Mon, 21 Aug 2017

Essays and Book Chapters

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Melville's War Poetry and the Human Form

Printed in A Political Companion to Herman Melville, ed. by Jason Frank.

You can read the essay here. https://www.academia.edu/32185708/Melvilles_War_Poetry_and_The_Human_Form

Die Ohnmacht der Demokratie (The

Philosophie Magazin, Sonder Ausgabe "Hannah Arendt, Die Freiheit des Denkens."

Drones and the Question of "The Human"

Carnegie Journal of Ethics & International Affairs, volume 28, issue 02, pp. 159-169.

 

The increasing reliance on drones is threatening our humanity—but not because of the inhumane ways we use Predator drones in warfare. It is a mistake “to use the term “drone” to refer only to these much publicized military devices. Drones, more precisely understood, are intelligent machines that—possessed of the capacity to perform repetitive tasks with efficiency, reliability, and mechanical rationality—increasingly displace the need for human thinking and doing. The trend Jünger and Turkle worry about is unmistakable: we are at risk of losing the rich and mature relationships that mark us as human. The rise of social robots, unmanned aerial vehicles, and other one-dimensional machines that act like humans—without the perceived human weaknesses of distraction, emotion, exhaustion, quirkiness, risk, and unreliability—answers a profound human desire to replace human judgment with the more reliable, more efficient, and more ra- tional judgment of machines. For all the superficial paeans to human instinct and intuition, human beings, in practice, repeatedly prefer drone-like reliability to the uncertain spontaneity of human intuition. In other words, we confront a future in which “human” is a derogatory adjective signifying inefficiency, incompetence, and backwardness.

Read the essay Here

Reconciling Oneself to the Impossibility of Reconciliation: Judgment and Worldliness in Hannah Arendt's Politics

This essay will appear in: "Artifacts of Thinking: Reading Hannah Arendt's Denktagebuch” ed. by Roger Berkowitz and Ian Storey (New York: Fordham University Press, 2016)

 

 

In this essay I argue that reconciliation is a central and guiding idea that deepens our understanding of Arendt’s politics, plurality, and judgment. I also show that the judgment to reconcile with world is inspired by Arendt’s engagement with Heidegger on the questions of thinking, forgiveness, and reconciliation, as well as by her own efforts to think through her personal and intellectual reconciliation with Heidegger. I present nine theses that Arendt advances around the theme of reconciliation found in her Denktagebuch. Theses 1–4 address reconciliation—as distinct from forgiveness, guilt, and revenge—as a political act of judgment, one that affirms solidarity in response to the potentially disintegrating experience of evil. Thesis 5 situates Arendt’s discussion of reconciliation in her critiques of Hegel and Marx. Thesis 6 considers the central role of reconciliation in Arendt’s book Between Past and Future and argues that the “gap between past and future” is Arendt’s metaphorical space for a politics of reconciliation understood as the practice of thinking and judging without banisters, as she put it, in a world without political truths. Theses 7 and 8 turn to Arendt’s engagement with Heidegger on the question of reconciliation, arguing that her embrace of reconciliation with an evil world is a response to the errors of Heidegger’s worldless thinking. Finally, Thesis 9 turns to Arendt’s final judgment of Adolf Eichmann, arguing that her refusal to reconcile herself with Eichmann exemplifies the limits of reconciliation; Arendt’s decision not to reconcile with Eichmann and to demand his death is Arendt’s paramount example of political judgment. Judgments for reconciliation and nonreconciliation are judgments that can reenliven and reimagine political solidarity in the wake of great acts of evil.

Read a Draft of the essay here

 

Justice

"Justice," The Encyclopedia of Political Thought, ed. by Michael Gibbons (John Wiley & Sons, Inc.)(http://onlinelibrary.wiley.com/book/10.1002/9781118474396)

The tension between legality and equity is only one of the fundamental ambivalences that run through the idea of justice. The good that is justice is either an absolute good or a relative good enacted by a particular political community; as distributive justice, justice is also a political good comprising the proper distribution of wealth and status in society. Some understand justice to be what is useful and brings advantage to the greatest number, while others hold that justice is an unchanging moral duty. Political economists identify justice with efficiency, while social theorists name justice fairness. Justice is frequently identified with legitimacy, although justice as a claim of obligation cares not for legitimating procedures. Moral philosophers think that justice can be determined by analysis and reason, while critical philosophers imagine justice to say the unsayable. And yet, despite all of these opposing ideals of justice, justice remains the central idea of politics and political thinking. This essay is outlines the major ideas and thinking about justice in the history of political thought. 

Read the essay here

 

Instituting freedom: Steve Buckler and Hannah Arendt on an Engaged Political Theory

European Journal of Political Theory 2014, Vol. 13(3) 372–377

Steve Buckler’s Hannah Arendt and Political Theory is most revealing in the final chapter, ‘‘The Role of the Theorist.’’ I did not know Buckler, but this final chapter of his last book must stand as his apologia, his attempt—mediated through Arendt—to offer an account of a lifelong pursuit of an engaged politics. The theorist, Buckler writes, thinks and speaks from ‘‘the standpoint of the reflective citizen rather than [the standpoint] Arendt takes to be the traditionally accented voice of the philosopher’’ (154). He writes political theory as a citizen first, which means that he shows a general concern for ‘‘the enactment of the political and the conditions of its sustainability—the common world that provides us with grounds of common sense and terms within which we can interact coherently’’ (154). Unlike so much political theorizing today that takes critical thinking to demand criticism of everything, Buckler insists that theorists ‘‘must now share a common concern with the actor—albeit from a different experiential perspec- tive—a concern with the world and with its unguaranteed active maintenance’’ (161). The thinker today must think ‘‘for the sake of the world,’’—he must love the world—and thus must attend to the world and even tend to the worldly in ways that moderate the unlimited criticism of those theorists who do not recognize the precariousness of the modern world.

European Journal of Political Theory 2014, Vol. 13(3) 372–377

Read the Essay here https://www.academia.edu/7346987/Instituting_freedom_Steve_Buckler_and_Hannah_Arendt_on_an_Engaged_Political_Theory

Should We Justify War

Published in "Just War in Religion and Politics," ed. by Jacob Neusner, Bruce Chilton, and R.E. Tully (University Press of America, 2013).

 

Abstract: In speaking of "just war," we speak not of justice but of justification. As a matter of justification, just war theory can and often does work to exclude and preclude the question of justice in war. What is needed, rather, is a determination to recall that justice, and not merely justification, has a place in war. Instead of the justifications offered by just war theorizing, we must demand that those who fight and we who think about war not blind ourselves to the illumination of justice amidst the fog of war's justifications. 

https://www.academia.edu/405723/Should_We_Justify_War

 

 

Hannah Arendts erste Briefe an Karl Jaspers und Martin Heidegger: Freundschaft, Versöhnung und Wiederaufbau einer gemeinsamen Welt

Nach dem Krieg! - Nach dem Exil? Erste Briefe/First Letters 1945-1950, II, ed. Detlef Garz and David Kettler (Text und Kritik, 2012).

Apologies. This article is not currently available online.

Hannah Arendt and Human Rights

The Handbook of Human Rights (Routledge, 2011)

Hannah Arendt approaches human rights as someone who lived through their failure in the first half of the 20th century. A German Jew, Arendt understood antisemitism, experienced the denationalization of the Jews in Germany, and witnessed how the world and even the diaspora Jewish community largely ignored the plight of European Jewry. Arendt also saw how other minority peoples in Europe - Germans in Russia, Slovaks in Czechloslavakia, muslims in Yugoslavia, Gypsies, and many others - were systematically denaturalized, persecuted, and killed - all, as she emphasized, within the strictures of national and international law. For Arendt, the failure of human rights is a fundamental fact of modern times.

Read the full article here.

Assassinating Justly: Reflections on Justice and Revenge in the Osama Bin Laden Killing

Culture & the Humanities, Volume 7 Issue 3, October 2011

Assassination has always been part of war and in recent years it has played increasingly important roles in United States military policy. The assassination of Osama bin Laden offers itself as an example of an assassination that nevertheless claims to be just. Comparing the bin Laden assassination with the assassination of Simon Petlura by Sholom Schwartzbard in 1927 and the kidnapping and trial of Adolf Eichmann in 1961, this article argues that assassinations, which under certain conditions are justified under international law, can also be just, but only when they are accompanied by the risk of a jury trial.

Read the full paper here.

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Bearing Logs on Our Shoulders: Reconciliation, Judgment and the Building of a Common World

Theory and Event, (2011)

On her first return visit to Germany in 1950, Hannah Arendt went walking in the Black Forest with Martin Heidegger. They discussed revenge, forgiveness, and reconciliation. Upon her return to New York, Arendt began her diary of thoughts, her Denktagebuch. The first seven pages of Arendt's Denktagebuch argue that reconciliation—and not revenge or forgiveness—is an essential example of political judgment. The connection between reconciliation and judgment means that only reconciliation, and not revenge or forgiveness, can respond to wrongs in a way that fosters the political project of building and preserving a common world. This essay argues that the question—"Ought I to reconcile myself to the world?"—is, for Arendt, the pressing political question of our age.

View the full PDF here.

Lost in the Loneliness of Anti-Social Networks

The Fortnightly Review, (2011). Review of Sherry Turkle's Alone Together: Why We Expect More from Technology and Less from Each Other

THE UNMANNED DRONES DROPPING laser-guided bombs in Pakistan do what they are told. But now the military is pursuing ethically programmed robots that could make autonomous decisions about when and when not to fire. As roboethicist Ronald Arkin has argued, these robots might very well act more humanely than humans. This may not be a high bar, as our moral sense is easily impaired by anger or numbed by fear amidst the fog of war. Unlike humans, robots can be programmed to painstakingly follow a moral or legal code. The appeal of military robots is not simply that they are a useful tool like a gun or a tank; the appeal is that robots are actually better than humans at being humane.

Being humane and being human are not the same. Humans make mistakes, they are irrational, and they are befuddled by feelings. Humans are, for want of a better word, irremediably human and thus frequently inhumane. Our humanity – that human dignity that names our special claim to be the greatest species in existence – is also a mark of our inadequacy. We are merely human, and that seems to be the problem.

Read the full article here.

Why We Must Judge

Democracy: A Journal of Ideas (2010)

In 2004, The New York Times reported that numerous captured Iraqi military officers had been beaten by American interrogators, and that Major General Abed Hamed Mowhoush had been killed by suffocation. The Times has also published the stories of the so-called “ice man” of Abu Ghraib, Manadel al-Jamadi, who was beaten and killed while in U.S. custody, his body wrapped in ice to hide evidence of the beatings; of Walid bin Attash, forced to stand on his one leg (he lost the other fighting in Afghanistan) with his hands shackled above his head for two weeks; and of Gul Rahman, who died of hypothermia after being left naked from the waist down in a cold cell in a secret CIA prison outside Kabul. And the paper has documented the fate of Abu Zubaydah, captured in Pakistan, questioned in black sites and waterboarded at least 83 times, before being brought to Guantanamo, as well as the story of Khalid Shaikh Mohammed, waterboarded 183 times.

Read the full article here.

Liberating the Animal

Theory & Event (2010). Review of Vanessa Lemm's Nietzsche's Animal Philosophy

The animality of humans has been a basic axiom of philosophical thinking at least since Aristotle characterized the human being as the animal having logos. Logos is sometimes translated as speech, so that humanity is distinguished as the animal having language. Others, building upon Kant, translate logos as reason, itself a multi-faceted idea that alternates between the sense of calculative rationality and logic on the one side and a higher and less-well-defined sense of freedom and knowing on the other. Ambiguous as it remains, the appeal to man’s logos has for millennia named a hierarchical relationship, one in which human beings stand above irrational animals lacking logos.

The Aristotelian-Kantian elevation of the human as the animal who reasons is under attack. In part, the dissent results from our changing views of animals. At a conservation camp for the endangered Thai elephants in northern Thailand, elephants have been taught to paint. You can watch these amazing animals carefully administering brush strokes on internet videos. Elsewhere, scientific studies on mirror neurons in both humans and animals suggest that animals—especially elephants who are regularly observed in acts of empathy and grief—share the same neurological basis of the human moral faculty. The painting elephants and the grieving elephants—to take just two examples—raise questions about the traditional hierarchy of man over animal as the rational animal.

Read the full article here.

Thinking in Dark Times

in Thinking in Dark Times: Hannah Arendt on Ethics and Politics, ed. Roger Berkowitz, Jeff Katz, and Thomas Keenan (2009)

In Bertold Brecht’s poem “To Posterity,” the poet laments:

Truly, I live in dark times!
An artless word is foolish. A smooth forehead
Points to insensitivity. He who laughs
Has not yet received
The terrible news.
What times are these, in which
A conversation about trees is almost a crime
For in doing so we maintain our silence about so much wrongdoing!
And he who walks quietly across the street,
Passes out of the reach of his friends
Who are in danger?

Brecht’s poem inspires the title of one of Hannah Arendt’s lesser read books, Men in Dark Times. For Arendt, dark times are not limited to the tragedies of the 20th century; they are not even a rarity in the history of the world. Darkness, as she would have us understand it, does not name the genocides, purges, and hunger of a specific era. Instead, darkness refers to the way these horrors appear in public discourse and yet remain hidden. As Arendt observes, the tragedies to which Brecht’s poem refers were not shrouded in secrecy and mystery, yet they were darkened by the “highly efficient talk and double-talk of nearly all official representatives who, without interruption and in many ingenious variations, explained away unpleasant facts and justified concerns.” Similarly today, the various outrages--environmental, economic, and governmental--that confrontus daily are hidden in plain sight. Darkness, for Arendt, names the all-too-public invisibility of inconvenient facts, and not simply the horror of the facts themselves.

View the full PDF here.

Thinking in Dark Times - Six Questions for Roger Berkowitz

Harpers Magazine, (2009)

Fordham University Press has just put out Thinking in Dark Times: Hannah Arendt on Ethics and Politics, a collection of papers from a conference convened at Bard College to mark Arendt’s hundredth birthday. I put six questions to Roger Berkowitz, a professor at Bard and academic director of the Hannah Arendt Center for Ethical and Political Thinking, about issues addressed in the book.

Read the full interview here.

Approaching Infinity: Dignity in Arthur Koestler's Darkness at Noon

Philosophy and Literature, (October 2009)

Human dignity underlies human rights and is a pillar of liberal politics. Yet what is dignity? And what is the place of dignity in politics? Arthur Koestler’s Darkness at Noon is a searing inquiry into the conflict between dignity and reason as opposing grounds of politics. Koestler shows how a rationalist politics corrodes dignity. In response, he imagines dignity as a countermeasure to reason. Political action, he suggests, must be informed by a non-rational and non-religious appeal to the infinite that is the one guarantee of a human politics. There is no justice, Koestler argues, divorced from infinite justice.

Read the full article here.

Solitude and the Activity of Thinking

in Thinking in Dark Times: Hannah Arendt on Ethics and Politics, ed. Roger Berkowitz, Jeff Katz, and Thomas Keenan (2009)

“The true predicaments of our time.” Hannah Arendt wrote, “will assume their authentic form only when totalitarianism has become a thing of the past.” The totalitarianisms in Germany and the Soviet Union were only symptoms of these true predicaments, of what Arendt early on calls the mass society characterized by “organized loneliness.” Later, covering the trial of Adolf Eichmann, she would come to see that the bond between totalitarianism and loneliness is the phenomena of thoughtlessness.

View the full PDF here.

The Judge as Tragic Hero: An Arendtian Critique of Judging

HannahArendt.net, Articles/Research Notes v.4 (2008)

- Revised version, originally published in The Graduate Review (cont. as Critical Sense) v. 1, #1 (1994)

In his book Justice Accused,1 Robert Cover explores how and why ante-bellum Federal judges who were opposed to slavery consistently upheld the constitutionality of the Fugitive Slave Act of 1850.2 These judges claimed that despite their strong personal convictions that slavery was immoral and wrong, they were constrained by the U.S. Constitution to declare the Act constitutional.3 As Cover convincingly demonstrates, however, the arguments for the constitutionality of the Act of 1850 were not widely perceived to be ironclad, even in 1850.4 Nevertheless, the judges, at least some of whom were sincere in their opposition to slavery, upheld the Act.

Read the full article here.

Revolutionary Constitutionalism: Some Thoughts on Laurie Ackermann's Dignity Jurisprudence

Acta Juridica (2008)

- Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).

Justice Laurie Ackermann’s decision in Ferreira is a study in tonal dissonance. Ackermann’s 232 paragraph legal opinion begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank Holdings Ltd., a corporation that had gone bankrupt and ceased operations. Mr. Ferreira was summoned to give sworn testimony about the affairs and property of Prima Bank. He declined, asserting a right not to offer self-incriminating testimony. In doing so, Ferreira violated section 417 of the Companies Act that requires such testimony in administrative proceedings and also expressly allows that such testimony ‘may thereafter be used in evidence’ in a criminal proceeding.

View the full PDF here.

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Transcendence & Finitude in Drucilla Cornell's Philosophy of the Limit

Memory, Imagination, Feminism. On Drucilla Cornell, ed. Renee Heberle and Benjamin Pryor. (SUNY, 2008)

At the end of my first year of graduate school, I was bored. Faced with the reduction of thinking to politics on the one hand and the perversion of thinking into an indulgent pastime on the other, I was experiencing firsthand the antiintellectualism that now pervades our elite colleges and universities. And yet, from out of the swamp that is the American academy, two discoveries gave me hope. One was the encounter with the thought of Martin Heidegger through my mentor in Berkeley, Philippe Nonet. The other was the work of Drucilla Cornell.

I had never heard of Cornell when I was assigned The Philosophy of the Limit in a seminar in the Berkeley Rhetoric department in 1992. What struck me in that book—struck me so hard that I sought out the author and, with her blessing, took a leave of absence from graduate school to journey back across the country to study with her for six months—what struck me was its force of thinking.

View the full PDF here.

Hannah Arendt and Human Rights

Philosophy in Review (December, 2007). Review of Peg Birmingham's Hannah Arendt and Human Rights

Apologies. This article is not currently available online.

Democratic Legitimacy and the Scientific Foundation of Modern Law

Theoretical Inquiries in Law, v. 8.1 (2006)

This Article explores the unacknowledged impact of the scientifc provenance of modern law. Justice, I argue, is threatened by social scientifc thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I contest the conventional wisdom that positive law originates not with science but with democracy. In addition, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.

View the full PDF here.

Disorderly Differences: Recognition, Accommodation, and American Law

(With Austin Sarat). Law and Religion, ed. Gad Barzilai (Ashgate, 2006)

- Originally published in Yale J. of Law and Humanities (June 1994).

Read the full article here.

The Encyclopedia of Truth

Law, Culture, and the Humanities, v. 2, #1 (2006). Review of Rainer Maria Kiesow's The Alphabet of Law

Read the full article here.

Friedrich Nietzsche, the Code of Manu, and the Art of Legislation

New Nietzsche Studies v. 6 (2006)

- Expanded version, originally published in Cardozo Law Rev. v. 24 (2003).

Political and legal theorists ask the question: What should law be? In so doing, they implicitly or explicitly overlook what law is. This preference for the normative as opposed to the ontological approach to law is rooted in the assumption that law serves social and political ends.

Indeed, in deference to its normative interests, legal scholarship has embraced a diversity of social sciences to assist in the discovery of the best laws. For example, the marriage of law and sociology seeks social norms of fairness according to which particular laws should be understood and interpreted. Similarly, the science of moral philosophy strives to isolate intersubjective moral norms that will guide legislation and legal interpretation. Positivist legal science strives to determine rules of recognition for the identification of valid laws that guaranty the certainty and security promised by the rule of law. Most recently, the sciences of both rational and behavioral economics have emerged as powerful tools, facilitating the discovery of those laws that maximize efficiency.

View the full PDF here.

Revenge and Justice

Guest editor of Law, Culture, and the Humanities. Vol. 1, #3 (Spring, 2006)

Read the full article here.

Parables of Revenge and Masculinity in Clint Eastwood's Mystic River

Law, Culture, and the Humanities v. 1, #3 (2005) (With Drucilla Cornell)

- Reprinted in Clint Eastwood and Issues of American Masculinity, Drucilla Cornell (Fordham University Press, 2009).

This paper offers a reading of Clint Eastwood's film Mystic River. Mystic River differs from archetypal Hollywood revenge movies in one important way: the act of revenge kills the wrong man. Moreover, instead of abandoning its wayward avenger, the movie strives to defend or at least to understand the act of wrongful vengeance as the loving act of a kingly father. To explore the connection between trauma, masculinity, and revenge, the paper follows the stories of the film's three male protagonists. Dave is defeated by his boyhood trauma and never recovers. Jimmy, the film's avenger, forcefully resists the dehumanizing power of the loss of his daughter by taking revenge. Sean neither succumbs to trauma nor masters it. Instead, Sean –when confronted by his wife's silent departure and with the fact of Jimmy's vengeance –responds by admitting his vulnerability. An upright man struggling to balance his masculinity with the reality of his tragic limitations, Sean's willingness to accept his human finitude is set against Jimmy's rebellious insistence on his superhuman justice based on the prerogative of vengeance.

Read the full article here.

The Accusers: Law, Justice, and the Image of Prosecutors in Hollywood

Griffith Faculty Law Review v. 13, #2 (2005)

This essay begins with the observation that the American culture industry is nearly incapable of presenting state prosecutors in a positive light. Through readings of three apparent exceptions to this rule, the essay argues that prosecutors can only be heroically and positively conceived on screen when they abandon their traditional association with law and seek to do justice beyond the laws. To the extent that prosecutors can be seen as a proxy for the image of the ideal of legal justice itself, this essay argues that the imagining of prosecutorial justice in Hollywood shows that law has lost its once-assumed connection with justice.

Read the full article here.

The Gift of Science: Leibniz and the Modern Legal Tradition

Harvard University Press (2005); Law Press (Forthcoming, 2010). Chinese language edition; Fordham University Press (2010). Paperback.

The front pages of our newspapers and the lead stories on the evening news bear witness to the divorce of law from justice. The rich and famous get away with murder; Fortune 500 corporations operate sweatshops with impunity; blue-chip energy companies that spoil the environment and sicken communities face mere fines that don't dent profits. In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz looks beyond these headlines to explore the historical and philosophical roots of our current legal and ethical crisis.

Read more of the introduction as well as reviews here.

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Harsh Justice

Law, Culture, and the Humanities, v. 1, #1 (2005). Review of James Whitman's Harsh Justice

Read the full article here.

The Spring of Law: Some Thoughts Inspired by Nietzsche's Doctrine of the Sittlichkeit der Sitte

Rechtsgeschichte v. 6 (2005)

The man from the country stands before the door of the law. The man confronts the law as an open door through which he cannot pass. Law, as Rainer Maria Kiesow has written, is an open book that begs to be read even as it simultaneously announces its impossibility. The man of law is confronted with the paradoxical injunction to read what can't be read. That is the law.

Read the full article here.

Error-Centricity, Habeas Corpus, and the Rule of Law as the Law of Rules

Louisiana Law Review v. 64 (2004)

On August 10th, 1927, as hundreds of thousands of protesters marched in New York, Paris, Berlin and in cities from South America to the Soviet Union, as workers around the world called general strikes and took to the streets, and as, in the words of one commentator, “the world waited,”1 a team of attorneys representing Nicola Sacco and Bartolomeo Vanzetti sought out United States Supreme Court Justice Oliver Wendell Holmes, Jr. Trailed by journalists to Holmes’ Beverly, Massachusetts summer residence, the attorneys pleaded with the Justice to grant Sacco and Vanzetti a writ of habeas corpus. If Holmes were to grant the writ, the murder verdict against the two Italian-American anarchists would be nullified, and they would be set free pending a new trial. As Sacco and Vanzetti were scheduled to be executed that evening, time was short and tensions were high.

View the full PDF here.

History and the Noble Art of Lying

Rechtsgeschichte v. 4 (2004)

Wozu Rechtsgeschichte? To ask is to accuse. Is there any doubt about the answer? Why is a rose a rose? Because it is (Martin Heidegger, Der Satz vom Grund).

In 1886, Friedrich Nietzsche reissued his first, youthful, brash and yet fragwürdiges book. Die Geburt der Tragödie, he informed us in the newly written critical preface, was in many ways a book infected with the passions of youth. Nevertheless, Nietzsche deemed it worthy of republication because it posed a valuable question, one of the »first rank«. Not only of abstract worth, the question was »a deep personal question«. The book asked: Wozu – griechische Kunst? … In approximate English translation, »What for – Greek art?…« (Geburt der Tragödie [GdT], Kritische Studienausgabe [KSA] I, 12).

Nearly 120 years later, the editors of Rechtsgeschichte have asked us to think about the question, Wozu – Rechtsgeschichte? What for – legal history? With Nietzsche reverberating in the background, the question imposes itself: is this a question of merely abstract worth? Is it a personal query? Is it an opportunity for selfjustification, or does it scratch beneath the surface of a scabrous wound?

View the full PDF here.

Law, Justice, and the Transformation of the Prosecutorial Ethic

Rechtssysteme im Vergleich: Die Staatsanwaltschaft, ed. Dieter Simon, et al. (2004)

One of the great puzzles of the popular genre of legal films is that despite the insatiable hunger for cop action films in which beleaguered police overcome great odds to put the bad guys in their proper place, their partners in law enforcement, the public prosecutors, are virtually invisible in the history of American film. Police dramas have no problem romanticizing the role of law enforcement; for some reason, however, the popularly conceived heroism that attaches to cops through the imposition of order on the chaos of centripetal passions does not carry over to prosecutors. On the contrary, prosecutors have been and remain one of Hollywood's most regularly scorned professions. Indeed, it can be said with a surprising degree of confidence that Hollywood has not produced one single film in which prosecutors are either heroically or sympathetically portrayed in their everyday job of prosecuting and convicting criminals.

Read the full article here.

Nietzche's Love

Journal of Politics, v. 65 (2003). Review of Laurence Lampert's Nietzsche's Task

Nietzsche prophesied that “people may be able to read [Beyond Good and Evil] around the year 2000” (301). In Nietzsche’s Task: An Interpretation of Beyond Good and Evil, Laurence Lampert seeks to make good on Nietzsche’s prophecy.

Lampert’s fifth book dedicated to Nietzsche, Nietzsche’s Task, should serve as one important model for future Nietzsche scholarship. Nietzsche’s Task proceeds chapter by chapter, paragraph by paragraph (with the exception of the aphorisms in (chapter four), offering a systematic and pathbreaking way through one of Nietzsche’s most challenging texts. No other secondary source I know of has successfully given such a coherent and meaningful reading of one of Nietzsche’s books. We need more books that seek a way through the labyrinth of Nietzsche’s thought through close readings of his texts.

View the full PDF here. (See page 6).

'Not Guilty' - Millennial Speculations on Legal Defense from Queen Fredegond to Bill Clinton

Advocatus Defensorum, ed. Dieter Simon, et al. (2000)

Accused of adultery, the 6th century Merovingian Queen Fredegond was challenged by her dead husband's brother to prove that her son, the future Clotaire II, was indeed of royal progeny. The Queen, in conformity with the law, defended herself by means of a compurgatory oath. The oath was in effect a formal and material denial of the charge and an assertion of her innocence. The success of the compurgation oath rested solely on the ability of the defendant oath-taker to provide the requisite number of oath helpers who would swear, not to the truth or falsity of the accusation, but to the honor and truthfulness of the oath taker. Fortunately, Queen Fredegond was so generous a lover that she had little difficulty rounding up three Bishops and 300 of the most honorable men in her realm to serve as her co-jurators. With her oath, the Queen alleviated the King's (assuredly justified) suspician, defended herself, preserved her son's claim to a noble birth, and repulsed the accusation of adultery. No evidence beyond her denail was introduced in her defense.

Read the full article here.

Some Prefatory Remarks on Positive Law (Gesetz)

Rechtshistorisches Journal, v. 19 (2000). Review of A. Sebok's Legal Positivism in American Jurisprudence.

Read the full article here.

Crossing the Warrior Path

Rechtshistorisches Journal, Volume 16, 1998. Review essay on Thomas Pynchon's Mason & Dixon

“‘It goes back,’” Thomas Pynchon invites us to imagine, “‘ to the second Day of Creation, when ‘G-d made the Firmament, and divided the Waters which were under the Firmament, from the waters which were above the Frimament,’ -- thus the first boundary Line. All else after that, in all History, is but Sub-Division.’”

In the beginning was sub-division, which is to say: In the beginning was the lawsuit. And how different is that from the Word? Are not theology and jurisprudence sister sciences, dedicated to the proper -- or must we today say authoritative? -- interpretation of manifested truths -- or must we say desires? If theology endeavors to rightly discipline the expression of desire, the functional essence of the lawsuit is instead the authoritative resolution of conflicting desires. The traditional bridge between theology and jurisprudence consists, of course, in the latter’s purported subsumption to the former.

View the full PDF here.

Truth and Error: Legal Error and the Uniquely American Doctrine of Habeas Corpus

Error Iudicis. Juristische Wahrheit und justizieller Irrtum, ed. A. Gouron, et al. (1998)

Read the full article here.

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The Judge as Captain

Europaische und Amerikanische Richterbilder, ed. A. Gouron, et al. (1996)

To pursue the question of judicial duty, it is first necessary to gain clarity about the concept of obligation. An obligation, if it is to be morally valid, must be absolute and unqualified. Oliver Wendell Holmes, Jr., one of the United States' greatest Supreme Court Justices, was one of the last legal thinkers to understand the necessity that duty be absolute. As Holmes writes, "[t]he test of a legal duty is the absolute nature of the command." If a judge is to have a duty, it must be absolute. But towards what is that absolute duty?

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