This chapter explores some legal and literary ramifications of “accident” in British law and society from the late eighteenth through the early twentieth century. This period saw changes in common law and legislation relating to accidents, including the emergence of negligence as a distinct tort and statutory provisions for employer liability and workplace compensation. The chapter turns on the institution of the deodand, a common-law rule that allowed inquest juries to assess liability for accidental deaths caused by non-humans. After such entities began to include industrial machines, the deodand was abolished by Parliament in 1846. Examining legal-historical cases and norms alongside literary-cultural representations, the chapter claims that the deodand’s disappearance, and concurrent transition to fault liability regimes, marked a loss in the understanding of accident. If the nineteenth-century emergence of modern accident law tended to simplify accidents into surrogates for human interaction, the deodand qua institution grasped how reckoning with accidents demands an alertness to human entanglement with non-human causality. Literary representations of vehicular accidents afford a glimpse of what was coming to be lost in this changing legal-cultural dispensation. From Thomas De Quincey to Thomas Hardy to E. M. Forster, the complex non-human, material, and affective dimensions of accident dissipate into the background, where they continue to supply narrative and formal motivation even as they leave human obligations and institutions in the light.
This chapter discusses two domains of research into and theorizing about human emotions of interest to legal theorists and practitioners in the law. Written by a non-lawyer with expertise in English literature, narrative theory, and interdisciplinary empathy studies, it offers basic definitions of the terms “empathy” and “affect,” brief overviews of research areas, suggestions about the relevance of affect and empathy studies to law, and cautions about those applications’ limitations and liabilities. By no means prescriptive in intention, this chapter’s discussion of affect and empathy studies lays bare some of the underlying assumptions and critical attitudes of work in differing fields. All varieties of empathy, with their affordances and limitations, are resources for the rhetorical arts of persuasion. Writers and practitioners in the law should alertly consider the roles that empathy and affect play in the law, especially when legal abstractions, doctrines, and documents that evoke strong feelings are accorded the imaginative status of persons by means of Einfühlung.
This chapter begins by examining the origins of agonism in the German philosopher Friedrich Nietzsche’s early text “Homer’s Contest.” It then attempts to formulate a political interpretation of agonism that could provide law and legal studies a post-Marxist and Nietzschean critical position in which democracy is central. A first attempt at the formulation is an analysis of the constitutional theorist Carl Schmitt’s “antagonist” and “polemical” notion of politics that is based on a friend-enemy distinction, and of the consequences of such a notion for state constitutions and law. Schmitt serves as the background for the political theorist Chantal Mouffe, whose “agonistic pluralism” represents a conscious effort to moderate Schmitt’s existentially belligerent critique of liberalism into a workable politics in late modernity. Interpretations of agonism provided by William E. Connolly and Bonnie Honig and their possible links to law and legal studies are then briefly discussed. The chapter concludes that there is a kinship between political agonism understood in this way and a contemporary strain in political theory represented by, for example, Jacques Rancière. The roots of this kinship are traced finally to a post-Marxist tradition of “radical liberalism.”
Western democracies have determined the extent and limits of free expression largely within rights-based frameworks. As captured by Mill’s classically liberal “harm principle,” expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Through a review of certain texts foundational for democracy, however, we can identify principles different from the standard liberal principles. Beginning in ancient Athens, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato’s Crito presents the West’s first systematic inquiry into the question of legal legitimacy—that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.
Book history, understood broadly as the analysis of written communication, interacts with legal studies in two main areas: first, legal rules frame the production and dissemination of books or written documents (in many cultures); second, books and written documents can act as meaningful objects within the legal sphere. This chapter focuses on the second area and shows by way of examples how taking the materiality of the book as a starting point can help to uncover cultural structures linked to the law. The chapter demonstrates the potential of this approach by focusing on a period in which books with legal contents radically changed their function: the Middle Ages in Europe, with their shift from writing down customs in the vernacular as a means of preservation to actual law books used as works of reference. As can be shown, the design of legal manuscripts played an important role in this process of codification. But not only law books are elements of the legal sphere: the chapter also outlines the function of books in legal rituals with religious implications as well as the merging of “law” and “literature” in some medieval manuscripts. Finally, the chapter draws attention to the opportunities book history offers for research into intercultural relations and into the change of legal culture in the digital age.
This chapter outlines the several scales at which material arrangements of architecture, urbanism, and territory are bound up with surrounding legal contexts. Using these three scales, the chapter elucidates the reciprocity of law and space, a reciprocity through which the law is spatialized by its distributions across places and locales and space is differentiated and particularized by law. A courtroom, for example, is a physical space and a locus for legal process; a city street is a material conjunction of objects and persons as well as a concretization of codes and regulations; a territorial boundary is a demarcated section of land and an inscription of legal permissions and constraints. These different mediums of social inhabitation, of such different scales, are imperfectly coordinated, yet with their often inextricable connections they comprise a domain of great relevance to law and humanities. Within this domain, which consists of disciplinary intersections of law with architectural history and theory, with geography, and with urban studies, the complex interactions of norms with the contingencies of myriad cultural productions come into view. Regulatory instruments, plans, buildings, pillars, rooms, regions, and other arrangements can be seen to function as techniques for the projection and translation of juridical and spatial orderings.
This chapter reconsiders and reorients performance as a critical practice in law and the humanities, turning away from the philosophically and sociologically inflected variants of performance and performativity, toward the possibilities of performance and the theatrical as jurisprudence. In its Kantian ideal, law is expected to function in isolation and absent the self. Performance and the theatrical could not think more differently, creating conditions that enable bodily responses to engender responsiveness that affords the possibility of noticing. This ability to notice is lost in abstraction, but it is needed to enliven and point to failures or fractures in law. Lived experience provides the most potent means by which we notice; in its absence, performance offers the possibility to write experiences on our bodies, helping us to notice when law helps or hinders, harms or helps, showing us how easily law can offer or deny justice simply through the ability or inability of lawyers or justices to notice the effects and consequences of law. At least three registers of noticing can be identified through performance and into law. In no particular order, the first happens through the noticing body, triggering recognition of the consequences of a doctrine, principle, or provision because the lawyer has experienced the same or a cognate situation; the second comes from the dramaturgically grounded nodal knots binding together a present and a past and a past with a present; while in the third, bonds of recognition are created through and by association, or through training.
The art form of comics has been at center of heated global free speech debates, which remain among the defining issues of our time, particularly as they map onto cultural and religious difference. In the past ten years, the hybrid word-and-image medium of comics has also entered the legal arena through comics-form amicus briefs and comics-form contracts, to name a few examples. The examples suggest that comics is understood today not only as a medium with the potential to be sophisticated, literary, and entertaining but further as one with the concision and clarity that legal discourse values. The growing international energy around the intersection of comics and law, evident in the emergence of comics-form documents and comics as a mode of legal pedagogy, is also reflected in the academy, where there has been a large recent increase in legal academic attention to comics. Other comics genres, particularly nonfiction genres (e.g., comics journalism and graphic memoir), have also proven to be richly engaged with the juridical. Comics that address complicated ethical and material realities through content and form alike model productive ways of engaging with aesthetics and the juridical imaginary, including compelling but fraught legal discourses like that of human rights. This chapter focuses in particular on the non-fiction work of Malta-born cartoonist Joe Sacco, suggesting that Sacco, perhaps more than any other cartoonist, helps readers to see how the comics form can reveal the law-driven focus on “rights” differently than in traditional accounts, especially through the medium’s approach to layered temporalities.
In the U.S. Supreme Court’s cases addressing students’ constitutional rights in school, the focus is near exclusively on the special constraints imposed on rights by the school context. Largely missing is any consideration of the special opportunities created by students as actively developing rights holders, despite the increasing attention to the significance of children’s ongoing development to their constitutional rights in other contexts. This chapter calls for similar attention to children’s development in the school context, and considers how that attention, generated by courts and then addressed by educators, might alter the scope and nature of children’s rights of expression, due process, privacy, and religious freedom in school. While educators will necessarily take the lead in preparing children to assume adult roles, it falls on courts to help define those adult roles to ensure that students’ experiences in school are designed to produce citizens with the inclination and competence to exercise the rights required to preserve our most basic constitutional values.
Legal scholarship has its own distinctive place in the different disciplinary responses to digital humanities. It has long relied on databases of digitized sources and consequently on search as a research methodology. Computational tools provide means of addressing the limitations of search. This chapter surveys the use of computational tools to identify patterns of word use and borrowing and the diffusion of concepts in legal texts, to construct networks of relationships in texts and between individuals, to visualize spatial information, and to create 3D models of objects and structure as methods for both discovery and interpretation. These digital methods raise epistemological questions about how to address different questions and various kinds of sources, and what evidence is needed to support particular claims. Computational analysis expands the scale of the analysis, and the level of detail and context, making it possible to systematically explore claims about what is typical and representative and the periodization of historical discourses. Network graphs and maps visualize and measure relationships and spatial patterns in ways that capture a degree of complexity beyond what can be rendered in narrative. The implication of digital humanities for all humanities scholars is that we must look anew at our practices of research and analysis and critically reevaluate the nature and scope of the interpretative claims that we make.
Rabia Belt and Doron Dorfman
Disability studies is a relatively new academic discipline that approaches disability as a social, cultural, and political phenomenon and has a firm foothold within the humanities. This chapter will offer a broad, interdisciplinary overview of the achievements and challenges of disability law in both the American and international contexts using a disability studies-humanities-oriented approach. The chapter emphasizes the notion of intersectionality and the ways disability correlates with other identity groups such as people of color, women, LGBTQI, and immigrants and their treatment under the law. The use of philosophical, historical, literary, and artistic perspectives will help demonstrate the “disability angle” to the legal story of rights and recognition for individuals with disabilities, as well as for other civil rights groups, while looking ahead and exposing remaining challenges.
Kimberly Jenkins Robinson
Education federalism in the United States promotes state and local authority over education and a limited federal role. This approach to education federalism often serves as an influential yet underappreciated influence on education law and policy. This chapter explores how education federalism in the United States has evolved over time, its strengths and drawbacks, as well as how it has hindered efforts to advance equal educational opportunity. It argues that to achieve the nation’s education aims, education federalism must be restructured to embrace a more efficacious and efficient allocation of authority of education that embraces the policymaking strengths of each level of government while ensuring that all levels of government aim to achieve equitable access to an excellent education. The chapter proposes how to restructure education federalism to support a partnership between federal, state, and local governments to achieve equitable access to an excellent education. It also explains how this new approach to education federal could guide the United States toward a more impactful reauthorization of the Elementary and Secondary Education Act.
The early modern tradition of the emblem book offers a fertile ground to uncover the renewal of legal ethics during the Renaissance. Andrea Alciato was first and foremost a lawyer, and juridical themes abound in his Emblematum libellus. Later emblematists forged visible figures of norm and law, which stage and enact the rites and harmony of a living legal visual tradition. Inserted into the body of law reference texts or used as ingenious mnemonic devices, emblems played a role in the ars memorativa deployed by legal educators. In the case of Johannes Buno, visual images were designed especially to help fix the order of titles in the Digest and their contents. Emblems and symbolic places would serve as topical frameworks, headings for the reference texts, and notable visual commonplaces to highlight important issues. The emblematic quality of memory images was valuable for the jurist, who could reconstruct an entire legal text, speech, or case. The importance of emblems in transmitting law and the imaginary representation of legality was key to building a professional ethos in the humanist respublica jurisconsultorum. Emblem books provided shared judicial values, norms of conduct, and signs of office. The early history of legal emblems requires being attentive to the profound multivalence of their form and structure: their prolixity of applications and the variegated ways in which images and texts illuminate each other and provide numerous examples of making, seeing, and saying judicial ethics.
Law and the literary imagination in early modern England had shared stakes in the relation between face and intent, surface and significance, truth and semblance, nature and artifice. Using the legally attuned dramatist John Webster’s The White Devil as its central example, this chapter probes law’s preoccupation with legibility and the way in which drama enters into dialogue with it. In the process, law emerges an interface between an expressive mode and a hermeneutic model, and thus an imaginative resource for literary writers interested in selfhood and inwardness. Ultimately, the argument intimates how the gaps and dualities of the interrelation between the theatre and the law are used by early modern dramatic practice to conceptualize the larger interrelation between literary and legal epistemologies.
Khiara M. Bridges
This chapter examines the dual system of family law in the USA. It observes that the USA has a set of laws that regulates more affluent families and an entirely distinct set of laws that regulates poor families. Moreover, the family law for the poor is uniquely punitive. The chapter offers that the dual system of family law, and the brutal nature of family law for the poor, can be explained in terms of the moral construction of poverty—the idea that poverty is a result of an individual’s shortcomings. The chapter proposes that the moral construction of poverty offers a unique framework through which to view and critique the family law for the poor. It demonstrates the utility of the framework through an analysis of the Court’s 1970 decision in Dandridge v. Williams, upholding the constitutionality of family cap policies that restrict the size of the grants that welfare beneficiaries receive to support their families.
In light of the tendency to view contract through a lens of free will and agreement, this chapter approaches contract from the vantage point of standard form agreements. Drawing on empirical studies, behavioral psychology, law and economics contract scholarship, critical legal studies, legal history, and literary theory, it counters the prevailing view of standard terms as the exceptional case of contract. Through the lens of deconstruction, the chapter highlights the contextual contingency of standard form and refracts the presumptions in society and law concerning the allocation of resources. It identifies how the contemporary proliferation and routine enforcement of ancillary terms such as arbitration provisions in the current day epitomize how contract serves as a tool to leverage power. Examining form-contract scholarship and case law, the chapter reveals the expressive possibility of standard form in American law. It shows how the phenomenon of boilerplate exemplifies the process by which contract language serves to manifest agreement, shaping an understanding of freedom. The chapter extends the insights of legal history concerning the limits of contract freedom in the nineteenth century. In doing so, it draws on American literature to illustrate a changing paradigm of freedom—from wage labor to real estate development to consumption—and the attendant allocation of resources that shape voluntary exchange. By virtue of boilerplate’s contextual contingency, this deconstructive perspective reveals the potential to redistribute resources through standard form contract, and thereby not only create value but shape social norms.
Nomi M. Stolzenberg
The discourse of religious accommodation has stopped making sense and the reason it has stopped making sense is because our terminology is inherited from a tradition of political theological discourse that has been forgotten: the theology of divine accommodation. This chapter reconstructs the content of that tradition of political theology in broad strokes, arguing that the birthplace of secularism and the birthplace of liberalism both lie here. Once we recognize that, a number of doctrinal and conceptual puzzles can be solved, including how to define religion, whether to characterize secular humanism as a religion, and how broadly to construe the right to religious accommodation. It also solves the intellectual history puzzle of how Christianity came to be “terrestrialized,” paving the way for the evolution of liberal political thought. Contra the received wisdom that political theology and liberalism are intellectual and political antagonists, locating the origins of liberalism and secularism in the tradition of divine accommodation reveals conservative political theology and liberal political theory to be one and the same. It further reveals the centrality of law to the humanist tradition and the centrality of humanism to law.
Andrew Benjamin Bricker
This chapter documents some of the diverse functions of legal literature and case reporting prior to the emergence of the modern doctrine of stare decisis in the mid-nineteenth century. In examining the historical variability of legal literature, this chapter attempts to open up new avenues of research for scholars working between law and the humanities. By acknowledging and trying to make sense of that diversity, scholars might find in legal literature useful archival objects that could serve as evidence for phenomena beyond the recording of decisions and the transmission of precedents. This chapter briefly tracks the shifting functions of legal literature in late-medieval and early modern England to suggest how scholars might use such sources. The remainder of the chapter focuses on a transitional period in the history of stare decisis: the eighteenth and nineteenth centuries, when legal practitioners began fully to grapple with a much more modern notion of precedent as fully binding. Even during this period, however, case reporting served a variety of ends beyond the transmission of precedent, and social historians and literary scholars in particular have used legal literature in creative ways to track both societal shifts and literary forms. The goal here is to expand how scholars working at the intersections of law and the humanities might use legal literature and to suggest new ways to think about case reports: not solely as narrow objects for the transmission of precedent but as archival resources for a variety of superficially non-legal subjects.
This chapter explores the gap between the abstract ideal of fairness and the bodily materiality of retribution. The aim is to suggest how embodied versions of current cognitive science afford a helpful way of talking about the breach between abstractions, or thoughts of fairness, on one hand, and the judgments and punishments produced by actual legal systems on the other. It turns out to be remarkably easy for creatures with brains like ours to leap over the gap, to close the rift produced by evolved brain physiology between abstractions and their physical manifestations. The cognitive theory engaged here is the hypothesis that the grounds of morality and social decision-making—both the feeling of fairness and the institutionalized court systems—can be understood as produced by the structures and processes of human brains in their bodies. My inquiry rests on the co-occurrence of the highly popular revenge tragedies of late sixteenth and early seventeenth century (such as Hamlet) and the conflicts and arguments over the authority of the Chancery, or Equity Courts in London. Was equity, as John Selden later called it, “a roguish thing” that simply reflected the chancellor’s own feelings, in which case the judgments of the court were “above the law,” or was it, as Saint German claimed, grounded in sinderesis, the human mind’s natural understanding of right? The performances of revenge on stage, it is hypothesized, may have helped their audiences understand the direction of change that was needed.
Christopher N. Warren
One consequence of international law’s recent historical turn has been to sharpen methodological contrasts between intellectual history and international law. Scholars including Antony Anghie, Anne Orford, Rose Parfitt, and Martti Koskenniemi have taken on board historians’ interest in contingency and context but pointedly relaxed historians’ traditional stricture against presentist instrumentalism. This chapter argues that such a move disrupts a long-standing division of labor between history and international law and ultimately brings international legal method closer to literature and literary scholarship. The chapter therefore details several more or less endemic ways in which literature and literary studies confront challenges of presentism, anachronism, meaning, and time. Using examples from writers as diverse as Anghie, Spinoza, Geoffrey Hill, Emily St. John Mandel, China Miéville, John Hollander, Pascale Casanova, Matthew Nicholson, John Selden, Shakespeare, and Dante, it proposes a “trilateral” discussion among historians, international lawyers, and literary scholars that takes seriously the multipolar disciplinary field in which each of these disciplines makes and sustains relations with each of the others.