Studies in Law, Politics and Society: Volume 39

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(8 chapters)

The political landscape that has been unfolding since the attacks on the World Trade Centre in September 2001 has created an urgent imperative for a reappraisal of the place of individual force within philosophies of violence, particularly those that are directed to law. An extensive critique of the relation between law and violence has emerged around the works of philosophers, such as Walter Benjamin, Franz Fanon, Jacques Derrida and Giorgio Agamben (1998, In: D.H. Roazen (Trans.), Homo sacer: Sovereign power and bare life. California: Stanford University Press), but it is questionable whether any of these provide us with the conceptual tools with which to address what is being presented (correctly or otherwise) as a particular problematic of the 21st century. Indeed, I would argue that a certain intellectual malaise surrounds discussion around individual force and that this state of affairs is in large measure due to the way in which critical theory and philosophy has addressed questions concerning the relation between individual violence and the juridical order. Without exception such accounts declare that individual violence undermines the authority of law itself. The following seeks to interrogate this contention and in doing so to begin to construct a more nuanced way of conceiving how the law preserves its authority.

Giorgio Agamben has used the notion of the state of exception to describe the United States’ detention camps in Cuba. Agamben argues that the use of the state of exception in the U.S. can be traced back to President Lincoln's suspension of the right of habeas corpus during the Civil War. This paper suggests that this argument obscures more relevant legal and political precedents that can be found in U.S. territorial legal history. Moreover, while Agamben's argument obscures conceptual distinctions between a state of emergency and a state of exception, his argument also provides resources that can expose the limits of liberal interpretations of the relationship between the State, the citizen, and the law.

Lawyers and political scientists focus upon explicitly religious components of American political polarization. A robust scholarship illuminates the nation's religious history. Nevertheless, we fail to appreciate the extent to which conflicting policy preferences are rooted in religiously shaped normative frameworks, or the extent to which scholarship in religious history, sociology, social psychology and culture might be synthesized to inform our understanding of contemporary policy disputes. Like the blind men and the elephant, we encounter different parts of the animal. We see a tree, a wall, a snake – but we fail to apprehend the size, shape and power of the whole elephant.

The Supreme Court's recent cross burning case – Virginia v. Black (2003) – saw dueling historical narratives. Justice O’Connor, writing for the majority, painted a history in which the Klan often burned crosses to intimidate, but also did so for other, “expressive” reasons. Justice Thomas, in dissent, related a history in which the burning cross never speaks. Interestingly, O’Connor and Thomas used many of the same historical sources. How did they reach such different results? While both O’Connor and Thomas interpreted (and stretched) the historical sources in different directions, their dispute ultimately turned on their diverging doctrinal views.

This paper addresses the theory of legal pragmatism from the vantage of evolutionary metaphor. Legal pragmatism tends to incorporate a progress narrative with similarities to both evolutionary biology and classical economics, in which social developments are thought to be determined by competition among techniques and ideas. The difficulty with such competitive views of social change is that they obscure the extent to which successful solutions of the past – now the status quo – may be less adept at meeting new and future problems. Drawing on the evolutionary and economic variant theory of path dependence, it is argued that an assumption that the best, most efficient technique always wins out unduly sanctifies the present and inhibits awareness of unmet challenges. Ultimately, the encouragement of social change and advancement would be more securely located in the legal promotion of individual attempts at originality, rather than an assumption that competition is constantly moving toward perfection.

As the demand for affordable legal services grows, law schools and the legal profession struggle to respond. By examining lessons from successful social movements in the last century, Cause Lawyering and Social Movements: Can Solo and Small Firm Practitioners anchor Social Movements looks at the Law School Consortium Project and its potential to participate in and anchor the social movements of our time. The collaboration of the law schools, networks of solo and small firm attorneys and activists at the local, regional and national level provide key elements for powerful change given the technological developments of the 21st century.

Cover of Studies in Law, Politics and Society
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Studies in Law, Politics, and Society
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Emerald Publishing Limited
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