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Law is part of the process by which people construct their views of the world. In Material Law, distinguished scholar John Brigham focuses on the places where law and material life intersect, and how law creates and alters our social reality. Brigham looks at an eclectic group of bodies and things—from maps and territories and trends in courthouse architecture to a woman’s womb and a judge’s body—to make connections between the material and the legal. Theoretically sophisticated, and consistently fascinating, Material Law integrates law and society, political science, and popular culture in a truly interdisciplinary fashion. Brigham examines how the meaning of law is influenced by politics, reviewing, for example, whether the authority of global law supersedes that of national law in the context of Anglo-American cultural colonialism. What emerges is a well-reasoned look at how the authority of law constitutes what we see as real in our lives.
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M ATERIAL L AW M ATERIAL L AW A Jurisprudence of What’s Real ? John Brigham T E M PL E U N I V E R S I T Y PR E S S Philadelphia TEMPLE UNIVERSITY PRESS 1601 North Broad Street Philadelphia PA 19122 www.temple.edu/tempress Copyright © 2009 by Temple University All rights reserved Published 2009 Printed in the United States of America The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992 Library of Congress Cataloging-in-Publication Data Brigham, John, 1945– Material law : a jurisprudence of what’s real / John Brigham. p. cm. Includes bibliographical references and index. ISBN 978-1-59213-964-4 (hardcover : alk. paper) 1. Law—United States. 2. Law—Philosophy. I. Title. KF389.B75 2009 349.73—dc22 2008048661 2 4 6 8 9 7 5 3 1 C ONTENTS Preface Acknowledgments vii xvii PART I Theorizing Material Life 1 The Map and the Territory 2 The Public in the Womb 3 Habeas Corpus at the Temple 5 24 48 PART II Constituting Legal Spaces 4 Law’s Neighborhoods 5 De Facto Discrimination and the Double Standard 6 Occupied Territories 77 100 118 PART III Materializing Law 7 Law Buildings 8 Commodity Form as Law 9 Global Legal Constructs 145 168 Index 215 190 P REFACE T raditionally, when law meets politics, we perceive politics as outside and acting upon law. Political interests are directed at governing institutions such as courts or legislatures. For example, pro-life activists want to overturn the Supreme Court decision in Roe v. Wade, and environmentalists work on Congress to pass or preserve legislation such as the Endangered Species Act. To traditional scholars, the relationship is instrumental. They are locked into the fact that politics turns to institutions to get legal outcomes. The tradition also assumes that political and social life can be separated from legal life, that there is law “on the books” that may (or may not) appear “in society.” The separation of political and social life from law is evident in the conjoined realms by which the Law and Society movement identifies itself. My argument in The Constitution of Interests offered an alternative to this traditional picture of law.1 In that book, I sought to heighten perception of law in public life. The book posited a presence for law in the practices of social and political movements. It argued that convention and traditional social research proceeds from the untenable assumption that politics begins outside law. 1. With reference to use of “law” and “the law” in the singular, “Law is not and never has been a unitary phenomenon, even though the assumption that it is, has played a central role in most legal d