This chapter explores some legal and literary ramifications of “accident” in British law and society from the late eighteenth through the early twentieth century. This period saw changes in common law and legislation relating to accidents, including the emergence of negligence as a distinct tort and statutory provisions for employer liability and workplace compensation. The chapter turns on the institution of the deodand, a common-law rule that allowed inquest juries to assess liability for accidental deaths caused by non-humans. After such entities began to include industrial machines, the deodand was abolished by Parliament in 1846. Examining legal-historical cases and norms alongside literary-cultural representations, the chapter claims that the deodand’s disappearance, and concurrent transition to fault liability regimes, marked a loss in the understanding of accident. If the nineteenth-century emergence of modern accident law tended to simplify accidents into surrogates for human interaction, the deodand qua institution grasped how reckoning with accidents demands an alertness to human entanglement with non-human causality. Literary representations of vehicular accidents afford a glimpse of what was coming to be lost in this changing legal-cultural dispensation. From Thomas De Quincey to Thomas Hardy to E. M. Forster, the complex non-human, material, and affective dimensions of accident dissipate into the background, where they continue to supply narrative and formal motivation even as they leave human obligations and institutions in the light.
This article introduces the rationality and legitimacy conditions and positions them within contemporary sceptical and non-sceptical accounts of adjudication. Two sections are concerned with non-sceptical accounts of adjudication. The next section begins with an analysis of the rationality condition. The article moves on to show that the existence of incommensurability in hard case adjudication ensures that adjudication cannot be rational in the strong sense. It demonstrates that values are implicated within the practice of adjudication, by reference to some examples and by invoking an old jurisprudential lesson about the nature of rule application and interpretation. This article further discusses value pluralism and sketches three claims. It argues that it is difficult to show that rationally indeterminate judicial decisions are legitimate. This article concludes that law and adjudication may not be as pre-eminently desirable as often assumed, since they are not more rational than other non-arbitrary means of organizing our collective life and resolving disputes.
This chapter discusses two domains of research into and theorizing about human emotions of interest to legal theorists and practitioners in the law. Written by a non-lawyer with expertise in English literature, narrative theory, and interdisciplinary empathy studies, it offers basic definitions of the terms “empathy” and “affect,” brief overviews of research areas, suggestions about the relevance of affect and empathy studies to law, and cautions about those applications’ limitations and liabilities. By no means prescriptive in intention, this chapter’s discussion of affect and empathy studies lays bare some of the underlying assumptions and critical attitudes of work in differing fields. All varieties of empathy, with their affordances and limitations, are resources for the rhetorical arts of persuasion. Writers and practitioners in the law should alertly consider the roles that empathy and affect play in the law, especially when legal abstractions, doctrines, and documents that evoke strong feelings are accorded the imaginative status of persons by means of Einfühlung.
This chapter begins by examining the origins of agonism in the German philosopher Friedrich Nietzsche’s early text “Homer’s Contest.” It then attempts to formulate a political interpretation of agonism that could provide law and legal studies a post-Marxist and Nietzschean critical position in which democracy is central. A first attempt at the formulation is an analysis of the constitutional theorist Carl Schmitt’s “antagonist” and “polemical” notion of politics that is based on a friend-enemy distinction, and of the consequences of such a notion for state constitutions and law. Schmitt serves as the background for the political theorist Chantal Mouffe, whose “agonistic pluralism” represents a conscious effort to moderate Schmitt’s existentially belligerent critique of liberalism into a workable politics in late modernity. Interpretations of agonism provided by William E. Connolly and Bonnie Honig and their possible links to law and legal studies are then briefly discussed. The chapter concludes that there is a kinship between political agonism understood in this way and a contemporary strain in political theory represented by, for example, Jacques Rancière. The roots of this kinship are traced finally to a post-Marxist tradition of “radical liberalism.”
Syed Adnan Hussain
This article examines the historical origins, sources, and subject-matter jurisdiction of Anglo–Muhammadan law, along with its influence on the trajectories of Islamic law. After providing a short history of Anglo–Muhammadan law, the article discusses its subject matter. In particular, it considers the contributions of Syed Ameer Ali, especially in the area of trust law, or awqaf. It proceeds by looking at various sources of Anglo–Muhammadan law, which include textbooks and English translations of primary texts, case law, and legislation and custom. To give a sense of how Anglo–Muhammadan law operated in case law, the 1922 case of Narantakh v. Parakkal is analyzed. The article concludes with an overview of changes in Anglo–Muhammadan law in the immediate period after independence and partition of India.
Sally Engle Merry
The concept of legal pluralism has proved enormously fruitful in challenging ideas about the centrality of state law and increasing awareness of the diversity of ways that individuals interact with the law. As scholars seek to understand international law as a sociocultural as well as a legal field, the concept of global legal pluralism offers a useful framework. It provides a way to theorize the fluidity and fragmentation of international law as well as its spaces of openness and opportunity. It is a way to understand its regulatory role in conjunction with regional, national, and local systems and the structures of local, national, and global power which shape its practices. The concept of global legal pluralism highlights both the global nature of the new legal terrain as well as the relative normativities of various orders, from the strictly “legal” to those based on cultural practices rather than state law. The anthropological concept of legal pluralism helps to understand the complexity of the global legal order, with a focus on the way its fragmentation and incommensurability operates in practice in the highly complex sociocultural global situation.
Keebet von Benda-Beckmann and Bertram Turner
Since the turn of the century, the term “legal pluralism” has seen a remarkable rise in interest. It is now widely accepted, although it was long rejected in legal studies. When legal anthropologists began to refer to “legal pluralism” in the 1970s, this marked a crucial change in anthropological thinking about law. Since then, not only have political and economic developments profoundly changed constellations of legal pluralism but also the term itself has followed a variety of trajectories and accrued multiple meanings in the process. In particular, in the trajectory of global legal pluralism, it has acquired a normative meaning that is quite distinct from its use in anthropology as a tool of analysis. This chapter discusses how the anthropological study of law and legal pluralism developed from the study of law in colonial societies toward empirical studies in postcolonial settings and in nation-states around the globe under conditions of ever-increasing global connectedness and complexity. Global legal pluralism is analyzed in relation to topics that include law and development, religion, human rights, minorities, indigeneity, and politics of global legal pluralism. At the end the chapter offers an outlook into future anthropological research on global legal pluralism. Insights were developed not only in response to sociopolitical developments but also to changing theoretical perspectives.
Western democracies have determined the extent and limits of free expression largely within rights-based frameworks. As captured by Mill’s classically liberal “harm principle,” expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Through a review of certain texts foundational for democracy, however, we can identify principles different from the standard liberal principles. Beginning in ancient Athens, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato’s Crito presents the West’s first systematic inquiry into the question of legal legitimacy—that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.
The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement. Early grassroots organizing around responding to rape and domestic violence relied heavily on community-based strategies including the creation of shelters and safe houses and feminist self-defense classes. Using the new vocabulary of the women’s liberation movement, feminist advocates soon began to critique existing rape and domestic violence law. Some advocates moved away from the grassroots community-based strategies to push for greater state intervention in rape and domestic violence via the criminal legal system. But the movement was not united in embracing such strategies. Feminist organizing reflected the tensions between competing visions of the role of the state in addressing gender-based violence., With the passage of the Violence Against Women Act in 1994, feminists favoring state intervention had successfully implemented their carceral agenda—a policy choice that is being reexamined today.
The inevitable interaction of legal and quasi-legal systems and norms across territorial borders not only impacts individuals as members of multiple communities (both territorial and nonterritorial), it also has implications for the conduct of cross-border arbitration. This chapter charts emerging non-state-based norms as applied in the context of international arbitration. It addresses how arbitral bodies can and do use nonstate standards in adjudication including industry standards, customs, and practices and how national courts uphold such applications. Over time, resort to these various quasi-legal standards is contributing to the creation of a transnational set of norms that is reshaping the global arbitral system.
Scott J. Shapiro
This article brings out the paradoxical nature of authority and discusses the solutions that have been offered on authority's behalf. It further examines two revisionist strategies. The first approach denies that legitimate authorities have the right to impose obligations when they are wrong. The second approach explores the basic premise of the paradoxes, namely, that legitimate authorities have the power to obligate even when wrong. This article suggests modifying our views about the nature of moral autonomy and attempts to justify these assertions and to demonstrate how their acceptance solves the paradoxes of authority within the different frameworks of legitimate authority. It concludes with various arguments that state moral anatomy constitutes the best response to the philosophical anarchist's challenge.
This chapter addresses the significant subsets of private law—notably, but not only, property and contract—which contribute to people’s autonomy. It argues that private law is guided by an autonomy-enhancing telos. Indeed, private law, at its core, facilitates people’s self-determination and forms the foundation of a social life premised on the maxim of reciprocal respect for self-determination. Private law can enhance people’s autonomy because its fabric is not only made of duty-imposing doctrines. Rather, many of its rules—and, importantly, the two private law building blocks of property and contract—are essentially power-conferring. The normative powers instantiated by property law and by contract law allow people to have private authority over resources and to reliably benefit from others’ promises. They thus facilitate a temporally extended horizon of action, which is conducive, perhaps crucial, to people’s ability to plan. Moreover, contract and alienable property are also key for people’s mobility, which is a prerequisite for self-determination; and both expand the options available to individuals to function as the authors of their own lives. Such an autonomy-based private law must be structurally pluralist; multiplicity of property types and contract types facilitates the rich diversity of interpersonal relationships needed for adequate self-determination.
Sally J. Kenney
Backlash is a reaction to real or perceived change, leaving progressives worse off by catalyzing conservatives to oppose change by changing their opinions to be more negative, holding opposing views more deeply, or taking action, including violence, when they would not have otherwise. The claim that progressive social change has been counterproductive is an empirical one, but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of preexisting opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression in response to legal progress. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, we must conclude the implicit baggage the concept carries outweighs its usefulness.
Sarah M. Buel
Feminist jurisprudence has amplified the voices of gender violence survivors long silenced by trauma and male-biased legal doctrine. In critiquing self-defense law’s treatment of survivors, some feminists pressed for recognition of a distinctive set of characteristics purportedly associated with survivors, termed “battered woman syndrome” (BWS). Intended to ameliorate the harsh effects of criminal law on survivors, BWS sought to explain why battered women responded as they did in terms that judges and juries might better relate to the legal requirements for self-defense. One argument is that the law of self-defense must be further recalibrated—beyond the problematic, operative lens of BWS—to better protect those who engage in survival crime. By instead utilizing “battering and its effects” as the framework for relevant evidence, the criminal justice system could become more responsive to survivors. Even beyond recalibrating the law of self-defense to better suit survivors, legal stakeholders can learn much from activists and feminist legal theory about pursuing gender and racial justice, by embracing diverse lenses to actually hear the raced, classed, and gendered narratives of survivors’ lives. Despite missteps with the development of BWS, feminist jurisprudence is gradually increasing understanding of, and empathy for, survival crime.
Book history, understood broadly as the analysis of written communication, interacts with legal studies in two main areas: first, legal rules frame the production and dissemination of books or written documents (in many cultures); second, books and written documents can act as meaningful objects within the legal sphere. This chapter focuses on the second area and shows by way of examples how taking the materiality of the book as a starting point can help to uncover cultural structures linked to the law. The chapter demonstrates the potential of this approach by focusing on a period in which books with legal contents radically changed their function: the Middle Ages in Europe, with their shift from writing down customs in the vernacular as a means of preservation to actual law books used as works of reference. As can be shown, the design of legal manuscripts played an important role in this process of codification. But not only law books are elements of the legal sphere: the chapter also outlines the function of books in legal rituals with religious implications as well as the merging of “law” and “literature” in some medieval manuscripts. Finally, the chapter draws attention to the opportunities book history offers for research into intercultural relations and into the change of legal culture in the digital age.
This chapter outlines the several scales at which material arrangements of architecture, urbanism, and territory are bound up with surrounding legal contexts. Using these three scales, the chapter elucidates the reciprocity of law and space, a reciprocity through which the law is spatialized by its distributions across places and locales and space is differentiated and particularized by law. A courtroom, for example, is a physical space and a locus for legal process; a city street is a material conjunction of objects and persons as well as a concretization of codes and regulations; a territorial boundary is a demarcated section of land and an inscription of legal permissions and constraints. These different mediums of social inhabitation, of such different scales, are imperfectly coordinated, yet with their often inextricable connections they comprise a domain of great relevance to law and humanities. Within this domain, which consists of disciplinary intersections of law with architectural history and theory, with geography, and with urban studies, the complex interactions of norms with the contingencies of myriad cultural productions come into view. Regulatory instruments, plans, buildings, pillars, rooms, regions, and other arrangements can be seen to function as techniques for the projection and translation of juridical and spatial orderings.
This chapter reconsiders and reorients performance as a critical practice in law and the humanities, turning away from the philosophically and sociologically inflected variants of performance and performativity, toward the possibilities of performance and the theatrical as jurisprudence. In its Kantian ideal, law is expected to function in isolation and absent the self. Performance and the theatrical could not think more differently, creating conditions that enable bodily responses to engender responsiveness that affords the possibility of noticing. This ability to notice is lost in abstraction, but it is needed to enliven and point to failures or fractures in law. Lived experience provides the most potent means by which we notice; in its absence, performance offers the possibility to write experiences on our bodies, helping us to notice when law helps or hinders, harms or helps, showing us how easily law can offer or deny justice simply through the ability or inability of lawyers or justices to notice the effects and consequences of law. At least three registers of noticing can be identified through performance and into law. In no particular order, the first happens through the noticing body, triggering recognition of the consequences of a doctrine, principle, or provision because the lawyer has experienced the same or a cognate situation; the second comes from the dramaturgically grounded nodal knots binding together a present and a past and a past with a present; while in the third, bonds of recognition are created through and by association, or through training.
This chapter aims to answer the question, “what can the civil law tradition tell us about the New Private Law?” It seeks to do this by offering one civilian's perspective on private law, on U.S. private law, and on the New Private Law. In order to answer that question, it is necessary to say a little bit about what is a civilian perspective, or in other words, what makes a jurist a civilian. This is a question to which many different answers could be given. The chapter then looks at the different perspective that a civilian may have on what is the domain of private law. It also asks what insights the civilian's understanding of the discipline of law may offer to common lawyers. From a civilian perspective, the future of the New Private Law will be interesting indeed.
Benjamin C. Zipursky
This chapter examines civil recourse theory. The phrase “civil recourse theory” has developed two connotations, suggesting: (1) a structural theory of the normative underpinnings of private law liability placing primary emphasis on a plaintiff’s right of redress and the role of the state in affording plaintiffs the power to exact damages from those who have violated the plaintiff’s legal rights; and (2) a distinctive, overarching tort theory that emphasizes a plaintiff’s right of redress while simultaneously emphasizing relational duty in negligence law and torts as legal wrongs. The chapter identifies several other views developed in connection with civil recourse theory but meant to stand apart from it. The thesis that negligence law’s duty of care is relational is among them; so too is the thesis that tort law consists of specifications of legal wrongs, that these wrongs are defined in relatively strict manner, and that plaintiffs must have an injury to prevail on a tort claim. Deploying the narrower conception of civil recourse theory, the chapter defends the principle of civil recourse as a matter of political morality and depicts the place of private rights of action in the basic structure of a just liberal democracy.
Mariam Sheibani, Amir Toft, and Ahmed El Shamsy
This article examines whether the Qur’an served as a source for the early jurists during the classical period; whether Hadith reports contain authentic information regarding Muhammad’s sayings and actions (and if they do not, when and how they became attributed to him); whether and how the regional legal traditions were transformed into legal schools centered around particular individuals; and how the nature of legal reasoning changed within this period. The article first revisits the debates regarding the role of the Qur’an and Hadith, respectively, in the formulation of Islamic law. It then reviews scholarship on the phases of Islamic law’s development, beginning with the emergence of geographically defined legal traditions and culminating in the formation of the legal schools and their distinctive theoretical principles and substantive doctrines. It concludes by suggesting directions for future research.