3 - Abstracts

Chiara Battisti, Sidia Fiorato

The question of women's legal identity in the context of Gothic effacement

This essay will analyze how the Gothic representation of wives imprisoned, effaced and even killed by their husbands, literalizes and thereby demystifies the legal abstraction of 'coverture'. Underthis legal principle, the wife became an unperson, because her legal identity was 'covered' by that of her husband. Through a literal or metaphorical death(enclosure in a castle, convent or a madhouse), the Gothic genre portrays the civil death and the effacement of women's legal identity. The trope of the dangerous male relative (mainly the father or the husband) reflects the patriarchal legal reality responsible for the social death of the woman. Specific attention will be devoted to the novel Maria, or The Wrongs of Woman byMary Wollstonecraft (posthumously published in 1798), in which Wollstonecraft deconstructs the ideology of marriage by which women are exchangeable commodities and are denied their natural rights, and uses the sexualized female body as a revolutionary medium of communication; the essay will then analyzeCatherine Perkins Gilmore's The Yellow Wallpaper (1892), in which the protagonist, enclosed in a room of a country mansions, entrusts her denunciation of the punitive, patriarchal set of institutions that require and actually effect the suppression of women's autonomy and self expression to her writings (her book of evidence), thus claiming her own individual voice and her strugglefor the preservation of her identity.

Daniela Carpi

A biojuridical reading of Dracula 

This essay sets itself at the crossline of many disciplines: literature, medicine and law, in that it takes into consideration a very important biojuridical topic which has come to the forefront in contemporary times, that is the reassessment of the concept ofpersona'. Scientific intervention into human life has placed ethical beliefs into question and created also juridical dilemmas.  I have chosen the novel Dracula as a proper example of the problem of euthanasia and of the problematisation of the concept of persona.

The evolution of Dracula's identity in the course of the novel moves from that of the wanderer, given his condition of undead, rooted in a place outside history and time (the castle, the snowy wilderness) to that of new capitalistic man, well rooted in civilized society thanks to his acquisition of a mansion. Dracula tries to become part of western civilization by his possessions and by acquiring a settled position. It is a symbolic sense of geography and possession that epitomizes Dracula's attempt at existing as a legal persona.  This entails also the inclusion of a new type of legal identity within the western racial corpus. The boundaries of persona are challenged in the novel: can Dracula be considered a legal person?

To this topic another biojuridical element can be added: in the novel the character of Mina asks to be killed should she be transformed into an undead. This entails the question of euthanasia: can a person decide of his/her own death?

Ross Charnock

Simplicity and point of view in legal argument : examples from the English law of obligations.

Because of the frequent use of erudite terminology and formalistic reasoning, legal judgments have acquired a reputation forcomplexity. However, such complex argumentation does not always allow a satisfactory resolution of the case, whether because of logical contradiction or because the strictly logical conclusion seems unacceptable. In such cases, as in ordinary debate, simple arguments are often found more convincing. Onerhetorical technique commonly adopted is to reject the formal framework and toadopt a different legal basis, thus proposing a more acceptable analysis without explicitly refuting the opposing arguments. Examples are taken from anumber of historically significant cases in the English law of obligations, in which facts originally argued in tort are re-analysed in contract, and viceversa. The fact that arguments based on a different view of identical facts canlead to a different result raises a question of indeterminacy as there can beno guarantee that the formal justification given corresponds to the true reasonfor the decision. Similar problems can be observed in other fields.

Marion Charret-Del Bove

Literary references and U.S. Supreme Court cases on freedom of speech  

When writing their opinion, it is commonfor American judges to include numerous references to written sources such asprecedents which have had a significant impact on their decision-making. Indeed it is the very essence of common law to adjudicate cases by referring to previous rulings. But do American judges also refer to fictional sources, andif so, how frequently? What authors do they cite and for what purposes?

Reflecting on Richard A. Posner's findingsin Law and Literature (Harvard University Press, 3rd edition, 2009),this paper aims at answering those questions through a survey of twentieth-century U.S. Supreme court decisions dealing particularly with the individual right to free speech secured in the second amendment to the US Bill of Rights: Congress shall make no law abridging the freedom of speech.' The recourse to such poetic allusions as, for example, those found in Texas vJohnson (1984), gives rise to the question as to the nature of the relation established by U.S. Supreme Court justices between literary works and the defence of vital values of American democracy.

After classifying the literary references found in the cases studied, this paper will attempt to determine to what extent and to what end literature is employed as a tool for rhetorical persuasion.

Cristina Costantini

The Ontological Excess of Law. Politics, Literature and Jurisdiction: acontroversial relationship

This paper discusses the unavoidable intersections between ontological disputes and methodological or epistemological options in the field of law. The inquiry - conducted from a systemological perspective - is oriented to reassess the intellectual results of comparativeanalysis. All the proposed arguments derive from a critical recognition of the strategies that scholars of different provenance are disposed to frame as they strive to make sense of traditions and culture. The final purpose is to unveil the ontological relevance of literary devices (such as narratology and literary criticism) for the historical comprehension of law. The paper will focus onthree main issues. First of all the investigation will confront with Peter Goodrich's view on the nature of legal discourse and its positive formulations; secondly it will be addressed to disclose the inner potentialities of Giorgio Agamben's thought on signature with the purpose of reframing legal hermeneutics; finally it will put under scrutiny the conventional way of considering the concept of jurisdiction. In this perspective, interpretation, adjudication and jurisdiction are mutually interwoven both as concrete devices apt to presentify the ontological excess of law and as strategic elements of acomplex process of power.

Leif Dahlberg

The uses and effects of video technology on legal argumentation in the Swedish court of appeal

The paper studies the use of audio-visual media in contemporary Swedish courtroom praxis and how this affects legal argumentation and rhetoric. The background to the study is the increasing use of digital audio-visual media in legal courts in Western countries during the last decennium, and in particular the new rules for court procedure introduced in Sweden in November 2008. An important innovation in Sweden is that interrogations and testimonies in the lower level court proceeding now are video recorded and, in case of a re-trial, are re-played in the court of appeal. The paper is based on an ethnographic study of the court of appeal in Stockholm conducted in the fall 2010. The study focuses on the uses of video recorded testimony in the Stockholm court of appeal (Svea hovrätt) to present evidence and build a case. The paper also focuses on the effects of audio-visual media in the constitution of legal space in the courtroom.

Victor Ferry

Perelman's dissociationof notions as a tool for interpretation       

In this paper I will go back to Perelman's dissociation of notions in order to shed a light on interpretationas process in forensic rhetoric (Aristotle, Rhetoric I, 1, 1354a).  The dissociation of notions is a technique that allows lawyers and judges to argue about the meaning of words. Indeed, through dissociation, an orator necessarily concentrates on a particular meaning while he rejects other meanings that are thus disqualified (Perelman:1980, 1990). Such a technique reveals the conventional nature of language and, therefore, the arguability of words. Actually, this technique implies a conception of law and a conception of language (Danblon: 2002). Behind those conceptions, lies a conception of social reality that was inspired by the Sophists (Dupréel: 1948). I will illustrate my point by analyzing a concrete case.

Evelyn Feteris

Strategic Manoeuvring with Linguistic Arguments in  Legal Discusssions. A pragma-dialectical perspective on the use of linguistic arguments in legal discussions about the application of a legal rule: acceptable and unacceptable forms of strategic manoeuvring
When parties in a legal dispute discuss an interpretation problem, they can choose several interpretative arguments. The choice from this 'topical potential' varies from linguistic arguments referring to the ordinary or technical meaning of words in legal norms to substantial arguments, such as moral and political considerations. From the perspective of legal certainty it is important that the judge applies the law as it is formulated by the legislator. Given the task of the judge - solving legal questions on the basis of the law - linguistic arguments in principle provide a more powerful justification than other interpretative arguments. That is why linguistic ar-guments often play an important or decisive role in the justification of interpretative decisions. Because of the relative importance of linguistic arguments, their use normally does not need a justification. One could say that linguistic arguments have a presumptive status: when there are no reasons for doubt about the ordinary (or technical) meaning of words in legal norms, a linguistic argument can be used as a sufficient (independent) justification for an interpretative standpoint.
Because of their strong prima facie force linguistic arguments are often used strategically. This means for instance that a linguistic argument is brought forward as a sufficient justification, without taking other possible (counter)arguments into account. In its most criticized form the 'letter of law' is misused to hide for instance the judge's own substantial arguments about the law as it ought to be. This use of linguistic arguments is - of course - interesting for argumentation theorists who are concerned with the theory and practice of strategic maneuvering. In this paper I will - as some first steps in this research area - give an analysis of this strategic manoeuvring with linguistic arguments from a pragma-dialectical perspective. First, I give an analysis of linguistic arguments, their importance, their use and the relation between linguistic arguments and other interpretative arguments. Second, I sketch a pragma-dialectical perspective on the use of linguistic arguments in the justification of legal decisions and I distinguish theoretically acceptable and unacceptable forms of strategic manoeuvring with linguistic arguments. With this analytical framework I finally analyse an example of strategic manoeuvring with linguistic arguments in Dutch case law.

Geraldine Gabdin-George

Literary references in English common law judgments       

In R v. Secretary of State for the Home Department (Appellant) ex parte Adam, Limbuela and Tesema (FC) (Respondents) [2005] UKHL 66, a House of Lords asylum case, Lord Bingham of Cornhill wondered, in his opinion leading to the House of Lords' order, whether inhuman or degrading treatment could be imposed on illegal immigrants which should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to your mountainish inhumanity'' (paragraph 7). In his opinion which led to R v A [2001] UKHL 25; [2001] 3 All ER 1 (17th May, 2001) which raises the issue of the right to a fair trial in a rape case, Lord Steyn quoted a sentence from a book referring to 'the much-discussed propensity to re-enact the balcony scene from Romeo and Juliet' in order to determine the actual relationship between two people (paragraph 32). In R A's, Re Judicial Review [2010] NIQB 99 (21 September 2010), a Northern Ireland High Court case, Girvan LJ started his opinion by quoting Richard III v. 3 to try and define 'eavesdropping' and invasion of privacy. He also referred to Brecht's Fear and Misery in the Third Reich in which the author described the horrors of the snooping society'.

Literary references are quite common in judges' opinions, whether they relate to first instance,  appeal or House of Lords/Supreme Court decisions. In common law countries as opposed to civil  law ones, judges' opinions are published and are the way for them to explain how they reached a  decision. The purpose of our study is to consider a sample of opinions supporting various UK courts' judgments, to see which authors/books are usually quoted, to try to identify the type of cases (criminal for instance) in which such literary references tend to be made, to determine the former  academic/professional background of the relevant judges and of course, how and to what extent  these literary references help achieve justice.

Maurizio Gotti

The Litigational Colonisation' of ADR Discourse

As Alternative Dispute Resolution (ADR) - in the forms of arbitration, conciliation and mediation - is commonly considered an effective alternative to litigation, the language used in arbitration documents is usually deemed to differ from that of litigation texts. However, in recent years there has been a narrowing between the two practices as litigation processes and procedures have increasingly been seen to influence ADR practices.

The paper reports on the investigation concerning the possible colonisation of ADR discourse by litigation practices, by assessing the situation in the Italian context. Drawing on documentary data, the paper investigates the extent to which the integrity of arbitration discourse is maintained, pointing out phenomena of contamination from litigation practices and exploring the motivations for such an interdiscursive process. An additional issue investigated concerns the relationship between the professional identity of the arbitrators and the kind of language used in their texts; the analysis focuses in particular on the use of legal discourse both by legal and non-legal experts.

The paper shows that the presence of the main features of legal language in ADR texts can be explained not only by the legal background of many of the arbitrators but also by a process of standardisation which seems to have conditioned also the non-legal experts working in this field.

Maureen Klos, Ms Tamara Klos

Semantic interpretation of the term consumer in the context of South African rental housing legislation           

In this paper, the writers discuss how the construal of the meaning of the term consumer can influence the controversial legal ramifications of concepts in particular situations such as the South African rental housing market.

According to various linguistic studies, semantic knowledge may indeed provide the first steps to understanding and explanation of a legal notion like consumer' that is embedded in a specific law such as the South African Consumer Protection Act 68 of 2008.  Moreover, knowledge of meaning that comes from knowing a language like English for example, and knowledge that goes beyond semantics and enters the realm of specialist knowledge can differ. However, we contend that the semantic meaning of the concept of consumer should enrich the legal meaning to benefit of landlords whose rights are currently not acknowledged in the context of the South African rental housing market.  For in the context of the South African Rental Housing Act 50 of 1999, the tenant only is viewed as a consumer, whereas a semantic analysis of the term as used in various literature resources reveals that the landlord may also be defined thus.

Anne Richardson Oakes

Precision or Meaningless Jargon? Schools and Race in the Language of the Law

Debates concerning what is, or should be, the relationship between the language of the law and ordinary language generally assume the greater precision of the law. For James Boyd White, legal language is a linguistically separate dialect, with a peculiar vocabulary and peculiar constructions.  Inherited and traditional, it is a technical language with precise terms for expressing precise ideas so that when ordinary language is vague, ambiguous and loose, the lawyer has a finer, keener, sharper instrument.  When the lawyer's precision becomes the layperson's meaningless jargon the result can be mutual frustration and alienation but what happens when the situation is reversed?

The decision of the United States Supreme Court in Brown v. Board of Education inaugurated the desegregation of the nation's public schools, but the rationale was not clear and the Court's interpretation of what the decision required has changed over time. Most recently the Court has refused to engage with the issue of so-called resegregation, so that the divergence between legal language and that of lived experience on matters of schools and race has become more pronounced. 

This paper explores that divergence in the context of the Court's affirmative action jurisprudence and considers what might be the consequences when the language of the law and the language of the people whom it serves fail to coincide.

Anne-Marie O'Connell

Is legal interpretation a linguistic fallacy?   

Interpreting the law, saying what it is, and discussing the existence of a method that would take into account the Janus-faced process of legal adjudication has been at the heart of a heated debate in jurisprudence. In the US, adjudicating cases of constitutional interest puts the different definitions of meaning' to the test. As a speech act, the law is of particular concern to philosophy and linguistics.

This paper aims to explore different views of meaning' and truth' put forward by analytical philosophy on the semantic (verbal content) and contextual aspects (social, political and ideological) of the process of legal adjudication and the theory of judge-made law. More specifically it will focus on the truth value of the interpretive proposition with reference to the supreme law of the land. Are the law and interpretation mainly concerned with truth or adequation with a higher constitutional source? In what way is meaning connected with truth? Is truth an integral element of the law or is it attributed to it? Is truth identical to itself? What is the role of time in asserting the truth of a proposition of law?An issue like the meaning and scope of the equal protection clause' of the 14th amendment to the US Constitution in cases like Plessy v. Ferguson (1897), Brown v. Board of Education (1954) and Bakke (1978) will provide a possible answer to such questions.

Giulia Adriana Pennisi

Intertextual /Interdiscursive Construction of European Identity    

The Treaty of Lisbon signed on 13 December 2007 is the result of negotiations between European member states in an intergovernmental conference, in which the Commission and Parliament were also involved.

Since the late 1990s the discourse on the relationship between EU and member states has changed significantly; yet, the idea of a European identity still remains a culture-sensitive/context-bound issue. This is particularly evident in the field of EU constitutional discourse, with common and civil law terminology offering examples of interlingual ambiguity such as problems of synonymy and legal homonyms, partial overlap between legal meanings, 'false friends'.

The aim of this paper is to explore these linguistic problems focusing on the solution prospected by the European Union (i.e., the Treaty on European Union and the Treaty on the functioning of the European Union - 2008/C 115/01- Treaty of Lisbon) in terms of the development of a constitutional discourse. Starting from the latest development in the fields of linguistic (Fairclough 2006) and sociolinguistics (Auer 2007), discourse analysis becomes a more comprehensive theoretical approach to the ways in which choices made at the semiotic EU discourse level can be considered the outcome of communities' adjustment/re-scaling to the new socio-cultural, economic and political environment.

José Plug

Obscurities in the formulation of legal argumentation        

In every-day discussions as well as in legal procedures unclear language can have negative consequences for the resolution of a dispute. Van Eemeren and Grootendorst (1992, 2001) state that if parties in a discussion make use of unclear or ambiguous language they are guilty of the fallacy of unclearness. By making use of unclear formulations, a party may violate one of the rules for critical discussions: the usage rule.

This discussion rule, although not so explicitly formulated, seems to play an important role in legal procedures as well. The Dutch Supreme Court hears grievances against the motivation of judicial decisions that are based on the ground that the motivation of the decision is obscure. One of the legal parties may complain that since the formulation of the arguments was unclear, it was impossible to give an adequate reaction. These complaints are of course not always allowed. So, the question is when can a complaint about the formulation be successful and how can it be decided if the formulation is indeed unclear?

In this contribution I will discuss the way in which the Dutch Supreme Court decides on differences of opinion about the obscurity of the motivation of a legal decision.

Erika Rackley

Judgment Writing as Critical Scholarship: Reflections on the Feminist Judgments Project

The Feminist Judgments Project was a unique, imaginative collaboration in which a group of feminist legal scholars wrote alternative feminist judgments in significant (English) legal cases (Hunter et al, 2010). Rather than simply producing academic critiques of existing judgments, the participants engaged in a practical, real world' exercise of judgment writing, subject to the constraints that bind appellate judges including fidelity to the judicial oath, respect for existing legal principles and consciousness of the impact of decisions on the parties and the broader community. By putting feminist theory into judgment form, the project sought to harness the power and distinctiveness of judgment-writing in order to demonstrate in a sustained and disciplined way how the cases could have been decided - and the judgments written - differently.

Aside from seeing how feminist insights play out in practice in relation to specific cases, the Feminist Judgments Project also allowed for a close examination of the nature of judgment writing. The operation of judgments as texts - their rhetorical strategies and uses of language and metaphor - has been extensively discussed within law and literature scholarship. Drawing on these insights and judges' practical advice about the judgment writing process, the paper uses examples from the project to consider the role of narrative choice and persuasive strategies in the process of crafting judgment. It argues for the practice of academic judgment writing both as means of furthering understanding of the art and craft of writing judgments and as a new form of critical scholarship.

Ryan Max Riley

Blaise Pascal and the Mutual Decline of Casuistry and Equity

This paper investigates the relationship between Blaise Pascal and the decline of casuistry and equity in seventeenth-century France by focusing on the judicial nature of casuistry in the Catholic sacrament of Penance and the theological implications of applying equity to divine law in the Parlements.  Casuistry and equity are essentially identical methods of applying rules to difficult cases and were commonly applied to divine law.  Arguments levelled against casuistry in the seventeenth century can therefore illuminate the decline of equity, and vice versa.  No scholar has yet discussed in depth the connection between casuistry and equity, and literary critics have largely neglected Pascal's concept of equity, even though it occupies a central place in one of his most persistent arguments, that against modifying divine laws.  In a few deft strokes, he reveals a profound and original theory of true equity as impossible divine lawmaking, dissolving the distinction between judge and legislator.  Yet his legal theory is equally a theological one, as it applies not only to equity in the Parlements but also to casuistry in the sacrament of Penance, illuminating some of the problems inherent in applying equity to divine law and demonstrating how developments in theology and law influenced each other in seventeenth-century France.

Colin Robertson

The problem of meaning in multilingual EU legal texts

The European Union, founded on international treaties, constitutes a separate legal order. It creates rules of law that bind member states and citizens. The EU, with 27 member states, is multicultural and, with 23 official languages, is multilingual. Its institutions produce inter alia legislative and judicial texts, which are read and interpreted by many actors at many levels, within and outside the EU.

A legal text is intended to create meaning. Its purpose is to make some change in the 'real world' of ideas and action in some way, within the context of legal system and thematic policy domains, using language as a tool for communication. The EU legal text is subject to multicultural influence in negotiation and interpretation; it is created in a single text comprising 23 authentic language versions. Given the background of a single legal order and conceptually therefore a single legal context and set of concepts, how can the EU legal text be read and interpreted in the same way by persons of different culture and language?

This paper explores issues that arise for the construction and communication of meaning in EU legal texts.

Armelle Sabatier

'A tongue that Barbarism itselfe doth use' (Thomas Hughes, Certain Devises and Shewes, 1587): Barbaric and Hybridised Linguistic Forms in 16th and 17th Century Common Law.

In Elizabethan England, English Common Law sought to embody the kingdom's political unity and a unified national identity. However, in Thomas Hughes's masque, Certain Devises and Shewes - a masque addressing the sense of national identity conveyed by Common Law - one character mentions a barbaric tongue in relation to Common Law. This barbarism referred to law-French, an idiom which had been in use since the Norman Conquest and which was part of English Common Law practice. This hybridised form inherent to Common Law undermined Common Lawyers' attempts at proving that Common Law formed an integral part of English national identity.

While exploring the barbaric' forms of law-French and its impact on Common Law practice, this study will also take into account the debate among lawyers and historians about the historical and linguistic evidence of this foreign influence on English common Law.

Julia Shaw

Law, narrative and literary licence: an anatomy of the judicial imagination        

The literary form customarily seeks truth and meaning, enabling critique of the implications and corollaries of dominant cultural forms.  As a representative medium, literature shares many features with law; the dispelling of myth, reinforcement of custom, the construction of identity and sensibility are characteristics pertaining to the social world but are also intrinsic properties of the legal community.  Furthermore, the oral and written legal tradition functions in a sensory environment where a multiplicity of expressive forms constantly augment, modify, reinforce and often purposefully challenge each other.  Perhaps because literature is amenable to the widest possible range of human experience, the judiciary has engaged in the selective and subtle practice of applying literary works and devices to contentious cases commonly exhibiting an ethical dimension.  US Supreme Court Justice Scalia employed Robert Frost's poem Mending Wall in Plaut v Spendthrift Farm Inc (1995), using both metaphor and narrative to impute a broader interplay of connotations inherent in the separation of powers principle. Articulating two contrary positions, the evocative aphorism good fences make good neighbours' was artfully used as a means of encoding and authenticating shared values governing rightful behaviour.  This paper seeks to critically evaluate the influence of a wider culture of narrative possibility that locates law and lends it significance, and seeks to address the literary nature of the judicial imagination by reference to a range of primarily common law cases.

Martin Solly

BabyBarista: barrister related narrative and the analysis of law   

Negotiated narratives are central to the creation of a sense of community. This paper presents a study of a legal blog, BabyBarista, a fictional account of a junior barrister practising at the English Bar, in order to explore the relationship between narrative and discourse, and to examine narrative structure as a textual means of constructing identity and continuity, taking into account the way the narrative shapes and is shaped by the context in which it is embedded. The vignette-like stories provide a rich and interesting source for the analysis of the law and especially of the English legal community. The paper will use the tools of conversational and linguistic analysis to examine the interplays that orient the reader to the stories and how the writer (Tim Kevan, a barrister and therefore a legal expert) tailors the discourse of BabyBarista who is a learner (and thus not yet a legal expert) and the other characters in the chambers (OldSmoothie, BusyBody, TopFirst, UpTights, HeadofChambers etc) to the requirements of each vignette; the improvised exchanges between the characters provide the mechanism for the writer to articulate carefully crafted images as the narrative plots are constructed and negotiated by the legal professionals.

 Pei Lee  Yeoh

The Ideological Metaphorization of Precedents in Sedition Law    

The present study is concerned with examining the role of judges when discharging their duty in the process of statutory interpretation specifically the Sedition Act 1948 of Malaysia. For this purpose, this paper aims to analyze the usage of conceptual metaphors employed by judges to shed light into the kinds of statutory interpretation they are predisposed to. Specifically, the analysis shall focus on two aspects: a) that metaphors are salient in displaying the attitude of the judges towards their readiness in deciding whether cases tantamount to sedition; and b) the structuring function of metaphors is crucial in constructing various frames of images to be associated with this particular legislation. The research is grounded on the findings of cognitive linguistic theory of conceptual metaphor postulated by Lakoff & Johnson (1980) that discourse is framed by a conceptual system that is metaphorically structured and defined. This study will conclude by showing that the embodiment of legal principles, where judicial argumentations are phrased in metaphors, is significant to define and create political reality in tandem with the aims of executive (government's) political actions.

Updated on 15 juin 2011