Deborah Charles Publications
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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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