The Cultural Life of Capital Punishment: Surveying the Benefits of a Cultural Analysis of Law, Reviewing Austin Sarat, 'When the State Kills: Capital Punishment and the American Condition'

Abstract

Austin Sarat's 'When the State Kills' seeks to explore the interrelationship between capital punishment and American culture. Utilizing scholarly approaches drawn from sociology, literary criticism, cultural studies, and political science, Sarat illuminates the ways in which the official legal regime of capital punishment creates, reflects, and reinforces broader cultural attitudes about crime and punishment. Moreover, he argues that the destructive long-term cultural consequences of the death penalty provide a reason for abolition over and above any criminological or doctrinal arguments against the practice. Thus, 'When the State Kills' not only offers a powerful intervention in the ongoing death penalty debate, but also provides an opportunity to consider more generally the benefits of studying law through a cultural lens. This Review Essay suggests that a cultural analysis of law should be treated as far more than simply an add-on to more doctrinally focused legal policy debates. Instead, sociolegal scholarship provides useful insights into just the sort of normative questions that are at the heart of such debates. A cultural approach ensures that we will always attend to the important relationship between law and culture: how legal institutions construct social reality, how 'law talk' gets dispersed throughout the society, how individuals deploy and resist legal norms, and how law symbolically reflects and reinforces deep cultural attitudes, fears, or beliefs. The Essay uses Sarat's book to identify four ways in which this broader view of law can provide a distinctive framework for recontextualizing established legal doctrine or reconceiving intractable policy dilemmas.