Law,Culture and the Humanities

In this commentary, I explore the question of how the way we think about time affects the conclusions that we draw about specific political questions. To demonstrate this, I consider two questions, the relationship between liberalism and neoliberalism and the relationship between neoliberalism and fascism. I look at these issues first from within the normal teleological notions of time that are prevalent and then from a more ‘dissociated’ form of temporality in keeping with the theorization of Walter Benjamin in his essay “On the Concept of History.” My claim is that Benjamin’s concept of time is anarchist and that thinking about time, history and politics in this way offers new insights into what may otherwise seem like hopelessly fated predicaments.

In order to have a more nuanced conversation about the role and size of government, we should attend to our diverse passional experiences of bureaucracy. We overlook our affective experience of bureaucracy in our usual focus on bureaucracy’s impersonality and passionless rule and on cost-benefit analyses of individual regulations. To the extent that we consider bureaucracy’s passional effects, bureaucracy is cast as something that saps passion – understood as energy and vigor – from our lives. Attention to the variety of passional experiences of bureaucracy reveals neglected and salutary aspects of life within and under the shadow of bureaucracy. For example, particular bureaucratic affects are arguably a pedagogy in the realities, compromises and burdens of politics, and may enhance – in desirable ways – our solidarity with those who share our polity.

The “affective turn” presents a number of important challenges to law and the humanities. One such challenge concerns our ability to resist the temptation to romanticize the inhuman. Theorists from Nietzsche to Massumi have been so taken by the emancipatory promise of affective intensity that they risk relinquishing responsibility for freedom’s necessary social, political, and legal pre-conditions. Our responsibility for narrative construction and narrative choice carries with it an ethical imperative to understand the orchestration of affect. Downplaying the importance of reflective consciousness (including our capacity for prudent judgment) in favor of spontaneous affective events threatens to rob freedom of its meaning and open democratic societies to grave risks.

For several years now, a group of prominent religious liberty scholars in the United States have been defending what they call a “live-and-let-live” approach to accommodating religious dissent in the era of marriage equality. The proposed approach calls on the state to avoid taking sides on contested moral issues when individuals of faith claim that their religious beliefs require them to refrain from facilitating marriages by same-sex couples. The objective, it is argued, is to adopt policies that allow both sides to live according to their values. This article critiques the “live-and-let-live” solution to religious exemptions from LGBT (lesbian, gay, bisexual, and transgender) equality measures by focusing on questions of harms. It argues that the proposed approach calls for a weighing of harms that is largely unprecedented in the history of American antidiscrimination law and problematic in its own right. The article also explains that the approach is premised on questionable assumptions and predictions about the absence of any meaningful harm to LGBT individuals when business owners provide goods and services to the general public, but refuse to do so for same-sex couples on religious grounds.

This article deals with three elements of the adversarial judicial process, conventionally viewed as expressing justice, and examines their meaning in the Hollywood courtroom film genre. These include the space (architecture and design) of the courtroom, the element of the lawyer’s duty, and the narrative of the legal process. We suggest that characteristics of the actual adversarial judicial process, accepted as showing how justice is achieved, are actually presented in a critical manner in courtroom films, and are often used to indicate the difficulty in attaining justice through the judicial process. This finding is surprising, given the law’s emphasis on the characteristics of justice as part of its social legitimization, and in light of the central tendency of genre films to support existing social institutions, the institution of the law among them.

This article seeks to clarify the meaning of marriage for Millian liberals by examining marriage in the context of the nineteenth century common law. JS Mill argues that the family can become a school for free institutions. He identifies a ‘‘morality of justice’’ that must replace chivalry or submission as the normal mode of gendered relations. By using pamphlets, speeches, and legal commentaries, it is possible to explain the meaning of Mill’s ‘‘morality of justice,’’ and also to distinguish his liberal conception of marriage from its common law foundations and from sacramental approaches that define marital dissolubility and flexibility differently.

Reality television in the United States has often been understood to reinforce the punitive and neoliberal turns American political culture took in the late twentieth century. But in this article, we examine how it can work to unsettle as well as naturalize punitive and neoliberal ideologies. We do so via a case study of To Catch a Predator, a reality-based television program documenting the detection, legal apprehension, and extralegal punishment of adults seeking sex with teenagers. Both the appeal of the show and its susceptibility to the backlash that ultimately shut down its production, we argue, lay in a tacit invitation to viewers to imagine themselves as predators as well as parents or prosecutors.

This article interrogates the specter of resistance in the writings of Giorgio Agamben and Michel Foucault, arguing they open up divergent ways of theorizing resistance to power. This article’s focus is on both philosophers’ use and interpretation of the dispositif, or apparatus, which controls and orders subjects, and which is the target for forms of resistance. Whereas for Foucault resistance is a practice existing as a transcendent possibility for any individual, Agamben reads such transcendent forms of resistance as ultimately reinforcing the control of the dispositif, arguing that only a turn to ontology and immanent politics can resistance be meaningful.

In the aftermath of anti-Muslim violence in Gujarat, India, in 2002, NGOs and activists encouraged survivors to testify against Hindu perpetrators in court. Through an ethnographic analysis of a criminal trial in the lower courts of Ahmedabad, I show how state officials and perpetrators used legal procedures to transform Muslim survivors into unreliable witnesses in the courtroom. These formal and informal techniques to destabilize Muslim witnesses are best understood not as byproducts of the law’s failure to address mass violence, but as a legal performance of Hindu supremacy. Procedural and positivistic approaches to the rule of law failed to address the law as a performance embedded in the context of Hindu nationalism in Gujarat. Not only do such trials discredit witnesses of mass violence, but they also give a legal form to the subordinate status of religious minorities within a majoritarian political regime.

While many have pointed to Tocqueville’s admiration of the jury system as a schoolhouse for civic participation, I argue that Tocqueville sets up, but forgoes, the opportunity to make jurors empowered enough to counter the ills of democracy that he enumerates, specifically the tyranny of the majority and soft despotism. The education of American women, Tocqueville remarks, prepares them to be independent, confident and astute observers of social conditions, but these characteristics are eclipsed by their domestic responsibilities as wives and mothers. Juxtaposing two sections of Democracy in America that are normally thought of separately (juries and women), I show that Tocqueville falters in his perception of the radical enfranchisement of jurors and women because of his fears about the instability of democracy (with its delusions of equality) just as he provides some of the best arguments for the importance of their political interventions.

This study considers Chief Justice John Marshall’s famous opinion in Marbury v. Madison (1803) as a vehicle for investigating contemporary interpretations of both John Marshall and the concept of constitutional legitimacy. In it, I examine how Marshall’s opinion located legitimacy in several aspects of the Constitution, including its protection of rights, its embodiment of the consent of the governed, and its ability to organize and direct national politics. Thus, I suggest that Marshall offers a more comprehensive theory of constitutional legitimacy than many recent conceptualizations. Yet more than simply uniting existing approaches to constitutional legitimacy, I demonstrate that Marbury offers a unique theory of the Constitution’s moral legitimacy as well. This analysis of Marbury invites a new appraisal of Marshall as not only a legal and political thinker, but also a constitutional theorist with a distinctive understanding of the American Constitution and its role in the early years of the republic.

This article argues that the narratives told about the Great War helped to establish the bombardment of civilians during World War II as an ethical, military and legal possibility. It shows that the literary representation of the Great War was antagonistic towards civilians, suggesting that a fairer war would affect the entire nation. Military strategists accepted this premise and planned for a future war that would be directed against civilian populations. International lawyers also adopted this narrative and, constrained by it and their disciplinary conventions, found it hard to posit any strong legal or ethical objections to aerial bombardment.

This article offers a substantial new interpretation of Aeschylus’ Oresteia, one of the most important literary texts to deal with the question of the rule of law, and one of Western jurisprudence’s founding documents. Perhaps in part because of it has fallen under the shadow of Antigone, the play has tended to suffer from a reductionist reading in which legal reason triumphs over the passions. The present article rereads the text drawing on recent scholarship on Aeschylus’ work. It argues that the central figure of the Furies has been misunderstood: they are not simply expressions of violence and passion; on the contrary, they are the most legalistic of all the figures in the play. The model of judgment introduced by Athena in the resolution of Oresteia does not pit law against emotion, or feud against process, but judgment against law. The trilogy begins by presenting the uncertainty of language as law’s curse, and the certain application of the law its cure; it concludes by radically reframing the question. Now the illusory certainty of law is the curse – and the uncertainty of language its cure. Athena’s way positions legal judgment as something more than the mere following of rules. The article then goes on to show that this approach not only casts a new light on orthodox jurisprudence. It is of profound relevance to the work of Giorgio Agamben and the theory of sovereignty he has famously expounded in Homo Sacer. What ultimately separates Athena’s rule of law from mere decisionism or Agamben’s executive and unlimited sovereignty are the external constraints to which she purposely submits herself. Athena demonstrates a vision of judgment as a participatory and transformative process. Above all, she insists on the essential role of public legal argument and public accountability in a discourse of legal legitimacy, which is not simply limited to judges or particular legal decisions. On the contrary, Athena connects the rule of law to a continuing discussion of legal values and judgments which is never finally settled, and in which all of us, as citizens of Athens, are participants.