Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.41
Ari Z. Bryen
Responsa—answers to discrete legal questions—are one of the oldest juristic technologies. Though an ancient mode of responding to legal uncertainty, responsa were also highly dependent upon the authority of the jurist offering them. This posed a tension between juristic authority and other modes of authority, and between the learned opinion of a trustworthy man and the demands of reason. Although responsa are found in many premodern legal cultures (including Jewish, Muslim, and Hindu traditions), this chapter focuses on the experience of Roman jurists. Starting from the earliest period in which responsa were given by jurists who were also priests, this chapter traces their history through the Roman late Republic and Empire (c. 50 bce–c. 250 ad) as they increasingly became a written genre crafted by jurists whose position was at times tenuous.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.44
R. Spoo
This chapter offers an overview of a genre that has attracted little attention qua genre: the legal paratext. Gérard Genette likened the paratext to a vestibule that operates as a zone of transition and transaction, a liminal space that prepares the reader’s experience of the text. Yet there are other, more cautionary paratexts that crowd, often invisibly, the vestibules of books and other cultural forms. This chapter surveys the transatlantic (American and British) repertoire of legal paratexts appearing in books, including copyright notices, once mandatory in the United States but now permissive there and in many countries; statements of US manufacture, deriving from a period in American publishing when copyright protection turned on strict compliance with the statutory requirement that books be physically manufactured on US soil; “all characters are fictitious” disclaimers, which urge readers to put aside their instinct to sue for libel or for privacy invasion and to engage with the text as a fictive and aesthetic creation; “no-obscenity” statements—a feature of many controversial modernist works—which seek to discourage official attempts at censorship and assure readers that books have been or are likely to be deemed by a court to be safe for consumption. Legal paratexts continue to crowd the vestibules of books, movies, musical recordings, and other works, warning readers, scolding them, and attempting to regulate their behavior in accordance with legal and corporate norms. They are linked to other literary genres, such as parody, satire, the apologia, and the palinode.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.34
Cristina Vatulescu
This chapter approaches police records as a genre that gains from being considered in its relationships with other genres of writing. In particular, we will follow its long-standing relationship to detective fiction, the novel, and biography. Going further, the chapter emphasizes the intermedia character of police records not just in our time but also throughout their existence, indeed from their very origins. This approach opens to a more inclusive media history of police files. We will start with an analysis of the seminal late nineteenth-century French manuals prescribing the writing of a police file, the famous Bertillon-method manuals. We will then track their influence following their adoption nationally and internationally, with particular attention to the politics of their adoption in the colonies. We will also touch briefly on the relationship of early policing to other disciplines, such as anthropology and statistics, before moving to a closer look at its intersections with photography and literature.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.48
John Frow
Legal personhood is distinct from and dependent on ordinary understandings of what it means to be a human person. Yet not every human being is a person (slaves are not, for example), and there are some non-human entities (such as corporations) which are. The legal category of the person is thus at once continuous and discontinuous with that of the natural person, designating a subject of rights and duties along a spectrum from full to very partial personhood. Moreover, the mode of being of natural persons is by no means self-evident, because the status of the “natural” person is itself constituted by a juridical demarcation of the boundaries of embodied human being and by distinct institutional and practical conditions of constitution, and natural persons are not necessarily coextensive with their bodies. While Western models of personhood are based on the coherence and continuity of the self as rational or ethical substance, quite different ways of understanding personhood are found in other cultures, where persons may be taken to be the sum of their social relations or of the exchange of substances between their bodies and the rest of the social and material world. Similarly, in most cultures persons are constituted by their relation to the generations of the dead from whom they inherit, to the gods, and to the unborn descendants to whom property and some of the components of kinship (a name, a status, a genetic inheritance) are to be passed on.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.24
K. Bridges
This chapter examines the dual system of family law in the USA. It observes that the USA has a set of laws that regulates more affluent families and an entirely distinct set of laws that regulates poor families. Moreover, the family law for the poor is uniquely punitive. The chapter offers that the dual system of family law, and the brutal nature of family law for the poor, can be explained in terms of the moral construction of poverty—the idea that poverty is a result of an individual’s shortcomings. The chapter proposes that the moral construction of poverty offers a unique framework through which to view and critique the family law for the poor. It demonstrates the utility of the framework through an analysis of the Court’s 1970 decision in Dandridge v. Williams, upholding the constitutionality of family cap policies that restrict the size of the grants that welfare beneficiaries receive to support their families.
本章探讨了美国家庭法的双重体系。它指出，美国有一套法律对较富裕的家庭进行管理，而有一套完全不同的法律对贫困家庭进行管理。此外，针对穷人的家庭法具有独特的惩罚性。本章提出，家庭法的双重体系，以及针对穷人的家庭法的残酷性质，可以从贫困的道德建构--贫困是个人缺点的结果--的角度来解释。本章提出，贫困的道德建构提供了一个独特的框架，通过这个框架来看待和批评针对穷人的家庭法。本章通过分析法院 1970 年在 Dandridge 诉 Williams 一案中的判决，证明了这一框架的实用性，该判决维持了家庭上限政策的合宪性，该政策限制了福利受益人为养家糊口而领取的补助金的规模。
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.40
D. Davis
This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.25
E. Anker
Debates about human rights in many ways represent one of the original sites of law and the humanities. This chapter canvasses the different ways that humanistically minded thinkers have understood rights, both today and over history. On the one hand, human rights have been the target of sustained critique, as scholars have probed their many errors and limits. But on the other, different humanists have instead affirmed rights, seeing them as enabled by the same openings and indeterminacies that are broadly constitutive of democracy. Attention to the limits of rights has also brokered that embrace. By exploring these competing responses to human rights, this chapter construes those disputes as a referendum on larger ideas about law and legality that inform law and the humanities. Analyzing human rights has therefore often seemed to fulfill an almost autobiographical function for thinkers across a number of humanities disciplines, meaning that the status of human rights can tell us a lot about received accounts of the value of the humanities.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.45
Daniel H. Williams
This chapter explores some legal and literary ramifications of “accident” in British law and society from the late eighteenth through the early twentieth century. This period saw changes in common law and legislation relating to accidents, including the emergence of negligence as a distinct tort and statutory provisions for employer liability and workplace compensation. The chapter turns on the institution of the deodand, a common-law rule that allowed inquest juries to assess liability for accidental deaths caused by non-humans. After such entities began to include industrial machines, the deodand was abolished by Parliament in 1846. Examining legal-historical cases and norms alongside literary-cultural representations, the chapter claims that the deodand’s disappearance, and concurrent transition to fault liability regimes, marked a loss in the understanding of accident. If the nineteenth-century emergence of modern accident law tended to simplify accidents into surrogates for human interaction, the deodand qua institution grasped how reckoning with accidents demands an alertness to human entanglement with non-human causality. Literary representations of vehicular accidents afford a glimpse of what was coming to be lost in this changing legal-cultural dispensation. From Thomas De Quincey to Thomas Hardy to E. M. Forster, the complex non-human, material, and affective dimensions of accident dissipate into the background, where they continue to supply narrative and formal motivation even as they leave human obligations and institutions in the light.
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Pub Date : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.3
Henrike Manuwald
Book history, understood broadly as the analysis of written communication, interacts with legal studies in two main areas: first, legal rules frame the production and dissemination of books or written documents (in many cultures); second, books and written documents can act as meaningful objects within the legal sphere. This chapter focuses on the second area and shows by way of examples how taking the materiality of the book as a starting point can help to uncover cultural structures linked to the law. The chapter demonstrates the potential of this approach by focusing on a period in which books with legal contents radically changed their function: the Middle Ages in Europe, with their shift from writing down customs in the vernacular as a means of preservation to actual law books used as works of reference. As can be shown, the design of legal manuscripts played an important role in this process of codification. But not only law books are elements of the legal sphere: the chapter also outlines the function of books in legal rituals with religious implications as well as the merging of “law” and “literature” in some medieval manuscripts. Finally, the chapter draws attention to the opportunities book history offers for research into intercultural relations and into the change of legal culture in the digital age.
{"title":"Book History","authors":"Henrike Manuwald","doi":"10.1093/oxfordhb/9780190695620.013.3","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190695620.013.3","url":null,"abstract":"Book history, understood broadly as the analysis of written communication, interacts with legal studies in two main areas: first, legal rules frame the production and dissemination of books or written documents (in many cultures); second, books and written documents can act as meaningful objects within the legal sphere. This chapter focuses on the second area and shows by way of examples how taking the materiality of the book as a starting point can help to uncover cultural structures linked to the law. The chapter demonstrates the potential of this approach by focusing on a period in which books with legal contents radically changed their function: the Middle Ages in Europe, with their shift from writing down customs in the vernacular as a means of preservation to actual law books used as works of reference. As can be shown, the design of legal manuscripts played an important role in this process of codification. But not only law books are elements of the legal sphere: the chapter also outlines the function of books in legal rituals with religious implications as well as the merging of “law” and “literature” in some medieval manuscripts. Finally, the chapter draws attention to the opportunities book history offers for research into intercultural relations and into the change of legal culture in the digital age.","PeriodicalId":348365,"journal":{"name":"The Oxford Handbook of Law and Humanities","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128452074","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 : 2019-12-12DOI: 10.1093/oxfordhb/9780190695620.013.38
V. Hayaert
The early modern tradition of the emblem book offers a fertile ground to uncover the renewal of legal ethics during the Renaissance. Andrea Alciato was first and foremost a lawyer, and juridical themes abound in his Emblematum libellus. Later emblematists forged visible figures of norm and law, which stage and enact the rites and harmony of a living legal visual tradition. Inserted into the body of law reference texts or used as ingenious mnemonic devices, emblems played a role in the ars memorativa deployed by legal educators. In the case of Johannes Buno, visual images were designed especially to help fix the order of titles in the Digest and their contents. Emblems and symbolic places would serve as topical frameworks, headings for the reference texts, and notable visual commonplaces to highlight important issues. The emblematic quality of memory images was valuable for the jurist, who could reconstruct an entire legal text, speech, or case. The importance of emblems in transmitting law and the imaginary representation of legality was key to building a professional ethos in the humanist respublica jurisconsultorum. Emblem books provided shared judicial values, norms of conduct, and signs of office. The early history of legal emblems requires being attentive to the profound multivalence of their form and structure: their prolixity of applications and the variegated ways in which images and texts illuminate each other and provide numerous examples of making, seeing, and saying judicial ethics.
{"title":"Emblems","authors":"V. Hayaert","doi":"10.1093/oxfordhb/9780190695620.013.38","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190695620.013.38","url":null,"abstract":"The early modern tradition of the emblem book offers a fertile ground to uncover the renewal of legal ethics during the Renaissance. Andrea Alciato was first and foremost a lawyer, and juridical themes abound in his Emblematum libellus. Later emblematists forged visible figures of norm and law, which stage and enact the rites and harmony of a living legal visual tradition. Inserted into the body of law reference texts or used as ingenious mnemonic devices, emblems played a role in the ars memorativa deployed by legal educators. In the case of Johannes Buno, visual images were designed especially to help fix the order of titles in the Digest and their contents. Emblems and symbolic places would serve as topical frameworks, headings for the reference texts, and notable visual commonplaces to highlight important issues. The emblematic quality of memory images was valuable for the jurist, who could reconstruct an entire legal text, speech, or case. The importance of emblems in transmitting law and the imaginary representation of legality was key to building a professional ethos in the humanist respublica jurisconsultorum. Emblem books provided shared judicial values, norms of conduct, and signs of office. The early history of legal emblems requires being attentive to the profound multivalence of their form and structure: their prolixity of applications and the variegated ways in which images and texts illuminate each other and provide numerous examples of making, seeing, and saying judicial ethics.","PeriodicalId":348365,"journal":{"name":"The Oxford Handbook of Law and Humanities","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121161307","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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