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Book Review
| Colin Dayan, The Story of Cruel & Unusual, Cambridge: The MIT Press, 2007. Pp. xx + 100. $14.95 (ISBN 978-0-262-04239-0).
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| Sometimes when I am asked why anyone needs to do legal history, I draw a blank. Other times, I give lamentably sanctimonious lectures on the need for humanistic study of all sorts. And sometimes, I stare at my interrogator and assert that we do legal history in order to understand the doctrine of original sin. |
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That last one always shuts them up. |
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Which is unfortunate, because there really is a serious point beneath my disconcerting reply. We do legal history, in part, to understand human failings, particularly the failings of the present. We study the past, in that sense, because it helps us see our actions from a different perspective. Most obviously, that happens when study of the past helps put our present actions into a larger context. But it also happens when our study of the past demonstrates that there really are unintended consequences, good intentions that really fail, and slippery slopes that people slide down when they wink at bad actions or excuse them as part of the exigency of the moment. And sometimes, of course, our study of the past shows us that the end of the slope is a grassy lawn, the unintended consequence is a positive good, and the failure of a good intention is better than a failure to act would have been. History is an ambiguous thing. |
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Its ambiguity means good history can take several forms. It can be revisionist, offering an alternative perspective on a well-known period. Most academic history falls in this category, which is understandable given professional pressures, the need to prove one can have a conversation with other scholars, to demonstrate archival skills, and tell a story that is familiar enough that referees and reviewers won't be totally confused. But there are other interesting ways to do history. A good history might be exhaustive, tracking down every available detail and setting out a story that is so complex it is almost as impossible for the reader to grasp in its complexity as it was for the participants to do so. I have always liked Anthony Lukas's Big Trouble precisely because it is a sprawling and confusing study of a sprawling and confusing moment. It shifts perspective and shows the messiness of human existence by being messy and breaking through our normal historical boundaries. |
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If Big Trouble was history as Brueghel might have done it, then The Story of Cruel & Unusual is a history by Flickr. It is a collection of snapshots, brief vignettes, and quotes from a variety of sources: a 1844 case about the beating of a slave, a Burger court decision about prison conditions, an Amnesty International report on "supermax" prisons, the McCain Amendment to the Detainnee Treatment Act of 2005, Samuel Johnson's Dictionary of the English Language (which is cited in the Seventh Circuit's decision in Duckworth v. Franzen), and so on. Just as most Flickr sites are organized around some general theme (my birthday, pictures of our trip to Shanghai, sunsets around the world) so too Dayan has an organizing theory. Her argument is that the events at Abu Ghraib, Guantánamo, and Bagram Airbase are best understood if viewed from historical perspective. So she has set those incidents into perspective by pointing out how the courts and thinkers of the United States have historically ducked and weaved and generally evaded the Eighth Amendment's prohibition on cruel and unusual punishment. But while that is the book's point, the book's style is too aphoristic to ever pin it down or support its thesis in convincing fashion. |
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But that does not make it bad history, if the purpose of history is to prompt reflection and further study. Flickr sites can be incoherent and self-indulgent, but they can also inspire a viewer to want something more. Pictures of a place may lead one viewer to want to go there, another to want to read about it, a third to study its architecture. Dayan's book has the same potential. To students of the history of criminal law, race relations, slavery, or the constitution, it may seem to be a simple hodge-podge of references to issues that are well-known. But to those who have not thought much about punishment in the United States, the book offers a prompt to do more: to read the cases that she cites so briefly, to think about the reasons for the results in those cases and in others like them, to consider why the United States punishes and how. I am not as sure as Dayan seems to be that everyone who is prompted to reflect will condemn the results and Eighth Amendment jurisprudence more generally. My experience teaching histories of criminal law and civil liberties in times of war and trouble suggests there is not a lot of consensus about when punishment is cruel or unusual. But that's one of the burdens of history. |
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| Elizabeth Dale
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| University of Florida |
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