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.
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.
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.
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.
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.
The art form of comics has been at center of heated global free speech debates, which remain among the defining issues of our time, particularly as they map onto cultural and religious difference. In the past ten years, the hybrid word-and-image medium of comics has also entered the legal arena through comics-form amicus briefs and comics-form contracts, to name a few examples. The examples suggest that comics is understood today not only as a medium with the potential to be sophisticated, literary, and entertaining but further as one with the concision and clarity that legal discourse values. The growing international energy around the intersection of comics and law, evident in the emergence of comics-form documents and comics as a mode of legal pedagogy, is also reflected in the academy, where there has been a large recent increase in legal academic attention to comics. Other comics genres, particularly nonfiction genres (e.g., comics journalism and graphic memoir), have also proven to be richly engaged with the juridical. Comics that address complicated ethical and material realities through content and form alike model productive ways of engaging with aesthetics and the juridical imaginary, including compelling but fraught legal discourses like that of human rights. This chapter focuses in particular on the non-fiction work of Malta-born cartoonist Joe Sacco, suggesting that Sacco, perhaps more than any other cartoonist, helps readers to see how the comics form can reveal the law-driven focus on “rights” differently than in traditional accounts, especially through the medium’s approach to layered temporalities.
This chapter sets out to clarify the ideas of comparison and comparative knowledge. It analyses different approaches to these two issues, both from an analytical perspective and by means of a comparison with other disciplines, such as historical linguistics, comparative religion, and comparative history. The chapter describes the core of comparative knowledge as a structured description of a set of similarities and differences of the objects compared. Analytically, the article is based on the distinction of classifying comparison, qualifying comparison, and complex comparisons. Although qualifying and complex judgments of similarity and difference are irreducibly subjective, they are not meaningless if they relate to a clearly defined epistemological perspective or to a common understanding of the relevant circumstances; moreover they can be rationalized by a number of different tecniques. Those methodological techniques are presented in a list of nine basic conclusions.
The contribution of Critical Legal Studies to comparative law is a matter of considerable international interest, not only in light of the remarkable presence of the movement in several leading US-American academic institutions but also in view of the rather desperate need for comparative law as an academic discipline for theoretical revision and reorientation. This article examines the contributions Critical Legal Studies has really made to comparative law, and how original they are. First, it describes the emergence, as well as some of the work, of Critical Legal Studies in terms of comparative law. Second, it pursues to what extent the Critical Legal Studies approach breaks with, or rather continues, the agenda of the discipline’s mainstream. Third, it presents a sympathetic analysis of the critique, evaluating the actual political and scholarly contribution of the Critical Legal Studies approach to comparative law.
Vivian Grosswald Curran
The study of language is a cognitive model for comparative law. Language’s own dependence on translation is instructive in understanding comparative law in terms of the contrasting categories that undergird the civil and common law legal systems. Comparative law is situated between deeply entrenched, mutually contradictory aspirations of universalism and pluralism. While former domains of pluralism and difference are receding, difference itself remains undiminished. Comparative law’s effectiveness as a translator of the foreign depends on how well its acquired skills and methods can be adapted to new kinds of foreignness.
The idea of legal culture has had an important place in major recent debates about the nature and aims of comparative law. The idea of legal culture entails that law should be treated as embedded in a broader culture of some kind. This culture may, but need not necessarily, be seen as wider than the lawyer’s or lawmaker’s professional realm of law. Often, however, conceptions of legal culture encompass much more than this professional juristic realm. They refer to a more general consciousness or experience of law that is widely shared by those who inhabit a particular legal environment, for example, a particular region, nation, or group of nations. Culture appears fundamental—a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which every comparatist must pass so as to have any genuine access to the meaning of foreign law.
Nora V. Demleitner
This chapter discusses comparative law within the framework of legal education in North America and Europe. It first considers some of the key debates surrounding the teaching of comparative law before providing a historical overview of major developments on both sides of the Atlantic since the nineteenth century. It then examines the post-World War II resurgence of comparative law in US legal education and the ascent of comparative law teaching in Europe, as well as the place of comparative law in legal education today. It also analyzes the present role of comparative law teaching in the European Union, the impact of international and transnational law on comparative legal education in the United States, and comparative law in Australia and Canada. The chapter concludes with a review of some of the current challenges to comparative law as a subject of teaching and scholarship and how comparative law fits into legal education more generally.
The comparative study of transplants and receptions investigates the patterns of change triggered by contacts among laws and legal cultures. The study of legal transfers offers considerable intellectual rewards. It shows that the law is a complex phenomenon and corrects simplistic views regarding what law is and how it develops. Furthermore, it highlights how the language of the law is transformed as a consequence of such a dynamic through translations and adaptations. The spread of legal institutions, ideals, ideologies, doctrines, rules, and so on, is often in the hands of professional elites. The study of transplants and receptions demonstrates that the knowledge and standing of those elites comes from interactions between the local and non-local dimensions of the law. This picture is true in Berlin, in New York, in London, and in Lima, but it is also true in less cosmopolitan environments. The study of legal transplants has sometimes been accused of embracing a conservative orientation. Yet, this study simply subjects the law’s pretensions concerning its origins and ends to critical analysis. Doing so is not inconsistent with advancing progressive goals at all; in fact, it may be vital to a progressive agenda.
Comparing legal systems involves, at least to some degree, exploring both similarities and differences. For some writers, this forms part of the definition of comparative law. Some comparative lawyers have generally emphasized differences, while others see similarities, particularly in problems and their results, and a third group has sought to strike a balance between observing and analyzing similarities and differences. Drawing on a debate in comparative history, this article argues that the proper balance between looking for similarities and for differences depends on the purpose of the comparative enquiry. Furthermore, it links the issue of difference or similarity to the various steps which are involved in a comparative legal enquiry, suggesting that some steps require more focus on similarity, others on difference, and many call for a balance of both.
This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the ‘private’ sphere and the strongly ‘public’ or collective political nature of much of the ‘private’ ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon—globalization (through cyberspace)—that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.