from terror includes torture, it is becoming increasingly difficult in the United States, Australia and Britain to imagine a `fair and free contract' with the sovereign. What is to be done? Purchasing freedom as cars, perfume and fries performs one evasion of the violence of the sovereign decision. The collapse of signification into the product is an effective gesture to enable a liberal democratic subject to imagine it is obtaining or ingesting freedom in the cloth or, as a food group. Similarly, offering freedom as a gift to the Middle East enacts a denial or even foreclosure that speaks of freedom as if it can be administered militarily. This article discusses the mirroring of the imagery in the Wachowski brothers' Matrix Trilogy with contemporary political rhetoric in the West on the War on Iraq and on the use of torture. The momentous copulating of Trinity and Neo in Matrix Reloaded, I argue, offers both the characters and cinemagoers the promise of the birth of freedom from the white loins of the characters. This birth mirrors the promise of a birth of freedom qua capitalist democracy from the loins of the White House and further renders freedom a product or gift which can be quantified and possessed, obscuring the loss that the subject endures before the contemporary democratic sovereign. Law, Culture and the Humanities 2007; 3: 416—434

Opting for Ontological Terrorism: Freedom and Control in Grant Morrison's The Invisibles

James, N. — 2007-10-29

Anarchism is typically understood as an ideology advocating the abolition of all forms of institutional authority in favor of natural order and, as such, is easily dismissed as overly simplistic and unrealistically optimistic. A more relevant and less utopian conception of anarchism, "ontological terrorism," is described in Grant Morrison's science-fiction comic book series The Invisibles. This paper locates The Invisibles in relation to other works of anarchist fiction, traces the evolution of Morrison's depiction of anarchism within the series from orthodox anarchism to ontological terrorism, and demonstrates how ontological terrorism subverts the dualistic relationship between freedom and control. Law, Culture and the Humanities 2007; 3: 435—454

"This is the Authority. This Planet is Under Our Protection" An Exegesis of Superheroes' Interrogations of Law

Bainbridge, J. — 2007-10-29

This paper examines concepts of authority, law, and justice in the genre of superhero comics. Despite the common view that comic book superheroes do not warrant (and have not received) significant academic attention except as art form (rather than social/legal commentary), they do, in fact, present a locus in which visions of law and its relationship with society are played out with a degree of intellectual and jurisprudential sophistication. This is because superheroes reflect perceptions of failed or deficient law. They are therefore another vehicle for thinking discursively about law because of what they can say about society and its perceptions of the effectiveness of law, in the context of their manifesting a pre-modern, sacralised, view of embodied justice as opposed to modern constructs of law. Using a typology of pre-modern, modern, and postmodern justice, the paper briefly explores the characteristics of justice found in superhero comics. The post-modern superhero is characterized in terms of a relation to rationality (they exist in opposition to it); in relation to law (they supplement its failures); and in terms of action (they are proactive). Finally some ways of relating these accounts of justice are exemplified in the superhero figure of Matt Murdock and Daredevil. Law, Culture and the Humanities 2007; 3: 455—476

Voicing the Shadow Rule-playing and Roleplaying in Wraith: The Oblivion

Beattie, S. — 2007-10-29

Rules may seem restrictive, merely negative exercises of coercive power. Nevertheless rules also have a strong constitutive role—in shaping fields of practice, defining roles and enabling agency. This paper explores the theory of different rule-playing `stances' emerging from the theory of role playing games and asks if this might also have juridic or regulatory application. As context, this paper looks to the role playing game `Wraith: The Oblivion', particularly for its unique use of roles to shape identity through the `shadow' persona. Law Culture and the Humanities 2007; 3: 477—492

Book Review: A Democracy of Distinction: Aristotle and the Work of Politics By Jill Frank. Chicago: University of Chicago Press, 2005. 199 pp. ISBN 0-226-26019-4. $19.00 (pb)

Garver, E. — 2007-10-29

Book Review: The Laws of Love By Peter Goodrich. New York, Palgrave Macmillan, 2007. 260 pp. ISBN 0-230-00718-X. $85.00 Hard cover

van de Wiel, L. — 2007-10-29

Book Review: Rape and Sexual Power in Early America By Sharon Block. Williamsburg: Omohundro Institute of Early American History and Culture, 2006. 296 pages (with index). $19.95. ISBN 0-8078-5761-0 (paper)

Branch, M. N. — 2007-10-29

Book Review: Religion and the Constitution: Volume 1: Free Exercise and Fairness By Kent Greenawalt, 2006, Princeton: Princeton University Press, 455 pages. ISBN-10: 0-691-12582-1, ISBN-13: 978-0-691-12582-4

Thiem, A. — 2007-10-29

Book Review: The Open: Man and Animal By Giorgio Agamben, translated by Kevin Attell. Meridian: Crossing Aesthetics Series. Stanford: Stanford University Press, 2004. viii + 102 pp. Index. $40.00 (cloth), ISBN 978-0-8047-4737-0; $15.95 (paper), ISBN 978-0-8047-4738-7

Bryan, B. — 2007-10-29

Book Review: Surviving the Slaughter: The Ordeal of a Rwandan Refugee in Zaire By Marie Beatrice Umutesi (translated by Julia Emerson), Madison: University of Wisconsin Press, 2004. xvi + 258pp. ISBN 0 299 20494 4

McMillan, N. — 2007-10-29