Jury nullification, that phenomenon whereby a jury returns a not-guilty verdict for a defendant it believes to be technically guilty of the alleged crime, is, obviously, a controversial issue. What is not a matter of controversy, however, is the fact that the law protects the jury’s ability to behave this way. Much of the controversy therefore centers on whether juries ought to be informed of this ability to nullify free from legal redress. In this paper I examine a number (...) of arguments both for and against the view that juries ought to be, in the words of the literature, fully informed. In the end I conclude that there is significant empirical evidence to suggest that, rather than simply promoting justice and mercy, as proponents of the instruction argue, fully informing a jury has the unforeseen consequence of encouraging juries to behave in a manner I label bad-faith, and that such bad-faith juries in fact corrupt the principles of justice and fairness that are the cornerstones of the trial system. (shrink)

Jury nullification, in its simplest definition, occurs when a jury returns a not guilty verdict for a defendant it believes to be legally guilty of the crime charged. To put this explicitly, a jury nullifies when, despite believing both a) that the defendant did, beyond a reasonable doubt, commit the act/omission in question, and b) that such behavior is, in fact, prohibited by law, nevertheless declares the defendant innocent. This book explores the specifically philosophical aspects of the phenomenon. Is (...) jury nullification a right? A power? A mere ability? A privilege? A pernicious form of juror malfeasance? Is a system that allows for jury nullification more, or less just, than one that does not? -/- This important book fills a gap in the current scholarship around jury nullification, which, for the most part, has been confined to purely doctrinal analyses, rather than the broader ethical, social, political, and philosophical contours of this issue. (shrink)

Despite an intractable judiciary, there is widespread consensus within the legal academy that jury nullification is compatible with the rule of law. This proposition is most strongly tested by where a jury nullifies simply because it disagrees with the law itself. While some substantive nullifications can comport with the rule of law, most commentatorsjustice,vely undifferentiated view of a morality (even though jurisdictional and vicinage morality can diverge). In doing so, a healthy vision of antityrannical nullifications is presented, but this (...) leaves out many problematic cases. Once these errors are rectified, a more nuanced picture emerges, and it becomes apparent that localism will often disrupt the congruence feature of the rule of law. (shrink)

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, (...) I discuss the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification. (shrink)

Jury nullification refers to the behaviour of a jury that votes to acquit a defendant of criminal charges despite believing that: a) the defendant did in fact commit the actions with which she is charged; and, b) such actions are, indeed, prohibited by law. While there are many objections to this practice, the most striking thing about jury nullification is that nothing is done to actually prevent or punish jurors who behave this way. In this paper, I explore (...) three rationales for why jury nullification is an officially tolerated, if not necessarily welcome, element of Anglo-American criminal law jury trials. All three of these rationales centre in one way or another on the idea that the very concept of a jury trial necessitates allowing the jury to extend its traditional purview in such a manner. (shrink)

This book interrogates the nature and state of African American citizenship through the prism of Social Contract Theory. Challenging the United States’ commitment to African American citizenship, this book explores the idea of Social Nullification, the decision to reject, revoke and re-define the social contract with a state and society. Charles F. Peterson surveys the history of Social Contract Theory, examines Nullification as political and legal theory, argues public policy as a measure of the state’s commitment to the (...) contractarian relationship and frames the writings and activism of Martin R. Delany, Ida B. Wells-Barnett and the African American Reparations Movement as examples of Social Nullification and challenges to the terms of Black life in America. (shrink)

In the practice of “jury nullification,” a jury votes to acquit a defendant despite sufficient evidence of lawbreaking, on the grounds that a conviction would be unjust, usually because the law itself is unjust or because the expected punishment would be unduly harsh. This practice is widely condemned by judges. Nevertheless, in the case of an unjust law or unduly harsh punishment, there are no good arguments against jury nullification, and there is one powerful argument in its favor: (...) it is prima facie wrong to knowingly cause unjust harm to others. Thus, jurors are often morally obligated to disregard the law. (shrink)

Jury nullification occurs when a jury votes to acquit a defendant in a criminal trial despite its belief that the defendant is, in fact, guilty. One of the main objections to this practice is that it subverts the rule of law. In this paper, I examine this objection by expanding on what is entailed by the rule of law objection and demonstrating that the very principles that the rule of law are built upon – liberty and autonomy – are, (...) in fact, preserved and promoted, and not subverted by, jury nullification. (shrink)

This article examines how care functions as a critical feature in decolonial political theory and the politics of refusal. In recent years, political theorists have emphasized how refusal challenges the legitimacy of settler colonial government, asserts indigenous presence, and fuels decolonial politics. Care, I argue, plays a significant and under-examined role in the politics of refusal. I look, first, to the writings of William Apess to better examine the cruelty of settler colonial care and to highlight how indigenous reworkings of (...) care enact political presence and agency. I then examine how care has been taken up by contemporary indigenous activists in the Idle No More, Standing Rock, and Walking with Our Sisters movements. Care – expressed in online and on-the-ground grieving, social mobilization around environmental and health concerns, and teach-ins and healing practices – draws on affective intensities to build indigenous community, enact indigenous liberation, imagine and pursue radical alternatives, and create allied networks of support. In these examples, affective responses of joy, outrage, and mourning are not simply incidental accompaniments to the politics of refusal; they explain why refusal matters and how refusal in turn can challenge settler memory and pursue transformative decolonial politics. (shrink)

Arendt and others have regarded Augustine as “the first philosopher of the Will,” considered in a broadly naturalistic sense. However, the Stoicism that influenced the young Augustine has a better claim to have “invented” such a will. His own thinking about will was profoundly affected by the Neoplatonism that facilitated his reconversion to Christianity. On the one hand, Augustine envisaged the near negation of will through the irrationality of sin and the fall. On the other, he came to believe that (...) through grace will could be re-identified with charity and with reason, human and divine. From a philosophical point of view, he thus rationalized, and in effect nullified, the concept of will with which he began. (shrink)

Much has been written about the global convergence on constitutional supremacy. Yet, a closer look suggests that while constitutional convergence trends are undoubtedly extensive and readily visible, expressions of constitutional resistance or defiance may in fact be regaining ground worldwide. This may point to a paradox embedded in global constitutionalism: the more expansive constitutional convergence trends are, the greater the likelihood of dissent and resistance are. In this article, I chart the contours of three aversive responses to constitutional convergence: neo-secessionism, (...) nullification, and deference to local authority, and draw on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses. Taken together, these increasingly common expressions of defiance provide ample evidence that global constitutionalism is not the only game in town. Neo-secessionism, nullification, and other forms of constitutional dissent and “opting out” may thus be viewed as a reaction against the centralization of authority and the decline of the local in an increasingly—constitutionally and otherwise—universalized reality. (shrink)

Jury nullification is justified by the principle that individuals are prima facie ethically obligated to avoid causing unjust harms. Safeguarding justice against unjust laws and punishments of the government is the central function of the jury.

This paper critically examines Christopher Zurn’s suggestion mentioned above that various social pathologies (pathologies of ideological recognition, maldistribution, invisibilization, rationality distortions, reification and institutionally forced self-realization) share the structure of being ‘second-order disorders’: that is, that they each entail ‘constitutive disconnects between first-order contents and secondorder reflexive comprehension of those contents, where those disconnects are pervasive and socially caused’ (Zurn, 2011, 345-346). The paper argues that the cases even as discussed by Zurn do not actually match that characterization, but that (...) it would be premature to conclude that they are not thereby social pathologies, or that they do not have a structure in common. It is just that the structure is more complex than originally described, covering pervasive socially caused evils (i) in the social reality, (ii) in the first order experiences and understandings, (iii) in the second order reflection as discussed by Zurn, and also (iv) in the ‘third order’ phenomenon concerning the pre-emptive silencing or nullification of social criticism even before it takes Place. -/- Research Interests: Critical Theory, Social Theory, Political Theory, Recognition - Social Pathologies, Axel Honneth, Mutual recognition and Dani Zubair . (shrink)

There is a conflict between the wishes of terminally ill patients to allow withdrawal of treatment and become donors after cardiac death (DCD) and the limit on interventions required by the dead-donor rule (DDR). Once a breathing tube is removed, hours can pass before the patient expires. This interim time complies with the DDR, but often makes donation impossible. The consequences are the nullification of donors’ wishes and the waste of organs for transplantation. Since the DDR was developed, attitudes (...) on end-of-life interventions have evolved, organ donation has been embraced, and the field of organ transplantation has been firmly established. A new ethical approach is needed that, based on patients’ autonomy, considers organ donation a goal of care and views the donated organs as having a profound value for the donor and recipient. It is time to prioritize patients’ autonomous desire to donate life-giving organs to others and thus promote continuity of care for the donated organs over the modality of death pronouncement. To support patients’ desire to be organ donors, the conversation should be open to allow medical intervention in the peri-extubation period. (shrink)

Akratic belief, or belief one believes one should not have, has often been thought to be impossible. I argue that the possibility of akratic belief should be accepted as a pre-theoretical datum. I distinguish intuitive, defensive, systematic, and diagnostic ways of arguing for this view, and offer an argument that combines them. After offering intuitive examples of akratic belief, I defend those examples against a common argument against the possibility of akratic belief, which I call the Nullification Argument. I (...) then offer an Argument from Belief Attribution, using a discussion of the marks by which we typically attribute belief to defend attributions of akratic belief. I conclude by offering a way to explain what is puzzling about akratic belief, while allowing that it is possible. (shrink)

We provide characterizations of the equal division values and their convex mixtures, using a new axiom on a fixed player set based on player nullification which requires that if a player becomes null, then any two other players are equally affected. Two economic applications are also introduced concerning bargaining under risk and common-pool resource appropriation.

In the nearly 800 pages that comprise the three volumes of his Graphology Poems 1995–2015, John Kinsella demonstrates an exemplary moral anger registering iterations of colonial “omni-speak” as unethical. This paper reads Giorgio Agamben’s Homo Sacer by way of apprehending the rhetorical substrata underpinning discourses of Australia as not just determining a sovereign colonial space; in a place where “history is absurdity […] history is overlay”, Kinsella shows how indigenous and non-colonial others are consistently cast as extra-juridical and merely sub-human. (...) These Graphology Poems not only anathemise and hex historical falsehoods of nation: Kinsella dares sound out the bullshit, and his iconoclastic language games refuse outright to acquiesce to the epistemically violent nullifications of antipodean identity. (shrink)

Equality before the law is one of the fundamental guarantees citizens expect in a just and fair society. We argue that recent trend toward mass incarceration, which has had vastly disproportionate impact on African Americans, is undermining this claim to fairness and raises a serious legitimacy problem for the legal system as a whole. Using original data from the Race, Crime and Public Opinion study we show that African Americans view the 'War on Drugs" as racially biased in its implementation. (...) This perception of bias consequentially undermines legal system legitimacy by lowering blacks' expectations for police performance in their communities and encouraging receptivity to appeals for jury nullification based on race. (shrink)

In the practice of jury nullification, a jury votes to acquit a defendant in disregard of the factual evidence, on the grounds that a conviction would result in injustice, either because the law itself is unjust or because its application in the particular case would be unjust. Though the practice is widely condemned by courts, the arguments against jury nullification are surprisingly weak. I argue that, pursuant to the general ethical duty to avoid causing unjust harms to others, (...) jurors are often morally obligated to disregard the law. (shrink)

America’s legal system harbors serious, widespread injustices. Many defendants are sent to prison for nonviolent offenses, including many victimless crimes. Convicts often serve draconian sentences in crowded prisons rife with abuse. Almost all defendants are convicted without trial because prosecutors threaten defendants with drastically higher sentences if they request a trial. Most Americans are terrified of encountering any kind of legal trouble, knowing that both civil and criminal courts are extremely slow, unreliable, and expensive to use. This book explores the (...) largest injustices in the legal system and what can be done about them. Besides proposing institutional reforms, the author argues that prosecutors, judges, lawyers, and jury members ought to place justice before the law – for example, by refusing to enforce unjust laws or impose unjust sentences. Issues addressed include: · The philosophical basis for judgments about rights and justice · The problems of overcriminalization and mass incarceration · Abuse of power by police and prosecutors · The injustice of plea bargaining · The appropriateness of jury nullification · The authority of the law, or the lack thereof Justice Before the Law is essential reading for everyone interested in legal ethics, the rule of law, and criminal justice. It is also ideal for students of legal philosophy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Europe, an "Unimagined" Frontier of DemocracyÉtienne Balibar (bio)Translated by Frank Collins (bio)In my Berlin talk I spoke of the ever more massive and ever more legitimate presence in the old European states of people from their former colonies, and this despite the discrimination to which these people are subjected [see "Europe, Vanishing Mediator?"]. I added that this was the basis for a lesson in alterity that Europe can use (...) to define more uniquely its power (or lack of power—"puissance" vs. "im-puissance") in the world today. This idea might appear to be excessively optimistic, if not a delusion, but I wish to clarify what it means by examining the ideas of two Italian sociologists, Alessandro Dal Lago and Sandro Mezzadra. These two scholars have for a long time been engaged in analyzing the effects of postcolonial immigration in a Europe caught up in the process of globalization.In their essay "I confini impensati dell'Europa," they examine the way in which, in today's Europe, two meanings associated with "frontier" conflict with each other. They are referring to what Italian calls confini (which I would translate into French as frontières [English "frontiers"]) and frontiere (which I would translate into French as confins [English "confines"/"outer reaches"]).2 The end of the Cold War and the nullification of the Yalta agreements have reopened a historical and philosophical question with respect to the the very meaning we attach to the name "Europe." In the bloody wars that followed the disintegration of former Yugoslavia, that question took on a particularly dramatic form and prefigured other events of the same kind.Dal Lago and Mezzadra place this question in the context of the changes undergone by imperialism. The fight by the capitalist powers to control world resources and to impose a "Western-style" economic model upon the rest of the world is now becoming a full-scale battle that includes all the social, demographic, and humanitarian aspects that tend to impose a global constraint against the movement of peoples. This constraint is particularly felt in those "frontier-zones" in which political control coexists alongside military control (as in Yugoslavia), but where the two are violently separated. In these zones, men are at once displaced, forced into migration, yet also confined to house arrest. Here we are touching upon the profoundly equivocal nature of the "European" project:We can thus state that the frontiers of Europe have multiplied and diversified. As a consequence, the political concept of Europe has also significantly [End Page 36] fragmented. We might say that today there are as many distinct Europes as there are functions undertaken on the international stage by that nebulous continental entity. [...] This multiplication, however, cannot hide the chasm that separates on the one hand ideological or utopic pretentions to self-determination for the whole of Europe, and on the other the inescapable need strategically to align itself with the center of the Western empire, namely the USA. Recent global wars—such as the Gulf and Afghanistan wars—periodically remind us of this reality.[145]Dal Lago and Mezzadra go on to describe the self-fulfilling prophecy inherent in European discourse on identity and security, an ever more insistent discourse since the 1990s.3 This is true for the supporters of "populism" who, from Austria to Italy to Denmark have built their electoral successes on the concept of "unassimilable difference" and insecurity. It is also to be seen in the practices of European governments today and in the way civil societies are "conditioned." True, constructions that define identity (constructions identitaires) following the end of the Cold War have established nothing positive with respect to European identity, but they stigmatize a group of excluded people in order to mark the difference between Europe and the rest of the world. Essentially these refugees and migrant workers occupy that slot in society, both imaginary and real, of internal or domestic political enemies4 who are nothing more than a construct of the State. These people are seen as a threat to security while in fact having no security themselves.This defining of the immigrant in term of his alterity, as a potentially dangerous temporary guest... (shrink)

This is a comparative study on the 20th's century's Western philosophy Hannah Arendt(1906-1975) and the 16th century's Eastern Confucian thinker Wang Yang-ming(1472-1529). Wang-ming was a Neoconfucian thinker of the 16th century China. In his time, Chinese intellectual world was dominated by Neoconfucian Ch’eng-Chu School which laid much stress on scholastic work of learning. Yang-ming saw a huge obstacle of intellectualism in Ch’eng-Chu school’s theoretical scholasticism that emphasized overly book-learning to be required on the way to become a genuine person. He (...) recognized this kind of rigidintellectualism as the true reason for the dichotomy in his time between knowledge and action, between learning and life, and between selfcultivation and social practice. According to his view, the dichotomy brought about serious political corruption and oppressed human creativity up to the point of total institutionalization of “truth”. Hannah Arendtwas sickened under the severe totalitarianism of the 20th century, especially as a Jew under the German Nazism. She undertook an extensive analysis of how Western civilization generated totalitarian imperialism, fascism, and communism, going through the modern times, all of which made human beings’ language and action superfluous, erupted, and destroyed. Through these experiences, she became disgusted with traditional Western hierarchy of thinking and doing, philosophy and politics, theory and practice, in short, vita contemplativa and vita activa. Although they both lived far away from each other in space and time and used completely different languages, they both, in my view, shared many common problems and concerns, not only in the contents of their thoughts but also in the way and form of construction of thoughts. To the similar extent that people were warned and judged by both thinkers respectively in their times of the totalitarianism of making human beings superfluous and puppet-like, we human beings in the 21st century are considered to be threatened by the totalitarian nullification caused by modern utilitarianism, automation, consumerism, etc. These principles are practiced limitlessly and boundlessly, so that our whole lives of politics, culture, and education are now suffering from that threat. It is my conviction that we can acquire some guide and wisdom from the twothinkers of East and West, because they discovered possible solutions of how to restore and revive human beings’ capacities of thinking and judging, and how to bring action and doing. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, `substantive' as distinct from `formal legal' truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. `Jury nullification' and `jury equity'. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in the idea (...) of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, ‘substantive’ as distinct from ‘formal legal’ truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. ‘Jury nullification’ and ‘jury equity’. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

Truth is a fundamental objective of adjudicative processes; ideally, substantive as distinct from formal legal truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. Jury nullification and jury equity. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

Arendt's interpretation of Hobbes is an external and critical approach: so there are some reductionisms. Hobbes is an example of the nullification of politics typical in Western history–the withdrawal from the contingent nature of action. The artificial genesis of State is an example of eidetic and theoretical coercion of Plato's praxis, to eliminate the risk and to reduce the politics to the modality of cause-effect. What is lost is reality. The Leviathan, born out of an artifice to attain order, (...) includes in his internal logic, the dissolving, the insecurity, a vacillating structure, in a paradoxical heterogenesis of the ends. (shrink)

Stress induction reduces people's ability to modify their instrumental choices following changes in the value of outcomes, but the mechanisms underpinning this effect have not been specified because previous studies have lacked crucial control conditions. To address this, the current study had participants learn two instrumental responses for food and water, respectively, before water was devalued by specific satiety. Choice between these two responses was then measured in extinction, reacquisition and Pavlovian to instrumental transfer tests. Concurrently during these tests, a (...) negative emotional appraisal group evaluated aversive images, whereas a control group evaluated neutral images, at the same time as choosing between the two instrumental responses. Negative emotional appraisal abolished the impact of water devaluation on instrumental choice in the extinction test, but did not affect instrumental choice in the reacquisition or PIT tests. These findings suggest that negative emotional appraisal selectively impaired participants’ ability to retrieve the expected value of outcomes required to make goal-directed instrumental choices in the extinction test, and that this effect was not due to task disengagement, nullification of the devaluation treatment or impaired knowledge of response-outcome relationships. (shrink)

This paper revisits the different notions of influence, persuasion and influencebound subjects. It illustrates and critiques the dominant prevailing concept of influence and its effects, which, though diversely denominated and presented through various theories, always comes down to reaffirming the relationship of dominance and the possibility of the nullification of the subject within the relationship with the other. With this aim, it studies the classical theories of interpersonal influence and brings to attention some of the bodies of information which (...) have been systematically neglected or set aside, particularly concerning suggestion, possession, mesmerism and somnambulism. (shrink)

The interpretation of quantum mechanics has been a problem since its founding days. A large contribution to the discussion of possible interpretations of quantum mechanics is given by the so-called impossibility proofs for hidden variable models; models that allow a realist interpretation. In this thesis some of these proofs are discussed, like von Neumann’s Theorem, the Kochen-Specker Theorem and the Bell-inequalities. Some more recent developments are also investigated, like Meyer’s nullification of the Kochen-Specker Theorem, the MKC-models and Conway and (...) Kochen’s Free Will Theorem. This last one is taken to suggest that the problems that arise for certain interpretations of quantum mechanics are not limited to realist interpretations only, but also affect certain instrumentalist interpretations. It is argued that one may arrive at a more satisfying interpretation of quantum mechanics if one adopts a logic that seems more compatible with the instrumentalist viewpoint namely, intuitionistic logic. The motivations for adopting this form of logic rather than classical logic or quantum logic are linked to some of the philosophical ideas of Bohr. In particular a new interpretation of Bohr’s notion of complementarity is proposed. Finally some possibilities are explored for linking the intuitionistic interpretation of quantum mechanics to the mathematical formalism of the theory. (shrink)

In The Rule of Law in the Real World, Paul Gowder presents a new account of the rule of law based on three conditions: publicity, regularity, and generality. In this essay, I examine two closely related questions that are prompted by Gowder’s version of the rule of law. First, does the rule of law require citizens to follow the law? Second, what does Gowder’s account mean for jury nullification? I argue that the rule of law does not require citizens (...) to follow the law, but it does prohibit jury nullification. A discussion of some moral implications and objections follow. (shrink)

This essay aims to reflect on the impacts of state violence upon black lives and childhoods. In the wanderings through the city of Rio de Janeiro and in the theoretical trails proposed by antiracist and decolonial thinkers, we discuss the impacts and challenges of racism in the formative and existential itineraries of racialized bodies, crossed by the public necropolitics that provides the premises of the pedagogical government of peripheral childhoods and adolescences in large Brazilian cities. From the bumping into M., (...) 11 years old, who sells chewing gum in the surroundings of a train station in Rio de Janeiro, we problematize the vulnerabilities produced and the systematic violations of the black children’s human rights, which hinder racial justice in the country, in face of the permanent conversion of differences into inferiorized inequalities. The violence of this injustice, according to the argument developed in the text, culminates in the reinforcement of the vilification and naturalization of racial inequalities against populations historically inferiorized by the colonial wrath. It also points to the need to think about black childhoods from the territory, in order to problematize inequities and disparities that persist. We conclude, finally, that the capture and nullification of black childhoods is a State project, guided by criminalizing and stereotyping practices of subjectivation which brutalize bodies and dehumanize black lives. (shrink)

This piece, included in the drift special issue of continent., was created as one step in a thread of inquiry. While each of the contributions to drift stand on their own, the project was an attempt to follow a line of theoretical inquiry as it passed through time and the postal service from October 2012 until May 2013. This issue hosts two threads: between space & place and between intention & attention. The editors recommend that to experience the drifiting thought (...) that attention be paid to the contributions as they entered into conversation one after another. This particular piece is from the BETWEEN SPACE & PLACE thread: April Vannini, Those Between the Common * Laura Dean & Jesse McClelland, Ballard: A Portrait of Placemaking * Amara Hark Weber, Crossroad * Isaac Linder & Berit Soli-Holt, The Call of the Wild: Terror Modulations * Ashley D. Hairston, Momma taught us to keep a clean house * Sean Smith, The Garage * * * * Instead of beginning with radical doubt, we start from naiveté. —Graham Harman, The Quadruple Object Deep in the forest a call was sounding, and as often as he heard this call, mysteriously thrilling and luring, he felt compelled to turn his back upon the fire and the beaten earth around it, and to plunge into the forest, and on and on, he knew not where or why; nor did he wonder where or why, the call sounding imperiously, deep in the forest. —Jack London, The Call of the Wild The figure of the feral remains a perpetual enigma, but the parameters remain relatively consistent. A person, usually a child, enters civilization after having been raised by wolves or kept in some kind of cruel captivity. The outsider perspective on domestication ensuing in an edge of a culture's self-recognition of its clumsier attributes, what has been taken for granted becomes apparent, is brought to the foreground with the stranger and made questionable. Amusement follows naïve questions or observations such as Kaspar Hauser in the Herzog film, The Enigma of Kaspar Hauser, when Kaspar notes that while in his room he is engulfed by it, but when he looks at the tower he can turn away and it disappears. Ergo, the room is larger than the tower. How entertaining. The aberrant one destabilizes the comforting cultural normative. Places become seen as mere impressions out of space, a patterning, a rut that not everyone lives in like us. This is one figure of the feral. The naiveté that begs all the questions. As a figure for a certain philosophical disposition, the rapidity of one’s saccade scans the environment, intuits it’s space, not from an initial thaumazein or a Critchlean sense of disappointment, but from a child-like naiveté bent on survival. To serve the naïve is merely one form of critique, and it is not nearly used enough in lieu of the critique that provides answers. How dull. It is not necessary to be an outsider to entrench a critique with naiveté. After having forced to suffer in the most parched and rocky terror, itself for so long rooted upwards of fifty feet into the ground upon which it grows, even a grapevine can spontaneously produce a white grape on a red vine. The curious feral can arise from within, and like pinot grigio, it adds variety without admonishing its roots. There is also the feral dog. Not raised by wolves, but humans. Founded in place the figure of this feral denies this place. The trajectory of this feral roves from the cultivated to uncultivated, or in speaking of plants from controlled to volunteer, finding the necessary nutrients and survival patterns on its own. Finding other places, reaching out into space testing its fertility. And when introduced into a foreign environment, it withers or flourishes. We would like to attempt a thesis at this juncture and to accept neither feral figure in its entirety, but to argue for the intimate conjunction between a cultivated place and its resonance with the space it procures for its nest and kin. I'm not a biter, I'm a writer for myself and others. —Jay-Z, What More Can I Say? I am writing for myself and strangers. This is the only way that I can do it. Everybody is a real one to me, everybody is like some one else too to me. No one of them that I know can want to know it and so I write for myself and strangers. —Gertrude Stein, The Making of Americans There is no subjective disposition outlining an unambiguous individual of the para-academy. There is no para-academic. We all have day jobs. 'Para-academic' seeped through the cracks as an adjective in the call to frame publishing dedicated to the critical rigor expected by academic publishing, but to deny the limitations of guarded legitimation through capital means. Open-access holds hands with this parasitic descriptor. Para-academic publishing's refusal to adhere to the valuation of locked access of a site, the site “of a desperate initiation to the empty form of value,” 1 seeks to recognize not merely an inclusive interpretation of significance, but the significance of thinking practice. The practice inside the paywalls of academic 'education' is held in a deathgrip by its infatuation with value and information, both empty without the apprehension of human experience, the barbaric yawp. “I can't breathe in here.” It is not that a para-academic practice leads one to the childish wonder of Kaspar Hauser who wonders about the spatiality of his room. It is the academic legitimation that distorts that one can hold the understanding of both in a constellation of place and space. Led to believe there is only a place for things, we are led to disillusionment. It is also not that a para-academic practice relinquishes itself to the invasive growth outside of careful cultivation, an abandonment of pleasantries for the toothy growl of a predator. It is the academy's fear that thought does not require capital to signify value. Some of the most nutritious meals can be foraged. Defining a para-academic practice is not outlining a place of accreditation of the practice, it is the recognition that any place is subject to modulation by the space it inhabits as well as creates. The para-academic practice keeps an eye of the creation of spaces, follows those paths that eat themselves in the name of academia. This is not unlike Red Peter's report to the academy, only successful if we report in idle idiosyncratic banalities that we have once again become victorious in our acculturation and nullification within the confines of accredited mush and our trajectory of wild rigor is defeated in our desire for recognition as recognizable in this place. Weeds are integral to the functioning of a large ecosystem. The manicured garden is entirely reliant on its keeper. The pansy can also go wild once neglected, the daisy definitely does.... a universe comes into being when a space is severed or taken apart. The skin of a living organism cuts off an outside from an inside. So does the circumference of a circle in a plane. By tracing the way we represent such a severance, we can begin to reconstruct, with an accuracy and coverage that appear almost uncanny, the basic forms underlying linguistic, mathematical, physical, and biological science, and can begin to see how the familiar laws of our own experience follow from the original act of severance. The act is itself already remembered, even if unconsciously, as our first attempt to distinguish different things in a world where, in the first place, the boundaries can be drawn anywhere we please. At this stage the universe cannot be distinguished from how we act upon it, and the world may seem like shifting sand beneath our feet. —George Spencer-Brown, Laws of Form Two edges are created: an obedient, conformist, plagiarizing edge, and another edge, mobile, blank, which is never anything but the site of its effect: the place where the death of language is glimpsed. These two edges, the compromise they bring about, are necessary. —Roland Barthes, The Pleasure of the Text Between these two epigraphs, interminable questions of where and questions of happening, gesture, and interface. To stay buoyed between a site of visible happening and haptic perspicacity. Bounded by one or the other leads to a desiccation of potential knowledge. The tumbleweed tumbles until met with mud, a bare structure moving but not movement. A tumbleweed tumbleweeds, propagates only at a place. It becomes significant again, continues. Significance, the site where meaning is made known through kinesthetic apprehension. 2 The feral founds a gestural horizon; an outsider’s scrawl-becoming-law; Deleuze teaching Meno’s dog geometry. Place as marked, outlined, recognized, territorialized. The academies marked by their peculiar disciplines, outlined by their rigid boundaries, recognized as factories of value. This far from ensures complete purchase on the space of thought, but it has made an undeniably elaborate means of making work significant. The academy is a muddy spot, it is fertile, but its gates are high and its dogs are barking. The coordinates of concept and experience. Already claimed by a stabilizing suspension, the terms enter specificity of ‘this is this’. Another correlation: activity and the individual. The individual, a placeholder in the crosshairs of juridical identification. Activity, what expands and surrounds this location, but utterly indebted to the node of “one who”. What's happening in this oscillation of nature and nurture is practice. Practice, as Stengers tells us “is not the activity of an individual or the product of that activity. It is the ingredient without which neither that activity nor this product would exist as such.” 3 Moving outward from our own honing, we're curious about the ingredient creating the place for holding conceptual and experiential engagements in each hand. And we'd like to argue that this place is not a limiting specification, but a practice undulating daily, by the minute. And we call this practice the para-academic practice. I repeat: there was no attraction for me in imitating human beings; I imitated them because I needed a way out, and for no other reason. —Franz Kafka, A Report to an Academy In order to exist, man must rebel, but rebellion must respect the limit it discovers in itself—a limit where minds meet and, in meeting, begin to exist. — Albert Camus, The Rebel Anyone is a para-academic or practicer of such means. The academic can, and we argue should, be active para-academically, to escape the bounds, recognizing no site specific place as a place to rest on or the place to grab the Kafka's top and wonder at its disobedience not to continue. Yet, the para-academic practice must maintain the desire for rigor in scholarship. Indeed desiring past itself to claim a more naïve rigor, one that does not take its form for granted. Without a para-academic practice, the scholar spends half the time merely working on behalf of a hierarchy, to maintain it, and the other measly amounts of time are in the name of thinking, but only in name. Not to mention the amount of debt it takes to attend the halls of higher education. Not to mention the snoring tenures. Not to mention the barely scraping by adjuncts. Not to mention the materials that shake the very force of producible theory. Not to mention when swimming in texts becomes slogging through data. Academia is a barbaric food chain and it is our claim that there is, as always, an imperative for thought to move, with Heidegger, beyond the logics of calculation and planning, to a time of its own. The path, into the panic of the dark wood of this space can be followed by any; any who let the silence and the rigor enter the play. Where the little theater is larger when inhabited ; where the data of the tutor asymptotically refutes; and where, as much as one wouldn’t expect it here, ballet may turn out to be the most feral of forms… NOTES Jean Baudrillard, “Value's Last Tango” Simulacra and Simulation trans. Sheila Faria Glaser,. “What is significance? It is meaning, insofar as it is sensually produced.” Roland Barthes in The Pleasure of the Text. Isabelle Stengers, “The Science Wars” Cosmopolitics I trans. Robert Bononno, 47. (shrink)

I argue that the duty of confidentiality is relative, not absolute; and that it is primarily a matter for the professional judgment of the reflective health practitioner to determine in the particular case whether competing public interests (or other compelling reasons) override that duty. I have supported that account with an analysis of medical practice as a recourse role and with an account of law that emphasises not only its duty‐imposing character but also, and crucially, an embedded liberty to depart (...) from the plain requirements of a primary legal rule where in the conscientious judgment of the addressee of that law, there is ‘damn good reason’ to do so. This account of the moral nullification of law at the outer limits appears to be descriptively accurate over a wide range of law and normatively appealing not only to democratic citizens but also to professionals such as doctors and lawyers whose role involves testing the law on moral grounds and who should be ready to do so, if but only if, they believe in the good faith exercise of professional judgment that the outcome mandated by the literal application of the legal rule is inconsistent with the moral mission of their role. The argument is illustrated with cases from American and English courts which, perhaps, render plausible the otherwise paradoxical notion that the law itself admits of departures from the legal rules. (shrink)

In the practice of jury nullification, a jury votes to acquit a defendant in disregard of the factual evidence, on the grounds that a conviction would result in injustice, either because the law itself is unjust or because its application in the particular case would be unjust. The practice is widely condemned by courts, which strenuously attempt to prevent it. Nevertheless, the arguments against jury nullification are surprisingly weak. I argue that, pursuant to the general ethical duty to (...) avoid causing unjust harms to others, jurors are often morally obligated to disregard the law. (~7400 words). (shrink)

E.J. Lowe attempts to meld elements of volitionalism and agent causalism in his recent essay on philosophy of action, Personal Agency. United in the belief that our mental states are inefficacious when it comes to producing volitions, agent causalists disagree over just how to formulate an alternative understanding of mental agency. We exercise self-control so as to become appropriate objects of reactive attitudes, by being the ultimate sources of our behavior- here they concur. But the precise nature of the relation (...) between agents and the volitions that ensue upon exercises of our will is disputed. Volitionalists, for their part, refuse to countenance talk of substances as causal relata. Only events are effective, they see our mental lives and attendant behavior proceeding without us being in any way involved except, perhaps, as spectators with a rooting interest in their having favorable outcomes, the threat such a nullification would pose to our belief in free will apparently being of less concern to them than the imperative of subsuming all occurrences under natural laws. (shrink)

The title of this book is somewhat misleading. A more apt title would have been, "A Marxist Critique of Husserl’s Nullification of the Real World." Such a title would have made the central argument and underlying concern in the present discussion more explicit. The author is intent on a spirited refutation of Husserl’s phenomenology as a transcendental, phenomenological idealism. It is particularly this stage of Husserl’s phenomenological development, maintains Sang-Ki Kim, that effects a sacrifice of the real world. The (...) belated return to the life-world, characteristic of Husserl’s later thought, does not, according to the author, help matters much. Husserl’s analysis of the life-world continues to be informed by the anti-historical apriorism that defined his earlier program of phenomenological idealism. Husserl’s concept of the life-world thus remains a bloodless abstraction, bereft of any acknowledgement of the concrete, historical, naturalist-materialist basis that undergirds it. (shrink)

The title of this book is somewhat misleading. A more apt title would have been, "A Marxist Critique of Husserl’s Nullification of the Real World." Such a title would have made the central argument and underlying concern in the present discussion more explicit. The author is intent on a spirited refutation of Husserl’s phenomenology as a transcendental, phenomenological idealism. It is particularly this stage of Husserl’s phenomenological development, maintains Sang-Ki Kim, that effects a sacrifice of the real world. The (...) belated return to the life-world, characteristic of Husserl’s later thought, does not, according to the author, help matters much. Husserl’s analysis of the life-world continues to be informed by the anti-historical apriorism that defined his earlier program of phenomenological idealism. Husserl’s concept of the life-world thus remains a bloodless abstraction, bereft of any acknowledgement of the concrete, historical, naturalist-materialist basis that undergirds it. (shrink)

Meyer, Kent and Clifton (MKC) claim to have nullified the Bell-Kochen-Specker (Bell-KS) theorem. It is true that they invalidate KS's account of the theorem's physical implications. However, they do not invalidate Bell's point, that quantum mechanics is inconsistent with the classical assumption, that a measurement tells us about a property previously possessed by the system. This failure of classical ideas about measurement is, perhaps, the single most important implication of quantum mechanics. In a conventional colouring there are some remaining patches (...) of white. MKC fill in these patches, but only at the price of introducing patches where the colouring becomes ``pathologically'' discontinuous. The discontinuities mean that the colours in these patches are empirically unknowable. We prove a general theorem which shows that their extent is at least as great as the patches of white in a conventional approach. The theorem applies, not only to the MKC colourings, but also to any other such attempt to circumvent the Bell-KS theorem (Pitowsky's colourings, for example). We go on to discuss the implications. MKC do not nullify the Bell-KS theorem. They do, however, show that we did not, hitherto, properly understand the theorem. For that reason their results (and Pitowsky's earlier results) are of major importance. (shrink)

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional (...) morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions for further study regarding the historical behavior of the jury, the jury’s role in reinforcing notions of political liberty and free will, and, primarily, how scholarly conceptions of the jury’s role and behavior have informed elite theory regarding the justifications for imposing criminal responsibility. (shrink)

One of the first things striking readers of Criminal Law Conversations is its unusual methodology. The editors of this volume have put together 31 conversations around as many cutting edge and influential articles. This article considers critically some discussions representative of each of the book’s three parts: Principles, Doctrine, Administration and provide a glimpse of the richness and variety of Criminal Law Conversations.

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such (...) inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

Discusses who should decide the result of legal trials, focusing on the jury system.