Agonism, Democracy, and Law

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.”

Spacetime in/and Law

Philosophers have explored the varying temporalities that different legal systems and techniques utilize or construct. Recently, a lively literature on law, space, and regulation has also flourished, mainly among geographers and urban studies scholars. While legal temporalities and legal spaces or spatializations are often discussed separately, in large part due to disciplinary barriers, this chapter shows that it is more appropriate to think about the “spacetime” of law and legal processes rather than engage only with either temporality or space.

Legal Paratexts

This chapter offers an overview of a genre that has attracted little attention qua genre: the legal paratext. Gérard Genette likened the paratext to a vestibule that operates as a zone of transition and transaction, a liminal space that prepares the reader’s experience of the text. Yet there are other, more cautionary paratexts that crowd, often invisibly, the vestibules of books and other cultural forms. This chapter surveys the transatlantic (American and British) repertoire of legal paratexts appearing in books, including copyright notices, once mandatory in the United States but now permissive there and in many countries; statements of US manufacture, deriving from a period in American publishing when copyright protection turned on strict compliance with the statutory requirement that books be physically manufactured on US soil; “all characters are fictitious” disclaimers, which urge readers to put aside their instinct to sue for libel or for privacy invasion and to engage with the text as a fictive and aesthetic creation; “no-obscenity” statements—a feature of many controversial modernist works—which seek to discourage official attempts at censorship and assure readers that books have been or are likely to be deemed by a court to be safe for consumption. Legal paratexts continue to crowd the vestibules of books, movies, musical recordings, and other works, warning readers, scolding them, and attempting to regulate their behavior in accordance with legal and corporate norms. They are linked to other literary genres, such as parody, satire, the apologia, and the palinode.

Maxims

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

Materialism and Legal Historiography, from Bachelard to Benjamin

As the linguistic/cultural turn of the last fifty years has begun to ebb, sociolegal and legal-humanist scholarship has seen an accelerating return to materiality. This chapter asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and the older materialisms—both historical and literary, both Marxist and non-Marxist—that held sway prior to post-structuralism. What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in contemporary legal studies? To attempt answers, the chapter turns to two figures from more than half a century ago: Gaston Bachelard—once famous, now mostly forgotten; and Walter Benjamin—once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements—earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The chapter argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.

Video as Text/Archive

This chapter focuses on a few issues related to video evidence and law, especially with respect to American law. The first issue is the history of the use of video evidence in court. The second issue involves constitutional protections regarding the state’s use of surveillance cameras. The chapter then turns to the Supreme Court case Scott v. Harris to raise concerns about the use of video evidence as not just proof but “truth.” These are of course just a sampling of the issues that the topic of video evidence could raise. The hope is that this chapter will spur further inquiry on the part of the reader.

Police Records

This chapter approaches police records as a genre that gains from being considered in its relationships with other genres of writing. In particular, we will follow its long-standing relationship to detective fiction, the novel, and biography. Going further, the chapter emphasizes the intermedia character of police records not just in our time but also throughout their existence, indeed from their very origins. This approach opens to a more inclusive media history of police files. We will start with an analysis of the seminal late nineteenth-century French manuals prescribing the writing of a police file, the famous Bertillon-method manuals. We will then track their influence following their adoption nationally and internationally, with particular attention to the politics of their adoption in the colonies. We will also touch briefly on the relationship of early policing to other disciplines, such as anthropology and statistics, before moving to a closer look at its intersections with photography and literature.

History, Literature, and Authority in International Law

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.

Immigration and the Imperial

In legal scholarship on immigration, as in public discourse, we often take for granted the normative and conceptual priority of nation state borders—as though borders were here first, and migrants came second. But people have been migrating since long before the establishment of nation state borders. European imperialism was sustained by mass migration. The British imperial system consisted of the voluntary migration of settlers and administrators as well as the involuntary or forced migration of enslaved Africans, Asian “coolies,” and criminal convicts. U.S. settler imperialism continues to effect mass displacements. Because the conventional nation-state framing of immigration law often obscures the imperial histories that have shaped the inequalities that now compel migration, this chapter asserts that scholars of immigration law and history have much to gain by displacing the nation-state framework, through which questions about immigration law and policy are raised, and replacing it with an expanded framework of the imperial.

Boundaries, Walls, Envelopes, Rooms, and Other Spatialities of Law

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.