- The Human and the Idea(l) of Justice
Aristotle had it wrong. Law is not reason free from passion. The imbrication of such a fiction into jurisprudence may facilitate our efforts to sort subjects and doctrines within legal landscapes, but it is an evasion of a devastating sort. The three books taken up by this review: Rajini Srikanth’s Constructing the Enemy: Empathy/Antipathy in US Literature and Law (2012), Colin Dayan’s The Law is a White Dog: How legal Rituals Make and Unmake Prisons (2011), and Austin Sarat’s edited collection of essays: Imagining Legality: Where Law Meets Popular Culture (2011) are each extended engagements with the messiness of the worlds the law creates. Passion, emotion, and affect are at work both in its operation and in the Herculean efforts to reign in the law’s brutal tendencies. To recognize suffering is a passionate affair. To witness when justice is brutally impartial ignites empathy and hopeful imaginings.
Over the course of her scholarly work, Dayan has consistently explored the philosophical questions raised by coercive power, its recognition, and its failures, as well as the legitimacy of authority. The Law is a White Dog extends her earlier projects with a set of mutually informing, provocative explorations regarding how law constitutes subjects, manages what seems to be unmanageable, and unmakes existences. Most powerfully, Dayan explores how legal constructs deprive beings of personhood in the forms of banishment, punishment, imprisonment, and enslavement. The violence that attends each of these formal places and categories coexists with a sense of civil order felt by the general public. This simultaneous world destruction and world creation separates persons and nonpersons, or even partial persons. Dayan draws a genealogy from the civil death of enslavement into the forms of incomplete personhood into which those who are imprisoned and detained are currently cast. This [End Page 639] person-nonperson divide is alone a powerful formulation, and to this reader it ultimately may be more generative than the critical deconstructions of the categories of “man” or “human” that have been so important in cultural theory. In Dayan’s work, the theory emerges out of tangible material conditions that find expression in both physical force and linguistic construction by means of the law. The civil death that defined enslavement, she argues, could make one vulnerable to multiple deaths when people were deemed having no capacity but the capacity to be culpable of crime, and therefore punishable again.
The repetitions are harrowing. And they exist in the present as much as the past. Dayan argues that the exception written into the thirteenth amendment’s prohibition against involuntary servitude, except for punishment for a crime, sets the stage for the contemporary civil death that goes along with the carceral state. She notes that, even in legal evaluations of whether prisoners have been subject to cruel and unusual punishment, courts don’t treat the imprisoned as the rights-bearing subject whose suffering is at hand; rather, these assessments evaluate the state of mind of those who are charged with keeping the prisoners locked up. But Dayan chooses differently and goes to the interior, recognizing the lawlessness and inhumanity that exists within places of punishment alongside hyperlegal controls at the gateways of confinement. Her choice to do an extended reading of the 1858 case, Bailey v. Poindexter, which declared mental incapacity as an essential element of the slave condition illuminates a long American history of nonpersonhood as a subject/object status that considerations of the Dred Scott decision alone have not afforded. Bringing this case into the canon of legal documents that reveal the work of race in American law will be quite productive for studies on race and the law. Broadly speaking, The Law is a White Dog is both philosophically breathtaking and politically relevant. Dayan’s disrobing of personhood is not simply an exposure of injustice, but an...