- Law, Jurisprudence, and Social ThoughtLaw, Jurisprudence, and Social Thought
Year: Show curriculum in:
Amherst College Law, Jurisprudence, and Social Thought for 2009-10
01 The Social Organization of Law
(Offered as LJST 01 and Political Science 18 [LP].) Law in the United State is everywhere, ordering the most minute details of daily life while at the same time making life and death judgments. Our law is many things at once--majestic and ordinary, monstrous and merciful, concerned with morality yet often righteously indifferent to moral argument. Powerful and important in social life, the law remains elusive and mysterious. This power and mystery is reflected in, and made possible by, a complex bureaucratic apparatus which translates words into deeds and rhetorical gestures into social practices.
This course will examine that apparatus. It will describe how the problems and possibilities of social organization shape law as well as how the social organization of law responds to persons of different classes, races and genders. We will attend to the peculiar way the American legal system deals with human suffering--with examples ranging from the legal treatment of persons living in poverty to the treatments of victims of sexual assault. How is law organized to cope with their pain? How are the actions of persons who inflict inquiries on others defined in legal terms? Here we will examine cases on self defense and capital punishment. throughout, attention will be given to the practices of police, prosecutors, judges, and those who administer law's complex bureaucratic apparatus.
Limited to 100 students. Fall semester. Professor Sarat.2013-14: Not offered
Other years: Offered in Fall 2007, Fall 2008, Fall 2009, Fall 2010, Fall 2011, Fall 2012
03 Legal Institutions and Democratic Practice
This course will examine the relationship between legal institutions and democratic practice. How do judicial decisions balance the preferences of the majority and the rights of minorities? Is it possible to reconcile the role that partisan dialogue and commitment play in a democracy with an interest in the neutral administration of law? How does the provisional nature of legislative choice square with the finality of judicial mandate? By focusing on the United States Supreme Court, we will consider various attempts to justify that institution’s power to offer final decisions and binding interpretations of the Constitution that upset majoritarian preferences. We will examine the origins and historical development of the practice of judicial review and consider judicial responses to such critical issues as slavery, the New Deal, and abortion. The evolving contours of Supreme Court doctrine will be analyzed in the light of a continuing effort to articulate a compelling justification for the practice of judicial intervention in the normal operation of a constitutional democracy.
Limited to 50 students. Spring semester. Professor Douglas.2013-14: Not offered
Other years: Offered in Spring 2008, Spring 2010, Spring 2012, Spring 2013
05 Race, Place, and the Law
(Offered as LJST 05 and Black Studies 71 [US].) Understandings of and conflicts about place are of central significance to the experience and history of race and race relations in America. The shaping and reshaping of places is an important ingredient in the constitution and revision of racial identities: think of “the ghetto,” Chinatown, or “Indian Country.” Law, in its various manifestations, has been intimately involved in the processes which have shaped geographies of race from the colonial period to the present day: legally mandated racial segregation was intended to impose and maintain both spatial and social distance between members of different races.
The objective of this course is to explore the complex intersections of race, place, and law. Our aim is to gain some understanding of geographies of race “on-the-ground” in real places, and of the role of legal practices--especially legal argument--in efforts to challenge and reinforce these racial geographies. We will ask, for example, how claims about responsibility, community, rationality, equality, justice, and democracy have been used to justify or resist both racial segregation and integration, access and expulsion. In short, we will ask how moral argument and legal discourse have contributed to the formation of the geographies of race that we all inhabit. Much of our attention will be given to a legal-geographic exploration of African-American experiences. But we will also look at how race, place and the law have shaped the distinctive experiences of Native Americans, Hispanic Americans, and Asian Americans.
Fall semester. Senior Lecturer Delaney.2013-14: Offered in Fall 2013
Other years: Offered in Fall 2007, Fall 2009, Fall 2011
The goal of this course will be to understand some of the problems posed for legal studies in the humanities by the emergence of the system of administrative and constitutional law known as apartheid. This system, which was designed to institute “separate development for separate peoples” in South Africa, is widely and rightly regarded to be among the most inhuman régimes of the 20th century. Yet even and especially today, more than a decade after its formal end in South Africa, apartheid’s social, economic, and epistemic conditions of possibility, as well as the place and function of lawyers, legal discourse, and legal scholars in the resistance to it, remains at best vaguely understood.
This course is designed to remedy this gap. Our inquiry will be at once specific and general. Under what economic and political conditions did apartheid come into being? What legal traditions and practices authorized its codification? What academic disciplines and intellectual formations rendered it intelligible and enabled its theorization? What specific arrangement of juridical institutions, practices, and theories together comprised the apartheid state? What was the place and function of law in the critique of and resistance to apartheid? What new and specific problems did apartheid pose for legal theory?
Limited to 40 students. Fall semester. Professor Sitze.2013-14: Not offered
Other years: Offered in Fall 2007, Fall 2009, Fall 2011
07 The Trial
If media coverage is any evidence, it is clear that legal trials capture, and have always captured, the imagination of America. Trials engage us affectively and politically by dramatizing difficult moral and social predicaments and by offering a public forum for debate and judgment. They also “perform” law in highly stylized ways that affect our sense of what law is and does. This course will explore the trial from a number of different angles: as an idea, as a legal practice, and as a modern cultural phenomenon. What does it mean to undergo a “trial”? How do various historical trial forms--trial by ordeal or by oath, for example--compare with our contemporary adversarial form? What cultural and legal trajectories have trials followed in U.S. history? What narrative and structuring roles do trials play in literature and film? How do popular renderings of trials in imaginative texts and the media compare with actual trial practice, and perhaps encourage us to sit in judgment on law itself? In what ways do well-known trials help us to tell a story about what America is, and what kind of story is it?
Limited to 50 students. Omitted 2009-10. Professor Umphrey.2013-14: Offered in Fall 2013
Other years: Offered in Fall 2008, Spring 2011, Fall 2012
09 Utopia/Dystopia and the Law
Law has long been as central to the literary genre of utopian/dystopian writing as this genre has been to the legal imagination. Indeed, most schools of legal thought aim in some way at the optimization of human beings' social existence; conversely, utopian narratives consistently portray different juridical systems which are productive of the highest forms of peace, prosperity, morality and beauty, while dystopian texts complimentarily explore (often very similar) systems as leading to various sorts of totalitarianism, madness and disaster. In studying a range of literary texts and works of legal and critical theory, this course will pursue multiple lines of inquiry: Why should law and utopian/dystopian literature share this mutual affinity, and where does each discourse enrich or hamper the other? How do the inner complexities of these discourses condition that affinity? Where (despite this affinity) do we find legal and utopian discourse at odds, and why? (e.g., Why do we so often receive the impression that legal and political scholars reject utopian thinking as an impractical dream or, worse, a recipe for dystopia?) How does history condition our answers to all these questions, as well as to the question of why our own era seems to prefer dystopian narrative to its utopian counterpart?
Limited to 50 students. Fall semester. Visiting Lecturer MacAdam.2013-14: Not offered
Other years: Offered in Fall 2008, Fall 2009, Fall 2010
10 Introduction to Legal Theory
This course provides an introduction to the primary texts and central problems of modern legal theory. Through close study of the field’s founding and pivotal works, we will weigh and consider various ways to think about questions that every study, practice, and institution of law eventually encounters. These questions concern law’s very nature or essence; its relations to knowledge, morality, religion, and the passions; the status of its language and interpretations; its relation to force and the threat of force; and its place and function in the preservation and transformation of political, social and economic order.
Limited to 40 students. Spring semester. Professor Sitze.2013-14: Offered in Spring 2014
Other years: Offered in Spring 2008, Spring 2009, Spring 2010, Spring 2011, Spring 2012, Spring 2013
11 Law, Violence and Forgiveness
In this course, we will approach the problem of forgiveness from a very specific angle. Our most general question will be how, if at all, forgiveness is related to the specifically legal powers of amnesty, equity, and pardon. In the first two thirds of this course, we will take up this question by exploring a series of dramatic, philosophical, and jurisprudential texts that together constitute what might be called the “genealogy of forgiveness.” In the last third of the course, we will bring our genealogical understanding of forgiveness to bear on its contemporary use and, perhaps, abuse. We will seek to understand how amnesty, equity, pardon, and forgiveness have been used in situations where law finds itself obliged to respond to three forms of exceptional violence, namely, civil war, genocide, and apartheid.
Omitted 2009-10. Professor Sitze.2013-14: Not offered
Other years: Offered in Fall 2007
12 Psychoanalysis and Law
This course will provide an introduction to psychoanalysis as a comprehensive theory of law. Although psychoanalysis has not traditionally been considered an integral part of the discipline of legal theory, its insights into the origin and structure of law are at once intriguing and troubling, and its response to the basic question of jurisprudence--"what is law?"--permits us to refer with clarity and precision to an experience of law about which we would otherwise have to remain silent. Freud teaches that law is an institution that at once emerges from and recoils upon our most quotidian and intimate experiences--love and aggression, sublimation and art, language and fantasy, perversion and wit, jealousy and forgetfulness, conscience and paranoia, desire and transgression, gender and sexuality, anxiety and infancy--and he gives us a set of interpretive terms and techniques that help us grasp this teaching. Our inquiry into the psychoanalytic study of the law will be divided into two parts. After studying the account of law offered by Freudian psychoanalysis, we will explore the way that various scholars have both applied and critiqued psychoanalytic concepts in their understanding of law. In addition to reading Sophocles' Oedipus Rex and Antigone, Freud's Totem and Taboo and Civilization and Its Discontents, and Lacan's Seminar VII: The Ethics of Psychoanalysis, we will also read works by such thinkers as Jerome Frank, David Garland, Pierre Legendre, Drucilla Cornell, Patricia Williams and Judith Butler.
Limited to 40 students. Fall semester. Professor Sitze.
2013-14: Offered in Fall 2013
Other years: Offered in Fall 2009, Spring 2012
14 What's So Great About (In)Equality?
In our world, commitment to "equality" in one sense/form or another is nearly uncontested. At the same time, the form that it should take, its normative ground, scope, limits and conditions, the ways in which it may be realized, and much else are deeply contested. It is also the case that the world in which we live is characterized by profound, enduring and intensifying inequalities and numerous exceptions to the principle. These may be justified with reference to various countervailing commitments that are accorded ethical or practical priority (desert, liberty, efficiency, political stability, ecological integrity, pluralism, etc.). This suggests that while for many "equality" may be normatively compelling, its realization may be subordinated to any number of interests and desires; or, to put it bluntly, there may be such a condition as too much equality or not enough inequality, privilege and "disadvantage." This course treats these themes as they have arisen in distinctively legal contexts, projects and arguments. It will engage a range of debates within political philosophy and legal theory as to the appropriate limits of equality. While many forms and expressions of inequality have fallen into relative disfavor, some seem virtually immune to significant amelioration. Among these are those associated with social-economic class. Following general investigations of egalitarianism and anti-egalitarianism in social thought and legal history, we will devote closer attention to the legal dimensions of class inequality in contexts such as labor law, welfare and poverty law, education and criminal justice. We will conclude with an examination of the limits of legal egalitarianism vis-à-vis international class-based inequalities under conditions of globalization and cosmopolitan humanitarianism.
Limited to 40 students. Spring semester. Senior Lecturer Delaney.
2013-14: Offered in Fall 2013
Other years: Offered in Spring 2010, Spring 2012
Murder is the most serious offense against the legal order and is subject to its most punitive responses. It establishes the limits of law’s authority and its capacity to tame violence. Murder is, in addition, a persistent motif in literature and popular culture used to organize narratives of heroism and corruption, good and evil, fate and irrational misfortune. This course considers murder in law, literature and popular culture. It begins by exploring various types of murders (from “ordinary murder” to serial killing and genocide) and compares murder with other killings that law condemns (e.g., euthanasia and assisted suicide) as well as those it tolerates or itself carries out. It asks how, if at all, those who kill are different from those who do not and whether murder should be understood as an act of defiant freedom or simply of moral depravity. In addition, we will analyze the prevalence of murder in American life as well as its various cultural representations. Can such representations ever adequately capture murder, the murderer, and the fear that both arouse? The course will draw on legal cases and jurisprudential writings, murder mysteries, texts such as Macbeth, Poe’s “The Murders on the Rue Morgue,” Capote’s In Cold Blood, and Arendt’s Eichmann in Jerusalem, and such films as Hitchcock’s The Rope, Thelma and Louise, Silence of the Lambs, and Menace to Society. Throughout, we will ask what we can learn about law and culture from the way both imagine, represent and respond to murder
Limited to 100 students. Omitted 2009-10. Professor Sarat.2013-14: Not offered
21 The State and the Accused
This course will examine the unusual and often perplexing means by which the law makes judgments about guilt and innocence. Our inquiry will be framed by the following questions: What gives a court the authority to pass judgment on a person accused of criminal wrongdoing, and what defines the limits of this authority? What ends does the law seek to pursue in bringing an accused to justice? What “process” is due the accused such that the procedures designed to adjudicate guilt are deemed fair? How do these standards differ as we travel from adversarial systems of justice (such as the Anglo-American) to inquisitional systems (e.g., France or Germany)? Finally, how has the process of rapid globalization changed the relationship between the state and the accused and, with it, the idea of criminal justice itself? In answering these questions, our investigations will be broadly comparative, as we consider adversarial, inquisitional, and transnational institutions of criminal justice. We will also closely attend to the differences between law’s response to “common” criminals and extraordinary criminals, such as heads of state, armed combatants, and terrorists.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Spring semester. Professor Douglas.2013-14: Not offered
Other years: Offered in Fall 2007, Spring 2010, Fall 2010, Fall 2011
24 Law and Social Relations: Persons, Identities and Groups
One of the foundational analytics governing law’s relationship to identity and personhood is the grand trope of public and private. As an historical matter, the public/private divide has demarcated the boundary of law’s authority: under a liberal theory of government, law may regulate relations in the public sphere but must leave the private realm in the control of individuals. The stakes associated with this line of demarcation are extremely high: those problems of identity and relation that are considered “public” are problems visible to law and subject to law’s authority; those that are considered private remain below the horizon of law’s gaze. Yet definitions of the public and the private are notoriously slippery and inexact, and their contours are inexorably on a train as an African-American, or a license to practice law as a white woman, was to experience a kind of discrimination that the law would refuse to see. In the twentieth century we no longer experience such officially-sanctioned harms but remain conflicted about the extent to which law should address other, more “private” interactions: verbal bigotry, family relations, sex.
This course will trace and explore the modes by which the public/private divide constitutes identities in law by examining the ways law defines the public, and does or does not regulate ostensibly “private” harms. Using both legal and non-legal texts we will map a history of social relations, particularly as they implicated deeply held assumptions about racialized, gendered, and sexualized bodies, and explore the shifting boundary between public and private as it has emerged in public debates over the meaning of equality, privacy, and free speech. To what extent does law’s authority remain constituted upon the public/private divide? To what extent are we now witnessing the redefinition, even the virtual elimination, of the private? And with what consequences for our social relations?
Requisite: LJST 10 or consent of the instructor. Limited to 30 students Omitted 2009-10. Professor Umphrey.2013-14: Not offered
Other years: Offered in Fall 2008, Spring 2012
26 Critical Legal Geographies
The spatiality of social life is a fundamental element of human existence, not least through its involvement with power of various sorts. Spatiality is also a significant--and problematic--dimension of law (think of sovereignty, jurisdiction, citizenship). At the same time, law is a significant force through which spatiality is produced, reinforced, contested and transformed. Law literally constitutes social spaces through constitutions, treaties, statutes, contracts, modes of surveillance and policing, and so on. As it does so, it constitutes itself as a force in the world. Law may also be an arena in which other social-spatial conflicts are played out and, provisionally, resolved. The course will consider both the changing spatiality of law (its scope, scale, limits; its vectors and circuits) and the changing legal constitution of other social spaces. This will be done through an engagement with contemporary socio-spatial and legal theories and through a survey of exemplary events and situations. Among the more specific topics we will consider are privacy and property; public space of speech and dissent; migration, displacement and sanctuary; colonialism and occupation. The contexts of our study will not be limited to/by American law but will include examples involving international law, forms of legal pluralism, and other legal-cultural contexts. The course will conclude with an investigation of globalization and the emergence of cyberspace and their posited effects on the very possibility of law as we have come to understand and experience it.
Requisite: LJST 10 or consent of the instructor. Limited to 30 students. Spring semester. Senior Lecturer Delaney.2013-14: Not offered
Other years: Offered in Spring 2008, Spring 2010, Fall 2012
27 Law's Madness
We imagine law to be a system of reason that governs and pacifies a disorderly world. Indeed law derives much of its legitimacy from its relation to reason: it uses reason to justify the imposition of state violence even as it limits its own power, punishing only acts done by reasoning human beings. Any “mistakes” or “disruptions” are understood as unfortunate departures from an ideal rational system. And yet what if one were to reimagine law as constituted as much by its irrationalities as its rationality? To ask that question is to enter the language of psychoanalysis, and the theories proposed by Sigmund Freud to explain human irrationalities. This course, following Freud, theorizes law as emerging out of and actively engaging in repressions of fundamental drives or desires--both its own and those of the legal subjects who come before it. We will map some of the ways in which law understands legal subjectivity in relation to the capacity to reason, and draw upon Freud to put the idea of the “reasonable self” under some pressure. We will also consider the ways in which law’s authority may be conjured as an expression of the (sometimes violent) authority of the judge-father, and the limits of that authority as Freud understood them. Finally, we will speculate on the ways in which we make law an object of our own desire, which themselves depend upon the repression of law’s violence.
Requisite: LJST 10 or consent of the instructor. Limited to 30 students. Omitted 2009-10. Professor Umphrey.2013-14: Not offered
29 Natural Law
What is meant by "Natural Law"? This course will explore this strange legal category from the medieval period through the present day. What connection did (or does) natural law have to the will of a God or other deity? And yet how has it become something separate from "divine law"? What is "natural" about natural law, and does this quality make it somehow more primitive than, or prior to, or better than, positive (government-made) law? In modern secular societies, what are the post-religious understandings of the natural law idea, which is still thought by some to encompass our intuitions about justice or to frame our conceptions of positive law? In exploring the history and present state of this order of law which, in different moments, seems both to found positive law and to go beyond it, we will also ask: how easily does natural law coexist with positive law? If they conflict, which are we bound to follow? Does natural law jurisprudence have any role to play in actual legal proceedings? Can it govern conduct between governments? Can natural law be a justification for disobedience to the laws of governments, or even for revolution?
Spring semester. Visiting Lecturer MacAdam.2013-14: Not offered
Other years: Offered in Spring 2010, Spring 2011
30 Law, Speech, and the Politics of Freedom
In the United States, the idea of free speech is held to be both a political and moral ideal. The First Amendment makes freedom of speech a centerpiece of liberal democratic values and processes, and thus of American identity itself. But what, precisely, do we mean when we link the ideas of freedom and speech? What kinds of speech, and what kinds of freedom, are implicated in that linkage? Correlatively, what does it mean to “censor”? Drawing upon political philosophy, literary theory, court cases, imaginative writing, and examples from contemporary culture, this course will explore the multiple meanings of “free speech,” their legal regulation, and their deployment in American public culture. Why should we value “free” speech? Who do we imagine to be the speaker whose speech is or ought to be free: the man on the soapbox? The political protester? The media conglomerate? The anonymous chat-room inhabitant? What does it mean to say that various kinds of speech may be dangerous, and under what conditions it might be conceivable to shut down or regulate dangerous speech, or conversely to promote “politically correct” speech in either formal or informal ways? How do speech forms (for example, parody, poetry, or reportage) differ, and should some garner more legal protection than others? Can silence be considered a kind of speech?
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Fall semester. Professor Umphrey.2013-14: Offered in Fall 2013
Other years: Offered in Spring 2008, Fall 2009, Fall 2011
31 Social Movements and Social Change
This course examines social movements (and related phenomena) as integral elements of legal orders and as significant sources of legal transformations. Through interdisciplinary, cross-cultural, and historical analyses, the course will explore the ways in which non-state actors engage formal legal institutions to shape or reform law, in order to affect the conditions of social life. Of particular interest are not merely desired changes in laws but resultant changes in the culture of law more broadly. The course will draw on a wide range of movements (historical and contemporary; “progressive” and conservative; broad-based and narrowly focused; American and non-American; local, national and global; North and South, activist and bureaucratic from “below” and from “within”; etc.) and study two or three in closer detail. The over-arching objective is to achieve a richer understanding of both the inner workings of “the law” and the dynamic life of law outside of formal institutions.
Requisite: LJST 01 or consent of the instructor. Omitted 2009-10. Senior Lecturer Delaney.2013-14: Not offered
Other years: Offered in Fall 2008, Fall 2010, Spring 2013
32 Silence and Justice
What is the role of silence in matters of justice? When considered in the verbally and textually based contexts of legal processes, silence seems an odd phenomenon on which to focus, and yet the silences of the court and its various actors form a crucial aspect of legal proceedings and their legacies; in larger and more general contexts, silence--as a marker for what is absent, what is not said, what cannot be said, etc.--conditions some of our most important instincts about the justness of human conduct. Is silence a force for justice or against it, or does it exist in some other relation to justice? If the answer to this question changes with context, then what sort of concept is silence? How do deliberate, voluntary, coerced, unintentional, or emergent silences differ on practical and moral levels? In this course, we will examine answers to these questions in case law, legal theory, and critical perspectives drawn from philosophy, literature and political science.
Spring semester. Visiting Lecturer MacAdam.2013-14: Not offered
Other years: Offered in Spring 2009, Spring 2010
33 The Social Contract: Rhetoric and Founding Law
This course investigates seminal writings belonging to the "social contract" tradition--a branch of political theory which describes the formation of political communities through mutual consent--firstly in the English seventeenth century, where the tradition's modern roots are to be found, and secondly in the present era, where interest in this mode of thought has had a revival of sorts over the past 35 years. Much ink has been spilled during those years over the many apparent practical problems of contract theories as aids or means to just government, and we will attempt, over the course of the semester, to address these familiar problems in new ways. The particular approach to these writings which the course seeks to interrogate and develop will be chiefly concerned with their textuality, i.e., the way in which these writings as writings, communicate what they do: such an approach will give great attention to vocabulary, practices of quotation, the situation of the author(s) and his/her/their audience, considerations of genre and the division of knowledge, and "performative" language (language which acts in some way in addition to or instead of, communication)--any of these approaches may cast light on, augment or even sabotage the social contract project, which has for so long been a staple idea of liberal political thought . Our ultimate goal will be to evaluate this mode of reading as a useful tool for making progress in contract theory, and to use this tool to generate fresh thinking on some very old political problems.
Not open to first-year students. Fall semester. Visiting Lecturer MacAdam.2013-14: Not offered
Other years: Offered in Fall 2008, Fall 2009, Spring 2011
34 Law, Crime and Culture
Crime and criminality are the sites where law most directly and forcefully intervenes in everyday life through ritual and spectacle, through the construction of boundaries that include or exclude certain kinds of behavior or types of individuals from the social polity, and through direct physical violence and the containment of bodies. Focusing mainly but not exclusively on the United States, this course will explore, both historically and theoretically, the ways in which crime and criminality have been imagined, enacted, and punished. Drawing heavily on the work of Michel Foucault, we will explore the historical changes, continuities and contradictions visible in various imaginings of the relationship between the state, the criminal, and the public. We will consider the significance of shifting modes of punishment, from a spectacle of pain to incarceration behind the high walls of the penitentiary. We will also examine various theories of criminality and inquire into their cultural assumptions and consequences as they have gained and lost legitimacy over time. Whom do we hold legally or morally responsible for criminal acts? Can criminal activity be explained as product of vice, or an imperfect body, or the social environment? How does popular culture encode various representations of criminality?
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2009-10. Professor Umphrey.2013-14: Not offered
Other years: Offered in Spring 2008
35 Law's Nature: Humans, the Environment and the Predicament of Law
“Nature” is at once among the most basic of concepts and among the most ambiguous. Law is often called upon to clarify the meaning of nature. In doing so it raises questions about what it means to be human.
This course is organized around three questions. First, what does law as a humanistic discipline say about nature? Second, what can law’s conception of nature tell us about shifting conceptions of humanness? Third, what can we learn by attending to these questions about law’s own situation in the world and its ability to tell us who we are? We will address these questions by starting with the environment (specifically wilderness). We will then expand our view of nature by examining legal engagements with animals (endangered species, animals in scientific experiments, and pets), human bodies (reproductive technologies, involuntary biological alterations, the right to die) and brains (genetic or hormonal bases for criminal defenses). Throughout, we will focus our attention on the themes of knowledge, control and change. We will look, for example, at relationships between legal and scientific forms of knowledge and the problematic role of expert knowledge in adjudicating normative disputes. We will also look at law’s response to radical, technologically induced changes in relations between humans and nature, and to arguments in favor of limiting such transformations.
Requisite: LJST 01 or 10 or consent of the instructor. Omitted 2009-10. Senior Lecturer Delaney.2013-14: Offered in Spring 2014
Other years: Offered in Spring 2009, Fall 2011
36 Tragedy in the Theatre of Law
The tragic dramas of Aeschylus, Euripides, and Sophocles put law into question in fascinating ways. “Tragedy,” argues Jean-Pierre Vernant, “is contemporaneous with the City and with its legal system. What tragedy is talking about is the City itself and the problems of law it is encountering.” For this reason, Vernant concludes, “the true subject matter of tragedy is social thought and most especially juridical thought in the very process of elaboration. Tragedy poses problems of law, and the question of what justice is.” Vernant’s suggestion--that classical tragic drama in effect amounts to a theory of law--is even more intriguing once juxtaposed to the remarks on tragedy in the text that is arguably the inaugural work in the philosophy of law. In Book VII of Plato’s Laws, the Athenian considers what answer he would give to a tragic poet who asked him why he and his fellow legislators had decided to ban tragic poets from the city. The Athenian begins with a frank admission: “Respected visitors, we are ourselves authors of a tragedy, and that the finest and best we know how to make. You are poets,” the Athenian continues, “and we also are poets in the same style, rival artists and rival actors, and that in the finest of all dramas, one which indeed be produced only by a code of true law.”
This course is designed as an inquiry into the relationships between tragedy and law, on the one hand, and theatre and theory, on the other. What does it mean to read classical tragedies as works of legal theory? In what sense, meanwhile, does Plato’s Laws lay claim to the generic status of tragedy? What is it about tragedy’s nonphilosophical theory of law that Plato’s interlocutors find so philosophically objectionable? We will bring these and other questions to bear on Plato’s Laws and on key works by Aeschylus, Euripides, and Sophocles. In addition, we will read secondary texts by Danielle Allen, Louis Gernet, René Girard, Nicole Loraux, Friedrich Nietzsche, Jacques Rancière, and Jean-Pierre Vernant.
Limited to 30 students. Omitted 2009-10. Professor Sitze.2013-14: Offered in Spring 2014
Other years: Offered in Spring 2008, Spring 2011
37 Law and the American War in Vietnam
The American war in Vietnam was, among other things, a watershed event in American legal history. Throughout the duration of the war there was vigorous debate about its legality in terms of international law, natural law and constitutional law. The conduct of the war and its relation to the draft and to dissent generated unprecedented public disagreement about such fundamental legal issues as authority, obligation, due process, civil liberties, crime and punishment, and the relationship between law and morality. The war was also the topic or context for a number of trials during which official legal actors endeavored to make formal legal sense of the war and of law’s relationship to it. As a historical event, the war may also be examined in light of more contemporary themes such as legal consciousness, law as violence, and governmentality. The course will explore legal aspects of the war both as a historical study and as a case study of law in extreme situations.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2009-10. Senior Lecturer Delaney.2013-14: Not offered
Other years: Offered in Spring 2009
38 Law and Historical Trauma
Certain events in political history--revolutions, civil wars, transitions from authoritarian or totalitarian regimes to political democracy, or particular moments in the ongoing constitutional life of a nation--seem unusual in the breadth and depth of the break or rupture that they make from tradition, the past, and the ongoing self-understandings of a people. Those events pose a special opportunity and challenge for law. Can law repair the traumatic ruptures associated with revolution, civil war, and recent democratic transitions? In such moments does law provide a reassuring sense of stability that serves to maintain the underlying continuity of history? Or, does it compound the crisis of dramatic historical transformation by insisting on judging the past, bringing the losers to justice, and publicly proclaiming the “crimes” of the old order? What can we learn about law by examining its responses to historical trauma? To address these questions we will first examine the idea of trauma and ask what makes particular events traumatic and others not. Is trauma constitutive of law itself? Is law always born in traumatic moments and, at the same time, continuously preoccupied with responding to its own traumatic origins? We will then proceed comparatively and historically by focusing on a series of case studies including colonial revolution in Algeria, Aboriginal rights cases in Australia, slavery and civil war in the United States, and regime changes in South Africa, Germany, and Argentina. In each we will identify the part played by law and ask what we can learn about the capacities and limits of law both to preserve national memory and, at the same time, to build new social and political practices.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2009-10. Professor Hussain.2013-14: Not offered
Other years: Offered in Spring 2011
40 Law, God and Modernity
It is the hallmark of modernity that law is secular and rational, made by humans for their purposes. Modern law relegates the divine to the realm of private belief, while the modern state guarantees the uninterrupted observance of a multiplicity of beliefs. Yet secularism has never been an uncontested position and many philosophers have suggested that the sovereignty of the modern state is itself a worldly duplicate of religious understandings of god’s omnipotence. Today the connection of law and the sacred has taken on new urgency with the so-called “return of the religious,” most famously with the rise of political Islam but also with Christian movements in the west, and with the transformations of sovereignty through globalization. This course is a historical and cross-cultural examination of the relationship of law, sovereignty, and the sacred. It focuses on a range of topics: the understanding of secularism in general and the American doctrine of the separation of church and state in particular; the legal theory of Islamization; the meaning of orthodoxy, both legal and religious. It examines both the secular uses of the concept of the sacred, and the religious deployment of modern legal concepts. It asks how the proper names of law and god are used to anchor various normative visions.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2009-10. Professor Hussain.2013-14: Not offered
Other years: Offered in Spring 2008, Fall 2008, Fall 2010, Spring 2012
41 Interpretation in Law and Literature
(Analytic Seminar) Interpretation lies at the center of much legal and literary activity. Both law and literature are in the business of making sense of texts--statutes, constitutions, poems or stories. Both disciplines confront similar questions regarding the nature of interpretive practice: Should interpretation always be directed to recovering the intent of the author? If we abandon intentionalism as a theory of textual meaning, how do we judge the “excellence” of our interpretations? How can the critic or judge continue to claim to read in an authoritative manner in the face of interpretive plurality? In the last few years, a remarkable dialogue has burgeoned between law and literature as both disciplines have grappled with life in a world in which “there are no facts, only interpretations.” This seminar will examine contemporary theories of interpretation as they inform legal and literary understandings. Readings will include works of literature (Hemingway, Kafka, Woolf) and court cases, as well as contributions by theorists of interpretation such as Spinoza, Dilthey, Freud, Geertz, Kermode, Dworkin, and Sontag.
Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Fall semester. Professor Douglas.2013-14: Not offered
Other years: Offered in Fall 2009, Spring 2012
42 When Law Fails
(Analytic Seminar) Well publicized miscarriages of justice today draw public attention to the failures and imperfections of our legal system. All too often, it seems, law fails and becomes a tool of injustice. Yet it may be that law without failure is inconceivable and undesirable. As Chief Justice Rehnquist put it, the quest for perfect justice "would all but paralyze our system for enforcement of the criminal law." In this course we will ask what we can learn about the aspirations and operations of law by examining its failures, its miscarriages of justice.
We will begin by trying to determine what constitutes a miscarriage of justice. One conventional and compelling answer is when an innocent person is convicted and incarcerated. And, indeed, the image of the wrongfully convicted dominates popular culture, policy and advocacy. Is that answer useful for talking about ways in which the law fails or does it impose too narrow a lens? Are miscarriages of justice systemic or symptomatic, or are the problems which lead law to misfire idiosyncratic? Can law fail even when it reliably acquits the innocent and punishes the guilty? Can legal errors ever be "harmless"? What are the legal, cultural, and political meanings of a miscarriage of justice?
To answer these questions we will examine the contemporary innocence movement and the increased use of DNA to uncover law's failures as well as the impact of faulty eyewitness identifications, false confessions, biased juries, the politicization of prosecution, and racial bias in the criminal justice system. We will also examine the secret detention and trial of unlawful enemy combatants in the war on terror and the use of military tribunals. How do we think about miscarriage of justices in situations that openly claim different standards and different goals from the regular criminal justice system. We also will take up the treatment of miscarriages of justice in literature and popular culture.
Throughout, we will seek to identify the theoretical frames that are most productive in illuminating what happens when law fails as well as the broader implications of miscarriages of justice for the ways we think about law.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Open to juniors and seniors. Omitted 2009-10. Professors Hussain and Sarat.2013-14: Not offered
43 Law's History
(Research Seminar) History is the backbone of the common law, a body of principles developed over time through a slow accretion of decisions constantly engaged with their own historical antecedents, or “precedent.” Thus, questions of history are integral to an understanding of the rhetorical and hermeneutic practices involved in the creation of legal doctrine. Paying close attention to legal texts--opinions, treatises, and commentary--we will examine the way legal scholars and jurists since the eighteenth century have used historical materials to construct narratives that can justify their decisions, and how those uses have changed over time.
Yet the problem of history in law extends beyond its justificatory use in legal texts and will push us to further questions. What, in the context of doctrine-making, is history? Does it include the personal histories detailed at trial? Does it erase the lived experiences of social groups at specific historical moments? How do these “other” histories, embedded in every legal case but often obscured in judicial opinions and treatises, put into question the legal system’s objective epistemological stance toward the very people over whom it presides?
Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Omitted 2009-10. Professor Umphrey.2013-14: Not offered
44 Late Modern Moral Philosophy and Legal Theory
(Analytic Seminar) No one disputes that moral argumentation is central to law’s theory and practice. Yet what exactly do we mean when we speak of morality? In this course, we shall take up this question by closely studying what is arguably the paradigmatic text of modern moral philosophy, Kant’s Groundwork for the Metaphysics of Morals. After studying the relations between Kant’s Groundwork to Kant’s more general philosophy of public and international law, we will then study a set of critiques of, and commentaries on, Kant’s work. The purpose of this course will be to weigh and consider Kant’s moral law as a point of reference for the critique of law today. Readings will include works by Adorno, Arendt, Butler, Derrida, Freud, Nietzsche, Levinas, Lacan, and Zizek.
Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Omitted 2009-10. Professor Sitze.2013-14: Not offered
45 Law and Political Emergency
(Analytic Seminar) This course introduces students to one of the more sustained problems in jurisprudence and legal theory: what happens to a constitutional order when it is faced with extraordinary conditions such as rebellion, war and terrorism. While it is generally agreed that rules, rights and procedures may be temporarily suspended, it is less clear which rights, and who decides on the suspension (the executive alone or in some combination with the legislature, with or without oversight by the courts). While these questions have now become familiar to us--and this course will guide students through the policy shifts and court battles in the United States since 9/11, from the issue of enemy combatants to the use of Guantanamo Bay as a detention center--we will take a more theoretical and historical approach to these questions. Thus we will look at the earliest use of some emergency techniques by the British in the colonies, Lincoln’s suspension of habeas corpus during the Civil War and the notorious Article 48 of the Weimar Constitution, which has often been blamed for facilitating the rise of the Nazis. We will end by examining alternative methods for contending with emergency.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Omitted 2009-10. Professor Hussain.2013-14: Offered in Fall 2013
Other years: Offered in Spring 2008, Spring 2009, Spring 2011, Fall 2011, Spring 2013
48 Law And War
(Research Seminar) The traditional understanding of war involved the armies of two nation-states confronting each other on a battlefield. And other than general customs of a just war, the law was thought to have little to say about war. But in the last half century even as the traditional form of war has changed rapidly, as conflicts involving non-state actors (such as insurgency and terrorism) have increased, international law has developed an intricate set of rules regarding who can fight and what methods of fighting are legal.
This course explores the connection between different types of conflict and the norms and rules of international law that are used to regulate that conflict. In this course, we will take a historical approach. We will read classic theorists of war such as Clausewitz, Schmitt and Michael Walzer. We will examine the history of The Hague and Geneva Conventions. And we will focus on specific instances of war from nineteenth-century colonial conflicts and guerilla warfare, to the 1999 “humanitarian” intervention in Kosovo, to the various fronts in the contemporary “war on terror.” Throughout we will ask how changes in technology and law change the definition of war. How do legal definitions of war attempt to demarcate it from other forms of violent conflict such as insurgency or terrorism?
Requisite: LJST 01 or 10 or consent of the instructor. Open to juniors and seniors. Limited to 15 students. Omitted 2009-10. Professor Hussain.2013-14: Not offered
Other years: Offered in Fall 2008, Fall 2012
49 Law and Love
(Research Seminar) At first glance, law and love seem to tend in opposing directions: where law is constituted in rules and regularity, love emerges in contingent, surprising, and ungovernable ways; where law speaks in the language of reason, love’s language is of sentiment and affect; where law regulates society through threats of violence, love binds with a magical magnetism. In this seminar, placing materials in law and legal theory alongside theoretical and imaginative work on the subject of love, we invert that premise of opposition in order to look for love’s place in law and law’s in love. First we will inquire into the ways in which laws regulate love, asking how is love constituted and arranged by those regulations, and on what grounds it escapes them. In that regard we will explore, among other areas, the problematics of passion in criminal law and laws regulating sexuality, marriage, and family. Second we will ask, how does love in its various guises (as, philia, eros, or agape) manifest itself in law and legal theory, and indeed partly constitute law itself? Here we will explore, for example, sovereign exercises of mercy, the role of equity in legal adjudication, and the means that bind legal subjects together in social contract theory. Finally, we will explore an analogy drawn by W. H. Auden, asking how law is like love, and by extension love like law. How does attending to love’s role in law, and law’s in love, shift our imaginings of both?
Requisite: LJST 10 or consent of the instructor. Open to juniors and seniors. Limited to 15 students. Omitted 2009-10. Professor Umphrey.2013-14: Offered in Spring 2014
Other years: Offered in Fall 2007, Spring 2009, Fall 2011
50 Twentieth-Century American Legal Theory
(Analytic Seminar) The discipline of legal theory has the task of making law meaningful to itself. But there is a variety of competing legal theories that can make law meaningful in divergent ways. By what measure are we to assess their adequacy? Is internal coherence the best standard or should legal theory strive to accord with the extra-legal world? Then too, the institutions and practices of law are components of social reality and, therefore, as amenable to sociological or cultural analysis as any other component. Here again, many different kinds of sense can be made of law depending upon how “the social” is itself theorized. This course engages the theme of law and the problems of social reality by way of a three-step approach. The first part of the course presents an overview of the main lines of twentieth-century American legal thought. We begin with a study of legal formalism and the challenges posed to it by legal realism and its various successor theories. One focus of debate between formalism and its rivals is how much social realism should be brought to bear on legal analysis. Another question is: what kind of social realism should be brought to bear on the analysis of law. The second segment of the course provides a survey of some of the candidates. These include the Law and Society Movement, neo-Marxism and Critical Legal Studies. In the final segment we look at how these theoretical issues are given expression in connection with more practical contexts such as poverty law, labor law or criminal law.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Omitted 2009-10. Senior Lecturer Delaney.2013-14: Not offered
Other years: Offered in Fall 2008, Fall 2010, Fall 2012
52 Film, Myth, and the Law
(Analytic Seminar) The proliferation of law in film and on television has expanded the sphere of legal life itself. Law lives in images that today saturate our culture and have a power all their own, and the moving image provides a domain in which legal power operates independently of law’s formal institutions. This course will consider what happens when legal events are re-narrated in film and examine film’s treatment of legal officials, events, and institutions (e.g., police, lawyers, judges, trials, executions, prisons). Does film open up new possibilities of judgment, model new modes of interpretation, and provide new insights into law’s violence? We will discuss ways in which myths about law are reproduced and contested in film. Moreover, attending to the visual dimensions of law’s imagined lives, we ask whether law provides a template for film spectatorship, positioning viewers as detectives and as jurors, and whether film, in turn, sponsors a distinctive visual aesthetics of law. Among the films we may consider are Inherit the Wind, Call Northside 777, Judgment at Nuremberg, Rear Window, Silence of the Lambs, A Question of Silence, The Sweet Hereafter, Dead Man Walking, Basic Instinct, and Unforgiven. Throughout we will draw upon film theory and criticism as well as the scholarly literature on law, myth, and film.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Spring semester. Professor Sarat.2013-14: Not offered
Other years: Offered in Fall 2007, Spring 2009, Spring 2010, Spring 2011, Spring 2012
54 Neoliberalism and Legal Theory
(Research Seminar) The theory of governance known today as "neoliberalism" is most often understood as a mainly economic policy. Both its opponents and its proponents seem to agree that neoliberalism is best debated as an ensemble of practices (such as free trade, privatization, deregulation, competitiveness, social-spending cutbacks and deficit reduction) that emphasize the primacy of the free market in and for the arrangement of social and political orders. But, particularly in its initial theorizations, neoliberalism was also, perhaps even primarily, a philosophic doctrine concerning the place and function of law in and for human civilization in general. At the 1938 Walter Lippman Colloquium in Paris and then again at the inaugural 1947 meeting of the Mont Pelerin Society in Switzerland, the leading figures of what would later become known as neoliberalism criticized existing economic theories for neglecting basic questions of legal theory and argued that capitalism could not be saved from the perils of socialism and communism without a renewed understanding of, and insistence on, the rule of law. In this course, we shall take this, the "legal theoretical" origin of neoliberalism, as a point of departure for understanding neoliberalism as a whole. In the first half of the course, we shall seek to understand neoliberalism on the basis of the way it posed law as a problem for thought. In relation to what alternate theories of law did neoliberalism emerge? On what terms did neoliberals reinterpret the "classical" liberalism of Hobbes and Locke? How did certain concepts of law figure into the way that neoliberal thinkers arrived at their understandings of the basic meanings of life and labor? In the second half of the course, we shall explore the ways in which various critics of neoliberalism have sought to expose and to question the legal theories at its origin. How might renewed attention to legal theoretical problems help us today in our attempt to think and act beyond neoliberalism's constitutive limits? Our goal in all phases of the course will be to reconstruct neoliberal thought on its own terms in order to grasp better its contemporary incoherence, crisis, and dissolution. Readings will include Samir Amin, Zygmunt Bauman, Michel Foucault, Milton Friedman, Michael Hardt and Antonio Negri, David Harvey, Friedrich Hayek, Maynard Keynes, Naomi Klein, Karl Marx, Ludwig von Mises, Alexander Rustow, and Saskia Sassen.
Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Spring semester. Professor Sitze.
2013-14: Offered in Fall 2013
Other years: Offered in Spring 2010, Fall 2010, Spring 2013
56 Representing and Judging the Holocaust
(Research Seminar) This seminar will address some of the foundational questions posed by radical evil to the legal imagination. How have jurists attempted to understand the causes and logic of genocide, and the motives of its perpetrators? Is it possible to “do justice” to such extreme crimes? Is it possible to grasp the complexities of history in the context of criminal trial? What are the special challenges and responsibilities facing those who struggle to submit traumatic history to legal judgment? We will consider these questions by focusing specifically on a range of legal responses to the crimes of the Holocaust. Our examination will be broadly interdisciplinary, as we compare the efforts of jurists to master the problems of representation and judgment posed by extreme crimes with those of historians, social theorists, and artists. Readings will include original material from the Nuremberg, Eichmann, and Irving trials, and works by, among others, Hannah Arendt, Zygmunt Bauman, Christopher Browning, Primo Levi, and Art Spiegelman.
Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Omitted 2009-10. Professor Douglas.2013-14: Not offered
Other years: Offered in Spring 2008, Spring 2011
57 Property, Liberty and Law
(Research Seminar) What we call property is enormously important in establishing the nature of a legal regime. Moreover, an exploration of property offers a window on how a culture sees itself. Examining how property notions are used and modified in practice can also provide critical insights into many aspects of social history and contemporary social reality.
We will begin our discussion of property by treating it as an open-ended cluster of commonplace and more specialized notions (e.g., owner, gift, lease, estate) used to understand and shape the world. We will look at how the relation of property to such values as privacy, security, citizenship and justice has been understood in political and legal theory and how different conceptions of these relations have entered into constitutional debates. We will also study the relationship of property and the self (How might one’s relation to property enter into conceptions of self? Do we “own” ourselves? Our bodies or likenesses? Our thoughts?), property and everyday life (How are conceptions of property used to understand home, work and community?) and property and culture, (Do our conceptions of property influence understandings of cultural differences between ourselves and others? Does it make sense to claim ownership over one’s ancestors?). In sum, this course will raise questions about how property shapes our understandings of liberty, personhood, agency and power.
Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Fall semester. Senior Lecturer Delaney.2013-14: Not offered
Other years: Offered in Fall 2007, Fall 2009, Spring 2012, Spring 2013
74 Norms, Rights, and Social Justice: Feminists, Disability Rights Activists and the Poor at the Boundaries of the Law
(Offered as Political Science 74 [GP, LP] and Law, Jurisprudence, and Social Thought 74.) This seminar explores how the civil rights movement began a process of social change and identity-based activism. We evaluate the successes and failures of “excluded” groups’ efforts to use the law. We primarily focus on the recent scholarship of theorists, legal professionals, and activists to define “post-identity politics” strategies and to counteract the social processes that “normalize” persons on the basis of gender, sexuality, disability, and class. This course fulfills the requirement for an advanced seminar in Political Science.
Requisite: One introductory Political Science course or its equivalent. Limited to 15 students. Fall semester. Professor Bumiller.2013-14: Offered in Fall 2013
Other years: Offered in Fall 2007, Fall 2009, Fall 2010, Fall 2011, Fall 2012
77, 78 Senior Departmental Honors
Independent work under the guidance of a tutor assigned by the Department. Open to senior LJST majors who wish to pursue a self-defined project in reading and writing and to work under the close supervision of a faculty member.
Admission with consent of the instructor. Fall semester.2013-14: Offered in Fall 2013
Other years: Offered in Fall 2007, Fall 2008, Fall 2009, Fall 2010, Fall 2011, Fall 2012
97, 98 Special Topics
Independent Reading Courses. Reading in an area selected by the student and approved in advance by a member of the Department.
Fall semester.2013-14: Offered in Fall 2013 and Spring 2014
Other years: Offered in Fall 2007, Fall 2008, Fall 2009, Fall 2010, Fall 2011, Spring 2012, Fall 2012, Spring 2013
ENGL-54 The Linguistic Turn: Language, Literature and Philosophy (Course not offered this year.)
HIST-92 Riot and Rebellion in Colonial and Post-Colonial Africa (Course not offered this year.)
PHIL-24 Philosophy of Law (Course not offered this year.)
PHIL-38 What Is Morality About? (Course not offered this year.)
POSC-41 The American Constitution I: The Structure of Rights (Course not offered this year.)
POSC-42 The American Constitution II: Federalism, Privacy, and the "Equal Protection of the Laws" (Course not offered this year.)
PSYC-63 Psychology and the Law (Course not offered this year.)
RELI-41 Reading the Rabbis (Course not offered this year.)