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.)

Ronald Dworkin on recent Supreme Court decisions Reply


Ronald Dworkin has a two-part blog post at The New York Review of Books concerning the recent Supreme Court decisions Arizona Christian School Tuition Organization v. Winn et al and Arizona Free Enterprise Club PAC v. Bennett. (Links point to the blog posts, not the decisions.) 

In the second paragraph of the first post, he gives a wonderful and concise statement of law-as-integrity:

The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.

But he criticizes the “conservative bloc” of the Roberts Court on these grounds:

But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. In the last few years they have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike. As I have argued, these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.

That’s what I love about Dworkin, and part of what makes him so much fun to teach: you can agree wholeheartedly with hsi formal jurisprudence but I disagree just as strongly with the way he fleshes it out substantively. (More on this, I hope, in future posts.)

Daring Rescues, Dead Babies, and ‘Another Vietnam’ 3


A big thank you to Warren Emerson and The Literary Table for welcoming me. I’m excited to be joining the interdisciplinary fun on this blog. The following is cross-posted from Legal Lacuna:

As Americans debate the recent “humanitarian” intervention in Libya, I am reminded of an NPR feature that aired last year. In the fall of 2010, NPR’s All Things Considered told the story of the U.S.S. Kirk, a small U.S. naval ship that, at the end of the Vietnam War, conducted an unusual humanitarian mission.

On April 29, 1975, as Saigon fell, the Kirk and its astonished crew were sent to retrieve thousands of refugees who were fleeing South Vietnam by boat and helicopter. The next day, the Kirk returned to “rescue . . . the remnants of the South Vietnamese navy,” about thirty ships that constituted the last sovereign South Vietnamese territory. The “rescue” of the navy was effected by lowering the South Vietnamese flag and raising the U.S. flag on each ship, transforming it into sovereign U.S. territory. Anthems were sung. Tears were shed. A Vietnamese baby who died of fever was mourned by all aboard the Kirk. All ended well, with the refugees resettled in the U.S. and elsewhere.

The story, explicitly a redemption narrative, says a lot about Americans’ view of themselves as citizens of a military superpower, particularly in relation to the “Orient.” NPR resurrects and rewrites that other Vietnam narrative, the one usually characterized by destruction, grief, and moral failure, into a tearful rescue. The story contains all the ingredients for an American comeback on the world stage: grateful Asian refugees, brave (and hitherto unsung) American heroes, and the distinctly harmonious, shared mourning of a Vietnamese baby—an innocent, civilian “other” who dies not because of U.S. violence, but in spite of U.S. medics’ efforts to save him from illness.

It is significant that this story appeared at a time when the U.S. was engaged in two seemingly interminable, geographically vague conflicts in the Middle East/western Asia. For most of the last decade, Americans have been haunted by a discursive ghost, that nagging refrain: “We don’t want another Vietnam,” an expensive, bloody, ideologically-motivated conflict against an enemy whose low-tech warfare somehow overwhelms the U.S.’ “modern” might. This was even before the “Arab Spring” came with its tech-savvy hopefulness and its double edge of democracy and violence; we were tired of the same, old War on Terror.

NPR, in fact, gave listeners “another Vietnam,” much better than the one we remembered. Foregrounding the U.S. military’s humanitarian functions, the story of the Kirk momentarily absolves the U.S. of its other actions. The story serves as a palliative to widespread American anxieties about war, territory, immigration, and imperialism. It enables a transformation of grief caused by human conflict into grief for the lost child, who functions as a cipher for innocence and the will of God. As we cry with nostalgia and pride at the raising of U.S. flags over South Vietnamese navy ships, we are also reassured that there is such a thing as colonialism by consent.

We live in a murky world where military action causes more violence, even as it saves lives. As listeners to the NPR story, we glimpse ourselves among the refugees, rescued from the horror of real war, seeking shelter aboard the Kirk.

Mai-Linh K. Hong is pursuing a Ph.D. in English at the University of Virginia and holds a J.D. from the U.Va. School of Law. She tweets from @FleursduMai and @LegalLacuna.

Analogy & Metaphor: An Idiosyncratic Introduction Reply


I’ve just posted my essay, “Analogy & Metaphor: An Idiosyncratic Introduction,” at SSRN. Here’s the abstract:

This essay is an idiosyncratic introduction to analogy and metaphor. It was previously posted in two parts respectively at the Ratio Juris and The Literary Table blogs by way of an introduction to my online bibliography at Ratio Juris for analogy and metaphor. The notes immediately follow each essay, and a list of “references and further reading” is appended to the end of the paper. The section on analogy is intended in part to provoke the interest of legal theorists, while the second half, on metaphor, is aimed at a broader audience although I hope it too will be of interest to legal theorists and philosophers of law. Both pieces no doubt betray their origins in blog posts, hence they are considerably less than polished, but comments to date were generous enough for me to make the inference that they deserve to be made more widely available.

My maiden voyage with SSRN just prior to this was a revised version of a Ratio Juris post from earlier this year:  Natural Law “Externalism” v. Law as “Moral Aspiration.” I want to thank Thom Brooks for prompting me to think aloud about topics broached in his paper, “Natural Law Internalism.”

I welcome comments (and downloads!) for both papers.