Linguistic Justice in International Law: An Evaluation of the Discursive Framework

Claims by minority groups to use their own languages in different social contexts are often presented as claims for “linguistic justice”, that is, justice as between speakers of different languages. This article considers how the language of international law can be used to advance such claims, by exploring how international law, as a discourse, approaches questions of language policy. This analysis reveals that international legal texts structure their engagement with “linguistic justice” around two key concepts: equality and culture. Through a close examination of the way in which these concepts function within international legal discourse, the article suggests that this conceptual framework may sometimes constrain, as well as enlarge, the possibilities for justice for minority language speakers. Thus while international law may provide a language for challenging injustices in the linguistic sphere, limitations inherent in this discourse may also restrict its emancipatory potential.     

A Biosemiotic Body of Law: The Neurobiology of Justice

We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory.     

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.

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.     

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.     

On Necessary Relations Between Law and Morality*

Abstract. The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

On Myth,Considered as a Method for Legal Thought

The textual form of law relates to language and not to narration but to myth. Law's text does not develop in the temporal sequence of past-present-future, but spreads by analogy of concentric circles. If ‘normal’ myth is a folklore of people then the law is a myth retold by lawyers. For the sake of separation of legal myth from mythology as a whole, law creates its own rituals. In post-modern societies the mythologization of law becomes even more important as the boundaries between legal and lay communities are challenged. Classical legal theories cannot deal with this change and Kafka's The Trial is as good a jurisprudence as any other legal theory. This revised version was published online in November 2006 with corrections to the Cover Date.     

Breaking and Entering My Own Computer: The Contest of Copyright Metaphors

In the current debate over copyright law, those who support maximum copyright protections have advanced their agenda largely via the metaphor of ownership in physical property. As part of this metaphorical system, they have successfully argued that digital rights management (DRM) systems deserve legal protections befitting locked doors. This article is a discourse analysis of this related system of metaphors and of opponents' metaphorical and non-metaphorical responses. Scholars who oppose the maximalist vision of copyright have devoted considerable thought to the problem of metaphors, including especially the search for metaphors that can challenge the metaphor of property. The article concludes there is work yet to be done on this count. As an incremental contribution to this conversation, the article suggests additional arguments, including additional metaphors in search of a new means to conceptualize copyright law.     

On Foreign Ground: Grand Narratives,Situated Specificities,and the Praxis of Critical Theory and Law

This article is the first part of a two-part project which is critical of trends in contemporary U.S. critical and interdisciplinary legal scholarship and pedagogy. The larger project seeks to use this critique to model fruitful approaches to critical and theoretical scholarship in law “beyond 2000”.The focus of this article’s criticism is the work of two significant scholars of the second wave of what might broadly be called CLS scholarship, or more precisely critical, theoretical and interdisciplinary legal scholarship: Jack Balk in and Pierre Schlag. Looking back to the work of Duncan Kennedy and Stanley Fish, respectively progenitors of CLS and of theoretical interdisciplinary legal scholarship in the U.S., it is argued that the work of all four is marked by two significant flaws: lack of self-reflexivity and a desire for a realm of theory which unselfconsciously adopts the Cartesian split subject. The article then uses the work of Vicki Kirby and Pierre Bourdieu both to identify the tendencies it critiques, and to suggest why the work of Terry Threadgold and Peter Goodrich might provide models for a praxis of critical theory in law which is of particular use in the context of professional subject formation. This revised version was published online in July 2006 with corrections to the Cover Date.     

“Sociologically speaking”: Law,sexuality and social change

Historically, legal discourse affirms the apparent naturalness of the heterosexual family, contributing to the invisibility of social processes which privilege heterosexuality. In this paper, Herman examines ways in which this naturalization and invisibility are the result of the delegitimation of knowledges which challenge the ‘Truth’ of law. Exploring the role of the sociologist as expert witness in the recent Mossop decisions, but also aspects of other recent lesbian and gay litigation, Herman raises a number of questions about the relationship between meaning and truth in law, and the constitution of sexual identity through the legal process. In so doing, she raises questions central to feminist theory.     

Nome law: Deleuze & Guattari on the emergence of law

This article orientates Deleuze & Guattari’s pragmatic semiotics towards a semiotics of law. This pragmatic semiotics is explored, and directly related to the theory of emergence and complexity that is also a key feature of Deleuze & Guattari’s work. It is suggested that the development of these aspects of Deleuze & Guattari’s thought in relation to law allows the contours of a noological legal theory to be sketched out. Noology is the study of images of thought, their emergence, their genealogy, and their creation. A first exploration of this noological legal theory is then carried out by the conceptualisation of nome law as the first emergence of law as theorised by Deleuze & Guattari in the plateau “1837: Of the Refrain” from “A Thousand Plateaus”. This is a conceptualisation of law’s emergence in a far-from-equilibrium palaeolithic hunter-gatherer pack, and contrasts to accounts of law’s origin in a founding violence or mythical contract. It is the ‘big bang’ of legality, and the opening up of a first image of legality, problematic of social organisation, and anthropomorphic knowledge space.     

The Special Case Thesis. An Assessment of R. Alexy's Discursive Theory of Law

Legal Argumentation Theories seek mainly to develop procedures, criteria and principles which can guarantee a proper justification of legal propositions within modern legal systems. In doing this, those theories solicit in general an interconnection between practical reasoning and legal reasoning. This paper refers mainly to what seems currently to be the most elaborate theory of legal argumentation, that is R. Alexy's Theorie der juristischen Argumentation. Although the discussion is mainly concentrated on critical points of R. Alexy's theory, this paper's scope is slightly broader; it attempts to present an overall view of the current discursive theory of law. This is mainly performed through the critical examination of R. Alexy's Special Case Thesis, which seems to raise a handful of counter arguments on behalf of the other proponents of Legal Argumentation. In the first part the special case thesis is presented, as well as the main objections to it. In the second part the validity of the special case thesis is checked against K. Günther's model of practical discourse, which proves to be more elaborate in certain points, when compared with the corresponding model of R. Alexy. In the third part it is shown that the special case thesis can be accepted consistently only if it is combined with a normative theory of law that advocates the interconnection of the concept of law with the idea of right morality. It is further suggested that legal discourse has to be perceived as a special case of a broader moral-political discourse that “explains” or “justifies” (morally) the various restrictions that the positive legal systems impose on the legal discourse.     

Revelation and Rhetoric: A Critical Model of Forensic Discourse

Over the past thirty years or so, theoretical work in such fields as legal semiotics and law and literature has argued that the legal process is profoundly rhetorical. At the same time, a number of communication-based disciplines such as semiotics, sociolinguistics and linguistic anthropology have provided, particularly in interdisciplinary combination with law, a wealth of empirical evidence on, and insight into, the micro-contexts of language and communication in the legal process. However, while these invaluable nitty-gritty analyses provide empirical support for a rhetorical thesis, work in these areas has tended to ignore rhetoric as an explanatory principle. This article introduces an overarching rhetorical framework for the discursive construction and management of cases in contemporary Anglo-American legal processes. Taking ‘forensic’ as relating to the conduct of cases and ‘discourse’ as semiosis-in-practice, I argue that the practices within which forensic discourse is embedded are not, as the received legal view would have it, aimed at revealing an impartial truth but are deeply rhetorical practices aimed at persuading decision-makers to provide a remedy for a claimed wrong. By looking across forensic texts and contexts, I identify common elements of forensic discourse that can be found both in classical forensic orations and throughout the modern legal process and consider how these intersect with critical forces of agency and structure and the particularities of semiosis in situated context. An awareness of commonalities across forensic discourse can help sharpen our focus on the critical causes and consequences of individual and structural difference and point to consequential suggestions for reform.     

Human Rights – Human Bodies? Some Reflections on Corporate Human Rights Distortion,The Legal Subject, Embodiment and Human Rights Theory

This paper responds to the subversion of international human rights discourse by corporations. It begins by placing such subversion in three contexts: the ascendance of human rights as the dominant discourse of contemporary moral and political life; the emerging challenges to human rights posed by other-than-natural-human entities; and ambiguity in the relationship between the legal subject and the human being. The author suggests that in order to resist corporate human rights distortion it is important to reclaim the language of the human for the natural human being, despite complex philosophical and definitional challenges attending the designation of the term ‘human.’ The author suggests that by re-attending to the implications of human embodiment for human rights theory it might be possible to re-invigorate the protective potential of human rights for vulnerable human beings and communities against powerful disembodied legal persons (corporations).     

Rights, Performatives, and Promises in Karl Olivecrona's Legal Theory

Abstract.  Karl Olivecrona (1971 ) maintains that "right" is a "hollow word," and so also for some other legal terms. "Right," he says, "has no conceptual background." He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona's arguments will be evaluated here. His position is influenced by Hägerström's theory of legal language, but he argues that Hägerström fails to account for how such terms as "right,""duty," etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona's book The Problem of the Monetary Unit (1957 ). Olivecrona is left with the problem of how such "hollow" terms function. His explanation is largely psychological. Going beyond J. L. Austin's notion of performatory language, he introduces the idea of performatory imperatives. I propose to submit Olivecrona's approach to a critical examination. It is suggested that had he started from everyday, nonlegal promises and commitments he might well have ended up with a different theory of legal language.     

Justice ‘Under’ Law: The Bodily Incarnation of Legal Conceptions Over Time

The article uses embodiment and the experiential basis of conceptual metaphor to argue for the metaphorical essence of abstract legal thought. Abstract concepts like ‘law’ and ‘justice’ need to borrow from a spatial, bodily, or physical prototype in order to be conceptualised, seen, for example, in the fact that justice preferably is found ‘under’ law. Three conceptual categories of how law is conceptualised is examined: law as an object, law as a vertical relation, and law as an area. The Google Ngram Viewer, based on the massive library of books that Google has scanned, has been used to study legally relevant conceptions over time within each of these three categories, from 1800 to 2000. In addition, the article suggests a type of analytical method of ‘metaphor triangulation,’ that is, the replacement of prevailing metaphors with unusual ones in order to increase the level of awareness of what conceptual content the prevailing metaphors involve.     

Rediscovering the public/private divide in EU private law

This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well‐established categories does matter within it and may lead to better law‐making in the EU more generally. The legal grammar of a particular EU harmonisation measure—which can be more “public” or “private”—may have important implications for the position of private parties at national level, for the CJEU's likely activism in this context, and ultimately for the measure's ability to realise its policy goals. Therefore, instead of ignoring the existing differences between public and private law, EU law should explicitly adopt the public/private law language in its discourse, without, however, introducing any sharp divide between these two areas.     

Scarcity,Discourses of Implementation,and Habermasian Law and Democracy

This paper contains a critique of Habermas' discourse theory of law and democracy from an economic perspective. An example drawn from Klaus Günther's work on discourses of application suggests the failure of discourse ethics to adequately account for the problem of scarcity. This blindpoint is reflected in Habermas' legal theory through the latter's inadequate recognition of the internal connection between markets and law. Discourses of implementation are introduced as a discourse‐relevant procedure to account for the problem of scarcity. Consensus, as defined by Habermas, cannot be the agreement mode applicable to discourses of implementation.