Law,Culture and the Humanities

The article argues that constitutionalism and populism are fundamentally antithetical, contending that conflict-driven populism offers greater potential for egalitarian politics than consensus-oriented constitutionalism. Through an examination of early English and British radical movements—the Levellers and the Chartists—as well as of the establishment of the notion of public opinion from the eighteenth century onwards, the article demonstrates how reliance on the constitution, as idiom and strategic horizon, constrained political imagination, normalized conflict, and ultimately limited demands for social transformation. Drawing on Tom Nairn’s and other progressive historians’ work, the article suggests that constitutional frameworks suppress class antagonism, whereas progressive populism can revitalize political agency. It concludes that a more openly conflictual, populist orientation may have advanced working-class interests more effectively than entrenched constitutional discourse.

This article examines private autonomy as a foundational value of European civil law, tracing its development from ancient Greek philosophy and Roman law to modern doctrine. It analyses how private autonomy is realized in the Georgian legal tradition, particularly in property, contract, and inheritance institutions. Drawing on medieval Georgian legal monuments and royal codes, the study shows that key elements—protection of property, consensual freedom of contract, and testamentary disposition—were embedded in Georgian law. The article argues that the Georgian legal tradition mirrors the same fundamental concepts underlying European private law, highlighting its historical continuity.

To explore the culture of the rule of law, this essay will first very briefly set out the conventional understanding of the rule of law sans its cultural dimension. It will then turn to the question of what is meant by the distinction between a rule of law culture and a culture of the rule of law. In Section II, the argument turns to the idea that distinct rule of law cultures exist—or, better termed, subcultures. One in particular will be explored: the private side of the rule of law and its related subculture of arbitrariness. This discussion leads to the third section, which suggests that a kulturkampf exists amongst rule of law subcultures in the United States. Sections II and III work with illustrative examples of recent changes to quintessential (once) independent public institutions that serve to support the cultural life of a democratic rule of law in the United States. These institutions can be considered both integrity institutions that are protective of democracy and the rule of law, as well as knowledge institutions that assist in providing the epistemic foundation for a healthy constitutional democracy. Finally, the essay will conclude by contemplating what this might mean for current research in law schools and across social science and humanities disciplines.

Drawing on Zadie Smith’s suggestion in her novel, The Fraud (2023), that we share Victorians’ interest in fraudulent figures, this essay argues that we have much in common with Victorians when it comes to anxieties around personation and fraud. Beginning with a discussion of the Tichborne case, the Cleveland Street Scandal, and W. T. Stead’s “Maiden Tribute,” this essay theorizes the ways that anxieties around personation and new forms of reporting operated in a circuit of sensationalized response. In a post-internet iteration of Victorian experience, such circuits are used by multiple actors not necessarily to reveal personation, fraud, and crime, but to distract from and even create it.

The first surviving references to unwritten law and to autonomy come to us from Sophocles’ Antigone. Legal readings of the tragedy routinely focus on the contest between conflicting norms, like natural law and legal positivism. These readings typically assume the truth of Antigone’s claim that an unwritten Higher Law supersedes Creon’s decree. Yet after she is accused of acting autonomously, she abandons this Higher Law and appeals instead to a law she has made for herself. This article explores the danger that appeals to Higher Law in adjudication may encourage claims based in autonomy, self-determined law, amounting to “Higher Lawlessness.”

The article examines the relationship between law and cultural production through the concept of legal abeyance: a condition in which legal rules persist formally but recede in practice. Focusing on New York City’s fiscal crisis of the late 1970s, it argues that the emergence of the No Wave art scene was enabled not despite legal breakdown, but through it. As property, licensing, and nuisance laws went largely unenforced, artists occupied and repurposed urban space, generating new forms of cultural expression. Comparative examples from graffiti, Detroit techno, and post-wall Berlin suggest that such conditions recur across contexts. The article situates abeyance as a fourth mode of law’s relationship to art, alongside protection, restriction, and subsidy.

This article explores how ‘life’ – the fetus, the person and our relations to one another – is ‘conceived’ in reproductive law and politics through the use of socio-legal fictions. Rather than operating as neutral, technical devices, I argue that legal fictions are socio-legal instruments invoked in moments of reproductive moral controversy and uncertainty that actively produce legal persons and serve to contain and domesticate law’s excesses. Drawing on Fitzpatrick and Esposito, I argue that where socio-legal fictions are used to resolve uncertainty and contradiction in the law, they can only do so by taming relational and excessive forms of life into governable legal categories, leaving rights-based claims precarious and vulnerable to persistent challenge and undermining. I conclude by arguing for a more relational, affirmative approach to reproductive law.

Over the past several decades, immigration authorities in Germany have framed ‘unclarified identity’ as a problem, calling for increasingly complicated methodologies to make migrant bodies legible to state deportation efforts. These efforts include technical devices and information infrastructures, such as fingerprint scanners or databases, but also specific administrative logics, such as the in-between status of the Duldung Light ‘for persons without a clarified identity’, a suspended deportation status that pressures individuals to attend embassy hearings or reveal their identity documents by imposing sanctions such as a ban from employment and a severe reduction of social benefits. This article traces the emergence of the Duldung Light and explores the political function of connected forms of state sanctioning, some aimed at controlling larger movements by discouraging migration, others aimed at pressuring individuals to perform nationality. The findings additionally point to at times contradictory logics within state efforts to produce and manage deportability.

This text examines the pervasive yet ambiguous concept of solidarity, arguing that its contemporary usage is marked by semantic blurring and ideological appropriation. Tracing its origins from a precise Roman legal term (in solidum) to a French revolutionary ideal and a sociological fact, the analysis reveals solidarity as an “essentially contested concept.” Its meaning oscillates between describing interdependence and prescribing moral obligation. To rescue it from becoming an empty platitude, the article proposes a multidisciplinary methodological approach, combining intellectual, conceptual, and contextual history to unravel its complex genealogy and restore its substantive power for addressing modern social challenges.

This article examines the institution of criminal attempt in Old Georgian criminal law through the analysis of the legal monument known as the Law of Bagrat Kouropalates. Given the ongoing scholarly debate concerning the dating of this legal text, the article briefly addresses the issue of its chronological attribution. Particular attention is paid to the existence of the principle of subjective imputation in Old Georgian criminal law, within which the concept of criminal attempt is examined. The main objective of the article is to demonstrate the progressive nature of Old Georgian criminal law, especially in its reliance on subjective imputation as a basis for determining criminal liability. Although the study focuses on the legal history of Georgia, it contributes to broader discussions in European legal history by offering insight into the development of criminal liability and culpability during the ninth and tenth centuries. The article may therefore be of interest to scholars concerned with the historical foundations of criminal law. The findings contribute to European legal historiography by demonstrating that sophisticated concepts of criminal culpability were already present in ninth-century Georgian law. The significance of this inquiry is not limited to doctrinal legal history. The way a legal culture distinguishes between mere intention, preparation, attempt, and completed offense reveals broader assumptions about moral blame, social order, and the relationship between inward culpability and outward harm. In this respect, the law of Bagrat Kouropalates is valuable not only as a Georgian legal monument but also as evidence of the cultural and ethical foundations of medieval criminal liability. Examining criminal attempt through this lens makes it possible to situate Old Georgian law within wider interdisciplinary discussions concerning law, morality, and legal consciousness in premodern societies.

This article examines the community-forming role of constitutions by interpreting them as totems, drawing on the work of James Frazer, Sigmund Freud, and Émile Durkheim. It identifies three dimensions of totemic trust: the constitution as a collective point of reference facilitating integration, as a link of transgenerational continuity, and as protection against existential threat. It then shows how this trust is sustained in a totemic way through the mechanisms of taboo and ritualization. Finally, this totemic framework is used to reconstruct the logic of illiberal constitutionalism as a form of hyper-totemism—a radicalization rather than an abuse of constitutional trust.

Until the early twentieth century, there was recourse by British administrators to martial law. However, such a concept was not considered to be law, at least not by many legal theorists. Martial law only ever existed after an ex post assessment, constructed from the common law of necessity and through the issuance of grants of indemnity. Despite this, within British society, martial law developed a normativity of its own. Employing the imaginary as a mechanism through which to conceive martial law, thereby, offers an important contribution to its current theorisation within the legal (historical) discourse: providing a means to properly interrogate its uneasy place within the historical record. This is important because the twentieth century saw the adoption of statutory provisions that were inspired by this imaginary and the utilisation of the rhetoric that accompanied it. Moreover, it is through conceptualising martial law as a product of the imaginary of law that one is able to reflect more broadly on the construction of the legal order and conceptualisations of normativity.

The growing reliance on exceptional legal measures and the proliferation of emergency modes of governance warrant a deeper theoretical investigation into the significance of the state of emergency. Legal thinking has generally perceived emergencies through a well-established paradigm that emphasizes their temporal and reversible character. The historical record of states of emergency, however, undermines the validity of this paradigm and raises questions about the long-term consequences of emergency regimes for society as a whole and for the individuals who live under them. This paper proposes to introduce the philosophical concept of interpellation as a tool for problematizing the mechanisms of the state of emergency and its effects. The concept of interpellation was developed by Louis Althusser to describe how ideology—including legal ideology—operates in relation to individuals. The aim of the paper is to reconstruct this theoretical framework and bring it to bear specifically on legal theory and on an analysis of the state of emergency. In doing so, it reframes the state of emergency from the perspectives of philosophical anthropology and historical materialism, thereby illuminating the effects of emergency rule not only on the law itself but also on the socio-political reality.

This article primarily focuses on the survival or revival of the French concept of state of siege (état de siege) within the Belgian legal sphere. According to the reasoning of the drafters of the Belgian Constitution, this legal entity should have been abolished at the founding of the Belgian State. In practice, however, this proved not to be the case. Both jurisprudence and practical application show that the state of siege, with the army acting as enforcer of public order, remained a customary response to social unrest. Based on this observation, the article seeks to examine how the state of siege survived. The central argument is that the state of siege was never formally repealed and survived as a pragmatic and ad hoc instrument, repeatedly invoked in times of crisis. Its continued use can be explained by three interconnected factors: (1) the fragmented nature of Belgian (military) legislation, (2) a culture of pragmatic (legal) continuity, and (3) a perception of social unrest as an existential threat to the political and social order. To support this argument, several case studies were analyzed in which the state of siege was used to manage social unrest, covering the period from 1831 to 1886. The research draws on a broad range of primary sources: case-law, military doctrine, and archival materials, alongside extensive literature on military intervention in public order during the nineteenth century.

The phenomenon of “evidence fetishism” in forensic science is defined as treating physical traces as having inherent meaning, separate from necessary interpretation. Drawing on Marxist, semiotic, Freudian, and Ginzburgian theories, the analysis explains how forensic traces gain authority in science and law. The discussion illustrates how evidence becomes its own testimony in court, arguing that this is a structural issue within forensic institutions, not individual error. This “forensic fetish” removes uncertainty by making the trace seem to “speak.” The analysis calls for a focus on interpretation in forensic science to achieve more epistemically responsible approaches that acknowledge uncertainty while maintaining rigor.

This article investigates the influence of judicial subjectivity on legal decisions, establishing an interdisciplinary dialogue between legal theory and cognitive psychology. While legal positivism, particularly Hans Kelsen’s “Pure Theory of Law,” identifies the norm as a “frame” that offers multiple possibilities for application, it fails to detail the internal mechanisms that lead a judge to select one option over others. Utilizing the Empirical Zetetic Methodology, the study deconstructs the dogma of “prudent discretion” by demonstrating that judicial acts of will are not random but conditioned by predictable cognitive processes, such as heuristics and biases. Through an analysis of case law from the São Paulo Court of Justice (TJSP) regarding non-pecuniary damages (moral damages), the research reveals significant disparities in compensation for identical facts. These variations suggest that open-ended concepts like “reasonableness” and “proportionality” are often permeated by cognitive filters—such as anchoring, availability, and representativeness—that shape the magistrate’s understanding of fair compensation. The article concludes that improving the justice system requires moving beyond the reform of norms toward a multidisciplinary training approach that fosters self-critical awareness in judges regarding their own thought processes.