Richard K Sherwin

ABOUT THE AUTHOR: Richard K. Sherwin is the Wallace Stevens Professor of Law, Dean for Faculty Scholarship, Director, Visual Persuasion Project, New York Law School. A version of this essay was presented at New York Law School on November 3, 2014, on the occasion of his appointment to the Wallace Stevens Chair. Professor Sherwin adds: I wish to dedicate this essay to the memory and example of two exceptional mentors: the poet and scholar Allen Grossman, and Jerome Bruner, renowned cognitive psychologist, humanist, educator, esteemed colleague, and friend.

Choosing to abandon relative peace and prosperity for brutal war and instability may seem irrational. But young people, born and raised in democratic societies, have increasingly been yielding to the appeal of death-dealing groups like the Islamic State, leaving their homes and families to wage jihad in faraway places. Why has democracy lost the allegiance of these restless spirits, and how can it recapture the hearts and minds of others who would follow suit? What is democracy's best message of hope, and its most credible promise of future flourishing?

We have been told many times since the dawn of the modern era that we are living in a post-metaphysical age. As Gianni Vattimo (2003a) recently put it, we are all on our way to becoming ‘accomplished nihilists.’ When Vattimo uses the word ‘nihilist’, he has in mind Nietzsche’s sense of the term: meaning, roughly, that what we call ‘truth’

The “affective turn” presents a number of important challenges to law and the humanities. One such challenge concerns our ability to resist the temptation to romanticize the inhuman. Theorists from Nietzsche to Massumi have been so taken by the emancipatory promise of affective intensity that they risk relinquishing responsibility for freedom’s necessary social, political, and legal pre-conditions. Our responsibility for narrative construction and narrative choice carries with it an ethical imperative to understand the orchestration of affect. Downplaying the importance of reflective consciousness (including our capacity for prudent judgment) in favor of spontaneous affective events threatens to rob freedom of its meaning and open democratic societies to grave risks.

Law and theater, like law and literature, and indeed like law and the humanities more generally, share a common reliance upon the performance of competing imaginaries. To experiment with different cognitive and affective registers, projecting divergent socio-political and legal realities, is to engage in a pedagogic and ultimately an ethical practice.

In Measure for Measure Shakespeare suggests that whether law’s sovereignty will be violently disruptive in its onset and coercive in its rule, or bound to an ethics of equity in conjunction with the accidents of grace, and the demands of shared moral values, depends on “the properties of government, character, and discourse that unfold.”

Measure for Measure plays out the intertwined complexities of politics and character. By identifying and assaying various characters, the play identifies diverse forms of political and legal knowledge and practice and, by extension, possible sources of self and state sovereignty based on the extra-legal beliefs and values that we hold most sacred. This insight provides a path to meaningful freedom in the development of self and political governance alike. At the same time, however, the dark challenge of humanist freedom remains. In shadows and grace, the entangled vicissitudes of secular power and transcendent meaning recapitulate the paradox of law.

Increasingly egregious attacks on democratic institutions and processes in the United States have a common denominator: bad faith. When those in charge of safeguarding the system turn out to represent the greatest threat to it, sustained protest becomes citizens' last recourse.

According to Vico, it is piety, the way divine providence breaks into fractured time, that teaches the ideal patterns of history. Today, we stand in need of a post-secular, metaphysical framework for this Vichian insight in order to counter the nihilist impulse that has swept through late modernity. Vico had already identified nihilism as the dark secret of Cartesianism. Indeed, it is the historical vicissitudes of that dark secret for which he presciently sought to prepare us. Piety finds its roots in something beyond the subject, beyond the will. It is that disruptive, ineffable force that resists the impulse toward totality (the will to power) in whatever historic form it may take: from the totalizing mechanics of Hobbes’ Leviathan state to the totalizing algorithmic programming that covertly constructs and drives today’s digital social media and the so-called ‘Internet of Experience.’

Law clings to rules to stabilize a preferred normative reality. But rules never suffice. Character is the dark matter of law. Ethos anthropos daimon. “Character is fate.” This paradoxically reversible saying by the ancient Greek philosopher Heraclitus asserts that we are defined by the daimon – the god or messenger angel – with which we identify most. As Plato queried in The Phraedrus: which god do you follow, whose love claims you? In contemporary terms we might say, what character type, what emotional ideal, what deep story do you hold most sacred?

Out of the maelstrom that is the state of exception – choices must be made. What emotional field shall we occupy when we do politics and law? Bound by what sovereign values or ideals, embodied within what sort of character, emplotted in what sort of political or legal narrative? In synergy with culture, character plays out the emotional conflicts and aspirations of the time. Whether we witness this in the mostly silent resistance of unassimilable characters like Barnardine in Shakespeare’s Measure for Measure or in the silent prayer of 19-year-old Emma Gonzalez, in public protest against uncontrolled gun violence in American schools, we are all called upon, as citizens in public life, to occupy an emotional space that attains centrality within deep narratives that vie for political dominance.

Reverse engineering liberal society, we might ask: what emotional and character ideals are optimal in order for a particular kind of political society to arise and be sustained? There is a reciprocal (perhaps paradoxically fungible) relationship between the sovereign authority of law and the character ideals that express a capacity and willingness to accept that authority. What will the configuration be? Addressing this question constitutes the ethical, esthetic, and epistemological calling of our time.

Mythos begets nomos. In myth begins the normative universe in which we live. Law emerges to maintain that universe, and to foreclose others. Law polices the normative reality through the official stories that it tells, for these are the stories whose meanings are backed by the force of the state. But law's stories are often shaped and informed by popular narratives from the culture at large. This shared process of narrative production, adaptation, and critique attests to law's deep entanglement in the meaning-making function of culture.

LAW'S BEATITUDE: A POST-NIETZSCHEAN ACCOUNT OF LEGITIMACY Richard K. Sherwin* My subject is law's legitimacy. ... is a sphere of human agreement that is nonviolent to the extent that it is wholly inaccessible to violence: the proper sphere of 'understanding,' language ...

Thesis (D.S.L.)--Columbia University, 1988. Includes bibliographical references. Consists of articles published in various law journals. Dialects and dominance : a study of rhetorical fields in the law of confessions -- A matter of voice and plot : belief and suspicion in legal storytelling.

This highly interdisciplinary reference work brings together diverse fields including cultural studies, communication theory, rhetoric, law and film studies, legal and social history, visual and legal theory, in order to document the various historical, cultural, representational and theoretical links that bind together law and the visual. This book offers a breath-taking range of resources from both well-established and newer scholars who together cover the field of law’s representation in, interrogation of, and dialogue with forms of visual rhetoric, practice, and discourse. Taken together this scholarship presents state of the art research into an important and developing dimension of contemporary legal and cultural inquiry. Above all, Law Culture and Visual Studies lays the groundwork for rethinking the nature of law in our densely visual culture: How are legal meanings produced, encoded, distributed, and decoded? What critical and hermeneutic skills, new or old, familiar or unf...

The broad dissemination of digital communication technologies is raising disturbing questions about the nature of truth as representation. This epistemological crisis shares an uncanny affinity with the crisis of representation that lay at the heart of the baroque era during the 17th century in Europe. The resolution of that crisis, through the work of Descartes and others, came on the heels of a philosophical shift from the image to the sign. Not incidentally, that move was accompanied by significant political and juridical developments, including: the origin of legal positivism, the rise of conventionalism (or nominalism), the disenchantment of nature and the decline of natural law, and the emergence of the modern nation-state. The semiotic model today, however, is strained to the breaking point. Infinitely mutable digital signs proliferate as copies of copies; signifiers have been shorn of the signified. The ensuing mutation of the Cartesian sign into the digital image has been a...

... In litigation, the legal theory of the case determines the relevance and importance of facts. ... Johnson , Steven 2005 Everything Bad is Good for You: How Today's Pop Culture is Actually ... acuity is also required to appreciate such films as Quentin Tarantino's Pulp Fiction [1994], a ...

The poetic imagination is what brings sustainable worlds of meaning into existence. It is also what maintains or destroys or transforms them.
In more recent times, the impressive clout of scientific rationality and utilitarian calculation have tended to overshadow the role and authority of stories and feelings. This imbalance stands in need of correction.
So if this lecture is a defense of law and the poetic imagination, or of law and the humanities let us say, it is also a quest for recognition. We need to give the humanities their due.
I say this not for the sake of the humanities, beleaguered though they may be, but for law’s sake, for the sake of law’s humanity perhaps.
It is the business of the poetic imagination to crystallize and manage the way our emotions respond to others and the world around us in the process of drawing meaning from experience.

Performance studies emerged as an academic discipline over half a century ago (see Schechner 1966). Three new books, focusing on performance practices across a broad sweep of time and place, identify a new front in the evolution of the field. Call it “performance capital studies”—a novel approach to performance as an exchange of cultural, legal, and identity capital retailing different forms of knowledge and power in the constitution and regulation of governance.