Vol. 12 No. 12 (December 2002)


DEATH IS THAT MAN TAKING NAMES: INTERSECTIONS OF AMERICAN MEDICINE, LAW, AND CULTURE, by Robert Burt. Berkeley: University of California Press, 2002.  221 pp. Cloth $29.95. ISBN 0-520-23282-8.

Reviewed by Austin Sarat, Law, Jurisprudence, and Social Thought and Political Science, Amherst College.

"Legal interpretation plays on a field of pain and death." These are the words with which Robert Cover 1986: 1601) began "Violence and the Word." That essay was designed to reorient legal theory, or at least to remind legal scholars eagerly pursuing the interpretive turn or the parallels between law and literature, of the base materiality of the legal enterprise.  As Cover correctly observed, despite their undeniable significance, pain and death have played little role, and occupied little space, in legal theory and jurisprudence. Or when they are present, awareness of the pain or death done, or authorized, by officials are divorced from acts of interpretation, as if the act of speaking or writing the words of law could be separated from the inscription of those words on the bodies of citizens. By failing to confront law's lethal character and the masking of its interpretive violence, legal theory tacitly encourages officials to ignore the bloody consequences of their authoritative acts and the pain those acts produce.  Moreover, by equating the conditions of legal legitimacy with that masking, much of legal theory promotes righteous indifference and allows pain and death to proceed unabated. Law, surrounded by so much pain and death, is nonetheless able to maintain its calm, bureaucratic facade.

Robert Burt's DEATH IS THAT MAN TAKING NAMES: INTERSECTIONS OF AMERICAN MEDICINE, LAW, AND CULTURE is an important and engaging exploration of various ways in which law confronts death—physician assisted suicide, abortion, and capital punishment—and of its efforts in these confrontations to maintain that bureaucratic facade. In this exploration Burt's book is wide-ranging and intellectually ambitious, drawing together as it does jurisprudence, medical ethics, psychoanalysis, and political history. Burt makes a convincing case that death is neither external to law, something with which law may of its own accord engage or avoid, as one might think on reading Cover, nor is it an over-determining presence inside law. Instead, as Peter Fitzpatrick (1999a: 19) points out, there is a homology between law and death. "Death," he says, "accommodates law's intrinsic claim to fix, determine, and hold life, to deny its circumstance and possibility....Law has an affinity with death or some similarity to it." Moreover, law, like death, brings together "certainty and uncertainty, the determinate and what is beyond determination" (Fitzpatrick, 1999b: 119).

Burt's book explores the homology between law and death in the service of a forceful normative argument, an argument on behalf of ambivalence.  Confronting death always is, and should be, an occasion for doubt, uncertainty, conflicted feelings. We want to rationalize death yet we seek to escape it. We want to medicalize death, but are rightly critical of the arrogance associated with its medicalization.

Burt criticizes two positions which, he argues, have, over the last two centuries, structured law's relation to death. First there is the claim of professional autonomy. Doctors, in this view, are experts in the mysteries of death and dying. Law should recognize their expertise by protecting and deferring to it. Reacting against this view and the abuses it allegedly sponsors is the view that individuals should be in control of their own death. Living wills, advance directives, these are the signs of a drive for self-determination in death. Law should protect us from the medical profession. The first view, Burt notes, emerged from America's experience in the Civil War, the second from the Vietnam War. While some will find these historical explanations facile and unconvincing, Burt is adept in using them to frame the two views his book seeks to criticize.

Neither view comes to terms with the profound psychological factors that surround death and dying. Here Burt turns to Freud to explain that death and dying are always tainted with fear and wrongdoing. Thus even when patients are given the "continuous assistance of trained counselors and the provision of extensive information...as the reality of death came closer, choice was an ineffective instrument to protect patients against unnecessary suffering" (p. 109).  Burt's book suggests that if we are adequately to theorize law, we must think about law in relation to death, but we must also understand what death means to humanity. "...[D]eath is the horizon of law in that death is an horizon belonging to law...But the horizon is also a relation between law and death as different and separate" (Fitzpatrick, 1999a: 20).  Death marks the limits of law by denying that law can be more than its present facticity; "[d]eath," Fitzpatrick (1999a: 26) notes, "denies that promise. It effects a closure around the already determined and denies it the ability to be otherwise." What Fitzpatrick calls the horizon of law that must be recognized and respected, Burt names ambivalence.

He valorizes those who have recognized the ambivalence that surrounds death and have tried to structure responses that acknowledge and incorporate this ambivalence. A particular hero of this book is Learned Hand. Burt's praise of Hand comes in a fascinating exploration of a 1947 case involving the citizenship petition of Louis Repouille who claimed that, in spite of the fact that he had performed a mercy killing of his severely disabled thirteen year-old son, he should be adjudged to have satisfied the naturalization statute's requirement of having been "'a person of good moral character.'"  Hand's opinion in that case did what Burt wants lawyers and judges to do whenever they confront death, namely to avoid "the seductions of triumphalist rationality" and give "publicly  acknowledged visibility to ambivalence about the moral status of death" (p. 27).  Thus Hand concluded his opinion by stating that whenever asked to judge the morality of legally administered euthanasia "'the outcome must needs be tentative" (p. 46).

Given his embrace of such tentativeness it will not be surprising that in other areas of law Burt finds few heroes. He is especially critical of Justice Blackmun's decision in ROE v. WADE, but he is similarly critical of the Supreme Court's evolving death penalty jurisprudence. Both, Burt contends, refused to engage with the complex meanings of death and the moral taint always associated with the conscious decision to end life. With additional chapters on death at war and physician assisted suicide, this is one of the most comprehensive and significant books available on law's various engagements with death and dying. Throughout the book, Burt gestures towards the deeper psychological forces that defeat the efforts to rationalize death. He worries that those efforts provide a "mask" for "wrongdoing" (p. 126).

There is a compelling jurisprudential argument in this book, one that points toward the dangers of what Burt calls a "rigid commitment to the 'goodness' of one's motives and the coherence or 'meaningfulness' of one's thinking...." (p. 123).  Only by rejecting these temptations can law, Burt believes, deal honestly with death and avoid becoming a death-doing machine itself. While Burt has his policy preferences in the various domains of law's engagement with death, it is the jurisprudential argument that animates his writing and will, I believe, provoke the strongest reactions from his readers.

Cover, Robert.  1986. "Violence and the Word," 95 YALE LAW JOURNAL, 1601.

Fitzpatrick, Peter. 1999a. "Death as the Horizon of Law," in COURTING DEATH: THE LAW OF MORTALITY, Desmond Manderson (ed.).  London: Pluto Press.

Fitzpatrick, Peter.  1999b. "'Always More to Do': Capital Punishment and the (De)Composition of Law," in THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS, AND CULTURE, Austin Sarat (ed.). New York: Oxford University Press.



ROE v. WADE, 410 US 113 (1973).


Copyright 2002 by the author, Austin Sarat.