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In a Field of Pain and Death: Course on Law, Literature and Violence

[This was a course offered to final year students at National Law School of India, Bangalore.]

“The task of a critique of violence can be seen as that of expounding its relation to law and justice”

-Walter Benjamin, Reflections

The law and literature movement in the west is now well over two decades and has seen some sharp debates and disagreements on what constitutes the field of law and literature. In many ways, the law and literature movement was the first serious inter disciplinary foray within legal studies. However, with a few exceptions the movement has not found too many takers in the Indian context. Our first question then might be about the relevance of the study of the interaction between law and literature in the postcolonial context.

A starting point might lie in the fact that the law and literature movement has been dominated, with a few exceptions, by its focus on the question of aesthetics and of form. Our interest in an inter disciplinary methodology lies in the question of the ways in which such an approach can return questions of materiality back into the life of law. If the law is marked by its ability to abstract material experiences into domains of non experience, how do we look at ways of providing accounts of legal experience that are firmly rooted in the experience of the force field of law.

The law and literature movement successfully dislodged the place of law from its canonical existence within legal texts and doctrinal analysis to look at the various public spaces in which the legal imaginary circulates. It argued for the importance of looking at literary texts both as a mirror of social relations as well as a critique of institutions of law and justice. It argued that we would obtain a much richer sense of the social life of law by looking at ways in which writers capture the experience of court rooms, the subjectivity of people called before the law and most importantly captured the experience of the terror of the law in ways that legal texts obliterates.

The rethinking of the relationship between law and violence is our primary motivation in rethinking the relationship between law and literature. The foundational authority of the law rests in its monopoly over violence and in recent times the brunt of this violence has been borne by those outside of the nexus of class, caste and capital. Whether it is the indigenous tribal dispossessed of her traditional livelihood and shelter, or the resident of a slum facing the direct wrath of the state in order to bring out more beautiful cities, it would not be inaccurate to say that for a vast majority of the people the experience of the law and the experience of violence has been virtually synonymous.

Robert Cover says that “Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another”.

And yet this experience of pain is often condemned to the life of a legally sanctioned amnesia. A life taken and a few freedoms lost to the force of law are reduced to cases, that will be studied, cited and discarded once their utility is over.

Within legal scholarship and pedagogy the enquiry into the violent force of the law has been marginal at best . it is only through the work of Marxist historians like E.P. Thompson and Peter Linebaugh that any serious attempt was made to the umbilical relationship between law and violence. In recent times, the work of Agamben has brought back the question of law and violence in a very serious manner, located as it is, within the context of the war against terror. While the earlier histories of law and violence were located in the experience of the emergence of private property and the first enclosures movement, we are in a similar period of flux where the war against terror interpellates each one of us as possible perpetrators or victims of violence. So, if the birth of the modern nation state was founded on its ability to execute the life of the unworthy, the contemporary context of free market evangelism accompanied by the accelerated logic of capital creates new regimes of terror.

How do we respond to the terror of the times? Can we hold on to the to romantic view of the rule of law within a liberal framework of it as a guarantor against arbitrary violence? The recent media debates over the hanging of Afzal have demonstrated the popular support for a vengeful authority of the law as though sovereignty replenishes itself every once in a while through the sacrifice of unworthy lives.

And if the unworthy lives are expelled where do we retrieve their memory. The historical archive is clearly one of the sources and scholars like Radhika Singha and Shahid Amin have successfully retrieved many narratives of violence and pain from these archives. The literary archive however remains a bit of a mystery to legal scholars interested in understanding the arena of law as a field of pain and death. This research agenda attempts to unearth through an analysis of literary texts the coming into being of a narrative that uncovers and returns violence to its rightful origins: the place of law.

One of the aims of this study is to bring back into the focus, the question of the violence into the study of law. For most students, the idea of law with a capital letter L is a rational body of knowledge that adjudicates between competing claims. At one level, the linking of literature and violence is a contradictory move since the very nature of violence and the subjective experience of pain escapes or exceeds language. Elaine Scarry says that physical pain does not simply resist language but actually destroys it. She further argues that Physical pain has no voice but when it at last finds a voice, it begs to tell a story….

Our research interest lies in the liminal zone of stories haunted by the specter of law and violence. Both law and literature reside within the storehouse of language, and narrate the force field of pain and violence, but do so in different ways. While legal language masks the violence of its own brutality through its language of necessity and rationality, literature attempts to memorialize the experience and shifts it from the plane of the juridical into the domain of the ethical.

For most law students cocooned within the safe enclaves of law colleges, Legal debates are about building technical expertise and there is an uncanny materiality about the ways in which legal debates occur. It is perhaps through looking at other ways in which the legal imaginary has been represented that we can return to a more material basis of the law.

Scarry warns us that a great deal is at stake in the attempt to invent linguistic structures that will accommodate the area of experience normally so inaccessible in language, the human attempts to reverse the de-objectification work of pain by forcing pain itself in to the avenues of objectification is a project laden with ethical and practical consequences.

This research theme attempts to respond to these ethical and practical challenges.

Course Outline and Syllabus

Readings for Introduction Session

1. Shoshana Felman, Introduction to The Juridical Unconscious: Trials and Trauma in the 20th Century
2. Excerpts from the Eichmann Trial
3. Excerpts from Hannah Arendt, Eichmann in Jerusalem

Readings for Assessment of Law and Literature Movement

1. Gary Minda, Law and Literature at century’s end, 9 Cardozo Stud. L. & Literature 245 (1997)
2. Jane Barron, The Rhetoric of law and literature, 26 Cardozo L. Rev. 2273 (2005)
3. Nancy Cook, Outside the Tradition: Literature as Legal Scholarship, 63 U. Cin. L. Rev. 95 (1994)
4. Kafka, Before the Law
5. Vera Karam de Chuieri, Reading of Before the law, Chapter 1, PhD Thesis, New School University, 2004
6. Paul Gerwitx, Narrative and Rhetoric in the law, from Peter Brooks and Paul Gerwitz, Law’s Stories, (Cambridge: Yale Univ. Press, 1998)

The course is divided into 5 modules.

I. Module 1

I.(a)Law, Literature and Violence

1. Robert Cover, Violence and the word, 95 Yale L.J.1601.
2. Walter Benjamin, Critique of Violence from Walter Benjamin, Selected Writings, Vol.1
3. Veena Das, The event and the everyday, from Veena Das, Life and Words, (New Delhi: Oxford Univ. Press, 2007)

Additional Reading
1. Jacques Derrida, Mystical Foundations of Authority, from Druscilla Cornell et al (Eds), Deconstruction and the possibility of justice, (New York : Routledeg, 1992)

I.(b)On the Question of Violence and Language
1.Elaine Scarry, Extracts from The Body in Pain: The Making and Unmaking of the World, (Oxford: Oxford Univ. Press, 1997)
2.Veena Das, Language and Body: Transactions in the construction of Pain from Veena Das, Life and Words, (New Delhi: Oxford Univ. Press, 2007).
3.Franz Kafka, In the Penal Colony

I.(c)Torture and the Literary
1.Elaine Scarry, Chapter 1 of The Body in Pain,
2.Jennifer Balingee, The Wound that Speaks, Torture and the Literary, Chapter 4
3. Anuj Bhuwania, “Very wicked children”: “Indian torture” and the Madras Torture Commission Report of 1855
4. Talal Asad, On Torture, or Cruel, Inhuman degrading Treatment, SOCIAL RESEARCH, Vol. 63, No. 4 (Winter 1996)
5.DK Basu v. State of West Bengal

I.(d)Language and Violence: The Dilemma of Hate Speech
1.Judith Butler, Chapter 1 and 2 from Excitable Speech, (New York: Routledge, 1997)
2.Richard Delgado, Extracts from Words that wound
3.Joseph Bain v. State of Maharashtra

II.Module 2

II.(a)Literature and the Possibility of Justice
1. Costas Douzinas, Antigone’s Dike from Justice Miscarried: Ethics and Aesthetics in law
2. Mark Howenstein, The Law of Tragedy and the Tragedy of law
3. Extracts from Jean Anilouh’s version of Antigone
4. Veena Das, Reading of Antigone from The Act of Witnessing

Affective Registers of Law and Literature
1. Tahima Annam, The Courthouse, Granta : War Zones
2. Naveeda Khan, Trespasses of the State, from Sarai reader 05
3. Kai Friese, Marginalia from Sarai reader 05
4. Walter Benjamin, The Storyteller from Walter Benjamin, Illuminations
5. Soshana Felman, The Storyteller’s silence: Benjamin’s dilemma of justice from The Juridical Unconscious: Trials and Trauma in the 20th Century

II.(b)Law and Narratives
1. Clifton D’Rozario, Bolti Bandh from Sarai Rader 05: Bare Acts
2. Patricia Ewick and Susan Silbey, Chapter 1 of The Common Place of Law
3. Patricia Williams, Chapter 1 of Alchemy of race and rights
4. Dipesh Chakrabarty, The Subject of Law and the Subject of Narratives

Additional Reading
Gayatri Spivak, A Literary Representation of the Subaltern

III.Module 3: Archives of democracy

III.(a)Constitutions as State Formative Practices
1. Upendra Baxi, Constitutionalism as sites of state formative practices
2. Robert Cover, Bonds of Constitutional Interpretation
3. Saadat Hassan Manto, The New Constitution
4. Extracts from Amitav Ghosh, The Shadowlines

Additional Readings
1.Robert Ferguson, The constitution as literary text
2.Gayatri Spivak, Constitutions and Cultural Studies
3.Stella Yumi Oh, Contesting legal and visual cultures of the citizen, Introduction

III.(b)The Constitution and the Memorialization of the Partition
1. Saadat Hassan Manto, Toba Tek Singh
2. Jaya Nanditha Kasibathla, Chapter One, Sovereignty as Body language
3. Veena Das, The Figure of the Abducted Woman: The Citizen as Sexed

Movie Screening: Pinjar

Additional Reading:
1.Fortress text: The Democratic constitution as global genre
2.Extracts from Shauna Singh Baldwin, What the Body remembers

III.(c) Emergency in India
1. Jaya Nanditha Kasibathla, Chapter 4, Reproducing the Citizen
2. Maya Dodd, Introduction to Archives of Democracy
3. Extracts from Rohinton Mistry, A Fine balance
4. Extracts from Salman Rushdie, Midnight’s Children
5. Emma Tarlo, Chapter 1 of Narratives of Emergency

III.(d) Archives of Democracy
1.Maya Dodd, Archives of democracy: technologies of witness- looking at the kind of sources that we can think of when we think of democracy in India; Chapter 2
2.Emma Tarlo, Chapter 2 of Narratives of Emergency
3.Shahid Amin, Approvers testimony, Judicial discourse
4.Veena Das, The signature of the State from Veena Das, Life and Words

IV. Module 4

IV.(a)Witnessing (The Disappeared and the Encountered)
1. Giorgio Agamben, Chapter 1 of the The Witness and the Archive
2. Veena Das, The Act of Witnessing from Veena Das, Life and Words
3. Ranajit Guha, Chandra’s death, Subaltern Studies
4. Ulka Anjaria, Literature and the Limits of Law, Sarai reader 05: Bare Acts
5. Mahashweta Devi, Draupadi translated by Gayatri Chakrvarti Spivak
6. Soshana Felman, A ghost in the house of Justice, Death and the Language of Law, from The Juridical Unconscious: Trials and Trauma in the 20th Century

Additional Readings
1. Mahashweta Devi, Mother of 1084
2. Ramu Nagappan, Speaking Havoc: Social Suffering and south asian Imagination, Chapter 1: Writing and redemption

IV.(b)Cities of Words
1. Extracts from Gregory David Roberts, Shantaram
2. Extracts from Suketu Mehta, Maximum City
3. Olga tellis v. Union of India
4. Thomas Hansen, Urban Violence
5. Vikram Chandra, Extracts from Sacred games
6. Teresa de Laurentis, Introduction to City of Walls

IV.(c)Real and Imagined Women
1. Rajeshwari Sundarajan, Real and Imagined Women
2. Shrimoyee Nandini, The Erotics of Helplessness
3. Mahashweta Devi, Draupadi
4. Margaret Atwood, Extracts from Alias Grace

1. Nakul Krishnan, Highway 377
2. R v. Brown, [1993] 2 ALL ER 75
3. Alok Gupta, Toys from Daddy
4. Linda Kauffman, Contemporary Art Exhibitionists, from Bad Girls and Sick Boys

IV.(e)Truth, Legal Identity and Memory
1. Partha Chatterjee, The Identity Puzzle
2. Raqs Media Collective, The FIR

V.Module 5: An Ethic of Care/ Returning to Ethics

1. Michel Foucault, On friendship
2. Jacques De Villeirs, Revisiting Proximity
3. Yung Hsing Wu, Doing things with ethics
4. Taking Care: Injury and Responsibility in law and literature

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