Scholars in “Law and the Humanities” create meaning by examining texts that lie outside the formal confines of the law. They then relate these texts, often through narrative conceptualizations, to the work of the law – be it the focused activity of adjudication or the broader field of legality and its social and cultural manifestations. In this chapter I introduce this body of work, by taking a similar methodological path. I begin by focusing on two nonlegal texts; I then offer a series of narratives that connect these texts, not with the work of the law per se, but with the trajectory of this shifting, flourishing field.

The first text is Herman Melville's novella, Billy Budd, Sailor: An Inside Narrative. This canonical text concerns an act of judgment on the Bellipotent, a nineteenth-century vessel of Her Majesty's Navy. A false accusation of mutiny triggers an act of violence by a handsome and greatly beloved young sailor. The ship's captain must decide whether to impose the law's most stringent command on a man who is depicted as characterologically innocent and perhaps even circumstantially excused. Although its subtle elaboration of character and inconsistencies of narration bring to the tale the illuminations and provocations of literature, the novella unfolds in a vein of sober and painful realism. This realism is, transparently, about the command and the application of the law. Billy Budd traverses act, accusations, arguments to a drumhead court, and the issuance and execution of a sentence.

Introduction

Law, like many other disciplines, has seen a recent rekindling of interest in questions of citizenship. Debates about immigration, about the meaning and obligations of American citizenship post-9/11, and about the domain of citizenship in a world shaped by both ethnic nationalism and the forces of globalization have given this familiar topic new salience. Yet paradoxically, protest – a dimension of citizenship that these debates have inspired – has not been systematically revisited. In this chapter, I consider protest as an activity of citizenship by analyzing its practice in a particular context: the waging of war. I also analyze such protest, as it has been undertaken by women, acting as women. This focus holds intrinsic interest to me, as a feminist scholar. However, focusing on the activity of a specific group of citizens – particularly one that has historically sustained a vexed relationship to citizenship – is consistent with the emerging theoretical framing of citizenship as a status and activity that is both differentiated and differentiating.

I will examine these questions through the lens of three recent antiwar movements led by women: Cindy Sheehan's Camp Casey vigil and related activism, CODEPINK for Peace, and Women in Black. Each of these groups has mobilized aspects of gender that have historically been offered as justifications for resisting war. Yet they have rearticulated these dimensions of gender to respond to a context in which the stakes are simultaneously lower and higher than in previous periods and few women subscribe to simple, unitary conceptions of motherhood or the relationship between women and peace.

The literature on judicial independence has begun to be enriched by what might be described as its complement: a focus on judicial interdependence – that is, judicial connection or affiliation with identifiable groups in the larger population, members of whom will predictably appear before the courts. Judges are, as a normative matter, assumed or exhorted to be independent; yet they may also have, as a descriptive matter, connections to or affinities for different groups within their jurisdictions. Works arguing that these affinities shape the process or outcomes of adjudication date back to the legal realists; and they have recently served to challenge the norm of independence. But these works have tended to elide a set of more difficult questions: How precisely does judicial interdependence affect the operation of the judicial role? Is judicial connection with particular groups simply in tension with impartiality, or might a more interdependent judicial stance be in some ways consistent with impartiality, or help to refine our understanding of what impartiality for situated decisionmakers might mean? In order to confront these questions more directly, I propose to examine judicial interdependence in the context of one kind of affinity: ascriptive group membership, or membership in certain socially-salient groups or categories, which tends to be assigned through a series of complex social processes, on the basis of visible, largely immutable characteristics such as gender or race.

This chapter begins by considering several related literatures that highlight judicial interdependence or connection with particular groups.