Thursday, August 29, 2013

Telling Stories About Law and Inequality On "The Wire"

Robert C. Power, Widener University School of Law, has published 'The Wire' and Alternative Stories of Law and Inequality in volume 46 of the Indiana Law Review (2013). Here is the abstract.
This Article examines 'The Wire' for what it says about inequality in the United States today and what society can do to bring about greater equality. Part I identifies several themes explored over the five seasons of the series — the failure of law enforcement in the inner city, the harsh life and inadequate education of impoverished children in such areas, and Baltimore as an example of inefficient and corrupt city government. Part II reviews the Rodriguez case to consider the extent to which it defined the nature and scope of the Fourteenth Amendment’s Equal Protection Clause in terms of funding and providing public services. Part III returns to 'The Wire’s' three themes to describe in detail how the stories depicted in the series stand as examples of inequality that are particularly corrosive to society. Part IV returns to law, with seven sections identifying possible responses to the unequal society portrayed in the series. 
Download the article from SSRN at the link. 

Tuesday, August 27, 2013

The Ontological Structure of Law

Carlos L. Bernal Pulido, Universidad Externado de Colombia, has published En Búsqueda De La Estructura Ontológica Del Derecho (In Search of the Structural Ontology of Law) at 30 Revista Derecho del Estado 31 (2013). Here is the abstract.

La tarea central de la teoría del derecho es la de explicar la ontología del derecho o, como comúnmente se señala, su naturaleza. El objetivo de este ensayo es describir de manera general una metodología que permita llevar a cabo investigaciones acerca de la naturaleza del derecho. Se sostiene que investigaciones de este tipo deben empezar con una comprensión pre-reflexiva del derecho en tanto entidad basada en una práctica social. Asimismo, que dichas investigaciones deben tratar de reducir la explicación acerca de la naturaleza del derecho a un catálogo de condiciones necesarias y suficientes para la existencia del derecho, y que el éxito en esta empresa no depende solo del análisis conceptual, sino que precisa también de una construcción teórica que tenga por objeto el logro de un equilibrio reflexivo.

The central task of jurisprudence is explaining the ontology of law or, as it is commonly said, its nature. The aim of this paper is to outline a methodology for carrying out inquiries into the nature of law. I argue that enquiries of this kind ought to begin with a pre-reflective understanding of law as an entity grounded in a social practice, that they should attempt to provide reductive necessary and sufficient conditions for the existence of law, and that success in this enterprise depends on conceptual analysis although it also requires a theory construction aiming at achieving a reflective equilibrium. 
Download the article from SSRN at the link (text in Spanish).

A New Issue of Law and Humanities

Hart Publishing announces:

The contents of Law and Humanities Volume 7. Number 1. 2013. To access this issue online, read the abstracts and purchase individual papers please click here.To subscribeand for further information about Law and Humanities, please click here.  CONTENTS EditorialFree to view – please click here Articles‘The Cutting Edge of Cocking About’: Top Gear, Automobility and LawKieran Tranter and Damien Martin
Abstract: This paper argues that the British Broadcasting Corporation's (BBC) television series Top Gear(2002-) presents a significant opportunity to think about automobility, masculinity and law. As a show about cars and car culture it can be seen, and dismissed, as a gratuitous celebration of 'combustion masculinity.' However, its irony, humour and nostalgia combine to highlight that this way of being male lies in the past. Focusing on Top Gear series 13 (June-August 2009) it is argued that the essence of combustion masculinity lies not only in risk and competition but law. However, the show goes further. In its excessive performance of combustion masculinity it engages in gentle critique. In the post-industrial era where the motor vehicle's cultural status is declining Top Gear is itself a vehicle allowing combustion masculinity to be overtaken by less risky, less violent and more lawful ways of being male.
Click here to purchase paper Oaths, Credibility and the Legal Process in Early Modern England: Part TwoBarbara J ShapiroAbstract: This is the second part of an article, Part One of which appeared in the December 2012 issue of Law and Humanities. Part One broadened the scope of the study of the law of evidence by examining the whole range of fact-taking practices in early modern English society as a necessary background to understanding how oaths functioned in the legal evidentiary environment. It questioned the argument of George Fisher that contemporary belief in the divine power of the oath to compel truthful testimony pressed the legal system to avoid the credibility conflicts that would be generated by competing oaths. Shapiro examined how oath-taking by witnesses interacted with the oaths of grand jurors and petit jurors as well as with oath-taking outside the legal setting. The latter portion of Part One began an extensive analysis of credibility issues, suggesting that the frequent expression of credibility concerns at the time undermined the view that oath-takers were almost uniformly believed to be truth-tellers. Part Two aims to broaden the scope of the credibility issue, looking beyond the formal juridical context of the jury trial to the employment of credibility criteria in a wide variety of cultural arenas; thereby demonstrating that legal and non-legal discussions of credibility invariably overlapped and intertwined.
Click here to purchase paper Towards a Critique of Narrative ReasonFrançois Ost
Abstract: This paper aims to rehabilitate the role of narrative, against the dominant strategy of thinking, which disqualifies it. We have grown up with stories, which makes this plea easy: they are all around, nurturing us and arousing general sympathy amongst the doxa. But at the same time, the prevailing doctrine tends to discredit narrative, presenting it as private and frivolous in order to constrain its powers. I would like to demonstrate the constitutive nature of narrative both as the collective story, memory and history of peoples, and as the individual or 'personal novel' each one of us tells himself in order to create his own identity. I analyse the repression and disqualifications of narrative, before revealing the ways in which both theoretical and practical reason arise from within our narrative imagination. This conception of the human as homo fabulans (or story-telling animal) could lead us to outline a 'Critique of Narrative Reason'.
Click here to purchase paper Recovering the Lost Human Stories of Law: Finding Mrs BurnsDawn Watkins
Abstract: This paper adopts a narrative approach as a means to investigating a well-known English civil law case; Burns v Burns [1984] Ch 317. It seeks to demonstrate some of the consequences of the 'we' and 'they' distinction that characterises much legal practice and discourse. In particular, it is argued that the identity of 'Mrs Burns', as revealed in the reported 'facts of the case' and scrutinised in subsequent legal discourse, is merely our distorted creation. Nevertheless, we continue to refer to the reported judgment as the ultimate source of authority of these 'facts' and we persist in pretending to ourselves that Mrs Burns was intimately involved in the establishment of them. Drawing on Delgado's 'plea for narrative', Mrs Burns' own counterstory is presented here as a both as challenge to our usual ways of thinking and as a belated 'gesture of responsibility' towards her.
Click here to purchase paper Lost for Words: Embodying Law through Tanztheater
Miriam Aziz
Abstract: What is the link between dance and the law? In my opinion, dance is also a way of seeing, a way of experiencing life; it is a story-telling device and is as variable as the many reasons why we dance. Both law and dance are theories of language. My interest as a lawyer and as an artist in exploring the link stems from there. To what extent, if at all, does this link enable us to examine the many ways we perceive law as an art of story-telling? What does it have to offer, if anything, about revising ideas about what we mean when we lay claim to translating ideas about social justice into laws? In 2011, I established a performance art laboratory called Artist (s) at Large to explore ideas about law and rule based approaches to creativity as well as copyright and authorship. The lab was also conceived as a creative platform for law teaching, thereby adapting the case-method. On 20 October, I premiered a performance piece called "Lost for Words" at the DiMenna Center with Artist (s) at Large which explored ideas of witness, testimony, truth and reconciliation with and beyond text. This paper places this experience within the context of a research and teaching agenda that is both innovative and imaginative, and has consequences for legal theory, legal practice, scholarship and teaching.
Click here to purchase paper Book ReviewsJulen Etxabe, The Experience of Tragic Judgment
Ari Hirvonen
Click here to purchase paper Ruth Herz, The Art of Justice: The Judge’s Perspective
Leslie J Moran, Gary Watt, Linda Mulcahy and David Isaac
Click here to purchase paper If you have any questions please contact Hart Publishing, 16C Worcester Place, Oxford OX1 2JW, UK Tel: +44 (0) 1865 517530; Fax: +44 (0) 1865 510710; Email: