Notes from southern Maine

July 3, 2009

I’m writing from southern Maine, where the sun just peeked out for the first time in about 10 days. I’m attending a five-week National Endowment for the Humanities seminar on “The Rule of Law,” which asks questions such as,

  • “Why are Americans so reverent of law and the rule of law?
  • What does “rule of law” even mean? What does it include or exclude?
  • When the LAPD is beating the crap out of Rodney King, are they “doing law”?
  • Why is our legal system the particular way it is, rather than some other? (Think of how native Americans conceptualize property rights, as an example of a very different way.)
  • What do the Bush administration torture memos and our responses to them tell us about the law, its limits, its aims, and about the sovereign (the people)?
  • Can law understand itself outside its own bounds, outside the bounds of a legal reason defined by the practice of law?

These are just a few of the questions we’ve tossed around so far, and we’ve had industrial-strength help sorting out some possible answers. Our discussion leader list has so far included Austin Sarat, Paul Kahn, Jill Frank, Caroline Winterer and Deak Nabers.

I’m really fascinated with Paul Kahn‘s observation that the project of law is essentially a project of reform, and that the term suggests a return to some pure ideal, that it must suggest a return to the Constitution for its legitimacy. The law looks to the past for its future, a reflex enshrined in the latin “stare decisis,” or “let the decision stand,” a principle that ensures only incremental change in the law as it strives to conserve itself. In other words, to create new law, as the U.S. Supreme Court inevitably does, it claims to be returning to a constitutional ideal, a return to its pristine, pure past.

Kahn’s critique is that this project occurs entirely within law, as the study of religion operated well into the 18th century. To study Christianity was to practice it, to attempt to reform it. A truly “objective” study of religion, from the outside, did not occur until the late 18th century, when departments of religion were organized in the academy. Anthropology, sociology and psychology also participate in this project, outside the normative reality or construct of religion. In law, however, the project is largely sealed off from the outside, with its project of reform occurring entirely within its bounds. Scholars recommend reforms, as I attempted in my articles, but we are ignored. Law schools perpetuate this insularity by being primarily if not exclusively about vocational training.

In my law articles, as in all law articles, I began with the assumptions that law needed to be reformed, that it could be reformed, that there is or should be some sort of natural progression in the law toward a better future, and that these reforms could occur, would occur within the law, by the law. My articles, in other words, never stepped outside the orb of law to ask larger questions about why the law in this country is the way it is, why it’s not another way, and why we reflexively accept and obey this rule of law, as a constituted whole. In other words, I never stepped outside of law’s practice. The law — our law — is 100% a construct. We made it that way. Why?

The question of torture demands answers outside the system of law. The Bush (Yee/Bybee) memos point to this in how ridiculously they attempt to reconcile torture or “rough interrogation” with adherence to the rule of law. In fact, re-terming it “rough interrogation” is an important move in attempting to bring the practice within the rule of law. Words and terms really matter, particularly in the law, for the law.

If it is in fact torture, it cannot by definition be lawful, at least not by U.S. or international law. It must be something else. When it does become something else, something “legal,” its practice can be juridified (rules can be drawn up to regulate it). Thus result the laughable “legal rules” for rough interrogation, such as how many seconds a captive can be submerged in the water, the lowest temperature that water can be, etc., etc.

The historical precedent for torture as irreconcilable with the rule of law is slavery, which Deak Nabers helped us unpack. How did we make a space within the rule of law for the institution of slavery?

This is just a taste, of course. I teach Media Law, so stepping back and asking some of these larger question is helping me to understand the historical, cultural and legal contexts for some of the weird law we (communication practitioners) face, particularly in the tort areas of libel and privacy intrusion.

This past week marked our midpoint, and today we have a big lobster bake at the University of New England, which is hosting the seminar. So it’s not all books and gab. If the sun can just hang in there a few more hours, I think I’ll take my Frisbee.

Dura lex, sed lex! (The law is tough, but it is the law.)

biddefordpool2The view at Biddeford Pool, southern Maine. Surf’s up!


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