Osnabrück Summer School on Law, Language & Culture: Methodology Reading List & Keynote Talk 1


The following is cross-posted from Legal Lacuna.

Greetings from Osnabrück, Germany, where I am attending the International Summer School on the Cultural Study of the Law, this year themed “Correlations: Law, Language and Culture.” The program is an annual, two-week series of workshops for graduate students and new scholars, taught by faculty from various disciplines. I am grateful to Professors Peter Schneck and Sabine Meyer (and their staff) for organizing the Summer School, as well as to DAAD, Osnabrück University, and the other organizations that fund the program.

The opening workshop took place over two days and concerned methodological problems in interdisciplinary study of law, language, and culture. Workshop convenors Kay Schaffer and Martin Zeilinger compiled this reading list for participants (shared with permission):

  • Brown, Wendy. “‘The Most We Can Hope For’: Human Rights and the Politics of Fatalism.” South Atlantic Quarterly 103.2/3 (2004): 451-63.
  • —. “Neo-Liberalism and the End of Liberal Democracy.” Theory and Event 7.1(2003): n. pag.
  • Coombe, Rosemary J. “Contingent Articulations.” Law in the Domains of Culture.” Ed. Austin Sarat, Thomas R. Kearns. Ann Arbor: U of Michigan P, 1998. 21-64.
  • Holder, Cindy. “Culture as an Activity and Human Right: An Important Advance for Indigenous Peoples and International Law.” Alternatives 33 (2008): 7-28.
  • Kymlicka, Will. Multicultural Citizenship. Oxford: Oxford UP, 1995. Read Chapter 3: Individual Rights and Collective Rights; p. 34-48 and Chapter 5: Freedom and Culture; 84-101.
  • Mezey, Naomi. “Law as Culture.” Cultural Analysis, Cultural Studies, and the Law: Moving beyond Legal Realism. Ed. Austin Sarat, Jonathan Simon. Durham: Duke UP, 2003. 37-72.
  • Olson, Greta. “De-Americanizing Law and Literature Narratives: Opening Up the Story.” Law and Literature 22.1 (2010): 338-64.
  • Porsdam, Helle. From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Northampton, MA: Edward Elgar, 2009. Read Chapter 8: Transatlantic dialogues on ‘law and literature’: from ‘law and literature’ to ‘law and humanities’; p. 165-81.
  • Schaffer, Kay, and Sidonie Smith. Human Rights and Narrated Lives: The Ethics of Recognition. Basingstoke: Palgrave, 2004. Read p. 35-53; 123-52.
  • Thomas, Brook. “Reflections on the Law and Literature Revival.” Critical Inquiry 17.3 (1991): 510-39.

Much can be (and was) said about these readings, but I will just note that the Olson and Thomas pieces help establish a tentative genealogy of “law and literature” scholarship in its many forms. Olson, for instance, roughly distinguishes scholarship produced in the U.S., the U.K., and continental Europe, which arise from differing legal systems and intellectual lineages and, therefore, feature different methods and concerns. While any genealogy is inevitably incomplete and to some extent arbitrary (and Olson herself warns against the intellectual traps labels can produce), the lines drawn by Olson are nevertheless useful to those seeking to situate their own “law and culture” studies within the diverse international body of scholarship that exists.

Last night, the Summer School had its “official” opening, as participants and faculty were ceremoniously welcomed by the mayor of Osnabrück in City Hall, in the room where one part of the Peace of Westphalia was signed.

Afterwards, Kay Schaffer gave a keynote talk revisiting her 2004 book Human Rights and Narrated Lives: The Ethics of Recognition (co-authored with Sidonie Smith) in light of new historical and scholarly developments. The book concerns the role of storytelling in human rights, paying particular attention to the global publishing, circulation, and reception of personal narratives of violation. One chapter from her book examines the stories of so-called “comfort women” abducted and held as sex slaves by the Japanese during World War II. While the ascendancy of the global human rights regime in the 1990s helped give these women a framework within which to tell their stories and pursue some measure of justice (however limited), the circuits within which such stories are told is also problematic. Among other things, Schaffer argues, they repress individual stories in favor of a sympathetic “ur-narrative” and they never escape prevailing social hierarchies (the “first” comfort woman the world paid attention to was actually European, not Asian).

The main workshop to which I am assigned will begin Monday and concerns the relationship between law, literature, and national formation. More to come next week on that.

Call for papers: Law and literature conference focused on justice and Amartya Sen Reply


Mark D. White

Sen_idea_of_justice From the Law & Humanities blog (and Mai-Linh Hong’s Twitter feed) comes this pre-announcement which should be of interest to our readers (especially the followers of Amartya Sen):

Save the Date/Call For Papers

Third Biennial Literature and Law Conference

TENTATIVE DATE March 30, 2012 (Friday). Please check conference website for confirmation of final conference date—this date will be posted in mid-September.

Conference Location: John Jay College of Criminal Justice (CUNY) (59th Street and 10th Avenue). The conference will take place on the newly expanded John Jay campus, near Lincoln Center in Manhattan. The facilities include a brand new, state of the art conference center.

Conference Organizer and Contact Person: Andrew Majeske, ajmajeske@gmail.com

Theme: The Idea of Justice

This conference aims to bring scholars of literature and law into an interdisciplinary setting to share the fruits of their research and scholarship. Generally this full day conference consists of between 8 and 10 paper panels and roundtables, two talks by prominent speakers, and a post-conference reception. The conference fee will be $75, which will be payable by credit card through a link on the conference website.

Conference Speakers

Amartya Sen, Keynote Speaker: The conference’s keynote speaker is Amartya Sen, winner of the 1998 Nobel Prize in Economics, the Thomas W. Lamont University Professor and Professor of Economics and Philosophy at Harvard University and, until recently, the Master of Trinity College, Cambridge. He has served as President of the Econometric Society, the Indian Economic Association, the American Economic Association and the International Economic Association. He was formerly Honorary President of OXFAM and is now its Honorary Advisor. Of particular interest to this conference is Professor Sen’s celebrated 2009 book, The Idea of Justice. His other books, which have been translated into more than thirty languages, include Identity and Violence: The Illusion of Destiny (2006), The Argumentative Indian (2005), Rationality and Freedom (2002), Development as Freedom (1999), Inequality Reexamined (1992), The Standard of Living (1987), On Ethics and Economics (1987), Resources, Values and Development (1984), Choice, Welfare and Measurement (1982), Poverty and Famines (1981), and On Economic Inequality (1973, 1997) . His research has ranged over a number of fields in economics, philosophy, and decision theory, including social choice theory, welfare economics, theory of measurement, development economics, public health, gender studies, moral and political philosophy, and the economics of peace and war. 

George Anastaplo, Feaured Speaker: The conference’s featured speaker is Professor George Anastaplo from Loyola University School of Law in Chicago, whose life and career been devoted to the idea of justice, both in theory and practice. Professor Anastaplo is the author of more than 15 books, and innumerable articles, including The Constitutionalist: Notes on the First Amendment (1971, 2005), But Not Philosophy: Seven Introductions to Non-Western Thought (2002), The Thinker as Artist: From Homer to Plato & Aristotle (1997), The American Moralist: On Law, Ethics and Government (1992), The Constitution of 1787: A Commentary (1989), The Artist As Thinker: From Shakespeare to Joyce (1983) and Human Being and Citizen: Essays on Virtue, Freedom, and the Common Good (1975). Professor Anastaplo, during his Illinois Bar interview in 1950, took a principled stand against McCarthy era questions asking about his political affiliations, and whether he believed in a right of revolution—he cited the Declaration of Independence to support his view that he and all Americans believe or should believe in such a right. The committee interviewing him was not pleased with his responses, and as a consequence, he has never been admitted to the Bar. Supreme Court Justice Hugo Black, in his dissent in Professor Anastaplo’s case seeking admission to the Illinois Bar (In Re Anastaplo 1961—which Anastaplo lost 5-4), vigorously defended Anastaplo’s position on first amendment grounds and asserted, among other things, that “we must not be afraid to be free”—Justice Black arranged for this quote, and others from his dissent, to be read at his funeral.

Call For Papers and Panels: We invite proposals for papers and panels that address topics that relate the humanities & arts (especially literary texts (broadly conceived)), to this year’s conference theme, the “idea of justice.” Of particular interest are papers and panels that in addition engage aspects of Professor Sen’s book, The Idea of Justice, or that attempt to integrate the theory with the practice of justice, and/or that engage and compare differing notions and perspectives of justice.

CFP Deadline: Please submit abstracts (250 words or less) to Andrew Majeske, ajmajeske@gmail.com, by Friday, January 13, 2012.

Conference Website: More information will be available in September 2011 at http://litandlawjjay.blogspot.com

(This post originally appeared at Economics and Ethics.)

Musings on Utopia: Historical & Philosophical Reply


We conclude our introduction to utopian thought and imagination with a small sample of historical and philosophical musings on utopia. In sum, I think they well capture the essence—the necessity and value—of the utopian enterprise. I’ve appended a list for references and further reading should you be inspired by these snippets and the general argument outlined in the previous post. This should further help us appreciate the series of posts on the notion of “general emancipation” in the work of Rudolf Bahro (at ReligiousLeftLaw here, here, and here), which I hope to continue anon. In particular, we’ll examine Bahro’s transition, so to speak, “from red to green” (the title of a book of interviews by New Left Review with Bahro), including his Gandhian-like ideas on the virtue of introducing the monastic (aśramic) ideal into civil society by way of “purifiying” conventional power politics.

“By perfectible, it is not meant that he [i.e., man] is capable of being brought to perfection. But the word seems sufficiently adapted to express the faculty of being continually made better and receiving perpetual improvement; and in this sense it is here to be understood. The term perfectible, thus explained, not only does not imply the capacity of being brought to perfection, but stands in expression to it. If we could arrive at perfection, there would be an end to our improvement. There is however one thing of great importance that it does imply: every perfection or excellence that human beings are competent to conceive, human beings, unless in cases that are palpably and unequivocally excluded by the structure of their frame, are competent to attain.”—Wlliam Godwin

“There are recognizable barriers from which men have always sought to emancipate themselves, in order to obtain access to something, and appropriate something, that is conceived time and again in the ideas of freedom, joy, happiness, etc., which no cynical irony can expunge. The inexhaustible possibilities of human nature, which themselves increase with cultural progress, are the innermost material of all utopias, and moreover a very real, and in no way immaterial material at that. They inevitably lead to the desire to transform human life.”—Rudolf Bahro

“Wittgenstein, Elizabeth Taylor, Bertrand Russell, Thomas Merton, Yogi Berra, Allen Ginsburg, Harry Wolfson, Thoreau, Casey Stengel…Baba Ram Dass, Gandhi, Sir Edmund Hillary…Freud, Norman Mailer…Thomas Edison, H.L. Mencken, Thomas Jefferson, Ralph Ellison…Emma Goldman, Peter Kropotkin, [Frank Lloyd Wright, Muhammad Ali, Kenneth Rexroth, Dorothy Day, Malcolm X, Oprah Winfrey, Vaclav Havel, Dorothy Healey, Leonardo Boff, Seyyid Hossein Nasr, James deAnda, Nelson Mandela, Helen Mirren, Pico Iyer, Mose Allison, Jewel, Dame Judi Dench, Aretha Franklin, His Holiness the 14th Dalai Lama (Tenzin Gyatso), Leonard Cohen], you and your parents. Is there really one kind of life which is best for each of these people?”—Robert Nozick

“Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others. The utopian society is the society of utopianism. [….] Half of the truth I wish to put forth is that utopia is meta-utopia: the environment in which utopian experiments may be tried out; the environment in which people are free to do their own thing; the environment which must, to a great extent, be realized first if more particular utopian visions are to be realized stably.”—Robert Nozick

“We may distinguish three utopian positions: imperialistic utopianism, which countenances the forcing of everyone into one pattern of community; missionary utopianism, which hopes to persuade or convince everyone to live in one particular kind of community, but will not force them to do so; and existential utopianism, which hopes that a particular pattern of community will exist (be viable), though not necessarily universally, so that those who wish to do so may live in accordance with it.”—Robert Nozick

“It is, Martin Buber wrote, ‘the goal of Utopian socialism…to substitute society for the State to the greatest degree possible, moreover a society that is ‘genuine’ and not a State in disguise.’ That is as good a definition as you will find—even though it is more complex than it might at first seem.”—Michael Harrington

“The classic utopia anticipates and criticizes. Its alternative fundamentally interrogates the present, piercing through existing societies’ defensive mechanisms—common sense, realism, positivism and scientism. Its unabashed and flagrant otherness gives it a power which is lacking in other analytical devices. By playing fast and loose with time and space, logic and morality, and by thinking the unthinkable, a utopia asks the most awkward, the most embarrassing questions. As an imaginative construction of a whole society, the utopia can bring into play the rich critical apparatus of the literary form and a sensitivity to the holistic nature of society, enabling it to mock, satirize, reduce the prominent parts, to illuminate and emphasize the neglected, shadowy, hidden parts—and to show the interrelatedness—of the existing system. Utopia can be seen as the good alternative, the outline of a better future, an ‘ought’ to the current ‘is.’ The possibility of such a future helps undermine the complacency and overcome the inertia of existing society by showing that it is neither eternal nor archetypal but merely one form amongst many. This need not lead to teleology (i.e. ‘this is your future’), for the alternative has many shapes.”—Vincent Geoghegan

“For [Ernst] Bloch, the enemies of hope are confusion, anxiety, fear, renunciation, passivity, failure and nothingness. Fascism was their apotheosis. But since all individuals daydream, they also hope. It is necessary to strip this dreaming of self-delusion and escapism, to enrich and expand it and to base it in the actual movement of society. Hope, in other words, must be both educated and objectively grounded; an insight drawn from Marx’s great discovery: ‘the subjective and objective hope-contents of the world.’ The Principle of Hope is an encyclopaedic account of dreams of a better existence; from the most simple to the most complex; from idle daydreams to sophisticated images of perfection. It develops a positive sense of the category ‘utopian,’ denuded of unworldliness and abstraction, as forward dreaming and anticipation. [….] This then is Bloch’s great masterpiece. His achievement was to see that utopianism is not confined to intellectuals and their various blueprints of a better life. He saw that, in countless ways, individuals are expressing unfulfilled dreams and aspirations—that in song, dance, plants and plaster, church and theater, utopia waits.”—Vincent Geoghegan

“Marxists have a defensive attitude towards utopias. It was so laborious to escape from them in the past. But today utopian thought has a new necessity. For that historical spontaneity that Marx conceived as a process of natural history and which our Marxist-Leninists celebrate in the name of objective economic law, must be overcome. [….] The problem is to drive forward the ‘overproduction’ of consciousness, so as to put the whole historical past ‘on its head,’ and make the idea into the decisive material force, to guide things to a radical transformation that goes still deeper than the customary transition from one formation to another within one and the same civilization. We are now facing, and what has in fact already begun, is a cultural revolution in the truest sense of the term: a transformation of the entire subjective form of life of the masses….”—Rudolf Bahro

The early utopian socialists: Henri de Saint-Simon, Charles Fourier, and Robert Owen, while not democrats, inspired democratic movements concerned with morality, community and feminism. “It was a movement that gave the first serious definition of socialism as communitarian, moral, feminist, committed to the transformation of work. This tradition came to be regarded as an immature first step, a prelude, rather than as something of enduring value. If there is to be a twenty-first-century socialism worthy of the name, it will, among other things, have to go two hundred years into the past to recover the practical and theoretical ideals of the utopians.”—Michael Harrington

“Certainly, the concept of utopia is only one of the many possible demonstrations of the anxieties, hopes, and pursuits of an era and of a social milieu. The questioning of the legitimacy and rationality of the existing order, the diagnosis and criticism of moral and social defects, the search for remedies, the dreams of a new order, etc.—all these favorite themes of utopias are found in political systems and popular myths, in religious doctrines and in poetry. If the critique of social reality and the expectation of a new City turn toward utopia, that means that a choice has been made among available forms of discourse. What is said in utopia and as utopia cannot be said otherwise. There are ‘hot’ eras when utopias flourish, when the utopian imagination penetrates the most diverse forms of intellectual, political, and literary activity; eras when opposing points of view and divergent main themes seem to rediscover their point of convergence in the very invention of the descriptions of utopias. But there are other ‘cold’ eras, when utopian creativity is weakened and cut off from social, intellectual, and ideological activities.”—Bronislaw Baczko

1. “There is no utopia without an overall representation, the idea-image of an alternative society, opposed to the existing social reality, and its institutions, rites, dominant symbols, systems of values, norms of interdictions, hierarchies, relations of dominance and property, its domain reserved to the sacred, and so forth. In other words, there is no utopia without a synthetic and disruptive representation of social otherness. [….]
2. The representations of a different and happy City are the products of a particular way of imagining the social; utopias are one of the places, occasionally the privileged place, where the social imagination is put into practice, where individual and collective social dreams are welcomed, gathered, worked on, and produced. Moreover if utopian imagining activity is focused on overall and synthetic idea-images, it nevertheless is developed through day-to-day reality. The dreams of the happy City are, then, articulated with images of a renewed daily life, and utopias often offer a great luxury of detail in their descriptions of individual and collective daily life. The structural relationships between the representation of the overall society and the detailed images of the ordinary aspects of life are as complex as they are revealing. [….]
3. The alternative society is not only imagined, it is also thought to be consonant with reason, and prides itself on the rationality it brings into play. Utopias want to install reason in the realm of the imagination; in utopias, constant exchanges among social dreams and critical, theoretical, and normative reflection are carefully worked out. The term idea-image to which we often have recourse has the sole aim of bringing these distinctive characteristics of utopian representation to the fore. [….]
4. Utopia is not only imagined and thought, it is made intelligible and communicable in a discourse by which the merging of the idea-images and their integration into a language is accomplished. [T]wo classic paradigms were imposed in utopian discourse from the sixteenth through nineteenth centuries. The first is the utopia of the imaginary voyage. [….] The other paradigm is that of the utopia-proposal for ideal legislation. [….]
5. Every utopia is not necessarily proposed as a program of action or even as a model that would demand intellectual or emotional support. The novelistic utopias are offered most frequently as intellectual games. They only seek to stimulate both the imagination and the critical and moralizing reflection of the readers…. However, sometimes even the utopias presented in the form of an imaginary voyage inspire a will to act and to give some of their ideas a practical application. [….] But there are utopias that proclaim themselves as both a prophetic and a founding word, and that find their extensions in the establishment of exemplary communities professing to put them into practice.”—Bronislaw Baczko

“Plato in fact comes in rather late, if we focus first on the world of classical antiquity. Utopian themes reach back to the earliest Greek writings. From Hesiod’s Works and Days, of the early seventh century BC, came the canonical depiction of the Golden Age, the bitterly-lamented vanished age of Kronos’ reign: when men ‘lived as if they were gods, their hearts free from all sorrow, and without hard work or pain;’ when ‘the fruitful earth yielded its abundant harvest to them of its own accord, and they lived in ease and peace upon their lands with many good things.’ Reworked by Virgil and Ovid as the lost age of Saturn (the Roman Kronos), the pastoral perfection in the Golden Age reappeared as the classic Arcadia, a time and place of rustic simplicity and felicity.”—Krishan Kumar

“If Arcadia showed man living within, and according to, nature, the Hellenic ideal city represented human mastery over nature, the triumph of reason and artifice over the amoral and chaotic realm of nature. Hence the importance, in the ideal city tradition, of those who gave the law and made the rational order of human society: the founders and framers of cities and constitutions, the philosopher-kings, the architect-planners. An early Greek tradition already venerated the semi-mythical figures of Solon of Athens and Lycurgus of Sparta as the founders and law-givers of their respective city-states. Their idealization, common throughout the classical period, was boosted by Plutarch’s Lives (first century AD), which made of Solon and Lycurgus virtually the creators of utopian societies. As received in Europe through various translations of the fifteenth and sixteenth centuries, the Lives, eked out with such celebrated set-pieces as Pericles’ funeral oration from Thucydides’ History, set before European thinkers two sharply contrasting utopian models. There was Athens: democratic, tolerant, boisterous, given over to a cultivated hedonism; and there was Sparta: authoritarian, ascetic, communistic. European utopian writers, along with most other kinds, were clearly fascinated by the alternative possibilities suggested by these two great exemplars of the ancient world. Right up to the French Revolution and beyond, one way of classifying utopias was as ‘Athenian’ or ‘Spartan,’ with Sparta predictably the favourite not simply for matching more closely the utopian preference for a tightly regulated communal order, but as much for its status as the putative model of the most admired ancient utopia, Plato’s Republic.”—Krishan Kumar

“[Thomas] More shows himself, and his Utopia, to the product of a new age. His Utopia has a rationalism and a realism that we associate typically with the classical revival of the Renaissance, and that are to be found equally in the architectural utopias of the fifteenth and sixteenth-century Italy. We should remember that Utopia was published less than three years after Niccolò Machiavelli’s The Prince (1513). More’s urbane and witty style, his profound sense of political realities, constantly evoke the relentlessly de-mystified world of Machiavelli’s notorious treatise (and, incidentally, remind us that utopia and anti-utopia [‘dystopia’] shadow each other very closely).”—Krishan Kumar

“The realm of utopia is wide but it is not boundless. Utopia is not some unchanging human archetype or universal human propensity. Distinctions have to be made and these must be largely historical. If utopia is not in one very obvious sense concerned with the here-and-now, for the most part it draws both its form and content from the contemporary reality. Whether or not we choose to call Plato’s Republic a utopia, or to accept the idea of a Christian utopia, we must recognize the fundamental difference of intention and concern between them, a reflection of the very different conditions that gave rise to them. Both classical and Christian utopianism persisted well into the modern age. They had—and have—a continuing influence on conceptions of utopia. This can make it difficult to see the even more important differences between these utopian “prefigurations” and the utopia proper, the modern utopia that was invented in Europe in the sixteenth century. The utopia of the ancient world is hierarchical, economically undeveloped and static. The modern utopia is egalitarian, affluent and dynamic. Such a conception emerged under unique historical conditions. As these changed so the content and even, to an extent, the form of utopia changed. So we should not be surprised to find ourselves dealing with utopias of many different kinds, and with many different purposes, in the more than four centuries since More’s Utopia. A strict definition of utopia would serve no useful purpose; as Nietzsche says, ‘only that which has not history can be defined.’”—Krishan Kumar

There was a “direct and dynamic connection between the idea of the American nation as utopia, and the foundations of scores of utopian communities that, dismissing this idea, still sought and found refuge on the American continent. We might borrow a term from the American philosopher Robert Nozick and consider America, in this aspect, as meta-utopia. In this conception, utopia is not one community, one vision of the good life, but a “framework for utopias,” a place which freely allows people to form and re-form themselves into utopian communities of diverse kinds. [….] Nineteenth-century America was this meta-utopia on a grander and more generous scale than ever before or since. The vast size of its still relatively unsettled territory, coupled with the utopian notions that accompanied its entire development as a nation, drew utopian groups to it as to a magnet. On both physical and ideological grounds, nineteenth-century America was the ideal framework for utopias in Nozick’s sense. It set up a dynamic counterpoint between the larger national experiment—America as utopia—and the host of small experimental communities, each pursuing its individual utopian vision. Meta-utopia, like utopia, produced a characteristic literature, the literature of the experimental community. There were the reports and survey of founders, sympathizers and observers, such as John Humphrey Noyes’s History of American Socialisms (1870), Charles Nordhoff’s The Communistic Societies of the United States (1875) and William Alfred Hinds’ American Communities (1878). Noyes founded Oneida; Hinds was a founding-member of it. There was also the autobiographies and memoirs of those who had actually been born or lived for much of their time in utopian communities, such Frederick Williams Evans’s Autobiography of a Shaker (1869), Robert Dale Owen’s Twenty-Seven Years of Autobiography (1874) and Pierrepont Noyes’s My Father’s House: An Oneida Boyhood (1937). All these combine, to a remarkable degree, personal involvement and sympathy with a wide-ranging outlook and refreshingly clear-sighted analysis.”—Krishan Kumar

“[T]here was probably more genuine communism practiced in nineteenth-century America than in any society, at any time, beyond the hunting and gathering stage. This certainly seemed self-evident to many Europeans. The young Friedrich Engels was among the many European socialists who were stirred by the reports of the American communities, and who first looked to them to provide the example and model for European communism. ‘The first people in America,’ wrote Engels, ‘and indeed in the world who brought into realization a society founded on the community of property were the so-called Shakers.’ The American communities, he confidently declared, had demonstrated that ‘communism, the social life and work based on the common possession of goods, is…not only possible but has actually been realized…and with the best result.’ The communities were themselves to a good extent the product of a wider movement of reform that enthusiastically embraced socialism. Socialism in mid-nineteenth-century America was far from being the ‘un-American’ thing it has now become.”—Krishan Kumar

“Gandhi’s fascination as a thinker lies in his inward battle between two opposing attitudes—the Tolstoyan socialist belief that the Kingdom of Heaven is attainable on earth and the Dostoevskian mystical conviction that it can never be materialized. The modern Hindu standpoint has generally been anti-utopian: Rama Rajya lies in the bygone Satya Yuga, and Kali Yuga is the age of unavoidable coercion. Gandhi began by challenging this view under the influence of Tolstoy, but he ended his life with more of a Dostoevskian pessimism. This does not mean that he abandoned either his imaginative, utopian, political vision or what he called his practical idealism embodied in concrete programs of immediate action. He did not feel that he was wrong to urge men to set themselves, as he did in his own life, seemingly impossible standards, but he came closer to seeing that it is wrong to expect them to do so. [….] ‘Euclidean’ models—of the satyagrahi, of a society based on satya and ahimsa, of Rama Rajya—are not without their value in political theory, but they must not be mistaken for definitely realizable concretions. [….] Gandhi’s concepts of satya, ahimsa and satyagraha, of tapas, and, above all, of the satyagrahi, are such ideal constructions—‘Euclidean’ models as he himself called them. They do involve a ‘momentous truth,’ but they are also deceptive representations, in a sense. In constructing these, Gandhi was in the oldest political tradition that goes back to classical Chinese and Indian thinkers, and to Plato in the West. They could serve in the serious task of civic education (paideia) provided they are not taken to represent precisely the political realities of the future.”—Raghavan Iyer

“Utopia has, for four centuries, accompanied that hope of progress and that striving for betterment. It has been itself a principle of expression of that belief and a potent agent of that impulse. It now struggles against a confused but widespread sense that this has been an illusion, or an impossible dream. A strong utopian current has persisted…. It may be that, once invented, the utopian idea can never entirely disappear—not, that is, so long as Western society itself continues. But utopia as a form of the social imagination has clearly weakened—whether fatally we cannot say. It has not in recent times found the power to instill its vision in the public consciousness. If it cannot do so again some time in the future, we should be aware of the seriousness of the failure. Karl Mannheim, who was as thoughtful a student of utopias as anyone, considered that the elimination of the ‘reality-transcending’ power of utopia would mean ‘the decay of the human will:’ The complete disappearance of the utopian element from human thought would mean that human nature and human development would take on a totally new character. The disappearance of utopia brings about a static state of affairs in which man himself becomes nor more than a thing. We would then be faced with the greatest paradox imaginable, namely, that man, who has achieved the highest degree of mastery of existence, left without any ideals, becomes a mere creature of impulses. Thus, after a long tortuous, but heroic development, just at the highest stage of awareness, when history is ceasing to be blind fate, and is becoming more and more man’s own creation, with the relinquishment of utopias, man would lose his will to shape history and therewith his ability to understand it.”—Mannheim qtd. in Krishan Kumar

References and Further Reading:

  • Baczko, Bronislaw. Utopian Lights: The Evolution of the Idea of Social Progress. New York: Paragon House, 1989.
  • Bahro, Rudolf (David Fernbach, trans.). The Alternative in Eastern Europe. London: NLB (New Left Books), 1978.
  • Bahro, Rudolf. Building the Green Movement. Philadelphia, PA: New Society Publ., 1986.
  • Bartkowski, Frances. Feminist Utopias. Lincoln, NE: University of Nebraska Press, 1989.
  • Berryman, Phillip. Liberation Theology. New York: Pantheon Books, 1987.
  • Bloch, Ernst (Neville Plaice, Stephen Plaice, and Paul Knight, trans.). The Principle of Hope, 3 Vols. Oxford, UK: Basil Blackwell, 1986.
  • Bloch, Ernst (Jack Zipes and Frank Mecklenburg, trans.). The Utopian Function of Art and Literature: Selected Essays. Cambridge, MA: MIT Press, 1988.
  • Breines, Wini. Community and Organization in the New Left, 1962-1968: The Great Refusal. New Brunswick, NJ: Rutgers University Press, 1989 ed.
  • Buber, Martin. Paths in Utopia. Boston, MA: Beacon Press, 1958.
  • Dolgoff, Sam, ed. The Anarchist Collectives: Workers’ Self-Management in the Spanish Revolution, 1936–1939. New York: Free Life Editions, 1974.
  • Elster, Jon and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.
  • Erasmus, Charles J. In Search of the Common Good: Utopian Experiments Past and Future. New York: Free Press, 1985.
  • Galston, William A. Justice and the Human Good. Chicago, IL: University of Chicago Press, 1980.
  • Geoghegan, Vincent. Utopianism and Marxism. London: Methuen, 1987.
  • Godwin, William. Enquiry Concerning Political Justice. Middlesex, England: Penguin Classics, 1985 (1793).
  • Harrington, Michael. Socialism: Past and Future. New York: Arcade Publishing, 1989.
  • Hine, Robert V. California’s Utopian Colonies. Berkeley, CA: University of California Press, 1983 (1953).
  • Iyer, Raghavan. Parapolitics: Toward the City of Man. New York: Oxford University Press, 1979.
  • Iyer, Raghavan. The Moral and Political Thought of Mahatma Gandhi. Santa Barbara, CA: Concord Grove Press, 2nd ed., 1983 (1st ed., New York: Oxford University Press, 1973).
  • Jacoby, Russell. The End of Utopia: Politics and Culture in an Age of Apathy. New York: Basic Books, 2005.
  • Jacoby, Russell. Picture Imperfect: Utopian Thought for an Anti-Utopian Age. New York: Columbia University Press, 2007 ed.
  • Joll, James. The Anarchists. Cambridge, MA: Harvard University Press, 2nd ed., 1979.
  • Katsiaficas, George. The Imagination of the New Left: A Global Analysis of 1968. Boston, MA: South End Press, 1987.
  • Kohn, Livia. Cosmos and Community: The Ethical Dimension of Daoism. Cambridge, MA: Three Pines Press, 2004.
  • Kumar, Krishan. Utopia and Anti-Utopia in Modern Times. Oxford, UK: Basil Blackwell, 1987.
  • Kumar, Krishan and Stephen Bann, eds. Utopias and the Millennium. London: Reaktion Books, 1993.
  • Levitas, Ruth. The Concept of Utopia. Syracuse, NY: Syracuse University Press, 1990.
  • Luntley, Michael. The Meaning of Socialism. La Salle, IL: Open Court, 1990.
  • Mannheim, Karl. Ideology and Utopia. London: Routledge & Kegan Paul, 1960 (1936).
  • Manuel, Frank E. and Fritzie P. Manuel. Utopian Thought in the Western World. Cambridge, MA: Belknap Press of Harvard University Press, 1979.
  • Marsden, John Joseph. Marxian and Christian Utopianism: Toward a Socialist Political Theology. New York: Monthly Review Press, 1991.
  • Martineau, Alain. Herbert Marcuse’s Utopia. Montreal: Harvest House, 1986.
  • Melville, Keith. Communes in the Counter Culture: Origins, Theories, Styles of Life. New York: Morrow Quill, 1972.
  • Morrison, Roy. We Build the Road as We Travel. Philadelphis, PA: New Society Publishers, 1991.
  • Nordhoff, Charles. The Communistic Societies of the United States. New York: Schocken Books, 1965 [1875].
  • Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.]
  • Pitzer, Donald E., ed. America’s Communal Utopias. Chapel Hill, NC: University of North Carolina Press, 1997.
  • Rexroth, Kenneth. Communalism: From Its Origins to the Twentieth Century. New York: Seabury Press, 1974.
  • Schaer, Roland, Gregory Claeys and Lyman Tower Sargent, eds. Utopia: The Search for the Ideal Society in the Western World. New York: Oxford University Press, 2001.
  • Smith, Christian. The Emergence of Liberation Theology: Radical Religion and Social Movement Theory. Chicago, IL: University of Chicago Press, 1991.
  • Sonn, Richard D. Anarchism. New York: Twayne Publ., 1992.
  • Stites, Richard. Revolutionary Dreams: Utopian Vision and Experimental Life in the Russian Revolution. New York: Oxford University Press, 1989.
  • Taylor, Michael. Anarchy and Cooperation. London: Wiley, 1976.
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  • Weisbrud, Carol. The Boundaries of Utopia. New York: Pantheon Books, 1980. 

Utopian Thought & Imagination Reply


A map of the world that does not include Utopia is not even worth glancing at, for it leaves out the one country at which Humanity is always landing. And when Humanity lands there, it looks out, and seeing a better country, sets sail. Progress is the realisation of Utopias.—Oscar Wilde

[The following draws upon and revises material from several posts in 2008 and 2009 from the Ratio Juris blog.]

Russell Jacoby writes in the preface to his book, Picture Imperfect: Utopian Thought for an Anti-Utopian Age (2005),  “Today most observers judge utopias or their sympathizers as foolhardy dreamers at best and murderous totalitarians at worst.” No doubt this was the consensual judgment crystallized in the “Liberal anti-utopianism” of such widely influential thinkers as Karl Popper, Hannah Arendt, and Isaiah Berlin. Ours is an age drawn to the chaotic darkness of (often technocratic) dystopian nightmares, for we are too chastened or cynical, perhaps as a result of living through the catalogue of collective and genocidal violence conspicuous throughout the twentieth-century, to be enchanted and inspired by the visions and ideals provided by utopian portraits of “the good” or “the best” society. We might, with Raghavan Iyer in an essay on that quintessential nineteenth-century utopian writer, Edward Bellamy, ask ourselves: “Do we despair of our capacity to exercise constructive imagination? Are we doubters of dreams and believers in nightmares?” There are, to be sure, exceptions to the rule, be it Ernest Callenbach’s Ecotopia (1975), Ursula K. Le Guin’s The Dispossessed (1974), or “feminist utopias” (see here, here, and here). But even these utopian vistas seem several times removed from their forebears: comparatively tepid and thus timid in construction, they are but a simulacram of the classical utopian genre. And utopian political thought is rarer still (for a distinguished exception to the rule, see the Real Utopias Project).  

Picture Imperfect identifies “two currents of utopian thought: the blueprint tradition and the iconoclastic tradition.” It is the former that Jacoby would have us jettison, understood as responsible, in part, for the epithet “utopian” being “tossed around as a term of abuse, [as] it suggests that someone is not simply unrealistic but prone to violence:”

“The blueprint utopians have attracted the lion’s share of attention—both scholarly and popular. They describe in vivid colors; their proposals can be studied and embraced or rejected. From Thomas More to Edward Bellamy, their utopias took the form of stories in which travelers report of their adventures from an unknown future or land. They offered characters, events, and particulars. Bellamy’s Looking Backward, a classic of blueprint utopianism, commences with a straightforward narrative. ‘I first saw the light in the city of Boston in the year 1857.”

The use of the adjective “blueprint” here suggests Bellamy’s novel (by 1900, only Harriet Beecher Stowe’s Uncle Tom’s Cabin sold more copies) was meant to be taken as providing detailed plans to be implemented by social reformers and activists in a manner analogous to the architect’s blueprints used by the general contractor to construct a building. This strikes me as a rather uncharitable if not simplistic reading of what is, after all, a work of fiction, a novel. While it is true that “Nationalist Clubs” inspired by Bellamy’s vision soon sprang up with the intention of practically realizing this particular utopia, such works assume the form of narrative fiction precisely so as locate their visions and reflections at least one remove from the realm of political plans and proposals to be realized in toto in the here and now (or not so distant future). They are provocative and suggestive, stimulating the social imaginary as it were, helping us re-think fundamental socio-economic and political ideas or even construct new concepts and categories for critique and praxis. They are not literal blueprints. 

According to Jaboby, in taking to heart the biblical prohibition of graven images of the deity (Exodus 20:4-5), the “iconoclastic” tradition is said to have drawn from the wellsprings of Jewish mysticism and apophatic (or ‘negative’) theology, as well as German romanticism in particular and music and poetry in general. Perhaps its finest and foremost representative is, for Jacoby, the “philosopher of Marxist humanism and revolutionary utopianism,” as well as, it should be said, a one-time apologist for Stalinism,* Ernst Bloch:

“[T]he iconoclastic utopians offer little concrete to grab onto; they provide neither tales nor pictures of the morrow. Next to the blueprinters they appear almost as ineffable as they actually are. They vanish into the margins of utopianism. Bloch’s Spirit of Utopia opens mysteriously. ‘I am. We are. That is enough. Now we have to begin.’ In regard to the future the iconoclasts were ascetic; but they were not ascetics. This point must be underlined inasmuch as iconoclasm sometimes suggests a severe and puritanical temper. If anything, it is a longing for luxe and sensuousness that define the iconoclastic utopian, not a cold purity.

In an image-obsessed society such as our own, I suggest that the traditional blueprint utopianism may be exhausted and the iconoclastic utopianism indispensable. The iconoclastic utopians resist the modern seduction of images. Pictures and graphics are not new of course, but their ubiquity is. A curtain of images surrounds us from morning till night and from childhood to old age. The word—both written and oral—seems to retreat in the wake of these images.”

While there’s something to be said for this “iconoclastic” tradition, I find Jacoby’s dichotomous utopian typology to be rather crude. The two category types are both descriptive and normative: as Jacoby aims to demonstrate the “iconoclastic” tradition has been relatively neglected and the “blueprint” tradition rightly castigated for giving rise to all sorts of ethical and political problems if not horrors. The principal problem with the blueprint tradition is that individuals and groups are said to use these blueprints as concrete models for constructing their particular dream of a better world here and now, without delay. Those attracted to this utopian genre apparently lack all ability to discern a logical or political gap between theory and praxis and are not at all reluctant to resort to coercion and violence as means and methods for impatiently instantiating their visions and values in the world. I do not think this is either an accurate summary or plausible picture of the function of utopian thought and imagination in history (see my list of references and further reading in the next post on the subject that allow one to draw contrary conclusions).

The utopian literature Jacoby is referencing does not deserve wholesale categorization as “blueprint utopianism,” and the “images” it contains are of a different order than the literal or concrete images and visual orientation that suffuse the contemporary culture of affluent and hyper-technological societies under the spell of “virtual reality.” Utopian literature, by definition, is not intended to be construed as a blueprint, architectural or otherwise. Of course one might argue that some forms of utopian literature are structurally prone to abuse by readers enamored of their visions, moving them to utilize these works on the model of blueprints, irrespective of the needs and wishes of others. But I suspect even the most ardent admirers of the products of utopian imagination have not mistaken these as detailed instructions readymade for wholesale and immediate implementation (were that even possible or feasible). There is a history of utopian communal experimentation, for example, but it has typically been a far more modest undertaking than one would infer from Jacoby’s discussion.

In Justice and the Human Good (1980), William A. Galston outlines a succinct description of the nature and function of utopian thought and imagination that makes plain the myriad problems with Jaboby’s “blueprint” model:

“Utopias are images of ideal communities; utopian thought tries to make explicit and to justify the principles on the basis of which communities are said to be ideal. [….] [T]he philosophical importance of utopias rests on utopian thought, although the practical effect of a utopia may be quite independent of its philosophic merits [….] Utopian thought performs three related political functions. First, it guides our deliberation, whether in devising courses of action or in choosing among exogenously defined alternatives with which we are confronted. Second, it justifies our actions; the grounds of action are reasons that others ought to accept and—given openness and the freedom to reflect—can be led to accept. Third, it serves as the basis for the evaluation of existing institutions and practices. The locus classicus is the Republic, in which the completed ideal is deployed in Plato’s memorable critique of imperfect regimes.

Utopian thought attempts to specify and justify the principles of a comprehensively good political order. Typically, the goodness of that order rests on the desirability of the way of life enjoyed by the individuals within it; less frequently, its merits rely on organic features that cannot be reduced to individuals. Whatever their basis, the principles of the political good share certain general features:

  • First, utopian principles are in their intention universally valid, temporally and geographically.
  • Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.
  • Third, utopias exist in speech; they are ‘cities of words.’ This does not mean that they cannot exist but only that they need not ever. This ‘counterfactuality’ of utopia in no way impedes its evaluative function.
  • Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.
  • Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.
  • Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….]

Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.”

We might nevertheless concede that some forms or species of utopian literature are more liable to misuse than others, owing to their mode of presentation, specific contents, what have you. Making such an argument would be similar to what Leszek Kołakowski attempted to accomplish with regard to the writings of Marx in his three volume magnum opus, Main Currents of Marxism (1978):

“It is not enough to say that Nazi ideology was a ‘caricature’ of Nietzsche, since the essence of a caricature is that it helps us to recognize the original. The Nazis told their supermen to read the Will to Power, and it is no good saying that this was a mere chance and that they might equally well have chosen the Critique of Practical Reason. It is not a matter of establishing the ‘guilt’ of Nietzsche, who as an individual was not responsible for the use made of his writings; nevertheless, the fact that they were so used is bound to cause alarm and cannot be dismissed as irrelevant to the understanding of what was in his mind. St. Paul was not personally responsible for the Inquisition and for the Roman Church at the end of the fifteenth century, but the inquirer, whether Christian or not, cannot be content to observe that Christianity was depraved or distorted by the conduct of unworthy popes and bishops; he must rather seek to discover what it was in the Pauline epistles that gave rise, in the fullness of time, to unworthy and criminal actions.”

Compare too Raghavan Iyer’s keen observation in Utilitarianism and All That (1983):

“The search for scapegoats whose crucifixion can atone for monstrous systems of error and evil is itself based, however, on an unduly rationalistic faith in the influence of theory and on an absurdly simple view of both individual and national character. Herder may have had good reason to assert that a history of opinions would really be the key to the history of deeds. It is, however, one thing to stress the impact of ideas and opinions on policies and actions. It is quite another matter to single out certain thinkers or theories or concepts as responsible for what they could neither have visualized nor intended in all its implications. The history of ideas is, as Meinecke so clearly saw, ‘no mere shadow-play or sequence of grey theories; on the contrary, it is the life-blood of those men who are called upon to express the essential element of their epoch.’ In pleading against the tyrannical and tragic consequences of isms and systems, we may foist too easily the entire burden of blame upon those very thinkers whose theories were most vulnerable to distortion as well as exploitation.”

Jacoby provides a salutary analysis of the Liberal anti-utopianism of intellectual luminaries like Popper, Arendt and Berlin. Popper, the most vociferous of the three, castigated the “blueprint” tradition of utopianism, indeed, for him, “”utopian” has purely pejorative denotation and derogatory connotations. Herbert Marcuse was on the mark when, in a review essay of Popper’s The Poverty of Historicism (1957, second ed., 1961), he notes the rather idiosyncratic definition of historicism that animates the work: “Certainly, it would be entirely unjustified to insist on conformity with lexicographical usage. However, I think such a strange deviation from usage should have firmer grounds than a construction built from disparate elements of theories.” These words apply with equal force to Popper’s more-than-stipulative definition of utopianism, in fact, he proffers a textbook example of a “persuasive” definition, one contrary to a philosophical temperament and useless for dispassionate philosophical analysis. Popper contends that the “blueprints” or “ends” of utopians are necessarily resistant to proof (or, conversely, falsification), and this structural feature, including its abstract qualities and orientation to the distant future, is what motivates the utopian to a single-minded and exclusive resort to violence so as to realize these ends, so as to instantiate the utopian blueprint. If we truly care about the relief of suffering or the amelioration of evil, Popper argues this is best achieved by means and methods of an incrementalist sort or in piecemeal fashion, utterly divorced from the entertainment of any lofty ideals, a Platonic-like focus on the Good, or dreams of a better world. Jacoby is sympathetic to what he terms Popper’s “reasonable argument,” one suspects if only because it provides no small measure of support to his own thesis about “blueprint” utopianism. The  quality of Popper’s 1947 lecture, “Utopia and Violence” is an appallingly poor attempt at characterizing the utopian genre, especially in as much as it issues from a philosopher. Thankfully, Jacoby’s sympathy for Popper’s argument does not extend too far nor cloud his assessment of its reductionist consequences:

“Popper’s reasonable argument has echoed down the intellectual corridors of history, each decade it gains more recruits. In the immediate future it would be supplemented by ‘end of ideology’ thinkers such as Raymond Aron in Europe and Daniel Bell in the United States. Other refugee thinkers would confirm and collaborate Popper’s positions. They would expand the category of utopians to include all those with a plan, and they would charge utopians with violence. Implicitly or explicitly, utopians meant ‘Marxists.’ That much, perhaps most of twentieth century mass violence had little to do with utopians barely intruded upon the argument.” [emphasis added]

Liberal anti-utopianism has been enormously influential in cultivating an ideological animus that lumps together, in Jacoby’s words, “utopianism, totalitarianism, and Nazism.” Any systematic appraisal of the evidence would find that are no necessary ties whatsoever between utopian musings and Marxist-Leninist or Maoist ideologies, or between the fertile products of utopian thought and imagination and anti-Semitism, fascism, xenophobic and ethno-nationalism, racism, authoritarianism, or any genocidal ideology.

For now, we close with the following from Judith Shklar’s illuminating study of the “last of the classical utopists,” Jean-Jacques Rousseau (blamed by some conservative ideologues for the Jacobin terror of the French Revolution):

“Utopia is an attack on both the doctrine of original sin, which imposes rigid limits on men’s social potentialities, and on all actual societies, which always fall so short of men’s real capacities. The object of these models, however, was never to set up a perfect community, but simply to bring moral judgement to bear on the social misery to which men have so unnecessarily reduced themselves. For the fault is not in God, fate, or nature, but in ourselves–where it will remain. To recognize this, to accept it, to contemplate and to judge: that was the function of the classical utopia.” (Judith N. Shklar, Men & Citizens: A Study of Rousseau’s Social Theory, 1969: 2)

* See Jack Zipes, ‘Introduction: Toward a Realization of Anticipatory Illumination’ in Ernst Bloch, Jack Zipes and Frank Mecklenburg, trans., The Utopian Function of Art and Literature: Selected Essays, 1983: xi-xliii.

[Cross-posted at ReligiousLeftLaw.com]

Regulatory Fictions: On Marriage and Countermarriage Reply


I’ve been waiting to read a recent article I discovered in the California Law Review by Columbia law professor Elizabeth F. Emens titled “Regulatory Fictions: On Marriage and Countermarriage”–the abstract follows:

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief. Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime—what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, threestrikes marriage, line marriage, renewable marriage, and exculpatory marriage. Anti-gay law, if we reimagine it as applying to everyone, prompts us to consider a world without marriage or indeed without any contracts between intimate partners. In addition to opening our minds to countermarriage possibilities, this Essay shows some overlooked affinities between law and literature, in particular how both law and literature may serve as unlikely sources of regulatory innovation.

(I particularly like the irony as using laws banning same-sex marriage as a way to imagine a world without marriage at all.) This promises to be a very interesting piece, and I’d be very interested to hear what others think about it.

The ‘Spatial Turn’ in Law: June 2011 Issue of Law, Culture, and the Humanities Reply


The following is cross-posted from Legal Lacuna.

The latest issue of Law, Culture, and the Humanities contains several articles relating to legal geography, space, and territorialization. Law joins, of course, a variety of other disciplines in taking this “spatial turn.”

Here are the titles and abstracts:

Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space” by Andreas Philippopoulos-Mihalopoulos

Abstract: This is a critical reading of the current literature on law and geography. The article argues that the literature is characterized by an undertheorization of the concept of space. The focus is either on the specific geography of law in the form of jurisdiction, or as a simple terminological innovation. Instead, the article suggests that law’s spatial turn ought to consider space as a singular parameter to the hitherto legal preoccupation with time, history and waiting. This forces law into dealing with a new, peculiarly spatial kind of uncertainty in terms of simultaneity, disorientation, materiality and exclusionary corporeal emplacement. The main area in which this undertheorization forcefully manifests itself is that of spatial justice. Despite its critical potential, the concept has been reduced by the majority of the relevant literature into another version of social, distributive or regional justice. On the contrary, if the peculiar characteristics of space are to be taken into account, a concept of justice will have to be rethought on a much more fundamental level than that.

Cuts, Flows, and the Geographies of Property” by Nicholas Blomley

Abstract: How is property geographical? The making of liberal property, I argue, relies upon a topographical logic, premised on the production of bounded, coherent spaces, through which the individuated subjects and objects of property can be rendered legible. Such a spatialization helps sustain the territorialization of property, in which the government of space becomes a means for the enactment of property. The production of such spaces requires conscious ‘cuts’ in the processual networks through which social spaces are produced. As such, property should be seen as a conditional achievement, ever threatened by unwanted relationality and boundary crossing. I draw from Kate Grenville’s novel The Secret River to explore property’s spaces, and their ambivalent ethical and practical work.

The Constituent Power of Architecture” by Lior Barshak

Abstract: The claim that law is grounded in representations of authority hardly requires justification. The article outlines one view of the power of representations of authority to subject society to the law, and attempts to shed light on the social significance of architecture as a medium of such representation. I will argue that representation sets apart the realms of the living and the dead while sustaining a complex relationship between the two realms. It houses the dead in a separate realm where they exercise authority over the living. Monumental architecture founds the authority of law, and the entire realm inhabited by the living, by relegating the dead to a separate sphere where they assume the position of ancestral lawgivers. Architecture can separate the living from the dead and anchor the rule of law by virtue of its claims to perpetuity and aesthetic form.

‘Passing through the Mirror’: Dead Man, Legal Pluralism and the De-territorialization of the West” by Ruth M. Buchanan

Abstract: The failures of Western law in its encounter with indigenous legal orders have been well documented, but alternative modes of negotiating the encounter remain under-explored in legal scholarship.The present article addresses this lacuna. It proceeds from the premise that the journey towards a different conceptualization of law might be fruitfully re-routed through the affect-laden realm of embodied experience—the experience of watching the subversive anti-western film Dead Man. Section II explains and develops a Deleuzian approach to law and film which involves thinking about film as ‘‘event.’’ Section III considers Dead Man’s relation to the western genre and its implications for how we think about law’s founding on the frontier. Finally, the article explores the concept of ‘‘becoming’’ through a consideration of the relationship between the onscreen journey of the character Bill Blake and the radical worldview of his poetic namesake.

Law and the Foucauldian Wild West in Michael Cimino’s Heaven’s Gateby Diana Young

Abstract: Classic western films often conceive of the west as existing in a legal void, where the central conflict is a binary one between lawlessness and legalization. The law is a monolith, and the legalization process is linear—a narrative of the west’s inexorable evolution toward a modern state governed by the rule of law. Cimino’s Heaven’s Gate presents a more postmodernist, pluralist conception. There is no grand narrative of legalization; the film envisages a discourse of justice emerging from the interaction of a variety of discourses, and which appears to be a unity only from the vantage point of history.

Law and Society Panel on Legacies of Colonialism in Indigenous Communities Reply


The following is cross-posted from Legal Lacuna.

My other favorite panel from the Law and Society Association’s Annual Meeting was Narratives of Il(legality) in Liminal Indigenous Locations, held Friday. The panel included four very moving, thought-provoking presentations on the ways colonialism and legal and cultural oppression impact North American indigenous communities today.

The first three presentations dealt with legacies of Canada’s residential schools policy, which forcibly removed aboriginal children from their homes and raised them (if you can call it that) in conditions of abuse, deprivation, and denigration.

Carole Blackburn spoke on Blackwater v. Plint (2005), which arose from widespread sexual abuse at one church-run residential school. The government and church were held liable, but liability was mitigated because the court found school officials had no actual knowledge of abuse—despite the fact that several children reported the abuse to police and nurses. Blackburn examines the cultural conditions that made abuse of aboriginal children invisible to the defendants and the court. Lack of “actual knowledge,” she argues, is really a willed “ignorance that requires active dissociation” from injustices committed against the children.

Justice Melvyn Green of the Ontario Court of Justice spoke on his experiences as a rotating judge in the Gladue Court that handles sentencing of aboriginal criminal offenders, who are overrepresented in prisons by a factor of seven. While the Court carefully considers mitigating factors specific to aboriginals, Justice Green was very forthcoming about the Court’s limitations. Sentencing, after all, is the “tail end” of the process and earlier interventions are needed. Disparities in crime and imprisonment rates are part of “an inheritance of unbridled colonialism”; they result largely from “cultural genocide” propagated by Canada’s residential schools policy.

Jane McMillan’s paper concerned unintended consequences of the Residential Schools Settlement agreement of 2007, which compensates aboriginal Canadians who can prove they went to a residential school. Part of the claims process requires victims of abuse, many of whom are traumatized and have never spoken of their abuse, to detail their experiences in writing and undergo a hearing in order to receive extra compensation. (The seventeen-page form includes an appalling page of checkboxes listing various acts of sexual abuse and how many times they were done.) This culturally and psychologically insensitive process, while cathartic and healing for some, is for others a re-victimization.

Finally, Ann Tweedy traced the racialized notion of “self-defense” in U.S. jurisprudence to illuminate current problems with Indian sovereignty and gun control. Tweedy argues that stereotypes of Indians as “savage ignobles” (which arise, ironically, from Indian’s own efforts at self-defense against white settlers) have led to a long history of curtailing Indian sovereignty. The result has been widespread lawlessness on reservations due to Indians’ inability (and U.S. Attorneys’ refusal) to effectively prosecute crimes, particularly rape of Indian women by non-Indian men. At the same time, the right to bear arms must be understood in the context of white settlers “defending” themselves against what Justice Kennedy, only a few years ago, called “Indian tribes and outlaws, wolves and bears and grizzlies and things like that.”

Law and Society Association Conference Update: Panel on the War on Terror Reply


The following is cross-posted from Legal Lacuna.

First, I am very grateful to the organizers and faculty of the Law and Society Association’s Graduate Student Workshop, which wrapped up on Wednesday. It was a terrific and inspiring program—I highly recommend it to other graduate students who do what I will affectionately call “law-and-blank” research.

Second, I attended several great panels during Days 1 and 2 of the LSA Annual Meeting (see Twitter at #LSA2011), but will detail just one of my favorites for now. Yesterday’s panel Exploring the Discontinuity in the War on Terror at the Margins and Beyond featured exciting papers by Paul E. Amar, Asli Bali, Darryl Li (a.k.a. @abubanda), and Wadie Said, with commentary by Sudha Setty.

Bali presented “Subordination by Law? Discretion and Discrimination against U.S. Muslims beyond September 11th,” which argued that since 9/11, executive branch powers have expanded alarmingly to create a de facto preventive detention system for Muslim Americans, dodging anti-discrimination laws. Bali described, among other things, two supermax-style prisons that hold terror suspects, 95% of whom are Muslim. (The rest are called “balancers,” meaning they are there to prevent—laughably—suggestions of religious or ethnic profiling.) She also points out that counterterrorism laws have effectively added aggravating factors to many minor crimes solely because the offender is Muslim; credit card fraud, for instance, has a tendency to become a terrorism-related felony if committed by a Muslim.

Li’s paper, delivered by Bali in his absence, examined “Global Civil War and American Power.” Li argues that the Global War on Terror (GWOT) operates largely outside the existing law of armed conflict, constituting a sort of “global civil war” in which US power is projected through weaker states and non-state actors. He eloquently refers to this as a “haunting of sovereignty” that does not fit traditional paradigms of either international or non-international armed conflict. Li’s evocative language and creative analysis can also be seen in his recent article, “Hunting the Out-of-Place Muslim,” which demonstrates how Muslims’ physical mobility is constructed as threatening and aberrational.

Amar’s paper, “The Human Archipelago: Human-Security States, Sexuality Politics, and the End of Neoliberalism,” traced the interplay between stereotypes of Arab “timebomb” masculinity and UN-style feminism up through the recent Egyptian revolution. Said’s paper, “The Message and Means of the Modern Terrorism Prosecution,” discussed the U.S. Supreme Court’s exceptional treatment of terrorism to contextualize Holder v. Humanitarian Law Project (2009), which codified a broad interpretation of the 2007 material support ban.

Symposium on eminent domain (and Kelo) in Albany Government Law Review Reply


The latest issue of the Albany Government Law Review (4/1, 2011) features a symposium on “Eminent Domain: Public Use, Just Compensation, & ‘The Social Compact,'” with a particular focus on Kelo and its effects of New York:

Introduction: The Judicial Reaction to Kelo, by Ilya Somin

“Fairness and Equity,” or Judicial Bait-and-Switch? It’s Time to Reform the Law of “Just” Compensation, by Gideon Kanner

The Trouble With Eminent Domain In New York, by Norman Siegel, Steven Hyman, and Philip van Buren

Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs, by Steven J. Eagle

Moving the Cat Into the Hat: The Pursuit of Fairness in Condemnation, or, Whatever Happened to Creating a “Partnership of Planning?”, by Michael Rikon

Evaluating Economic Development Takings: Legal Validity Versus Economic Viability, by David Schultz

From Slum Clearance to Economic Development: A Retrospective of Redevelopment Policies in New York State, by Amy Lavine

The Rise of Robert Moses and the Fall of New York Constitutional Protections Against Eminent Domain, by Christopher Dunn 

Stacking the Deck: New York’s Unique Approach to Eminent Domain, by Robert McNamara

The EDPL Revised, by M. Robert Goldstein

(Crossposted at Economics and Ethics.)

The Place of Miscegenation Laws within Historical Scholarship about Slavery 2


Allen Mendenhall

Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century.  Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961).  When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview.  The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history. 

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment.  Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century.  This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery.  It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery.  Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail.  By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration.  The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago.  The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. More…