Law,Culture and the Humanities

The problem of negotiating law and religion is not a modern one; ever since ancient authors and jurists experienced the tension between optimism in divine justice and realism about injustice done on earth, they sought to find ways to reconcile the two different spheres, albeit with difficulty. This paper explores how this tension was negotiated in ancient Jewish texts that represent a variety of approaches: the canonical Hebrew Bible, which sought to provide a sense of divine justice working through history; the work of Ben Sira, which endeavored to tie the details of Jewish law to the wisdom tradition; the philosophy of Philo of Alexandria, which tied the same to Greek thought; and the obscure texts of the Dead Sea Scrolls, which viewed the fate of the world as dependent on the communities' particular observances. Attention is paid not only to how these texts endeavored to bring these two spheres of practice together, but also to what is lost in the process. Law, Culture and the Humanities 2007; 3: 189—204

Cases concerning posting the Ten Commandments in public places raise issues about how a culture and its legal organs can confront powerful symbols which convey different meanings to different people. Courts cannot do very well in facing issues of plural meaning. One sign of the inevitable failure of their attempts is the way everyone involved in adjudication, from the legislature to the Supreme Court, makes assertions that are simply conclusory because they tried to talk about meaning in terms of effects and both sides assume that the meaning of posting the Ten Commandments is simply derivative from the meaning of the Ten Commandments themselves. Cases such as these raise three problems: whether such a state action as posting the Ten Commandments is a unifying or divisive act, whether the sacred nature of a symbol such as the Ten Commandments disqualifies it from political uses, and whether the presence of a copy of the Ten Commandments can have practical effects, such as reducing juvenile delinquency or crime, or is the only practical consequence of either posting or not posting the Ten Commandments giving a victory to the wrong side? Law, Culture and the Humanities 2007; 3: 205—224

The subject capable of liberal legality ought to be revised such that the self-sufficient autonomous individual cohabits with a passive self always already burdened with responsibilities she did not choose. This essay uses the philosophy of Emmanuel Levinas to delineate the relationship of this new subjectivity to liberal theories of justice, and reveals a productive ambivalence with regard to justice residing within rule of law scholarship: why is it that we sometimes have to transgress the rule of law in order to do justice to what it stands for? Emerging debates about the rule of law in calls for international humanitarian intervention help us think through this question in its concrete urgency. The linkage then demonstrates that law's justice exists only as a delicate and never-concluded balancing process between the demands of ethics and those of politics — a process of balancing that is mirrored in the new account of a subject who aspires to justice and therefore makes justice beyond strict legality possible. Ambivalence is inevitable, but its effects are not limited to nihilistic resignation. Rather, ambivalence can point out for us mani-fest responsibilities too often overlooked by liberalism's autonomous individualized subject. Law, Culture and the Humanities 2007; 3: 225—243

This article considers the Law of Peoples, written by the late John Rawls. Rawls' text occurs as an inheritance of Immanuel Kant's approach to the problem of war. Drawing upon the approaches to the problem of war given by Immanuel Kant and by G.W.F. Hegel the article considers the viability of Rawls' approach to the problem of war and the questions that his account opens for jurisprudence. Law, Culture and the Humanities 2007; 3: 244—265

In “Confronting the Frugal Editors,” I argue that the Revue de Paris ' 1856 editorial censorship of Madame Bovary complicates understandings of the identities and boundaries of author and editor; writing, editing and censorship; and, finally, of repressive and productive censorship in nineteenth-century France. Drawing on legal and literary history, on the history of the book, as well as on archival research of Flaubert's original handwritten manuscripts, I examine how Flaubert's editors were not “censors” in a strict and limiting sense. As “editorial censors,” they unwittingly enabled Flaubert — who engaged in the specific practice of writing by suppression — to refine and rewrite crucial passages in the novel. As such, the editorial censorship of Madame Bovary neither silenced nor censored the author. It opened up a space for Flaubert to (re)view and (re)write his manuscript from the otherwise alienating demands of professional editors and of literary censorship laws of the time. Law, Culture and the Humanities 2007; 3: 266—292

In the 1980's hundreds of childcare workers were accused of sexually abusing children in horrific ways. Arnold and Jesse Friedman, whose prosecutions are chronicled in the film Capturing the Friedmans, were among those convicted and sent to prison during this period. Sociologists have called this series of prosecutions a classic moral panic: a widespread, hostile, volatile overreaction to a perceived societal threat. This paper examines the concept of moral panic in the context of the day care sexual abuse prosecutions in general, and the Friedman prosecutions in particular. It begins by exploring the role of the legal system in the construction of a moral panic, asking how a system which styles itself as rational and process oriented becomes the handmaiden of institutionalized hysteria. It then considers whether moral panic is a useful heuristic for understanding how justice was derailed in the Friedman cases and so many others, and what ought to be done to address the problem. It argues that the concept is limited in its ability to distinguish normatively between cases of overreaction and cases of institutional denial. Further, it suggests that, to the extent the concept of moral panic misconceives these periods of institutionalized hysteria as a series of isolated phenomena, it does not adequately address the deeply entrenched causes of injustice in cases like the Friedman prosecutions. The paper ultimately concludes that the concept of moral panic is useful because it reminds us of the cultural and historical contingency of notions of criminal justice and criminal deviance. Nevertheless, the concept has limitations that render it inadequate to address the hurdles to justice encountered in the Friedman cases. Most prominently, the concept is hindered by its retrospective nature. Like the question of guilt or innocence, the notion of moral panic is backward-looking, and therefore not well suited to addressing the prospective question of how the justice system can be reformed to dismantle ongoing, systemic hurdles to criminal justice. Law, Culture and the Humanities 2007; 3: 293—319

The rise of crisis governance in the United States after September 11, 2001 has raised disturbing questions about the relationship between law and exceptions to the law. The debate over the exception — should it be inside or outside law? — reflects what Giorgio Agamben describes as a threshold where inside and outside meet and blur. I show how this undecidable relation between law and the exception is present in popular culture as well. I argue that legal debates over codifying emergency measures (as in “torture warrants”) reflect the undecidable relation between the exception and the law and that certain cultural representations (Steven Spielberg's The Terminal) work as fantasy to externalize and contain the exception. Law, Culture and the Humanities 2007; 3: 320—344