Thinking through the body of the law

2014

In the late nineteenth century, future United States Supreme Court justice Oliver Wendell Holmes wrote, ‘the life of the law has not been logic; it has been experience’. This oft-repeated maxim has nonetheless remained exterior to legal reasoning since the inauguration of the modern legal subject as mediated through the respective thought of Rene Descartes and Immanuel Kant. This conception of law, which will be referred to as ‘modernist law’ throughout this essay, maintains that the experiences and narratives that constitute the everyday lives and self-conceptions of subjects have no place within legal decision-making. This law holds itself out as a closed system, a ‘seamless web’ in which its own rationality grounds and structures itself. Its subject is primarily understood as res cogitans (mental substance), abstracted from the concrete features that constitute a subject’s (social) identity. Despite binding itself to a hermetically sealed discourse, modernist law nonetheless attempts to adjudicate within social arenas that are fundamentally dependent upon both narrative and experience in constructing and contextualizing conflicts. In attempting to resolve these issues, modernist law simultaneously oversteps its self-imposed bounds and fails to realize that it reaches beyond the limits of its own horizons. However, taking the law as a phenomenological enterprise, constituted around the phenomenal experience of (legal) subjects, renders it amenable to addressing and meeting human needs by providing a ‘corporeal justice’. This essay will argue for (re)considering the res extensa (physical substance) of subjectivity by providing the grounds for thinking about legal issues beyond the modernist constraints. This embodied legal subject is, at its core, a phenomenological subject, in that the analysis of the subject’s lived experiences determines how the law ought to respond to injustice. Through this understanding of the legal subject, I argue that legal decision-making will no longer be based upon pure principle or opinions far removed from the concrete situation at hand. Rather, the socially embedded and embodied aspects of the subject will be taken as the primary grounding for the legal decision.

‘The law is a disinterested arbiter. It is informed by the steady development of years of procedural rules and precedent through which it distils and pronounces the truth with neither fear nor favour.’ This statement posits the traditional view of the law as an ideal with an impartial and detached body arriving at objective conclusions through the application of neutral rules without bias. The bone of contention that arises from this statement is twofold. Firstly is the law neutral, and secondly whether or not this neutrality and disinterest produces justice or ‘pronounces the truth’ as the statement suggests. Utilising the work of feminist legal theorists this essay will demonstrate how the law as a discourse is not a neutral entity, but is a power that prohibits other, supposedly inferior knowledge’s. It will outline the difficulties in adjudication that hinder neutrality and the ‘promotion of truth’ by focusing on gender implications of legal rules and practices (in particular how legal rules and practices affect women and how law reflects and constructs gender identities). It will expose and critique the patriarchal nature of substance and methods of law. Whilst suggesting that the concept of laws essential neutrality is a strategy for concealing the role of values in law as submitted by MacKinnon, this essay will also question the desirability of legal impartiality as presently conceived. To better illustrate the matter, this essay will examine how the legal definition of rape takes precedence over women’s definitions and how law manages to retain the ability to arrogate to itself the right to define the true of things despite the mounting challenge of other discourses like feminism. “Law constitutes a plurality of principles, knowledge’s and events, yet it claims a unity through the common usage of the term ‘law. It will reveal how the law fails to ‘pronounce the truth’ when it comes to accounts of rape that do not fit into its narrowly constructed definition.

1975

Fifty years ago I wrote a critical essay about law and legal studies for a New Year’s edition of an ABA journal, ‘Learning and the Law’. I’m pretty happy with how it has weathered the ½ century. Maybe more relevant now than then. It is my purpose in this essay to focus on that form of legal studies which is critical, humanistic and self-developmental in its educational goals. And in this context, I will explore the potential for the emergence of a fundamental restructuring of the way we think about law.

This course is designed for those students, philosophy majors and non-majors alike, interested in the intersection between the law and ethical issues. This semester the course will focus on the intersection between women and the law, and will include units on moral philosophy and development, the idea of a female ethics, the relation of feminism to pragmatism, feminist jurisprudence, and the relation among women, race, and the law. We will begin by reading an excerpt from Immanuel Kant, who advocates universality and necessity as the ideal conditions for prescribing moral imperatives. Next we will read Lawrence Kohlberg, who, building on Kant's ideals, develops a theory of moral development based on the application of autonomously generated universal rules. This Kant-Kohlberg foundation will serve as the background for our inquiry into the idea of a feminist ethics. Next we will read Carol Gilligan, a student of Kohlberg's, who gives a critique of Kohlberg's ideas about moral-development, including a critique of his ontology of the self. We will also read a summary article about the very idea of a female ethic by Jeam Grimshaw. Our second unit will focus on the intersections between feminism and pragmatism. We will begin by reading a proto-pragmatist account of the experience and capabilities of men and women by Charlotte Perkins Gilman. Next we will read Charlene Haddock Seigfried, who calls into question the relationship between theory and practice and attempts to recover methods of inquiry from the American Pragmatists in order to rethink feminist methodology. Our third unit will turn its focus towards jurisprudence, the philosophy of law, and its relationship to women's experiences and legal rights. We will read several essays from Catherine MacKinnon on the legal concept of equality as it relates to women's experiences and legal rights. Last, we will read Angela Harris and Angela Davis on the ways that legal discourse about women and the law has dealt with non-white women, the experiences of Black women in the American legal setting, and the issue of violence against women and the legal recourses of women, who are victims of gendered violence.

The Letter of the Law: Literature, Justice and the Other

Combining legal, literary, as well as political and theoretical questions, and ranging from legal issues in the early modern period to critical explorations of law/s, justice and textuality in contemporary culture, the volume encompasses essays on history, poetry, drama, novels, philosophy, film and legal practice. Through attentive readings on the mediation of Otherness in law and literature, as well as the otherness of both law and literature, the volume's contributors reflect on how legal, literary and theoretical discourses construct, repress, legitimise, but also enable the Other. This book responds to the continuing call for mapping unexplored and/or neglected areas in the complex intersections between human experience, justice, and the law, and how literature is a ground on

Olson, Greta and Sonja Schillings, eds. “Law Undone: De-humanizing, Queering, and Dis-abling the Law – Further Arguments for Law’s Pluralities.” Spec. issue of On_Culture 3 (2017): 2-11. Introduction to the issue. https://journals.ub.uni-giessen.de/onculture/issue/view/86

ARTICLES: Justice in Tension: An Expression of Law and the Legal Mind James Boyd White Configuring Justice Jeanne Gaakeer To Avenge, to Forgive or to Judge? Literary Variations François Ost Speaking of the Imperfect: Law, Language and Justice Marianne Constable Justice and the Colonial Collision: Reflections on Stories of Intercultural Encounter in Law, Literature, Sculpture and Film Rebecca Johnson The Heart of Law M. Paola Mittica Having Gods, Being Greek and Getting Better: On Equity and Integrity Concerning Property an Other Posited Laws Gary Watt The Ethics of Testimony: Trauma, Body and Justice in Sarah Kofman's Autobiography Ari Hirvonen

2020

LEGAL CRITICISM HAS RECEIVED A GREAT DEAL OF ATTENTION. IN RECENT YEARS. ON THE ONE HAND, LAW IS PRAISED FOR BEING A CULTURAL ACHIEVEMENT, ON THE OTHER, IT IS CRITICISED FOR BEING AN INSTRUMENT OF STATE OPPRESSION. LEGAL CRITICISM’S STRATEGIES TO DEAL WITH THIS AMBIVALENCE DIFFER GREATLY: WHILE SOME THEORETICIANS SEEK TO TRANSCEND THE INSTITUTION OF LAW ALTOGETHER, OTHERS ADVOCATE A TRANSFORMATION OF THE FORM OF LAW OR TRY TO EMPLOY COUNTERHEGEMONIC STRATEGIES TO CHANGE THE CONTENT OF LAW, DECONSTRUCT ITS BASIS OR INVENT RIGHTS. THIS VOLUME POINTS OUT TRANSITIONS AND EXHIBITS IRRECONCILABLE DIFFERENCES OF THESE APPROACHES. WITHOUT DENYING THE DIVERSITY OF DIFFERENT FORMS OF CRITIQUE, THEY ARE RELATED TO ONE ANOTHER WITH THE AIM OF BROADENING THE DEBATES WHICH ALL TOO OFTEN ARE CONDUCTED ONLY WITHIN THE BOUNDARIES OF THE SEPARATE THEORETICAL CURRENTS.

Annual Review of Law & Social Science, 2019

Legal consciousness is a vibrant research field attracting growing numbers of scholars worldwide. Yet differing assumptions about aims and methods have generated vigorous debate, typically resulting from a failure to recognize that three different clusters of scholars-identified here as the Identity , Hegemony, and Mobilization schools-are pursuing different goals and deploying the concept of legal consciousness in different ways. Scholarship associated with these three schools demonstrates that legal consciousness is actually a flexible paradigm with multiple applications rather than a mono-lithic approach. Furthermore, a new generation of scholars has energized the field in recent years, focusing on marginalized peoples and non-Western settings. Through their findings, and as a result of broader trends across the social sciences, relational legal consciousness has taken on greater importance. Legal consciousness research should be imagined on a continuum ranging from individualistic conceptualizations of thought and action to interactive, co-constitutive approaches.

Hague Journal on The Rule of Law, 2019