His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

Politics of Law and the Lacanian Real

The paper explores the role of Jacques Lacan’s Ethics of Psychoanalysis in debates in law and legal philosophy. It proceeds by considering a debate between Slavoj Žižek and Judith Butler over Lacan’s concept of the real, which forms part of a larger discussion over the future of democracy and the rule of law (Butler et al. 2000). Through reference to discussions of the relationship between law and ethics based on the Antigone tragedy, I argue that the difference between Žižek and Butler’s positions should not be understood in terms of the correctness of their reading of Lacan, but in terms of the political commitments that inform their respective interpretations. I explain the implications of this debate over one of Lacan’s most enigmatic concepts, thereby showing how Lacan’s theory can be used to rethink the politics of law in light of the increased emphasis on ethics in contemporary legal debates.     

The Role of Narratives in Legal Education

The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings, but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school.     

从“神话”到“鸡汤”——论转型期中国法律信任的建构

在法律信仰之争中,法律信仰怀疑论和否定论者主张法律信仰无论从历史还是现实都不适于中国,主张法律信仰的学者更多地是过分误读了伯尔曼"法律必须被信仰,否则将形同虚设"这句话,并据此做出了不合时宜的判断,因此其所主张的法律信仰更多地是一种"神话"。相对于作为"神话"的法律信仰,法律信任是一种"鸡汤",虽然它不能治病但富有营养,有助于社会肌体的康复和法律的有效实施。法律信任"鸡汤"的熬制,是一个系统工程,需要从法律内和法律外进行"综合治理"。其中,经过由更普遍的有效参与和更加公平的法律程序、实现经济的包容性增长以培养人们的乐观主义态度进而产生对法律的信任、从约束权力和反腐切入来打破法律信任不足-法律具文化这一恶性循环,是三种相对可行的路径。     

析中国电子银行业务中未经授权交易的损失承担

Though China’s present multi-level legal rules have provided necessary guidelines to assumption of losses from unauthorized transactions in e-banking business, such problems as lack of cohesion among legal documents, unified processing of clients, lack of clear principles of imputation, and disconnection between legal provisions and practices have in fact constrained the in-depth development of e-banking business. Thus, correct philosophies shall be adhered to and carried out on the basis of dialectic criticism and meanwhile, the specific institutional designs shall be further improved. Li Siqi, Ph.D, is a professor of Law at Hunan University. Prof. Li, specializing in financial law, has released 60 research articles or so. He is of the view that the practicability of law has made it certain that study on law should stick to the society-to-society rule, though scholars relatively emphasize rule-styled legal research and holds that financial law is composed of public law and private law. Moreover, the financial sustainable economic development means that the tenet of financial law centers on safety, but not absolutely on profit; and the relation of financial and legal innovation should not be considered only in the framework of financial law. The propensity of interest pursuit of capital will not only unduly affect assessor’s judgment, but it should be under the legal freedom. Only being coupled with abstract theory of freedom doctrine, China’s financial legal innovation may be clear. Thus, the legal research should not only stick to conventional legal value, but extend to the financial safety.     

论法律的有限性

法治社会至少是目前为止的一种理想社会状态,随着和谐社会观念的提出,法治社会进程或多或少迟缓了脚步,但其缓慢的进程恰恰是反思法治、改进法治继而为加快发展的时机。正如快速的奔跑难以容下迷思而闲庭信步催生灵感一样。过分对法律的迷信和过分对法律的轻慢均是法律建设不可取的态度;揭示法律的有限性并试图寻找克服其有限性的方法,是法律建设不可缺少的一个环节。     

Trading Signs: Semiotic Practices in Law and Medicine

Lawyers write, blog and are otherwise producers of words; they structure public life through legal discourse and integrate all issues that reinforce legal reasoning. Even if one is inclined not to justify the power of their words in the context of a democratic theory, one is hardly able to challenge its public acceptance. But semiotic analyses harden the question whether these emperors wear nothing but robes. That attitude intensifies where medicine becomes increasingly relevant for legal discourse, as becomes clear where for instance US political viewpoints bring bioethical issues to the Courts. One major theme in today’s medicine pertains to identity in its psychological, philosophical and social dimensions. Identity thus becomes a groundbreaking semiotic issue in law and medicine; both discourses are particular important to the otherness of the other. A US criminal law case interests here (Harrington v. State of Iowa, 2003; cited as: 659N.W.2d 509). The case is decided with “information about what the person has stored in his brain”. A chain of signs is involved: from “brain-function” to “brain-storage” via “brain-scan” to “brain-fingerprint”, for which the case became famous. A long series of signs and meanings belong here to intertwined discourses. Central is a particular sign in each discourse: “brain” means brain scan, and “fingerprint” means law! The two display trading mechanisms, which determine the otherness of the other and the self! The chain of signs in the Harrington case shows inter-disciplinarity in law and inter-discursivity among law and medicine. The trading itself underlines the semiotic dimensions in cyberspace, in particular the semiotics of the virtual (Hayles, Kurzweil) and their effects on legal discourse.     

Finding cover: Legal trauma and how to take care of it

As law originates in violence, it is always haunted by its constitutive trauma. Recourse to law's origin, which is implicitly or explicitly sought in (constitutional) adjudication, thus requires a way to deal with law's trauma. What is needed is a cover, to be provided through (legal) interpretation. Four such interpretive ‘cover up’ operations, all necessarily somewhat duplicitous, are discussed. The first three represent main currents in legal theory. First, the standard legal view, which denies the trauma but relies on traditional authority to cover it. Second, a ‘neurotic’ solution, in which trauma is also denied but nevertheless cover is produced through collective interpretation. In the third, ‘perverse’ solution, trauma is admitted, and even enjoyed; on the other hand, it is denied that cover can be produced by any interpretive authority. The fourth option provides an alternative: recognition of law's trauma, covering it through the collectively shared practice of interpretation. It is shown that an example of such a collective effort can be found in the Dutch practice of gedogen, the deliberate under-enforcement of law, which is capable of creating an ‘informal rule of law’ that deals with intractable social problems more successfully than attempts formally to enforce applicable law. This revised version was published online in November 2006 with corrections to the Cover Date.     

Non-State Actors in International Law: A Rejoinder to Professor Thirlway

That we consider the state-based system as best representing the individual is the product of a particular world view. A ‘naturalized myth’ renders inevitable the link between the physicality of the observable landscape and the state as a means of organizing a polity. This myth lingers on in international legal scholarship, although it has been debunked in other disciplines, notably in critical political geography. (Public) international lawyers can learn from their brethren in other disciplines and problematize the territorial state as a contingent political concept. Awareness of the social production of space may allow lawyers to imagine practices of resistance to the spatial status quo, in particular rights of non-state actors in the production of international law, alongside states, and obligations and responsibilities of non-state actors, especially where states have proved unable to properly assume roles of protection vis-à-vis individuals under their formal jurisdiction.

     

论中国和平发展与国际法的交互影响和作用

A peaceful and harmonious world is an important social basis for China’s peaceful development, and international law lays a legal foundation and guarantee for building such a world. In the “village of globe” with co-existence and economic globalization, international law provides China a peaceful development with legal certainty in external environment of peace and security, fair and equal international competitive order, and international cooperation; and on the other hand, it puts on an increasing legal restraint on the internal and external strategies of China’s peaceful development. At the same time, the peaceful development of China deems to make a great contribution to the world, which are the main subject of international law in peace and development, as well as to human rights, rule of law and democracy, which are the universal values pursued by international law. Zeng Lingliang, Ph.D of law, is presently a dean and professor in the Faculty of Law in University of Macau. He is an awardee of the Cheung Kong Scholars Award Program and Jean Monnet Chair of European Union Law in Wuhan University, and one of the first three individuals nominated by the China government on the list of panelists in the WTO. He has published many articles on WTO issues, EU law and international law, and his influenced monographs are European Communities and Modern International Law (1992) and its revised edition—European Union and Modern International Law (1994), Law of World Trade Organization (1996), International Law and China in the Early 21 ^st Century (2005) and the Essentials of EU Law—in the New Perspective of the Treaty on the Constitution for Europe (2007).     

Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

Plain English in the law — a new model for the 21st century

Abstract

Traditional language of the law is called “legalese” because it is difficult for those not trained in its mystery to understand. A myth about legalese is that it is necessary for certainty in law. This is untrue. The proponents of plain English have shown through their writing that the use of plain language in legal writing produces certainty in language that is easy to read and understand. This article looks at the history of the plain English movement and discusses its benefits, shows how legal writing can be improved by its use and, in the final section, briefly gives an illustration of how a culture of plain English writing can be embedded into a law school curriculum.     

Truth and Consequences: Law,Myth and Metaphor in American Indian Contested Adoption

This article considers the effects of the operations of myth and metaphor on law through a comparison of a United States Supreme Court decision and a novel that deal with the contested trans-racial adoption of an American Indian child. It argues that the United States founding myth of Manifest Destiny—of the divinely ordained fate of the continent to host a (white) Christian state—is determinative of the way in which legal decisions regarding American Indians are made. The myth of Manifest Destiny contains a metaphor of vanished American Indians, such that contemporary American Indians are rendered nearly invisible and whose existence is not easily absorbed into the working of the American legal system. The American Indian Child Welfare Act provides protections against assimilation for indigenous families and community, thus working at cross-purposes to the ultimate aim of Manifest Destiny. What happens in those instances when legal provisions and interpretation run counter to Manifest Destiny? Through the consideration of the situation of a contested adoption, this article reveals the heavy influence of Manifest Destiny in the Supreme Court decision, which is counter to the vision of a pluralistic culture envisioned in both the novel and the Indian Child Welfare Act (ICWA) itself. The consequences of legal resistance to ICWA for American Indian communities and as to the operation of the legal system itself are discussed.     

Living legal fictions: constituting the state or submerging the signifier?

This is an inquiry into the ways the state is constituted as an effective legal fiction. It is based on the premise that the state was not constituted, once and for all, some three centuries ago (as Bourdieu suggests) but that the existence of the state relies on continuing legal and social processes. The focus is on the translation from the legal to the social, specifically the semiotic interaction between law, space and daily life in the dynamics of this on-going mise en scène. This requires re-thinking a number of semiotic issues: first, Lefebvre’s challenge to a semiotics which neglects the place of the material (body, space) and, second, a challenge to Lefebvre’s assertions that the state operates in a realm of freedom in switching ‘at will’ between codes. Third, it is possible to question the conditions by which the state operates as a ‘floating signifier’, which maintains its domination by overwhelming us with its excess meanings. The inquiry proceeds by analysing the legal semiotics of space in different settings: the axis as an expression of legal and state power, from the courtroom to the capital city (Rome, Washington, Canberra), and street names with legal referents (Montréal and Mexico City, in addition to the above). After considering these self conscious attempts at meaning-making, the article concludes that the legal constitution of the state in urban space is not determined by a single wilful semiotic regime, but (taking insights from de Certeau) is contingent upon the interpretations and enactments of people who use the spaces. Except in the controlled environments of the courtroom and the planned capital city, everyday life is continually reconstituting the meanings of law and the state.     

Michael H. v. Gerald D.

The author attempts to apply semiotic analysis to a question of family law. By examining the language used by the Supreme Court in the title case, Michael H. v. Gerald D., along with the case briefs, lower court opinions, other Supreme Court cases and prior legal scholarship, the author attempts to determine the requisite relationships between father–child and father–mother in order for a legal tie to exist between a father and his biological child. The author tries to not only determine the necessary circumstances but also the political ideology that distinguishes these familial ties. The author further attempts to analyze the goals of these underlying political ideologies.     

Legal obligation as a duty of deference

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford.     

Indigenous rights discourse in Australia

The ability of Australia's indigenous people to create their own cultural identity and social reality is shaped profoundly by the Australian legal system in various ways. The 1992Mabo decision of the Australian High Court ‘created’ a right to land tenure for Australia's indigenous people. This ‘right’ has been further explicated by federal legislation in the post-Mabo era, in and around law. This essay analyzes the 1992Mabo decision in the context of governmental, judicial and wider social responses to indigenous issues. At several sites, it examines ‘indigenous rights’ discourse to illustrate the shifting meaning of ‘rights’ in legal currency in the indigenous debate. The essay suggests that the ‘rights’ discourse of legal liberalism has not yet provided meaningful plurality in the recognition of indigenous rights.     

Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.     

Legal ethnography: Exploring the gendered nature of legal method

Beginning with the idea of law as discourse, this essay examines the ways in which legal method is gendered. Texts, such as affidavits and court forms, and local ‘mundane’ practices are part of the production and affirmation of the law as a producer of truth. A possible methodology for exploring legal method, ‘legal ethnography,’ is introduced as a means by which wemight explicate how legal method works to support and reify legal discourse, in the process silencing the voices of women. The essay also explores how legal method comes to be accepted as a ‘tool of the trade’ by lawyers, who then use it to translate the primary narrative of the client into a cause of action that is comprehensible to lawyers, judges, and other actors in the legal system. Finally, the limitations of the proposed methodology are considered.