Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0010
J. Gaakeer
Chapter 9 continues the search for a humanities-inspired methodology for law. It emphasises the need for conceptual clarity when it comes to incorporating the findings of narratology into law and legal theory, because the term “narrative” is an umbrella concept in literary theory. As a consequence the goals, impact and status of narratology remain undecided and that affects its interdisciplinary uses. On the basis of this book’s concept of narrative intelligence and on the view that the act of judicial emplotment and application requires a new narratology, this chapter re-engages with the topic of mimesis and suggests that the first three topics to be included when considering the development of a legal narratology are probability and fidelity as analysed by Walter Fisher, and plot in the sense given to it by Peter Brooks.
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Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0012
J. Gaakeer
Part III deals with what Cardozo called “the perplexities of judges” that become “the scholar’s opportunity”. Chapter 11 revisits the topic of empathy by distinguishing between forms of empathy and the way in which they are triggered, in works of fiction as much as in our daily lives. It argues that all forms of empathy are connected to emotion(s), first-order emotion such as anger of grief, and second-order emotion as the reaction to another person’s first-order emotion. It then asks what the cognitive turn in narratology means for legal practice, i.e. who is in narrative control of the situation, in court or in other legal surroundings? The judge, the prosecutor or a party? The story of Ian McEwan’s fictional judge Fiona Maye in The Children Act exemplifies the pitfalls of a first-order empathy, triggered as it may be by parties in a case by means of deliberate narratological strategies aimed at influencing the judicial decision.
第三部分讨论了卡多佐所说的“法官的困惑”这成为了“学者的机会”。第11章通过区分小说作品和我们日常生活中的移情形式及其触发方式，重新审视了移情这一主题。它认为，所有形式的同理心都与情绪有关，一阶情绪，如愤怒或悲伤，以及二阶情绪，即对另一个人的一阶情绪的反应。然后，它问叙事学的认知转向对法律实践意味着什么，即谁在法庭或其他法律环境中对情况进行叙事控制?法官，检察官还是当事人?伊恩·麦克尤恩(Ian McEwan)在《儿童法案》(The Children Act)中虚构的法官菲奥娜·梅耶(Fiona Maye)的故事体现了一级移情的陷阱，这种移情可能是由案件中的当事人通过旨在影响司法裁决的刻意叙事策略触发的。
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Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0007
J. Gaakeer
The chapters of Part II of this book turn to continental-European philosophical hermeneutics, especially as developed by Paul Ricoeur, because his work is rich on the topics of narrative and metaphor, as well as the equitable and the just. They do so to show what the humanities can contribute to the realm of praxis by bringing to the fore the resources that can contribute to the judge’s development of her professional quality of phronèsis, i.e. prudence or practical wisdom, with judicial ethos and habitus included. Chapter 6 deals with the interrelation of facts and (legal) norms in the “application” of law in a specific case, and on the bond of theory and practice. The chapter offers an extended analysis of (Aristotelian) phronèsis (practical wisdom) and épistème (theoretical knowledge) in relation to Ricoeur’s proposal for hermeneutics in law. It argues that iuris prudentia always necessarily combines theoretical knowledge with practical activity.
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Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0006
J. Gaakeer
This chapter focuses on the work of the Dutch poet Gerrit Achterberg who was hospitalised in a forensic psychiatric institution on the basis of an entrustment order after he killed his landlady. The diagnosis of the form and degree of Achterberg’s insanity was made on the basis of his poetry that his psychiatrists supposed was indicative of his sexual deviance and criminal state of mind. It is argued that the Achterberg case asks the legal professional to consider, firstly, how the institutional languages of law and forensic psychiatry often impose their conceptual frameworks to such a degree that other languages are excluded, and, secondly, to be aware of the interpretive pitfalls of one’s own linguistic usages because legal interpretation as a claim for meaning is a human activity, i.e. law is not found, it is made.
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Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0002
J. Gaakeer
Chapter 1 offers a metaphorical reading of Gustave Flaubert’s Bouvard and Pécuchet to illustrate how the process of differentiation of knowledge culminated in the positivist thought of the nineteenth century. It suggests that legal practitioners should develop narrative intelligence in order to understand in which ways the law follows out of the narrative of the facts, ex fabula ius oritur, and what it is that they do when in practice they construct legal narratives.The chapter offers a blueprint for the whole book in that it lays bare the very real epistemological questions that contemporary legal theory (doctrinal and interdisciplinary) and legal practice have to confront: the construction of, and/or the contempt for facts, and linguistic perversions of the language of concepts.
{"title":"The Enchantment of Knowledge and its Apotheosis: Gustave Flaubert’s Bouvard and Pécuchet","authors":"J. Gaakeer","doi":"10.3366/edinburgh/9781474442480.003.0002","DOIUrl":"https://doi.org/10.3366/edinburgh/9781474442480.003.0002","url":null,"abstract":"Chapter 1 offers a metaphorical reading of Gustave Flaubert’s Bouvard and Pécuchet to illustrate how the process of differentiation of knowledge culminated in the positivist thought of the nineteenth century. It suggests that legal practitioners should develop narrative intelligence in order to understand in which ways the law follows out of the narrative of the facts, ex fabula ius oritur, and what it is that they do when in practice they construct legal narratives.The chapter offers a blueprint for the whole book in that it lays bare the very real epistemological questions that contemporary legal theory (doctrinal and interdisciplinary) and legal practice have to confront: the construction of, and/or the contempt for facts, and linguistic perversions of the language of concepts.","PeriodicalId":231297,"journal":{"name":"Judging from Experience","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123070622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0009
J. Gaakeer
This chapter discusses what it takes to become a ‘literary jurist’ by returning to the topic of narrative intelligence introduced in Chapter 1. It analyses Ricoeur’s view on mimesis and shows the relevance for legal practice. Mimesis as prefiguration refers to the temporality of the world of human action. In law, the stage of the “brute facts”. Configuration or the world of narrative emplotment of events, this chapter argues, is the translation of the brute facts into the manageable form of legal documents culminating in the trial. Refiguration is the stage when the reader appropriates the text into his or her own world. Success in judicial practice is also closely connected to the ability to empathise and to the equitable in the individual case. The building blocks that this chapter suggests for legal practice at the same time show the importance of the humanities for law.
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Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0008
J. Gaakeer
In chapter 7 the importance of insight into how metaphor works in law (“seeing resemblance” according to Ricoeur) is elaborated upon in relation to the legal professional’s development of practical wisdom. The chapter discusses how metaphoric insight is both cognitive and perceptual. It argues that the professional needs to develop his or her legal imagination to be able to perceive similarity in what is initially thought of as dissimilarity to bridge the gap between the generality of the legal rule and the particularity of the individual situation in the case at hand. The chapter also connects the topic of metaphor to an understanding the psychological phenomenon of cognitive dissonance and its negative side-effects such as the confirmation bias and belief perseverance as the obverse phenomena of what Coleridge called poetic faith, i.e. the ability to comprehend contraries and to deal with uncertainties before jumping to conclusions.
{"title":"Metaphor and (Dis)belief","authors":"J. Gaakeer","doi":"10.3366/edinburgh/9781474442480.003.0008","DOIUrl":"https://doi.org/10.3366/edinburgh/9781474442480.003.0008","url":null,"abstract":"In chapter 7 the importance of insight into how metaphor works in law (“seeing resemblance” according to Ricoeur) is elaborated upon in relation to the legal professional’s development of practical wisdom. The chapter discusses how metaphoric insight is both cognitive and perceptual. It argues that the professional needs to develop his or her legal imagination to be able to perceive similarity in what is initially thought of as dissimilarity to bridge the gap between the generality of the legal rule and the particularity of the individual situation in the case at hand. The chapter also connects the topic of metaphor to an understanding the psychological phenomenon of cognitive dissonance and its negative side-effects such as the confirmation bias and belief perseverance as the obverse phenomena of what Coleridge called poetic faith, i.e. the ability to comprehend contraries and to deal with uncertainties before jumping to conclusions.","PeriodicalId":231297,"journal":{"name":"Judging from Experience","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128224717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0005
J. Gaakeer
This chapter further illuminates the topic of the language of law in its interdisciplinary context. It takes up the Wittgensteinian proposition that the limits of one’s language are the limits of one’s world to show that the wars between law and forensic behavioural sciences on the topic of free will and criminal responsibility are a language problem. With an analysis of the German author Robert Musil’s novel The Man Without Qualities and the criminal case of its fictional murderer Moosbrugger it is argued that the problem of madness and the crisis of modernity is closely connected to a view on the language of law as a representation of states of affairs. The lesson to be drawn from Musil’s novel is that law and literature are value-laden constructs and that this also urges us to carefully consider the methodological and epistemological peculiarities of any discipline.
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Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0015
J. Gaakeer
My argument in this book is that a literary turn of mind together with the building blocks from philosophical hermeneutics help form a solid basis for the development of the essential capability of jurists to truly judge from experience: that is, to learn about the lives and experiences of others, and to act on what one learns, while at the same time to cherish an attitude of self-reflection in order to gain self-knowledge. Whatever the global, political, or technological developments, I am convinced that judging from experience is, and remains, the crucial, professional methodology and ...
{"title":"Coda","authors":"J. Gaakeer","doi":"10.3366/edinburgh/9781474442480.003.0015","DOIUrl":"https://doi.org/10.3366/edinburgh/9781474442480.003.0015","url":null,"abstract":"My argument in this book is that a literary turn of mind together with the building blocks from philosophical hermeneutics help form a solid basis for the development of the essential capability of jurists to truly judge from experience: that is, to learn about the lives and experiences of others, and to act on what one learns, while at the same time to cherish an attitude of self-reflection in order to gain self-knowledge. Whatever the global, political, or technological developments, I am convinced that judging from experience is, and remains, the crucial, professional methodology and ...","PeriodicalId":231297,"journal":{"name":"Judging from Experience","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130146722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-01DOI: 10.3366/edinburgh/9781474442480.003.0011
J. Gaakeer
This chapter builds on the suggestions made for a legal narratology in Chapter 9. It deals with the implications and pathologies of narratological insights for judicial practice in criminal law by drawing attention, firstly, to the false dichotomies of common law versus civil law and of inquisitorial versus accusatorial approaches, and secondly, by asking what it is in narratives (and images) in court surroundings that justifies their credibility. The effect of modern media and visuality on juries and judges, it suggests, is not to be underestimated. Its main argument being that to judge is to choose, this chapter offers suggestions for narratological research to differentiate between the pre-trial and the trial stage and to consider carefully how the defendant’s narrative is written down. The ability to “narrate oneself”, it is argued finally, is a matter of voice and this is illustrated by means of John Coetzee’s Disgrace.
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