When Philip Sidney defends poetry by defending the methods used by poets and lawyers alike, he relies on the traditional association between fiction and legal procedure--an association that begins with Aristotle. In this study Kathy Eden offers a new understanding of this tradition, from its origins in Aristotle's Poetics and De Anima, through its development in the psychological and rhetorical theory of late antiquity and the Middle Ages, to its culmination in the literary theory of the Renaissance. Originally (...) published in 1986. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

Literature reveals the intense efforts of moral imagination required to articulate what justice is and how it might be satisfied. Examining a wide variety of texts including Shakespeare's plays, Gilbert and Sullivan's operas, and modernist poetics, Poetic Justice and Legal Fictions explores how literary laws and values illuminate and challenge the jurisdiction of justice and the law. Jonathan Kertzer examines how justice is articulated by its command of, or submission to, time, nature, singularity, truth, transcendence and sacrifice, marking (...) the distance between the promise of justice to satisfy our moral and sociable needs and its failure to do so. Poetic Justice and Legal Fictions will be invaluable reading for scholars of the law within literature and amongst modernist and twentieth century literature specialists. (shrink)

Poetic Interaction presents an original approach to the history of philosophy in order to elaborate a fresh theory that accounts for the place freedom in the Western philosophical tradition. In his thorough analysis of the aesthetic theories of Hegel, Heidegger, and Kant, John McCumber shows that the interactionist perspective recently put forth by Jürgen Habermas was in fact already present in some form in the German Enlightenment and in Heidegger's hermeneutic phenomenology. McCumber's historical placement of the interactionist perspective runs counter (...) to both Habermas's own views and to those of scholars who would locate the origin of these developments in American pragmatism. From the metaphysical approaches of Plato and Aristotle to the interactionist approaches of Habermas and Albrecht Wellmer, McCumber provides an original narrative of the history of philosophy that focuses on the ways that each thinker has formulated the relationships between language, truth, and freedom. Finally, McCumber presents his critical demarcation of various forms of freedom to reveal that the interactionist approach has to be expanded and enlarged to include all that is understood by "poetic interaction." For McCumber, freedom is inherently pluralistic. Poetic Interaction will be invaluable to political philosophers, historians of philosophy, philosophers of language, and scholars of legal criticism. (shrink)

In Poetic Justice Martha Nussbaum undertakes to explain how “story-telling and literary imagining” can supply “essential ingredients in a rational argument” and thereby improve public discourse regarding important ethical, political, and legal issues.

When J.R. Cash (Johnny Cash) sings that he shot a man in Reno just to watch him die, audiences impressed by the singer's skillful creation and depiction of a nihilistic lyrical subject clap and cheer. When Terrell Doyley (Skengdo) and Joshua Malinga (A.M.) sang broadly similar lyrics at a concert in 2018, London's Metropolitan Police and the Crown Prosecution Service took them to be describing violent acts they had participated in and violent intentions they harbored, and the lyrics were used (...) as the basis for legal proceedings against the singers that resulted in convictions. In this paper, I will argue that Doyley and Malinga's case illustrates a distinctive and important form that epistemic injustice can take. By failing to see their lyrics as speech that involves the exercise of their capacity for imagination, the police and prosecutors treat them as an impoverished sort of epistemic agent. I will call the wrong involved in cases like this onepoetic injustice. (shrink)

It is rare in the extreme for a judge to embed an enigma, here an intentionally encrypted message, in the text of a judgment. Using the occasion of the cypher inserted into the judgment of Peter Smith J in Baigent v Random House, this article patiently reconstructs the humanist concept of aenigmata iuris or legal enigmas so as properly to interpret this recent use. Legal enigmas are shown to be the residues of forgotten histories, references to lost texts, (...) marks left by encounters between law and its now marginal literary and poetic sources. Where current legal use treats enigmas as mere obscurities, this article argues that the enigma should be apprehended and appreciated as an image of juristic invention, the moment of devising a decision, the instant of creative encounter between ‘the sciences liberall’, doctrine and law. (shrink)

This note examines the decision of the Court of Appeal in Tabernacle v Secretary of State for Defence (2009). The court held that byelaws prohibiting camping on Ministry of Defence land adjacent to the Atomic Weapons Establishment at Aldermaston, Berkshire violated the human rights of women peace protestors under Articles 10 and 11 European Convention on Human Rights. The note argues that this decision calls into question arguments recently made, that the association of women with peace should be abandoned. It (...) also reveals the potential of law to facilitate the performative and transformative production of subject positions, as ‘woman’, which do not depend on or connect with debilitating patriarchal constructions of women as weak or vulnerable. (shrink)

In this article I argue that clients who purchase commercial sex from forced prostitutes should be strictly liable in tort towards the sex-slaves. Such an approach is both normatively defensible and doctrinally feasible. As I have argued elsewhere, fairness and equality demand that clients compensate sex-slaves even if one refuses to acknowledge that fault is involved in purchasing sex from a prostitute who might be forced. In this article I argue that such strict liability could be grounded in the tort (...) of conversion, and not only (as argued elsewhere) in battery. Since the quintessential experience of sex-slaves is that of being treated as chattels, the appropriate legal response is to allow them to benefit from the strict liability imposed on those who interfere with an owner’s dominion over his property. Accordingly, sex-slaves should be viewed as both subjects and objects. As subjects they can sue clients for the violation of their sexual autonomy manifested by their treatment as objects. This approach is both advantageous to sex-slaves, in the sense it affords them protection that might not otherwise exist, and fair, since the ultimate response to the objectification of sex-slaves by clients should be to afford the former a proprietary-based claim against the latter. I further explain why my approach is not problematic on conceptual grounds, anti-commodification sentiments or feminist concerns with the symbolic message of my solution: that the law treats women as property. (shrink)

Many of Menander's comedies are structured according to a rape plot pattern in which a young Athenian citizen usually rapes and impregnates a female citizen prior to the opening of the play. In most cases, the rape leads to a happy ending: the marriage of the rapist and victim. This casual treatment of rape is striking because in all other respects Menander's plays are not only scrupulously faithful to Athenian law, they also use Athenian legal and social norms as (...) their own generic conventions. Although the rape of a female citizen was a serious oense in Athenian law, potentially punishable with death, and a flagrant violation of the norms of Athenian citizenship, Menandrian comedy never morally or legally problematizes rape. This study considers how the comedies neutralize the potential legal signicance of rape and what this tells us about Athenian law and the ideology of democratic citizenship. It argues that by portraying a neutral form of rape, Menander's comedies implicitly articulate those factors which had the potential to bring "rape" within the purview of Athenian legal discourse. Menandrian Comedy's strategic fidelity to the norms of Athenian citizenship also tells us something about the gender ideology of Athenian democratic citizenship, that is, the ways in which relations between the sexes support and sustain civic relations between men in Athenian political culture and democratic ideology. While Menander's romantic plots uphold the laws of citizen marriage, they do not passively enact the legal constructs. In one common variant of the rape plot, the gendered construction of citizenship embedded in Athenian law is specically conjoined to democratic norms. In this type of play, a wealthy young citizen rapes and eventually marries the daughter of a seemingly poor citizen. By using rape to generate matrimonial unions between the rich and the poor, these plays extend democratic norms into the social arena. The formation of marriages across class lines disrupts the eects of intergenerationality in reproducing social and economic inequalities. (shrink)

Leonardo Bruni’s well-known oration, the Laudatio Florentinae urbis, has long stood at the center of discussions on the emergence of the modern republican state. Recent historiographical trends have emphasized the degree to which Bruni’s oration represents a propagandistic attempt both to portray Florence as a territorial power of Northern Italy keen to impose its sovereign authority on neighboring polities and as a republic intent on fashioning an image of itself as a popular sovereignty. It is in this second element of (...) Bruni’s oration that we can discover his rhetorical purposes: he needed to give a distorted image of Florence as enjoying “popular” rule precisely because Florence was in fact moving in the opposite direction towards a more oligarchic concentration of political authority. The essay investigates the changes contemplated in revisions to Florence’s juridical codes at precisely the time of the oration’s composition, suggesting that when these two sources are juxtaposed, Bruni’s oration appears as a strongly ideological literary work the rhetorical gestures of which camouflage the actual historical and legal developments of Florence’s political life in the early fifteenth century. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Poetic Justice: The Literary Imagination and Public LifeDavid GormanPoetic Justice: The Literary Imagination and Public Life, by Martha C. Nussbaum; xii & 143 pp. Boston: Beacon Press, 1995, $20.00.This volume, a revision of lectures given in 1991, is a philosophical study comparing aspects of law and literature. The law in question is contemporary American case law (hence the reference to “Public Life” in the book’s subtitle). The literature (...) to which it is juxtaposed consists primarily of “realist social novels” (p. 87), represented chiefly by Dickens’s Hard Times, though with some attention also given to E. M. Forster’s Maurice, Richard Wright’s Native Son, and to passages from Whitman’s poetry (quoted, characteristically, at some length). Nussbaum’s thesis is that both this kind of legal discourse and this kind—or kinds—of literary discourse constitute, involve, or otherwise rely upon an imaginative vision of human life and its possibilities. Thus lawyers have a great deal to learn from literature, insofar as contact with the capacious imaginations of a Dickens or a Whitman can only enlarge the sensibilities of those who read them in a sufficiently open-minded, reflective way.It may be both too kind and overly reductive to ascribe to Poetic Justice such a thing as a thesis. On the contrary, this compact book, like all of Nussbaum’s writings, teems with theories and theses. This is the main reason, I suppose, for the dichotomy of responses to Nussbaum: some find this pullulating quality of her work exhilarating, while others just find it annoying. One advantage that I think both parties will recognize in the compactness of Poetic Justice (due to the constraints of the lecture format) is that it inhibits the author’s native prolixity, which makes her previous books—The Fragility of Goodness (1986), Love’s Knowledge (1990), and The Therapy of Desire (1994)—something of an effort even for Nussbaum’s biggest fans to stay with through every last qualification, tertiary argument, and cross-reference. [End Page 196]The opening pages of these lectures seem, if anything, all too simple. Nussbaum’s initial target is the economistic, deterministic school of social analysis associated with the University of Chicago generally and with Richard Posner in particular, which has lately exercised a disproportionate influence in American jurisprudence and—especially during the Reagan-Bush era—in public policymaking. Against this kind of thinking, which attempts to treat human beings and their actions and decisions as much as possible in terms of quantifiable, statistical measures, Nussbaum emphasizes the autonomy, the irreducible singularity of each human being and the qualitative aspects of each person’s experience, which is the kind of cautionary lesson that she sees literary works as driving home—hence their value as a counterweight, or even a vaccine, against reductive economism. Thus readers will tend to assume from the first lecture (“The Literary Imagination”) that what they are in for, pretty much, is something like Bob Cratchit’s comeback to Ebenezer Scrooge. The Dickensian comparison is not fortuitous, of course, because although the text of reference is Hard Times and not A Christmas Carol, the moral antithesis is familiar enough: a coldly, blindly all-embracing utilitarianism versus a warm, empathetic humanism.Yet, as Nussbaum develops her account, things are not so simple. What emerges is that her aim is not simply to mount an attack on the economic-determinist approach to analyzing (and thus judging) human behavior, but in the first place to understand it, to get inside this worldview. This empathetic response to Chicago-style social analysis, in turn, weaves itself into the texture of Nussbaum’s book in two ways. For one thing, it supports her call to treat literature as making a potentially significant contribution to public life, since what better path can there be to understanding neo-utilitarians like Posner than via imaginative portrayals of such paleo-utilitarians as Mr. Gradgrind? For another thing, moreover, the very gesture of trying to empathize with economic determinism rather than trying to bury it serves the purpose of showing up the latter’s limitations, because this kind of other-directed response is just what the utilitarian approach is least... (shrink)

The author, in this series of essays, depicts the law as an essentially literary, rhetorical, and ethical activity. The topics discussed include a talk to students entering law school, describing the intellectual activity of the law, an exploration of the structure of legal thought and expression, and a dialogue which explores the ethics of argument.

Women's Power To Be Loud: The Authority of the Discourse and Authority of the Text in Mary Dorcey's Irish Lesbian Poetic Manifesto "Come Quietly or the Neighbours Will Hear" The following article aims to examine Mary Dorcey's poem "Come Quietly or the Neighbours Will Hear," included in the 1991 volume Moving into the Space Cleared by Our Mothers. Apart from being a well-known and critically acclaimed Irish poet and fiction writer, the author of the poem has been, from its beginnings, (...) actively involved in lesbian rights movement. Dorcey's poem "Come Quietly or the Neighbours Will Hear" is to be construed from a perspective of lesbian and feminist discourse, as well as a cultural, sociological and political context in which it was created. While analyzing the poem, the emphasis is being paid to the intertwining of various ideological and subversive assumptions, their competing for importance and asserting authority over one another, in line with, and sometimes, against the grain of the textual framework. In other words, Dorcey's poem introduces a multilayered framework that draws heavily on various sources: the popular culture idiom, religious discourse, the text even employs, in some parts, crime and legal jargon, but, above all, it relies upon sensuous lesbian experience where desire and respect for the other woman opens the emancipating space allowing for redefining of one's personal and textual location. As a result of such a multifarious interaction, unrepresented and unacknowledged Irish women's standpoints may come to the surface and become articulated, disrupting their enforced muteness that the controlling heteronormative discourse has attempted to ensure. In Dorcey's poem, the operating metaphor of women's silence, conceived of, at first, as the need to conceal one's sexual identity in fear of social ostracism and contempt of the "neighbours," is further equated with the noiseless, solitary and violent death of the anonymous woman, the finding of whose body was reported on the news. In both cases, the unwanted Irish women's voices of either agony, during the unregistered by anybody misogynist bloodshed that took place inside the flat, or the forbidden sounds of lesbian sexual excitement, need to be censored and stifled, not to disrupt an idealized image of the well-established family and heteronormative patterns. In the light of the aforementioned parallel, empowered by the shared bodily and emotional closeness with her female lover, and already bitterly aware that silence in discourse is synonymous with textual, or even, actual death, the speaker in "Come Quietly or the Neighbours Will Hear" comes to claim her own agency and makes her voice heard by others and taken into account. (shrink)

Did the Gulf War defend moral principle or Western oil interests? Is violent pornography an act of free speech or an act of violence against women? In _Casuistry and Modern Ethics_, Richard B. Miller sheds new light on the potential of casuistry—case-based reasoning—for resolving these and other questions of conscience raised by the practical quandaries of modern life. Rejecting the packaging of moral experience within simple descriptions and inflexible principles, Miller argues instead for identifying and making sense of the ethically (...) salient features of individual cases. Because this practical approach must cope with a diverse array of experiences, Miller draws on a wide variety of diagnostic tools from such fields as philosophy of science, legal reasoning, theology, literary theory, hermeneutics, and moral philosophy. Opening new avenues for practical reasoning, Miller's interdisciplinary work will challenge scholars who are interested in the intersections of ethics and political philosophy, cultural criticism, and debates about method in religion and morality. (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal responsibility and (...) directed more at empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

A few years ago, I found myself sitting next to a renowned Language poet at a poetry reading in a crowded downtown Manhattan venue. A longtime fan, I introduced myself and shared with him that I had just taught some of his infamously challenging poems in a poetry class at Tel Aviv University and that students were very responsive. When I mentioned that it was hard to get hold of some of his books but that we had found the poems (...) online, he told me how glad he was that, thanks to the internet, his work is accessible in Tel Aviv and everywhere else. Unable to resist the temptation to play language games with a Language poet, I responded by saying that his work was actually far from accessible. This pun/paradox seems to me to apply as well to the online archive UbuWeb—a “pirate library consisting of hundreds of thousands of freely downloadable avant-garde artifacts.” Founded in 1996, UbuWeb provides access to cultural artifacts in the form of video, text, and sound, works that are difficult to access not just because they are obscure, forgotten, unknown, rare, out of print, or otherwise hard to find, but because, as avant-garde, part of their operation involves, let us say, problematizing accessibility.UbuWeb's story is the subject of Duchamp Is My Lawyer, an accessible memoir/manifesto, deftly written by its founder and near-sole operator, the luminary conceptual artist Kenneth Goldsmith (“UbuWeb is mostly just me”). Its title, which Goldsmith takes from Virgil Abloh, raises at least two questions: Why does Ubu need a metaphorical lawyer, and why would Duchamp fill the bill? The first question has to do with the precarious legality of the website, which, as Goldsmith tells us in detail, almost never asks for permission from copyright holders, uploading materials first and dealing with consequences later. Much of the book deals with the maneuvering involved with “hiding in plain sight”—interpreting “fair use” broadly, and standing up to scary-sounding cease-and-desist letters that sometimes come from parties who are not even the actual rights holders of the material. Instead of playing the game of compliance, Ubu partakes in an anti-capitalist, free-for-all gift economy, never paying or asking for payment for the priceless treasures it houses. The democratic vision seeps into the selection and organization of the material on the website, which throughout the book Goldsmith describes as boundary-blurring, jumbled, unstable, biased, subjective, incomplete, fluid, idiosyncratic, and nonhierarchical.But again, why Duchamp? Ushering in an entire avant-garde tradition that Ubu celebrates, archives, and manifests in its own rebellious, outlaw spirit of operation, Duchamp, a hero in the book and, presumably, for its author, functions as both precedent and justification. After all, Ubu duplicates what Duchamp did in his most famous artistic intervention: the repurposing of found objects. In that sense, as Goldsmith writes, “UbuWeb can be considered one enormous appropriative artwork, a giant collage, which appropriates not a single object but rather the entire history of the avant-garde.” While the word entire is perhaps a stretch (and inconsistent with Goldsmith's many descriptions of the site's collection as inevitably partial and subjective), UbuWeb is best appreciated, I think, as a giant work of art made of works of art (some of which are themselves, in the tradition of “found art” and collage, made of works of art), a creative noncreation and akin to Goldsmith's own notion of “uncreative writing.” The radical accessibility it offers, from which so many users around the world continue to benefit, has thankfully not curtailed the equally radical inaccessibility of the material within. (shrink)

Paradox and origin : on the structure of legal communication -- History, law and hermeneutic self-reference -- Self-mastery and the conversion of force : an ethics of freedom -- The social metaphysics of law : Vico's communicative body and the paradoxical grounding of freedom and authority -- The creative formation and foundation of society's law : on the nature of poetic wisdom -- Between freedom and authority : Vico's history of roman law -- The technique of command : on (...) the problem of freedom in Weber's sociology of law. (shrink)

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the (...) twin evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.

Legalistic discourse, lawyers and lawyering had minor representation during the 2011 summer protest events in Israel. In this paper we explore and analyze this phenomena by employing content analysis on various primary and secondary sources, among them structured personal interviews with leaders and major activists involved in the protest, flyers, video recordings made by demonstrators and songs written by them. Our findings show that participants cumulatively produced a pyramid-like structure of social power that is anchored in the enterprise of organizing (...) the protest. Our findings explicate how the non-legalistic and even anti-legalistic discourse of the protest was formed, shaped and generated within the power relations of the protest, and how a pyramid of power produced a new poetics of protest that rejected the traditional poetics of state law. The power relations that generated the discourse regarding state law were embedded in socioeconomic stratification along the divide of center and periphery in Israel. (shrink)

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.”. (shrink)

Comparative religion scholar Thomas Berry’s influential concept of “Earth jurisprudence” has been helpfully elaborated in three principal books. My first section identifies four of their common themes, deriving therefrom an implicit narrative: (1) the basis of ecology is autopoiesis, which (2) originally generated human communities and Indigenous vernacular laws, which were (3) later reasserted by forest defenders who fought to create the Magna Carta’s “Charter of the Forest,” which is (4) now championed globally by the Indian physicist and eco-activist Vandana (...) Shiva’s Earth Democracy movement. My next three sections identify mutually exclusive elements of the three books, deriving the following alternative narrative: self-conscious new dancing rituals (Cullinan) could empower an historically informed reconstruction of private property (Burdon) via commons-based vernacular law (Weston and Bollier). And my conclusion offers one template for such a strategy, namely a new environmental variation on my dancing-poetic conception of legal justice, christened “emerald star-law.”. (shrink)