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Pluto Press - Desmond Manderson

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244 pages

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This collection deals with complex issues relating to death such as ‘mercy killings’, the ‘right to die’ and murder. the relationship will always be controversial. This timely and provocative collection brings together scholars from Australia, Britain and the US.
Introduction: Tales from the Crypt: A Metaphor, An Image, A Story

Desmond Manderson

Part One: In Extremis

1. Death as the Horizon of Law

Peter Fitzpatrick

2. Et Lex Perpetua: Dying Declarations and the Terror of Süssmayr

Desmond Manderson

3. Killing Me Softly: Capital Punishment and the Technologies for Taking Life

Austin Sarat

4. The Sanctity of Death: Poetry and the Law and Ethics of Euthanasia

Melanie Williams

Part Two: Post Mortem

5. But a Lump of Earth: The Legal Status of the Corpse

Ngaire Naffine

6. Bodily Remains in the Cemetery and the Burial Ground: A Comparative Anthropology of Law and Death

Prue Vines

7. Did He Fall or Was He Pushed? Inquiring Into Pitjantjatjara Deaths

Jon Willis

8. Pro Patria Mori: Law, Reconciliation, and the Nation

Scott Veitch

Part Three: Momento Mori

9. Law Deathbound: Antigone and the Dialectics of Nomos and Thanatos

Costas Douzinas

10. The Ethical Obligation to Show Allegiance to the Un-knowable

Marinos Diamantides

11. Stephen Dedalus’ Magic Words: Death and the Law Between James Joyce & Pierre Legendre

Adam Gearey

12. Courting Death

Peter Goodrich

Contributors’ Notes

Index

Sujets

Droit et juridique

Law

Informations

Publié par	Pluto Press
Date de parution	20 septembre 1999
Nombre de lectures	0
EAN13	9781849640190
Langue	English
Poids de l'ouvrage	1 Mo

Informations légales : prix de location à la page 0,6250€. Cette information est donnée uniquement à titre indicatif conformément à la législation en vigueur.

Extrait

COURTING DEATH The Law of Mortality

Edited by DESMOND MANDERSON

P Pluto Press LONDON • STERLING, VIRGINIA

First published 1999 by Pluto Press 345 Archway Road, London N6 5AA and 22883 Quicksilver Drive Sterling, VA 20166–2012, USA

The right of the individual contributors to be identified as the authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988

‘The Almond Tree’ by Jon Stallworthy reproduced by kind permission of the author.

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

ISBN 0 7453 1366 3 hbk

Library of Congress Cataloging in Publication Data Courting death : the law of mortality / edited by Desmond Manderson. p. cm. — (Law and social theory) Includes index. ISBN 0–7453–1366–3 (hbk) 1. Dead—Legal status, laws, etc. 2. Death. 3. Capital punishment. 4. Euthanasia. 5. Dead bodies (Law) I. Manderson, Desmond. II. Series K646.C68 1999 340'.112—dc21 99–19593 CIP

Designed and produced for Pluto Press by Chase Production Services, Chadlington, OX7 3LN Typeset from disk by Stanford DTP Services, Northampton Printed in the EC by TJ International, Padstow

Contents

Acknowledgements

Introduction: Tales from the Crypt – A Metaphor, An Image, A Story Desmond Manderson

Part One:In Extremis

1. Death as the Horizon of the Law Peter Fitzpatrick 2.Et Lex Perpetua:Dying Declarations and the Terror of Süssmayr Desmond Manderson 3. Killing Me Softly: Capital Punishment and the Technologies for Taking Life Austin Sarat 4. The Sanctity of Death: Poetry and the Law and Ethics of Euthanasia Melanie Williams

Part Two:Post Mortem

5. ‘But a Lump of Earth’?: The Legal Status of the Corpse Ngaire Naffine 6. Bodily Remains in the Cemetery and the Burial Ground: A Comparative Anthropology of Law and DeathorHow Long Can I Stay? Prue Vines 7. Did He Fall or Was He Pushed?: Inquiring Into Pitjantjatjara Deaths Jon Willis 8.Pro Patria Mori:Law, Reconciliation and the Nation Scott Veitch

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Part Three:Memento Mori

10.

11.

12.

Law Deathbound: Antigone and the Dialectics of NomosandThanatos Costas Douzinas The Ethical Obligation to Show Allegiance to the Un-knowable Marinos Diamantides Stephen Dedalus’ Magic Words: Death and the Law between James Joyce and Pierre Legendre Adam Gearey Courting Death Peter Goodrich

Notes on Contributors Index

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Acknowledgements

Death is both inevitable and unpredictable.Courting Deathhas at times seemed much the same; although I was always confident of seeing it through to completion, exactly when and in what form the volume would see the light of day was often unclear. In that long process, I have many people to thank. This volume emerged out of a series of seminars hosted by Macquarie University School of Law throughout 1997 and was made possible only through the generous financial support of the New South Wales Law Foundation. Dr Scott Veitch was instrumental in developing and putting together this seminar series, and he and I chaired them jointly. This project could not have been begun without his assistance. The seminar series itself was a stimulating event; it not only provided an initial stimulus to many of the authors in this collection, but also offered a constructive forum for the discussion and refinement of ideas. I particularly wish to thank those scholars who presented seminars but whose work, for a variety of reasons, did not make it into the final collection: Ros Atherton, Roger Magnusson, Shaun McVeigh, Judith Grbich, Simon Bronitt and Peter Rush. Their work also helped to make this book possible. Throughout the process of redacting and rewriting, I came to rely implicitly on Maggie Liston for secretarial support, and Justine Simpkins as researcher and editor. They never failed me. I have been tremendously fortunate in my dealings with Pluto Press. The series editors and my good friends, Peter Fitzpatrick and, in particular, Colin Perrin, offered advice and assistance which was timely, constructive and precise. I could not have asked for more or better help from them. Robert Webb, the managing editor at Pluto, has worked closely with me throughout the editing process; his enthusiasm and his profes-sionalism are equally infectious. Above all, I wish to thank all the contributors to this volume for their creativity, their efficiency and their patience. It has been a long process but all of them have been cooperative and engaged with the project from first to last. I can only say that it has been a pleasure to

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work with so many good and interesting colleagues, and I hope to do so again some day. My heartfelt thanks to them all.

Desmond Manderson The University of Sydney July 1999

Introduction: Tales from the Crypt – A Metaphor, An Image, A Story

Desmond Manderson

I have lived all my life under erasure. Who I am, a lawyer, a writer, a friend, seems only a trace, the wake a boat leaves in passing. I try so hard to hold fast its shape, to remember, to preserve, but inevitably the passage of time does its work of deliverance and loss. Like Dorothea 1 Lange’s cover image, ‘Gravestone, Utah’ our memorial to ourselves and others has been windblasted smooth by time. ‘In memory of …’: yes, but of whom or what? In the confounding face of death, deliverance becomes effacement, loss becomes lack, and memory seems only to remind us that there is something we ought to be remembering. Only a trace remains. Animals, I suppose, do not seem to suffer in quite this way. For them it seems that the waters of experience are not stained by the prospective loss which death threatens, or the retrospective loss which time accomplishes. But the human animal, at least, is different. The shadow of time past and the darkness of death to come fall over and structure our lives.

Death works with us in the world. It is a power that humanizes nature, that raises existence to being, and it is within each one of us as our most human quality; it is death only in the world – man knows death only because he is man, and he is man only because 2 he is death in the process of becoming ...

Let us turn from death as an idea to something specific: law and death. Each of the two crucial terms in this postulate are typically presented as if they werefaits accomplis.Nothing could be further from the truth. We can and ought to study the relationship of law to mortality on the one hand because death is a cultural invention. Perhaps this seems counter-intuitive. The question is notthatwe die, however, but that we know we die. Consciousness changes everything. Norbert Elias 3 made a similar point in his study of time. Events will pass regardless of human intentionality, but the construction of time in a specific way, as a measure, linear, constant and abstract, is pure human invention.

Courting Death

Time and death, parent and child, are not the giddy oceans of our experience. They are the fragile boats we humans build to sail upon them. If so, then our challenge is not just to accept death but to understand its meaning for us, and to appreciate why our human societies have developed this particular understanding of it. For some, like Simon Critchley in his readings of Blanchot and Beckett, the meaning is to 4 be found in the very meaninglessness of death/life. But this is a hard business, and I would have something more forceful to say about it than almost nothing. We can and ought to study the relationship of mortality to law on the other hand because law is not just command but discourse, not only authority but also artefact. Law too is a cultural achievement. Furthermore, its cultural facticity, its pragmatic rather than its conceptual approach, brings new insights to the philosophy of death. Courting Deathis committed in just this way to uniting the abstractions of death with concrete and mundane issues of legal regulation. This book aims therefore to investigate how death has constituted our selves, and how this mutual constitution is evidenced, articulated and realised by human law. It is a book aboutThe Law of Mortalityin both senses of the phrase – how law governs aspects of death, and how death itself governs our lives and social structures. There is an ineradicable tension here that forms the text of this introduction and the subtext of every chapter in this collection. Law is the collective expression of our belief in the human capacity for responsible action. It defines, authorises and enforces responsible conduct. Our responsibility is nowhere more profound than in relation to death, a duty from which noone can relieve us. But these two types of responsibility – one legal, one ethical; one social, one personal – are contradictory. On the one hand, law seeks to control every aspect of our lives, including the manner of our passing; while death is precisely that element which lies outside of our control. On the other, the legal order is constructed around individual action and responsibility, yet death is precisely the moment at which this ‘I’ ceases to be. There are two desires here, Apollonian and Dionysian. The law expresses our desire for individuality and control, while death suggests a desire for dissolution and transcendence. Notions of respon-sibility are caught between the logic of law and the ethics of alterity. In this struggle, law may seek to bound and delimit the frightening otherness, the mystery of death, but neither can it help but be influenced by death’s hold over the contours of our inner life. It is this fraught relationship, at once ambivalent and constitutive, which marks the courting of death.

Introduction

Here’s a secret: I do not dream, my sleep is black and heavy. But often I lie half awake in the pale night, conscious of a force upon me which has its own demands and density. Blanchot, the insomniac, for whom night is never black enough: ‘If night suddenly is cast in doubt, then there is no longer either day or night, there is only a vague twilight glow, which is 5 sometimes a memory of day, sometimes a longing for night ...’ Insomnia is a kind of law; it imposes upon you against your will. In that state of obedience to a law which keeps me awake, as a passive receptacle of night’s authority, I do not have dreams; rather, dreams have me. In suspended animation, I suffer an insomniac’s fancies. My mother was born with the caul over her head: a premonition of death but also, they say, protection against death at sea. But for me, the fear of drowning is recurrent. In my fancy, I find myself in a boat, perhaps, a sinking boat. With a certain passive resignation I fall and slip and sink until the waters close, oblivious or disinterested, over my head. As such images pass uncon-trollably across my mind, I feel overwhelmed by a sense of unfathomable impotence. This is what it means both to have a nightmare and to be in one: utter irresponsibility – having no choice either to wake up out of our dreams, or to act differently in them.

***

Law and death meet in the crypt. A crypt is a hidden cell or chamber, concealing and darkening that which it encloses. In every crypt a secret lies. And that secret is, finally, the corpse; either the literal corpse which the crypt entombs, or the figurative corpse which its moistness summons, the sense of finitude and mystery and ambiguity it embodies: ‘As for the cellar, we shall no doubt find uses for it. It will be rationalised and its conveniences enumerated. But it is first and foremost thedark entityof the house, the one that partakes of subter-6 ranean forces ...’ All crypts share the mystery of death because death is the greatest of mysteries. I cannot know it or touch it or feel it, since death is the very dissipation of the ‘I’ that could do these things. But more than this, as Derrida writes, a crypt is not just invisible, a lack of light or negativity; it is a positive darkness which engages actively in the 7 production of mystery. All representations of death are misrepresen-tations, since death is a state of affairs about which one can have neither knowledge, nor intention, nor experience. We can never know what it is to die. Who could tell us? How could we comprehend them? Death, therefore, has about it not just an absence of meaning, an ignorance which may be remedied, but a shroud that resists uncovering. It is a caul, and the destiny to which all dark places tend. Appropriately, then, the three sections ofCourting Death– ‘In Extremis’, ‘Post Mortem’ and ‘Memento Mori’ – speak of the processes which

Courting Death

encircle death – dying, burying and remembering – and not of death itself. We are all Moses at the very end of his life, as he looked out from the slopes of Mount Nebo: death itself is the horizon or promised land that may be approached but never entered. This concept of a horizon to be imagined but never reached, anticipated but never realised, forms the basis of the first chapter by Peter Fitzpatrick, and is a theme which recurs throughout.Courting Deathattempts to explore a negative space through an inventory of borders. It is a book ofecho soundingsfrom the deep. From Hammurabi to Napoleon, law, for its part, has always been a matter of codes. A code is an order, but it is a secret order. A code of dress, a code of conduct, aCode Civil.These are opaque practices which likewise resist uncovering. Law is encrypted – it is not to be read but deciphered; it is a mystery into which one is not so much educated as initiated. Hardly surprising then that H.L.A. Hart, that most familiar of jurisprudes, should have worked as a code-breaker for Military Intel-ligence during the Second World War. Law is Enigma. It is a system of signs hidden behind a system of signs. Sometimes, like a secret handshake, a password, or a trapdoor, codes conceal the very fact that they conceal. Laws provide us with smooth surfaces that appear to be about what they appear to be about. Encryption, which entombs meaning in the dark and the deep, always presents a series of signs on the surface which mislead us as to the signs beneath. Therefore, what is encoded cannot be read directly. Insight must be disinterred, and that is the true study of legal discourse. The purpose of this book is to exhume these secreted meanings. Above all, law and lawyers proclaim their omnicompetence. The law has a spatial jurisdiction but absolute authority within it. It is, apparently, a system of sovereign command. Thou shalt, says the law; thou shalt not. But this is just what has been called (in another context) ‘mineralisation’, ‘a hiding place (like the kind insects make 8 of their own body when they feign death’. This image of exo-skeletal protection, a self-made crypt, has overtones of Kafka, but metamor-phosis is not death: ‘It is halfway between the two, neither life nor death. The one who has been transformed remains as a memorial example still present within the human community – in the form of 9 a tree, a fountain, a bullock, a flower.’ The skeleton of the law is in fact a memorial to the fleshy matter concealed thereunder. It points, by this bluster and assertion of absolute power, to its own encrypted body. Thesecretof law against which it armours itself, like a cockroach, is its weakness in the face of death: the impossibility of instilling the responsibility law requires, and the control it craves. Through examining the secret of death we hope to unlock the secret weakness and fleshy body of the law. Law’s competence and potential is its surface; its impotence and its impos-