On Law as Poetry: Shelley and Tocqueville

South African Journal of Philosophy 3 (40) (forthcoming)
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Abstract

Consonant with the ongoing “aesthetic turn” in legal scholarship, this article pursues a new conception of law as poetry. Gestures in this law-as-poetry direction appear in all three main schools in the philosophy of law’s history, as follows. First, natural law sees law as divinely-inspired prophetic poetry. Second, positive law sees the law as a creative human positing (from poetry’s poesis). And third, critical legal theory sees these posited laws as calcified prose prisons, vulnerable to poetic liberation. My first two sections interpret two texts at the intersections among these three theories, namely Percy Bysshe Shelley’s “A Defense of Poetry” and Alexis de Tocqueville’s Democracy in America. Shelley identifies a poetic rebirth in the ruins of natural law, suggesting a philosophy of law as “natural poesis.” And Tocqueville names several figurative aristocracies capable of redeploying aristocratic law against democratic despotism, suggesting a philosophy of law as “aristo-poetic counterforce.” Finally, I propose a new theory of law as poetry bridging these two theories, “natural aristo-poetic counterforce.”

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Joshua M. Hall
University of Alabama, Birmingham

Citations of this work

On Justice as Dance.Joshua Hall - 2021 - Eidos. A Journal for Philosophy of Culture 5 (4):62-78.
Astral legal justice: Between law’s poetry and justice’s dance.Joshua M. Hall - 2023 - South African Journal of Philosophy 42 (2):108-116.

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References found in this work

Modernism and the Grounds of Law.Peter Fitzpatrick - 2001 - New York: Cambridge University Press.
Core Aspects of Dance: Aristotle on Positure.Joshua M. Hall - 2019 - Journal of Aesthetic Education 53 (1):1-16.
Figuration: A Philosophy of Dance.Joshua M. Hall - 2012 - Dissertation, Vanderbilt University

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