A critique of the construction of both fact and law in the adversary process of the courtroom, based on theories of narrative typification as developed by lawyers, psychologists and semioticians. It challenges conventional views of truth and logic and directs attention to the narratives of the courtrooom behaviour of lawyers themselves. It concludes with a discussion of the relationship of such theories to critical legal studies.
In recent years coherence theories of law and adjudication have been extremely influential in legal scholarship. These theories significantly advance the case for coherentism in law. Nonetheless, there remain a number of problems in the coherence theory in law. This ambitious new work makes the first concerted attempt to develop a coherence-based theory of legal reasoning, and in so doing addresses, or at least mitigates these problems. The book is organized in three parts. The first part provides a critical analysis of the main coherentist approaches to both normative and factual reasoning in law. The second part investigates the coherence theory in a number of fields that are relevant to law: coherence theories of epistemic justification, coherentist approaches to belief revision and theory-choice in science, coherence theories of practical and moral reasoning and coherence-based approaches to discourse interpretation. Taking this interdisciplinary analysis as a starting point, the third part develops a coherence-based model of legal reasoning. While this model builds upon the standard theory of legal reasoning, it also leads to rethinking some of the basic assumptions that characterize this theory, and suggests some lines along which it may be further developed. Thus, ultimately, the book not only improves upon the current state of coherence theory in law, but also contributes to the larger debate about how to articulate a theory of legal reasoning that results in better decision-making.
PATRICKNERHOT Since the two operations overlap each other so much, speaking about fact and interpretation in legal science separately would undoubtedly be highly artificial. To speak about fact in law already brings in the operation we call interpretation. EquaHy, to speak about interpretation is to deal with the method of identifying reality and therefore, in large part, to enter the area of the question of fact. By way of example, Bemard Jackson's text, which we have placed in section 11 of the first part of this volume, could no doubt just as weH have found a horne in section I. This work is aimed at analyzing this interpretation of the operation of identifying fact on the one hand and identifying the meaning of a text on the other. All philosophies of law recognize themselves in the analysis they propose for this interpretation, and we too shall seek in this volume to fumish a few elements of use for this analysis. We wish however to make it clear that our endeavour is addressed not only to legal philosophers: the nature of the interpretive act in legal science is a matter of interest to the legal practitioner too. He will find in these pages, we believe, elements that will serve hirn in rcflcction on his daily work.
It has long been recognized that court trials, both criminal and civil, in the common law system, operate around pairs of competing narratives told by opposing advocates. In recent years, however, it has increasingly been argued that narrative flows in many directions and through every form of legal theory and practice. Interest in the part played by metaphor in the law, including metaphors for the law, and for many standard concepts in legal practice, has also been strong, though research under the metaphor banner has been much more fragmentary. In this book, for the first time, a distinguished group of legal scholars, collaborating with specialists from cognitive theory, journalism, rhetoric, social psychology, criminology, and legal activism, explore how narrative and metaphor are both vital to the legal process. Together, they examine topics including concepts of law, legal persuasion, human rights law, gender in the law, innovations in legal thinking, legal activism, creative work around the law, and public debate around crime and punishment.
In a popular sense, 'law' connotes the rules of a society, as well as the institutions that make and enforce those rules. Although laws are created and interpreted in legislatures and courtrooms by individuals with very specialized knowledge, the practice and making of law is closely tied to other systems of knowledge. To emphasize this often downplayed connection, Rehumanizing Law examines the law in relation to narrative, a fundamental mode of human expression. Randy D. Gordon illustrates the bridge between narrative and law by considering whether literature can prompt legislation. Using Upton Sinclair's The Jungle and Rachel Carson's Silent Spring, Gordon shows that literary works can figure in important regulatory measures. Discussing the rule of law in relation to democracy, he reads Melville's Billy Budd and analyzes the O.J. Simpson and Rodney King cases. This highly original and creative study reconnects the law to its narrative roots by showing how and why stories become laws.
As Hong Kong enters its third year under Chinese rule, the prognosis for the common law remains uncertain. Can the improbable doctrine of 'one country, two systems' be made to work? Will the political controversies that continue to bedevil the territory undermine the rule of law and the integrity of the legal order? The 21 essays in this important new collection consider these, and many other, questions. The first part examines several problems that lie at the heart of the Basic Law's promise of legal continuity. Hong Kong's economic order and its legal buttresses are analysed in Part 2, while the essays in Part 3 trace the shifts in social values as reflected both in Chinese and Hong Kong law. Though they embrace a wide area, the contributions to this volume suggest that, while many problems lie ahead, Hong Kong's law and legal system seem adequately entrenched to endure well into the future. Raymond Wacks is Professor of Law and Legal Theory at the University of Hong Kong. He is an international authority on the legal protection of privacy, and has also published widely in the field of legal theory. Professor Wacks has edited several books on Hong Kong law and human rights. His recent books include Privacy and Press Freedom (1995). The fifth edition of his text, Jurisprudence will appear in early 2000. “(B)y far the most comprehensive study of the post-1997 legal order I have come across, covering nearly all the subjects which the Basic Law touches upon... (I)t contains much insightful analysis of the historical development and future issues surrounding each topic... A very valuable contribution to scholarship... Far more importantly, there is no collection that comes close to such an array of good analysis on so many topics.” — Anthony Neoh, SC, Visiting Professor, Peking University
This title was first published in 2003. Leading contemporary essays on interpretation are assembled in this volume, which offsets them against a small number of "classical" works from earlier periods. It has long been recognized that textual sources (constitutions, statutes, precedents, commentaries) are central to developed systems of law and that interpretation of such texts is one highly important element in adjudication, legal practice and legal scholarship. Scholars have also contended that the totality of legal activity is "interpretive" in a wider sense and debates about objectivity have raged. The reasons for this development are here critically scrutinized.
This book is the fifty-first volume of Current Legal Problems and contains the now customary selection of high quality essays by a group of outstanding scholars. The volume provides a particularly valuable and broad-ranging set of contributions for a stimulating study of legal theory at the end of the millennium.
