I am glad that I have become aware of your CPP and I would like express my
interest in participating in this conference. Here is my paper (I send the
abstract pasted in this mail, omitting the footnotes):
Peter Garloff: CLS and the Law-and-Literature-Movement
For almost three decades—since the publication of James Boyd White's The
Legal Imagination in 1973—the field of law-and-literature has evolved in
various directions. Essentially, the word “and” delineates two different
approaches, namely the more conventional one of law-in-literature on the
one hand, the theoretically more ambitious approach of law-as-literature
on the other. The latter is the subject of a book recently published by
Guyora Binder and Robert Weisberg . In this book, the authors attempt to
systematize what they call the various Literary Criticisms of Law. In
particular, Binder and Weisberg identify five paradigms of such criticism:
the hermeneutic, the rhetorical, the deconstructive, the narrative, and
the cultural criticism of law. Together with "CLS" these paradigms share a
conception of Anglo-American law as a social and cultural practice, which
is amenable to internal criticism, albeit law's institutio-nally
underpinned validity. The underlying premise of such a critique is that
positive law does not possess the formal rationality and operationally
closed structure it sometimes claims to possess. The title of Bohrer's and
Weisberg's book illustrates this assumption in the form of a metaphor: the
metaphor of the criticisms's literariness.
Legal scholar Richard A. Posner, one of the founders of the
economic analysis of law, is a proponent of a sceptical approach to
law-and-literature. In his book Law and Literature: A Misunderstood
Relation , Posner argues against the various attempts to make literary
theory and literature itself a means for analysis and critique of the law.
His crucial point is that the affinities between both
disciplines—especially on the level of reading and interpretation— are too
weak to allow for fruitful analogization, because the social functions of
reading and interpretation within both disciplines are incommensurable.
Taking issue with this pragmatic objection, Stanley Fish has pointed to
so-called “structural interdependences” between law and literature.
Indeed, Fish acknowledges that the differences between reading and
interpreting in both disciplines result from their obviously different
social functions, the one dealing with facts, the other dealing with
fictions. Nonetheless, for Fish the different pragmatic functions of
reading and interpretation in law and literature reflect a phenomenon
germane to language itself, whether it be literary or legal; namely
Rhetoric. Thus, the study of the “structural interdependences” of law and
literature grounded in Rhetoric, require the analytic tools of literary
theory so as not to consign it to the field of literature.
The point of departure for my paper addresses the question of
whether a transatlantic perspective which emphazises the differences
between the Anglo-American common-law-culture and the Continental
codified-law-tradition can contribute to the debate about
law-as-literature. To what extent can the American debate be enriched by a
perspective focussing on culturally different paradigms of legal reasoning
in the United States and in Germany/continental Europe? Conversely, what
can we learn from the American discussion about the impact of rhetoric and
narrative in case law in order to analyze the role of rhetoric and
narrative within codified law? Do they fulfill comparable functions or
does the deductive-systematic structure of German legal culture, in
contradistinction to Anglo-American case law —with its dominant
“rationality of similarity and difference” —represent a kind of antidote
to rhetoric and narrative, which would likewise imply an antidote to an
internal criticism of legal reasoning and argumentation in codified law?
In Germany, the cultural-study-approach to law is associated with
Gustav Radbruch, legal scholar and Secretary of the State during the
Weimar Republic, who regarded his Rechtsphilosophie as
„kulturwissenschaftlich“. Under the rubric of philosophy of law, namely
the natural law tradition from Plato to Kant, the cultural-study-approach
is characterized by a retreat from normative argumen-tation in favour of
historical reflection. The cultural criticism of the law Kahn has
elaborated, brackets the idea of justice and its relation to positive law
even more emphatically than legal philosophy as conceived by Radbruch.
This becomes evident when Kahn states: „We cannot study law if we are
already committed to law“ . Interestingly, Kahn likewise refers to Michel
Foucault, Ernst Cassirer, and Clifford Geertz. For Kahn, the cultural
criticism of Cassirer's Philosophy of Symbolic Forms figures as the most
important point of reference. For my research purposes Kahn's
understanding and application of Cassirer's theory is of particular
interest. Can law—whether it be Common Law or Gesetzesrecht—be conceived
of as a symbolic form similar to language, religion, or myth?
The second part of my paper concerns the differing status of
rhetoric in the Common Law tradition as opposed to German Gesetzesrecht.
In a series of articles, Jack Balkin of the Yale Law School, has
elegantly demonstrated that the theory of Deconstruction (in Derrida's
version) can be integrated in the methodology of American case law. For
some legal and literary scholars, Balkin's
strategy of formalizing deconstruction to „deconstructive argument“ ,
remains provocative as it attempts to reconcile deconstruction—against its
very intentions —with the rationality of positive law, e. g. American case
law. This reception of literary theory shall serve as a starting point for
my investigation which seeks to analyze the different systematic
interplays of logic, hermeneutics, rhetoric, and narrative both within
case law and codified law. In general, the role of logical
reasoning—argumentation through syllogism—, is more dominant in codified
law. Here, legal decisionmaking entails subsuming facts under legal
norms which are always structured through the logical form of condition
and consequence. Nonetheless, legal decisionmaking in codified law also
operates with distinctions which are often—to use Balkin's term—“nested
oppositions” , that is to say, conceptual oppositions which are
incomplete, interdependant, and which therefore need to be
re-interpreted—in other words: oppositions which can be more or less
easily deconstructed. My thesis is that rhetoric can also—whether in case
law or in codified law—be a means of handling “nested oppositions” in
legal argumentation, with deconstruction providing the terminology for
describing this linguistic phenomenon.
On Thu, 3 Oct 2002, Johann Pillai wrote:
> Call for Papers
> Critical Legal Studies: Ideology and Objectivity in Law
> A Panel Discussion at the Sixth International Literature and Humanities Conference,
> Inscriptions in the Sand: an arts and culture conference and festival
> at Eastern Mediterranean University
> in Famagusta, on the island of Cyprus
> May 30-June 1, 2003
> The Critical Legal Studies (CLS) movement that crystallized in the United States in the late 1970s and 1980s brought together aspects of European social theories (Marx, Weber, Gramsci, the Frankfurt school, etc.), French post-structuralism and literary theory (Foucault, Derrida), and various threads of North American jurisprudenceóin particular the legal realism of the New Deal era, which argued against the formal artificiality of legal case precedents and in favor of informed judgments based on the contextualization of law as social policy.
> Arguing that law (with its attendant institutions and representatives) is not neutral or objective, but legitimizes the prejudicial power relations and hierarchical structures of class, economics, gender, and race in the society by which it is itself determined, legitimized and maintained, the various branches of CLS have engaged in critiques of the law understood as narrative or as a rhetorical-ideological constructówith a view to demystifying and dismantling the social structures of injustice which inform its doctrines and policies.
> Although CLS developed in a specifically North American context, many of its premises and questions have gradually filtered into European and international law; the island of Cyprus, entangled in decades of international power games, political/religious intrigue and legal wrangling, presents itself as a fitting venue for debating some of the problems and promises of the law in its relation to lived experience in a global context:
> ó what points of intersection exist between literary and legal judgments?
> ó what defines, delimits, or authorizes the will of the mysterious ďinternational communityĒ which is frequently invoked in various contexts as grounds for international military or political action?
> ó what determines the relations between the politics of nations, the law of nations, and justice or fairness?
> ó by what logic do treaties, agreements, obligations and promises retain legal force if the historical, social, and political circumstances under which they were made have changed?
> ó to what extent, if any, can the engagement of Derridean deconstruction or versions of ďpostmodernismĒ with legal theory result in the development of norms for social change and development?
> ó does law require moral justification in normative terms (Habermas) or is it an autopoietic system requiring no normative justification (Luhmann)?
> Submissions are invited for a Panel Discussion exploring any of these questions or others related to CLS, including its ramifications for European and International Law, and the situation of Cyprus.
> Prospective panelists are invited to send 250-word abstracts/proposals for 15-20 minute presentations on any aspect of these areas to [log in to unmask] or [log in to unmask] by 30 October, 2002. We look forward to learning about your research, and to a provocative discussion.
> For more information about Inscriptions in the Sand,
> please visit our website at http://www.emu.edu.tr/elh/index_confer.html
> Please also check out our links to ďIndividual Research PresentationsĒ and ďCreative/Performance Work.Ē