Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that (...) in 36% of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) _Improving Access to Services for Persons with Limited English Proficiency_, law enforcement still doesn’t have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights. (shrink)

In my paper I will analyze decisions of the Russian Constitutional Court and courts of general jurisdiction, in which they interpret ordinary and seemingly unambiguous words and phrases. In a number of cases this interpretation is made in a manner, which is suspect from a linguistic point of view. The analysis shows that there is no consistency in the application by Russian courts of the “plain language” rule and that literal interpretation may be used selectively as a means of (...) legitimizing the decisions made on non-linguistic grounds. Though literal interpretation can be often incompatible with the concept of justice and therefore judges should also take into account other criteria, there are examples of court decisions, in which literal interpretation would have been more appropriate from the perspective of justice, separation of powers and human rights. The article shows how use and misuse of language by judges is employed as a tool in judicial decision-making. (shrink)

This article recognizes that linguistic prejudice (with its associated cultural biases) is a reality in any multilingual country, including South Africa. Prejudice is inherently human and the article suggests that it can be both positive and negative. In the case of the Senzo Meyiwa murder trial the article suggests that the linguistic prejudice experienced by witnesses and legal practitioners was largely negative. Even though the South African Constitution suggests an empowering multilingual environment where there are now twelve official languages, in (...) contrast to this, the article takes as a point of departure the monolingual language of record policy that has been in place in the South African legal system since 2017. This is contrary to the constitutional imperatives. It is argued that this policy negatively impacts witnesses and legal practitioners and that the Meyiwa trial is a case in point. It is found that in this trial there is linguistic prejudice (practiced by the presiding judge) where there are linguistic or cultural voids related to communicative inequality and where the speaker does not have sufficient English vocabulary to proceed. It is concluded that the interpretation process also has its challenges and that ideally the use of African languages as languages of record in courts could only aid the delivery of social justice and the implementation of language rights in a multilingual and multicultural country such as South Africa. (shrink)

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of (...) class='Hi'>language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation. (shrink)

SummaryIn his doctoral dissertation—The Concept of Criticism in German Romanticism, finished in 1919 and published as a book in 1920—Walter Benjamin explores the epistemological and aesthetic foundations of the concept of criticism expounded by the early German Romantics Friedrich Schlegel and Novalis. Many of the themes in the dissertation recur in his later work, which has led scholars to believe that much of Benjamin's thought is directly influenced by the Romantics. However, a detailed investigation of the origins and development of (...) the dissertation reveals that the picture is much more complicated. Reading the dissertation alongside the biographical material now available, this article argues that the major themes which preoccupy Benjamin in The Concept of Criticism in German Romanticism, including his theories of language and knowledge as well as his messianic philosophy of history, in fact predate his study of the Romantics. As well as being a potential entry ticket to an academic career, the dissertation constitutes Benjamin's first sustained attempt to develop and consolidate his own epistemology and aesthetics in a more or less systematic way. He does so through a series of ‘judicious interpretations’ of the Romantics, whose work he reads selectively, anachronistically and creatively to provide a vehicle for his own thought. (shrink)

Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection in any specific system (...) of judicial constitutional review must incorporate two types of calculation. The first must compare incidences of the invalidation of ‘wrong’ statutes (on the ‘gains’ side) with invalidations of ‘right’ statutes and cases of upholding ‘wrong’ statutes (on the ‘losses’ side). The second looks at the gains and losses resulting from the very existence of the system of judicial review (rather than the specific cases that have been upheld or invalidated). It thus recognizes the deep disagreement between individuals about their preferred interpretations of constitutional rights. Under some conditions, the results of this matrix may be modified by arguments about an overlap in preferred articulations of constitutional rights, prudence, and the deliberative nature of the courts that exercise constitutional review, and the paper concludes with a discussion of how this can occur. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us. (shrink)

This book, formed as a series of essays in honour of Professor Carl Baudenbacher, addresses the very art of judicial reasoning, and features contributions from many of the foremost current or former national, supranational, or international judges. This unique volume is intended first and foremost for legal scholars, but its approachable style makes it readily accessible for students and for those with a general interest in the application of the law and justice in today's multi-layered world. The collection of (...) essays is rather more philosophical and reflective as opposed to doctrinal. Each contribution focuses on the nature and operation of justice, the independence of the judiciary, and on judicial style primarily from the perspective of the judges themselves. The book provides perspectives on what it means to be accountable and independent as a judge, the role of language and languages in the quest for justice, while other contributions acquaint readers with the some of the structures of courts themselves, or indeed question for whom judgments are written. Each chapter has been written by a presiding judge, or head of an institution and the book is divided into three parts: - Part I Art and Method - Part II Justice and the Judiciary - Part III Reasoning and Language(s). (shrink)

H. L. A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules”. Specifically, the paper undertakes three projects. The first project is to defend the importance of the fundamental picture that Hart presents in (...) Concept, Chapter 7 of Common-Law judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established. The third is to argue that Hart is his own worst enemy. The language, metaphors and images he uses to present his account of common-law judicial rule-making open the way to Dworkin’s critique. They also reveal Hart, if the language, metaphors and images are taken seriously, to be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7 criticising.Resumen:El concepto de derecho (1994) de H. L. A. Hart, contiene muchos pasajes que se han convertido en íconos de la teoría jurídica. Este artículo se concentra en el capítulo 7, sección 1 y 2, y en los comentarios que realizara Hart sobre la discreción judicial en el contexto de la bien conocida crítica de Dworkin a esta misma idea en su ensayo “El modelo de las normas”. Específicamente, el artículo emprende tres proyectos. El primero de ellos consiste en defender la importancia del esquema fundamental que ofrece Hart en el capítulo 7 de su obra, esto es, la creación judicial de normas en el Common Law. Hart representa tal creación de normas como un balance de certeza y flexibilidad; y él está en lo correcto al presentarlo de tal modo. El segundo proyecto consiste en argumentar que la crítica de Dworkin al modelo positivista de la creación judicial de normas en el Common Law, como un ejercicio de “discreción fuerte”, no está sustentada. La idea —central para el significado de “discreción fuerte”— de que los tribunales no están “sujetos a criterios establecidos por la autoridad en cuestión” no puede ser establecida. El tercer proyecto consiste en argumentar que Hart es su peor enemigo. El lenguaje, las metáforas e imágenes que emplea para exponer su teoría de la creación judicial de normas en el Common Law abre la puerta a la crítica dworkiniana. Si tomamos en serio el lenguaje, las metáforas y las imágenes, encontraremos a un Hart del tipo formalista o deductivista sobre la adjudicación, justo como el que él mismo está abiertamente cuestionando en el capítulo 7 de El concepto. (shrink)

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to (...) be unreliable because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

This paper investigates the role of (DIS)RESPECT a value premise in two landmark civil rights cases given by the United States Supreme Court. It adopts a corpus-assisted approach whereby a keyword analysis and the analysis of key semantic domains are used to identify potential values relied upon by judges in their justifications. The two categories of NO RESPECT and RESPECTED have been selected and examined as one domain of (DIS)RESPECT. (DIS)RESPECT turns out to be the only value marked by strong (...) evaluative polarity and it is found in the majority, as well as in dissenting opinions. The analysis shows how the notion of (DIS)RESPECT has been integrated into the arguments of judges and it highlights the central importance of values and the related evaluative language for legal argumentation. (shrink)

Bringing together leading scholars in the fields of criminology, international law, philosophy and architectural history and theory, this book examines the interrelationships between architecture and justice, highlighting the provocative and curiously ambiguous juncture between the two. Illustrated by a range of disparate and diverse case studies, it draws out the formal language of justice, and extends the effects that architecture has on both the place of, and the individuals subject to, justice. With its multi-disciplinary perspective, the study serves as (...) a platform on which to debate the relationships between the ceremonial, legalistic, administrative and penal aspects of justice, and the spaces that constitute their settings. (shrink)

The frustration in Polish society arising from excessive costs of conducting court proceedings and lengthy delays for dispute resolution has resulted in a genuine limitation in access to judicial justice for citizens. This paper argues that the answer to the dilemma between ensuring both justice and efficiency lies in language being a tool for the active participation of the parties in building mutual trust and shaping solutions in conflictual circumstances. How should the postulate of effective communication leading to (...) dispute resolution in modern justice be achieved? The authors present the advantages of oral communication in proceedings on the way to finding agreement, pointing out the content and quality of language that make dispute resolution possible. (shrink)

The prediction of legal judgments is one of the most recognized fields in Natural Language Processing, Artificial Intelligence, and Law combined. By legal prediction, we mean intelligent systems capable of predicting specific judicial characteristics such as the judicial outcome, the judicial class, and the prediction of a particular case. In this study, we used an artificial intelligence classifier to predict the decisions of Brazilian courts. To this end, we developed a text crawler to extract data from (...) official Brazilian electronic legal systems, consisting of two datasets of cases of second-degree murder and active corruption. We applied various classifiers, such as Support Vector Machines, Neural Networks, and others, to predict judicial outcomes by analyzing text features from the dataset. Our research demonstrated that Regression Trees, Gated Recurring Units, and Hierarchical Attention Networks tended to have higher metrics across our datasets. As the final goal, we searched the weights of one of the algorithms, Hierarchical Attention Networks, to find samples of the words that might be used to acquit or convict defendants based on their relevance to the algorithm. (shrink)

Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of State v. Loomis, we investigate (...) recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018). (shrink)

The centrality of argumentation in the judicial process is an age-old acquisition of research on legal discourse. Notwithstanding the deep insights provided by legal theoretical and philosophical works, only recently has judicial argumentation been tackled in its linguistic dimension. This paper aims to contribute to the development of linguistic studies of judicial argumentation, by shedding light on evaluation as a prominent aspect in the construction of the judge’s argumentative position. Evaluation as a deep structure of judicial (...) argumentation is studied from a discursive point of view entailing the analysis of a sample of authentic judicial language. Evaluative lexis is investigated within a single genre of judicial discourse, i.e. judgments, instantiated by a corpus of US Supreme Court judgments. Findings show that judges use diversified strategies to take stance as they organise their argumentative discourse: from easily recognisable verbal and adjectival tools to more finely-grained discourse elements such as the encapsulating pattern ‘this/these/that/those + labelling noun’. (shrink)

Dastur is well respected in France and Europe for her mastery of phenomenology as a movement and her clear and cogent explications of phenomenology in movement. These qualities are on display in this remarkable set of essays. The book is organized into four areas of inquiry: Language and Logic, Ego and Other, Temporality and History,and Finitude and Mortality. In each, Dastur guides the reader through a series of phenomenological questions that also serve to call phenomenology itself into question, testing (...) its limits and pushing it in newdirections. Taking a cue from Merleau-Ponty, Dastur sees phenomenology not as a doctrine, a catalogue of concepts and catchphrases authored by a single thinker, but rather as a movement in which several thinkers participate, each one contributing to and inflecting the development of the movement in unique ways. She thus draws inspiration from Husserl, Heidegger, Merleau-Ponty, Levinas, Ricoeur, Gadamer, Fink, and Patocka, moving with ease from one thinker's conceptual vocabulary and outlook to the next's, feeling at home in each, and communicating their central ideas with clarity.Through her critical and productive dialogue with multiple phenomenological thinkers, Dastur concisely shows one thinker's debts to and departures from another and reveals the limits of one's approach while highlighting the innovation of another's. She does this judiciously, without choosing sides, because for her, phenomenology is above all a way of thinking through a problem and practicing a method. The fecundity of the movement is appreciated only by participating in it--it has always thought of itself as philosophical research undertaken by and through a community of thinkers who share certain fundamental questions and ways of approaching those questions, even if their responses to these questions often differ. In this regard, Dastur is both one of the clearest guides to phenomenology and one of France's most able practitioners of phenomenology. (shrink)

Ah, emojis ☺. Some enthusiastically speak of them as a new universal language. In 2015, the Oxford English dictionary crowned one of them as its word of the year. Sixty million are exchanged daily on Facebook. Along with emoticons and various other smileys, emojis are now part of daily communications. Visual add-ons or superscript, they are meant to indicate intent or add emotions to written messages, which do not benefit from the tone or body language of the interlocutor. (...) As such, they present themselves as tools for clarification, but one can wonder if they do not, too, introduce uncertainty in language. Aimed at barristers as well as jurilinguists, this paper seeks to underline some design and perception biases that can hinder communication, with a focus on rules of evidence and legal methodology. Empirically rooted in Canadian case law, the findings resonate in other jurisdictions, as emojis, indeed, are a global phenomenon. (shrink)

The issue of hate speech is widely present in the Balkan Peninsula and although it has a serious impact in inter-ethnic and inter-religious relations, it has never been addressed properly by the academia or the judicial systems. This paper aims to outline the main principles that define hate speech from the linguistic and legal perspective. Throughout the paper several international cases of hate speech are cited along with the measures that western European countries take in order to minimize the (...) level of stereotypes and public discrimination. In the second part, the paper brings examples from degrading hate speech cases coming from public figures in Macedonia. In addition, a few comparative cases from the international practice have been cited in order to perceive if an egalitarian society is possible in Macedonia from the aspect of language usage without the hatred constituents by aiming to develop an acceptable public discourse for all. (shrink)

Research on legal discourse has developed according to a variety of perspectives. As for descriptive accounts, two approaches are noteworthy. Firstly, Anglophone scholars have dealt with legal language from a genre-based viewpoint. Secondly, French studies have focused on argumentation in judicial texts, by considering the forms of reasoning involved in it and, albeit more rarely, its linguistic constituents. This paper aims at reinforcing the linguistic component of the analysis of legal discourse, by carrying out a corpus-based genre analysis (...) on a sample of 40 judgments. First of all, the results of the investigation of the genre structure of judgments will be presented. The comparative approach adopted will show that the differences between European and English/Irish judgments mainly concern the generic move Arguing the case. Secondly, analysis will concentrate in more detail on one of the most frequent tools used in the discursive construction of argumentation within the aforementioned move, i.e. the widely spread reporting verb HOLD. A study of its concordances suggests that it is used in all types of judgments as a meta-argumentative operator signalling either an authoritative stance taken by the Court or an equally authoritative reported argumentation of another judge or court. (shrink)

This paper analyses two methods commonly used to understand legal language: deontic logic and the analysis of concepts taken as fundamental for any one or more areas of the law (sometimes called the philosophical foundations of law project). In doing so I introduce what I call the phenomenon of linguistic regress, and I do so in order to show why and how these methods necessarily fail as theories of legal language. I argue, in short, that any form of (...) content-determination of concepts or norms fails as a method for understanding legal language because of the phenomenon of linguistic regress. Given the failure of these two methods, I argue that legal theorists should instead adopt an approach that focuses on explaining the community-based use of commonly-recurring terms and phrases found in legal language - a use, furthermore, that is most commonly exercised by legal experts (of varying degrees of skills), operating in different and interacting contexts of expertise (judicial, legislative and scholarly), and more broadly, as members of a legal community not impervious to influence from other kinds of communities. (shrink)

This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking behind judicial decisions. It offers a comprehensive account of the ongoing debate, as well as a novel solution to the problem of understanding legal pragmatics. Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses (...) the question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making. (shrink)

Language-related right in the legal proceedings is mostly associated with access to interpreting. Literature on the bilingual courtroom primarily centres on the role of interpreters in the intercultural communication. This paper, drawing on discourse analysis of a case study in a Chinese criminal court, investigates the atypical role played by an interpreter when she ceases to be an active participant in the bilingual interaction. It discusses how language ideology underlying the judicial practice could transform the role of (...) the interpreter and convert the bilingual arterial into a monolingual one. Situating the analysis in the wider social and legal context of Chinese criminal justice system, this paper attempts to explain and interpret the judicial behaviour to keep the interpreter silent and the impact on the language rights enjoyed by the minority-language-speaking defendants. (shrink)

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing (...) out, but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected. (shrink)

Unit I. Fundamental characteristics of the common law. The source of law -- The jury -- The adversary system of trial -- Retroactivity: a return to stare decisis -- Unit II. The courts and their jurisdiction. Court systems in the United States -- Court system in England -- Unit III. Constitutional law. Judicial review -- Equal protection -- Freedom of speech -- Appendix I. Constitution of the United States -- Appendix II. Table of Supreme Court cases -- Appendix III. (...) Common case citations. (shrink)

Against the assumption that legal and normative systems are coextensive with geopolitical units and national spaces, the article advocates for the need to study how different legal and normative semiospheres, within the same geopolitical unit and national space, often give rise to ‘normolects’ that are transversal to socio-economic classes, ethnicities, and cultural lifestyles. The concept of legal and normative ‘imaginaries’ is useful to come to terms with the legal and normative semiotic ideology of such normolects, including their non-verbal dimension and (...) legal-normative semiotic ideologies. More generally, the article prompts legal scholars, and particularly semioticians of law, not to focus exclusively on inter-cultural awareness in legal-normative language but to concentrate also on intra-cultural awareness. As a case study, the article analyses a drawing through which the former Italian Prime Minister Silvio Berlusconi visualized and advertised for a bill of reform of the Italian judicial system by his Minister of Justice, Angelino Alfano. The semiotic analysis of this visual artifact casts new light on the controversial political and judicial figure of Mr Berlusconi. The drawing is read as a visual embodiment of the conflict between two different legal and normative ideologies within the present-day Italian political and judicial arena. The paradoxes that underpin this iconography of law and mar a rational confrontation of legal-normative arguments in contemporary Italy are uncovered. (shrink)

The ArgumentAmerican eugenics developed out of a cultural tradition independent of medicine. However, the eugenicist Harry Hamilton Laughlin and some legal experts involved in eugenic practice in the United States used medical language in discussing and evaluating enforced eugenic sterilizations. They built on medicine as a model for healing, while at the same time playing down medicine's concern with its traditional client: the individual patient. Laughlin's attitude toward medicine was ambivalent because he wanted expert eugenicists, rather than medical experts, (...) to control eugenic practice. In contrast, legal experts saw eugenics as an integral part of medicine, though one expert challenged basing the judicial system on eugenically minded medicine. All in all, the medicalization of American eugenics involved expanding the scope of medicine to include the mutilation of individuals for the benefit of society. The judicial system was medicalized in that an expanded medicine became the basis of legislation in the thirty states that permitted eugenic sterilizations. (shrink)

What is attempted in this book is a presentation of various areas of science in such ways that their attendant philosophical problems are displayed, and their philosophical relevance is made evident. Essentially, there are three parts to the book: the first, comprising chapters on the nature of number, geometry, and the mathematical treatments of motion and measurement, presents the usual problems of conventionalism in geometry, physical vs. formal geometry, but also discusses Turing machines and information theory. The next five chapters (...) analyze the laws of motion, probability, chance, and credibility, order in nature, and the conceptual structure of modern physics. The last four chapters constitute a study of evolutionary theory, psychology, ethics, and economic theory, the last topic not often appearing in studies of scientific philosophy. The selection of topics is judicious and balanced, but the author often overuses certain ideas and theories, for example, information theory, as both heuristic devices and as factually true of various situations; in this sense he is misleading and conceptually unrigorous. A number of illustrations, visually interesting and enlightening, help to add interest.—P. J. M. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 27.1 (2003) 21-39 [Access article in PDF] Capability and Language in the Novels of Tarjei Vesaas Catherine Wilson I THOUGH RELATIVELY UNKNOWN to English-speaking readers, Tarjei Vesaas (1897-1970) is recognized as one of the great Scandinavian novelists and literary innovators of the last century. His oeuvre is substantial, extending to thirty-four volumes published between 1923 and 1966, many of them translated into English and European (...) languages. He was one of four nominees for the 1964 Nobel Prize in literature, and he received a number of other awards and citations in the course of his life. At the same time, his work has failed almost entirely to generate a secondary literature going beyond plot summary, stylistics, and moral approval, and even that literature remains strongly regionalized. 1 Vesaas wrote in nynorsk or "New Norwegian," the minority language of the country created from south-central dialects and distinct from the official, bureaucratic bokmal. He settled permanently on a farm in the remote Telemark district of Norway and assumed no role in European culture as critic or essayist, refusing to discuss his own work in literary or philosophical terms. As a result, analytic and comparative studies have proved difficult to launch.The present essay is intended to provide one such analytical study, addressed specifically to the philosophical themes of ethical resignation, the precariousness of communication, and inwardness. These are familiar themes in twentieth-century literature. In his study of the "literary conquest of the void," R. M. Adams shows how Moravia, Musil, and Beckett amongst others make use of devices of paralysis, immobility, exhaustion, and incomprehension that have their origins in the romantic literature of the nineteenth century, notably in Baudelaire [End Page 21] and Gogol. 2 Literary modernism rejected certain nineteenth-century conventions of plot and character, but did not abandon the fascination of the preceding century with nihilistic themes. Vesaas's work demands to be read in this literary context. The novels, at once semirealistic and highly stylized, deal almost exclusively with rural people and their struggles against the elemental forces of nature. The main characters are often children and adolescents who suffer some degree of helplessness. Simple contrasts are posed: warmth and cold; loss and retrieval, childbirth and death. Agricultural cycle motifs abound. The choice of protagonists and the dominance of vitalistic and biological themes pose the threat of sentimentality and preciousness, but it is avoided by the ubiquity of devastation and destruction in the moral landscape. According to Randi Brox's note in the Dictionary of Scandinavian Literature, the early novels in particular "advocate as the highest goal in life an accepting, contented attitude toward the human condition." 3This judgment reflects what might be termed a judicial-theological picture of fiction. On this view, a novel constitutes a testing ground for discovering what sort of world we live in and what pursuits are possible and worthwhile. Various alternatives are set up as hypotheses, and novels prove and disprove them through narrative demonstrations of the causal effects of adopting them. False theories of the human world and untenable values are subject to refutation. This template is surprisingly useful, not only with respect to the nineteenth-century novel, with its apparent tendency to confident judgment, but even to modern fiction. Moravia, for example, can be seen to be awarding divergent roles to characters and allowing the qualities they represent to struggle for supremacy. 4Yet poststructuralist and postmodernist criticism have cast doubt on the notion that, to the extent that they are important, such contests can ever be decided, and it is increasingly clear that the greatest nineteenth-century novelists, Hardy and Eliot, did not regard the hierarchy of values as settled and demonstrable. Persons, we are coming to understand, are more plausibly seen as sites of conflict; thus fictional representations of persons are repositories of opposing values. Vesaas's novels reflect such an understanding of persons and values, and so the judicial-theological template is inapplicable.The critical view that Vesaas's novels are essentially instructions in adaptation is untenable, because the goal of... (shrink)

H. L. A. Hart and the "Open Texture" of Language tries to clarify the writings of both Hart and Friedrich Waismann on "open texture". In Waismann's work, "open texture" referred to the potential vagueness of words under extreme (hypothetical) circumstances. Hart's use of the term was quite different, and his work has been misunderstood because those differences were underestimated. Hart should not be read as basing his argument for judicial discretion on the nature of language; primarily, he (...) was putting forward a policy argument for why rules should be applied in a way which would require that discretion. (shrink)

Unit I. Fundamental characteristics of the common law. The source of law -- The jury -- The adversary system of trial -- Retroactivity: a return to stare decisis -- Unit II. The courts and their jurisdiction. Court systems in the United States -- Court system in England -- Unit III. Constitutional law. Judicial review -- Equal protection -- Freedom of speech -- Appendix I. Constitution of the United States -- Appendix II. Table of Supreme Court cases -- Appendix III. (...) Common case citations. (shrink)

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure `brute facts' do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on `applicability rules'. The problem of `mixed terms' is partly a matter of (...) class='Hi'>judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure ‘brute facts’ do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on ‘applicability rules’. The problem of ‘mixed terms’ is partly a matter of (...) class='Hi'>judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)

For the first time in English, this anthology offers a comprehensive selection of primary sources in the history of philosophy of language. Beginning with a detailed introduction contextualizing the subject, the editors draw out recurring themes, including the origin of language, the role of nature and convention in fixing form and meaning, language acquisition, ideal languages, varieties of meanings, language as a tool, and the nexus of language and thought, linking them to representative texts. The (...) handbook moves on to offer seminal contributions from philosophers ranging from the pre-Socratics up to John Stuart Mill, preceding each major historical section with its own introductory assessment. With all of the most relevant primary texts on the philosophy of language included, covering well over two millennia, this judicious, and generous, selection of source material will be an indispensable research tool for historians of philosophy, as well as for philosophers of language, in the twenty-first century. A vital tool for researchers and contemporary philosophers, it will be a touchstone for much further research, with coverage of a long and varied tradition that will benefit today's scholars and enhance their awareness of earlier contributions to the field. (shrink)

A judicious collection of old and new, these volumes include sixteen essays published in the 1980s and 1990s, nine published since 2000, and six new essays.

The two volumes of Philosophical Essays bring together the most important essays written by one of the world's foremost philosophers of language. Scott Soames has selected thirty-one essays spanning nearly three decades of thinking about linguistic meaning and the philosophical significance of language. A judicious collection of old and new, these volumes include sixteen essays published in the 1980s and 1990s, nine published since 2000, and six new essays. The essays in Volume 1 investigate what linguistic meaning is; (...) how the meaning of a sentence is related to the use we make of it; what we should expect from empirical theories of the meaning of the languages we speak; and how a sound theoretical grasp of the intricate relationship between meaning and use can improve the interpretation of legal texts. The essays in Volume 2 illustrate the significance of linguistic concerns for a broad range of philosophical topics--including the relationship between language and thought; the objects of belief, assertion, and other propositional attitudes; the distinction between metaphysical and epistemic possibility; the nature of necessity, actuality, and possible worlds; the necessary a posteriori and the contingent a priori; truth, vagueness, and partial definition; and skepticism about meaning and mind. The two volumes of Philosophical Essays are essential for anyone working on the philosophy of language. (shrink)

Quentin Smith’s new book appears at a time appropriate for judgment of what analytic ethics and philosophy of religion have accomplished during a century of their existence. His emphasis is on ethics, presumably because only recently analytic philosophers have devoted attention to the philosophy of religion. Much of the book is a judicious historical account that distinguishes four stages in the development of analytic philosophy: logical realism, logical positivism, ordinary language analysis, and what Smith calls linguistic essentialism. It begins (...) with a sympathetic discussion of Moore’s Principia Ethica, which, mainly through the discussion in its first chapter of simple and complex properties, and of definitions, inaugurated analytic ethics, indeed, together with Russell’s “On Denoting,” analytic philosophy generally. Moore’s chief interest was in substantive ethical propositions, e.g., that personal affection and aesthetic appreciation are the greatest goods, but his successors usually did not go beyond the first chapter, which alone is included in the standard anthologies. (shrink)

ABSTRACT The Plurinational Constitutional Court is the final arbiter of legal disputes involving the interpretation and application of the Political Constitution of the Plurinational State of Bolivia (2009) (BC). Its role is especially important given that the BC follows a type of decolonial ‘hybrid’ constitutional model that incorporates the Indigenous concept of Vivir Bien (VB) as part of their legal paradigm. Using tools from Case Law Analysis and Critical Discourse Analysis, this article explores the Court’s judicial interpretation and application (...) of VB and its principles to a legal dispute regarding Indigenous Peoples’ constitutional right to be consulted over government measures impacting their ancestral territories. The results indicate that the judges would foreground and background different aspects of the VB principles to support their views, resorting to their use in a hierarchical form that is not mandated in the BC. This shows a gap between formal incorporation and the practical application of the VB principles. This research informs the fields of legal studies, decolonial thought, and discourse studies. (shrink)

Over the last several decades legal scholars have plumbed law's rhetorical life. Scholars have done so under various rubrics, with law and literature being among the most fruitful venues for the exploration of law's rhetoric and the way rhetoric shapes law. Today, new approaches are shaping this exploration. Among the most important of these approaches is the turn toward history and toward what might be called an 'embedded' analysis of rhetoric in law. Historical and embedded approaches locate that analysis in (...) particular contexts, seeking to draw our attention to how the rhetorical dimensions of legal life works in those contexts. Rhetorical Processes and Legal Judgments seeks to advance that mode of analysis and also to contribute to the understanding of the rhetorical structure of judicial arguments and opinions. (shrink)

Through a selection of principal judicial decisions and significant fact situations from pre- and post-independent India, Pakistan, and Bangladesh, this volume provides an easy access to the basic principles and rules of Muslim law, and shows how case law acts as a social barometer and an instrument of change.