Law as Authoritative Fiction (original) (raw)
Related papers
Law, Literature and Intertextuality
Most of the contemporary scholarships of both literature and law categorize the coincidences and overlaps between an author's literary work and his or her legal career, a given literary period and the same historical era of law and jurisprudence or between innumerable pieces of literature and the texts of the law merely as things of no real interest, curious facts that are not worthy of detailed academic analysis. While a point of view of this kind has its reasons the aim of the following paper is to change this attitude to a certain extent. In my opinion instead of talking about the "death of law and literature" we should consider the possibilites of (re)opening new ways of research for law and literature studies that may provide mutual benefits to both the representatives of legal and literary sciences. Hereinafter I will try to show why and how exploring the intertextual connections between the texts of law and those of literature seems to me the most fruitful endeavour to connect law and literature to each other.
From Jurisdiction to Juriswriting: At the Expressive Limits of the Law
Through the work of Jean-Luc Nancy, and following recent publications that champion the theoretical significance of jurisdiction, this article reads jurisdiction as a technique of legal fiction-making and as capable of exposing an originary ontological category of “being-with.” Rather than thought of purely as an expression of the law’s sovereign authority, it is argued that jurisdiction is a privileged point at which we can see the law’s fragility and thus open to critical intervention and interruption. Following Nancy’s understanding of “writing” and “literature” as that which exposes being-with, I suggest that we might name such strategies of creative intervention “juriswriting.” This account of jurisdiction, developed by thinking with Nancy’s account of ontology, is explored with reference to the common law constructions of jurisdiction in the sixteenth and seventeenth centuries.
2010
It has already been some time now since the theory and method of Law and Literature first developed the narrative model for analyzing legal and literary sources.This model, founded on a view of man as homo narrans, describes a tendency to observe the law as narrative, applying this idea equally to law and to any other product of culture. Thus literary narrations (as well as ones from the nonliterary arts) have been considered not only as a mirror in which law is critically reflected, but as tools useful in bringing to us what may be described as “law’s unheard voices.” It is mainly along this line investigation that the narrative approach has developed in the United States, as a technique by which to construct alternative stories - based on personal experiences, whether real or fictional—to be brought into comparison with law’s “official” narratives. Looking at these “alternative” and “official” texts in comparison has made it possible to show that the law is itself narrative, such that law has no claim to objectivity and cannot invoke a single, universalizing discourse; but even more so, we have learned from this comparative study that the narrative which law consists of has shut out the perspective of minority groups. It is these concerns that form the backdrop against which the storytelling movement has sprung up, and its aim remains that of putting the narratives and claims of the weak on an equal footing with the law’s narrative of the strong, in such a way as to encourage between them a dialogue and an exchange. We have seen in this sense numerous “legal” narratives put together by women and blacks, and generally by those belonging to groups having little protection: these stories draw on the theory of narrative to ground and develop a rights movement proper.Of course, the law which Law as Narrative looks at is the positive law, and the approach is thus concerned with formalized law (the law set down in the law books), or with the law in the process of being formalized through the court’s activity, or with the unformalized law urged by those claiming rights and a corresponding status that they feel they are legitimately entitled to.But Law as Narrative has some further potential still waiting to be developed. I thus propose here to develop the idea of law as narrative working from a conception of law that takes into account not only positivized law but also the law permeating the fabric of social relations. And so we have to do here with law such as it manifests itself in culture understood in an anthropological and sociological sense.The discussion will revolve around rights and rules, and not just law; and it will also take into account such rules as can exist and can be pronounced only as possible, which is what Carbonnier meant by nonlaw: together with law, nonlaw forms part of that broader legal realm inclusive of social life which Carbonnier refers to as juridicite.Culture is understood as a symbolic universe that provides the meanings necessary for mediation, but it is also the space where the function is carried out (among others) of bringing order to social relations, and this function reveals itself in the process whereby we create and affirm (as well as reaffirm and recognize) rules of behaviour that stabilize mutual expectations in such a way as to enable coexistence when the social order weakens. In this broader sense, then, any narration that has a role in helping to establish an order in the realm of the symbolic can be considered a legal narration.I thus propose here to do two things, in short: (1) to work out and defend a theory of legal narration; and (2) to offer a model for analyzing narrations, making it possible to fruitfully understand the modalities and contents of the social function served by such legal narrations as are found not only in the “official” texts of positive law but also in the “texts” produced by the other arts.
"Telling Stories About Law: Concepts, Rules and Rhetoric in [Roman] Legal Discourse"
Dresch, P. and Scheele, J., Legalism. Rules and Categories (Oxford University Press, 2015), 2015
Legalism is at least as much about institutionalized cultures of argument, as it is about ‘rule following’. Developing the idea of 'Legalism after Anthropology' as a framework, the essay first explores the conceptual make-up of legalism itself, through an analysis of the nineteenth-century German legal theorist Rudolph von Jhering’s attack on Begriffsjurisprudenz (the ‘jurisprudence of concepts’) - before turning to the place of legal rules and concepts within (the later) Jhering’s own sociological jurisprudence. The following section, ‘Ethnography and The Concept of Law’, analyses the temporality, particularity, and constructed-ness of how ‘we’ see legal rules and concepts, taking H.L.A Hart’s analytical jurisprudence as our focus. The final two sections: 'Law Comes to Life in Institutions' and 'Legalism and Forensic Rhetoric: Quintilian's Institutio Oratoria' both concentrate on the technicalities of law in a broader sense. How, exactly, do legal rules and concepts ‘come to life' within institutionalized contexts and traditions? Rather than focusing on legal rules, concepts, and categories primarily in relation to doctrinal legal systems, we need to think more about the ethnology of legal rhetoric: about the roles that legal rules concepts, and categories play within different cultures of legal reasoning and argument.
Literary Analysis of Law: Reorienting the Connections Between Law and Literature
Critical Analysis of Law
This special issue on the New Literary Analysis of Law features articles that dispense with the choice between “law in literature” and “law as literature,” to ask how legal and literary forms, methods, concepts, and attitudes can be productively explored in tandem. Conventionally, when scholars ask how legal actors and problems are portrayed in literature, or how hermeneutic theory may shed light on statutory or constitutional interpretation, these questions are meant to help solve a legal problem, at a doctrinal or conceptual level. But once we abandon the requirement that literature serve as an assistant in this fashion, many new possibilities for the literary study of law come into visibility. The essays in this special issue explore some of those directions.
Law as Linguistic Phenomenon: Performative Function of Language
Journal of International Legal Communication
The paper discusses law as a linguistic phenomenon by focusing on the performative function of legal language. In the introduction the notion of language, as well as the variety of its possible functions are explained by referring to the theories of such scholars as Roman Jakobson and John Langshaw Austin. The introduction is concluded with a very brief presentation of legal language characteristics and the way it can be perceived as a performative speech act. Subsequently, materials and methods used in the course of this analysis are listed. The study focuses mainly on real life examples of utterances expressed during chosen adoption hearings in American courts. The specific communicative situations have been chosen due to their complex emotional and legal character as an example to illustrate how certain seemingly identical statements may be of completely different functions. After the examples are compared and discussed, authors’ conclusions are presented and the initially posed ...
Fictionalising Jurisprudence: An Introduction to Strong Legal Fictionalism
Australian Journal of Legal Philosophy, 38, 2013, pp. 52-73. , 2013
The proposed theoretical motivation for legal fictionalism begins by focusing upon the seemingly supernatural powers of creation and control that mere mortals exercise over legal things, as a subclass of socially constructed things. This focus brings to the fore a dilemma of uncharitableness concerning the ontological commitments expressed in the discourse of whole societies about such things. Either, there is widespread equivocation as to the fundamental concept expressed by terms such as ‘existence’ or our claims about legal and other institutional things are never really true. When stated as a dilemma, rather than assuming either horn from the outset, our broader social practice of fiction-telling yields a reason to prefer the fictionalist horn. I differentiate three grades of legal fictionalism and contrast strong legal fictionalism with Horacio Spector’s weak form. Only the stronger form has it that engagement in a fictional discourse of law can provide reasons for legal decision-making independent of moral opinions or policy considerations. This stance relies on the claim that maintaining a fictional discourse with respect for its integrity justifies inferences to conclusions about a fictional domain beyond what is described in existing expressions of the discourse. Focusing on ontology allows an analogy between a fictional discourse of law and literary or popular fiction, in which context such inferences are more obviously persuasive. I argue that this notion of respect for the integrity of such a discourse saves legal formalist jurisprudence from the indeterminacy objections of legal realists.
The Oxford Handbook of Legal History, 2018
This chapter shows what digital resources can reveal about the prehistory of the Miranda warning. The first part of the chapter offers an extensive, database-driven survey that takes novelistic representation as its focus. Conversely, by studying a particular work, and focusing not only on its content but also on how it uses plot and character, we can ask about its animating logic, posing questions about how a text works rather than what it says or shows overtly. The second part takes a more intensive approach, asking how Oscar Wilde’s novel The Picture of Dorian Gray (1890–1891) uses various techniques of representation to explore the logic of obscenity law—a logic that also applies to the legal regulation of language in other contexts, such as libel and sedition.
Law and Literature: A Review of Interdisciplinary Literary Texts
2019
This paper explores and recognizes common points of intersection of law and literature. Different literary texts have legal language, court scenes, cross examinations, lawyers, witnesses, judge, and audience. The main focus of this paper is to identify such events from literary texts and also to present instances that people take into the courts from literary texts. Law and literature originate and develop, after all, from the same culture and society. Humanities and social sciences are common grounds of origin and development of law and literature. They are related with each other. They do have correlation on the basis of culture, social norms and values, and humanities. In this paper, they discussed on the grounds of cognitive and behaviouristic aspects of human life.