Some twenty years ago, the political scientist Karen Orren wrote an essay entitled “Metaphysics and Reality in Late Nineteenth-Century Labor Adjudication” that counterposed the “metaphysics” of the ancient common law of master and servant to the “reality” of the modern workplace over which it supposedly reigned. Orren’s essay celebrated the early twentieth century’s revolt against formalism in which, hand in hand, the labor movement and intellectuals fashioned a transformation of American politics and culture, a victory for latter-day materiality over antimodern metaphysics that would furnish the ideational bedrock for the coming century’s liberal politics and legalism, and for their insistence that all knowledge is historical and social. Twenty years after Orren’s essay and a century after the antimetaphysical revolution, “law as . . .” stands for a moment of reconsideration, a pause to contemplate what the theory and practice of legal history might gain by rejoining metaphysics to materiality. The objective of “law as . . .” is to use the past to confront the present. To do so, “law as . . .” rejects the sequestration of the past and the various histories that result from it. “Law as . . .” dwells instead on the conditions of possibility for a critical knowledge of the here-and-now: the moment, it might be said, when the origins of the present “jut manifestly and fearsomely into existence,” spirit into experience, metaphysics into materiality.
{"title":"'Law as . . .': Theory and Practice in Legal History","authors":"C. Tomlins, J. Comaroff","doi":"10.2139/SSRN.2065584","DOIUrl":"https://doi.org/10.2139/SSRN.2065584","url":null,"abstract":"Some twenty years ago, the political scientist Karen Orren wrote an essay entitled “Metaphysics and Reality in Late Nineteenth-Century Labor Adjudication” that counterposed the “metaphysics” of the ancient common law of master and servant to the “reality” of the modern workplace over which it supposedly reigned. Orren’s essay celebrated the early twentieth century’s revolt against formalism in which, hand in hand, the labor movement and intellectuals fashioned a transformation of American politics and culture, a victory for latter-day materiality over antimodern metaphysics that would furnish the ideational bedrock for the coming century’s liberal politics and legalism, and for their insistence that all knowledge is historical and social. Twenty years after Orren’s essay and a century after the antimetaphysical revolution, “law as . . .” stands for a moment of reconsideration, a pause to contemplate what the theory and practice of legal history might gain by rejoining metaphysics to materiality. The objective of “law as . . .” is to use the past to confront the present. To do so, “law as . . .” rejects the sequestration of the past and the various histories that result from it. “Law as . . .” dwells instead on the conditions of possibility for a critical knowledge of the here-and-now: the moment, it might be said, when the origins of the present “jut manifestly and fearsomely into existence,” spirit into experience, metaphysics into materiality.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127460420","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}
Legal pluralists have long recognized that societies consist of such multiple overlapping normative communities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems. In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities. Traditionally, legal pluralism has been primarily a descriptive enterprise. Anthropologists, historians, and other social scientists have generally seen legal pluralism as simply a reality, neither good nor bad, neither desirable nor undesirable. Instead, they have defined their task principally as an exercise in thick description: cataloging the inevitable hybridity that arises when two legal or quasi-legal systems occupy the same social space, as well as the resulting strategic interactions that occur among those navigating the multiple regimes. This is not to say, of course, that legal pluralism as a scholarly project was (or ever could be) devoid of implicit values and normative biases. Indeed, one might say that two strong normative undercurrents have always animated legal pluralism. First, legal pluralism was an attack on legal centralism, the idea that law was the sole province of the state and its formal institutions. Pluralists sought to undermine the assumption of state power, discovering agency and subversive opportunities among those presumed to be marginalized. As such, legal pluralism was a way of critiquing the power of the state and even at times celebrating resistance to state hegemony. Second, legal pluralism often had an implicit pro-local bias, particularly in its emphasis on forms of resistance to colonial state hegemony. Perhaps echoing cultural anthropology’s more general celebration of the local, legal pluralists tended to make the local, the indigenous, and the anti-colonial the heroes of the narrative. Nevertheless, even if we grant these implicit value preferences, legal pluralists, following most social scientists, generally have eschewed the sorts of strong normative arguments law professors routinely make: because of such-and-such research, we should now change legal or governmental systems in these particular ways. And there are surely virtues in focusing on thick description rather than normative prescription. Among other things, the cons
{"title":"Global Legal Pluralism as a Normative Project","authors":"P. Berman","doi":"10.2139/SSRN.3288690","DOIUrl":"https://doi.org/10.2139/SSRN.3288690","url":null,"abstract":"Legal pluralists have long recognized that societies consist of such multiple overlapping normative communities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems. \u0000 \u0000In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities. \u0000 \u0000Traditionally, legal pluralism has been primarily a descriptive enterprise. Anthropologists, historians, and other social scientists have generally seen legal pluralism as simply a reality, neither good nor bad, neither desirable nor undesirable. Instead, they have defined their task principally as an exercise in thick description: cataloging the inevitable hybridity that arises when two legal or quasi-legal systems occupy the same social space, as well as the resulting strategic interactions that occur among those navigating the multiple regimes. \u0000 \u0000This is not to say, of course, that legal pluralism as a scholarly project was (or ever could be) devoid of implicit values and normative biases. Indeed, one might say that two strong normative undercurrents have always animated legal pluralism. First, legal pluralism was an attack on legal centralism, the idea that law was the sole province of the state and its formal institutions. Pluralists sought to undermine the assumption of state power, discovering agency and subversive opportunities among those presumed to be marginalized. As such, legal pluralism was a way of critiquing the power of the state and even at times celebrating resistance to state hegemony. Second, legal pluralism often had an implicit pro-local bias, particularly in its emphasis on forms of resistance to colonial state hegemony. Perhaps echoing cultural anthropology’s more general celebration of the local, legal pluralists tended to make the local, the indigenous, and the anti-colonial the heroes of the narrative. \u0000 \u0000Nevertheless, even if we grant these implicit value preferences, legal pluralists, following most social scientists, generally have eschewed the sorts of strong normative arguments law professors routinely make: because of such-and-such research, we should now change legal or governmental systems in these particular ways. And there are surely virtues in focusing on thick description rather than normative prescription. Among other things, the cons","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129294661","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}
This paper serves as foreword and introduction to the third collection of essays produced under the auspices of the biennial “Law As …” conference, held at the University of California Irvine School of Law. The third conference took place in March 2014; the essays presented there are be published in a symposium issue of the U.C. Irvine Law Review in 2015. Following on from the first (April 2010) and second (March 2012) conferences, the third further develops the distinctive trajectory of “Law As …” as a mode of legal study situated at the intersection of law, the humanities, and the social sciences. Each of the three conferences, and resulting collections of articles [see 1 U.C. Irvine L. Rev. 519 (2011), and 4 U.C. Irvine L. Rev. 1 (2014), has had its own distinctive character, but on each occasion the intent has been to engage in a double move: to deploy history as an interpretive practice – a theory, a methodology, a philosophy – with which to engage law; and simultaneously to offer history as a substantive arena in which other interpretive practices from across the broad spectrum of the humanities and social sciences can undertake their own engagement with law. The result is a multi-year work in progress that has arced in the direction of locating “Law As …” in the realm of jurisprudence. As this introduction explains, that tendency is rendered explicit in the latest collection, which embraces the distinctive template of "minor jurisprudence."
本文是加州大学欧文分校法学院主办的两年一次的“法律作为……”会议的第三部论文集的前言和引言。第三次会议于2014年3月举行;在那里提交的论文将发表在2015年《加州大学欧文分校法律评论》的研讨会上。继第一届(2010年4月)和第二届(2012年3月)会议之后，第三届会议进一步发展了“法律作为……”的独特轨迹，作为一种位于法学、人文科学和社会科学交叉点的法律研究模式。三次会议中的每一次，以及由此产生的文章集(见1 U.C. Irvine L. Rev. 519(2011)和4 U.C. Irvine L. Rev. 1(2014))，都有自己独特的特点，但每次会议的目的都是进行双重行动:将历史作为一种解释实践——一种理论、一种方法论、一种哲学——来参与法律;同时，将历史作为一个实质性的舞台，在这个舞台上，来自广泛的人文和社会科学领域的其他解释实践可以与法律进行自己的接触。其结果是一项多年来正在进行的工作，其方向是将“法律作为……”定位在法理学领域。正如本引言所解释的那样，这种趋势在最新的合集中得到了明确体现，它包含了独特的“小法学”模板。
{"title":"Foreword: Law as...III - Glossolalia: Toward a Minor (Historical) Jurisprudence","authors":"C. Tomlins","doi":"10.2139/SSRN.2545900","DOIUrl":"https://doi.org/10.2139/SSRN.2545900","url":null,"abstract":"This paper serves as foreword and introduction to the third collection of essays produced under the auspices of the biennial “Law As …” conference, held at the University of California Irvine School of Law. The third conference took place in March 2014; the essays presented there are be published in a symposium issue of the U.C. Irvine Law Review in 2015. Following on from the first (April 2010) and second (March 2012) conferences, the third further develops the distinctive trajectory of “Law As …” as a mode of legal study situated at the intersection of law, the humanities, and the social sciences. Each of the three conferences, and resulting collections of articles [see 1 U.C. Irvine L. Rev. 519 (2011), and 4 U.C. Irvine L. Rev. 1 (2014), has had its own distinctive character, but on each occasion the intent has been to engage in a double move: to deploy history as an interpretive practice – a theory, a methodology, a philosophy – with which to engage law; and simultaneously to offer history as a substantive arena in which other interpretive practices from across the broad spectrum of the humanities and social sciences can undertake their own engagement with law. The result is a multi-year work in progress that has arced in the direction of locating “Law As …” in the realm of jurisprudence. As this introduction explains, that tendency is rendered explicit in the latest collection, which embraces the distinctive template of \"minor jurisprudence.\"","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115252264","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}
I. The Equity Crisis in Food Production and Distribution ...................................... 199 A. What Is Food Security? .............................................................................. 199 B. Will More Food Help? ............................................................................... 204 C. What the Past Teaches Us ......................................................................... 207 D. What Does Climate Change Do to Food Production? ..................... 209 II. Enter Genetically Engineered Crops ...................................................................... 212 A. What Are Genetically Modified Organisms? ........................................ 217 B. Can Genetically Engineered Crops Solve Food Insecurity? ............. 221 1. Do Genetically Engineered Crops Actually Increase Food Production? ........................................................................................ 222 2. Can Genetically Engineered Crops Save Us from Climate Change? ............................................................................................... 225 C. What Are the Equity Ramifications of Genetically Engineered Crops? ......................................................................................................... 228 III. Some Additional Costs of Genetically Engineered Crops ................................ 233 A. Costs Due to Control over Production ................................................. 234 B. Costs Due to Control over Knowledge ................................................. 237 1. Direct Control over Research .......................................................... 238 2. Indirect Control over Research ....................................................... 240 Conclusion ........................................................................................................................ 243
{"title":"Hunger and Equity in an Era of Genetic Engineering","authors":"Rebecca M. Bratspies","doi":"10.2139/ssrn.3088043","DOIUrl":"https://doi.org/10.2139/ssrn.3088043","url":null,"abstract":"I. The Equity Crisis in Food Production and Distribution ...................................... 199 A. What Is Food Security? .............................................................................. 199 B. Will More Food Help? ............................................................................... 204 C. What the Past Teaches Us ......................................................................... 207 D. What Does Climate Change Do to Food Production? ..................... 209 II. Enter Genetically Engineered Crops ...................................................................... 212 A. What Are Genetically Modified Organisms? ........................................ 217 B. Can Genetically Engineered Crops Solve Food Insecurity? ............. 221 1. Do Genetically Engineered Crops Actually Increase Food Production? ........................................................................................ 222 2. Can Genetically Engineered Crops Save Us from Climate Change? ............................................................................................... 225 C. What Are the Equity Ramifications of Genetically Engineered Crops? ......................................................................................................... 228 III. Some Additional Costs of Genetically Engineered Crops ................................ 233 A. Costs Due to Control over Production ................................................. 234 B. Costs Due to Control over Knowledge ................................................. 237 1. Direct Control over Research .......................................................... 238 2. Indirect Control over Research ....................................................... 240 Conclusion ........................................................................................................................ 243","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130131837","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}
In this article, we contrast the roles of intent, function, biology and marriage in establishing legal parenthood, focusing on differences between elite and non-elite reproduction. Central to these differences are the distinctions between intent at the time of conception and birth of a child versus the assumption of parental roles that occurs after birth, and between functional roles that correspond to formal agreements or institutions and those which arise through less formal arrangements. LGBT families have used the concept of intent, as it originated in ART cases, to argue for recognition of families of choice, without either biological ties or the formalities of marriage or adoption. Their success in winning formal legal regulation culminated in the Supreme Court’s embrace of marriage equality in Obergefell v. Hodges, which is likely to increase once again the role of marriage in integrating prebirth intent with legal recognition of parentage for couples in intact unions. At the same time, women have used the creation of families outside of marriage to form alternative families on the basis of a different type of private ordering. Nonelite couples are less likely to reach consistent understandings about their relationships before pregnancy, birth or the assumption of parental roles. Instead, community norms order these understandings. Such norms treat a decision not to marry as part of a system that gives mothers more say vis-a-vis fathers outside of marriage than within it. These relationships are a form of private ordering in that they reflect choices made in accordance with community norms rather than formal institutions or publicly-imposed mandates. These couples, who lack access to the family planning systems and lawyers who help inform elite practices, achieve their greatest autonomy in creating families of choice by staying out of court and often by staying away from each other. The article shows how both of these systems are today under assault: the integration of marriage and elite planning is likely to weaken recognition of families on the basis of intent alone, and reforms are underway to reimpose elite family norms on nonelite parents, undermining their ability to create family terms on their own. This article concludes that the law ought to recognize the variety of arrangements parents adopt rather than apply a single model to all.
在本文中，我们对比了意图、功能、生物学和婚姻在建立合法父母关系中的作用，重点讨论了精英和非精英生殖之间的差异。这些差异的核心是怀孕和孩子出生时的意图与出生后父母角色的假设之间的区别，以及对应于正式协议或制度的功能角色与通过不太正式的安排产生的功能角色之间的区别。同性恋家庭使用意图的概念，因为它起源于ART案例，来主张承认家庭的选择，既没有血缘关系，也没有结婚或收养的手续。在奥贝格费尔诉霍奇斯案(Obergefell v. Hodges)中，最高法院对婚姻平等的支持使他们在赢得正式法律监管方面取得了成功，这可能会再次增强婚姻在将产前意图与法律认可的完整结合的夫妇的亲子关系结合起来方面的作用。与此同时，妇女利用在婚姻之外建立家庭的机会，在另一种私人秩序的基础上形成另一种家庭。非精英夫妇在怀孕、分娩或承担父母角色之前，不太可能对他们的关系达成一致的理解。相反，社区规范规范了这些理解。这种规范将不结婚的决定视为一种制度的一部分，这种制度使母亲在婚姻之外比在婚姻之内对父亲有更多的发言权。这些关系是私人秩序的一种形式，因为它们反映了根据社区规范而不是正式机构或公共强加的命令作出的选择。这些夫妇无法获得计划生育系统的帮助，也无法获得为精英执业提供信息的律师的帮助，他们不上法庭，而且往往彼此远离，从而在创造家庭选择方面获得了最大的自主权。这篇文章展示了这两种制度在今天是如何受到攻击的:婚姻和精英计划的整合可能会削弱人们对家庭的认可，而改革正在进行中，以重新将精英家庭的规范强加给非精英父母，削弱了他们自己创造家庭条件的能力。本文的结论是，法律应该承认父母采取的各种安排，而不是对所有人都适用单一模式。
{"title":"Jane the Virgin and Other Stories of Unintentional Parenthood","authors":"J. Carbone, Naomi R. Cahn","doi":"10.2139/SSRN.2942868","DOIUrl":"https://doi.org/10.2139/SSRN.2942868","url":null,"abstract":"In this article, we contrast the roles of intent, function, biology and marriage in establishing legal parenthood, focusing on differences between elite and non-elite reproduction. Central to these differences are the distinctions between intent at the time of conception and birth of a child versus the assumption of parental roles that occurs after birth, and between functional roles that correspond to formal agreements or institutions and those which arise through less formal arrangements. \u0000LGBT families have used the concept of intent, as it originated in ART cases, to argue for recognition of families of choice, without either biological ties or the formalities of marriage or adoption. Their success in winning formal legal regulation culminated in the Supreme Court’s embrace of marriage equality in Obergefell v. Hodges, which is likely to increase once again the role of marriage in integrating prebirth intent with legal recognition of parentage for couples in intact unions. \u0000At the same time, women have used the creation of families outside of marriage to form alternative families on the basis of a different type of private ordering. Nonelite couples are less likely to reach consistent understandings about their relationships before pregnancy, birth or the assumption of parental roles. Instead, community norms order these understandings. Such norms treat a decision not to marry as part of a system that gives mothers more say vis-a-vis fathers outside of marriage than within it. These relationships are a form of private ordering in that they reflect choices made in accordance with community norms rather than formal institutions or publicly-imposed mandates. These couples, who lack access to the family planning systems and lawyers who help inform elite practices, achieve their greatest autonomy in creating families of choice by staying out of court and often by staying away from each other. \u0000The article shows how both of these systems are today under assault: the integration of marriage and elite planning is likely to weaken recognition of families on the basis of intent alone, and reforms are underway to reimpose elite family norms on nonelite parents, undermining their ability to create family terms on their own. This article concludes that the law ought to recognize the variety of arrangements parents adopt rather than apply a single model to all.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117247194","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}
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