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Deborah Charles Publications
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Tarja Salmi-Tolonen, "The Linguistic Manifestations of Primary and Secondary Functions of Law in the National And Supranational Contexts", International Journal for the Semiotics of Law Vol.VII no.19 [1994], 19-39: It is the close interaction between language of the law and society that makes law language particularly interesting as an object of study. English, perhaps for the first time in our era, is now a co-equal at the European Community and other supranational organisations. This closer contact with other languages probably means that English is, though perhaps to a lesser extent than some of the other languages involved, undergoing some changes. Whether these changes are already visible at some level in a restricted sublanguage, legal language, is my primary interest here. This paper reports on an attempt to see how the primary and secondary functions of law manifest themselves through language (English in this case) in two different contexts: the cooperative and harmonizing (the European Communities/European Union) and the directive and rights conferring (the national). By the primary functions of law I mean power conferring and duty imposing rules (Hart 1961) and by the secondary: conditional, purposive/final and procedural (Willke 1985). The national law corpus studied consists of two Parliamentary Acts and the EEC corpus basically primary law texts. The texts have been chosen from the domain of social policy, equality, in particular. A study of limited corpora can only show tendencies, even at its best. However, the study shows that there is a difference in the variety of linguistic means used for expressing the primary and secondary functions of law in the two corpora. Author's address: University of Tampere, Department of Translation Studies, P.O. Box 607, SF-33100 Tampere, Finland; email: trtasa@uta.fi

Ralph Sandland. "The Mirror and the Veil: Reading The Imaginary Domain", Feminist Legal Studies VI/1 (1998), 33-58: This article analyses critically Drucilla Cornell's attempted integration of Rawls' distinction between practical and theoretical reason with Lacanian psychoanalysis into a feminist theory of law and legal rights. It is argued that Lacan cannot supplement Rawlsian liberalism other than dangerously, in that Lacan demonstrates that the "practical" in the Rawlsian sense is dependent on the "theoretical" for its coherence, and that as a result Cornell's attempted synthesis must ultimately be counted unsuccessful.

Jonathan Seglow, "Partisan or Liberal?" (Review of Maureen Ramsay, What's Wrong with Liberalism?, and Michael White, Partisan or Neutral?), Res Publica IV/2 (1998), 229-239: This essay reviews two recent works in liberal political theory, Maureen Ramsay's What's Wrong with Liberalism? and Michael White's Partisan or Neutral? Both books argue that liberalism is a partisan, over-individualistic doctrine which cannot (White) or should not (Ramsay) command our assent as a public political theory. I argue that Ramsay presents a slightly biased view of liberal individualism: moral individualism does not mean we need be selfish or egoistic in the way she claims. White argues that since liberalism cannot be theoretically justified it should be replaced with managed political disagreement and debate. I argue that White's vision rests upon a prior consensus on liberal values. I end by outlining Rawls's justification for his political liberalism: I argue that Rawls's liberal constitutional essentials are less controversial than Ramsay or White believe.

Thomas-M. Seibert: "Battle in the courtroom - a semantic issue" (Abstract of paper presented at the Association's Lesbos Conference, July 1992). Object of battles are the references of legal terms as they can be introduced by requests of evidence ("Beweisantrag") according to German criminal law. By means of this specific remedy the defendant can force the court to decide anew on the concrete meaning of legal terms, because - as we know - there is no natural reference between sign and object. The signs remain the same, but they can be forced to refer on new objects. That consequence is derived from the assumption that by referring the communicator will always denote a specific object or person, not only "what-soever"- or "whoever"- data. The court has the primary access to the process of signification. It names something to be the law in defining an action as legal. Then the interpreter of a chain of signs, the defence counsel, has to begin a battle, and at first he will use negations to fight against the supposed reference of signs within naming. Therefore the negation runs: this must be called in another way than it was. By doubting the existence of the named referent the defendant conceives the sign in another way than it has been offered. ... The battle in German criminal procedures is carried out between the court and, mostly, the defence counsel. This includes a new look on the dogmatically neutralized sphere of behaviour in the courtroom. It has to be studied in the centre. As the facts of a case are only the background of struggling, in the foreground the actors present themselves. The semantic issue of a battle does not simply consist in varying the facts in dispute, the personal relations of the parties are changed as well. Thus the battle in the courtroom changes the presentation of the legal matter.


David Seymour, "Letter From Shylock. Reflections on my Case (Authorship attributed to Shylock "the Jew"", Law and Critique VIII/2 (1997), 215-222: This paper consists of a correspondence written by Shylock to his friend Tubal following his court appearance against Antonio, the Merchant of Venice. In this invaluable document, Shylock reflects on the events that led to the trial and the trial's outcome. Discussing such matters as the relationship of law and morality, justice and love, society and community, Shylock demonstrates an astute grasp of the issues involved and his acknowledgement of the role he himself played in his own downfall. Written at the dawn of modernity, this letter offers an unique insight into the emergence and potentiality of the specifically modern phenomenon of anti-Semitism.

Sally Sheldon, "Who is the Mother to make the Judgment?": Constructions of Woman in English Abortion Law", Feminist Legal Studies I/1 (1993), 3-22: In this paper the author analyses parliamentary debates to uncover the assumptions which are made regarding the kind of woman who would wish to terminate a pregnancy. She isolates three constructions of this woman: woman as minor, woman as victim and woman as mother. She then provides a close rereading of the text of the Abortion Act, 1967, in order to reveal how that statute is fundamentally predicated upon these constructions and underpinned by notions of female irresponsibility and assumptions regarding female sexuality and maternity as the 'normal' role for women. Address: Law Department, University of Keele, N. Staffs, ST5 5BG; E-mail: Laa00@cc.keele.ac.uk.

Phillip Chong Ho Shon, "'Now You Got a Dead Baby on Your Hands': Discursive Tyranny in 'Cop Talk'", International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique Vol. XI no.33 (1998), 303-322: This paper examines the role of language in a police/citizen encounter. I examine the "bullying talk" that is embedded in the "social talk" employed by police officers in their routine police activity. This paper can be seen as a semiotic analysis of law applied to a police communication system in that for the police officers, the traffic stop is a routine interaction, already contextualized and transformed into a meaningful symbolic code. I examine the police talk using micro-details of the conversational interaction. I compare the police/citizen interaction to a courtroom cross examination and a mediation hearing, the fundamental difference being that in a police interaction, the lack of a "neutral umpire" offers no possibility of safeguarding against abuse of power. The result is a form of linguistic abuse of power or discursive tyranny. e-mail: pshon1@uic.edu

Carole Smith, "Mutual Respect or Mutual Distrust: Social Workers and the Courts in Child Care Decisions", in "Social Work Law: an Interface for Policy and Practice Development", Liverpool Law Review XIX/2 (1997), 159-179: This paper explores the boundary between the statutory powers of local authorities and the social workers whom they employ and the powers of the courts, in relation to decisions in child care cases. Extensive reference is made to case law in order to illustrate the ways in which courts have attempted to determine planning and decision making for children, where the local authority has assumed responsibility for their care. The courts have clearly sought to extend their powers into those areas where Parliament intends that local authorities and their social workers should be able to make decisions about children without judicial intervention or review. It is argued that judicial interference in what is properly the business of local authorities derives at least, in part, from a mistrust of social workers' ability to effectively safeguard and promote the welfare of children. The courts have been particularly concerned in this regard about their duty to treat the child's welfare as paramount and, in so doing, the application of their discretion in deciding whether an order should be made (Children Act, 1989, s.1). This paper suggests that encouraging social workers to better understand the law and legal proceedings may facilitate the development of a more productive and collaborative relationship between social workers and the courts in child cases, thus enhancing mutual respect and the appropriate division of judicial and administrative responsibility between the courts and local authorities respectively. e-mail: Carole.Smith@man.ac.uk

G.W. Smith, "A Hello to Engels?" (Review of Christopher J. Arthur (ed.), Engels Today: A Centenary Appreciation), Res Publica IV/2 (1998), 251-254: A collection of essays, exegetical, political and methodological, which challenges the commonly accepted view of Engels as merely Marx's chief messenger-boy. It is argued, inter alia, that he is a constitutionalist and political realist rather than a romantic revolutionary; that he avoids the errors of crude materialism; that his philosophy of science anticipates Popper; that he is a proto-ecologist; and that altogether his thought reveals a depth and independence which remains particularly of interest to socialists in our so-called 'post-Marxist' era. The essays are of superior quality, many by noted Marxian scholars, and sceptics will may well receive some salutary jolts.

Katharina Sobota, "Identity: A Dream on a Tiger's Back" (Abstract of paper presented at the Association's Lesbos Conference, July 1992). The concept of "identity" has become a preferential rhetorical scheme to legitimate the claims of various groupings. Furthermore, it is a current tool to construct "personalities" and "things" which are tailored to the needs of social systems -- such as the system of Law. In all these contexts the concept of identity seems to have a positive sense: people "long for" their identity, want to "protect" their identity, or "rely" on the identity of somebody or something. On the other hand, in academic discussion, we can recognize a deep scepticism against the identity-concept. Under the label of "deconstruction", identity is often regarded as a mechanism of mutilation that deforms the natural relationship towards the "other" or divine sources such as "justice" (J. Derrida). This paper seeks to clarify this contradiction between the sceptical academic perspective and the vivid practice of every day life. The method proposed thereby is a way of differentiation which - among others - distinguishes the "deconstruction" from the "destruction" of an identity. This approach is illustrated by an allegorical scene of F. Nietzsche. In this scene, Philosophy and Art are discussing whether they should wake a sleeper who is lying on the back of a tiger - dreaming of deceitful concepts such as identity. The paper tells whether the dreamer is devoured or not (and, analogically, whether the concept of identity should further be constructed or destructed or deconstructed).

Wim Staat, "Ockham, Singularity and Multiculturalism: An Ockhamist Analysis of Singularity and its Politico-Legal Implications", International Journal for the Semiotics of Law /Revue Internationale de Sémiotique Juridique IX/26 (1996), 139-172: This paper discusses the difficulties inherent in the conceptualization of 'singularity'. The first problem is its negative definition: singularity is not particularity. Central to this paper, then, is the question: if the representation of singularity in term of particularity cannot be accepted, what else does singularity signify? The answer to this question is presented in three parts and a conclusion. In part one, the conceptualization of singularity is contextualized. The pertinence of singularity is discussed in the context of contemporary debates on the respect of individuals within larger groups. In section two, the contemporary critique of the representation of singularity is traced to the 14th century nominalism of William of Ockham. This section also discusses Ockham's personal involvement in the political debates of his time. The third section is reserved for an interpretation of the consistency in Ockham's work, considering that he did not explicitly write about singularity as a notion with politico-legal significance. The paper, then, leads to a semiotical understanding of the relation between Ockham's political and philosophical works. More specifically, it leads to a semiotics of singularity which accounts for the difficulties inherent in conceptualization as such. Singularity, then, 'means' abandoning the inquiry into what a concept is, in favor of an inquiry into what the concept signifies. Considering, finally, the contemporarily felt exigency to respect singularity in the political and legal sphere, the paper concludes that such exigency is indeed the consequence of Ockham's conceptual nominalism.

Constantin M. Stamatis, "Justice Without Law: A Postmodernist Paradox", Law and Critique V/2 (1994), 265-284: Recent postmodern critiques of legal reasoning have turned their interest from literary theory to moral philosophy and ethics. The article welcomes this postmodernist interest in justice in the work of Costas Douzinas and Ronnie Warrington, but argues that a good deal of aporias remain which reduce the value of the whole enterprise. My basic claim is that the irredeemable undermining of legal orthodoxy carried out by critical legal theory should not lead to a postmodern abandonment of legal reasoning. The positions defended in the article are opposed to both traditional approaches and postmodern deconstructions. There is a moment for critical stance and for a reconstructive intention that could amount to a better theorising on legal reasoning and justice. (Address: Perikleous 40, Kalamaria, Thessaloniki, 55133, Greece; Tel. and fax: 30-31 432 761).

Christopher Stanley, "Antigone Within the Walls of House", International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique Vol. X no.30 (1997), 231-259: This essay is part of a project in which I am working toward the 'grounding' of a cultural politics of difference on an ethics of alterity (respect). This is a violence involved here operative at a number of levels. Principally, I am interested in utilising transgression as a strategy to interrupt the tyranny of repressive representation (law and society) in a move toward a non-violent configuration of justice in community. In this essay I argue for the relation between the political and the ethical to be implicated in this resistant strategy whilst maintaining awareness of the making of 'work' of justice and community. In utilising the figure of 'Antigone' mourning beyond the city wall of the polis and the art-installation 'House' , I am able to argue that mourning is a significant move in the articulation of this strategy in the sense of being a communal act of notifying the absence of presence and the closure of return. Mourning 'Before the Law' in the non-coercive act of remembrance for the silenced and in the recognition of the lack between selves in the sharing of difference (being in common as being in-difference) involves a compearance Before the Law (the tyranny of singular judgements premised on universal norms - the injustice of the Law of the polis) and that this 'sharing of voices' on a space Before the Law (the heterotopia, the benign space of proximity) signifies a politics of transgression grounded on an ethics of difference.

Douglas J. Stewart, Senior Lecturer, School of Professional Studies, Queensland University of Technology, "Schools and the law in Australia: An overview", in "Education Law", Liverpool Law Review XX/1 (1998), 115-136: Although there is no single academic discipline called education or school law in Australia, the influence of the law on educational institutions has increasingly come to affect their policies and practices. This article examines the impact of statute and common law on Australian schools. The paper provides a brief overview of the development of the nation's political, legal and schooling systems from early colonial days. The consequences of major Australian court decisions and emergent legal issues of importance to school management and administration are addressed. Given the extent of the incursion of the law into all Australian educational institutions it is not possible in this article to explore issues associated with tertiary institutions nor to examine in any great detail potential areas of concern to educational authorities, school principals or classroom practitioners. Nevertheless, an analysis of the most pressing legal issues facing schools is undertaken including: the duty of care for the physical welfare of students in a range of school-related settings such as classrooms, school grounds, travelling to and from school, sport and excursions. Emergent areas of 'school law' likely to affect long established school policies and practices, such as educational malpractice, student rights, students with special needs and injuries incurred through improper or incorrect training/coaching techniques, are addressed. e-mail: d.j.stewart@qut.ed.au

Mary White Stewart, Shirley A. Dobbin and Sophia I. Gatowski, ""Real Rapes" and "Real Victims": the Shared Reliance on Common Cultural Definitions of Rape", Feminist Legal Studies IV/2 (1996), 159-177. - The processing of rape cases in one U.S. state serves as the background for an examination of the definitions of reality used by rape victims and those officials at various levels of the system with whom they must interact. As a result of engaging in this study, the authors became aware of the consistency with which cultural myths and stereotypes surrounding women and their relationship to men were embraced at all levels of the justice system, and by all parties involved. Our investigation found, for example, that victims, police, and district attorneys all talk about rape in terms of "risky and inappropriate behaviour," and "credibility of the victim." It is our contention that the cultural myths and stereotypes surrounding rape, and the rape victim, provide a compelling example of how people in very different positions in the social system appear to rely on the same taken-for-granted explanations and assumptions about reality. And, as a consequence of these myths and stereotypes of rape, the victim is often forced to accept a definition of reality that is removed from her own experience. The perceived legitimacy of these shared cultural myths and stereotypes is reflected in the acceptance of a world view as seen through the eyes of a "reasonable man," and this operates to the implicit and explicit detriment of the victim. The adoption of a "reasonable woman" standard, and increased recognition of, and sensitivity to, the reality of rape, it is argued, may lessen the impact of damaging cultural myths and stereotypes. The authors conclude by posing a number of questions for consideration regarding the implications of this research for the processing of rape cases through the justice system.

Charles N Stoddart, "Civil Procedure: Can The Scots Learn From Woolf?", The Liverpool Law Review xix/1 (1997), 53-65: This article, written by a Scottish sheriff, looks from a Scottish perspective at three of the problems highlighted by the Woolf survey of civil justice in England and Wales: the need for written pleadings; problems of case management; and the place for Information Technology in the Scottish civil courts. As for the first, the author questions the need to keep the traditional Scottish system in the light of the requirements of speedy and affordable justice; he concludes that any structured system of case management in civil cases will only succeed if it is carefully targeted; and he bemoans the absence of an integrated system of Information Technology in Scottish courts. He concludes that urgent action is necessary in all three areas, lest litigants turn away from the courts to use other techniques of dispute resolution.

Andrew U. Straw (Consultant, Virginia Center for Excellence in Government), "The Burmese Internet Resistance as a Model for Global Legal Systems": The questions presented in this article are whether to categorize the Free Burma movement as a "legal" entity, and if so, whether and how it contributes to a developing global legal pluralism. Given the decentralized, yet incredibly effective, network nature of the movement, one may be tempted to brush it off as a mere flash in the pan when compared with state-centered law. However, recent legal scholarship in the pluralism area (Teubner, Slaughter) recognizes that powerfully-enforced norms outside of state structures will have a profound influence on how states themselves operate in the global 21st Century. The underlying analysis of the group using the legal composite "actor-object-norm-legislation-enforcement" allows for nearly any entity to be classified as "legal," but this may be a compliment rather than a critique, given the broad idea of the legal which entails legal pluralism. Considering the uniting movement which is taking place in economics and biophysics-complex adaptive systems-the idea of considering both the living and the non-living, the state and the association, as all part of a universal legal pluralism will be extremely useful for innovative cross-disciplinary studies. Being too attached to the appellations given to each piece of this giant mechanism, I submit, is to miss the pluralistic forest for the state-centered trees. For the full article, click here.

John Strawson, "Islamic Law and English Texts", Law and Critique VI/1 (1995), 21-38: This essay argues that the constructive character of the English narrative of Islamic law can be traced to the British imperial engagement with India in the eighteenth century. Current English images of Islamic law draw on the scholarly work of Schacht, Coulson and Mayer. From this discourse Islamic law appears irretrievably backward, unchangeable and limited to family and personal status matters. In reviewing some critical texts the moments of construction the essay traces how Islamic jurisprudence is drawn on to the English terrain. Through this process the English texts enframe Islamic law, define it and judge it. This process can be seen in the translation into English of al-hidaya by Charles Hamilton in 1791 where in his introduction, Hamilton shows deftness and subtly in establishing an English 'superior location.' The text is subsequently re-edited in the nineteenth century omitting the references to international law and public law (al-siyar) which illustrates colonial power in constructing the character of legal systems which it occupied. This is placed in the context of Alexander Dow's History of Hindustan (1772) which demonstrates the contradictions of conquest and show how Islamic practices in law and government are drawn by colonialism web the web of the theory of oriental despotism. The essay's reference point is Edward Said's methodology in Orientalism and argues for recognition of a legal orientalism which has stamped jurisprudence from the European enlightenment. It is significant that Said's work as become central to the debates in legal theory in the l990's as postcolonial discourse begins its engagement with law. This article is part of longer project on the English narrative of Islamic Law. John Strawson, School of Law, University of East London, Longbridge Road, Dagenham, Essex, RM8 2AS, U.K. (e-mail: j.strawson@uel.ac.uk).

Carl F. Stychin, "Queer Nations: Nationalism, Sexuality and the Discourse of Rights in Quebec", Feminist Legal Studies V/1 (1997), 3-34: In this article, the author seeks to interrogate the relationship between national culture, sexual identity politics, and rights discourse in the context of political and legal developments in Quebec. He argues that while nationalist discourse has left space to homosexuality within its imagination of a Quebec nation, creating arguably the most "progressive" society in North America in terms of lesbian and gay politics, it has also had an ambiguous relationship with the homosexual. While at some moments, homosexuality has served as a metaphor for the place of Quebec in relation to the rest of Canada, at other times a discourse of colonial contamination has been deployed to situate homosexuality as a foreign and corrupting influence. Although the increasing centrality of rights discourse in Quebec political culture creates the possibility for "progressive" legal change, cultural change may be more unpredictable given the often contradictory constructions of homosexuality within the discourses of Quebecois nationalism.

 

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