Law and American Society

Law & American Society

Social Studies 98cl., Spring 2018

 Terry Aladjem (office hours by appointment)

Office: William James Hall 308, 33 KIrkland St. Cammbridge MA 03138 Tel: 495-4823, email: aladjem@fas.harvard.edu

The law is arguably the central organizing principle of American life and has been the battleground for every major transformation in American politics.  For over two centuries the law and the courts have provided the framework in which the issues facing the nation have been aired and our sense of justice defined. It has shaped the political landscape in matters of equity (property, race and gender), and in matters of liberty (rights to due process, freedom of speech). Yet nothing is more hotly contested than the way the law defines what a person is—his or her rights or privacy; his or her sovereignty and accountability—as it adjudicates among, coerces or punishes its citizens. How then does our system of law resolve these matters under the Constitution?  What is the nature of its authority, efficacy and legitimacy in addressing them? Is it based securely in reason, “God given” or “natural rights” as our enlightenment founders supposed, or in the “original intent” of those constitutional framers as the “textualists” or “originalists” of the Roberts Court insist?  Is it a “construct” arising from political contingencies, or a “living constitution,” as the neo-pragmatists and other critics suggest? Is the law a reflection of liberal, capitalist imperatives as it was for Marx, or is it a convenient source of meaning and ‘visible symbol’ of social solidarity as for Durkheim?  Is the law a changing ‘mechanism of normalizing judgment,’ as it was for Foucault?

These theoretical questions may be distilled into four general questions that will guide the tutorial: 1.) How does the law define individual rights and set limits of toleration and freedom for Americans?  2.) How does the law negotiate between competing interests, communities and constituencies?  3.) How has the law established the terms of punishment, coercive power and social control?  4.) How does the law function as ideology, providing a source of meaning and norms of discourse?  Each of these questions will frame a unit of several weeks. Each unit will take up issues at the level of jurisprudence or political theory, and also at the level of the cases and public debates in which those questions arise—cases in which religious or sexual freedom are at stake, cases in which the claims of communities of belief seem irreconcilable, cases in which the nature and extent of punishment have been debated and notorious public trials of terrorists and others in which the national self-understanding has been shaped. Our aim is to bring theory to bear (and down to earth!) in each consideration.

 Note: In the unit on punishment in April, pending final approval from the Superintendent (and after rereading portions of Foucault’s Discipline and Punish and Aladjem’s the Culture of Vengeance), we will make a field trip to Norfolk State Prison.