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)

Managing aggression in mental health hospitals is an important and challenging task for clinical nursing staff. A majority of studies focus on the perspective of clinicians, and research mainly depicts aggression by referring to patient-related factors. This qualitative study investigates how aggression is communicated in forensic mental health nursing records. The aim of the study was to gain insight into the discursive practices used by forensic mental health nursing staff when they record observed aggressive incidents. Textual accounts were (...) extracted from the Staff Observation Aggression Scale-Revised (SOAS-R), and Fairclough’s Critical Discourse Analysis was used to identify short narrative entries depicting patients and staffs in typical ways. The narratives contained descriptions of complex interactions between patient and staff that were linked to specific circumstances surrounding the patient. These antecedents, combined with the aggression incident itself, created stereotyping representations of forensic psychiatric patients as deviant, unpredictable and dangerous. Patient and staff identities were continually (re)produced by an automatic response from the staff that was solely focused on the patient’s behavior. Such response might impede implementation of new strategies for managing aggression. (shrink)

Based on our respective research programs (psychiatry, forensic psychiatry, public health, HIV/AIDS, harm reduction) this article aims to use purposely non‐conventional means to present the substantial contribution of poststructuralist perspectives to knowledge development in nursing science in general and in our current research in particular. More specifically, we call on the work of Michel Foucault and Deleuze & Guattari to politicize nursing science using examples from our empirical research programs with marginal and often highly marginalized populations. We discuss the (...) concepts of power, discourse, and resistance to illustrate the essential contribution of poststructuralism to marginal, even “nomadic”, nursing research. (shrink)

Nurses working in correctional and forensic mental health settings face unique challenges in the provision of care to patients within custodial settings. The subjectivities of both patients and nurses are subject to the power relations, discourses and abjection encountered within these practice milieus. Using a poststructuralist approach using the work of Foucault, Kristeva, and Deleuze and Guattari, this paper explores how both patient and nurse subjectivities are produced within the carceral logic of this apparatus of capture. Recognizing that subjectivities (...) are fluid and dynamic, and capable of change, Deleuze and Guattari's concept of deterritorialization will illustrate opportunities for resistance, where nurses can begin to practice outside the dominant carceral logic (and restrictions) of the system. (shrink)

Feminist analyses address the way differences between the sexes are conceptualized and operationalized in society. In this paper, I discuss how violence by men and women is conceptualized as different in the psychological scientific discourses of forensic mental health. I suggest that these empirical discourses perpetuate assumptions of difference and discourage examination of similarities. Specifically, I will argue that neutralization techniques are frequently used that reduce women’s agency and responsibility for violence compared to their male counterparts, and compared to (...) nonoffending women. I discuss the implications for violence research and interventions for violence perpetrators. (shrink)

There are many different ways in which modern Corpus Linguistics can be used to enrich and broaden our understanding of legal discourse. Based on the central principle of co-occurrence and co-selection in language construction, this paper reviews current applications of Corpus Linguistics in the area of legal discourse focusing on issues ranging from phraseology, variation in legal discourse, legal translation, register and genre perspectives on legal discourse, legal discourse in forensic contexts to evaluative language (...) in judicial settings. It revisits the notion of ‘corpus’ and it highlights the relevance of various types of legal corpora and computer tools in legal linguistic research. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prophecy without Contempt: Religious Discourse in the Public Square by Cathleen KavenyKyle LambeletProphecy without Contempt: Religious Discourse in the Public Square Cathleen Kaveny CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2016. 464 PP. $49.95"The American public square is not a seminar room" (419). This being the case, Cathleen Kaveny's Prophecy without Contempt challenges ethicists, among others, to reconsider the rhetoric of moral address. Rather than a narrow focus (...) on deliberation, Kaveny commends attention to the genre of indictment, and particularly the American jeremiad, as a significant mode of moral address that deserves normative analysis. Kaveny is no partisan of prophecy. But she offers moral and rhetorical criteria of prophetic speech that allow the genre to do its indispensable work.Kaveny's book proceeds in four parts. In the first part she sets the stage for her argument by surveying three prominent accounts of the status of public moral discourse, critiquing each yet drafting them all into a more global [End Page 195] critique of the failure to take into account the central significance of the rhetoric of prophetic indictment. Correcting this neglect in the second part, Kaveny executes a historical retrieval of the American jeremiad, beginning with early Puritan preachers of the Massachusetts Bay Colony. The point of her at times plodding historical reconstruction is that the jeremiad was not originally socially divisive but rather served to build up the community by calling listeners back to a commonly agreed-on covenant. This uniting function of the jeremiad fails in later generations. Some readers will worry that Kaveny's retrieval risks nostalgia insofar as it conforms to a MacIntyrian declension narrative in which golden origins were irreplaceably fractured.This risk, however, is mitigated by the third and fourth parts of the book, in which Kaveny turns to constructive ethics. She argues that the forensic rhetoric of prophetic indictment should be understood as a chemotherapy. It should not be confused with deliberation, the normal form of moral address. Yet, like chemotherapy, used in the right amount it can restore an ailing patient to health. As we have come to expect, Kaveny is especially adept at taking the moral frameworks developed in one sphere and applying them to another. Trading medical analogies for military, Kaveny argues that best practices of ius bellum verborum can be developed from just war criteria. She adds to these rhetorical constraints that prophetic critique be offered against one's own people with whom one identifies through lamentation and hope. Kaveny concludes with advocacy of prophetic humility and irony as necessary elements of prophetic speech in our pluralistic contemporary context.Although written in accessible prose, Kaveny's book deserves rigorous scholarly engagement. She constructs her argument with the gracious interdisciplinarity of a leading scholar of law and theology at the height of her powers. She is methodologically promiscuous but never shallow, drawing on scholarly fields of moral philosophy, biblical studies, American religious history, in-depth case analysis of contemporary arguments about abortion and torture, and historical paradigms of prophetic virtue (and vice). While scholars in each of these fields will find claims worth engaging in Kaveny's text, ethicists will be particularly interested in her argument for a constrained, continuing need for prophetic indictment.My one critique is that her account of prophetic rhetoric is too conservative. Based on her historical retrieval, Kaveny argues that indictment should serve only to call listeners back to an already agreed-on covenant. It is undoubtedly the case, however, that Kaveny's exemplars of indictment such as Jonah, Lincoln, and King innovated and developed the covenant, even as they invoked it. This complaint aside, Kaveny's book is a major contribution to contemporary conceptualizations of the public square, and stands poised to open new directions for moral analysis of religious actors in pluralistic publics. [End Page 196]Kyle LambeletNotre Dame UniversityCopyright © 2017 Society of Christian Ethics... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Aristotle’s Phantasia in the Rhetoric:Lexis, Appearance, and the Epideictic Function of DiscourseNed O’GormanIntroductionThe well-known opening line of Aristotle's Rhetoric, where he defines rhetoric as a "counterpart" (antistrophos) to dialectic, has spurred many conversations on Aristotelian rhetoric and motivated the widespread interpretation of Aristotle's theory of civic discourse as heavily rationalistic. This study starts from a statement in the Rhetoric less discussed, yet still important, that suggests that a (...) visual aspect inheres in Aristotle's theory of rhetoric. Near the beginning of book 3, which deals with lexis (style, sometimes subsuming delivery1 ), Aristotle conjoins lexis and phantasia with the copula "is" (eimi): "The subject of expression [lexeôs], however, has some small necessary place in all teaching; for to speak in one way rather than another does make some difference in regard to clarity, though not a great difference; but all these things are forms of outward show [phantasia] and intended to affect the audience" (1404a).2 Whereas scholars exploring the relationship between rhetoric and dialectic have compared and contrasted the Rhetoric and the Topics, I explore rhetoric's relationship with phantasia by reading the Rhetoric alongside De Anima. De Anima is Aristotle's seminal account of the senses and their relationship to psychê (often translated "soul"). It addresses topics intimately connected to rhetoric: perception, cognition, deliberation, visualization, imagination, and the image. Phantasia is integral to each of these psychic processes and to Aristotle's understanding of the function of appearance in human experience. Hence, itis a lens suitable for exploring the relationship between Aristotle's conception of civic discourse and his notions of sight and appearances as they relate to perception, interpretation, deliberation, and judgment. I find in Aristotle's phantasia a tie between his art of rhetoric and his psychology and phenomenology (anachronistic though these terms are). Aristotle's psychological works, as Richard McKeon points out, are foundational to Aristotle's philosophy, and thus to his Rhetoric. [End Page 16] "Psychological inquiries occupy an extremely important position in the philosophy of Aristotle, for the conception of the psychê lays the foundation for the continuity of functions in nature" (1947, 142). De Anima, especially, articulates the psychological and phenomenological conceptions often tacitly at work in the Rhetoric.The importance of phantasia for the trajectory of ancient rhetorical and aesthetic theory is seen in the parallels between the visual arts, rhetoric, and poetics in Greek and Roman thought.3 As David Freedberg states (perhaps, slightly overstates), parallels between painting and poetry are "to be found everywhere in classical literature" (1989, 50). With respect to such visual-verbal parallels in Aristotle, D. Thomas Benediktson's reading of Aristotle's psychological, poetic, and rhetorical works concludes that phantasia ties together the visual and the literary. "[Aristotle's passages on phantasia] do help to see why Aristotle took for granted the similarity, almost the identity, of literature and the visual arts. Both types of art are imagistic; they present to the viewer either an image, as in visual art, or as in literature, a set of moving images that the soul then uses as raw data (phantasia) to enable thought to occur" (2000, 170). Phantasia developed a legacy in Hellenistic aesthetics, where it came to designate suprarealism in painting, moving art "beyond imitation" (Fowler 1989, 180–81). In later Greco-Roman works, phantasia was used to designate vivid imagery in written and oral discourse, imagery that could create sights and scenes in the minds of audience members. As Quintilian noted in his discussion of forensic rhetoric, in Latin phantasiai were termed visiones. Here, phantasiabecame a mode of displacing narrative in rhetorical discourse:There are certain experiences which the Greeks call phantasiai, and the Romans visions [visiones], whereby things absent are presented to our imagination with such extreme vividness that they seem actually to be before our very eyes.... From such impressions arises that enargeia which Cicero calls illumination [illustration] and actuality [evidential], which makes us seem not so much to narrate [dicere] as to exhibit [ostendere] the actual scene.(Institutio Oratoria 4.2.29, 32)Quintilian's invocations of phantasia and enargeia can be traced to Aristotle's discussion of rhetorical style in book... (shrink)

Summary The First Sacred War was hotly debated in the 4th century. The crimes committed by the Crisaeans in this war were later equated to those committed by the Phocians during the Third Sacred War, or those committed by the Locrians of Amphissa during the Fourth Sacred War. This paper shows how the parallels drawn between the First and Third Sacred Wars (SW1–SW3) and between the First and Fourth Sacred Wars (SW1–SW4) were respectively shaped and used as an argument in (...) two different milieus: in pro-Macedonian intellectual circles in Athens, and in the Athenian forensic and deliberative arena. The main aim of this paper is to understand why ‘SW1–SW3’ is not used as an argument in the latter. In fact, Athens’ most prominent politicians had to cope with the Athenian support for the Phocians in the so-called Third Sacred War. Thus, the Phocians were depicted as guilty, but not to the point that they were compared to the Crisaeans. The legacy of the latter was ambivalent and lent itself to this shift in meaning. (shrink)

This book shows how research in linguistic pragmatics, philosophy of language, and rhetoric can be connected through argumentation to analyze a recognizably common strategy used in political and everyday conversation, namely the distortion of another’s words in an argumentative exchange. Straw man argumentation refers to the modification of a position by misquoting, misreporting or wrenching the original speaker’s statements from their context in order to attack them more easily or more effectively. Through 63 examples taken from different contexts (including political (...) and forensic discourses and dialogs) and 20 legal cases, the book analyzes the explicit and implicit types of straw man, shows how to assess the correctness of a quote or a report, and illustrates the arguments that can be used for supporting an interpretation and defending against a distortion. The tools of argumentation theory, a discipline aimed at investigating the uses of arguments by combining insights from pragmatics, logic, and communication, are applied to provide an original account of interpretation and reporting, and to describe and illustrate tactics and procedures that can be used and implemented for practical purposes.. This book will appeal to scholars in the fields of political communication, communication in general, argumentation theory, rhetoric and pragmatics, as well as to people working in public speech, speech writing, and discourse analysis. (shrink)

This paper is aimed at assessing how power, control, and resistance come into play and how resistance counteracts power and control in police investigative interviewing. Considering that the Philippines was once a colony of the United States, it is essential to compare the two samples as the Philippine legal system is highly patterned after the American jurisprudence (Mercullo in JForensicRes 11:1–4, 2020). Highlighting the existing and emerging power relations between the police interviewer and the interviewee, the study employed Sacks, Schegloff, (...) and Jefferson’s ( Recuenco, A. (2022). Cops to undergo investigation retraining to improve conviction rate. Manila Bulletin. https://mb.com.ph/2022/07/21/cops-to-undergo-investigation-retraining-to-improve-conviction-rate/ ) Conversation Analysis (CA) and Fairclough’s (Ehrlich in Coulthard and Johnson (eds), The Routledge Handbook of Forensic Linguistics, Routledge, 2010) Critical Language Studies (CLS) as general frameworks. A total of 10 Philippine and American police interviews were examined. While the Philippine corpus was obtained from the Pasay City Police Station, Metro Manila, the American corpus was culled from forensicling.com, an open-access website containing forensic linguistic data. Findings revealed that power and control were employed by the police in both contexts with 109 evidential markers (50.7%) and 2,443 representative speech acts (63.3%) having the highest frequency of occurrence. What is striking is the fact that police officers in both Philippine and American contexts show power and control in their utterances to be able to achieve the goal of police interviewing, that is, to gather information and elicit voluntary responses from the interviewees. Through this study, it is hoped that interviewers will be able to explore a better system of the questioning process that may lead the interviewees to cooperate more with them and arrive at a more accurate information. (shrink)

PERRON A and HOLMES D. Nursing Inquiry 2011; 18: 191–204Constructing mentally ill inmates: nurses’ discursive practices in correctionsThe concepts of discourse, subjectivity and power allow for innovative explorations in nursing research. Discourse take many different forms and may be maintained, transmitted, even imposed, in various ways. Nursing practice makes possible many discursive spaces where discourses intersect. Using a Foucauldian perspective, were explored the ways in which forensic psychiatric nurses construct the subjectivity of mentally ill inmates. Progress notes (...) and individual interviews constitute discursive spaces within which nurses construct patients’ subjectivities. Progress notes provide a written (and permanent) form of discourse, while interviews set the space for a more fluid and contextual form of discourse. We identified five types of subjectivities – the (in)visible patient, the patient as risk, the deviant patient, the disturbed patient and the disciplined patient. These subjectivities were rooted in various types of discourses circulating in the selected setting. Despite the multiple discursive dimensions of forensic psychiatric nursing, progress notes remain the main formal source of information regarding nursing care even though it is not representative of the care provided nor is it representative of nurses’ complex discursive practices in corrections. (shrink)

Forensic authorship analysis is based on two assumptions: that every individual has a unique idiolect, and that features characteristic of that idiolect will recur with a relatively stable frequency. Yet, a speaker’s language can change with age, affective states, according to audience, or genre. Thus, studies on authorship analysis should adopt the theory that while some linguistic parameters of an idiolect can remain stable, others can change depending on various circumstances. This investigation, which takes a constructional and functional-based approach (...) to discourse-level phenomena in idiolectal stability, analyzes cross-genre data produced by nine Mexican participants throughout a twelve-year time span. This study contributes to a greater understanding of the linguistic elements that survive genre effects and are potentially useful in both investigative and evidential forensic linguistic work. We provide a detailed description of linguistic features, their specific values, and context-dependent interpretation, keeping in mind the context of expert linguistic testimony, with its preference for methods which “employ linguistically motivated analyses in combination with quantitative tools” (Solan & Tiersma, 2004, p.463). Our findings show that idiolectal style tends to remain stable across genres and communication modes in epistemic modality constructions. Epistemic markers —specifically, markers indicating low commitment by the speaker (e.g., _no sé_ ‘I don’t know’) or expressing indirectness when introducing the illocutionary force (e.g., _la verdad [es que]_ ‘the truth [is that]’)— display idiolectal stability, as these markers seem to be the most effective in terms of allowing speakers to strategically manifest the extent of their knowledge regarding what is said. (shrink)

L. Jonathan Cohen has written a number of important books and articles in which he argues that mathematical probability provides a poor model of much of what paradigmatically passes for sound reasoning, whether this be in the sciences, in common discourse, or in the law. In his book, The Probable and the Provable, Cohen elaborates six paradoxes faced by advocates of mathematical probability (PM) when treating issues of evidence as they would arise in a court of law. He argues (...) that his system of inductive probability (PI) satisfactorily handles the issues that proved paradoxical for mathematical probability, and consequently PI deserves to be thought of as an important standard of rational thinking. I argue that a careful look at each of the alleged paradoxes shows that there is no conflict between mathematical probability and the law, except when for reasons of policy we opt for values in addition to accuracy maximization. Recognizing the role of such policies provides no basis for questioning the adequacy of PM. The significance of this critical treatment of Cohen's work is that those interested in revising the laws of evidence to allow for more explicitly mathematical approaches ought to feel that such revisions will not violate the spirit of forensic rationality. (shrink)

Theory from the south -- On personhood : a perspective from Africa -- Liberalism, policulturalism, and ideology : thoughts on citizenship and difference -- Nations with/out borders : the brave neo world and the problem of belonging -- Postcolonial politics and discourses of democracy : an anthropological take on African political modernities -- History on trial : memory, evidence, and the forensic production of the past -- Alien-nation : zombies, immigrants, and millennial capitalism -- Beyond bare life : AIDS, (...) (bio)politics, and the neo world order. (shrink)

The proposed volumes are aimed at a multidisciplinary audience and seek to fill the gap between law, semiotics and visuality providing a comprehensive theoretical and analytical overview of legal visual semiotics. They seek to promote an interdisciplinary debate from law, semiotics and visuality bringing together the cumulative research traditions of these related areas as a prelude to identifying fertile avenues for research going forward. Advance Praise for Law, Culture and Visual Studies This diverse and exhilarating collection of essays explores the (...) many facets both historical and contemporary of visual culture in the law. It opens a window onto the substantive, jurisdictional, disciplinary and methodological diversity of current research. It is a cornucopia of materials that will enliven legal studies for those new to the field as well as for established scholars. It is a 'must read' that will leave you wondering about the validity of the long held obsession that reduces the law and legal studies to little more than a preoccupation with the word. Leslie J Moran Professor of Law, Birkbeck College, University of London Law, Culture and Visual Studies is a treasure trove of insights on the entwined roles of legality and visuality. From multiple interdisciplinary perspectives by scholars from around the world, these pieces reflect the fullness and complexities of our visual encounters with law and culture. From pictures to places to postage stamps, from forensics to film to folklore, this anthology is an exciting journey through the fertile field of law and visual culture as well as a testament that the field has come of age. Naomi Mezey, Professor of Law, Georgetown University Law Center, Washington, D.C., USA This highly interdisciplinary reference work brings together diverse fields including cultural studies, communication theory, rhetoric, law and film studies, legal and social history, visual and legal theory, in order to document the various historical, cultural, representational and theoretical links that bind together law and the visual. This book offers a breath-taking range of resources from both well-established and newer scholars who together cover the field of law's representation in, interrogation of, and dialogue with forms of visual rhetoric, practice, and discourse. Taken together this scholarship presents state of the art research into an important and developing dimension of contemporary legal and cultural inquiry. Above all, Law Culture and Visual Studies lays the groundwork for rethinking the nature of law in our densely visual culture: How are legal meanings produced, encoded, distributed, and decoded? What critical and hermeneutic skills, new or old, familiar or unfamiliar, will be needed? Topical, diverse, and enlivening, Law Culture and Visual Studies is a vital research tool and an urgent invitation to further critical thinking in the areas so well laid out in this collection. Desmond Manderson, Future Fellow, ANU College of Law / Research School of Humanities and the Arts, Australian National University, Australia. (shrink)

Argumentation theory is a distinctly multidisciplinary field of inquiry. It draws its data, assumptions, and methods from disciplines as disparate as formal logic and discourse analysis, linguistics and forensic science, philosophy and psychology, political science and education, sociology and law, and rhetoric and artificial intelligence. This presents the growing group of interested scholars and students with a problem of access, since it is even for those active in the field not common to have acquired a familiarity with relevant (...) aspects of each discipline that enters into this multidisciplinary matrix. This book offers its readers a unique comprehensive survey of the various theoretical contributions which have been made to the study of argumentation. It discusses the historical works that provide the background to the field and all major approaches and trends in contemporary research. Argument has been the subject of systematic inquiry for twenty-five hundred years. It has been graced with theories, such as formal logic or the legal theory of evidence, that have acquired a more or less settled provenance with regard to specific issues. But there has been nothing to date that qualifies as a unified general theory of argumentation, in all its richness and complexity. This being so, the argumentation theorist must have access to materials and methods that lie beyond his or her "home" subject. It is precisely on this account that this volume is offered to all the constituent research communities and their students. Apart from the historical sections, each chapter provides an economical introduction to the problems and methods that characterize a given part of the contemporary research program. Because the chapters are self-contained, they can be consulted in the order of a reader's interests or research requirements. But there is value in reading the work in its entirety. Jointly authored by the very people whose research has done much to define the current state of argumentation theory and to point the way toward more general and unified future treatments, this book is an impressively authoritative contribution to the field. (shrink)

Despite high rates of gendered violence among youth, very few young women report these incidents to authority figures. This study moves the discussion from the question of why young women do not report them toward how violence is produced, maintained, and normalized among youth. The girls in this study often did not name what law, researchers, and educators commonly identify as sexual harassment and abuse. How then, do girls name and make sense of victimization? Exploring violence via the lens of (...) compulsory heterosexuality highlights the relational dynamics at play in this naming process. Forensic interviews with youth revealed patterns of heteronormative scripts appropriated to make sense of everyday harassment, violence, coercion, and consent. Findings inform discussions about the links between dominant discourses and sexual subjectivities as we try to better understand why many regard violence a normal part of life. (shrink)

This article examines Augustine’s anti-Donatist claim that it is not the punishment but the cause that makes a martyr. Augustine’s non poena sed causa argument arises as part of the larger rhetoric of martyrdom that recent scholarship has highlighted in late antiquity. I argue here that a more specific look at classical rhetorical techniques can provide a better understanding of what Augustine is up to in his particular rhetoric of martyrdom. To that end, after providing an overview of North African (...) martyr discourse, I turn to forensic rhetoric and issue theory as described in Cicero and Quintilian. I show that two types of forensic arguments—one on the issue of definition and other on the contested interpretation of a legal text—shaped Augustine’s non poena sed causa approach to the Donatists’ claims to be the church of the martyrs. (shrink)

This article examines Augustine’s anti-Donatist claim that it is not the punishment but the cause (non poena sed causa) that makes a martyr. Augustine’s non poena sed causa argument arises as part of the larger rhetoric of martyrdom that recent scholarship has highlighted in late antiquity. I argue here that a more specific look at classical rhetorical techniques can provide a better understanding of what Augustine is up to in his particular rhetoric of martyrdom. To that end, after providing an (...) overview of North African martyr discourse, I turn to forensic rhetoric and issue theory as described in Cicero and Quintilian. I show that two types of forensic arguments—one on the issue of definition and other on the contested interpretation of a legal text—shaped Augustine’s non poena sed causa approach to the Donatists’ claims to be the church of the martyrs. (shrink)

This article offers a critique and reconstruction of the concept of medicalization. Most researchers describe medicalization as the redefinition of social problems as medical concerns, and track its spread by the proliferation of disease language and diagnostic categories. Forensic psychiatry and disorders like psychopathy are often cited in these debates. I argue that focusing on discourse overlooks how medical language can justify or mask non-medical practices and outcomes, and lead researchers to identify medicalization where it has not occurred. (...) Building on other critiques of medicalization and recent studies of medical and legal expertise, I propose an alternative conception based on conditions for the performance of medical practice and other forms of expert labor. I distinguish the participation or intervention of medical practitioners from the medicalization of expert practice and identify several institutional factors that facilitate the latter. I illustrate this approach using a critical historical case: the first adult penal psychiatric clinic in the United States, founded by the eminent psychopathologist Bernard Glueck at New York’s Sing Sing Prison in 1916. Glueck’s extensive writings reveal little evidence of medicalization: psychopaths were largely defined and diagnosed according to penal rather than medical criteria, and they received additional punishment rather than treatment. A review of recent research confirms that psychopathy remains primarily a penal rather than medical condition. I conclude that focusing studies of medicalization on practice rather than discourse clarifies the concept and avoids reifying the notion of a medicalized society. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Lorenzo Valla’s Oratio on the Pseudo-Donation of Constantine: Dissent and Innovation in Early Renaissance HumanismSalvatore I. CamporealeWhy did I write about the Donation of Constantine?... Bear one thing in mind. I was not moved by hatred of the Pope, but acted for the sake of the truth, of religion, and also of a certain renown—to show that I alone knew what no one else knew.Valla to Cardinal Trevisan, 1443. (...) 1Lorenzo Valla’s well known work, the Oration on the Falsely-Believed and Forged Donation of Constantine, was written by the humanist in the year 1440. It was occasioned by the strife between Pope Eugenius IV and Alfonso of Aragon over the Kingdom of Naples. Valla wrote in favor of the Ara-gonese claim, arguing against pretensions of the Papacy to determine who should rule Naples that were based on the pseudo-Constantinian Donation. 2 [End Page 9]The Donation of Constantine: History and ForgeryAs is now well known, the Constitutum Constantini was a forgery that probably originated in the papal Curia in the eighth century. Subsequently it was often contested by the anti-papal Germanic Imperial tradition. The Constitutum portrayed the popes as assuming the role of the Emperor in the western part of the Empire as a result of the “donation” made by Constantine to the “Roman Pontiff and his successors.” The Donation was said to have taken place at a time subsequent to Constantine’s seizure of the city of Rome with the victory at the Milvian Bridge in a.d. 312, and immediately after his “conversion” to the Christian faith and his “reception of baptism” by the bishop of Rome, Pope (“Saint”) Sylvester.The Constitutum presents itself as an imperial decree, drafted and signed by Constantine himself, dated in Rome with an ambiguous formulation which could indicate the year 315 or 317 or even 330. The most significant and comprehensive passage of the entire document reads as follows:In order that the supreme pontificate may not deteriorate, but may rather be adorned with glory and power even greater than the dignity of earthly rule, behold, we give over and relinquish to the aforesaid our most blessed Pontiff, Sylvester, the universal Pope, our palace, as has been said, and also the city of Rome, and all the provinces, places and cities of Italy and the western regions, and we decree by this our godlike and pragmatic sanction that they are to be controlled by him and by his successors, and we grant that they shall remain under the law of the Holy Roman Church. 3The forgery was based an on older fictional source, the Legenda Sylvestri. It was later (at least as maintained first by Nicholas of Cusa, then by Valla) introduced by the canonist Paucapalea (Gratian’s disciple and collaborator) into the collection of canon law that had been made by Gratian, the Concordantia discordantium canonum, or Decretum (c. 1140). 4 Assertions that the Constitutum derived from the Legenda and that it was a later [End Page 10] insertion into the Concordantia represent discrete stages of Valla’s philological procedure. In fact Valla’s argumentation evolves in a kind of concentric movement. After discussing the hagiographic “fiction” of the Legenda, he treats the canonical “inauthenticity” of the Constitutum as a later insertion into the Concordantia. Then Valla returns to the notion that it was “made up” or “fictional” when he declares the Constitutum a juridical “forgery.” 5Valla’s Methodology and Argumentative ProcedureThe Oratio—this was how Valla titled his work—is a confutative discourse, rhetorically structured in the epideictic mode, although particular passages also assume forensic and deliberative modes. The oration was written in accordance with rhetorical norms for investigation and argumentation that Valla had learned from and elaborated on the Institutio oratoria of Quintilian, the writer Valla considered preeminent in the rhetorical tradition. 6“This speech of mine,” Valla emphasizes, is a speech intended for and offered to the universal assembly of Christendom. Although directly addressing the Papacy and in particular the ruling pope, Eugenius IV, the “oration” is conceived as though delivered in the presence of both the ecclesiastical hierarchy and civil authorities (“quasi... (shrink)

Linguistic choices have different attributions beyond their literal meaning according to their contexts. This paper looks at the variations in the discourses seen in the written colonial agreements and treaties during the Malabar conquest. The study employs the archived documents of various discourses during this period as a part of power shifting from the local elites to the colonial power. It explores how power is intertwined in the linguistic choices of different communication files. The study employs a hybrid methodology of (...) forensic linguistics and legal history. The analysis progresses in two phases: i) the linguistic attributions of power in the communications between the local elites and the colonial authorities and ii) the comparative analysis of variations in the linguistic choices by the colonial authorities correlating their varying power positions over the given period. It explores the dynamics of the linguistic choices of the local elites initially as a powerful entity in communication with the colonial authorities. The analysis shows a variation in the linguistic choices of the colonial authorities that suggests how they are used to reflect the power positions on a scale from weaker to powerful along the timeline. The paper argues that the linguistic choices of the colonial communication files aided them in projecting their power to society and assisted as one of the tools for reiterating their power position in various contexts. (shrink)

Event of Signature formulates a new philosophical problem which focuses on the handwritten signature as sign of legal identification. Author Michaela Fišerová works with three metaphysical expectations, which are shared in discourses of graphology and forensic analysis. The first expectation tends to reveal the signer's soul: a handwritten signature "naturally" mirrors the unique psychological qualities of the signer. The second expectation tends to guarantee the originality of the signer's trace: a handwritten signature proves physical contact between the signed document (...) and the writing tool "authentically" moved by the signer's hand. The third expectation tends to recognize the signer's legal identity: a handwritten signature is expected to reproduce the signer's personal style, which enables identification by legal authorities. In a methodologically inventive and semiotically-based dialogue with Derrida's deconstruction, Fišerová situates this triple expectation in the interval between life and law. Challenging coverage of this topic finally shows that none of the metaphysical expectations will ever be fulfilled in the event of manual signing. Legal uses of handwritten signature are characterized by the complex aporia of repeating the unrepeatable. (shrink)

The concept of person is integral to bioethical discourse because persons are the proper subject of the moral domain. Nevertheless, the concept of person has played no role in the prevailing formulation of human death because of a purported lack of consensus concerning the essential attributes of a person. Beginning with John Locke's fundamental proposition that person is a ‘forensic term’, I argue that in Western society we do have a consensus on at least one necessary condition for (...) personhood, and that is the capacity for conscious experience. When we consider the whole brain formulation of death, and the most prominent defense of it by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, we can readily identify the flaws that grow out of the failure to define human death as the permanent loss of the capacity for conscious experience. Most fundamental among these flaws is a definition of human death that reduces persons to the capacity of the brain to regulate purely physiological functioning. Such a formulation would, in theory, apply to any member of the animal kingdom. I suggest that an appropriate concept of death should capture what it is about a particular living being that is so essential to it that the permanent loss of that thing constitutes death. What is essential to being a human being is living the life of a person, which derives from the capacity for conscious experience. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 36.4 (2003) 376-379 [Access article in PDF] Rhetoric and Poetics in Antiquity. Jeffrey Walker. New York: Oxford University Press, 2000. Pp. xii + 396. $65.00, cloth. According to Jeffrey Walker, poetry is among rhetoric's true progenitors. Rhetoric was derived, he argues, not from the usual and oft told forensic or political sources but from an ancient argumentative mode that came to be known as epideictic (...) and that, long before Aristotle, included poetry. For Walker, this ur-epideictic was a broadly considered practice of artfully composed persuasive discourse: epideiktikon, "the rhetoric of belief and desire," as opposed to pragmatikon, "the rhetoric of practical civic business" (10). The former is primary and existed ages before rhetoric itself had a name; the latter is secondary because it depends upon and appeals to the beliefs and desires cultivated by the former. Recent discussions, as this well documented work suggests, have prepared us for a reconsideration of rhetoric's origin, perhaps even such a drastic one as this book proposes. Walker's aims, however, are not confined to revising rhetoric's history.The import of his thesis goes several steps farther to reflect his dismay with modern poetic practice and its underlying educational tradition. In that dismay, Walker's work passes beyond the revisionary and turns toward the subversive and polemic. This turn is seen best not in his thesis but in his hypothesis, his "plot": "the dominant notions of 'poetry' and 'rhetoric' that modern culture has inherited—and its notions of 'poetry' in particular—are largely products of the grammatical tradition in late antiquity" (311), a tradition which has proved stifling.In sum, Walker seeks not simply to revise history but also to adjust our educational and critical ideas and, above all, to improve the practice of poetry. In attempting briefly to set forth his thesis and hypothesis, I have surely misrepresented his manner. His stance is not exactly confrontational, although in the ultimate reckoning the reader will find that Walker pulls no punches about his aims. Revisionary, to an extent subversive, and at least somewhat polemical if not exactly confrontational—all adjectives fit, as I shall show in a review that, as I say, may regretfully damage Walker's rhetorical skills by making his case seem simpler, plainer, and far less interesting [End Page 376] than in fact it is. Indeed Walker's own skill as a rhetorician is particularly gratifying and persuasive. It's always gratifying and persuasive to find a rhetorical specialist who is adept at communication, relaxed in controversy, crafty in his use of figures (e.g., Isocrates's "Henry-Jamesian periods," 177), and sharp in his knowledge of literature.Walker's argument proceeds seamlessly and smoothly, as if offering only a kind of alternate to the usual view of our intellectual history: the nature of neither rhetoric nor poetry need be confused with the politics and taste that have necessarily driven the fortunes of each. After a brief excursus into comparative rhetoric (13-14), Walker turns his attention toward another kind of diversity, or lack thereof: the confining theoretical and critical sameness that has prevailed in our Western attitudes toward rhetoric and poetry since their ancient appearance as "conceptualized discursive practices" (17). Again, Walker's alternate to the usual view emerges as a kind of rancor-free "on the other hand" stance, or more in line with his own terminology, as the sort of tactic that from the time of the sophists has been known as making the lesser case the stronger. Nonetheless, the shortcomings of the traditionally dominant case grow exponentially until finally, as Walker's argument turns to near-polemic, they become shackles on the nature of the two arts.Crucial to his thesis is his presentation of the enthymeme. Here, more than in his discussion of epideictic, is the linchpin of his argument. At first he adverts to rhetoric as a Ciceronian combination of wisdom and eloquence or as a Quintilianesque ideal of wisdom speaking copiously, two venerable, widely accepted, perhaps even common-ground definitions that (like his idea of the epideictic) allow strategically for considerable... (shrink)

One of the most widely accepted tenets in postmetaphysical normative ethics is the principle of dialogue as a foundational authority. Conceptually, the dialogical model is valuable, in that it allows a binding yet mutable underpinning of moral discourse. However, dialogue has its limits. The main drawback lies in the fact that deliberations can be very lengthy, perhaps even infinite. In other words, deliberation does not always lend itself to action. From the vantage point of applied ethics, in this case, (...) bioethics and forensic ethics, this is not a minor shortcoming since these disciplines are concerned with situations involving some sort of urgency. Aporia is not an option in most cases. It is thus pressing to consider the moment of decision inherent to moral judgement and action that puts an end to dialogue. From the realm of abstract norm justification, one must move on to the contextualist discourse of application. To be rational, however, decision must avoid authoritativeness or any type of arbitrariness. What, then, could serve as a reasonable criteria for the rational application of norms? What aspects should be envisaged for a sound reflective decision? This paper will attempt to sketch some answers that could contribute to the question of the necessary contextual application of accepted norms by paying heed to, systemizing and sometimes finding fault in the arguments given by judges who had to settle cases touching sensitive moral issues. (shrink)

Since at least as far back as the infamous Derek Bentley case of the 1950s in which an unarmed 19-year-old was convicted and executed for murder based on his alleged uttering of the words _let him have it_ to his gun-wielding accomplice, the issue of incitement has been positioned firmly as an object of interest for forensic linguists. An example of a language crime—i.e. an unlawful speech act (as reported by Shuy in Language crimes: The use and abuse of (...) language evidence in the courtroom, Wiley Blackwell, Hoboken, 1993) the features of incitement—formalized as _intentionally encouraging or assisting others to commit an offence_ in the law of England & Wales under section 44 of the Serious Crime Act 2007 (https://www.legislation.gov.uk/ukpga/2007/27/contents)—have been widely debated by linguists and legal scholars alike. This paper draws on two webinars hosted by The Hunting Office in August 2020, which were subsequently leaked by the Hunt Saboteurs Association. Featuring senior figures from the hunting community addressing a nationwide audience of hunt masters, the webinars led to a police investigation and subsequent prosecution and conviction of one of the main speakers, Mark Hankinson, for _encouraging or assisting others to commit an offence under the Hunting Act 2004_. In this paper I explore what, linguistically, is meant by _encouraging or assisting_. Through corpus-assisted pragmatic and discourse analyses I interrogate the webinars to address the question of how precisely Hankinson implied his encouragement of illegal hunting with dogs. The phenomena of collocation and semantic prosody are crucial for understanding how such meanings came to be attached to the contributions Hankinson makes to the webinars. Moreover the paper will examine the contributions of other speakers and demonstrate that the same incriminating linguistic patterns in Hankinson’s talk are also evident in that of those who were not prosecuted. (shrink)

Many areas of genetic research, genetic forensics and genetic essentialism are treated in public sphere debate as suspicious and problematic or are subject to waves of moral panic. In cultural theory, likewise, strong critiques of the genetic essentialism emerge as part of a broader critical assessment of the discourses of the biological sciences and the assertion of a connection between genes and human behavior. However, the scientific and popular claim to the existence of a “gay gene” is not treated in (...) the same way, and has been widely celebrated both within lesbian/gay culture and more broadly in liberal-humanist speech. This essay suggests that it is not enough to presume that this is a result of the extension of essentialism into new popular understandings of human biology. Rather, this essay examines five reasons which have made the popular acceptance of a “gay gene” tenable: the dominance of “gay personage” arguments, the continued influence of early sexology, the suspicion of psychological and constructionist approaches to lesbian/gay sexualities, the effectiveness of genetic essentialism in“ethnic rights” political approaches and the continued centrality of “fixed subjecthood” in contemporary western culture. (shrink)

A shift in the cultural conception of the firm as productionsystem to that as investment-system entrenches the institutional logic of agency theory in governance reform. Reform initiatives emphasize the separation between management and the board, forensic reporting requirements, and the primacy of shareholders' entitlement to control and residual gains. Problems associated with this agency logic render reform unable to deliver a broad-based ethical operating environment. The introduction of a version of stakeholder theory, augmented by Knightian uncertainty, places the development (...) of an alternative conception of the firm into discourse. Implications for governance reform are considered. (shrink)

The purpose of the present study is the understanding of Gentili's position on the law of the sea as expressed in his classic De iure belli . The key constitutive elements turn out to be: 1) the idea of the sea as 'res communis' to all mankind, which amounts to the concept of 'freedom of the sea'; 2) 'jurisdiction' of the coastal state on the adjacent sea, even on the high seas, in order to police crime and prevent/punish piracy. As (...) such these two key elements, if taken in isolation, are rooted in the civil law tradition, but their true meaning can only be captured by placing them in the intellectual framework of which they constitute an integral part. Firstly, the epistemic structure of discourse hinges on the new science of natural jurisprudence, as applied to the subject of 'ius gentium bellicum'; secondly, the constituent theoretical languages emanate from a distinctive combination of civil law, scholastic-theological and humanist traditions. This procedure enables us to highlight the strikingly original and distinctly modern traits of Gentili's perspective on the law of the sea, which emerges as a corollary of his project of international/global order. A project that is based on the crucial notion of 'respublica magna' of mankind, a notion encompassing the two notions of 'freedom' and 'jurisdiction' that constitute and define the legal regime of the sea.The Stoic humanist notion of universal human society as 'corpus unum' implies, first of all, 'freedom of intercourse', or 'ius communicationis', to start from 'free passage' and 'freedom of commerce'. It is in the context of his argument about these basic freedoms that Gentili is finally led to discuss the subject of the 'law of the sea'. But, not only the concept of 'res communis', or 'freedom of use', but also the concept of 'jurisdiction', or 'protection', are strictly related to the same foundational concept of 'respublica magna'. This is a crucial characteristic of Gentili's approach to world order that is proved by reference to two cardinal points of his new 'cosmopolitan justice': 1) the 'international right to punish', as exemplified by the legitimacy of the wars of 'humanitarian intervention' and of the wars in support of the 'common law of mankind'; 2) the 'occupation of vacant land', which again underlines the relevance of the principle of 'jurisdiction' by striking a balance between the principle of 'free use' of nature and the 'jurisdiction' of the local ruler.Such a reconstruction definitely rejects the traditional image of Gentili as a supporter of 'maritime protectionism', on the ground of his Advocatio Hispanica published posthumously in 1613 and containing his pleadings as Spanish advocate before the Court of Admiralty. The guiding assumption here is that the book is strictly of a forensic character and as such devoid of any coherent theoretical substance. To the contrary, in his De iure belli, far from anticipating the English position in favour of 'mare clausum', Gentili tends to anticipate the essentials of Grotius' position, especially at the level of the ethic of the 'modern cosmopolis' and the related theme of colonial empire. On this very plane of discourse, Gentili's thinking transcends the so-called battle of the books and emerges as especially significant in illuminating the wider and deeper intellectual currents that contributed to the development of what were to become basic standard positions of modern international theory. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Vice and ViciousnessGwen Adshead (bio)Keywordspsychiatric diagnosis, antisocial behaviorI am Grateful to Professor Sadler for such a clear and helpful account of how human misconduct (or vice) has been confounded diagnostically with human disease (as defined by the Diagnostic and Statistical Manual of Mental Disorders [DSM] classificatory system); and even more grateful for the chance to offer comment. Professor Sadler’s paper raises questions about the DSM enterprise as a whole; (...) and this is a field in which I have no particular experience to offer for additional discussion. But his other main point is that psychiatrists are constantly invited to distinguish between vice and disease, and he gives three examples, one of which is a clinical case from my own research. I entirely agree with him that this is a good example, and in this commentary, I will explain why.The argument is about how to distinguish between human behaviors that reflect chosen deviance from prosocial norms and behaviors that reflect a diseased state of mind. Arguments are both legal and political: Aristotle, in the Nichomachean Ethics sets out conditions in which a man should not be blamed for his behaviors, and to some extent these conditions still hold good in the criminal court; ignorance of the meaning of one’s actions, or being forced to act under duress, are good legal defenses. Politically, as Professor Sadler makes clear, the arguments were set out first by Foucault and then Szasz; it is possible for the state to use medical discourse to turn what might be a legitimate social grievance into individual pathology—the ultimate ad hominem argument.These arguments have not gone away, despite the best efforts of a materialist wing of neuropsychiatry, aided and abetted by pharmaceutical companies, who have a great interest in reductionist arguments in the biosciences. This is particularly so in relation to antisocial behaviors, especially crime. I want to focus on one particular type of antisocial behaviors, namely, the wish to hurt another person. I focus on this because it is my clinical bread and butter: My work as a forensic psychiatrist and psychotherapist requires me to try and understand how and why people want to hurt others. But I think it also makes sense to focus on this because it is the most problematic wish socially and demands understanding. All three of Professor Sadler’s examples involve hurt and harm to others, and it is noteworthy that neuroreductionist or medicalized explanations are rarely sought for theft or tax evasion. This must be in part because socially we think it is normal to try and profit yourself, even illegally, if you can get away with it. (I actually think that such behavior is not all that normal, but that is an argument for another day).Let us take the clinical example from my own work, cited by Professor Sadler. It is an example of what is called in the DSM “Factitious Disorder by Proxy” (FDP), although it also has an unhelpful eponym of “Munchausen’s Syndrome by Proxy.” As a practicing forensic psychiatrist, it is one of the best examples I know of what has been crudely dichotomized as a “mad or bad?” debate. A [End Page 23] mother quite deliberately makes her child ill, and then presents the child to medical services as in need of hospital treatment. In the case I described with Dr. Bluglass, the mother smothered her baby girl and then presented her as having “breathing difficulties” (which was, of course, quite true in one sense). There are two examples of vice here: deliberately hurting your child and lying to others about it; the lies also have the indirect result of potentially causing more harm to the baby. Harming your child, and then lying about it, in a not-for-profit way, are criteria for FDP.Quite how these actions ever made it into the DSM is puzzling, when they are quite straightforwardly antisocial. If a man in the street were to smother another man to the point of asphyxia, and then lie about it, we might well ask many questions about why he had done it, but we would not say that no offence had occurred. We... (shrink)

Stalking is a pattern of behavior over time in which a stalker seeks to gain access to, or control over, an unwilling victim. Such actions range from the benign to the malicious and may cause emotional distress or harm to the victim. With the widespread adoption of new technologies, new forums of Internet-mediated discourse now exist which offer stalkers unprecedented scope to locate and exert influence over victims. Cyberstalking, the convergence of stalking and cyberspace, has created new challenges for (...) the prevention, detection, and prosecution of this new phenomenon as the traditional methods of detection by witnesses and enforcement through physical restraining orders often are inadequate.In this paper we suggest a cryptographic approach for tracking cyberstalkers. We first define the threat model in terms of the profile of a cyberstalker, as well as legal and law enforcement constraints. We then describe a monitoring system that addresses the basic admissibility requirements of our threat model, by capturing and verifying circumstantial evidence for use in cyberstalking investigations. (shrink)

Purpose This study aims to analyze how English-language versions of e-newspapers in the first two countries affected, China and Japan, which are non-English-speaking countries and have different socio-economic and political settings, have highlighted Coronavirus disease 2019 pandemic news and informed the global community. Design/methodology/approach A text-mining approach was used to explore experts’ thoughts as published by the two leading English-language newspapers in China and Japan from January to March 2020. This study analyzes the Opinion section, which mainly comprises editorial and (...) the op-ed section. The current study groups all editorial discussions and highlights into ten major aspects, which cover health, economy, politics, culture and others. Findings Within the first three months, the media in both China and Japan shifted their focus from health and preparedness to the economy, politics and social welfare. Governance and social welfare were key concerns in China’s news media, while, in contrast, global politics received the highest level of attention from experts in Japan’s news media. Environment and technologies aspects did not receive much attention by the expert’s columns. Originality/value At the initial stage of a world crisis, how leading nations and initially affected nations deal with the problem, how media play their role and guide mass population with experts’ thoughts are highlighted here. The understanding developed in this study can provide guidance to news media in other countries in playing effective roles in the management of this health crisis and catastrophes. (shrink)