Austin Sarat’s research while affiliated with Amherst College and other places

Cambridge Core - Socio-Legal Studies - The Death Penalty on the Ballot - by Austin Sarat

This article considers what happens when the death penalty is put on the ballot. It reviews the history of referenda/initiatives concerning capital punishment from the start of the twentieth century to the present. That history reveals the role that referenda/initiatives have played in struggles against and within governmental institutions. In addition, we find that abolitionists seldom prevail in those electoral contests. We consider the implications of these findings for the prospects that the death penalty could be ended democratically.

Law and Mourning brings together a distinguished group of scholars to explore the many and complex ways that law both regulates and gives meaning to our experience of loss. The essays in this volume illuminate how law helps us to absorb and contend with loss and its reverberations, channeling the powerful emotions associated with death and protecting those vulnerable to them. At the same time, law creates a regulatory framework for death as it establishes the necessity for a clear demarcation of the boundary between life and death, defines what we can and cannot do with the remains of the dead, and creates both privileges and disabilities for survivors. The contributors to the volume also explore how mourning generates critiques of existing legal and political orders which seem compelled by calls from the dead, unleashing an indifference to legal consequences in survivors that can undermine or destroy law. In addition to the editors, the contributors include Andrea Brady, Catherine Kellogg, Shai Lavi, Ray Madoff, Ann Pelligrini, and Mark Sanders. © 2017 by University of Massachusetts Press. All rights reserved.

Mourning and the Law An Introduction Martha Merrill Umphrey, Austin Sarat, and Lawrence Douglas Yoking law and mourning together may seem counterintuitive. Mourning, Freud observes, “involves grave departures from the normal attitude toward life.”1 The painful experience of loss causes a mourner to lose interest in the outside world, temporarily pulling him or her into an altered temporality saturated by the past and devoid of an imaginable future. Death, it turns out, is no real end; rather, it is remarkably generative for those who live on, in ways both predictable and sometimes destabilizing. Those who mourn a loss seem immersed in another realm, detached from reality, indifferent or unresponsive to rule and reason, exempt from the usual rules and timetables of everyday life. What does law have to do with such a deeply human, otherworldly state? As the chapters in this volume suggest, law is bound up with and responsive to mourning in many ways. Mourning is constituted in relation to social norms and institutions that, through rule and ritual, absorb, regulate, and contend with loss and its reverberations. Law helps to give meaning to death and mourning, establishing rules that require a clear demarcation of the boundary between life and death, tell us what we can and cannot do with the remains of the dead, and create privileges and disabilities for survivors. These rules are found in criminal law, health law, and laws governing inheritance. Law seeks to channel the powerful emotions associated with it, and protect those vulnerable to them, in order to limit social confusion and conflict. Yet mourning can also generate critiques of existing legal and political orders that seem compelled by calls from the dead, unleashing an indifference to legal consequences in mourners that can undermine or destroy law. 2 Martha Merrill Umphrey, Austin Sarat, and Lawrence Douglas To say one enters a “state” of mourning invokes a telling metaphor; to be “in mourning” is to be responsive to a different kind of authority. The dead make demands on the living: ritual acts must be performed, testimonials made, possessions rearranged, memories sifted, futures reimagined, and injustices redressed. Those demands can be weighty, and the grief attached to and derived from them can be powerful and unsettling. We give those in mourning space to dwell apart; indeed, in some times and places we require they dwell in such a space for a year or more, 2 or even die themselves.3 To be both in mourning and in law’s world, one is subject to different “sovereigns,” sometimes aligned but sometimes at odds. The chapters that follow trace the borders arising from this state of mourning in law itself, between law and politics, and ultimately in acts of judgment and justice. Governing the “State” of Mourning We might characterize mourning as a psychic relation between the living and the lost, shaped in part by the surrounding social world. Mourning involves an internal process of detaching from someone or something that has passed away. In his classic essay “Mourning and Melancholia” (1917), Freud suggests that in mourning, “the existence of the lost object is psychically prolonged” internally, in opposition to the evident reality of loss. Mourners lack interest in the outside world, cannot adopt a new love object, and turn away from any activity not connected with thoughts of the lost object.4 Building upon Freud’s later work connecting this mourning dynamic with the constitution of the ego, Paul de Man argues that mourning “entails a movement in which an interiorizing idealization takes in itself or upon itself the body and voice of the other, the other’s visage and person, ideally and quasi- literally devouring them.[It] consists in recognizing that the dead are now only ‘in us,’ now only images ‘for us.’”5 Delineations of self and other collapse spatially as the image of the lost object emerges inside the subjectivity of mourners. Moreover, this incorporation of the lost object carries it forward temporally as memory, as part of the living, in ways that can generate action on behalf of the dead. Those attachments play out in the social world as well. Anthropologists and sociologists identify the state of mourning in culturally defined acts— rites, rituals, and customs— that take place after a death and offer a means of transition for both the deceased and the bereaved.6 Such transitions are a rite of passage involving, as Gorer describes it, a 3 Mourning and the Law An Introduction withdrawal from society.