Monday, May 29, 2006
A new beginning to an old story
I've relocated again after a temporary diversion via the mac blog. This one should be for good:
http://inspiredbycoffee.squarespace.com/
Come join the fun.
http://inspiredbycoffee.squarespace.com/
Come join the fun.
Sunday, May 28, 2006
A la recherche d'un blog perdu
Time for a change, I think.
This whole blog business seems rather to have ground to a halt recently. It's not that I haven't had anything to say, of course, far from it, (anyone who knows me will understand that I've always got something to blab about) however my energies have been diverted by other more pressing things, not least of all work! I just finished writing a research paper for a professor here at McGill, for instance, which was an extremely interesting experience: my first extended piece of writing, nowhere near thesis length of course, but somehow it felt like practice. Anyway, I decided not to put it on here as it's so particular to its context, I think, that it wouldn't make much sense to anyone. And now I'm busying myself with the final readings before I get my act together and write this paper for the conference in Melbourne - which, by the way, I am now definitely going to; the flights are booked, one week in Melbourne at least before heading off to Sydney to stay with Stanya for another week and then home. Promises to be very exciting.
Anyway, so the point is that the blog has been seriously neglected and it's time to kick-start it again but with something of a change of tone. Hopefully without becoming one of those annoying annecdotalists, those 'you know what's interesting? Soap. How do they make that anyway?' types (though, frankly, I do sometimes wonder!), I want to make this all a little less formal, less philosophical and, to be completely honest, quicker! I've got a perfect little patch of time lined up for it too: that period after reading the morning newspapers online over coffee, just about the time I tuck in to my Montreal bagel with cream cheese (or sometimes peanut butter), before packing my bags and heading off to the library. Oh what an exciting life I lead! (He says with less irony than you might suspect). Perfect. It'll be chatty, it probably won't be fully thought through, it certainly won't be spellchecked, but at least it'll be, and I'll be happy.
So to get things off the ground, then, I thought I might finally put to paper (there must surely be a better metaphor than that in this electronic age!) an idea or two about blogging in general that have been in the back of my mind for a while now.
One of the geniuses of blogging is that it is theoretically the (almost) perfect example of a democracy - you need to have time and a computer of course (rarer things than you might suspect). 'Comment is free' the Guardian online lauds. True. But they forgot to mention that it is also increasingly boring and repetitive, often banal, frequently inane, and, in one sense at least, self-defeating and pointless.
I have noticed that almost all comments on the blogs I read - mainly the guardian's http://blogs.guardian.co.uk/culturevulture/, http://blogs.guardian.co.uk/news/, and http://commentisfree.guardian.co.uk/index.html - end up performing the same structure, time and time again. What you typically get is:
- a few responses to the main article, about 10 lines or so long, either saying they agree with the majority of what was said or, flippantly, that it's a load of (insert political bias of your choice) rubbish
- followed by a sarcastic response to one of these early posts, sometimes with reasons, often not
- with a swift rebuttal from the original author saying that the other person is an idiot and has no idea what they're talking about, that descends into general lambasting for a good while
- with a few more of the same old arguments in the same old way of the same old length with the same old lack of any genuine understanding of the area, in and around all that
- and then, usually somewhere in the middle, you'll find my personal favourite, the 'you're all a load of pretentious snobs' comment. It's normally just left at that, no explanation, nothing. Brilliant. And I'm left wondering why on earth that person is reading the guardian online in the first place.
Partly I think it has to do with the way these blogs are set up. The format makes for a very adversarial mode. Commentors are encouraged to say something as if it were their last word every time they make a post which leads inevitably to antagonism. Partly, also, there must be something in the fact that the openness of the forum allows uninformed people to post merely because they can. Those who think they know what they're talking about, of course, can't help but call them on it. But then the line between the informed and the uninformed starts to blur.
Here's an example:
http://www.guardian.co.uk/commentisfree/story/0,,1781655,00.html
The lead story here is written by Ronald Dworkin. It's excellent. What follows, however, is most certainly not.
It strikes me that what is really at issue, here, is a serious and general lack of imagination. Whatever happened to cooperation for instance? And what happened to knowing that sometimes silence is louder than words?
And with those pilphered words of wisdom, I think I should probably sign off. This post has already extended well beyond the allotted bagel time. Perhaps, though, it might be apposite to direct anyone who hasn't done so already towards two better examples of this apparently ailing (just as it ironically appears to be going from strength to strength) format than my own: namely Ryan's and Edward's blogs. Both, it seems to me, strike a rather nice balance between form, content, imagination and cooperation. Perhaps the real beauty of the blog is not that anyone can democratically comment from within a system, but rather that anyone can create a system entirely of their own if they don't like what's already on offer. Would that there were a similar alternative in the 'real' as well as in the 'virtual' world!
Sunday, April 09, 2006
Context is everything
The following is an essay I wrote for a mid-term last semester in my class on 'Theoretical Approaches to Law.' It didn't get an especially great mark at the time but I was just reading over again because I was bored and I really like it. How does it work outside of its 'intended' context? Is it a successful piece of writing for anyone else than me? Does it even make any sense at all on a blog like this when you haven't read the case that it tangentially refers to?
I am just about to do the term paper for my class on Legal Education. We have to design a course. I'm doing 'aesthetic legal theory' I think, and one of the things I need to think about is what criteria I want to use for grading. This is especially important in the context of a course that explicitly asks us to consider 'alternative' methods or practices of interpretation. What should you do as a professor if someone writes something for you that wasn't precisely an answer to the
question you had intended but is nonetheless thoughtfully written and manages successfuly to capture the spirit of the class in general? In other words, what is an ethical grading system in a class that explicitly challenges you to challenge the orthodoxy as my class will and, I would contend (with a grumble) that the class I wrote this essay for did?
Most importantly, what mark would I give myself now that time has ensured that the context has totally changed?
A Foucaultian analysis of Marcovitz v Bruker (2005)
I am asked critically to comment on the decision of the Quebec Court of Appeal in Marcovitz v Bruker by ‘situating myself frankly within’ whatever theoretical approach I choose to adopt. By electing to undertake a Foucaultian analysis, however, I immediately resign myself to failure; not total failure, mind, but failure nonetheless. But in doing so, in a sense I only strengthen my commitment to the Foucaultian project – a paradox perhaps, but an important one I would submit. Let me explain.
There are two main strands to Foucault’s work at my count, call them his ‘method’ and his ‘web of concepts’ for the sake of ease if not absolute clarity. ‘Not absolute clarity,’ I said, because the two are so closely linked that not only do they each imply the other but also, in an important sense, they comprise just one single theme, namely (and note the influence of Nietzsche and Heidegger here) the refusal to engage in the orthodox debate in the orthodox (or even heretical) way. I will come back to my labels below but first a little more on Foucault’s total rejection of the orthodoxy.
By ‘rejection of the orthodoxy,’ then, I do not mean the way in which the Marxist, for instance, rejects orthodox Conservative-Capitalist ideology, or the way in which the Realist refuses to accept the orthodox positivistic view of law as rules, but rather the complete denial of the relevance of this type of argumentation at all. For both the Marxist and the Realist in an important sense maintain the orthodoxy rather than (or even, when they) subvert it. As Desmond Manderson puts it,
‘the orthodox and the heretic are closer than one might suppose…On one level a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions.’
At risk of laboring the point, then, although the Marxist rejects the Capitalist’s ideological stance on property and power, by recognizing property and power as worthy of their consideration in their own ideology they collaterally indorse the Capitalist ideology they seek to reject. By refusing to answer the traditional questions Foucault develops something like a whole ‘new genre of legal theory’ (and I recognize that by the very use of the term ‘legal theory’ I do him an injustice). Although I don’t think Manderson ever explicitly goes so far as to include Foucault in this category, we might nonetheless call Foucault an ‘Apocryphal’ - neither orthodox nor heretical, and, perhaps most importantly, hidden and supposedly illegitimate.
This is the context in which a Foucaultian analysis of Marcovitz v Bruker, or any case for that matter, must be set. As I go on to elucidate the Foucaultian project it will become clear that it is inherently incompatible with traditional case law analysis. How so? It is certainly not an approach that is likely to be cited in the courtroom any time soon, indeed by its very nature it rejects the significance of the courtroom and all of the courtroom’s implications for standard legal thought – dialectic argument, the adversary approach and top-down judge-administered authority etc. Hence the paradox I spoke of in the opening paragraph. The analysis of a legal judgement can never be ‘frankly’ Foucaultian if by frankness is meant anything like genuine honesty or integrity. But the very recognition of this limitation goes further towards the apocryphal than either the orthodox or the heretic. If I can’t be ‘frankly’ Foucaultian without embarking upon an historical, archaelogical or genealogical investigation, if I can’t be ‘frankly’ Foucaultian without rejecting the very relevance of the supposed authority and power of law and legal judgement and if I am rendered unable by the very nature of my task here to do either of those things, then I can at least be truer to Foucault’s ‘apocraphy’ by recognizing that fact.
The paradox thus partially resolved, let me begin with the analysis proper, or at least begin to begin with it. For there is more to Foucault than ‘method’ – and it is limitations as to ‘method’ that I have just been concerned with – so archaeology, geneaology, and the general refusal to engage with ‘law’ on the orthodox battle field - for the sake of clarity. It is ‘method’ that I’m afraid must for the time being sacrifice to the Gods of form in legal education and examination, and not to mention those of knowledge, time and resources, but it is ‘method’ only. Despite the proximity of what I have inadequately called Foucault’s ‘web of concepts’ to his ‘method,’ the two strands are at least sufficiently distinct, I think, that it is worthwhile to consider the implications of the former even without doing so within the framework of the latter.
In the final part of this analysis, then, I will address the Quebec Court of Appeal’s decision in Marcovitz v Bruker in relation to Foucault’s ‘web of concepts.’ That I will do so after more than half my allotted space has gone, and only after dealing in yet more detail with Foucault in abstract, might surprise some readers, it may even be a poor tactic on my part, but at the very least it serves to underline an important claim in Foucault’s work only very partially addressed up till now and soon to be explored in more detail below. For Foucault there is so much more to law than mere legal judgement and, far more importantly, there is so much more to life and the traditional realm of law’s empire than law. In the same way there is much more to a Foucaultian analysis of Marcovitz v Bruker than merely trotting through some vague Foucaultian ideas. In law and in life, Foucault might have said, it is necessary to place everything in its proper context. Indeed, to do so you may well have to challenge the orthodoxy, be apocryphal even. In this analysis, I have tried to put the forthcoming discussion in its proper context and in my own very small way I would like to think that I have also challenged the orthodoxy, though I’d be the first to decry a claim that I have been in any way apocryphal.
I shouldn’t be allowed to get away with being coy here, however. As important as it is not to focus all the attention of a Foucaultian analysis on legal matters, the implications of Foucault’s work on our understanding of the workings of law are profound. The problem is, though, and this is perfectly consistent with the apocryphal nature of Foucault’s work, that the tools he proffers for describing a Western society where law is no longer the principle ordering mechanism, what I have called his ‘web of concepts’, are precisely that – a ‘web.’ So there is still more to be said before the analysis ‘proper' can really begin.
Refusing to conform to Western Philosophical norms, Foucault’s ‘web’ has a very definite centre from and around which his other concepts emanate, namely ‘power.’ But ‘Foucault proposes a radically new account of power,’ and most especially, ‘he wants to get away from the simple equation of power with repression;’ ‘power’ is not something held and administered by the state against a person or people, power is not the special reserve of law, it is a relation and a strategy, that much is clear. But a web is no web at all if it has only a centre. So throughout the course of his various and diverse texts on ‘modernity’, Foucault brings the centre of the web into ever-sharper relief via his exploration of other key concepts, strengthening the web as a whole as he does so. Thus, Foucault adumbrates his concept of ‘discourse,’ or rather the ‘multiplicity of discourses’ which are not limited to language but include ‘institutional practices’ as experienced through language. When two or more competing discourses collide ‘truth’ or ‘truth-claims’ are generated. Moreover, this is not done ‘dispassionately’ for ‘truth is not separated from power, rather it is one of the most important vehicles and expressions of power; power is exercised through the production and dissemination of truth.’ So Foucaultian power is necessarily tied up with ‘discourse’, ‘truth’, and truth-producing ‘strategy’. One such modern strategy is ‘discipline,’ which, via the technique of invisible but constant ‘surveillance,’ recording and training, ‘normalizes’ judgement, induces ‘self-discipline,’ so that we are now ‘governed’ not, or only partially, by the state, law and top-down power in the traditional sense, but more by our family, our peers, our schooling, our religion and even by ourselves, power from below. Law also plays a role, but a ‘normalizing’ one, it is but one ‘discourse’ of many.
Now my brief description of some of the key threads in Foucault’s ‘web of concepts’ is massively incomplete, I admit, but I would argue that that is in the nature of the web. Foucault does not devote any one section, chapter or book of text to explicating a concept once and for all, rather he makes each concept fluid. Each thread merges seamlessly into the next so that it is difficult to see where one finishes and another begins. Discipline and Punish and The History of Sexuality Vol 1 , for instance, in their discussions of the whole Foucaultian ‘web of concepts,’ are each radically incomplete without some knowledge of the other, even though they were written a year apart. Of course, the same is true to a certain degree with most authors, but it is especially true with Foucault who is all about context, geneaology, growth, and, as we have already seen, the refusal to engage in philosophy in the orthodox Western tradition.
Why bother with all this then? Is it merely an exercise in deferring the ‘real point’ of this essay? Perhaps one might conclude that I have little to say on Marcovitz v Bruker. Not so, though I now have little space to do so. As I have already said I am far from ‘apocryphal’ here but I am nevertheless committed to giving my analysis its proper context in the Foucaultian project, which yet dooms it to failure. A Foucaultian analysis of Marcovitz v Bruker would be hopelessly inadequate without this preceding discussion, I would suggest, and if that renders my argument ‘illegitimate’ in the eyes of the Western tradition then so be it; perhaps I am more apocryphal than I thought, my resolve is merely strengthened. Onwards to (the) judgement then.
In Foucaultian terms Marcovitz v Bruker is demonstrative of the struggle between competing discourses, truth-claims and power locations, primarily here between law and religion. Moreover, in the court’s refusal to render paragraph twelve of the consent enforceable it is indicative of the triumph of the religious over the legal. ‘Normalization’ is also very clearly at work here. Ms. Bruker clearly wants to conform, or at least be seen to conform to a number of different norms, both religious and social. She wants to be able to marry, a product of the ‘deployment of alliance’ as Foucault would put it and the ‘centrifugal movement with respect to heterosexual monogomy’ and within her religion at that, for she has been taught that that is important since her first trips to Sunday school. But the ‘deployment of sexuality’ has done its work so that she is happy to have extra-marital intercourse for the time being, and moreover to ‘confess’ to that in court. Indeed, she wants compensation for her inability to marry and have children, another product of normalization, the so-called ‘compensation culture’ in which we currently live, where justice has not been done until it has a value.
But the irony is that the result of all this is to be decided before a court of law. Does not law really hold the power then, even if it chooses not to exercise it? Not according to Foucault. Rather, law, itself a producer of norms, is a product of normalization. It is effectively constrained to decide according to the prevalent socio-political climate. Not that it always has to, however, for law, like all other locations of power, has the capacity to alter the discourse.
A feminist analysing Marcovitz v Bruker would no doubt find it ideologically abhorrent, they would analyse the terminology used by the judge, the format of the inquiry and the decision rendered and conclude that the judgement was wrong. A Foucaultian analysist, however, would ask what is Western ideology anyway? Why should I engage in this debate on law’s playing field? Why should I undertake a textual analysis? Aren’t there more important things than law going on here? And then he might chuckle to himself, and say ‘perhaps one day people will wonder at this,’ and ruminate on the virtue of change that the Foucaultain notion of power, and its ‘web’ of related concepts, provides every person and institution with the capacity to engage in.
I am just about to do the term paper for my class on Legal Education. We have to design a course. I'm doing 'aesthetic legal theory' I think, and one of the things I need to think about is what criteria I want to use for grading. This is especially important in the context of a course that explicitly asks us to consider 'alternative' methods or practices of interpretation. What should you do as a professor if someone writes something for you that wasn't precisely an answer to the
question you had intended but is nonetheless thoughtfully written and manages successfuly to capture the spirit of the class in general? In other words, what is an ethical grading system in a class that explicitly challenges you to challenge the orthodoxy as my class will and, I would contend (with a grumble) that the class I wrote this essay for did?
Most importantly, what mark would I give myself now that time has ensured that the context has totally changed?
A Foucaultian analysis of Marcovitz v Bruker (2005)
I am asked critically to comment on the decision of the Quebec Court of Appeal in Marcovitz v Bruker by ‘situating myself frankly within’ whatever theoretical approach I choose to adopt. By electing to undertake a Foucaultian analysis, however, I immediately resign myself to failure; not total failure, mind, but failure nonetheless. But in doing so, in a sense I only strengthen my commitment to the Foucaultian project – a paradox perhaps, but an important one I would submit. Let me explain.
There are two main strands to Foucault’s work at my count, call them his ‘method’ and his ‘web of concepts’ for the sake of ease if not absolute clarity. ‘Not absolute clarity,’ I said, because the two are so closely linked that not only do they each imply the other but also, in an important sense, they comprise just one single theme, namely (and note the influence of Nietzsche and Heidegger here) the refusal to engage in the orthodox debate in the orthodox (or even heretical) way. I will come back to my labels below but first a little more on Foucault’s total rejection of the orthodoxy.
By ‘rejection of the orthodoxy,’ then, I do not mean the way in which the Marxist, for instance, rejects orthodox Conservative-Capitalist ideology, or the way in which the Realist refuses to accept the orthodox positivistic view of law as rules, but rather the complete denial of the relevance of this type of argumentation at all. For both the Marxist and the Realist in an important sense maintain the orthodoxy rather than (or even, when they) subvert it. As Desmond Manderson puts it,
‘the orthodox and the heretic are closer than one might suppose…On one level a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions.’
At risk of laboring the point, then, although the Marxist rejects the Capitalist’s ideological stance on property and power, by recognizing property and power as worthy of their consideration in their own ideology they collaterally indorse the Capitalist ideology they seek to reject. By refusing to answer the traditional questions Foucault develops something like a whole ‘new genre of legal theory’ (and I recognize that by the very use of the term ‘legal theory’ I do him an injustice). Although I don’t think Manderson ever explicitly goes so far as to include Foucault in this category, we might nonetheless call Foucault an ‘Apocryphal’ - neither orthodox nor heretical, and, perhaps most importantly, hidden and supposedly illegitimate.
This is the context in which a Foucaultian analysis of Marcovitz v Bruker, or any case for that matter, must be set. As I go on to elucidate the Foucaultian project it will become clear that it is inherently incompatible with traditional case law analysis. How so? It is certainly not an approach that is likely to be cited in the courtroom any time soon, indeed by its very nature it rejects the significance of the courtroom and all of the courtroom’s implications for standard legal thought – dialectic argument, the adversary approach and top-down judge-administered authority etc. Hence the paradox I spoke of in the opening paragraph. The analysis of a legal judgement can never be ‘frankly’ Foucaultian if by frankness is meant anything like genuine honesty or integrity. But the very recognition of this limitation goes further towards the apocryphal than either the orthodox or the heretic. If I can’t be ‘frankly’ Foucaultian without embarking upon an historical, archaelogical or genealogical investigation, if I can’t be ‘frankly’ Foucaultian without rejecting the very relevance of the supposed authority and power of law and legal judgement and if I am rendered unable by the very nature of my task here to do either of those things, then I can at least be truer to Foucault’s ‘apocraphy’ by recognizing that fact.
The paradox thus partially resolved, let me begin with the analysis proper, or at least begin to begin with it. For there is more to Foucault than ‘method’ – and it is limitations as to ‘method’ that I have just been concerned with – so archaeology, geneaology, and the general refusal to engage with ‘law’ on the orthodox battle field - for the sake of clarity. It is ‘method’ that I’m afraid must for the time being sacrifice to the Gods of form in legal education and examination, and not to mention those of knowledge, time and resources, but it is ‘method’ only. Despite the proximity of what I have inadequately called Foucault’s ‘web of concepts’ to his ‘method,’ the two strands are at least sufficiently distinct, I think, that it is worthwhile to consider the implications of the former even without doing so within the framework of the latter.
In the final part of this analysis, then, I will address the Quebec Court of Appeal’s decision in Marcovitz v Bruker in relation to Foucault’s ‘web of concepts.’ That I will do so after more than half my allotted space has gone, and only after dealing in yet more detail with Foucault in abstract, might surprise some readers, it may even be a poor tactic on my part, but at the very least it serves to underline an important claim in Foucault’s work only very partially addressed up till now and soon to be explored in more detail below. For Foucault there is so much more to law than mere legal judgement and, far more importantly, there is so much more to life and the traditional realm of law’s empire than law. In the same way there is much more to a Foucaultian analysis of Marcovitz v Bruker than merely trotting through some vague Foucaultian ideas. In law and in life, Foucault might have said, it is necessary to place everything in its proper context. Indeed, to do so you may well have to challenge the orthodoxy, be apocryphal even. In this analysis, I have tried to put the forthcoming discussion in its proper context and in my own very small way I would like to think that I have also challenged the orthodoxy, though I’d be the first to decry a claim that I have been in any way apocryphal.
I shouldn’t be allowed to get away with being coy here, however. As important as it is not to focus all the attention of a Foucaultian analysis on legal matters, the implications of Foucault’s work on our understanding of the workings of law are profound. The problem is, though, and this is perfectly consistent with the apocryphal nature of Foucault’s work, that the tools he proffers for describing a Western society where law is no longer the principle ordering mechanism, what I have called his ‘web of concepts’, are precisely that – a ‘web.’ So there is still more to be said before the analysis ‘proper' can really begin.
Refusing to conform to Western Philosophical norms, Foucault’s ‘web’ has a very definite centre from and around which his other concepts emanate, namely ‘power.’ But ‘Foucault proposes a radically new account of power,’ and most especially, ‘he wants to get away from the simple equation of power with repression;’ ‘power’ is not something held and administered by the state against a person or people, power is not the special reserve of law, it is a relation and a strategy, that much is clear. But a web is no web at all if it has only a centre. So throughout the course of his various and diverse texts on ‘modernity’, Foucault brings the centre of the web into ever-sharper relief via his exploration of other key concepts, strengthening the web as a whole as he does so. Thus, Foucault adumbrates his concept of ‘discourse,’ or rather the ‘multiplicity of discourses’ which are not limited to language but include ‘institutional practices’ as experienced through language. When two or more competing discourses collide ‘truth’ or ‘truth-claims’ are generated. Moreover, this is not done ‘dispassionately’ for ‘truth is not separated from power, rather it is one of the most important vehicles and expressions of power; power is exercised through the production and dissemination of truth.’ So Foucaultian power is necessarily tied up with ‘discourse’, ‘truth’, and truth-producing ‘strategy’. One such modern strategy is ‘discipline,’ which, via the technique of invisible but constant ‘surveillance,’ recording and training, ‘normalizes’ judgement, induces ‘self-discipline,’ so that we are now ‘governed’ not, or only partially, by the state, law and top-down power in the traditional sense, but more by our family, our peers, our schooling, our religion and even by ourselves, power from below. Law also plays a role, but a ‘normalizing’ one, it is but one ‘discourse’ of many.
Now my brief description of some of the key threads in Foucault’s ‘web of concepts’ is massively incomplete, I admit, but I would argue that that is in the nature of the web. Foucault does not devote any one section, chapter or book of text to explicating a concept once and for all, rather he makes each concept fluid. Each thread merges seamlessly into the next so that it is difficult to see where one finishes and another begins. Discipline and Punish and The History of Sexuality Vol 1 , for instance, in their discussions of the whole Foucaultian ‘web of concepts,’ are each radically incomplete without some knowledge of the other, even though they were written a year apart. Of course, the same is true to a certain degree with most authors, but it is especially true with Foucault who is all about context, geneaology, growth, and, as we have already seen, the refusal to engage in philosophy in the orthodox Western tradition.
Why bother with all this then? Is it merely an exercise in deferring the ‘real point’ of this essay? Perhaps one might conclude that I have little to say on Marcovitz v Bruker. Not so, though I now have little space to do so. As I have already said I am far from ‘apocryphal’ here but I am nevertheless committed to giving my analysis its proper context in the Foucaultian project, which yet dooms it to failure. A Foucaultian analysis of Marcovitz v Bruker would be hopelessly inadequate without this preceding discussion, I would suggest, and if that renders my argument ‘illegitimate’ in the eyes of the Western tradition then so be it; perhaps I am more apocryphal than I thought, my resolve is merely strengthened. Onwards to (the) judgement then.
In Foucaultian terms Marcovitz v Bruker is demonstrative of the struggle between competing discourses, truth-claims and power locations, primarily here between law and religion. Moreover, in the court’s refusal to render paragraph twelve of the consent enforceable it is indicative of the triumph of the religious over the legal. ‘Normalization’ is also very clearly at work here. Ms. Bruker clearly wants to conform, or at least be seen to conform to a number of different norms, both religious and social. She wants to be able to marry, a product of the ‘deployment of alliance’ as Foucault would put it and the ‘centrifugal movement with respect to heterosexual monogomy’ and within her religion at that, for she has been taught that that is important since her first trips to Sunday school. But the ‘deployment of sexuality’ has done its work so that she is happy to have extra-marital intercourse for the time being, and moreover to ‘confess’ to that in court. Indeed, she wants compensation for her inability to marry and have children, another product of normalization, the so-called ‘compensation culture’ in which we currently live, where justice has not been done until it has a value.
But the irony is that the result of all this is to be decided before a court of law. Does not law really hold the power then, even if it chooses not to exercise it? Not according to Foucault. Rather, law, itself a producer of norms, is a product of normalization. It is effectively constrained to decide according to the prevalent socio-political climate. Not that it always has to, however, for law, like all other locations of power, has the capacity to alter the discourse.
A feminist analysing Marcovitz v Bruker would no doubt find it ideologically abhorrent, they would analyse the terminology used by the judge, the format of the inquiry and the decision rendered and conclude that the judgement was wrong. A Foucaultian analysist, however, would ask what is Western ideology anyway? Why should I engage in this debate on law’s playing field? Why should I undertake a textual analysis? Aren’t there more important things than law going on here? And then he might chuckle to himself, and say ‘perhaps one day people will wonder at this,’ and ruminate on the virtue of change that the Foucaultain notion of power, and its ‘web’ of related concepts, provides every person and institution with the capacity to engage in.
Thursday, March 16, 2006
The last donkey in the savannah
We had a class today on narrative and discourse in which we talked about the power of parables as compared with propositional law. This is more a fable I think, but anyway. Any thoughts?
Once upon a time in the savannah
There was a mysterious fire
At the beautiful oasis
Where the animals usually gathered to drink and eat.
A meeting was called
At pride rock by
Lion, the king
Of the animals, who asked what had happened.
There was just one squeak
From all of the animals –
Mouse, the smallest
Of them all, said that she’d seen the whole thing.
‘One of the other animals
Started the fire on purpose,’
She said.
But everyone just laughed at her.
‘Why should we listen to you?’
Said Lion, you’re just
A little mouse.
And with that the meeting was over.
The next day Mouse was talking
To her friend
Elephant, the oldest
Out of everyone in the Savannah.
She explained how she had come
To the oasis to drink and seen
Monkey, the naughtiest
Animal of all, starting the fire on purpose.
Elephant told Zebra who told
Giraffe, who told -
Woodpecker, the peckiest
Of the animals, who began pecking the story straight away.
The very next morning
Someone found the peckings –
Hyena, the silliest
Animal in the savannah, who ran to tell Lion.
Another meeting was called
Because Lion wanted to announce
To his kingdom
That he now knew who the culprit was.
With an air of pride and satisfaction,
Lion announced that it had been
Donkey, the meekest
Of all the animals, who had started the fire.
Donkey was banished by Lion,
Told never to return again.
And that is why
There are no more donkeys in the savannah.
Once upon a time in the savannah
There was a mysterious fire
At the beautiful oasis
Where the animals usually gathered to drink and eat.
A meeting was called
At pride rock by
Lion, the king
Of the animals, who asked what had happened.
There was just one squeak
From all of the animals –
Mouse, the smallest
Of them all, said that she’d seen the whole thing.
‘One of the other animals
Started the fire on purpose,’
She said.
But everyone just laughed at her.
‘Why should we listen to you?’
Said Lion, you’re just
A little mouse.
And with that the meeting was over.
The next day Mouse was talking
To her friend
Elephant, the oldest
Out of everyone in the Savannah.
She explained how she had come
To the oasis to drink and seen
Monkey, the naughtiest
Animal of all, starting the fire on purpose.
Elephant told Zebra who told
Giraffe, who told -
Woodpecker, the peckiest
Of the animals, who began pecking the story straight away.
The very next morning
Someone found the peckings –
Hyena, the silliest
Animal in the savannah, who ran to tell Lion.
Another meeting was called
Because Lion wanted to announce
To his kingdom
That he now knew who the culprit was.
With an air of pride and satisfaction,
Lion announced that it had been
Donkey, the meekest
Of all the animals, who had started the fire.
Donkey was banished by Lion,
Told never to return again.
And that is why
There are no more donkeys in the savannah.
Wednesday, March 15, 2006
Live from court...
So life and the thesis go on and the changes in both continue to be resounding. The new news is that I may (I repeat MAY) be staying out here till December, depending on whether or not I can get funding from the University. As you'll see from the massively revised version of my thesis proposal below, the focus is now on the particular rather than the general and, in fact, I bring this to you live from the Federal Court of Quebec in the Old Port of Montreal where I shall be happily installed in my own private room for the next six weeks or so. Who'd have thought this is where things would bring me?!
Apologies that it's all a little formal. Despite the last entry, I was constrained by the powers that be to submit something 'formal' as the final version of my thesis proposal. Of course, I could have rewritten it but, frankly, I've got more interesting things to be doing right now. And, besides, the court is only open till 4.30 so I'd better crack on! As always, any thoughts are MORE than welcome.
Oh, and one more thing. Is it just me, or would anyone else derive something from the fact that by far the most pretentious and overpriced sandwich shop I've seen in north America so far is right next door to the court? And more importantly perhaps, what should I make of the fact that I'm extremely tempted to get lunch there!?
Background
My original project, the one I outlined in my previous thesis proposal was:
1. To do a sort of postmodern analysis of the ways in which, primarily post- 9/11 and the ‘London Bombings’ last year, torture and asylum law construct knowledges and thereby identities in their attempts to respond to the question, ‘how can we learn something that we don’t already know?’
2. To consider how torture and asylum are related in a more general sense by the problematics of and relationship between personal and societal boundaries.
But after given things time to stew over in my mind a while I realized that this was really too big a task for me to take on in the short time I have left now to get my thesis finished. There is something in the idea, certainly, but I think it is a project for another time.
So having spoken to Des, my supervisor, we decided that I’d be better off confining myself to one area or the other. I did some preliminary reading on asylum, both in general and in the particular Canadian context, before coming across a magnificent book called ‘Humanitarianism, Identity and Nation’ by Catherine Dauvergne, the holder of the Canada Chair in Migration Law, which made it clear just how relevant some of the theory that I had been reading recently was to this area of law. What occurred to me, though, and this thought was vindicated in subsequent readings, was that there was an awful lot being said at the general level but barely anything at the level of the specific. So I got in touch with Catherine Dauvergne and her input was extremely positive: there is some, though not a huge amount of, academic writing applying postmodern theory to the refugee context, she confirmed, (and she pointed me in the direction of a collection by Fitzpatrick called ‘Critical Beings’ which I have now read) but a careful analysis of a particular case or cases from a postmodern point of view, if done well, could potentially be a welcome addition to the literature.
Thesis
In my last meeting with Des, then, we set out some goals. I will be spending the next six weeks or so at the Federal Court looking at the complete files (transcripts of early interviews, the claimant’s Personal Information Form, transcripts from the hearing, first instance judgment, application for appeal, appeal decision etc) of as few or as many refugee claims as time and rigour will allow. I will be looking at how language, interpretation, translation, leading questions, privileging of evidence, ignoring of evidence etc. are used to make what seem to be (at least in many cases) pretty obviously political decisions seem logically watertight on the ‘law’ and the ‘facts’, the thesis being that the ‘law’, in its various manifestations throughout the process, does this by exploiting and concealing the very same ambiguity and violence in language that they seek to deny. Many of these are familiar moves in legal ‘reasoning’, but they are especially clear in the refugee context I think; from what I have read there seems to me to be a terrible ethical shortcoming in this area. And it is precisely these kinds of issues - the violence of language and the ethical imperative, requiring us to think not merely of ourselves but rather in terms of the ‘other’ (of which the refugee is probably the paradigm) – that the theorists I have been reading (particularly Derrida and Levinas) are concerned with. And after the initial period of research, (which has already begun actually) I then intend to return to some of the key theoretical texts and to reconsider the implications of my research in light of that theory and vice versa.
What my thesis will end up looking like, however, is difficult to say at this stage. Perhaps it will be a ‘deconstruction’ of the Derridean type (if something can actually ‘be’ that) of one or more of the files; perhaps it will track the use and abuse of one or two key words through several cases; perhaps it will focus on what is NOT being said rather than what IS being said; perhaps it will be a combination of more than one of these ideas. However, it was important, Professor Manderson and I decided, not to go to the texts already with too clear an idea of what it was I wanted to find. To do so, after all, would be to fall into precisely the same trap that I would think I will end up leveling at the tribunal members in these cases: in short, politically motivated bias.
Theory
As I said, Derrida will be key to the theoretical side of my thesis, and particularly ‘Of Hospitality’, a joint effort between him and Anne Dufourmantelle, which is almost directly on point but, about which, there seems to be surprisingly little secondary literature (with the notable exception of Theodore Jennings’ ‘Thinking Derrida / Reading Paul). Through a reading of the Antigone, and an exploitation of the fact that the latin ‘hostis’, from which the word ‘hospitality’ derives, meant both ‘guest’ and ‘enemy’ Derrida shows how the concept of hospitality is ‘aporetic’. The relation between ‘hostis’ nation and refugee is far more complex than one might at first think and, to a large extent, this has to do with language. The challenge will be to draw out practical implications from this insight.
I would think that ‘Archive Fever’, the text in which Derrida explores the process of recording or ‘archiving’ thought, will also be key as it is, after all, only the archives of the case which I will have access to. And it would, of course, be impossible to write anything about Derrida and Law without looking very closely at ‘Before the Law’ and ‘The Force of Law’.
Levinas will be another key source of theoretical ideas, however, whether I look at his work through the lens of Derrida or go the primary texts directly remains, at least for the moment, to be seen.
Style and form
It will be extremely important that I do not descend into an overly formalistic style of writing, I think, if I am not to undermine my own point. I hope to practice what I preach, as it were, and so my challenge is to tread the tightrope that is writing about law in a more artistic style.
For the moment, though, I do not think it would be wise to think too concretely about style and structure. Rather, I hope that if I continue reading the right kind of writers (for instance, ‘Courting Death’, a collection of legal writings by ‘aesthetic theorists’ and edited by Professor Manderson, has already proved fruitful in this respect) and keep these ideas always in the back of my mind (as well as in practice on my legal theory blog) then something will develop of its own accord in due course. Just by way of example, however, I have found a number of websites showcasing poetry written by refugees (not Canadian unfortunately), that I think may very well come in useful in the end.
Just one other thought. It occurred to me that it might be fun to do something, perhaps in just one chapter, perhaps in even more than that, similar to what Derrida and Dufourmantelle do in ‘Of Hospitality’; that is, to ‘play’ two texts simultaneously alongside each other, one on each side of the page, thus enacting the complex interaction between ‘host’ and ‘guest’ that Derrida and Duformantelle were, and I will be, arguing for, as well as highlighting the problem of reading texts non-linearly or a-contextually which is particularly relevant in this context, I think, as tribunal members often have to sift through a lot of information from a more diverse and unusual variety of sources than in many other contexts in a ludicrously short time.
Apologies that it's all a little formal. Despite the last entry, I was constrained by the powers that be to submit something 'formal' as the final version of my thesis proposal. Of course, I could have rewritten it but, frankly, I've got more interesting things to be doing right now. And, besides, the court is only open till 4.30 so I'd better crack on! As always, any thoughts are MORE than welcome.
Oh, and one more thing. Is it just me, or would anyone else derive something from the fact that by far the most pretentious and overpriced sandwich shop I've seen in north America so far is right next door to the court? And more importantly perhaps, what should I make of the fact that I'm extremely tempted to get lunch there!?
Background
My original project, the one I outlined in my previous thesis proposal was:
1. To do a sort of postmodern analysis of the ways in which, primarily post- 9/11 and the ‘London Bombings’ last year, torture and asylum law construct knowledges and thereby identities in their attempts to respond to the question, ‘how can we learn something that we don’t already know?’
2. To consider how torture and asylum are related in a more general sense by the problematics of and relationship between personal and societal boundaries.
But after given things time to stew over in my mind a while I realized that this was really too big a task for me to take on in the short time I have left now to get my thesis finished. There is something in the idea, certainly, but I think it is a project for another time.
So having spoken to Des, my supervisor, we decided that I’d be better off confining myself to one area or the other. I did some preliminary reading on asylum, both in general and in the particular Canadian context, before coming across a magnificent book called ‘Humanitarianism, Identity and Nation’ by Catherine Dauvergne, the holder of the Canada Chair in Migration Law, which made it clear just how relevant some of the theory that I had been reading recently was to this area of law. What occurred to me, though, and this thought was vindicated in subsequent readings, was that there was an awful lot being said at the general level but barely anything at the level of the specific. So I got in touch with Catherine Dauvergne and her input was extremely positive: there is some, though not a huge amount of, academic writing applying postmodern theory to the refugee context, she confirmed, (and she pointed me in the direction of a collection by Fitzpatrick called ‘Critical Beings’ which I have now read) but a careful analysis of a particular case or cases from a postmodern point of view, if done well, could potentially be a welcome addition to the literature.
Thesis
In my last meeting with Des, then, we set out some goals. I will be spending the next six weeks or so at the Federal Court looking at the complete files (transcripts of early interviews, the claimant’s Personal Information Form, transcripts from the hearing, first instance judgment, application for appeal, appeal decision etc) of as few or as many refugee claims as time and rigour will allow. I will be looking at how language, interpretation, translation, leading questions, privileging of evidence, ignoring of evidence etc. are used to make what seem to be (at least in many cases) pretty obviously political decisions seem logically watertight on the ‘law’ and the ‘facts’, the thesis being that the ‘law’, in its various manifestations throughout the process, does this by exploiting and concealing the very same ambiguity and violence in language that they seek to deny. Many of these are familiar moves in legal ‘reasoning’, but they are especially clear in the refugee context I think; from what I have read there seems to me to be a terrible ethical shortcoming in this area. And it is precisely these kinds of issues - the violence of language and the ethical imperative, requiring us to think not merely of ourselves but rather in terms of the ‘other’ (of which the refugee is probably the paradigm) – that the theorists I have been reading (particularly Derrida and Levinas) are concerned with. And after the initial period of research, (which has already begun actually) I then intend to return to some of the key theoretical texts and to reconsider the implications of my research in light of that theory and vice versa.
What my thesis will end up looking like, however, is difficult to say at this stage. Perhaps it will be a ‘deconstruction’ of the Derridean type (if something can actually ‘be’ that) of one or more of the files; perhaps it will track the use and abuse of one or two key words through several cases; perhaps it will focus on what is NOT being said rather than what IS being said; perhaps it will be a combination of more than one of these ideas. However, it was important, Professor Manderson and I decided, not to go to the texts already with too clear an idea of what it was I wanted to find. To do so, after all, would be to fall into precisely the same trap that I would think I will end up leveling at the tribunal members in these cases: in short, politically motivated bias.
Theory
As I said, Derrida will be key to the theoretical side of my thesis, and particularly ‘Of Hospitality’, a joint effort between him and Anne Dufourmantelle, which is almost directly on point but, about which, there seems to be surprisingly little secondary literature (with the notable exception of Theodore Jennings’ ‘Thinking Derrida / Reading Paul). Through a reading of the Antigone, and an exploitation of the fact that the latin ‘hostis’, from which the word ‘hospitality’ derives, meant both ‘guest’ and ‘enemy’ Derrida shows how the concept of hospitality is ‘aporetic’. The relation between ‘hostis’ nation and refugee is far more complex than one might at first think and, to a large extent, this has to do with language. The challenge will be to draw out practical implications from this insight.
I would think that ‘Archive Fever’, the text in which Derrida explores the process of recording or ‘archiving’ thought, will also be key as it is, after all, only the archives of the case which I will have access to. And it would, of course, be impossible to write anything about Derrida and Law without looking very closely at ‘Before the Law’ and ‘The Force of Law’.
Levinas will be another key source of theoretical ideas, however, whether I look at his work through the lens of Derrida or go the primary texts directly remains, at least for the moment, to be seen.
Style and form
It will be extremely important that I do not descend into an overly formalistic style of writing, I think, if I am not to undermine my own point. I hope to practice what I preach, as it were, and so my challenge is to tread the tightrope that is writing about law in a more artistic style.
For the moment, though, I do not think it would be wise to think too concretely about style and structure. Rather, I hope that if I continue reading the right kind of writers (for instance, ‘Courting Death’, a collection of legal writings by ‘aesthetic theorists’ and edited by Professor Manderson, has already proved fruitful in this respect) and keep these ideas always in the back of my mind (as well as in practice on my legal theory blog) then something will develop of its own accord in due course. Just by way of example, however, I have found a number of websites showcasing poetry written by refugees (not Canadian unfortunately), that I think may very well come in useful in the end.
Just one other thought. It occurred to me that it might be fun to do something, perhaps in just one chapter, perhaps in even more than that, similar to what Derrida and Dufourmantelle do in ‘Of Hospitality’; that is, to ‘play’ two texts simultaneously alongside each other, one on each side of the page, thus enacting the complex interaction between ‘host’ and ‘guest’ that Derrida and Duformantelle were, and I will be, arguing for, as well as highlighting the problem of reading texts non-linearly or a-contextually which is particularly relevant in this context, I think, as tribunal members often have to sift through a lot of information from a more diverse and unusual variety of sources than in many other contexts in a ludicrously short time.
