Roger Berkowitz

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In 2004, The New York Times reported that numerous captured Iraqi military officers had been beaten by American interrogators, and that Major General Abed Hamed Mowhoush had been killed by suffocation. The Times has also published the stories of the so-called “ice man” of Abu Ghraib, Manadel al-Jamadi, who was beaten and killed while in U.S. custody, his body wrapped in ice to hide evidence of the beatings; of Walid bin Attash, forced to stand on his one leg (he lost the other fighting in Afghanistan) with his hands shackled above his head for two weeks; and of Gul Rahman, who died of hypothermia after being left naked from the waist down in a cold cell in a secret CIA prison outside Kabul. And the paper has documented the fate of Abu Zubaydah, captured in Pakistan, questioned in black sites and waterboarded at least 83 times, before being brought to Guantanamo, as well as the story of Khalid Shaikh Mohammed, waterboarded 183 times.

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Assassination has always been part of war and in recent years it has played increasingly important roles in United States military policy. The assassination of Osama bin Laden offers itself as an example of an assassination that nevertheless claims to be just. Comparing the bin Laden assassination with the assassination of Simon Petlura by Sholom Schwartzbard in 1927 and the kidnapping and trial of Adolf Eichmann in 1961, this article argues that assassinations, which under certain conditions are justified under international law, can also be just, but only when they are accompanied by the risk of a jury trial.

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Human dignity underlies human rights and is a pillar of liberal politics. Yet what is dignity? And what is the place of dignity in politics? Arthur Koestler’s Darkness at Noon is a searing inquiry into the conflict between dignity and reason as opposing grounds of politics. Koestler shows how a rationalist politics corrodes dignity. In response, he imagines dignity as a countermeasure to reason. Political action, he suggests, must be informed by a non-rational and non-religious appeal to the infinite that is the one guarantee of a human politics. There is no justice, Koestler argues, divorced from infinite justice.

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- Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).

Justice Laurie Ackermann’s decision in Ferreira is a study in tonal dissonance. Ackermann’s 232 paragraph legal opinion begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank Holdings Ltd., a corporation that had gone bankrupt and ceased operations. Mr. Ferreira was summoned to give sworn testimony about the affairs and property of Prima Bank. He declined, asserting a right not to offer self-incriminating testimony. In doing so, Ferreira violated section 417 of the Companies Act that requires such testimony in administrative proceedings and also expressly allows that such testimony ‘may thereafter be used in evidence’ in a criminal proceeding.

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At the end of my first year of graduate school, I was bored.  Faced with the reduction of thinking to politics on the one hand and the perversion of thinking into an indulgent pastime on the other,  I was experiencing firsthand the antiintellectualism that now pervades our elite colleges and universities.  And yet, from out of the swamp that is the American academy, two discoveries gave me hope.  One was the encounter with the thought of Martin Heidegger through my mentor in Berkeley, Philippe Nonet.  The other was the work of Drucilla Cornell.

I had never heard of Cornell when I was assigned The Philosophy of the Limit in a seminar in the Berkeley Rhetoric department in 1992.  What struck me in that book—struck me so hard that I sought out the author and, with her blessing, took a leave of absence from graduate school to journey back across the country to study with her for six months—what struck me was its force of thinking.

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This Article explores the unacknowledged impact of the scientifc provenance of modern law. Justice, I argue, is threatened by social scientifc thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I contest the conventional wisdom that positive law originates not with science but with democracy. In addition, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.

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This essay begins with the observation that the American culture industry is nearly incapable of presenting state prosecutors in a positive light. Through readings of three apparent exceptions to this rule, the essay argues that prosecutors can only be heroically and positively conceived on screen when they abandon their traditional association with law and seek to do justice beyond the laws. To the extent that prosecutors can be seen as a proxy for the image of the ideal of legal justice itself, this essay argues that the imagining of prosecutorial justice in Hollywood shows that law has lost its once-assumed connection with justice.

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On August 10th, 1927, as hundreds of thousands of protesters marched in New York, Paris, Berlin and in cities from South America to the Soviet Union, as workers around the world called general strikes and took to the streets, and as, in the words of one commentator, “the world waited,”1 a team of attorneys representing Nicola Sacco and Bartolomeo Vanzetti sought out United States Supreme Court Justice Oliver Wendell Holmes, Jr. Trailed by journalists to Holmes’ Beverly, Massachusetts summer residence, the attorneys pleaded with the Justice to grant Sacco and Vanzetti a writ of habeas corpus. If Holmes were to grant the writ, the murder verdict against the two Italian-American anarchists would be nullified, and they would be set free pending a new trial. As Sacco and Vanzetti were scheduled to be executed that evening, time was short and tensions were high.

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