Harry Potter and the Normal: The Law and Harry Potter II Reply


Normal.   One word that captures the latent dividing struggle in the Harry Potter Novels.  Harry Potter simply longs to be; wizards walking through a muggle world can’t seem to be; death eaters long to redefine what it should mean; elves and centaurs seem resolute that they will never be, though responding to that election in different ways.  If we think about the Harry Potter world (and this should not surprise us) the question of normal and how we define it (or should define it) is a central theme of character development.  But this is not the normal of adolescent teenage angst and rebellion — though certainly that is revealed.

The normal world that Rowling’s envisions is the normal in which every living being has a place, if only he accepts it.  The normal is one of choices, structure and well-defined boundaries.  Its the normal of centaurs not reducing themselves to the humiliation of humans riding upon their backs, and elves being content and happy to serve their house masters.  And most prominently, its the normal of the Statute of Secrecy and the battle to redefine normal in the Harry Potter world.  Indeed, both the death eaters and the Order of the Phoenix envision worlds that are different than the one in which the Statute of Secrecy functions.   Death eaters perceive a future world in which secrecy is no longer necessary because wizards rule through their strength and sit upon thrones built of muggles.   The order (or at least elements within the Order) see a different world too — though its a world of cooperation, integration, and peaceful co-existence.  Either way, the war in the end of the novel is not about preserving normalcy — its about redefining it.

One can’t help but notice the role that law plays in this battle to define the new normal in the novels.  Indeed, as suggested by John Gava and Jeannie Marie Paterson in their essay: ‘What Role Need Law Play in a Society with Magic’, law does not serve the needs of repairing wrongs as it does in our muggle world — there simply is no need to do with the law what one could set right immediately by magic.  But broadly, I believe law performs a greater function than Grana and Patterson suggest — it performs the exact functions we expect law to perform even in muggle society.  Namely law defines the social group or groups who are afforded legal entitlements by prescribing certain penalties for either (a) acting outside the social group intended to be protected by the entitlement; or (b) directly violating the entitlement.  In other words, law preserves the normal — or at least what the authority would define as normal.  Let me offer three tangible examples:

Example one -Serious Black.  Serious Black is convicted of murdering muggles and one wizard and then sentenced to Azkaban.  The social order at the time that Serious Black was accused of committing these crimes was one of wizard/ muggle coexistence through secrecy.  Thus, Black was accused of a crime that interfered and directly challenged the entitlements of muggles to not be killed by wizards using magic: his crime directly challenged the underlying presumption of the law — that muggles have certain rights to not be killed by wizards. (Of course we know that Serious Black really did not kill anyone, but as with muggle law, the crimes which one are accused of do not necessarily constitute the actual crimes that one is subject to).

Example two – Harry Potter and the Dementer’s Trial in Book V.   Harry Potter’s trial is clearly a farce.   The orchestrated ambush by umbrage who also sits as judge (isn’t it interesting how judges in trials in the series often turn out to be so biased that it shocks the conscious, see i.e., executioner as appeals judge for Buckbeak’s trial); and the rearranged time of the trial so as to prejudice the defendant amongst other things. But most glaring is the role that the authority of the trial serves in preserving the social group it aims to protect.  The authorities rearrange the trial time.  The authorities set the judge panel. And in this context,  Harry is ambushed largely to keep him quiet n the face of a ministry that refuses to admit that Voldemort has returned.  The law serves the preservation of the normal by sanctioning those that might upset the balance of normalcy.  In other words, Harry’s trial makes it clear that the law is intended to protect those that comply with the ends expected by the ministry of magic. Thus,because Harry refuses to keep quiet regarding Voldemort’s return (a crime he will punished for multiple times in Book V), the law becomes his adversary.

Example three — The Trial of Mary Cattermole.  The new normal is that muggle-born wizards and witches are not a protected class — much less entitled to do magic.  After Voldemort’s return and the fall of the ministry, a new law comes into effect: the Muggle-Born registration commission.  As a result, muggle born wizards and witches are deprived of property they previously acquired lawfully — namely their wands.   Like in the trials of Potter and Black, the new order established that Mary was not a part of the social group that was entitled to protection (or certain property) — therefore, she, like other muggle-borns were subject to trial, marginalization, deprivation of property, even the potential punishment of death.

It seems that law’s place in the magical worlds is exactly the same as it is in ours — defining what is deemed to be the normal and sanctioning those that fall outside.  It seems to me that this is exactly the meaning underlying Robert Cover’s classic beginning to his article Violence and the Word: “legal interpretation takes place in a field of pain and death.”  May we be mindful of the pain and death we inflict and the normal we expect to arise as we do so.

Image above (From Harry Potter and the Deathly Hallows Part I — Snatchers bringing in Muggleborns to the Ministry.  

Please post your comments to below.

Setting the Table: Updated Links, Calls for Proposals and Law, Culture and Humanities Reply


Nullem Tempus Currit Contra Regem and the King’s Two Bodies II: Time and Temporal Reflections 1


The legal fiction of the King’s Two Bodies had far reaching consequences — including creation of legal doctrines that are still honored today in various forms (like adverse possession against the state).   Importantly, the development of the king’s temporal exclusion is seen most clearly through the lens of property claims on inalienable property held by the crown.  Ernst Kantorovicz describes the emergence of prescription claims in England and their connection to the inalienability of kingly lands:

The English royal judges of the twelfth century most certainly were familiar the legal concept of prescription, which had capital importance in canon law and to which Graetian in his decretum devoted a whole section on which naturally the Decretists commented over and over again.  But the English judges apparently saw no need in themselves to reflect upon the idea of prescription, since they seem to not mention it at all.  This indifference towards prescription changed in the following century: Bracton dealt repeatedly, and in a scholarly manner, with the principle Longa Possessio Parit its, “long possession creates right.”… By [Bracton’s] time reflections upon claims to prescriptive possession had become momentous to the royal judges.  In fact, prescription attained actuality within the public sphere once a certain complex of royal lands and rights had been set aside as “inalienable.”  In that moment, prescription and the prescriptive effects of time acquired considerable importance because they clashed, or might clash, with the notion of inalienability.  That is to say, the royal judges frequently faced situations in which they had to decide not only whether or not a private person could legally claim possession by prescription, but also to what extent such claims would affect royal rights and lands which were labeled “inalienable.”

It is this combination of the declaration of lands as inalienable, with the possibility that such declaration could be undone by the inconvenient reality of private long-term possessors, that forced the royal jurists to consider the nature of the king when claims of time were levied against him.  But just as the king’s duality allowed him the temporal supremacy necessary to defeat prescriptive claims against the inalienable lands (lands that would be defined further under Henry II, and which in oath the King swore to protect, preserve and recover); the king’s duality also recognized that the king was subject to prescription whenever “res non its sacra” or things less holy were concerned — things like tolls, manorial jurisdiction which fell outside the ancient demesne.”  Thus, the King’s two bodies was truly dualistic — completely perfect when it came to matters of the king’s realm, and yet completely subservient when it came to matters which were outside the king’s realm.  Kantorowicz again summarizes this nicely:

[I]n some respects the king was under the law of prescription; he was a “temporal being,” strictly “within time,” and subjected, like any ordinary human being, to the effects of time.  In other respects, however, that is, with regard to things quasi sacrae or public, he was unaffected by time and its prescriptive power; like “holy sprites and angels,” he was beyond time and therewith perpetual or sempiternal.  The king, as least with regard to time, had obviously “two natures” — one which was temporal and by which he conformed with the conditions of other men, and another which was perpetual and by which he outlasted and defeated all other beings.

Nullem Tempus Currit Contra Regem and The King’s Two Bodies: Foundations of the Duality 3


Today I wrap up teaching one of my favorite subjects in Property (ok I like them all) — Adverse Possession.  One of the topics we cover is adverse possession claims against the state.   Traditionally, Adverse Possession claims against the state did not stand.  This tradition in the common law stretches to the concept of the King’s duality, the King as Corporation as F.W. Maitland would refer to it, or simply The King’s Two Bodies as eloquently stated by Ernst Kantorowicz.   As Justices Southcoate and Harper in the case Willion v. Berkley said (as reported in Blackstone):

The king has two capacities, for he has two bodies, the one whereof is a Body natural, consisting of natural members as every other man has, and in this he is subject to Passions and Death as other Men are; the other is a body politic , and the members thereof are his subjects, and he and his subjects together compose the corporation as Southcoate said, and he is incorporated with them, and they with him, and he is the head and they are the members, and he has the sole government of them; and this body is not subject to Passions as the other is, nor to death, for as to this Body, the King never dies, and his natural death is not called in our law, the Death of the King, but the demise of the King, not signifying by the word demise that the body politic of the King is dead, but that there is a separation of the two bodies, and that the Body politic is transferred and conveyed over from the Body Natural now dead, or now removed from Dignity royal, to another Body natural.   So that is signifies a removal of the Body politic of the King of this realm from one Body natural to another.

But perhaps the most famous iteration of the King’s two bodies comes from a case involving Edward VI’s lease of certain lands in the Duchy of Lancaster.   The land in question was considered to be the private lands of the Lancastrian Kings, not the property of the crown.  So when the lease that Edward the VI executed during his Regal term was called into question during the reign of Elizabeth I, the Crown lawyers all agreed upon the following:

that by the common law, no act which the King does as King, shall be defeated by his Nonage. For the King has in him two bodies, viz a Body natural and a Body Politic. His Body natural (if it be considered in itself) is a body mortal, subject to all Infirmities that come by nature or Accident to the Imbecility of Infancy or old Age, and to the like Defects that happen to the natural Bodies of other people.  But his Body Politic is a body that cannot be seen or handled, consisting of Policy and Government, and constitutes for the Direction of the People and the Management of the public weal. And this body is utterly void of infancy, and old age, and other natural Defects and imbecilities, which the Body Natural is subject to, and for this Cause what the King does in his Body Politic cannot be invalidated or frustrated by any disability in his natural body.

This notion of the King’s two bodies is not merely an aberration of the law — rather it was a well known complication of living with a king.  As a matter of fact, the notion of the king’s two bodies figures quite prominently in Shakespeare’s Richard II and are referenced in others. For example in Henry V, King Henry V says:

Twin-born with greatness subject to the breath, Of every fool, whose sense no more can feel But his own wringing.  What infinite heart’s ease Must kings neglect that private men enjoy! What kind of god are thou, that suffer’st  more of Mortal griefs than do they worshippers?

In Richard II, the King’s dilemma is the mortality of the body against the feuding and disquiet of his subjects.   And after seeing a long procession of “tortured kings” Richard proclaims:

For God’s sake let us sit upon the ground, And tell sad stories of the death of Kings – How some have been deposed, some slain in war, Some haunted by ghosts they have deposed, some poisoned by their wives, some sleeping killed; All murdered! for within the hollow crown that rounds the mortal temples of a king, Keeps death his Court, and there the antic sits scoffing his state and grinning at his pomp, Allowing him a breath, a little scene, to monarchize, be feared, and kill with looks, Infusing him with self and vain conceit, As if the flesh which walls our life, Were brass impregnable; and humored thus, Comes at last , and with a little pin Bores through his castle wall, and farewell King!

As noted before, this fictionalized view of the King (the persona gemini) had far reaching impacts, including the law of adverse possession.  The next post will consider the King’s two bodies impact on Adverse Possession more directly.

Update:  Read part II: Nullem Tempus Currit Contra Regem and the King’s Two Bodies: Time and Temporal Reflections Here

The Law and Harry Potter: Where is the Remorse? Reply


I was late to the party. The Harry Potter Party that is. Finally, over the past month and a half, I succumbed and read the Harry Potter novels with the goal of finishing before my Birthday on Thursday. I finished them today — so Happy early birthday to me! But that was not the only early birthday present I received — I found in my mailbox a copy of Thomas and Snyder’s The Law and Harry Potter.  Just like it was an eighth installment of the book, I tore it open, looking to see if my entrée’ into the wizarding world was similar to others.  While the essays I read were quite good  (I still have several more to go) one overwhelming question popped in my head  “where is remorse.”  Indeed, scaling the chapter of contents and the essays on criminal behavior, very little is said about Rowling’streatment of this central theme.  In fact, its not until we get to Darby Dickerson’s essay titled “Professor Dumbledore’s Wisdom and Advice” that we see remorse dealt with.  So why doesn’t a book dealing with Harry Potter and the Law deal more directly with remorse? Maybe that in and of itself suggests the answer — that the law is as uncomfortable with the idea of remorse as, well, Voldemort is.   For example, what happens when a lawyer, doctor or other professional says “I messed up?”   How do companies, universities and governments apologize?  How are apologies in the criminal context treated? As mere evidence of reform, no more powerful or less powerful than other factors, like can the person conform to other important social norms — making up one’s bunk, not fighting with inmates, etc… or the need to provide for retribution.  Perhaps the editors of the volume realized this fact — that often, the law and remorse have little to do with each other.   Perhaps the authors simply had nothing to say.

This criticism became most clear when reading Andrew Morriss’ essay Moral Choice, Wizardry Law, and Liberty: A classical liberal Reading of the role of law in the Harry Potter Series.  (I completely agree with Morriss’ assessment by the way that Rowling’s posits a calibration model inviting readers to evaluate themselves against the text).  But what is it that we should be calibrating?   I think Rowlings theme (since the third book — and likely before) is the role that remorse plays in shaping humans as humans, and humans as a part of a greater social group. As a proponent of the “progressive view of law” that asks what law should look like as a reflection of human advancement,  I think we should consider greatly the role that remorse plays on the human condition, and how the law should account for it.

Remorse as Regenerative — One broad theme we find in the Harry Potter saga is the regenerative effect of remorse — that remorse renders the characters as more human (and those that refuse to engage it are less so).  For example, Ronald and Percy Weasley both seem less than human during parts of the novels (like their responses are not a result of their agency, but rather are outside of their control).  Notably, the human character traits that Rowling emphasizes as most important  — family and friendship — are challenged by whether Percy or Ron will seek to repair damage relationships.  Percy’s haughtiness calls into question his position within the rest of the Weasley clan.  After all, is Percy a blood traitor like the rest of the Weasley family or is he different, and therefore should not belong.    For Ron, his betrayal of friendship causes the reader to question Ronald Weasley’s reason for beginning the quest.  Indeed, we have much to worry about leading up to the seventh installment when Ron’s connection to Potter is concerned — a constant internal battle between individual heroics and choices to continue a quest which seems more likely to lead to oblivion rather than exultation.  But through their remorse, both Percy and Ron are restored — Percy to his name and family, and Ron to his self-less role of friend and companion.    Other remorseful characters whose humanness becomes more focused because of their remorse is Lupin, Dudley Dursley, Albus Dumbledore, Regulus Black, Aberforth Dumbledore, Kreacher, and Snape.

But Rowling’s most visual depiction of remorse’s regeneration is when remorse is lacking.   For example, Tom Riddle shows no capacity for remorse, and therefore begins to lose his humanness (we see the humanness slipping from Tom thanks to Dumbledore’s memories in Book VI and realize that the form that we come to recognize as Voldemort has very little human left in — even in appearance, his humanity has slipped away.  When we encounter the fully formed Voldermort from Book IV onward, he is far less human, either by appearance, or action.   In Rowling’s world, its the lack of remorse that renders Tom Riddle as Voldemort and Voldemort as splintered and doomed.  Voldemort’s lack of remorse, begins with his perception that he he superior, with nothing to be remorseful of.  And the things that he does remorse over, are things he can chalk up to other people’s shortcomings — his family, his followers, or his advisors.

Misplaced Remorse — Rowling identifies two forms of remorse that seem to be as harmful as not being remorseful at all.   The first is automated remorse, or remorse that is so covered by one’s transgressions, it simply cannot reveal itself in any conscious manner.  Sometimes, then, remorse becomes the catalyst for betraying our own self-interests.  It may actually be so latent that the holder does not necessarily realize that remorse is working to define the individual’s behavior.  For example, remorse provides the fodder for Peter Petegrew’s betrayal of his own self-interest in the Malfoy manor basement (even if that remorse is automatic, rather than contemplated, as Dumbledore suggests it may be). Automated remorse deprives the holder of the pain that works upon one’s soul.  It therefore, only leads to the destruction of the person.  Interestingly, it is the least human part of Peter Pettegrew (his hand) which demonstrates his most human quality (his mortality).   Perhaps this is the most visible depiction of the reality that remorse holds in the law.  One might say that the very least a person seeking parol must do is “say your sorry” to his victim.  Perhaps the law understands how difficult it is to convert automated remorse into a regenerated human.  Though, perhaps there is even a virtue to being able to say your sorry — even if you don’t mean it.  As Ira Glass says at the beginning of the This American Life episode “Mistakes were made,” sometimes, the fact that people say their sorry is enough to let us know they at least respect the social code of apology, even if they are too hardened to believe the apology themselves.

The second category of misplaced remorse in Rowling’s work could be misdirected remorse (or remorse for the wrong things).  For example, at the end of the seventh novel, I am not sure anyone is fully convinced that the Malfoy’s are remorseful for anything more than choosing poorly.    Likewise, we learn that Aunt Petunia was merely sorry she was turned away.  These instances tend to demonstrate how inhuman, humans are without proper remorse.   Said slightly differently, the Malfoy family and Petunia Dursley are like Voldemort — they are human in form, but lack the central defining feature of regret and the ability to come to terms with one’s own inadequacies.  For these characters, remorse is to be applied to a failure of others, not to their own short comings.  They conveniently omit the reality that humans are at their core, broken and fallible.  Perhaps this remorse is most dangerous — the remorse that regrets actions not because they have consequences for others, but because they have consequences for themselves.

I invite your comments to weigh in.  Should the law consider remorse and if so how?

Nietzsche on the Writer or Artist 2


“[O]ne does well to separate the artist from his work, which should be taken more seriously than he is.  Ultimately, he is no more than its pre-condition, the womb, the soil, possibly the manure and midden upon which, from which it grows—and thus, in most cases, something which must be forgotten before the work itself can be enjoyed.  Insight into the origin of a work is a matter for physiologists and vivisectors of the spirit: but never one for the aesthetic men, the artists!”

—Friedrich Nietzsche, On the Genealogy of Morals

It’s easy, reading Nietzsche, to fall into anachronism: to consider his comments about divorcing the author from the text as indicative of something akin to the New Criticism, a hermeneutic that isolated texts from externalities such as authorial intent and that treated the aesthetic object as self-contained and autonomous.  That is not at all what Nietzsche meant.  For Nietzsche, the text, or the aesthetic object, is not isolated from externalities, but merely removed from and, in a way, prior to the author; the text is plugged into externalities, shaped and molded by them, so much so that the author is but the incidental medium through which the text speaks.  The text, in other words, has its own authority apart from its creator, who, through the will, channels social and cultural energies to generate aesthetic output.  The writer or artist is “no more than its pre-condition, the womb, the soil, possibly the manure and midden upon which, from which it grows.”  Discourse impregnates the writer or artist, who, thus implanted with ideas and alphabets, carries vocabularies through their prenatal stages and into a rebirth—or new expression—in the form of art.  

According to Nietzsche, the objects and ambitions of the writer or artist as a thinking actor are not, or ought not to be, overstated because the writer or artist is the ultimate example of the effect of action and will.  For the writer or artist is not independent from discourse and ethos—indeed, he is constituted by them, and so, by extension, is his textual production: the aesthetic object.  We may forget the author; if anything, he or she only impedes the pleasure we derive from texts and aesthetics.  The author is “something which must be forgotten before the work itself can be enjoyed.”

Why does Nietzsche posit this view?  What is he after?  Among other things, he’s criticizing the writers and artists who would have us believe that they are above and beyond others, somehow able to divine the real and the eternal.  These writers and artists treat the ascetic ideal as part and parcel of aestheticism—i.e., they conflate the ascetic with the aesthetic to maximize their feeling of power.  Although writers and artists promote themselves in this way, as if they had privileged access to universal yet remote knowledge, they realize, Nietzsche says, that on some level their ascetic ideal is an unreality or falsity—what Baudrillard might have called a hyperreality or simulacrum.  The ascetic ideal is escapism: a fleeting respite from the reality of the will to power, the impulse that the writer or artist seeks to evade, suppress, and disguise.  The conflict of the writer or artist lies in the desire to escape both to and from asceticism; for the intoxicating powers of the ascetic ideal are sobered by the boredom and angst of knowing that the ideal is but therapy and relief.  That realization means that therapy and relief are themselves, paradoxically, the grounds for further escapism—for further therapy and relief. 

All of this suggests that ascetic ideals do not signify.  As Nietzsche says, ascetic ideals “mean absolutely nothing!”  What is so remarkable about these ideals is that they are contingent and contextual such that they amount to nothing and everything at once, and that we will, despite ourselves, and despite our longing for meaning, chase after nothing rather than not chase at all.  That, alas, is why the artist lacks independence in this world.  That, alas, is why no artist is disinterested.   

Allen Mendenhall

Osnabrück Update: Law, Literature, and the Nation Reply


The following is cross-posted from Legal Lacuna.

Law, Literature, and the Cultural Presence of the Law,” a workshop convened by Claudia Lieb and Brook Thomas as part of the Summer School, has been examining the many possible relationships between law and literature by focusing on “the nation” as a site of disciplinary convergence.

The workshop’s well-structured reading list began by tracing the history of citizenship and the nation-state, and moved on to literary theory treating law and the nation, including work by Guyora Binder/Robert Weisberg and Homi Bhabha. As a “law and literature” case study, the workshop then examined E.E. Hale’s Civil War-era short story, “The Man Without a Country” (1863) in view of the historical controversy that inspired it: Clement Vallandingham, a Union politician, was arrested and punished for speaking out against the Civil War. The Vallandingham case sparked a “reply” by President Abraham Lincoln arguing that the government may, during times of rebellion, suspend habeas corpus, prohibit anti-war speech, and try protesters in military court. The case raised constitutional issues that have resurfaced several times in U.S. history, most recently, of course, during the wars in Iraq and Afghanistan.

Hale’s patriotic short story should interest those who study nationalism and citizenship. It concerns a young American man who speaks out against his country and is sentenced to spend the rest of his life never seeing or hearing another word about the United States. Over time, the man (named Nolan, a play on “no land”) feels the loss of his country deeply and by the end of his life is a fully reformed, though still exiled, patriot. Although the story is fictitious, Thomas notes, some readers took it to be true and its nationalistic message resonated widely; it was a staple of American high school curricula until the 1970s and has experienced something of a revival since 9/11.

Law, Language & Culture Reading Lists from Osnabrück Summer School Reply


The following is cross-posted from Legal Lacuna.

Many thanks to Director Peter Schneck and the faculty of the Summer School for giving permission to share these valuable reading lists.

The reading list for Workshop 1, entitled “The Complex Relation between Culture and Law: Methods, Concepts, Approaches,” was posted earlier.

Detailed workshop descriptions can be found here (scroll down for links).

Workshop 2: From Human Rights to Civil Rights to Cultural Rights

Convened by: Helle Porsdam & Cindy Holder

  • Anaya, S. James. Indigenous Peoples in International Law. 2nd ed. Oxford: Oxford UP, 2004. Read p. 129-48.
  • Jones, Peter. “Human Rights, Group Rights and Peoples’ Rights.” Human Rights Quarterly 21.1 (1999): 80-107.
  • Porsdam, Helle. “Divergent Transatlantic Views on Human Rights: Economic, Social, and Cultural Rights.” From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Cheltenham: Edward Elgar, 2009. Read p. 92-113.
  • —. “Divergent Transatlantic Views on Human Rights: The Role of International Law.” From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Cheltenham: Edward Elgar, 2009. Read p. 114-35.
  • —. “Transatlantic dialogues on copyright: cultural rights and access to knowledge From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Cheltenham: Edward Elgar, 2009. Read p. 136-64.
  • Raz, Joseph. “Rights and Individual Well-being.” Ratio Juris 5.2 (1992): 127-42.
  • Reidel, Laura. “What are Cultural Rights: Protecting Groups with Individual Rights.” Journal of Human Rights 9 (2010): 65-80.
  • Supreme Court of Canada , R v Van der Peet [1996] 2 S.C.R. 507

Workshop 3: Law, Literature and the Cultural Presence of the Law

Convened by: Claudia Lieb, Brook Thomas

Session 1:

  • Pocock, J. G. A. “The Ideal of Citizenship Since Classical Times.” Theorizing Cituizenship. Ed. Ronald Beiner. New York: State U of NY P, 1995. 29-52.
  • Bosniak, Linda. “Citizenship.” The Oxford Handbook of Legal Studies. Ed. Peter Cane, Mark Tushnet. Oxford: Oxford UP, 2003. 183-201.
  • Habermas, Jürgen. “Citizenship and National Identity: Some Reflections on the Future of Europe.” Theorizing Citizenship. Ed. Ronald Beiner. New York: State University of NY P, 1995. 255-81.
  • Bader, Veit. “Citizenship and Exclusion.” New York: St. Martin’s P, 1997. Selection from “Fairly Open Borders.”
  • Thomas, Brook. “(The) Nation-State Matters: Comparing Multiculturalism(s) in an Age of Globalization.” Globalization and the Humanities. Ed. David Li. Hong Kong: Hong Kong UP, 2004.135-57.

Session 2: 

  • Bhabha, Homi K., ed. Nation and Narration, London/New York: Routledge, 1990. Ch. 1 (p. 1-7), Ch. 2 (p. 8-22), Ch. 8 (p. 138-53), Ch. 16 (p. 291-322).
  • Binder, Guyana, and Robert Weisberg. Literary Criticism of Law. Princeton: Princeton UP, 2000. Read Ch. 3: “Conclusion: Performing the Law and Narrating the Nation,” p. 287-91; Ch. 6 “Introduction” to “6.1 Theoretical Sources,” p. 462-79.
  • Jhering, Rudolph von. Law as a Means to an End. Trans. Isaac Husik. Boston: Boston Book Company, 1913. Read p. 59-68.

Session 3:

  • Hale, E. E.  “The Man without a Country.” Atlantic Monthly 12.74 (1863): 665-79.
  • “Mr. Lincoln’s Reply.” Union Pamphlets of the Civil War, 1861-1865. Ed. Frank Freidel. Cambridge: Belknap P. 1967. 742-51.
  • Thomas, Brook. “The Case of Clement L. Vallandigham.” Associations/Dissociations: The Social Instinct and Its Consequences: Humanities Core Course Reader. Boston: Pearson, 2004. 50-54.

Workshop 4: Legal and Policy Approaches to Culture as Heritage, Property, and Resource

Convened by: Rosemary Coombe, Fiona Macmillan

Session 1: Law as /and Culture

  • Coombe, Rosemary J. “Contingent Articulations.” Law in the Domains of Culture. Eds. A. Sarat and T. Kearns. Ann Arbor: University of Michigan Press, 1998. 21-64. Read 21-45 and 52-64.
  • Mertz, Elizabeth. “Introduction: Legal Loci and Places in the Heart: Community and Identity in Sociolegal Studies.” Law & Society Review 28.5 (1994): 971-992.
  • Porsdam, Helle.  “On European Narratives of Human Rights and their Possible Implications for Copyright.” New Directions in Copyright Law: Volume 6. Ed. F. Macmillan. Cheltenham: Edward Elgar, 2007. 335-358.
  • Robbins, Bruce and Elsa Stamatopolou. “Reflections on Culture and Cultural Rights.” South Atlantic Quarterly 103 (2004): 419-434.

Session 2: Approaching Human Rights Culturally

  • Cowan, Jane and Marie Benedicte Dembour. “Introduction.” Culture and Rights: Anthropological Perspectives. Eds. Jane Cowan, Marie Benedicte Dembour and Richard Wilson. Cambridge: Cambridge University Press, 2001. 1-26.
  • Engle Merry, Sally. “Changing Rights, Changing Culture.” Culture and Rights: Anthropological Perspectives. Eds. Jane Cowan, Marie Benedicte Dembour and Richard Wilson. Cambridge: Cambridge University Press, 2001. 31-55.
  • Goodale, Mark. “Locating Rights, envisioning Law between the Global and the Local.” The Practice of Human Rights. Eds. Mark Goodale and Sally Engle Merry. Cambridge: Cambridge University Press, 2007. 1-38. Read1-27 ONLY.
  • Speed, Shannon. “Introduction: Human Rights and Chiapas in the Neoliberal Era.” Rights in Rebellion: Indigenous Struggle & Human Rights in Chiapas. Stanford: Stanford University Press, 2008. 16-37.

Session 3: Intellectual Property between Property and Personhood

  • Macmillan Fiona. “Human rights, cultural property and intellectual property.” Intellectual Property and Traditional Cultural Expressions: Legal Protection in a Digital Environment. Eds. C. Graber & M. Burri-Nenova. Cheltenham: Edward Elgar, 2008. 50-63.
  • Carpenter, Kristen A. Sonia K. Katyal, and Angela R. Riley. “In Defense of Property. ” Yale Law Journal (2009): 100-157.
  • Coombe, Rosemary J. “Possessing Culture’: Locating Community Subjects & their Properties.” Ownership and Appropriation. Eds. Mark Busse and Veronica Strang. Oxford: Berg Publishers, 2011.

Session 4: Traditional Knowledge as Property and as Culture

  • Coombe, Rosemary J. “Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity.” Indiana Journal of Global Legal Studies 6 (1998): 59-115. Edited. Read pages 1 and 7-18.
  • Teubner, Gunther and Andeas Fischer-Lescano. “Cannibalizing Epistemes: Will Modern Law Protect Traditional Cultural Expressions?” Intellectual Property and Traditional Cultural Expressions: Legal Protection in a Digital Environment. Eds. C. Graber & M. Burri-Nenova. Cheltenham: Edward Elgar, 2008. 11-30.
  • Zent, Stan Jord and Eglee L. Zent. “On BiocuItural Diversity from a Venezuelan Perspective: Tracing the Interrelationships among Biodiversity, Culture Change and Legal Reforms.” Biodiversity and the Law: Intellectual Property,Biotechnology and Traditional Knowledge. Ed. Charles L. MacManus. London: Earthscan, 2007. 91-114.

Session 5: Cultural Heritage and Cultural Rights

  • Brown, Michael F. “Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property.” International Journal of Cultural Property 12 (2005): 40-61.
  • Coombe, Rosemary J. “The Expanding Purview of Cultural Properties and their Politics.” Annual Review of Law and Social Science 5.18 (2009). 1-18.
  • Silverman, Helaine and D. Fairchild Ruggles. “Cultural Heritage and Human Rights.” Cultural Heritage and Human Rights. Eds. H. Silverman and D. F. Ruggles. Berlin: Springer, 2007.
  • Smith, Laurajane. “Empty Gestures? Heritage and the Politics of Recognition.” Cultural Heritage and Human Rights. Eds. H. Silverman and D. F. Ruggles Berlin: Springer, 2007.

Session 6: Revisiting the Public Domain

  • Boyle, James. “Why Intellectual Property” and ”The Second Enclosure Movement.” The Public Domain: Enclosing the Mind. Ed. James Boyle. New Haven: Yale University Press, 2008. 1-16, 42-53.
  • Hemungs Wirten, Eva. “Don’t Fence me In: Travels on the Public Domain.” New Directions In Copyright Law/, Volume 6. Ed. Fiona Macmillan. Cheltenham: Edward Elgar. 2006. 112-121.
  • Hardison, Preston. “Indigenous Peoples and the Commons.” November 2006. Available for online download: approximately 7 pgs.
  • Macmillan, Fiona. “Altering the Contours of the Public Domain.” Intellectual Property: the Many Faces of the Public Domain. Eds. H. MacQueen & C Waelde. Cheltenham: Edward Elgar, 2007. 98-117.
  • Bowrey, Kathy and Anderson, Jane. “The Politics of Global Information Sharing: Whose Cultural Agendas are Being Advanced?” Social and Legal Studies (2010): 480-504.

Video Games & Literature 2


At The Faculty Lounge, Professor John Kang is, rightly I think, disturbed by “Justice Scalia’s suggestion [in Brown, et al v. Entertainment Merchants Association] for the Court that these vile video games are like. . . literature.”  Kang responds to this analogy as follows:

“What?  Maybe I’m missing something here but that can’t be an analogous description for the violent games prohibited to minors by California.  In these games, you—the player—are besieged by people trying to kill you and thus you have to kill them before they do you.  You thus don’t have time to ‘identify with the characters’ and ‘judge them and quarrel with them’ or ‘experience their joys and sufferings as the reader’s own.’  The enterprise of the game, made unequivocally clear before you even have thought about purchasing it, is that you either kill or are killed. 

And the action is relentless and heart-pounding.  For you are not reading about someone else killing enemies, raping women, and shooting up a mall.  In the video game, you are killing your enemies, raping women, and shooting up a mall, or risk the danger that you will be targeted.  And there is no time to reflect on why you’re doing these things other than to stay alive and indulge your most atavistic impulses.   

There is no time to think, reflect, deliberate, and, most certainly, there is no time to ‘judge the characters and quarrel with them.’  In short, when you are busy killing people who are trying kill you, you don’t do those conventional things you do for literature.    

Scalia points to violent scenes in Homer, Dante, the Lord of the Flies; violence has been part of our best literature, he insists.  But these works do invite the reader to do those things that Posner recognizes about great literature:  identify with the characters, invite him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. 

The violent video games don’t [do] any of these things.”

As Kang notes, others things might be said about these games (or the analogy for that matter), as well as the constitutionality of the California law, but the analogy is indeed troubling for at least the reasons he identifies.

Image found here.