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Deborah Charles Publications
Abstracts' Library
Authors A
Edward van Alphen, "Kelsen and Hruschka: A
Conception of Imputation", International Journal for the Semiotics
of Law VI/17 (1993), 163-178: The concept of legal imputation, as it
has developed over time, has been a central idea in the law. This central
position may well be undisputed, but the concept itself is far from unambiguous.
Analogous to this are the different local versions of the concept in German
and French law, for example. These have developed in diverse ways: "Zurechnung"
and "responsabilité" are a fair reflection of this development.
On the other hand, however, these different conceptions have enough in common
to be able to construct a parallel concept. The purpose of this essay is
in fact to investigate the possibility of constructing such a parallel concept.
We focus attention on Kelsen and Hruschka, and compare and contrast their
views of legal imputation. At first sight, these theories do not appear
to have much in common, but after analyzing them from a semiotic perspective,
a closer relationship can be seen. Jackson's syntheses of Kelsen's concepts
of a norm and of imputation is helpful here. The conclusion is that the
imputation concepts, as described, support a concept of transformation.
Mark Andrews, Durable Choice: Exclusive Interests and American Law
(Xlibris, 2003). Excerpted at www.durablechoice.com.
The law borrows techniques from risk analysis to predict outcomes and resolve
disputes. A claim to ownership may appear wherever cultural values assure
reliability and exclusivity to an individual decision. Such values create
a consensus regarding risk and opportunity. Each society defines the specifics
of the consensus but uses the same general framework. 1. Each person has
an exclusive claim to the fruits of her own labor. 2. No one holds an exclusive
claim to wealth that comes to her by accident. 3. A person must bear losses
alone when they result from her own actions. 4. Each person may demand that
others help cover losses when they result from events outside her control.
Aristotles four causes of change compare fact patterns to the social consensus.
Risk analysis measures the probability that the claim is valid. The null
hypothesis in science becomes the presumption of innocence in law. The law
applies the idea of a standard deviation when it defines behavior that is
subject to sanctions. The burden of proof is a level of confidence. But
if the jury is persuaded that something is true, then that statement is
accepted not merely within a range of probability, but to a certainty. That
statement becomes a finding of fact. Comparing this finding to a legal standard
creates a syllogism. A syllogism is a statistical comparison where the level
of confidence is set at 100%. E-mail: durablechoice@hotmail.com
The Hon Mrs. Justice Arden, D.B.E., "Law and Law Reform: Are We
Ready for the Twenty-First Century?" (The Liverpool Law Review Annual
Lecture 1997), The Liverpool Law Review XX/2 (1998), 163-176: Dame
Mary Arden, Chairman of the Law Commission, expresses her personal views
on law reform in England and Wales and asks whether we are ready for the
challenges of the 21st Century. Outlining the role and procedures of the
Law Commission, Dame Mary considers its track record in law reform during
the latter part of the 20th Century and its potential to deal with the challenges
of the 21st. These challenges, she suggests, include the globalisation of
commercial operations and the affect of technological innovation and information
technology on criminal law, criminal justice, privacy and the very practice
of law itself. Also important as challenges in the next century, she believes,
are need to increase accessibility to law and to reform the civil justice
system. Dame Mary considers the affect of a developing human rights jurisprudence
- arguing that the incorporation of the European Convention on Human Rights
into English Law will have a 'profound affect' on the law and legal systems
of the next century. Arguing for a contextual approach to law reform, Dame
Mary sets out these major challenges which will face law reformers in the
next century and underlines her belief that an independent body , such as
the Law Commission, fulfils an essential democratic role in calling for
law reform in areas which may otherwise go unnoticed for political or other
reasons.
Maria Aristodemou, "Law and Desire in Measure for Measure",
Law and Critique IX/1 (1998), 117-140: Measure for Measure
is often referred to as a play about the concept of justice and its relationship
to mercy. However, in contrast to early critics' concern with male definitions
of power, kingship, politics and history, I aim to address the concepts
of justice and mercy as they pertain to issues of sexuality, desire,
marriage, the home and the mastered. By exposing and exploiting the
rhetorical excess and ambiguities in the text, I rebut interpretations of
the play as teaching that "law must be tempered with mercy" or
that marriage represents a just distribution of the constant exchanges of
bodies. I focus in particular on sexual transgression as a source
of resistance and social instability giving rise to surveillance; law's
policing of desire and the mutual dependence between desire and law;
on the role of women as objects of exchange and on possible signs
of female resistance in the text; and on contrasting images of marriage
from securing self-fulfilment, to an approximation of justice, to another
form of social control silencing men and women and guaranteeing hierarchical
divisions. The play ends with multiple weddings, but the frequent equation
of marriage with death hints at the possible end of desire and undermines
the conclusions that either justice has been achieved or that it will last.
Bruce A. Arrigo, "Insanity Defense Reform and the Sign of Abolition:
Re-Visiting Montana's Experience", International Journal for the
Semiotics of Law / Revue Internationale de Sémiotique Juridique
Vol. X no.29 (1997), 191-211: This paper examines the meaning of insanity
defense abolition in the state of Montana. Contributions from Peircean,
Greimasian, and Lacanian semiotics are utilized. The Peircean model
explains how the sign of abolition represented important social interests
for citizens in Montana. The Greimasian approach accounts for how additional
meaning was hidden within the deep structure of insanity defense language.
Several Lacanian schema reveal why, in the post-Reform period, defense litigators
raised the issue of mental defect at the plea/trial phase especially
since acquittals were seldom granted and sentencing, if one were found guilty,
resulted in harsh penalties. This paper argues further that a Lacanian-inspired
psychoanalytic semiotics of law is uniquely positioned to decipher
the unconscious forces at work giving rise to semiotic speech production.
The inextricable relationship among discourse, subjectivity, and desire
in the Montana experience accounts for how juridical meaning was advanced
and how litigator identity was denied. That is to say, only medico-legal
discourse was embodied by defense attorneys. The interactive effects
of several semiotic axes explain how desire was mobilized, manipulated,
and configured such that defense litigators, by necessity, invoked only
the jargon of psychiatric justice. Both of these features demonstrate how
desire in language was both oppressive and liberating. Montana attorneys
were compelled to use only that justiciable language available. This language
included raising mental defect at the plea stage for purposes of pursuing
the incompetency-to-stand-trial (IST) hearing. It was a discourse,
however, that led to state hospital rather than state correctional confinement.
e-mail: barrigo@mail.cspp.edu
Bruce A. Arrigo, "Reason and Desire in Legal Education: A Psychoanalytic-Semiotic
Critique", International Journal for the Semiotics of Law / Revue
Internationale de Sémiotique Juridique Vol. XI no.31 (1998),
3-24: Critiques of legal education have become commonplace. Selected essays
are now exploring the role of language in the process of transmitting knowledge
in the instructional milieu. Missing from these assessments, however, has
been any consideration of the unconscious mechanisms activated and at work
which already encode juridical discourse. This paper applies a Lacanian-inspired
psychoanalytic-semiotics of law to the method of legal education. Several
of Lacan's conceptualizations on discourse and knowledge are presented in
detail in order to explain what reason and desire are embedded in legal
education. The paper demonstrates how the argot of law-speak unconsciously
privileges its own discourse while invalidating and de-legitimizing all
other ways of knowing, all other voices, and, in the process, limiting one's
understanding of juridical knowledge. This paper concludes by suggesting
several Lacanian-based strategies which might make possible a deeper appreciation
for the law while participating in legal education.e-mail: barrigo@mail.cspp.edu
Bruce Arrigo, "Language, Propositional Logic, and Real World Applications:
A Comment on Ascription", International Journal for the Semiotics
of Law / Revue Internationale de Sémiotique Juridique Vol. XI
no.31 (1998), 73-77: The Jackson-Touchie debate concerning language, propositional
logic, and real world applications raises some interesting questions about
ascription. This article offers some explanation on the phenomenon by invoking
a psycho-semiotic framework. Three matters are addressed: (1) the operation
of linguistic coordinate systems (LCS), (2) the process of refuting particular
truth claims as a decisive act of agency, and (3) the formation of liberatory
and discursive discourse production while speaking from within an LCS. The
analysis offered challenges the several assumptions about the nature of
speech production in particular and semiosis in general as they relate to
what Jackson and Touchie have addressed thus far. e-mail: barrigo@mail.cspp.edu
Ruth Arundell, "Machan Versus Locke: Is "Pure" Liberalism
Possible?", Res Publica III/2 (1997), 149-163: This paper responds
to a paper by Tibor Machan - "Does Libertarianism Imply the Welfare
State" - in the same issue. In that paper Machan defends libertarianism
as merely the purified and fully consistent conceptualization of Lockean
"rights", arguing that as such it has the necessary moral foundations
to be a contender for the status of the just or good human polity, and one
which would engender less "innocent" poverty than does the welfare
state. I argue that libertarianism cannot claim Lockean foundations. Either
Locke's political philosophy is firmly grounded in natural law theory, in
which case it cannot be "purified" of this without undermining
its moral foundations or it is a composite position which, stripped
of elements unwanted by libertarianism, reduces to a Hobbesian radical individualism
which is ultimately subjectivist and cannot therefore support the claims
Machan makes. Machan's attempt to redeploy statistics reflecting high levels
of material inequality in the United States of America in service of the
argument that people in less "libertarian" countries are worse
off than even the poorest people in the U.S.A. fails, since arguments about
the relative poverty of people in different countries need to take account
of not only their income, but also their different social needs. e-mail:
rma3@ukc.ac.uk
District Judge Gordon Ashton, "Equal Access
to Justice", The Liverpool Law Review Vol. xix no.1 (1997),
29-36. - This article considers the special needs of people with disabilities
when they encounter the civil justice system, and the manner in which the
Woolf Reforms could assist them. Lawyers have been relied upon to compensate
for their inadequacies but with cut backs in legal aid this can no longer
be assured. They can find themselves encountering the ultimate handicap
- lack of access to justice ... If the needs of disabled people are not
met the courts could find themselves in breach of the Disability Discrimination
Act 1995. The court should be under a duty to ascertain if a party has a
physical or mental impairment which substantially affects ability to participate
in the proceedings, and to compensate for this ... Some people are incapable
by reason of mental disorder of managing and administering their property
and affairs. Law Commission report Mental Incapacity (No. 231 dated February
1995) makes recommendations as to decision-making and includes a draft Bill.
The Law Society and British Medical Association have produced joint guidance
in Assessment of Mental Capacity (1996). ... When an individual is incapable
of conducting litigation (a 'patient') it is necessary for a representative
to act: a next friend or guardian ad litem. The five existing sets of rules
(High Court, county court, family proceedings, insolvency and Court of Protection)
are inconsistent. The new Civil Procedure Rules should be constructed from
scratch. Gordon Ashton is author of Mental Handicap and the Law (Sweet
& Maxwell), Elderly People and the Law (Butterworths) and The
Elderly Client Handbook (The Law Society). e-mail: ashton@law.edi.co.uk
Rosemary Auchmuty, "Last In, First Out: Lesbian and Gay Legal Studies",
Feminist Legal Studies V/2 (1997), 235-253: This review of Didi Herman
and Carl Stychin, eds. Legal Inversions: Lesbians, Gay Men, and the Politics
of Law (1995) and Carl Stychin, Law's Desire: Sexuality and the Limits
of Justice (1995) welcomes both books as excellent additions to legal
studies. It sets out to give a fairly comprehensive description of the content,
approach and merits of each book, to situate them in the context of gay
and lesbian legal studies, and to make some general points about the absence
of gay and lesbian perspectives from feminist legal studies, both in print
and in the law classroom. Both books adopt a cross-jurisdictional, comparative
approach and cover a range of issues from constitutional law to crime, from
case studies to jurisprudence, from custody battles to campaigns around
AIDS. Particularly welcome is the broad coverage of lesbian concerns in
Legal Inversions, even in those articles written by gay men, and Carl Stychin's
engagement with feminist debates (e.g around pornography) in Law's Desire,
even where I took issue with his queer analysis. The article concludes that
'lesbian law' has mostly been relegated to a 'lesbianandgay' studies approach,
which tends to be dominated by men, and calls for more lesbian-feminist
analyses which locate lesbians at the centre of a legal analysis, in relationship
to but (where relevant) separate from gay men and straight women, and in
all our mdiversity and multiple identities. It also reminds readers that
a liberal approach to sexual 'preference' is not enough, that the forces
of reaction are strong in the hetero-patriarchy, and that if we do not get
lesbian and gay issues into the maintstream, we may be even further marginalised
in future. e-mail: auchmur@WESTMINSTER.AC.UK
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