An important but unstudied event in US legal institutions is when judges question plaintiff and defense attorneys about the issue that brings them to an appeals hearing before a state supreme court. In this article I analyze judges' questioning during the oral argument phase of the New York Court of Appeals' hearing of Hernandez v. Robles, a case concerning whether the state was violating same-sex couples' constitutional rights by denying them access to marriage. The article's purpose is to show how (...) the content, format, and language style of judges' questioning turns constructs the judges as persons possessing particular attitudes, judicial philosophies, political leanings, and personalities. The article provides a quantitative overview of the 186 questioning turns and analyzes the discourse in selected episodes to evidence how features of questioning generate identity inferences. The conclusion considers how the oral argument phase of Appeals Court proceedings contributes to larger discourses of the law. (shrink)

This essay discusses the most recent manifestations of the debate of the law and literature movement. The essay traces the evolution of the Law and Literature schools and identifies some of their adherents and conclusions, shows how these schools have influenced the conceptual development and teaching of American law, presents connections between the Critical Legal Studies and Law and Economics movements in the U.S., and raises questions about the Law and Literature movement.

Recent writers in the libertarian tradition have suggested a natural affinity between hermeneutics and libertarian politics. This case is not persuasive. We look at two different ways the link has been attempted. In one, markets themselves are seen as constituting a hermeneutic conversation of sorts. A second approach uses hermeneutics to underpin the traditional liberal confinement of the state to setting the rules of the game—to matters of the right as opposed to the good. But the conception of the self (...) that emerges from hermeneutic thought leads to a communitarian rather than a liberal politics. (shrink)

(1988). Approaches, opportunities and priorities in the rhetoric of political inquiry: A critical synthesis. Social Epistemology: Vol. 2, No. 1, pp. 21-42.

This paper examines the role of performance in law and music as a structural means of their self-programming construction. Music and law are considered as parallel social practices or performative doings. The paper begins with a critical analysis of the special aesthetical features of present-day juridical practice as exemplified by legal trial and legal expertise. Drawing upon reflections on the modern discourse on aesthetics and art, the article then examines in greater detail the specific traits of performance in law and (...) jazz music. Performative processes move from representation to presentation, from a preoccupation with rules and controlling to induced self-programming. Both law and jazz regard the unknown future as a resource for present decisions by “inventing” new possibilities; both require, expand and promote a responsibility that does not follow from statutes nor can be expressed in a code of ethics. Finally, the article addresses the performance situation in jazz. Jazz being polyphonic and improvisational by nature, improvisation makes explicit tradition by staging the context dependency of its performance. It is mediated by the knowledge, the operational history and the communication of the participants. Jazz is an exercise in the possibilities of an “aesthetics of imperfection” which can open up new ways of seeing law and politics. (shrink)

Recently within the critical accounting literature Funnell (1998) has argued that accounting was implicated in the Holocaust. This charge is primarily related to the technical, mathematical nature of accounting and its ability to dehumanise individuals. Broadbent (1998, see also DeMoss and McCann, 1997) has also contended that "accounting logic" excludes emotion. She suggests that a more emancipatory form of accounting could be possible if emotion were given a voice and allowed to be heard within accounting discourse (see also Kjonstad and (...) Wilmott, 1995). This paper contends that emotion should be introduced into accounting education and in particular emotional commitment to other individuals should be encouraged. It is suggested that one way to do this may be through business ethics education. It is also suggested that increasing ethical commitment to other individuals may go some way towards combating the tendency for accountancy to dehumanise other people. While there have been specific studies of ethics and accounting education there has, as yet, been little open debate about what the objectives of accounting ethics education should be or the specific techniques that could be used to meet the desired aims. This paper contends that accountancy has become dangerously dehumanised and that one of the most important objectives for any business ethics education must be to develop an empathy with "the other". The paper studies the developments within the medical, legal and engineering profession in order to suggest some specific methods which could be employed in order to re-humanise accountancy and develop a sense of moral commitment towards other individuals. (shrink)

Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...) own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism—namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)—this train of reflection diagnoses briefly a sequence of complementary main difficulties (as «obstacles» to recognising Law’s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law’s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality). (shrink)

The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge‐made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with (...) rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems. (shrink)

This paper addresses the question of the constitution of ‘the people’. It argues that J.L. Austin’s concept of the ‘perlocutionary’ speech act gives us a framework for understanding the constitutive force of a specific constitutional document: the American Declaration of Independence. It does so through responding to Derrida’s analysis of the Declaration, which itself draws on Austin’s work. Derrida argues that the Declaration’s constitutive force lies in the fact that it cannot be simply understood as either ‘performative’ or ‘constative’, in (...) Austin’s terminology. According to Derrida, ‘the people’ do not pre-exist the Declaration, but are constituted in the act of declaration itself. In response, I argue that while Derrida’s insight regarding the constitution of ‘the people’ is sound, his analysis misses two key aspects of the Declaration. These two lacunae point the way to an understanding of the constitutive force of the Declaration in terms of Austin’s ‘perlocutionary’ speech act. (shrink)

Over the past thirty years or so, theoretical work in such fields as legal semiotics and law and literature has argued that the legal process is profoundly rhetorical. At the same time, a number of communication-based disciplines such as semiotics, sociolinguistics and linguistic anthropology have provided, particularly in interdisciplinary combination with law, a wealth of empirical evidence on, and insight into, the micro-contexts of language and communication in the legal process. However, while these invaluable nitty-gritty analyses provide empirical support for (...) a rhetorical thesis, work in these areas has tended to ignore rhetoric as an explanatory principle. This article introduces an overarching rhetorical framework for the discursive construction and management of cases in contemporary Anglo-American legal processes. Taking ‘forensic’ as relating to the conduct of cases and ‘discourse’ as semiosis-in-practice, I argue that the practices within which forensic discourse is embedded are not, as the received legal view would have it, aimed at revealing an impartial truth but are deeply rhetorical practices aimed at persuading decision-makers to provide a remedy for a claimed wrong. By looking across forensic texts and contexts, I identify common elements of forensic discourse that can be found both in classical forensic orations and throughout the modern legal process and consider how these intersect with critical forces of agency and structure and the particularities of semiosis in situated context. An awareness of commonalities across forensic discourse can help sharpen our focus on the critical causes and consequences of individual and structural difference and point to consequential suggestions for reform. (shrink)

This paper exhorts geographers to become more active in debate about ethical research practice. It also suggests that ethical theory, practical problems, and lessons learned from postmodern thought make the prospects of establishing prescriptive codes of ethics unlikely. Instead, flexible prompts for moral contemplation might be used to encourage careful thought on matters of ethics. Because the practical feasibility of moral prompts rests on the existence of moral imaginations, it is vital to consider ways in which those imaginations might be (...) stimulated and nurtured. Professional associations and university academics have significant roles to play in this. Geographers must position themselves as effective agents in the processes by which professional research ethics are shaped rather than awaiting the potentially inappropriate outcomes of other agencies ' deliberations. (shrink)

This paper exhorts geographers to become more active in debate about ethical research practice. It also suggests that ethical theory, practical problems, and lessons learned from postmodern thought make the prospects of establishing prescriptive codes of ethics unlikely. Instead, flexible prompts for moral contemplation might be used to encourage careful thought on matters of ethics. Because the practical feasibility of moral prompts rests on the existence of moral imaginations, it is vital to consider ways in which those imaginations might be (...) stimulated and nurtured. Professional associations and university academics have significant roles to play in this. Geographers must position themselves as effective agents in the processes by which professional research ethics are shaped rather than awaiting the potentially inappropriate outcomes of other agencies' deliberations. (shrink)

Sophokles' Philoktetes is a response to the oligarchic takeover and restoration of democracy in Athens in 411–10 BC. The play explores the grounds, strengths, and weaknesses of democratic discourse, and measures it against alternatives. The final agon between Neoptolemos and Philoktetes defines a model of legitimate persuasion that can replace Odysseus' sophistic and oligarchic modes of interacting with others. The deus ex machina, in turn, brings in an authoritative aristocratic discourse that is superior even to democratic deliberation.

Each of the three phrases-the revival of rhetoric, the new rhetoric, and the rhetorical turn-points to a rediscovery of rhetoric in contemporary thought. However, the scholarly work, motivation and commitments associated with each phrase invokes and puts into playa different notion of rhetoric. In this paper, I explore those differences with a view to showing how the "rhetorical turn," unlike the "revival of rhetoric" and the "new rhetoric," repositions rhetoric as a "metadiscipline." Thus, it signifies a radical shift in the (...) self-understanding of rhetoric. (shrink)

The chief concern of the paper is to initiate discussion on the difference between the private and public power of judgement. The inspiration comes from Kant and his conception of the power of judgement, customs, morality and provisional law.

In recent years, outbreaks such as H1N1 have prompted heightened efforts to manage the risk of infection. These efforts often involve the endorsement of personal responsibility for infection risk, thus reinforcing an individualistic model of public health. Some scholars—for example, Peterson and Lupton —term this model the “new public health.” In this essay, I describe how the focus on personal responsibility for infection risk shapes the promotion of hand hygiene and other forms of illness etiquette. My analysis underscores the use (...) of constitutive and stigmatizing rhetoric to depict individual bodies, rather than environments, as prime sources of infection. Common among workplaces, this rhetoric provides the impetus for encouraging individual behavior change as a hedge against infection risk. I argue, though, that the mandating of personal responsibility for infection risk galvanizes a culture of stigma and blame that may work against the aims of public health. (shrink)