Vol. 12 No. 12 (December 2002)
DEATH IS THAT
MAN TAKING NAMES: INTERSECTIONS OF AMERICAN MEDICINE, LAW, AND CULTURE, by
Robert Burt. Berkeley: University of California Press, 2002. 221 pp. Cloth
$29.95. ISBN 0-520-23282-8.
Reviewed by Austin Sarat, Law, Jurisprudence, and Social Thought and Political
Science, Amherst College.
"Legal interpretation plays on a field of pain and death." These are the words
with which Robert Cover 1986: 1601) began "Violence and the Word." That essay
was designed to reorient legal theory, or at least to remind legal scholars
eagerly pursuing the interpretive turn or the parallels between law and
literature, of the base materiality of the legal enterprise. As Cover correctly
observed, despite their undeniable significance, pain and death have played
little role, and occupied little space, in legal theory and jurisprudence. Or
when they are present, awareness of the pain or death done, or authorized, by
officials are divorced from acts of interpretation, as if the act of speaking or
writing the words of law could be separated from the inscription of those words
on the bodies of citizens. By failing to confront law's lethal character and the
masking of its interpretive violence, legal theory tacitly encourages officials
to ignore the bloody consequences of their authoritative acts and the pain those
acts produce. Moreover, by equating the conditions of legal legitimacy with
that masking, much of legal theory promotes righteous indifference and allows
pain and death to proceed unabated. Law, surrounded by so much pain and death,
is nonetheless able to maintain its calm, bureaucratic facade.
Robert Burt's DEATH IS THAT MAN TAKING NAMES: INTERSECTIONS OF AMERICAN
MEDICINE, LAW, AND CULTURE is an important and engaging exploration of various
ways in which law confronts death—physician assisted suicide, abortion, and
capital punishment—and of its efforts in these confrontations to maintain that
bureaucratic facade. In this exploration Burt's book is wide-ranging and
intellectually ambitious, drawing together as it does jurisprudence, medical
ethics, psychoanalysis, and political history. Burt makes a convincing case that
death is neither external to law, something with which law may of its own accord
engage or avoid, as one might think on reading Cover, nor is it an
over-determining presence inside law. Instead, as Peter Fitzpatrick (1999a: 19)
points out, there is a homology between law and death. "Death," he says,
"accommodates law's intrinsic claim to fix, determine, and hold life, to deny
its circumstance and possibility....Law has an affinity with death or some
similarity to it." Moreover, law, like death, brings together "certainty and
uncertainty, the determinate and what is beyond determination" (Fitzpatrick,
1999b: 119).
Burt's book explores the homology between law and death in the service of a
forceful normative argument, an argument on behalf of ambivalence. Confronting
death always is, and should be, an occasion for doubt, uncertainty, conflicted
feelings. We want to rationalize death yet we seek to escape it. We want to
medicalize death, but are rightly critical of the arrogance associated with its
medicalization.
Burt criticizes two positions which, he argues, have, over the last two
centuries, structured law's relation to death. First there is the claim of
professional autonomy. Doctors, in this view, are experts in the mysteries of
death and dying. Law should recognize their expertise by protecting and
deferring to it. Reacting against this view and the abuses it allegedly sponsors
is the view that individuals should be in control of their own death. Living
wills, advance directives, these are the signs of a drive for self-determination
in death. Law should protect us from the medical profession. The first view,
Burt notes, emerged from America's experience in the Civil War, the second from
the Vietnam War. While some will find these historical explanations facile and
unconvincing, Burt is adept in using them to frame the two views his book seeks
to criticize.
Neither view comes to terms with the profound psychological factors that
surround death and dying. Here Burt turns to Freud to explain that death and
dying are always tainted with fear and wrongdoing. Thus even when patients are
given the "continuous assistance of trained counselors and the provision of
extensive information...as the reality of death came closer, choice was an
ineffective instrument to protect patients against unnecessary suffering" (p.
109). Burt's book suggests that if we are adequately to theorize law, we must
think about law in relation to death, but we must also understand what death
means to humanity. "...[D]eath is the horizon of law in that death is an horizon
belonging to law...But the horizon is also a relation between law and death as
different and separate" (Fitzpatrick, 1999a: 20). Death marks the limits of law
by denying that law can be more than its present facticity; "[d]eath,"
Fitzpatrick (1999a: 26) notes, "denies that promise. It effects a closure around
the already determined and denies it the ability to be otherwise." What
Fitzpatrick calls the horizon of law that must be recognized and respected, Burt
names ambivalence.
He valorizes those who have recognized the ambivalence that surrounds death and
have tried to structure responses that acknowledge and incorporate this
ambivalence. A particular hero of this book is Learned Hand. Burt's praise of
Hand comes in a fascinating exploration of a 1947 case involving the citizenship
petition of Louis Repouille who claimed that, in spite of the fact that he had
performed a mercy killing of his severely disabled thirteen year-old son, he
should be adjudged to have satisfied the naturalization statute's requirement of
having been "'a person of good moral character.'" Hand's opinion in that case
did what Burt wants lawyers and judges to do whenever they confront death,
namely to avoid "the seductions of triumphalist rationality" and give "publicly
acknowledged visibility to ambivalence about the moral status of death" (p.
27). Thus Hand concluded his opinion by stating that whenever asked to judge
the morality of legally administered euthanasia "'the outcome must needs be
tentative" (p. 46).
Given his embrace of such tentativeness it will not be surprising that in other
areas of law Burt finds few heroes. He is especially critical of Justice
Blackmun's decision in ROE v. WADE, but he is similarly critical of the Supreme
Court's evolving death penalty jurisprudence. Both, Burt contends, refused to
engage with the complex meanings of death and the moral taint always associated
with the conscious decision to end life. With additional chapters on death at
war and physician assisted suicide, this is one of the most comprehensive and
significant books available on law's various engagements with death and dying.
Throughout the book, Burt gestures towards the deeper psychological forces that
defeat the efforts to rationalize death. He worries that those efforts provide a
"mask" for "wrongdoing" (p. 126).
There is a compelling jurisprudential argument in this book, one that points
toward the dangers of what Burt calls a "rigid commitment to the 'goodness' of
one's motives and the coherence or 'meaningfulness' of one's thinking...." (p.
123). Only by rejecting these temptations can law, Burt believes, deal honestly
with death and avoid becoming a death-doing machine itself. While Burt has his
policy preferences in the various domains of law's engagement with death, it is
the jurisprudential argument that animates his writing and will, I believe,
provoke the strongest reactions from his readers.
REFERENCES
Cover, Robert. 1986. "Violence and the Word," 95 YALE LAW JOURNAL, 1601.
Fitzpatrick, Peter. 1999a. "Death as the Horizon of Law," in COURTING DEATH: THE
LAW OF MORTALITY, Desmond Manderson (ed.). London: Pluto Press.
Fitzpatrick, Peter. 1999b. "'Always More to Do': Capital Punishment and the (De)Composition
of Law," in
THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS, AND CULTURE, Austin
Sarat (ed.). New York: Oxford University Press.
CASE REFERENCE
ROE v. WADE, 410 US 113 (1973).
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Copyright 2002 by the author, Austin Sarat.