Belliveau on Law-and-Literature Workpiece: A Montage of the Law

S. Belliveau has published Law-as-Literature Workpiece: a Montage of the Law. Here is the abstract.

This paper depicts law through prosaic and photographic montage. In matters of law, every interpretation necessarily concerns a claim in right to administer violence through enforcement. Montage as form in writing about law gives a greater scope for interpretation to the reader, more so than traditional narrative. This work incorporates elements of literary and photographic montage as developed by John Heartfield and Walter Benjamin, and as described by Siegfried Kracauer and Walter Benjamin. The Frankfurt School's perspective on critical theory informs montage in this paper.

Download the article from SSRN at the link.

Recent Publications in Law and Literature @routledgebooks

ICYMI: Recently published books in the area of law and literature, from Routledge: Chloe A. Gill-Khan, The Politics of Integration: Law, Race, and Literature in Post-War Britain and Frace (Routledge, 2019) (Studies in Migration and Diaspora).

After almost seven decades, Britain and France, nations with divergent political cultures and heirs to contrasting philosophies of 'integration', have proclaimed the failure to integrate their post-war ethnic minorities: at this present time, the ‘Muslim’. The ‘argument’ of this book, therefore, is a question: despite the legal, political and social commitments that emerged from the events of the Holocaust, why do both nations continue to govern minorities on the sites of the law and race? Through comparative readings of British Asian and Franco-Maghrebian literatures, the author examines the contours and patterns of British and French post-war governance and racism over four decades. Departing from prevailing theories in postcolonial studies that situate post-war racism within the narrative of colonialism or the politics of the nation-state, The Politics of Integration shows how we must re-appraise the inter-war histories of minorities if we are to ask more meaningful questions about the present. We are invited to take stock of how well theorization of post-war ethnic populations and their politics have served us in terms of asking: what does history tell us, and how and where do we - Europe and its minorities - go from here? As such, the book will appeal to scholars in multiple disciplines in the humanities and social sciences such as history, philosophy, literature, cultural and postcolonial studies.

 

Baber Johansen, The Islamic Law on Land Tax and Rent: The Peasants' Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (Routledge, 2018) (Routledge Library Editions: Islam, State, Society)

This book, first published in 1988, argues that a close inspection of the development of Hanafite law in the Mamluk and Ottoman periods reveals changes in legal doctrine which were not restricted to civil transactions but also concerned the public law. It focuses in particular on the interrelated areas of property, rent and taxation of arable lands, arguing that changes in the relationship between tax and rent led to a redefinition of the concept of landed property, a concept at the very heart of the Islamic legal system. This title will be of particular interest to students of Islamic history.

 

Stern on Reorienting the Connections Between Law and Literature @ArsScripta

Simon Stern, University of Toronto Faculty of Law, has published Literary Analysis of Law: Reorienting the Connections Between Law and Literature at 5 Critical Analysis of Law 1 (2018). Here is the abstract.

This special issue of Critical Analysis of Law, devoted to new work in law and literature, features articles that dispense with the choice between “law in literature” and “law as literature,” to ask how legal and literary forms, methods, concepts, and attitudes can be productively explored in tandem. Conventionally, when scholars ask how legal actors and problems are portrayed in literature, or how hermeneutic theory may shed light on statutory or constitutional interpretation, these questions are meant to help solve a legal problem, at a doctrinal or conceptual level. But once we abandon the requirement that literature serve as an assistant in this fashion, many new possibilities for the literary study of law come into visibility. The essays in this special issue explore some of those directions.

Download the article from SSRN at the link.

McSweeney on Fiction in the Code @GSULawReview

Thomas McSweeney, William & Mary Law School, is publishing Fiction in the Code in volume 34 of the Georgia State University Law Review (2018). Here is the abstract.

One of the major branches of the field of law and literature is often described as “law as literature.” Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law code from the kind of imaginative fiction we expect to find in a narrative text. This article will take a historical example, the medieval Icelandic legal manuscript known as Konungsbók, and examine it for its fictional elements. This article will examine Konungsbók for the ways in which it creates an imagined world, populated by free, equal householders, a world that was very different from the Iceland in which its creator lived. Its creator may have created it less to tell his reader anything about the law as it stood in thirteenth-century Iceland than as an elegy to a world he thought he had lost. It therefore stands as a testament to the law code’s literary potential.

Download the article from SSRN at the link.

ICYMI: Constitución poética de los Estados Unidos Mexicanos @jcalvo11

Via Iurisdictio-Lex Malacitana:

Constitución poética de los Estados Unidos Mexicanos: una reescritura en el centenario constitucional (Manuel de J. Jiménez Moreno, ed., Mexico City: Editorial Proyecto Literal, 2017).

A Book To Accompany the Exhibit: Law as Art, Law as LiIterature,Law as Justice

Via Thom Giddens, St. Mary's University, news of this exhibition at neue Gesellschaft für bildende Kunst (nGbK) in Berlin:

Curator Agieszka Kilian is working on the book describing this very interesting exhibit which ran from March to May of this year.

In the Throes of Art and Law: Dreams & Dramas: Law as Literature. Running 10 March through 7 May 2017.

From the website, here's a description of the exhibit:

The exhibition is proposing a different reading of the legal text, reading against the grain of pre-conceived structures in order to re-chart the system of our relations with ourselves and with various communities; both territorial communities as well as those constructed ad hoc, based not on blood or territorial ties, but on shared values and beliefs. The exhibition raises the question of how the law literally produces us: both as individuals and as citizens, establishing a framework of our presence in public space as well – its legality or illegality. It also questions the different meanings of a ‘civil body’, a ‘legal thing’, or a ‘legal slave’. How do legal rituals and narratives influence and shape our existence?
The law organises our reality in its entirety. It uses physical states and experiences (such as ‘poverty’ or ‘nature’) to create concrete concepts, endowing them with autonomous meanings. The law, as it was, distils fractions of reality to serve its purpose, and then assembles the elements, as if on a factory line, into a concrete picture, a parallel world. The legal text at once describes and produces reality, operating as an assembler of social relations. The ambivalent nature – of simultaneous description and production – offers an inducement to pose the question: What are the ways in which we can use the double nature of the law, regaining our agency, to re-describe and re-create the social order?
Narratives techniques assemble social existence according to values and beliefs of those who wield the power of naming (writing the legal text), but also, importantly, the power of executing. In ʺThe Making of Lawʺ (2010) Bruno Latour presents law as a fabric which is irreducible to an editorial unit; emerging from the law, but not limited to it: “Law does not reside in the law, but equally in the context of application which they have seen with their own eyes and with which they have sometimes violently collide.”
The exhibition takes up Latour’s intuition of locating law in everyday practice in an aim to present the law as a construction that is not abstracted from existential order
- one that is larger than ‘the letter of the law’, but inextricably related to its execution, practices, habits of reading and a choreography of navigating the text and legal interpretation
– law as justice and justice as law.

More here.

Two New Books About James Joyce and the Law

Colm Toíbín reviews two new books about James Joyce and the law, Joyce in Court (Head of Zeus), and The Ulysses Trials: Beauty and Truth Meet the Law (Liliput), for The Guardian. 

Falcon y Tella's New Book on Law and Literature (Brill, 2016).

ICYMI:

María José Falcón y Tella, Professor of Legal Philosophy, Complutense University of Madrid, has published Law and Literature (Brill, 2016). Here is a description of the book's contents.

There are many ways to approach the concept of “Law and Literature”. In the classical manner, the author distinguishes three paths: the Law of Literature, involving a technical approach to the literary theme; Law as Literature, a hermeneutical and rhetorical approach to examining legal texts; and finally, Law in Literature, which is undoubtedly the most fertile and documented perspective (the fundamental part of the work focusses on this direction). This timely volume offers an introduction to this enormous field of study, which was born in the United States over a century ago and is currently taking root in the European continent.

 Table of contents here.

Call For Papers: Tilburg Law Review's Special Issue, Fall 2017: "Translating Law"

Via Twitter @C_Bouteligier

Call for Papers Tilburg Law Review: 'Translating Law'

Tilburg Law Review (TiLR) invites article submissions for its fall 2017 special issue on 'Translating Law'. We imagine this double issue primarily as a collection of articles in law and humanities, but we welcome submissions from other disciplines as well. This issue will also contain the Montesquieu Lecture that Boaventura de Sousa Santos will deliver at Tilburg University in the spring of 2017.
Possible topics include:

• Translations between legal languages, legal cultures
• The right to translation
• Translating legal fictions, legal metaphors
• Translating across disciplines
• Global law as a translation project
• Court interpreters, oral translation, translation as performance
• Legal mistranslations and legal untranslatables
• Copyright and translation rights
• Translating flight narratives in asylum procedures
• Law and its others; law and the ‘other scene’; translating trauma; translating testimony
• Translating between different conceptions of law

Tilburg Law Review is a peer-reviewed academic print journal of international and European law. This special issue seeks to continue the legacy of Willem Witteveen, a professor of jurisprudence at Tilburg Law School who tragically passed away in the MH17 disaster in Ukraine of July 2014. Willem Witteveen was an interdisciplinary scholar who created multiple spaces for law and humanities in the Netherlands.
Practical Information:

• Submission: 15 Dec. 2016 (deadline)

• Notification: 15 Feb. 2017

• Publication: TLR Autumn issue, Volume 22 2017 (double issue)

• Procedure: Submit an anonymous manuscript via http://tilr.edmgr.com/ after you have registered as user; Submissions will be reviewed following the regular blind-review process; TLR does not accept any submissions that count over 10.000 words; All submissions must comply with the OSCOLA citation system.

For more details, please visit our website.
Or contact us via email: tilburglawreview@tilburguniversity.edu

Curran on a Slice of Life in Vichy France

Vivian Grosswald Curren, University of Pittsburgh School of Law, is publishing Law and Human Suffering: A Slice of Life in Vichy France in the Journal of Law and Literature. Here is the abstract.

This essay discusses three diaries from the Vichy era, the period of the Nazi Occupation of France: Jean Guéhenno’s Journal des années noires 1940-1944, Hélène Berr’s Journal, and Jacqueline Mesnil-Amar’s Ceux qui ne dormaient pas. Guéhenno was an educator and writer who entered the Resistance in 1940. His diary offers deep moral reflection as well as accounts of the dishonorable peace Vichy imposed and the ignoble servitude to which the new collaborationist French State and the Nazi occupier subjected France. In the final pages, as Leclerc’s army marches into Paris, with a victory he understands to be thanks to the help of the Allied forces, Guéhenno dares to rekindle his former faith in humankind. Berr was a young university student born into a wealthy old French Jewish family, the daughter of a famous scientist. Sensitive and generous-spirited, she lived an unusual life inasmuch as her family seemed to suffer no material hardship throughout the years that culminated in their deportation in the spring of 1944. Among the memorable events of her diary is her experience of the first day she was forced to wear the yellow star. Finally, Mesnil-Amar’s diary spans just one month at the end of the war in France, the month in which her husband has been detained and is about to be deported on the last train to leave Paris. The diary evokes her embracing of Jewish identity as a result of being identified as Jewish by anti-Semites. The lyricism of her writing approaches poetry in a work that is both a retrospective and a love letter to her husband. These diaries show us a slice of life of the times, but they also spur us to reflection on law and humanity, their limitations, potentials and fluctuations.

Download the essay from SSRN at the link.

Recht und Literature im Zwischenraum . Law and LIterature In Between: A New Volume on Law as Literature and Literature as Law

Now available: Recht und Literatur im Zwischenraum / Law and Literature In-Between: Aktuelle inter- und transdisziplinäre Zugänge / Contemporary Inter- and Transdisciplinary Approaches (Christian Hiebaum, Susanne Knaller, and Doris Pichler, eds.; Bielefeld, Transcript Verlag, 2015).

Law and Literature In Discourse: Literature and Legal History

Steven Howe, University of Lucerne, has published Literature and Legal History: A Neglected Dialogue,  Recht und Kultur 3-27(Steven Howe and Jessica C. Lai, Zurich, 2015)(Rechtsgeschichte und Rechtsphilosophie). Here is the abstract.

Recent decades have witnessed a significant surge in critical cultural studies of law and legal phenomena. As cultural theorists and historians have increasingly turned attention to the reality-constituting potential of narratives, symbols, images and rituals, so too has renewed interest come to be placed on the dependencies of law and law-forming processes on cultural and symbolic practices, not only in terms of the intrinsic relation between law, communication and media, but also with regard to the performative figuration of law in imaginative texts. Drawing on such perspectives, the present essay makes the case for a new understanding of the potential value of literature to an integrated cultural history of law. In particular, it aims to show how modern approaches to the study of imaginary and narrative cultures might provide the material for fresh approaches that go beyond a straightforward view of literature as the other of law – that is to say, as a counter-discourse distinct from and exterior to the legal order – and take fuller account of the cross-linkages between the fields of law and literature as circulating discourses and constitutive elements of a shared symbolic system.

Here is a link to the book at the publisher's website.

The Trial of Mendel Beilis

Vivian Grosswald Curran, University of Pittsburgh School of Law, has published At the Crossroads of Law and Society: The Trial of Mendel Beilis as University of Pittsburgh Legal Studies Research Paper No. 2015-28. It is forthcoming in the Journal of Law and Literature. Here is the abstract.

The trial of Mendel Beilis lies at the crossroads of numerous points of interests. It reveals on one level the intensity of one man’s rise in an existential sense to the demands of a situation into which he was thrust suddenly and utterly without warning. From this perspective, it is a story of captivating human and psychological interest. The legal proceedings reflected a torn and complex society on the verge of implosion, as well as one in which the tsarist judicial system, although subject to corruption and fraud at the highest levels, nevertheless had a considerable measure of independence. The trial oscillated between a story of the failures and the triumphs of justice. Finally, the trial reflected and animated fierce anti-Semitism as well as unexpectedly dedicated and enlightened support for Beilis in the Christian world of Russia and beyond, with the incipient Russian Revolution as an important context. I try to illustrate these various intersecting points of interest with the assistance of sources such as the trial transcripts; Beilis’ memoirs; the memoirs of one of his defense lawyers, O.O. Gruzenberg; and Léon Poliakov’s analysis of anti-Semitism in Russia during that period.

Download the article from SSRN at the link.

Lies and Truth In the Constitution

Mary Anne Franks, University of Miami School of Law, is publishing Where the Law Lies: Constitutional Fictions and Their Discontents in Law and Lies: Deception and Truth-Telling in the American Legal System (Austin Sarat, ed.; Cambridge University Press, 2015). Here is the abstract.

My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.

Download the essay from SSRN at the link.

Learning From Non-Fiction Storytelling

Jeanne Kaiser, Western New England University School of Law, has republished When the Truth and the Story Collide: What Legal Writers Can Learn from the Experience of Non-Fiction Writers About the Limits of Legal Storytelling in volume 16 of the Journal of the Legal Writing Institute (2010) in 4 The Monograph Series of the Legal Writing Institute: Advanced Legal Writing: Courses & Themes (Elizabeth Fajans, ed. 2015). Here is the abstract.

This Chapter examines what can be gained and what can be lost by using storytelling in legal writing. After reviewing some basic principles of legal storytelling, the Chapter reviews some lessons that can be learned from the experience of the New Journalists who adopted literary techniques in their non-fiction work. In the end, the Author concludes that while there is much value in using the tools of fiction in legal writing, it is only with a blend of narrative and analysis that we most successfully do our jobs as lawyers.

Download the chapter from SSRN at the link.

Holmes, Emerson, and Agonism

Allen Mendenhall, Auburn University, has published Oliver Wendell Holmes Jr. Is the Use of Calling Emerson a Pragmatist: A Brief and Belated Response to Stanley Cavell at 6 Faulkner Law Review 197 (2014). Here is the abstract.

This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes’s Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian “program.” Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict: writers struggling against other writers understand and admire, yet seek creatively to outdo and overcome, their competition. The common-law system substantiates this theory insofar as every case answers an anterior case and creates a succession of precedents marked by strong judges and justices struggling against their predecessors. I submit that Emerson and Holmes were both pragmatic champions of descendent agonism, the former in the American literary tradition and the latter in the American common-law tradition that is distinct from its British precursor.

Download the article from SSRN at the link.

Shouting Fire, Theaters, and Constitutionally Protected Speech

Carlton F. W. Larson, University of California, Davis, has published 'Shouting Fire in a Theater': The Life and Times of Constitutional Law’s Most Enduring Analogy, as UC Davis Legal Studies Research Paper No. 415. Here is the abstract. 

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting fire in a theater into First Amendment law. Nearly one hundred years later, this analogy remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases and it has permeated popular discourse on the scope of individual rights.
This Essay examines the both the origins and the later life of Holmes’s theater analogy. Part One is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world of the late nineteenth and early twentieth centuries, when false shouts of fire in theaters were a pervasive problem that killed hundreds of people both in the United States and Great Britain. The person who shouted “fire” in a crowded theater was a recognizable stock villain of popular culture, condemned in newspapers, magazines and books from coast to coast. The analogy, lifted by Holmes from a federal prosecutor in Cleveland, was rooted in this larger world of popular culture. Understanding this world also answers another question: Why do lawyers and non-lawyers alike refer to “shouting fire in a crowded theater” rather than “falsely shouting fire in a theater and causing a panic,” which is what Holmes actually wrote? Along the way, we will encounter a real detective and even a mustachioed villain.
Part Two is based on an empirical study of the 278 subsequent judicial opinions that employ the theater analogy. In lower courts, opinions that invoke the analogy, not surprisingly, typically reject free speech claims, but opinions that paraphrase Holmes are, counter-intuitively, more receptive to free speech claims than opinions that quote Holmes precisely.

The Essay concludes by noting that the theater analogy has largely lost its capacity to frighten in the visceral way that Holmes’s audience would have understood it. Although it persists in constitutional law, it has become rarified and largely abstract, perhaps contributing in some small way to the general libertarian trend of modern First Amendment law.

An intriguing piece.

Download the paper from SSRN at the link. 

The Media and Reports of Crime, 1960-2009

Moira Peelo, Lancaster University, and Keith Soothill, Lancaster University, have published ‘Marginal’ Crime: The Example of Blackmail in Representing Evolving Crime Narratives at 53 Howard Journal of Criminal Justice 221 (2014). Here is the abstract.

Newspaper representation of blackmail cases from over half a century (1960–2009) is used to illustrate ‘marginal’ crime reporting in an era of social change: we asked how such crimes fare in attracting public attention and what meanings they represent during a period of politicised, public and criminological narratives of crime and disorder. ‘Marginal’ crimes sit at the edges of crime narratives and at the boundaries of criminology, yet the example of blackmail indicates wider social concerns. A macro analysis of 252 cases showed a steady public profile with six major categories of blackmail reported. At a micro level, only 33 cases achieved sustained reporting, deriving meaning from current social anxiety; acted normatively – defining current group values; or were one of a palette of charges brought against individuals.

The full text is not available from SSRN. 

A Law and/in/as Literature Conference in Brazil, October 30 to November 1

From our colleague Jose Calvo Gonzalez at the University of Malaga, news of another extremely interesting conference, this one in Brazil. Here's a link to the call for papers and more information about the conference, which is devoted to law and literature, law as literature, and law in literature. The event,officially named the II COLÓQUIO INTERNACIONAL DE DIREITO E LITERATURA:  "A REPRESENTAÇÃO DO JUIZ E O IMAGINÁRIO SOCIAL,” takes place from October 30 through November 1 at the Auditório Central, Faculdade Meridional, Passo Fundo, RS, Brasil.

Interpreting Nat Turner's "Confessions"

Christopher L. Tomlins, University of California, Irvine School of Law, has published Demonic Ambiguities: Enchantment and Disenchantment in Nathaniel Turner’s Virginia as IC Irvine School of Law Research Paper No. 2012-22. Here is the abstract.

This paper conjoins three texts – the “Confessions of Nat Turner,” Walter Benjamin’s “Capitalism as Religion,” and Max Weber’s “Science as a Vocation.” Benjamin and Weber provide interpretive prisms through which to examine Turner’s confession. Though quite unlike each other, each glances at the demonic – a matter of some significance when one considers the meaning of the “full faith and credit” held due the decision of the Southampton (Virginia) County Court to hang Turner for his attempted 1831 slave rebellion. Like guilt/debt, the dual meanings of Schuld that, for Benjamin, confirmed the existence of a religious – specifically a Christian – structure in capitalism, the conjunction of faith and credit has its own demonic ambiguity, simultaneously sacralizing (faith) and secularizing (credit) the authority of the law. In capitalism as religion and as law, these demonic ambiguities fuse together in an overwhelming simultaneity that is at once economic and juridical, moral and psychological, profane and sacral. This simultaneity – and Turner’s attempt to disrupt it – is the paper’s chief concern.

Download the paper from SSRN at the link.