How Not to Write in Law School

I've often commented that the writing style I used in grad school is somewhat different from what legal writing calls for. I sent an email to two of my friends, Gabriel and Melissa, with examples of the sorts of sentences I used to use, but switched computers since then. So I'm going to go through my Master's Thesis again, and put the list of sentences up here for the amusement of all.

1. [Sexuality] shows us to be those beings for whom being is a question – animals are not erotic, since eroticism is based fundmentally on anxiety. Finally, in designating us as such a limit, sex is tied inexorably to death, the limit of limits. And by invoking death, Foucault means to invoke both our death and the death of God.

2. It is as if, in trying to escape from the circle drawn about us by our finite lives, sexuality merely draws us back into this life more tightly, highlighting the emptiness within it. Sex might be a transcendant experience, but in this way, its transcendence is tied tightly to the immanence of the everyday. It is this emptiness, the vacuity of space, as it were, that gives rise to the “reign of the Limit.” A life in which a transcendence of the limit is meaningless is itself a life dominated by the limit, but in this case, the limit is not something external to it. This life constitutes itself as its own limit.

3. Foucault suggests that we can see in transgression a surpassing of God. If the death of God has made us all gods, transgression is the act that makes us worthy to become so. And this death of God is simultaneous with the death of Man. “The death of God restores us not to a limited and positivistic world but to a world exposed by the experience of its limits, made and unmade by that excess which transgresses it.” So man after the death of God finds that the world by which he was constituted is now empty, and so he himself is an empty construct.
4. This image of sight is simultaneously an image of the moment of sexual climax, and an image of our being, insofar as that being is inevitably hurtling towards death. Thus is sex an image of death, and at the same time one of the most primordial ways in which we seek to cheat death. Sex is not only an experience of death, but also natality.

5. This, then, is the role of transgressive language. It points to something, but the something to which it points is nothing.

6. As [this affirmation] crosses the limit, it constitutes it, and so affirms it, even as at the same time it denies it.

7. This thought is spoken by the subject who is not there; either in a language without an absolute subject, or in a language which breaks down at its center, revealing only a blind idiot god, spinning in the middle of chaos.

8. The philosopher learns, in trying to speak a language stripped of dialectics, that he is not the master of his language, but is shadowed by another, who speaks from the silence within the philosopher’s own works, another who strives to say that which cannot be spoken. From out of the void in the center of philosophy, a legion of voices cry out, the voices of one crying out in the desert, or, rather, the voices of the desert itself.

9. Against the philosopher, Foucault puts the artist, particularly those who transgress the language they speak. You know who they are.

10. Perhaps the best analogy we could envision of transgression would be that of an unsustainable orbit. The transgressor launches himself beyond the limit of society, as a satellite launches itself into orbit. But the position of the transgressor beyond this limit is unsustainable. No one can live in the empty space beyond the limit for long; at some point, the transgressor has to come back and eat a ham and cheese sandwich.

11. There is no point to transgression; or, rather, the point to transgression is that there is no point to transgression. The point of transgression is precisely the nothing to which it points.

12. So if Foucault’s work in his so-called genealogical period is concerned with the creation of man as opposed to the concern with man’s conceptual activity that marks his earlier work, this essay as celebratory of the power of transgressive literature to transcend the modern episteme is repudiated in his later work.

13. Anxiety, even as it is anxiety before the possibilities of being, is also anxiety about death, which is the ultimate possibility precisely insofar as it is the end of all possibilities.

14. As such a profanation against an empty sacredness, it affirms being as limited, and so transcends the emptiness of limited being even as it affirms it. Even as we transgress the limit, we are already falling back into the everyday.

15. Our life is defined by what is within the limit, what we do with the void of our being. We start out with nothing but chaos as our spirit moves across the waters of our being. What defines our being is what possibilities we bring out of this chaos, what sort of world we create for ourselves and in ourselves.

16. To turn to transgression as a means of artistic self-creation is merely to invert the mystical order. Rather than coming empty before the Eternal, in order to be filled, we fill ourselves with transgression in order to be empty.

17. The novella picks up in detail on a sunny spring day, and spring is, of course, the most gruesome time of the year.

18. It says the unsayable within the modern episteme by speaking the truths of a being that lies outside of modernity. But in doing so, this manner of speech is easily appropriated by the bourgeois itself. As the Other to the bourgeois’s quintessential I, it help the bourgeois define itself against the transgressive artist.

Hope you enjoyed!

Witchcraft in the Middle Ages

Recently I read a book detailing the history of the treatment of witchcraft in the Middle Ages, starting with around Roman times and going through the 15th century. It was generally good, though I found the author a bit too credulous regarding some of the accusations made against witches/heretics in the later middle ages. I'm probably going to be doing several posts on this book, but I promise nothing.

One of the things I found most interesting was the shift in the legal treatment of witchcraft. Under Roman law, witchcraft was punishable based on the underlying offense. So, if you used witchcraft to commit arson, you would be punished as if you had committed arson. But, as the secular power of the Church grew, and the identification of witchcraft with Satan grew, the punishments grew more severe. The reasoning was simple -- the government derived its power from God, witches aligned themselves with Satan, therefore witchcraft was treason.

Not really bad reasoning, if you buy the premises (and, for the record, I don't -- I like liberal governments). The problem was in the standard of proof, most especially the admissibility of evidence obtained through torture. I don't like torture, and it should be clear now, and even should have been clear then, that it is not a reliable method for obtaining evidence (moral objections to it aside).

Not Guilty or Innocent?

From The Volokh Conspiracy:

he rap on Roy Cooper (the North Carolina Attorney General) among my friends who know a good bit about him is that he is overcautious — a smart guy who is too often hesitant and a bit of a plodder. People I know who followed the investigation closely were confident that Cooper's investigators had concluded that the charges against the lacrosse players were without merit and that the lacrosse players were in fact innocent, but the betting money seemed to be that Cooper would issue a bland statement saying that there wasn't enough evidence to support a trial and leave it at that. That, after all, is the easy way out — the path of least resistance. He could have said that there was insufficient evidence, and that he would not go beyond that characterization because no further statement about the strength of the evidence was necessary for his decision. And I imagine that his political advisors probably told him that this would be the politically safe route to take (I can see counter-arguments, but my guess is that would have been their advice).

Read the whole post here.

Pearls Before...

I just read a very interesting article in the Washington Post. It's about a world-class violinist who goes and plays anonymously in the D.C. subway for 3/4 of an hour, and describes people's reactions. We truly live in a distracted world... Here's the article.

National Poetry Month

My friend Nicky pointed out that this is National Poetry Month, so I thought I'd post one of my favorite poems. It's a bit long, so this is just the very first bit.

Rainer Maria Rilke

Duino Elegies

The First Elegy

Who, if I cried out, would hear me out of all the orders of angels?

And suppose even that someone would suddenly take my cry to heart:

I would die from his stronger Being. For Beauty is nothing

But the beginning of the horrifying, that we to some degree can bear,

And it amazes us so, since it stoically disdains

To destroy us. Each and every angel is horrifying.

And so I contain myself and suck in the siren call

Of lounging in dark sighs. Oh, who do we have the capacity to need?

Not angels. Not men.

And the resourceful animals already know,

That we are not entirely really at home

In the interpreted world. Perhaps there remains to us

Some tree on a slope, that we saw daily, over and over again;

We still have the street of yesterday

And the contorted loyalty of some custom,

That made us happy once, and so it remains, and does not leave.

O, and the night, the night, when the wind full of outer space

tore at our faces --, for whom does the night not remain,

The longed for, softly disappointing night, which stands with effort before each individual heart

Is it easier on lovers?

Oh, they use fate to hide from each other.

Do you still not know? Throw up the emptiness from your arms

Into the spaces that we breathe; perhaps that way birds

Will feel the expanded air with a more heartfelt flight.

(translated by myself)

Did I miss something?

I was reading an article on salon.com about the Republican Presidential candidates and their position on the executive power to detain people. Good article, if a bit scary. Anyway, the article makes good use of sarcasm to undercut the idea that the existence of power is compatible with the rule of law. I almost choked when I read the following:

And the Court's left-wing terrorist-lover, Antonin Scalia . . .