Law,Culture and the Humanities

The rule of law is understood as a clear benchmark or achievement in contemporary international politics. But the rule of law is better understood as an invariably messy, contingent, and incomplete process or practice. This article examines how one man, Sir James Stephen, oversaw the rule of law in British colonial territories in the first half of the 19th century. He offers clear lessons in why the rule of law can never be definitively achieved, and the importance of approaching law’s administration with humility.

Analogical reasoning is common in legal writing, just as analogies are a part of everyday life. Indeed, they may be inescapable features of human cognition. Used well, analogies illuminate the writer’s reasons and persuade the reader. Used poorly, however, they may obscure or even replace the precision and detail in reasoning that is crucial to the development of law. Without entering the ongoing debate about the nature of human thought, this article explores some of the dangers present in the relationship that analogy maintains with law. In particular, the article examines the risks inherent in analogizing across a technological or social divide. The article concludes by noting the long-term consequences of analogies and metaphors in shaping thought and, therefore, society.

In this essay, I explore some of the contemporary debates on the role of the Indian Supreme Court in the context of equality and liberty at a moment when it appears that the very reasons for the celebration of judicial review and interventions are under attack by progressive scholars and activists. In reviewing the debates on the role of the Court, I focus on one particular contention that since the realm of social/equality was paramount for the Indian state as a whole, and the Supreme Court post-emergency, the realm of political/liberty was consequently ignored. By revisiting the debate on equality trumping liberty, I acknowledge the critiques of the Court but also point to ways in which certain facets of political liberty do get addressed even in the absence of a focus on liberty. Even if by themselves these judicial interventions may be inadequate to create a due process revolution as far as criminal defendant rights are concerned, they create an “arsenal of tools” available for those concerned with liberty and justice. At the very least, such a conception portrays the Court as less unidimensional than characterized by recent scholarship and retains the Court as a productive site of contestation.

What does rule of law look like from beyond an Anglo-American perspective? This Commentary excavates a subterranean strand of Singapore’s rule of law discourse – rule of law as the necessary subordination of ‘the people’ – to argue that colonial ideologies are inevitably perpetuated and revitalized when the postcolony adopts rule of law as a pillar of the nation-making project.

This article examines the operation of “enmity” in right to die legal appeals. The article asks: (1) why does the law rely on articulations of enmity to rationalize its decisions and (2) what might this tell us about how biopolitics operates in the contemporary neoliberal moment? Drawing on the insight of Roberto Esposito the article makes three key points. First, it notes that biopolitics operating in the contemporary neoliberal moment is increasingly focused on closures around individual human subjects, or what Esposito calls mechanisms of “immunization.” Second, it notes that discourses of enmity are perpetuated through legal right to die appeals that shore up these immunity mechanisms, which can partly explain why right to die claims fail on appeal. Finally, it considers more affirmative ways forward in both theory and practice relating to legal right to die appeals.

This article examines a little-known archive of illustrated children’s stories written by a nineteenth-century Michigan jurist, James Valentine Campbell. Despite his public reputation as a sober-minded judge and law professor who resisted interjecting his personal views into his decisions, Campbell’s domestic life as an author and performer of children’s stories served as an outlet for criticizing the excesses of the legal profession and proposing alternative methods of dispute resolution. His tales urged children to avoid laws and lawyers and instead to cultivate their own ethical and imaginative capacities for solving problems. His public and private activities intersected in his work as a founding professor at the University of Michigan Law School, training students to remain participants in the democratic process and resist mindlessly applying the law without understanding the deeper social and historical contexts of their work. This case study demonstrates the complexity of American legal subjectivity in the nineteenth century and the importance of considering archives beyond the published legal record.

Through the work of Jean-Luc Nancy, and following recent publications that champion the theoretical significance of jurisdiction, this article reads jurisdiction as a technique of legal fiction-making and as capable of exposing an originary ontological category of “being-with.” Rather than thought of purely as an expression of the law’s sovereign authority, it is argued that jurisdiction is a privileged point at which we can see the law’s fragility and thus open to critical intervention and interruption. Following Nancy’s understanding of “writing” and “literature” as that which exposes being-with, I suggest that we might name such strategies of creative intervention “juriswriting.” This account of jurisdiction, developed by thinking with Nancy’s account of ontology, is explored with reference to the common law constructions of jurisdiction in the sixteenth and seventeenth centuries.

The aim of this article is to suggest a way forward for conflicts between individual rights and group rights, and between policies of equality and policies of difference. I propose a strategy to deal with problems of recognition, by establishing a legal mechanism in which powers and responsibilities are shared by the group and the state. This strategy does recognize the importance of the subsidiarity principle, and it is based on the European Court of Human Rights (ECtHR)’s margin of appreciation doctrine. This approach aims to combine respect for fundamental rights with the defense of a group’s identity, by allowing group representatives a wider margin of interpretation in constitutional rights enforcement. At the same time, I argue that this perspective may be a judicial mechanism to encourage groups to gradually develop their traditions, and to update them to constitutional standards.

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.