A summer ago I returned to India for two months to look for new fieldsites and also to attend a series of ceremonies being conducted by the Dalai Lama in a previously closed section of the Greater Himalayas, the tiny Tibetan kingdom of Spiti. Nestled in a steep river valley up against the Chinese border, Spiti is known to Tibetologists from the earliest historical records as an...
By way of introduction, I will provide some working definitions for a constitutive approach to law and will situate the project of developing this approach in the business of constituting an academic orientation. This Essay demonstrates the tensions between politics and epistemology in establishing an academic foundation for the public interest in law. First, I point to glimpses...
Austin Sarat reminds us that law is part of "The Humanities" and that the study of law could be situated appropriately in a liberal arts college committed to the humanities. Yet given that law is humanities, it is poignant to consider how marginal the study of humanities is to law schools, which constitute one venue (but not the only, as Austin Sarat explains) in which law is...
Let me begin by registering three points of emphatic agreement with Austin Sarat's invigorating remarks. First, like Sarat, I believe that bringing the humanities to, and into, the law is not a matter of "uplift and inspiration," though it is often so understood. Such an anodyne model of the "Law and Humanities" movement ultimately trivializes the interrogative force of the...
The invitation to reflect on "changes in law and the humanities over the past decade" provides an opportunity to pause and to take stock, to ask what difference Law and Humanities scholarship has made to our understanding of law or the humanities, and whether that scholarship has lived up to its promise. In this comment, I note three factors that ten years ago, at the founding...
During his first campaign for the presidency in 1992, Bill Clinton was dogged by what came to be called the "character issue." Critics charged that Clinton's character was flawed in ways that made him unfit to be president. They said that he had dodged the draft during the Vietnam War, showing personal cowardice and an unwillingness to put the interests of the country before his...
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society. New York: Alfred A. Knopf, 1996. Pp. x, 496. $35.00. Legal scholars and historians have found the subordination of women inscribed in literature, art, family conduct manuals, and, of course, in the law. Yet our heightened awareness that gender is a "question of power" may have led...
Let me begin by taking up three issues raised by Professor Seaton: (1) the relationship between interpretation and intention; (2) the relationship between literary and legal study; and (3) the relationship between theoretical accounts of a practice-law, literature, or anything else-and the performance of that practice. For Professor Seaton, these and related topics fall under the...
At a time when many departments of literature are discounting literary criticism and scholarship in favor of cultural studies, the rise of the law-and-literature movement is a welcome affirmation of literature's relevance to the larger society. The search for relevance, however, may lead one down blind alleys. This Essay reviews the work of several prominent legal thinkers...
Professor Kautz, a political theorist, tells lawyers to stick to our lasts. We ought to do only law and refrain from seeking assistance from political theory. This is not, however, because we are likely to do badly as consumers of political theory. Rather, Professor Kautz insists on a reasonably sharp distinction between roles. Political theorists "educate the public mind...
Law has a notably respectable place in liberal political theory. Everyone agrees that the "rule of law" is one of the core principles of liberal constitutionalism. Here, it is said, we enjoy a "government of laws, and not of men." But why do liberals, as a rule, share this respect, even reverence, for law? The rule of law need not be so honored; it has not been so honored in many...
Jean Bethke Elshtain observes in her essay that "[w]e do it all the time." That is, we "legislate morality" all the time? Indeed, Elshtain is sharply critical of those who argue that we ought to de-moralize law: "[O]ne can rightly put ethical and moral questions to the law and expect ethical and moral answers." Elshtain even suggests that we should think of "the law professor as...
Let me begin with a story from the trenches. On a public radio call-in program in the thick of the Clinton impeachment imbroglio, I found myself being bombarded with denunciations from irate citizens. Most callers seemed to believe I was either a member of the "Christian Right" or part of a "vast right-wing conspiracy" because I claimed that there had been just a bit wanting in...
While many Black people regarded slavery as a form of social death, some nineteenth-century white policy-makers extolled the virtues of slavery as a tool to uplift the characters of Africans in America: "[Slavery in America] has been the lever by which five million human beings have been elevated from the degraded and benighted condition of savage life ... to a knowledge of their...
The pioneering legal realist Jerome Frank once characterized Justice Oliver Wendell Holmes, Jr., as "The Completely Adult Jurist." By this he meant that Holmes had progressed beyond the "childish" search for absolutes in the law to the recognition that experience, rather than logic, was the proper lodestar for a judge to follow. There is another sense, though, in which Holmes...
Paul C. Kurtz wrote well, spoke and argued eloquently, wore a nice suit, and carried a briefcase. As an observer noted, "'He looked 100 percent like a lawyer and conducted himself as a lawyer." Being an actual practitioner of the law, however, does not make one a lawyer in modern America. Lawyer status is conferred only upon those who satisfy formal definitions based on...
Critical legal theory is in need of reconstruction and rehabilitation. By most accounts, the goal of critical legal theory is to reveal the deep structure of the legal system that remains unrecognized in, and even obscured by, the self-understanding of legal actors. Scholars traditionally moved beyond the superficial level of legal doctrine either by adopting a rationalistic...
Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness...
Elaine Scarry, On Beauty and Being Just. Princeton: Princeton University Press, 1999. Pp. 134. $15.95. We should applaud Elaine Scarry, Professor of Aesthetics and the General Theory of Value at Harvard University, for making an attempt to build a coherent political philosophy using only the building blocks of aesthetics. The result is On Beauty and Being Just, based on the...
When do we call behavior "cultural"? And when do we not? Why do we distinguish behavior in this way? And what are the consequences of this difference in recognition and naming? This Essay examines narratives that emerge in cases of forced and voluntary adolescent marriage. These narratives suggest that behavior that we might find troubling is more often causally attributed to a...
Richard A. Primus, The American Language of Rights. New York, Cambridge: Cambridge University Press, 1999. $54.95. Mary L. Dudziak, Cold War Civil Rights. Princeton, Oxford: Princeton University Press, 2000. $29.95. The rise of rights talk is a subject that has gripped academia in recent years. Many historians of modem America are now searching for the origins of the rights...
The idea that the fairy tale is worthy of study by legal scholars may seem uncomfortable to many. Even the strongest supporters of the law and literature movement may be given pause by this contention. It may be one thing for Kafka to give lessons in law, but the Brothers Grimm? After all, it was not until relatively recently that the fairy tale was even accepted as a legitimate...
Rosemary J. Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law. Durham: Duke University Press, 1998. Pp. xi, 462. $19.95. Rosemary J. Coombe's The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Lawbegins with the author, Associate Professor of Law at the University of Toronto, walking down Queen Street in...
Modem historians of political thought, legal historians, critical legal theorists, and others regularly look to the seventeenth century as the "classic