Two authors with decades of experience promoting human rights argue that, as the world changes around us, rights hardly imaginable today will come into being.
A rights revolution is under way. Today the range of nonhuman entities thought to deserve rights is exploding—not just animals but ecosystems and even robots. Changes in norms and circumstances require the expansion of rights: What new rights, for example, are needed if we understand gender to be nonbinary? Does living in a corrupt state violate our rights? And emerging technologies demand that we think about old rights in new ways: When biotechnology is used to change genetic code, whose rights might be violated? What rights, if any, protect our privacy from the intrusions of sophisticated surveillance techniques?
Drawing on their vast experience as human rights advocates, William Schulz and Sushma Raman challenge us to think hard about how rights evolve with changing circumstances, and what rights will look like ten, twenty, or fifty years from now. Against those who hold that rights are static and immutable, Schulz and Raman argue that rights must adapt to new realities or risk being consigned to irrelevance. To preserve and promote the good society—one that protects its members’ dignity and fosters an environment in which people will want to live—we must at times rethink the meanings of familiar rights and consider the introduction of entirely new rights.
Now is one of those times. The Coming Good Society details the many frontiers of rights today and the debates surrounding them. Schulz and Raman equip us with the tools to engage the present and future of rights so that we understand their importance and know where we stand.
Why do some people not hesitate to call the police to quiet a barking dog in the middle of the night, while others accept the pain and losses associated with defective products, unsuccesful surgery, and discrimination? Patricia Ewick and Susan Silbey collected accounts of the law from more than four hundred people of diverse backgrounds in order to explore the different ways that people use and experience it. Their fascinating and original study identifies three common narratives of law that are captured in the stories people tell.
One narrative is based on an idea of the law as magisterial and remote. Another views the law as a game with rules that can be manipulated to one's advantage. A third narrative describes the law as an arbitrary power that is actively resisted. Drawing on these extensive case studies, Ewick and Silbey present individual experiences interwoven with an analysis that charts a coherent and compelling theory of legality. A groundbreaking study of law and narrative, The Common Place of Law depicts the institution as it is lived: strange and familiar, imperfect and ordinary, and at the center of daily life.
Cultural Analysis, Cultural Studies, and the Law is a field-defining collection of work at the intersection of law, cultural analysis and cultural studies. Over the past few decades the marked turn toward claims and policy arguments based on cultural identity—such as ethnicity, race, or religion—has pointed up the urgent need for legal studies to engage cultural critiques. Exploration of legal issues through cultural analyses provides a rich supplement to other approaches—including legal realism, law and economics, and law and society. As Austin Sarat and Jonathan Simon demonstrate, scholars of the law have begun to mine the humanities for new theoretical tools and kinds of knowledge. Crucial to this effort is cultural studies, with its central focus on the relationship between knowledge and power.
Drawing on legal scholarship, literary criticism, psychoanalytic theory, and anthropology, the essays collected here exemplify the contributions cultural analysis and cultural studies make to interdisciplinary legal study. Some of these broad-ranging pieces describe particular approaches to the cultural study of the law, while others look at specific moments where the law and culture intersect. Contributors confront the deep connections between law, social science, and post-World War II American liberalism; examine the traffic between legal and late-nineteenth- and early-twentieth-century scientific discourses; and investigate, through a focus on recovered memory, the ways psychotherapy is absorbed into the law. The essayists also explore specific moments where the law is forced to comprehend the world beyond its boundaries, illuminating its dependence on a series of unacknowledged aesthetic, psychological, and cultural assumptions—as in Aldolph Eichmann’s 1957 trial, hiv-related cases, and the U.S. Supreme Court’s recent efforts to define the role of race in the construction of constitutionally adequate voting districts.
Contributors. Paul Berman, Peter Brooks, Wai Chee Dimock, Anthony Farley, Shoshanna Felman, Carol Greenhouse, Paul Kahn, Naomi Mezey, Tobey Miller, Austin Sarat, Jonathan Simon, Alison Young
Belief in the rule of law characterizes our society, our political order, and even our identity as citizens. The Cultural Study of Law is the first full examination of what it means to conduct a modern intellectual inquiry into the culture of law. Paul Kahn outlines the tools necessary for such an inquiry by analyzing the concepts of time, space, citizen, judge, sovereignty, and theory within the culture of law's rule. Charting the way for the development of a new intellectual discipline, Paul Kahn advocates an approach that stands outside law's normative framework and looks at law as a way of life rather than as a set of rules.
"Professor Kahn's perspective is neat and alluring: We need a form of legal scholarship released from the project of reform so that we can better understand who and what we are. The new discipline should study 'not legal rules, but the imagination as it constructs a world of legal meaning.' . . . [C]oncise, good reading, and recommended." —New York Law Journal
In Latin America, as early as 1975 testimony given under oath by anthropologists has been applied in the civil law systems in a number of Latin American countries. Called peritajes antropológicos culturales, this testimony can come in the form of written affidavits and/or oral testimony. These experts build bridges of intercultural dialogue, which overcome language and cultural barriers that have historically limited equal access to justice for indigenous and ethnic people all over the word.
Culture as Judicial Evidence in Latin America summarizes the current state of this work in six countries: Mexico, Costa Rica, Peru, Chile, Colombia, and Uruguay, and lays out the challenges and dilemmas involved in the creation and use of cultural expert testimony. Organized into three sections, the book advances a framework for the use of cultural evidence, and presents readers with nine case studies based on trials in six individual countries. These countries have implemented legal reform, constitutional amendments and the adoption of international legislation to create the legal frameworks that enable this new form of legal evidence to be admissible in Latin American courts. The contributing authors are cultural anthropologists with vast experience researching the impact of cultural expert witness testimony. A forward-looking final section examines the dilemmas and challenges of this work that remain to be solved.
The question of how law matters has long been fundamental to the law and society field. Social science scholarship has repeatedly demonstrated that law matters less, or differently, than those who study only legal doctrine would have us believe. Yet research in this field depends on a belief in the relevance of law, no matter how often gaps are identified.
These essays show how law is relevant in both an "instrumental" and a "constitutive" sense, as a tool to accomplish particular purposes and as an important force in shaping the everyday worlds in which we live. Essays examine these issues by focusing on legal consciousness, the body, discrimination, and colonialism as well as on more traditional legal concerns such as juries and criminal justice.
Human rights law and the legal protection of women from violence are still fairly new concepts. As a result, substantial discrepancies exist between what is decided in the halls of the United Nations and what women experience on a daily basis in their communities. Human Rights and Gender Violence is an ambitious study that investigates the tensions between global law and local justice.
As an observer of UN diplomatic negotiations as well as the workings of grassroots feminist organizations in several countries, Sally Engle Merry offers an insider's perspective on how human rights law holds authorities accountable for the protection of citizens even while reinforcing and expanding state power. Providing legal and anthropological perspectives, Merry contends that human rights law must be framed in local terms to be accepted and effective in altering existing social hierarchies. Gender violence in particular, she argues, is rooted in deep cultural and religious beliefs, so change is often vehemently resisted by the communities perpetrating the acts of aggression.
A much-needed exploration of how local cultures appropriate and enact international human rights law, this book will be of enormous value to students of gender studies and anthropology alike.
Law in the Domains of Culture
Austin Sarat and Thomas R. Kearns, Editors University of Michigan Press, 2000 Library of Congress K487.C8L394 2000 | Dewey Decimal 340.115
The concept of culture is troublingly vague and, at the same time, hotly contested, and law's relations to culture are as complex, varied and disputed as the concept of culture itself. The concept of the traditional, unified, reified, civilizing idea of culture has come under attack. The growth of cultural studies has played an important role in redefining culture by including popular culture and questions of social stratification, power and social conflict.
Law and legal studies are relative latecomers to cultural studies. As scholars have come to see law as not something apart from culture and society, they have begun to explore the connections between law and culture. Focusing on the production, interpretation, consumption and circulation of legal meaning, these scholars suggest that law is inseparable from the interests, goals and understandings that deeply shape or compromise social life. Against this background, Law in the Domains of Culture brings the insights and approaches of cultural studies to law and tries to secure for law a place in cultural analysis. This book provides a sampling of significant theoretical issues in the cultural analysis of law and illustrates some of those issues in provocative examples of the genre. Law in the Domains of Culture is designed to encourage the still tentative efforts to forge a new interdisciplinary synthesis, cultural studies of law.
The contributors are Carol Clover, Rosemary Coombe, Marjorie Garber, Thomas R. Kearns, William Miller, Andrew Ross, Austin Sarat, and Martha Woodmansee.
Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.
Laws of the Postcolonial
Eve Darian-Smith and Peter Fitzpatrick, Editors University of Michigan Press, 1999 Library of Congress K236.L39 1999 | Dewey Decimal 340
Although postcolonialism is now the main mode in which the West's relation to the "other" is critically explored, and although law has been at the forefront of that very relation, a thorough engagement between law and postcolonialism has not been pursued, in part because this would drastically disrupt not just the persistent orthodoxy of law and development but also the newly settled consensus around legal globalization and international human rights discourse. These essays break new ground in using the ideas of postcolonialism in a critical analysis of the current consensus on the international influence of Western law and on Western ideas of law in general.
In perceptions of Western law there is an enduring disparity between law's pervasive power and its fragility. Many of these essays provide graphic accounts of law's tremendous shaping power in that massive occidental movement which settled and unsettled the globe. These accounts point to the West's encompassing and transforming of other peoples and other legal systems in ways which constitute and confirm the West in its own self-creation. Other essays deal with situations "within" the West which show how its identity is created, sustained, and also challenged in a constant reference to those contrary "others" which a powerful law has shaped and transformed. This challenge comes not least from the resistance of those "others" --resistances that profoundly disrupt the West and its law, revealing them as fractured at the seemingly confident core of their own self-constitution.
Contributors include Antony Anghie, Rolando Gaete, Alan Norrie, Dianne Otto, Paul Passavant, Jeannine Perdy, Colin Perrin, Annelise Riles, Roshan de Silva, and John Strawson, in addition to the editors.
Eve Darian-Smith is Assistant Professor of Anthropology, University of California, Santa Barbara. Peter Fitzpatrick is Professor of Law, Queen Mary and Westfield College, University of London.
In 2013, an international group of jurists gathered in London to mark the 40th anniversary of the publication of James Boyd White’s The Legal Imagination, the book that is widely credited with instigating and inspiring the modern “law and literature” and “law and humanities” movements in university teaching and research. The authors of each of the twelve essays in this collection offer a personal reflection on teaching, researching, and practicing law in the light of White’s invitation to reimagine the law and our own relationship with it. Each is therefore a personal response to the challenge of bringing legal work to life and life to legal work. Topics covered range from rhetoric to human rights, from silence to slow reading, from film to material culture, and from the natural world to the realm of religious experience. This book hopes to make life in the law more meaningful for the scholar, the judge, the attorney, and the student, following the sometimes hard path that James Boyd White set for himself to follow.
Minding the Law
Anthony G. AMSTERDAM Harvard University Press, 2000 Library of Congress KF425.A48 2000 | Dewey Decimal 349.73
In this remarkable collaboration, one of the nation's leading civil rights lawyers joins forces with one of the world's foremost cultural psychologists to put American constitutional law into an American cultural context. By close readings of key Supreme Court opinions, they show how storytelling tactics and deeply rooted mythic structures shape the Court's decisions about race, family law, and the death penalty.
Minding the Law explores crucial psychological processes involved in the work of lawyers and judges: deciding whether particular cases fit within a legal rule ("categorizing"), telling stories to justify one's claims or undercut those of an adversary ("narrative"), and tailoring one's language to be persuasive without appearing partisan ("rhetorics"). Because these processes are not unique to the law, courts' decisions cannot rest solely upon legal logic but must also depend vitally upon the underlying culture's storehouse of familiar tales of heroes and villains.
But a culture's stock of stories is not changeless.
Amsterdam and Bruner argue that culture itself is a dialectic constantly in progress, a conflict between the established canon and newly imagined "possible worlds." They illustrate the swings of this dialectic by a masterly analysis of the Supreme Court's race-discrimination decisions during the past century.
A passionate plea for heightened consciousness about the way law is practiced and made, Minding the Law will be welcomed by a new generation concerned with renewing law's commitment to a humane justice.
Table of Contents:
1. Invitation to a Journey 2. On Categories 3. Categorizing at the Supreme Court Missouri v. Jenkins and Michael H. v. Gerald D. 4. On Narrative 5. Narratives at Court Prigg v. Pennsylvania and Freeman v. Pitts 6. On Rhetorics 7. The Rhetorics of Death McCleskey v. Kemp 8. On the Dialectic of Culture 9. Race, the Court, and America's Dialectic From Plessy through Brown to Pitts and Jenkins 10. Reflections on a Voyage
Appendix: Analysis of Nouns and Verbs in the Prigg, Pitts, and Brown Opinions Notes Table of Cases Index
Reviews of this book: Amsterdam, a distinguished Supreme Court litigator, wanted to do more than share the fruits of his practical experience. He also wanted to...get students to think about thinking like a lawyer...To decode what he calls "law-think," he enlisted the aid of the venerable cognitive psychologist Jerome Bruner...[and] the collaboration has resulted in [this] unusual book. --James Ryerson, Lingua Franca
Reviews of this book: It is hard to imagine a better time for the publication of Minding the Law, a brilliant dissection of the court's work by two eminent scholars, law professor Anthony G. Amsterdam and cultural anthropologist Jerome Bruner...Issue by issue, case by case, Amsterdam and Bruner make mincemeat of the court's handling of the most important constitutional issue of the modern era: how to eradicate the American legacy of race discrimination, especially against blacks. --Edward Lazarus, Los Angeles Times Book Review
Reviews of this book: This book is a gem...[Its thesis] is easily stated but remarkably unrecognized among a shockingly large number of lawyers and law professors: law is a storytelling enterprise thoroughly entrenched in culture....Whereas critical legal theorists have talked among themselves for the past two decades, Amsterdam and Bruner seek to engage all of us in a dialogue. For that, they should be applauded. --Daniel R. Williams, New York Law Journal
Reviews of this book: In Minding the Law, Anthony Amsterdam and Jerome Bruner show us how the Supreme Court creates the magic of inevitability. They are angry at what they see. Their book is premised on the conviction that many of the choices made in Supreme Court opinions 'lack any justification in the text'...Their method is to analyze the text of opinions and to show how the conclusions reached do not always follow from the logic of the argument. They also show how the Court casts its rhetoric like a spell, mesmerizing its audience, and making the highly contingent shine with the light of inevitability. --Mitchell Goodman, News and Observer (Raleigh, North Carolina)
Reviews of this book: What do controversial Supreme Court decisions and classic age-old tales of adultery, villainy, and combat have in common? Everything--at least in the eyes of [Amsterdam and Bruner]. In this substantial study, which is equal parts dense and entertaining, the authors use theoretical discussions of literary technique and myths to expose what they see as the secret intentions of Supreme Court opinions...Studying how lawyers and judges employ the various literary devices at their disposal and noting the similarities between legal thinking and classic tactics of storytelling and persuasion, they believe, can have 'astonishing consciousness-retrieving effects'...The agile minds of Amsterdam and Bruner, clearly storehouses of knowledge on a range of subjects, allow an approach that might sound far-fetched occasionally but pays dividends in the form of gained perspective--and amusement. --Elisabeth Lasch-Quinn, Washington Times
Reviews of this book: Stories and the way judges-intentionally or not-categorize and spin them, are as responsible for legal rulings as logic and precedent, Mr. Amsterdam and Mr. Bruner said. Their novel attempt to reach into the psyche of...members of the Supreme Court is part of a growing interest in a long-neglected and cryptic subject: the psychology of judicial decision-making. --Patricia Cohen, New York Times
Most law professors teach by the 'case method,' or say they do. In this fascinating book, Anthony Amsterdam--a lawyer--and Jerome Bruner--a psychologist--expose how limited most case 'analysis' really is, as they show how much can be learned through the close reading of the phrases, sentences, and paragraphs that constitute an opinion (or other pieces of legal writing). Reading this book will undoubtedly make one a better lawyer, and teacher of lawyers. But the book's value and interest goes far beyond the legal profession, as it analyzes the way that rhetoric--in law, politics, and beyond--creates pictures and convictions in the minds of readers and listeners. --Sanford Levinson, author of Constitutional Faith
Tony Amsterdam, the leader in the legal campaign against the death penalty, and Jerome Bruner, who has struggled for equal justice in education for forty years, have written a guide to demystifying legal reasoning. With clarity, wit, and immense learning, they reveal the semantic tricks lawyers and judges sometimes use--consciously and unconsciously--to justify the results they want to reach. --Jack Greenberg, Professor of Law, Columbia Law School
It is not uncommon for white suburban youths to perform rap music, for New York fashion designers to ransack the world's closets for inspiration, or for Euro-American authors to adopt the voice of a geisha or shaman. But who really owns these art forms? Is it the community in which they were originally generated, or the culture that has absorbed them?
While claims of authenticity or quality may prompt some consumers to seek cultural products at their source, the communities of origin are generally unable to exclude copyists through legal action. Like other works of unincorporated group authorship, cultural products lack protection under our system of intellectual property law. But is this legal vacuum an injustice, the lifeblood of American culture, a historical oversight, a result of administrative incapacity, or all of the above?
Who Owns Culture? offers the first comprehensive analysis of cultural authorship and appropriation within American law. From indigenous art to Linux, Susan Scafidi takes the reader on a tour of the no-man's-land between law and culture, pausing to ask: What prompts us to offer legal protection to works of literature, but not folklore? What does it mean for a creation to belong to a community, especially a diffuse or fractured one? And is our national culture the product of Yankee ingenuity or cultural kleptomania?
Providing new insights to communal authorship, cultural appropriation, intellectual property law, and the formation of American culture, this innovative and accessible guide greatly enriches future legal understanding of cultural production.