Professional Documents
Culture Documents
6th Issue - Law Policy Brief - June 2018
6th Issue - Law Policy Brief - June 2018
A judgment is rooted in the closure of possibility. Shoshanna Five years after Foucault's lecture on heterotopian spaces, Italo
Feldman tells us that the law is a function of limits; that a trial closes Calvino's Invisible Cities catalogued 55 visions of the city of Venice.
and encloses a case in the past. Decisions may be challenged at Over the course of the book, the explorer Marco Polo gives an
future points of time, the process of appeal might be activated, a account of his travels to the emperor Genghis Khan, describing a
subsequent bench might overturn a decision, and yet the moment of dizzying array of cities ranging from spaces where earth replaces air
decision carries with it a weight of finality, a threat of force, the “field or where a parallel space for the unborn exists alongside the world of
of pain and death” within which legal interpretation takes place. the living. These architectural thought experiments ultimately
emerge as pieces contained within the world of Venice, opening up
The dissenting judgment exists in a somewhat different place,
the possibility of what the space of the city can be, and how we might
however. As Kenji Yoshino notes, dissents are spatially and
inhabit and live within that very space.
temporally distinct from the majority opinion, operating as
rhetorical islands distinguishable from the majority opinion and Through the frame of the dissenting judgment I want to ask a
focusing their attention on the future.1 This rhetorical freedom related series of questions in my essay: What worlds does dissent
exists in part because the dissent at the point of articulation lacks try to imagine? What are the different ways in which we can think
the force of law. In the inverse relationship between force and of the dissenting judgment as a literary document, as constituting
fancy then, the dissent acquires the potential to be fantastical its own distinct genre(s)? And how can we imagine the theatrical
because of its distance from legal force. play as yet another kind of dissenting judgment?
If the judicial dissent is a legal artifact with muffled force, the
dramatic play is a literary artifact with amplified force. Percy Shelley I. Dissent as Hope
calls poets the unacknowledged legislators of the world: the “The dissenter's greatest permission is to imagine a better world,
playwright nudges closer to acknowledgment. Theatrical texts often to be the prophet of eternities.”2
contain a more direct ability to communicate meaning. Hannah
Taking off from Kenji Yoshino's observation above, the first frame to
Arendt tells us that theatrical plays tend to address us as citizens in a
place the dissenting judgment within is that of hope. In striking out
manner distinct from other creative mediums. In particular, I argue
from the majority and choosing to express an opinion that must be
that plays which directly address and critique court decisions or
necessarily overshadowed by the judgment of the court, the
laws occupy a realm similar to that of the legal dissent.
dissenting judge orients themself to a future possibility. As Justice
The legal dissent pivots towards the literary; the theatrical dissent Brennan of the US Supreme Court once noted, the dissent is
pivots towards the legal. Both serve to open up the law, to “those offered as “a corrective - in the hope that the Court will mend the
aspects of the past that legal closure effaces”. error of its ways in a later case.”3
Yoshino finds that the space the judicial and theatrical dissent occupy Hope as a genre comes closest to the idea of the liteary utopia, or
points to a Foucauldian heterotopia, a place which situates a utopia rather the heterotopia that Foucault imagines. The hopeful
within a real site, where the image of the utopia is both represented dissenter constructs an adjacent world that grapples with the
and contested. present while also leaving open a door for future transformation.
O.P. Jindal Global University (JGU) is a non-profit global university established by the Government of Haryana and recognised by the University Grants
Commission (UGC). JGU was established as a philanthropic initiative of its Founding Chancellor, Mr. Naveen Jindal in memory of his father, Mr. O.P. Jindal. JGU
has been awarded the highest grade 'A' by the National Accreditation & Assessment Council (NAAC). JGU is one of the few universities in Asia that maintains
a 1:13 faculty-student ratio and appoints faculty members from India and different parts of the world with outstanding academic qualifications and
experience.
JGU is a research intensive university, which is deeply committed to its core institutional values of interdisciplinarity and innovative pedagogy; pluralism and
rigorous scholarship; and globalism and international engagement. JGU has established eight schools: Jindal Global Law School (JGLS), Jindal Global Business
School (JGBS), Jindal School of International Affairs (JSIA), Jindal School of Government and Public Policy (JSGP), Jindal School of Liberal Arts & Humanities
(JSLH), Jindal School of Journalism & Communication (JSJC), Jindal School of Art & Architecture (JSAA) and Jindal School of Banking & Finance (JSBF).