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Jiri Priban, "Doing What Comes Naturally, Or A Walk
on the Wild Side?: Remarks on Stanley Fish's Anti-Foundationalist Concept
of Law, its Closure and Force", Law and Critique IX/2 (1998),
249-270: 'The article deals with current schools of legal philosophy and
theory which are significantly influenced by the post-structural turn in
the concept of law. This turn is illustrated by the works of the American
literary and legal scholar, Stanley Fish. The text is centred around a difference
and arguments between the anti-foundationalist, pragmatic concept of law
as worked out by Stanley Fish, and the theoretical-ideological adoption
of post-structuralism by some of the most representative members of the
Critical Legal Studies Movement. The first part consists of a comparison
between the anti-theoretical approach of Stanley Fish and ideological critical
and politicising attitudes of the Critical Legal Studies Movement.
However, Fish's concept of law goes beyond the limited borders of legal
theory and, paradoxically, shows some common features with the general social
systems theory of the German sociologist, Niklas Luhmann. The second part
of the text therefore analyses relations between Luhmann's concept of autopoiesis
and Fish's understanding of law as a closed context of interpretive practices.
The third part of the text then concentrates on a mutual inspiration between
Stanley Fish and Jacques Derrida in the field of definition of 'the force
of law'. In spite of acceptance of many standpoints of Stanley Fish,
the author of this article concludes by a critique of law's closure as defined
by Stanley Fish and by a rejection of the restrictive function of force
in the legal context which dismantles law's heterogeneity and the
art of human memory.
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