Chaïm Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman's argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled "Perelman's Theory of Argumentation as a Rejection of Natural Law."However, my thesis (...) is precisely that Perelman's theory of argumentation connects to the natural law tradition in interesting and productive ways. Perelman referred to natural law in. (shrink)

While there is a considerable body of research on law student identity construction based on interviews and transcripts of classroom talk, there is very little work based on student written texts. In this article two letters of advice written by beginning law students are analysed, using Ivanic and Camps’s framework, as an example of identity formation. Legal identity is argued to be formed by students’ attempts to accommodate a dynamic, partial, practitioner role of provider of advice to the traditional analytic (...) focus of the law student. The process of accommodation is evident in the language of the letters, which show disfluencies resulting from attempts to combine different roles into a coherent legal identity. Comparison with a professionally written letter suggests that, rather than seeking to shape a coherent position, lawyers are able simultaneously to hold incompatible perspectives, concealing the tensions by foregrounding some perspectives and backgrounding others. (shrink)

This article demonstrates that our more sophisticated theories of law lead us to a point where we are no longer able to distinguish law from culture, or society, or the market, or politics or anything of the sort. Not only are the various terms inextricably intertwined (something that other thinkers have observed) but we are no longer in a position to articulate any relations between these various terms at all. It is with this latter realization that the dedifferentiation problem kicks (...) in. Because the various terms cannot be disentangled, we find ourselves in the odd position where there is nothing of any positive character to be said about their relations. Each is already the other and, thus, they can have no relation. This is rather bad news for the ways in which we have traditionally conceived theories of law—indeed any theory that gets off the ground by distinguishing law from a discrete something else (which, on first glance, would seem to include all legal theory). (shrink)

The Repeal campaign articulated new and transformative relationships between law, reproduction and the political in Ireland. During the campaign, ordinary people took ownership of and participated in mutual teaching and critique of law on a wide scale. Art, along these lines, was often used to document and archive the injustices worked by the 8th Amendment. However, art also became a means of imagining law otherwise. In this piece, I use Jacques Rancière’s work on the relationship between aesthetics and politics to (...) analyse artistic contributions to feminist legal discourses associated with Repeal. (shrink)

In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence (...) is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence. What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze 1995, 176)Sociology takes social creation to be the whole of what is and will be. (Constable 1994a, 589). (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal responsibility and directed more at (...) empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

Understanding the contributions and the implications of law and emotion scholarship requires an acknowledgement of the different approaches within it. A significant part of law and emotion scholarship is focused on arguing for the relevance of emotion and on identifying emotion in legal processes and actors. Other parts of it venture further to ask how law can affect the expression and content of emotions themselves. This scholarship challenges legal positivist foundations (law as rational and objective), as well as some other (...) established divisions in thinking, both in law, and more generally in the history of ideas (reason vs. emotion, the private vs. the public). The other important factor, which this article explores, is the methodology employed by law and emotion scholarship. (shrink)

Often understood as synonymous with “oral history” in Indigenous title and rights cases in Canada, “oral tradition” as theorized by Jan Vansina is complexly imbricated in the European genealogy of “scientific history” and the archival science of Diplomatics with roots in the development of property law and memory from the time of Justinian. Focusing on Tsilhqot’in Nation v. British Columbia, which resulted in the first declaration of Aboriginal title in Canada, this paper will discuss Tsilhqot’in law in the context of (...) the court’s deployment of Vansina’s theory and its genealogy, and conclude that “oral tradition” functions as a legal fiction enabling the court to remain in the familiar archive of its own historiography while claiming to listen to the Elders. (shrink)

Given the original founders, texts, and location of Critical Legal Studies, its association with the 1960s counterculture is uncontroversial. However, this paper interrogates the assumption that CLS is itself a counterculture by proxy. Drawing from seminal work on subcultures, moral panics, and the emerging field of minor jurisprudence, this paper recategorises Critical Legal Studies as a legal subculture. An argument of clarification underpins this recategorisation, addressing the relationship between CLS and the dominant legal framework, its relationship with the counterculture, and (...) why the reactions CLS received from the legal community were to be expected. (shrink)

Beginning by offering an overview on legal aesthetic humanisms as a specific embodiment of critical discourse, and discussing the ways the recreation of juridical experience, rationality, and culture underpinning such a criticism, leaving behind monolithic views on textuality, judgment, and subjectivity, positively contributes to unsettling the main assumptions underlying typical understandings of law’s autonomy—mostly those of formal specification of juridical “sources” and “scientific” isolation of legal thought—, this paper argues that simply reproducing aesthetic heterodoxy as the epitome of a humanist (...) ‘alternative to law’, without first debating the very orthodox-heterodox binomial, ends up overlooking the discursive and methodological specificity of law, as a particular experience of practical and normative validity. In this way, it introduces, from an axiological-normative and juridically oriented standpoint, a different—jusaesthetic—argument for re-examining the relationship between law’s praxis, nomos, and community. (shrink)

Law and literature, an exemplary product of the textual turn in the study of culture, has found itself challenged by the more recent visual turn in critical thought. However, debate hitherto has been largely based on a two-dimensional approach to the visual. By going beyond the metaphor of the ‘legal screen’ in favour of a theory of the ‘statuesque’, this essay adds a new dimension to the way we think about the force of law in culture. Drawing on eighteenth-century and (...) contemporary aesthetic theory, and twentieth- and twenty-first-century public art, the article presents an account of the political aesthetics of law in which a place for the possibility of justice may be made. (shrink)

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the twin (...) evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals. (shrink)