Pub Date : 2020-01-02DOI: 10.1080/17521483.2020.1752429
Gary Watt
ABSTRACT This essay proceeds in three parts. The first part introduces a Māori waiata (a ceremonial song, with movements) that occurred in the debating chamber of the New Zealand parliament in 2017 on the Third Reading of Te Awa Tupua (Whanganui River Claims Settlement) Bill. The resulting statute confers legal personality on the Whanganui River. The second part advances a way of approaching musical appreciation as a mental activity which, by joining sound to musical meaning not only makes musical sense of sound, but can also, in so doing, be said to participate in the process of making music. Crucial to the move from making sense of music to making music, is the notion that music is inherently a metaphorical way of thinking about sound; one in which the music metaphor operates by making sound humanly meaningful. The third part – proceeding from the idea that music operates as metaphor and, like all metaphor, produces meaning by translating abstractions into concrete conceptions – posits music as a bridge (a joint or articulation) between eras, cultures and social strata that might otherwise struggle to find meaningful points of connection and communication. The hope is that we might come to understand law making music in the sense both of ‘law making’ music and law ‘making music’.
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Pub Date : 2020-01-02DOI: 10.1080/17521483.2020.1747147
D. Worrall
ABSTRACT This essay examines the litigation of the Irish actor, Charles Macklin (1699?–1797), born in Culdaff. co. Donegal, setting his career as an actor and playwright within the context of legislation affecting his profession with particular reference to the period up to May 1775 and his successful prosecution, under Lord Mansfield’s ruling, against a riotous Covent Garden audience faction in 1773 who had conspired to discharge him from his contract. The essay also examines Macklin’s professional association with the Irish playwright and lawyer, Arthur Murphy (1727–1805). This connection has not been noticed before yet Macklin’s unusually wide experience of the English legal system, and his use of Murphy’s counsel, strongly suggests the existence of a specific diaspora, however, limited in scale, comprised of Irish migrants situated at the top of London’s theatrical and legal professions.
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Pub Date : 2020-01-02DOI: 10.1080/17521483.2020.1724407
Renske Vos, S. Stolk
ABSTRACT One of the most iconic and concrete encounters one can have with international law is to visit its institutional buildings. This article aims to shed light on the ambivalent aspirations reflected by the architectural design of the International Criminal Court in The Hague and the European Union buildings in Brussels. It provides a sightseeing tour through the architectural landscape of these two ‘legal capitals’ and explores the architectural embodiment of international law’s imaginaries through discussing three main issues: (1) the representation of values and needs; (2) embeddedness within the city; (3) audience expectations. It argues that the physical sites of institutional buildings and the public events that take place at these sites are not trivial to the practice of international law. These sites and the activities and interactions on their grounds (re)produce stories that affect our understanding of what international institutions are and what they mean to us. In particular in the international setting, where institutional legitimacy is not a given, the building’s architecture is an important means of communication. This article explores how the architectural design invites or discourages engagement and how it facilitates an encounter between the institutions and their multiple audiences.
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Pub Date : 2020-01-02DOI: 10.1080/17521483.2020.1752437
Gal Hertz
ABSTRACT Robert Cover’s essay ‘Nomos and Narrative’ (1983) outlines a programme for an ambitious yet incomplete theory of law. While many interpreters focus on how it readdresses nomos, less attention is given to Cover’s notion of narrative. For Cover, narrative is not simply a complement to law that serves to pluralize it, but a key for a different conception of what law is, how it is constituted, and how it relates to sovereignty, morality and social commitment. In the context of the debates during the 1980s between legal positivists and naturalists, particularly around the question of hard cases, Cover’s contribution is that, instead of arguing about the different legal means required to fill what is perceived as a normative void, the narratival approach realizes that law is always socially and semantically contextualized. Hard cases, like crises of tradition or political breaking-points, are cases that uncover the working of narrative within law as a dynamic normative system. This paper argues that Cover’s work goes beyond the positivism-naturalism dilemma, as well as beyond the liberal framework of legal thinking and more broadly, towards a paradigm-shift in legal philosophy that I suggest calling poetical phronesis.
摘要Robert Cover的文章《Nomos and Narrative》（1983）概述了一个雄心勃勃但不完整的法律理论计划。虽然许多口译员关注它如何解读诺模斯，但很少关注Cover的叙事概念。对Cover来说，叙事不仅仅是对法律的补充，有助于使其多元化，而是对法律是什么、法律是如何构成以及法律如何与主权、道德和社会承诺相关的不同概念的关键。在20世纪80年代法律实证主义者和自然主义者之间的辩论中，特别是围绕棘手案件的问题，Cover的贡献是，叙事方法意识到法律总是社会化和语义化的，而不是争论填补被视为规范空白所需的不同法律手段。棘手的案件，如传统危机或政治转折点，是揭示叙事作为一个动态规范体系在法律中发挥作用的案件。本文认为，Cover的作品超越了实证主义自然主义的困境，也超越了自由主义的法律思维框架，更广泛地说，走向了法律哲学的范式转变，我建议称之为诗意的虚伪。
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Pub Date : 2020-01-02DOI: 10.1080/17521483.2020.1729945
Giacomo Calorio, G. Colombo
ABSTRACT This paper provides both lawyers and cinema experts with some insights about the depiction of law and criminal justice in films in Japan. In recent years, there has been an increasing interest of the Japanese movie industry towards ‘courtrooms drama’, i.e., films set in tribunals and having lawyers, judges, and prosecutors as main characters: a small ‘Golden Age’ of law as depicted in Japanese cinema. This paper (co-written by a comparative lawyer and a film studies specialist) will address this phenomenon from two perspectives: one from a legal studies and popular culture framework, analyzing how such movies reflect – and at the same time shape – the ‘legal imagination’ in Japan. The other, from film studies, focuses on technical, directorial aspects, to emphasize how authors intend to depict the law and its actors.
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Pub Date : 2020-01-02DOI: 10.1080/17521483.2020.1752430
Gary Watt, D. Gurnham
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Pub Date : 2019-07-03DOI: 10.1080/17521483.2019.1670898
Lukas van den Berge
ABSTRACT Both Carl Schmitt and Giorgio Agamben draw on the ancient Greek concept of nomos as an important element underpinning their legal theories. Aiming to restore that concept to its pre-sophistic meaning, they grant central weight to a piece of poetry in which Pindar famously proclaims that ‘law (nomos) is king of all’, guiding both mortals and immortals while ‘justifying the utmost violence with a powerful hand’. For Schmitt as for Agamben, this means that the Pindaric fragment exposes the violent origins of law that normativist jurisprudence typically shields from view. For one thing, I will explain in this article why Schmitt’s and Agamben’s use of the fragment is at odds with any acceptable interpretation of it in its wider literary and historical context. More importantly, perhaps, my aim is ultimately to reconstruct a Pindaric jurisprudence as it should actually be preferred to that of both Schmitt and Agamben.
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Pub Date : 2019-07-03DOI: 10.1080/17521483.2019.1676528
S. Justman
ABSTRACT Each in its own manner, Hannah Arendt’s Eichmann in Jerusalem (1963) and Truman Capote’s In Cold Blood (1965) – both first published in The New Yorker, both a cause célèbre, both retaining much of their original power a half century later – document crimes that appear to the author to strain the very concept of a motive. As if something as traditional as a motive might have impeded his work as the coordinator of the Final Solution, Eichmann is portrayed by Arendt as essentially motive-free. Where others saw a fanatic, she saw a non-entity dedicated only to bureaucratic routine. Capote depicts the ruthless massacre of a family in rural Kansas as a bizarre, under-motivated act that only psychoanalytic theorizing can make sense of. I contend that the authors should not have been so quick to dismiss conventional motives or to heap scorn on the courts in which a traditional concept of motivation still prevailed.
摘要汉娜·阿伦特（Hannah Arendt）的《耶路撒冷的艾希曼》（Eichmann in Jerusalem）（1963年）和杜鲁门·卡波特（Truman Capote。就好像动机这样传统的东西可能阻碍了他作为最终解决方案协调人的工作一样，阿伦特将艾希曼描绘成基本上没有动机的人。其他人看到的是狂热分子，而她看到的是一个只致力于官僚程序的非实体。卡波特将堪萨斯州农村一个家庭的残酷屠杀描述为一种奇怪的、动机不足的行为，只有精神分析理论才能理解。我认为，作者不应该如此迅速地否定传统动机，也不应该对传统动机概念仍然盛行的法院嗤之以鼻。
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Pub Date : 2019-07-03DOI: 10.1080/17521483.2019.1676530
Stephen M. Young
ABSTRACT David Foster Wallace died before the publication of his novel The Pale King, which complicates and is, indeed, important to this novel. This article argues that law – as a broadly construed concept – is a character and subject of The Pale King. Many of the characters enact a form of legal subjection, by becoming agents of U.S. tax law, which construes them as agents of the law while providing them with their sense of self. Major themes of the novel revolve around tax law, which constitutes individualized legal subjects and political bodies. However, the legal performative interpretation provided here is not a simple or straightforward analysis. Because Wallace died before the novel was published, but then appears within the text as the author who is subject to the law, The Pale King plays with and reflects on the multiple conditions of legal subjection, that which constructs and deconstructs the conditions that allow one to be both subject and free, false and real, fiction and nonfiction. Because we cannot know if Wallace is actually the author of the text, The Pale King reveals processes of legal subjection by providing readers with the opportunity to performatively subject oneself to that text, which they exhibit by attributing authority to Wallace.
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Pub Date : 2019-07-03DOI: 10.1080/17521483.2019.1670900
D. Gurnham
ABSTRACT Struggles for justice are commonly articulated in literature and drama through metaphors of physical encumbrance (of being cramped, constrained, entangled and mired) and escape (to open landscapes and a view of the horizon and sky). What is less well known or observed is that this metaphorical opposition of encumbrance/escape plays an important role in legal language too. This article traces the appearance of this metaphor across some key moments in English criminal law in which injustice is conceptualized metaphorically in terms of being held up, kept down or back, etc. and that achieving a just outcome necessitates shaking off the encumbrance and getting free. Through a close reading of some important legal judgments, it shows how establishing this intersection between law and literature helps to advance our understanding of the plausibility and persuasiveness of legal language. The article applies this insight to producing a new reading of the Supreme Court’s recent reworking of dishonesty in Ivey v Genting Casinos [2017] SC 67, as well as a novel re-examination of established and apparently familiar authorities on recklessness and excuses to murder.
在文学和戏剧中，为正义而斗争通常是通过隐喻身体上的障碍(被束缚、束缚、纠缠和陷入困境)和逃避(到开阔的风景和地平线和天空的视野)来表达的。不太为人所知或观察到的是，这种累赘/逃避的隐喻对立在法律语言中也起着重要作用。本文追溯了这一隐喻在英国刑法中的一些关键时刻的出现，在这些时刻，不公正被隐喻地概念化为被支撑、压制或退缩等，而要达到公正的结果，就必须摆脱阻碍并获得自由。通过对一些重要的法律判决的仔细阅读，它显示了如何建立法律和文学之间的这种交集有助于我们提高对法律语言的合理性和说服力的理解。本文运用这一见解，对最高法院最近对艾维诉云顶赌场(Ivey v Genting Casinos [2017] SC 67)一案的不诚实行为进行了重新解读，并对已建立的、显然熟悉的关于鲁莽和谋杀借口的权威进行了新颖的重新审视。
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