History, Memory, and the Law

University of Michigan Press
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The essays in this book examine law as an active participant in the process through which history is written and memory is constructed. Instead of seeing law as a "victim" of history, the writers treat law as an author of history, not just in the instrumental sense in which law can be said to make a difference in society, but in the ways that law constructs and uses history. Law looks to the past as it speaks to present needs. In the production of judicial opinions--supposedly definitive statements of what the law is--judges reconstruct law's past, tracing out lines of legal precedent that arguably "compel" their decisions. These essays consider how law treats history, how history appears in legal decisions, and how the authority of history is used to authorize legal decisions. Furthermore, law plays a role in the construction of memory. The writers here ask how law remembers and records the past as well as how it helps us to remember our past. Law in the modern era is one of the most important of our society's technologies for preserving memory. In helping to construct our memory in certain ways law participates in the writing of our collective history. It plays a crucial role in knitting together our past, present, and future. The essays in this volume present grounded examinations of particular problems, places, and practices and address the ways in which memory works in and through law, the sites of remembrance that law provides, the battles against forgetting that are fought in and around those sites, and the resultant role law plays in constructing history. The writers also inquire about the way history is mobilized in legal decision making, the rhetorical techniques for marshalling and for overcoming precedent, and the different histories that are written in and through the legal process. The contributors are Joan Dayan, Soshana Felman, Dominic La Capra, Reva Siegel, Brook Thomas, and G. Edward White. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Professor of Law, Jurisprudence, and Social Thought, Amherst College. He is past President of the Law and Society Association and current President of the Association for the Study of Law, Culture, and the Humanities. Thomas R. Kearns is William H. Hastie Professor of Philosophy and Professor of Law, Jurisprudence, and Social Thought, Amherst College.
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About the author

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy & Professor of Law, Jurisprudence, & Social Thought, Amherst College.

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Additional Information

Publisher
University of Michigan Press
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Published on
Nov 10, 2009
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Pages
328
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ISBN
9780472023646
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Best For
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Language
English
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Genres
History / General
Law / General
Law / Legal History
Literary Criticism / Subjects & Themes / General
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Content Protection
This content is DRM free.
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Eligible for Family Library

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In bringing together accomplished and thoughtful scholars of different disciplines, with a command of literature ranging from the legal to the literary, and in relating the works to the central arguments of the late Professor Robert Cover, Sarat and Kearns have created a first-rate up-to-date exposition of this important and complicated issue, namely, how to understand better the violence implicit and explicit in law.--Legal Studies Forum The relationship between law and violence is made familiar to us in vivid pictures of police beating suspects, the large and growing prison population, and the tenacious attachment to capital punishment in the United States. Yet the link between law and violence and the ways that law manages to impose pain and death while remaining aloof and unstained are an unexplored mystery. Each essay in this volume considers the question of how violence done by and in the name of the law differs from illegal or extralegal violence--or, indeed, if they differ at all. Each author draws on a distinctive disciplinary tradition-- literature, history, anthropology, philosophy, political science, or law. Yet each reminds us that law, constituted in response to the metaphorical violence of the state of nature, is itself a doer of literal violence. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Chair of the Program in Law, Jurisprudence, and Social Thought, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.
The idea of legal rights today enjoys virtually universal appeal, yet all too often the meaning and significance of rights are poorly understood. The purpose of this volume is to clarify the subject of legal rights by drawing on both historical and philosophical legal scholarship to bridge the gap between these two genres--a gap that has divorced abstract and normative treatments of rights from an understanding of their particular social and cultural contexts.
Legal Rights: Historical and Philosophical Perspectives shows that the meaning and extent of rights has been dramatically expanded in this century, though along with the widespread and flourishing popularity of rights, voices of criticism have increasingly been raised. The authors take up the question of the foundation of rights and explore the postmodern challenges to efforts to ground rights outside of history and language. Drawing rich historical analysis and careful philosophical inquiry into productive dialogue, this book explores the many facets of rights at the end of the twentieth century. In these essays, potentially abstract debates come alive as they are related to the struggles of real people attempting to cope with, and improve, their living conditions. The significance of legal rights is measured not just in terms of philosophical categories or as a collection of histories, but as they are experienced in the lives of men and women seeking to come to terms with rights in contemporary life.
Contributors are Hadley Arkes, William E. Cain, Thomas Haskell, Morton J. Horwitz, Annabel Patterson, Michael J. Perry, Pierre Schlag, and Jeremy Waldron.
Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.
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