Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

“Opt in” and “opt out” mechanisms in the internet era – towards a common theory

In order to provide for adequate legal protection mainly in mass-transactions on the internet, both the legislature and private parties increasingly, resort to so-called “opt in” and “opt out” mechanisms. Whether or not an “opt in” or an “opt out” mechanism is used is often decided on a case-by-case basis. The same is true regarding the circumstances under which private parties are or should be allowed to resort to “opt out” mechanisms, and if so, what restrictions should safeguard the free will of the addressees of such mechanisms. This paper argues that the existing “opt in” and “opt out” schemes should not be regarded and discussed as isolated phenomena. Rather, they should be analyzed from the viewpoint of a common underlying legal theory which builds on the common character of the underlying regulatory structure of all “opt in” and “opt out” schemes. This requires a complex matrix which comprises not only the opposites of “in” and “out”, but also of “active” and “inactive”, of “preference” and “non-preference” for the respective default rules, as well as of “ex ante” and “ex post” enforcement of the law. It also involves normative, economic, psychological and, last but not least, technical issues.     

‘Factual causation’ and ‘scope of liability’: What's the difference?

According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non‐causal. This article accepts the basic two‐step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.     

Ricochet of AK bullets (7,62 × 39 mm) on concrete and cement surfaces; a forensic-based study

The ricochet behaviour of AK bullets (7,62 x 39 mm) on two different concrete samples (rough and a cement-skimmed intermediate) and one cement sample were explored in this study. The estimated critical angles for these surfaces were shown to be 10.8° and 11.1° for the rough and intermediate concrete surfaces and 13.2° for the cement surfaces. In all occasions, fragmentation of the bullets was observed upon reaching critical angles. The results from the concrete surfaces highlighted the sensitivity of AK bullet ricochet angles from concrete surfaces with a different surface roughness and composition. Almost all resulting ricochet angles for the more frangible cement surfaces were observed to be much higher than currently reported literature would suggest. Consistent bullet wipe markings were observed on most samples, acting as a strong indicator for the directionality of the projectile during ricochet. Interestingly for the cement surface, a clear relationship was reported between the angle of incidence and the depth of the crater produced. Ultimately, this study highlights the potential uncertainties and possible errors that could occur in bullet trajectory determination from ricochet marks for this bullet and target combination if theoretic interpretations alone are used. There is no substitute for bullet and surfacespecific practical trials if the most accurate shooting scene reconstructions are to be carried out.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

What does “knock and announce” mean? An analysis of<Emphasis Type="Italic">Wilson v. Arkansas</Emphasis> and its progeny

The U.S. Supreme Court held in Wilson v. Arkansas (1994) that the common law “knock-and-announce” principle formed part of the “reasonableness” inquiry under the Fourth Amendment. However, the Court’s opinion gave little guidance as to what would be unreasonable under these circumstances. Some critics expressed concern that this lack of guidance would lead to many variations among lower courts. Other observers discerned a signal that little should be deemed “unreasonable” in the context of “knock and announce.” These criticisms are analyzed through a review of lower court interpretations of Wilson.     

<Emphasis Type="Italic">Mokṣa</Emphasis> and <Emphasis Type="Italic">Dharma</Emphasis> in the <Emphasis Type="Italic">Mokṣadharma</Emphasis>

This essay asks what the terms mok?a and dharma mean in the anomalous and apparently Mahābhārata-coined compound mok?adharma, which provides the title for the ?āntiparvan’s third and most philosophical anthology; and it further asks what that title itself means. Its route to answering those questions is to look at the last four units of the Mok?adharmaparvan and their three topics—the story of ?uka, the Nārāya?īya, and a gleaner’s subtale—as marking an “artful curvature” that shapes the outcome of King Yudhi??hira’s philosophical inquiries of Bhī?ma into a ”return” to this world to take up the topic of the fourth anthology, a King’s generous giving, in the Anu?āsanaparvan’s Dānadharmaparvan. Usages of the term mok?a in the narratives in these units are considered in the light of The Laws of Manu’s usage of mok?a to define the “renunciatory asceticism of a wandering mendicant” after the fulfillment of one’s debts (Olivelle et al., in Life of the Buddha by A?vagho?a, 2008). Usages of mok?adharma are discussed in conjunction with its overlapping term niv?ittidharma. With the term dharma itself, it is a matter of finding the best contextual translation. A pitch is made that these four units, and particularly the Nārāya?īya, should no longer be thought of as “late” additions.     

Derrida’s <Emphasis Type="Italic">The Purveyor of Truth</Emphasis> and Constitutional Reading

In this article the author explores Jacques Derrida’s reading in The Purveyor of Truth of Edgar Allan Poe’s The Purloined Letter. In his essay, Derrida proposes a reading which differs markedly from the interpretation proposed by Lacan in his Seminar on ‘The Purloined Letter’. To appreciate Derrida’s reading, which is not hermeneutic-semantic in nature like that of Lacan, it is necessary to look at the relation of Derrida’s essay to his other texts on psychoanalysis, more specifically insofar as the Freudian death drive is concerned. The present article explores this ‘notion’ as elaborated on by Freud in Beyond the Pleasure Principle as well as Derrida’s reading of this text. It also investigates the importance of the ‘notion’ of the death drive as well as the significance of Derrida’s reading of The Purloined Letter for constitutional interpretation. This is a modified version of a paper presented at the Critical Legal Conference, 14–16 September 2007 at Birkbeck Law School, University of London.

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‘Hermann Heller and the European Crisis: Authoritarian Liberalism Redux?’

This essay tentatively buttresses Alexander Somek's view that Hermann Heller's 1933 essay, ‘Authoritarian Liberalism’, provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro‐business policies while undermining basic liberal and democratic rights. Heller's unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller's analysis of the Weimar crisis to the contemporary setting. In particular, Heller's theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left.     

‘Inheritance Families of Choice’? Lawyers' Reflections on Gay and Lesbian Wills

This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.     

The <Emphasis Type="Italic">Mahābhārata</Emphasis> and the Revival of Brahmanism

There are good reasons to think that Brahmanism initially belonged to a geographically limited area, with its heartland in the middle and western parts of the Gangetic plain. It was in this region that Brahmanism was at that time the culture of a largely hereditary class of priests, the brahmins, who derived their livelihood and special position in society from their close association with the local rulers. This situation changed. The most plausible hypothesis as to the reasons of this change sees a link with the political unification of northern India, begun by the Nandas and continued by the Mauryas. Both the Nandas and the Mauryas had their home base in the region called Magadha and had no particular interest in brahmins and their sacrificial tradition. As a result Brahmanism as an institution was under threat; it either had to face disappearance, or reinvent itself. It did the latter. Brahmanism underwent a transformation that enabled it to survive and ultimately flourish in changed circumstances. This paper will argue that the Mahābhārata can be looked upon as an element in this Brahminical project. Far from being a mere collection of stories and general good advice, it was an instrument in the hands of a group of people who were determined to change the world in ways that suited them, and who to a considerable extent succeeded in doing so during the centuries that lay ahead.     

<Emphasis Type="Italic">Avivakṣitavācya-dhvani</Emphasis> and the Deterritorialization of Signifier: A Liberating Experience for Language,Author and Reader

This paper aims to make an anti-canonical reading of the avivak?itavācya-variety of dhvani conceptualized by the ninth century Sanskrit literary critic ānandavardhana in his seminal work Dhvanyāloka. In this paper, I argue that avivak?itavācya-dhvani opens up a signifier to new significations that are not conventionally associated with it through a process of deterritorialization. In any language, convention functions as a structuring mechanism upon a signifier by clearly demarcating a rigid semantic ambit for it. By the term ‘conventional semantic ambit’, I mean the boundary of signification set by convention for each signifier. The primary problem associated with the imposition of a definite territory upon a signifier is that it prevents an individual signifier from representing any new significations that are not conventionally attached to it. For example, in the conventional semantic ambit, the word ‘cat’ cannot represent the idea of a ‘dog’. In the act of mapping a fixed territory for each signifier, convention also structures the individual-user of the language by forcing him or her to confine to a specific plan of dealing with signifiers. Thus, the individual user of language within a conventional semantic ambit is rendered absolutely passive, as s/he has nothing new to contribute or create, other than reproducing an always-already existing plan of functioning. It is precisely this structuring tendency of convention that gets challenged in ānanda’s avivak?itavācya-dhvani. Such a mechanism is definitely a liberating experience for both the signifier and the individual-users (both the author and the reader or speaker and listener) of the language who are forced to accept the signifiers in a specific fashion. Along with the exposition of avivak?itavācya-dhvani’s resistance to a signifier’s conventional semantic ambit, this paper also aims to conceptualize the figure of the reader that avivak?itavācya-dhvani anticipates for itself.