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Law in Contemporary Society
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Writing about thinking about thinking about life, death, the law, and law-studentry-- By MattBurke - 02 Mar 20151. In which the law and law-studentry are discussedThe law does not belong to the state: rather, it is the limit of the state. Where in the state is the law to be found?First, in the casebooks, that is first-in-time: The law student finds the law first-in-time in the casebooks in the bleary hours of the night. Or, since the law student prefers the ritual of falling asleep with his wife to that of reading late into the night, he finds the law first-in-time in casebooks in the bleary hours of the morning. He learns, in a red book about Civil Procedure, that casebooks do not contain law, they contain “evidence of the law.” Swift v. Tyson.Second, the student recalls a trial, the boy who shot up the student’s high school. The student remembers his parents’ divorce proceedings and his great-grandmother’s will—the two silver bars devised to the student’s mother when the student was four years old. But those are not the law. They are shot-gun shells, alternating weekends, and silver bars.Third, the student recalls a black-stone stele, carved in dead letters. The student notes the stele’s phallic shape.2. In which the law and law-studentry are applied to matters of life and deathThis is connected with the fact that no part of our law is also a priori. Everything legal could be illegal. Everything we legislate at all could be otherwise. There is no order of things a priori.First, the law student, for a class called “ConLaw,” reads a case about abortion. In a dissent, the law student reads:
The mother is, from the moment of conception, with a life. Conceive, from “com-,” intensive prefix, and “capere,” "to take.” The notion that one may be taken with something is incompatible with the notion that nothing has taken the one who has been taken. If something takes, that thing must have the ability to take. We rule that the ability to take constitutes life.
Life, even human life, is not synonymous with citizenship. For a citizen is one of the “people of the United States.” The life-in-the-mother, however, is not a person of the United States. It has not entered society. Before viability, it cannot so enter. While the State maintains an interest in potential life, and while the thing conceived within the mother is a life both actual and potential, the potential life in which the State maintains an interest must be cognizable to the State. Since the life-in-the-mother has not entered into society, since it cannot nor does it enjoy the benefits of that society, except as mitigated through the mother, it is not a life that is within society. The life-in-the-mother is not, in any meaningful way, in the United States. Prior to viability, the State does not have an interest in, or in the disposition of, the life-within-the-mother greater than that of the mother.
Seconds after writing the preceding section, the student decides to explain his joke: Do the words about the picture obscure the picture of the man, or does the picture of the man illuminate the words about the picture? Put another way, neither the imaginary opinion nor the real one really explain what “a life” is.Third, the law student’s professor exclaims: “That Wittgensteinian enough for ya?” And the law student recalls a biography about the Austrian in the trenches of the Eastern front, facing death and reading Tolstoy. The law student thinks the Austrian was a romantic at heart.3. In which life and death are applied to the law and law-studentryThinking about thinking about the law and law-studentry is useful in this way: he who understands me easily recognizes these thoughts as senseless, when he has read through them, on them, over them.First, Lincoln’s “Gettysburg Address,” dedicating a cemetery for some of those who died in Dread Scott’s “consequences for the Nation,” was 27% of the length of this writing. When he finished orating, Lincoln said: “That speech won’t scour,” as a plow baked in Illinois mud won’t scour. Today, Lincoln is in a vault buried 10 feet into the Illinois mud.Second, the law student imagines the pile of words, words about life, death, the law, and law-studentry, he’ll write before he meets his mud. He hopes at least 27%—or 27% of 27%—of them are any good.Third rate analysis of the analysis of first rate minds. That describes, thinks the law student, the practice, if not of law, then of law-studentry. |
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