Law,Culture and the Humanities

This commentary approaches the question of whether there is or should be a law and humanities canon through John Guillory’s analysis of canon formation as an adjunct to specific forms of literacy and their perceived social value within “school culture.” Returning to the law and literature movement, with a focus on literature, this essay contends that in order to determine what should be in a canon, law and humanities must first revisit its aims and objectives, link what it reads to pedagogical goals, and draw clearer connections between teaching and scholarship. As the field’s texts modernize and diversify, so too should the literacies students need to engage with them.

This paper presents a response to the question of whether there is or should be a law and humanities canon. It is Franz Kafka’s The New Advocate (Der Neue Advokat). Between the lines of this text, a brief argument has been added concerning the use of the humanities for legal expertise. While the main text – a work of fiction – narrates the story of Dr Bucephalus, the war-horse of Alexander the Great, and his becoming admitted to practice as an advocate and to study the law, the added argument contributes little by way of additional commentary or interpretation of this fiction. Instead it suggests that legal scholars, rather than treating their art and expertise as a means only to advocate for public causes, should also not neglect the studious inutility of it. The suggestion states that jurisprudence is the source of this expertise and therefore, in so far as it ensures that law may be studied out of a genuine scholarly interest in it, remains the site for a work of law and the humanities. The main text concludes that it may be better to have done what Bucephalus has done and, under a quiet lamp, to bury oneself in the lawbooks.

This commentary considers the question of whether there is, or should be, a law and humanities canon by exploring the identity and value of the field and querying the concept of canon itself as an authoritative cultural technique of intellectual and social reproduction. I argue that the common trait which binds works in the field of law and humanities together is the connective “and,” which is inimical to the concept of a canon. Thinking with Barbara Hernstein Smith’s work on value and evaluation, Hans Ulrich Gumbrecht’s criticism of canons and classics, and Frantz Fanon’s understanding of personal universality, I show that the notion of an inclusive or “global” canon is an oxymoron and argue that it ought to be resisted.

This short Commentary imagines law and humanities not as a “canon” per se, but as a “field without a canon”; or a canon that resists canonization. Arts-based practices utilized in legal research and teaching expose the law and humanities “canon” to its dual (and somewhat contradictory) nature: ever straining toward a preestablished archive, it must also leap ahead fearlessly to properly defy disciplinary boundaries and move the field beyond siloed thinking, which is one of the preliminary aims of law and humanities scholarship and pedagogy. Arts-based practices consist not of a stable collection of set texts but instead signify a process of experimentation that is ever in flux and alive to possibility. It is this process of discovering new arts-based practices that ensures law and humanities remains a vibrant, yet ever-changing, field for years to come. To that end, this Commentary surveys a sampling of outsider approaches to law and humanities scholarship and pedagogy, those more concerned with process than product, and which are coming from outside of or beyond the more traditionally conceived canon of law and humanities. These approaches fall into two broad categories: (1) arts-based scholarly legal practices and (2) arts-based legal pedagogical practices. A uniting feature of both these approaches is that they are being undertaken and explored by Canadian legal scholars at a small law school on Vancouver Island on the West Coast of Canada, namely the University of Victoria Faculty of Law, where there is an impressive number of faculty members using arts-based practices in their research and teaching.

A recent International Criminal Court decision on the destruction of cultural heritage in Timbuktu has sparked a debate that goes far beyond the concrete case. It touches upon the longstanding and crucial question of who is the subject of international law. This question has also become exigent in the only seemingly distinct debate around the crisis of the Anthropocene. In both these debates humanity is portrayed as an actor who has either created or destroyed a foundation of creation’s existence, one that now is recognized as having a value of its own. The article first probes analytically how the court’s verdict and the debate surrounding it may be understood as echoing a fundamental concern of our time. Bringing affect theory into play, it delineates in a second step a concept of vulnerability that makes it possible to decenter the idea of “humanity” in international law as well as in political thought. Rather than thinking in terms of ownership, we might prefer to address the topic by using the notions of belonging and longing for.

Since Locke, the concept of person has been closely linked to the idea of a subjective natural right and, later, to the concept of human rights. In this article we attempt to trouble this connection between humanity and personhood. For personhood is also an apparatus or dispositive of power. In the first half of the article, we identify a fundamental problem in the usual way human rights are connected to legal personhood by making use of insights drawn from Roberto Esposito’s discourse on biopolitics and critical race theory. While human rights are intended to offer protection to the “precarious” reality of human embodied life, we hypothesize that the fiction of legal personality generates a dis-embodiment whereby this human life is left exposed and defenseless. In the second half, we propose reconstructing the idea of legal personhood so that it may be more adequate to the required conception of human rights with insights drawn from Helmuth Plessner’s political anthropology of embodied life and from the analysis of disembodiment recently articulated by Ta-Nehisi Coates.

What is the relationship between constitutional order and the emergence of oligarchic politics in contemporary democratic societies? How and to what extent does constitutional design contribute to oligarchic politics in contemporary liberal democratic states? Focusing on constitutional discourses, rather than the legal positivist interpretation of the constitution (or constitutions as text), I maintain that state constitutions should be understood as an ideational-discursive realm of competing discourses, paradigms, and interpretations of an ideal state. My main argument states that oligarchic democracies emerge because a coalition of stakeholders that promote neoliberal understanding of the constitution has taken hold of this discursive realm of constitutional interpretation both within the state apparatus and the public sphere. Thus, the crisis of democratic representation and its relationship to constitutional design represents ideational and materialist aspects: oligarchs promote, reinforce, and sustain self-serving constitutional interpretations and discourses that reinforce the political logic of oligarchic wealth accumulation while suppressing the politics of peaceful dissent and distributive justice.

This article interrogates the notion of liberal state neutrality when it comes to adjudicating religious freedom claims. Drawing on work in political theory, legal theory, and religious studies, I argue that Christianity is a central and invisible feature of liberalism. I then examine how Christian liberalism has shaped American religious freedom jurisprudence, analyzing contradictory Supreme Court decisions involving free exercise and establishment claims. On the one hand, the language of secular purpose has safeguarded several Christian expressions from Establishment Clause scrutiny. On the other hand, since the passage of the Religious Freedom Restoration Act (1993), some Christian conservative legal advocates have repositioned Christianity as a persecuted religion requiring free exercise exemptions from antidiscrimination law. That the Court has recently obliged this more narrow understanding of religious freedom demonstrates the resilience of the Christian liberal state. While the cases are drawn from the American context, I suggest that the language of Christian liberalism is a useful conceptual tool for analyzing religious freedom claims in a variety of liberal democratic contexts.

The legitimacy of public memory and socially normative standards of civility is questioned through rumors that abound on online social media platforms. On the Net, the proclivity of rumors is particularly prone to acts of bullying and frameworks of hate speech. Legislative attempts to limit rumors operate differently in France and throughout Europe from the United States. This article examines the impact of online rumors, the mob mentality, and the politicization of bullying critics within a cyber culture that operates within the limitations of law.