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date: 25 February 2020

(p. xx) (p. xxi) Introduction

(p. xx) (p. xxi) Introduction

This collection of new essays on law and humanities has been designed as a forward-looking one. We sought as much as possible to encourage the asking of questions still emerging, to provoke and stimulate embryonic debates, and to facilitate the forging of forms and ways of looking and connecting that are fragile and difficult because they are still so fresh and surprising. We thus advised our contributors to avoid encyclopaedic literature reviews and instead to bring their own subjectivity to bear: to articulate what they feel is most urgent, most interesting, most deserving of further work in law and humanities. And we are delighted with how our contributors have responded; we could only have hoped for, but never foreseen, such replies. There is an embarrassment of riches in this collection, offering unfamiliar takes on familiar concepts, methods or categories, or constructing novel forms and groupings. To name but a few of the connections that appear in this volume, contributors have explored the relations between

  • Image, knowledge, and power

  • Body, movement, and moral perception

  • Space, voice, and face

  • Genre, gesture, and emotion

  • Archive, violence, and resistance

  • Discourse, matter, and architecture

  • Form, inequality, and narrative

  • Market, identity, and faith

  • Anecdote, abstraction, and normativity

  • Memory, persuasion, and experiment

  • Empire, criminalization, and indigeneity

Basking in the light of these contributions, the future of law and humanities is bright indeed.

(p. xxii) And yet, as forward-looking as we have attempted to be, we are of course very much aware that law and humanities, and humanities more generally, have a fascinating and contested history—indeed, many fascinating and contested histories. It has been more than an embarrassment for humanities scholars that while the history of the sciences and social sciences has flourished in the twentieth and twenty-first centuries, there has been little, until recently, to celebrate in the history of the humanities. Matters have improved of late, especially with the work of Rens Bod (and his New History of the Humanities) and the creation of a new journal in 2016, History of the Humanities.1 Bod, in particular, has not only virtually established the field but also constructed it in such a way as to make it receptive to current trends in historiography, especially big history, and global and transnational history. For example, his history of linguistics begins with the Indian grammarian Panini, whose eight books of Indian grammar, composed between the seventh and fifth centuries bce, not only became the basis of education in India for many centuries but had an enormous impact beyond, initially in China, then Persia, and eventually (much later) in Western Europe.2

The very scope of Bod’s history raises, of course, the pressing question: just how should we think of the humanities when historicizing them? What holds them together, what are the common or at least overlapping denominators of the humanities? Bod’s approach is to fasten on “humanistic material,” i.e., on the study of “language, texts, music, literature, theatre, art and the past,” and to identify the “methodological principles that have been developed and the patterns that have been found” in such studies. The patterns he looks for, and finds, vary from “inexact regularities” to “exact laws”—they include everything from “systems of grammar” to “systems of interpretation,” or “laws in linguistics” or “laws of harmony in music.”3 The result is truly impressive and groundbreaking. And yet one wonders whether a history of the humanities is appropriately based on, or anchored by, sensitivity to patterns, rules, and systems. One also wonders whether limiting the humanities to the study of “humanistic material” captures the breadth of the humanities, especially their interests in material of all kinds. After all, basing a definition of the humanities on “humanistic material” begs the question of what is meant by “humanistic.”

So here is another possibility, and one which of course would need to be tested and challenged, not only by looking back but also by looking forward (for instance, as per the contributions in this collection): that to practice the humanities is to approach, with certain attitudes and sensitivities, a multitude of practices of making (of making things, making meaning, making sense), including relations between those practices of making and the values that may be at stake in such practices and their relations to each other. (p. xxiii) A key aspect of this model turns on what is meant by “attitudes and sensitivities.” It would be dangerous of course (this being in itself a lesson of the humanities) to attempt an exhaustive account of such attitudes and sensitivities, but here are three:

  • Sensitivity not so much (and certainly not only) to the regular and the patterned, but instead to the irregular and the unpatterned. The humanities have, surely, a long and vital tradition in helping us see the unpredictability of human behavior, i.e., an interest precisely in its resistance to description by reference to rules, systems and patterns. One can put this in different ways: e.g., an attitude of respect for, or a responsiveness to, the anomaly, to particularity, to idiosyncrasy. The humanities, one might say, have been marked by their thirst for subjectivities and experiences that are difficult or impossible to universalize, generalize, or even recognize.

  • Sensitivity to the blind spots in our abilities to sense who is in danger, suffering, or vulnerable. The humanities have a gift of tapping us on the shoulder and pointing to the limits of our knowledge: to what we haven’t seen or can’t see, and, very importantly, to how we can’t see everything at once. There is, then, a rich reflexivity at the heart of the humanities. Such reflexivity offers vital reminders of the contingency and arbitrariness of even our most prized concepts and methods. There is not only humility in such self-awareness but also great energy: it spurs us to keep looking, and to try harder—in particular, to keep trying to look and listen better to those who are or may be (soon or in the distant future) in danger or in need.

  • Sensitivity to the apparently superficial, superfluous, unnecessary, insufficient, marginal, transitional, or by-the-by. One of the great virtues of the humanities has been to pay attention to that which other approaches discard as insignificant or too obvious. The humanities might be understood as arts of salvage; of rescuing that which has been seen or might be seen to be useless, incapable of being instrumentalized or made profitable. The humanities look, with delicacy and care, through the garbage bins of history.

Of course, these attitudes and sensitivities relate to each other. They overlap with and feed off each other, and they work together. And they are brought to bear, as mentioned above, on a multitude of practices of making: making things, making meaning, making sense. This multitude of practices includes, but goes considerably beyond, the “humanistic material” identified by Bod. It includes, for example, ephemeral modes of expression (such as sighs or winks), and not only practices of representation that are enduring or have a long-lasting impact. There is an interest here in all things human, and indeed in forever questioning what the boundaries of the human are taken, at any one place and time, to be. And, importantly, “making” is not taken to be mean merely “working” but includes, for example, playing; after all, we make plenty of meaning by playing together.

Finally, the above attitudes and sensitivities are brought to bear not only on practices and making and their relations with each other but also on the values at stake in such (p. xxiv) practices and relations. In other words, the attitudes and sensitivities of the humanities help articulate the ethics and politics of practices of making and relations among those practices. They help us to see the many ways such practices involve domination and exclusion, and, in keeping with the spirit of those attitudes and sensitivities, they remind us that we may never have practices of making that do not dominate or exclude others. Such, after all, is our finitude, which is both precious and wonderful, but also has its dark sides. We are human, all too human.

***

“Law has always been a part of the humanities”; “Now, more than ever, law needs the humanities.” These two refrains will be immediately familiar to anyone who has been drawn to the scholarship on law’s relations to history, literature, art, and philosophy—and the contributions to this collection attest, in various ways, to the truth of both assertions. Nevertheless, given the assumptions they usually reflect, neither of these statements aligns with the understandings of law, the humanities, and their interrelations that inform this Handbook. Although there are significant exceptions (particularly in recent decades), discussions of the law’s deep roots in the humanities, and its need of the humanities, have most often associated law with legal doctrines and rhetoric, in particular, and have looked to the humanities for representations of legal actors and dilemmas, and for ethical resources that can shed light on legal problems. Work that investigates those issues remains vitally important; however, we take the humanities to encompass not only history, literature, art, and philosophy but the whole range of fields that use interpretative methods to study creativity, expression, and the imagination. These include many fields—such as architecture, geography, book history, cognitive studies, science and technology studies, and performance studies—that influence, and are influenced by, legal concepts and methods, but that appear only sporadically, if at all, in law journals. This wide scope also embraces critical approaches—to racialization, sexuality, colonialization, materiality, affect and emotion, and disability, for instance—that cross traditional disciplinary boundaries. By bringing these perspectives to bear on law’s artefacts and effects, the contributors to this collection have suggested numerous new paths for thinking about how law molds and fractures meaning, persons, collectivities, and aspirations.

We also understand law to cover a wider range of legalities than the ones typically evoked by the two statements and their alternative claims to an enduring past and a present exigency. Any effort to understand the work of judges, legislators, lawyers, and litigants must, of course, engage with the bureaucratically and forensically manufactured products that help to frame their arguments (such as constitutions, statutes, regulations, doctrines, and cases), along with the rhetorical practices and theoretical concepts that animate and delimit all of these forms of expression and governance. However, to construe law in this fashion often has the result of sidelining other legal modes, including alternative dispute resolution and the various kinds of mediation and conciliation sometimes associated with it; negotiations conducted in the shadow of the law; the “low law” dispensed by magistrates and Justices of the Peace; law on the ground; (p. xxv) popular constitutionalism; vigilante justice and other forms of self-help; the rules and constitutions created by nonce associations, such as groups of miners and prospectors, and utopian communities; “minor” jurisdictions such as the courts of conscience, piepowder courts, the Court of Chivalry, and the Courts of Love; the oracular pronouncements of sages and religious authorities; poetic justice; and the justice meted out by the autocrats of television courtrooms. Similarly, a focus on forensic adjudication and doctrine often has the effect of minimizing the materiality of legal forms and documents. By attending to these various legalities, we hope to show how law’s humanistic aspects may be seen not only by studying rhetorical practices and ethical dilemmas but also by considering the many different ways in which law is bound up with problems of agency, epistemology, performance, power, trauma, space, and temporality (to name just some of the threads running through this Handbook). This expanded frame reveals numerous new and unexpected aspects of law’s place within the humanities, as well as the law’s need for concepts, theories, methods, and practices found in the humanities.

Finally, this way of exploring legal and humanistic questions opens up new ways of understanding the conjunction itself. Often, when scholars speak of studying law and the humanities, a question is hovering in the background, perhaps even in the foreground: what use does this enterprise serve? In its usual form, the question seeks to find out what legal problems the humanities can help to solve, and why the humanities can claim any privileged status in arriving at those solutions. Alternatively, if law is to play the subordinate role in the investigation, and provides the backdrop for research in the humanities, then what distinguishes the legal domain from any other professional domain that might be evoked to pursue this line of research? The chapters in this Handbook, rather than subordinating either term, show what occurs when we place legal ideas, forms, devices, methods, and sensibilities together with their correlates, cognates, variants, and antitheses in humanistic disciplines—the aim being not to solve a preformulated problem in either field but to pose new, otherwise unasked questions about the techniques, premises, and processes that make these various legalities accepted and disputed, and about the different registers (sober, cynical, comic, ironic) in which forensic and legalistic dispositions inform our creative efforts.

The Handbook is divided into four parts, to provide multiple points of entry for all readers. Part I takes up various theoretical approaches, introducing themes and ideas that reappear throughout the remainder of the volume. Part II dwells on keywords and concepts that straddle different fields in law and the humanities, highlighting questions that have long continued to fascinate scholars and suggesting directions for future research both within and among the fields they explore. Part III focuses on specific areas of law, showing how humanistic perspectives can reveal dimensions of each field that we miss if we restrict our attention to conventional doctrinal analysis. Finally, the Part IV turns to legal genres and forms (construing these terms broadly), examining the assumptions, conventions, potentialities, and affordances of these media. While the first two parts somewhat self-evidently foreground the theories and themes afforded by law and humanities, or by law and the humanities to each other, it is worth dwelling in (p. xxvi) somewhat more detail on the aims of the final two parts of the Handbook, those pertaining to areas of law and legal genres.

Scholars of law and literature have called attention to legal genres at least since Robert Ferguson’s 1990 essay “The Judicial Opinion as Literary Genre.” In that succinct but seminal piece, Ferguson identified several distinguishing features of the judicial opinion and suggested the broader applicability of generic analysis within law.4 Others have examined legal genres historically, analyzing the forms of the nineteenth-century case report or the sixteenth-century French letter of remission.5 Despite this important work, legal scholarship has been slow to recognize the significance of genres and the particular ways in which genres affect how legal knowledge is produced and received.6

The final part of the Handbook aims to bring considerations of genre into greater prominence by showcasing a number of approaches to generic models. It likewise expands the compass of generic analysis beyond text to include the range of images and performances both produced by and treating law. As the pieces included here demonstrate, legal media may announce themselves as treatises (Wilf), case files (Vatulescu), or video (Capers), and be fruitfully analyzed as such. Alternatively, it is possible to reconstruct a legal event from a generic vantage point, emphasizing its status as a performance (Peters), or viewing it through the particular lens of a cultural genre such as comics (Chute).

Throughout these various contributions, certain common questions and themes emerge. Genres represent, as Steven Wilf notes, a form of “cultural practice.” A genre’s forgotten moment of emergence or transformation may tell us something about its legal role and significance, as Andrew Benjamin Bricker’s chapter on case reports suggests. The intended audience—whether lay or legal, judicial or administrative—will shape the picture of a legal regime presented. The character of the language used within a particular genre, such as the repetitions of stock legal phrases in the boilerplate contract language that Tal Kastner treats, has implications for the genre’s legal effect and social role. Newly emergent genres, such as the police video Bennett Capers treats, may produce impressions of reliability in excess of their capacity to deliver. Rather than viewing a particular genre as rigidly including or excluding, the tendency in this volume is toward permeable borders and family resemblances.

A legal event may not always address us in the form of a fixed genre, as Julie Stone Peters’s contribution suggests. Instead, it is possible to approach such an occurrence—even one that happened in the distant past—as a performance, attempting to reconstruct its bodily and experiential dimensions. Law itself may, in turn, be asked to (p. xxvii) respond to a traumatic past, as discussed in Norman W. Spaulding’s chapter, which encourages treating this past not by burying it or attempting to overturn it, but instead through a “disposition of living with, not after, trauma.” Hillary Chute’s contribution on comics further indicates how literary genres might approach similar traumatic occurrences and how aspects of their form, including the use of frames and relation to time, shape their engagement with human rights.

Assessing legal materials through the lens of genre allows us to view law neither, on the one hand, as a defined set of doctrines nor, on the other, an infinitely malleable instrument for implementing political preferences. Instead, law appears as a refractory composite of different forms, which present disparate views of their subject in accordance with their generic features and dispositions. By emphasizing aspects of genre, the Handbook attempts to demonstrate the significance of such analysis for legal studies as a whole.

The penultimate section of the Handbook brings humanistic approaches, broadly conceived, to bear on recognized substantive areas of law; far from being an optional add-on, humanistic approaches have the potential to fundamentally reframe the way in which we see central doctrinal areas of law such as evidence (Simon-Kerr), property (Keenan), and international law (Warren). Scholars trained in the humanities have, in recent years, helped to reshape conversations in their substantive fields in ways that draw implicitly on humanistic approaches. For example, in the area of copyright, Barton Beebe has demonstrated how indebtedness to American literary romanticism detrimentally influenced US conceptions of copyright at a crucial doctrinal moment in the early twentieth century and has suggested ways to repair the consequences of this turn going forward.7 In the domain of bank regulation, Annelise Riles has relied on her ethnographic work on finance and financial actors to argue that problems with the legitimacy central banks arise from a culture clash between the expert culture of central bankers and that of the global publics invested in their activities.8 Through this work, it becomes visible how humanistic approaches can play a valuable role in reconfiguring legal doctrine and regulatory policy rather than serving solely a critical function.

In that vein, Elizabeth S. Anker’s contribution to this volume, taking inspiration from the post-critical turn in literary studies, suggests that we move beyond a simple dichotomy between critique and prescription in the area of human rights.9 As Anker argues, approaches to human rights have often focused on the paradoxes they present, while frequently failing to present a way forward. She sees some law and humanities scholarship as falling into a similar trap and instead advocates for amalgamating critique and affirmation, both with respect to human rights and work in law and humanities. Other chapters of the Handbook indicate how a humanistic approach could adjust the temporal and geographical scope of inquiry within particular substantive areas of law and (p. xxviii) thereby shed new light on their constitutive problems and potential solutions. For example, addressing immigration, Sherally Munshi powerfully demonstrates the contingency of contemporary conceptions of borders through placing the contemporary nation state within the geography and genealogy of empire. Turning to intellectual property, Andrew Gilden argues for the capacity of queer theory to open up the classical liberal conceptions underlying contemporary US intellectual property regimes and furnish new sources for thinking about creativity, such as through the performative turn advanced by Judith Butler, among others.10

Focusing in on particular substantive areas of law also highlights the potential for law as a field to enable important conversations about methodology among differing disciplines affiliated with the humanities. Law thus functions as a site for the convergence of disciplinary approaches upon a shared set of topics, and allows for the crystallization of debates over methods through engagement with a common subject matter. For example, the subjects tackled by the Handbook furnish opportunities for staging disparate approaches to history. In this collection alone, scholars engage the pasts of law from the perspectives of legal history, performance, genealogy, international law, political theory, the history of political thought, art history, and digital humanities, among others. As late German historian Reinhart Koselleck’s work often suggested, different ways of treating history do not necessarily fall within a hierarchy of value but instead cast light upon each other. Thus Koselleck derived new insights from thinking general history alongside legal history as well as natural history.11 Christopher N. Warren’s discussion of international law in this volume similarly inaugurates what he calls a “trilateral methodological conversation among literary critics, historians, and scholars of international law,” positing a new potential for “quasi-literary legal history” in international law, a form of history that could “creat[e] ‘cross-temporal community’ ” and “mov[e] meaning through time.” Substantive areas of law can thereby furnish a site for methodologies to collide and potentially rub off on each other, rendering law a powerful arena for interdisciplinary encounters within the humanities.

To compose an introduction to a collection as rich and varied as this one is difficult; no one framing, no one editorial strategy, no single or even collective vision can do it justice. It leaks and overspills, and cannot be contained, as perhaps is always the case with work in the humanities. What we have sought to do above is merely suggest a few ways in. Readers will no doubt discover more, of their own making. We offer up this collection, then, in the spirit of experiment, as a collective invitation to further conversations and more experiments.

Notes:

(1) Most of the chapters in this Handbook first took shape as papers presented at two conferences on Law and the Humanities, held at Stanford Law School on May 18–19, 2018, and at the School of Law at Queen Mary University of London on June 14–15, 2018. We are grateful to both institutions—and to former Stanford Law School Dean Elizabeth Magill—for their support.

Rens Bod, New History of the Humanities (Oxford: Oxford University Press, 2013); History of Humanities (University of Chicago Press).

(2) Bod, New History, 14–20.

(3) Ibid., 9.

(4) Robert Ferguson, “The Judicial Opinion as Literary Genre,” Yale Journal of Law and the Humanities 2 (1990): 201–220.

(5) Ayelet Ben-Yishai, Common Precedents: The Presentness of the Past in Victorian Law and Fiction (Oxford: Oxford University Press, 2013); Natalie Zemon-Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France (Stanford, CA: Stanford University Press, 1987).

(6) There are, of course, exceptions, including important works like Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Angela Fernandez and Markus Dubber (Oxford: Oxford University Press, 2012).

(7) Barton Beebe, “Bleistein: The Problem of Aesthetic Progress and the Making of American Copyright Law,” Columbia Law Review 117 (2017): 319–398.

(8) Annelise Riles, Financial Citizenship: Experts, Publics, and the Politics of Central Banking (Ithaca, NY: Cornell University Press, 2018).

(9) For work on the post-critical turn, see Rita Felski, The Limits of Critique (Chicago: University of Chicago Press, 2015); Elizabeth S. Anker and Rita Felski, Critique and Post-Critique (Durham, NC: Duke University Press, 2017).

(10) Judith Butler, Excitable Speech: A Politics of the Performative (London: Routledge, 1997).

(11) See, e.g., Reinhart Koselleck, “Sediments of Time” and “History, Law, and Justice,” in Sediments of Time: On Possible Histories (Stanford, CA: Stanford University Press, 2018), 3–9, 117–136; see also Niklas Olsen, History in the Plural: An Introduction to the Work of Reinhart Koselleck (Oxford: Berghahn Books, 2012).