scholarly journals The role of narrativity in Ronald Dworkin’s legal theory: is there a narrative theory in “How law is like literature”?

2019 ◽  
Vol 5 (2) ◽  
pp. 441-463
Author(s):  
Gilberto Magalhães Filho ◽  
Saulo Monteiro Martinho de Matos
Keyword(s):  
Narrative Theory ◽  
Legal Theory ◽  
Research Question ◽  
Normative Theory ◽  
Political Community ◽  
The Political ◽  
Institutional History ◽  
Naturalistic Theory ◽  
Theory Of Law

This paper has the purpose of assessing the role of narrativity in Ronald Dworkin’s theory of law. The research question is to know whether Dworkin’s theory of law can be considered a narrative theory of law. By narrative theory, we mean a theory that is based on a heuristic characterization of plots, narrative genres, characters etc. Dworkin introduces six theses in order to link literature and law, in his classic “How law is like literature”: (1) law, as a practice of identifying valid legal propositions, can be better understood when compared to the practice of literature (synechist methodology thesis); (2) the compression of the practice of law always involves a descriptive and valuative dimension (normative theory thesis); (3) every judgment about art presupposes a theory about what art is (aesthetical hypothesis); (4) every judgment about valid legal propositions presupposes the determination of what law is (political hypothesis); (5) the political hypothesis of law depends on understanding the intentionality of the political community (chain novel); and (6) The chain novel depends on understanding the institutional history of the political community (institutional history thesis). This paper’s conclusion is that Dworkin’s theory must be seen as a narrative theory, and that without such narrative aspect, his theory would simply be a legal naturalistic theory, since the purpose or value of the law would thus become absolute.

Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

2021 ◽  
Author(s):  
Linda Tvrdíková
Keyword(s):  
Decision Making ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Normative Theory ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Deliberative System ◽  
Experiential System ◽  
Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

How to Exist Politically and Learn from It: Hannah Arendt and the Problem of Democratic Education

2010 ◽  
Vol 112 (2) ◽  
pp. 556-575
Author(s):  
Gert Biesta
Keyword(s):  
Hannah Arendt ◽  
Democratic Education ◽  
Research Question ◽  
Political Life ◽  
The Political ◽  
Moral Qualities ◽  
Democratic Life ◽  
The Relationship ◽  
Background Context

Background/Context In discussions about democratic education, there is a strong tendency to see the role of education as that of the preparation of children and young people for their future participation in democratic life. A major problem with this view is that it relies on the idea that the guarantee for democracy lies in the existence of a properly educated citizenry so that once all citizens have received their education, democracy will simply follow. Purpose/Objective/Research Question/Focus of Study The question that is explored in this article is whether it is possible to think of the relationship between education and democracy differently than in terms of preparation. This is important not only to be able to acknowledge the political nature of democratic education but also to be able to acknowledge the political “foundation” of democratic politics itself. Research Design The argumentation in the article is developed through a critical analysis and discussion of the work of Hannah Arendt, with a specific focus on her ideas about the relationship between education and politics and her views on the role of understanding in politics. Findings/Results Arendt's writings on the relationship between education and politics seem to be informed by a “developmentalistic” perspective in which it is maintained that the child is not yet ready for political life, so education has to be separated from politics and seen as a preparation for future participation in political life. Arendt's writings on politics and the role of understanding in political life point in a different direction. They articulate what it means to exist politically—that is, to exist together in plurality—and highlight that political existence is neither based on, nor can be guaranteed by, moral qualities such as tolerance and respect. Conclusions/Recommendations The main conclusion of the article is that democratic education should not be seen as the preparation of citizens for their future participation in political life. Rather, it should focus on creating opportunities for political existence inside and outside schools. Rather than thinking of democratic education as learning for political existence, it is argued that the focus of our educational endeavours should be on how we can learn from political existence.

‘To activists: Please post and share your story’: Renewing understandings on civic participation and the role of Facebook in the Indignados movement

2017 ◽  
Vol 32 (6) ◽  
pp. 583-597 ◽  
Author(s):  
Venetia Papa
Keyword(s):  
Social Media ◽  
Civic Participation ◽  
Political Community ◽  
Political Activity ◽  
The Political ◽  
Structured Interviews ◽  
Political Issues ◽  
International Financial Crisis ◽  
Online Social Media

The global upsurge in protest, which has accompanied the current international financial crisis, has highlighted the extensive use of online social media in activism, leaving aside the extent to which citizenship is enacted, empowered and potentially transformed by social media use within these movements. Drawing on citizenship and communication theories, this study employs a cross-country analysis of the relationship between citizenship, civic practices and social media within the Indignados movement in Greece and France. By the use of semi-structured interviews, we attempt to discern the degree of involvement of actors with the political community in question and explore the complex layers of their motivations and goals around participation. Content analysis employed in the movement’s Facebook groups allows us to critically evaluate the potential of social media in (re)defining the meaning and practice of civic participation. Findings indicate that the failure of traditional forms of civic participation to attain and resolve everyday political issues becomes its potential to transfer the political activity in other sites of struggle. The role of Facebook is double: it can reinforce civic talk and debate through activists’ digital story telling (around shared feelings and personal stories) significant for meaningful activist participation online and offline. Second, it can support new forms of alternative politics inspired by more participatory modes of engagement.

“A Trespass against the Whole Species”: Universal Crime and Sovereign Founding in John Locke’s Second Treatise of Government

2018 ◽  
Vol 46 (4) ◽  
pp. 560-585
Author(s):  
Sinja Graf
Keyword(s):  
Natural Law ◽  
Private Property ◽  
Normative Theory ◽  
The State ◽  
The Self ◽  
The Political ◽  
State Of Nature ◽  
The Subject ◽  
The Creation

This essay theorizes how the enforcement of universal norms contributes to the solidification of sovereign rule. It does so by analyzing John Locke’s argument for the founding of the commonwealth as it emerges from his notion of universal crime in the Second Treatise of Government. Previous studies of punishment in the state of nature have not accounted for Locke’s notion of universal crime which pivots on the role of mankind as the subject of natural law. I argue that the dilemmas specific to enforcing the natural law against “trespasses against the whole species” drive the founding of sovereign government. Reconstructing Locke’s argument on private property in light of universal criminality, the essay shows how the introduction of money in the state of nature destabilizes the normative relationship between the self and humanity. Accordingly, the failures of enforcing the natural law require the partitioning of mankind into separate peoples under distinct sovereign governments. This analysis theorizes the creation of sovereign rule as part of the political productivity of Locke’s notion of universal crime and reflects on an explicitly political, rather than normative, theory of “humanity.”

scholarly journals On Feeling Political: Negotiating (within) Affective Landscapes and Soundscapes

PhaenEx ◽  
2012 ◽  
Vol 7 (2) ◽  
pp. 96
Author(s):  
JEAN-THOMAS TREMBLAY
Keyword(s):  
Gilles Deleuze ◽  
Research Question ◽  
The Other ◽  
Political Life ◽  
Felix Guattari ◽  
The Political ◽  
Political Theorist ◽  
Alternative Approach ◽  
Lauren Berlant

This article generates an affective hermeneutics of the political. The research question, What is feeling political? is, at first, refined through the oeuvre of political theorist Simone Weil, whose focus on experience, involvement and attention highlights the role of sentience in political life. The inescapable normativity of Weil’s texts calls for an alternative approach to the question at hand, one that acknowledges the inevitability of the phenomenon of feeling political. In order to produce such an approach, the realm in which said phenomenon occurs is spatialized as an indefinite series of rhizomatic affective atmospheres in which the negotiation of one’s involvement, resistance, association, and isolation prompts a variety of orientations. The work of Lauren Berlant is subsequently considered as a means to stress the interplay between noise and ambience on one hand, and the notions of citizenship and community on the other. Ultimately, a reflection inspired by Gilles Deleuze and Félix Guattari emphasizes the humanist undertone of this investigation, reposing the question of feeling political as an ontological query.  

scholarly journals »L’État, c’est le droit!« – Sobre a Atualidade da Teoria do Estado de Hans Kelsen em Face da Metamorfose do Poder Estatal

2016 ◽  
Vol 11 (1) ◽  
Author(s):  
Philipp Reimer
Keyword(s):  
Social Sciences ◽  
Legal Theory ◽  
Legal Pluralism ◽  
Normative Theory ◽  
Soft Law ◽  
The Social ◽  
Hans Kelsen ◽  
Multi Level ◽  
Theory Of Law ◽  
Level Government

»L’ÉTAT, C’EST LE DROIT!« – SOBRE A ATUALIDADE DA TEORIA DO ESTADO DE HANS KELSEN EM FACE DA METAMORFOSE DO PODER ESTATAL*  »L’ÉTAT, C’EST LE DROIT!« - ZUR AKTUALITÄT DER STAATSLEHRE HANS KELSENS IM ANGESICHT SICH WANDELNDER STAATSGEWALT  »L’ÉTAT, C’EST LE DROIT!« - THE CURRENT IMPORTANCE OF HANS KELSEN'S STATE DOCTRINE IN LIGHT OF THE STATE POWER CHANGES   Philipp Reimer**  RESUMO: Confrontada com evidentes mutações na estruturação de instituições e atividades estatais, a teoria do direito pode nos dizer que aspectos deste processo de metamorfose devem ser considerados pelos estudos jurídicos – bem como quais aspectos não precisam ser levados em conta. Fazendo uso de uma abordagem kelseniana, este artigo demonstra como a teoria do direito (compreendida como disciplina normativa) não enfrenta quaisquer dificuldades ao lidar com fenômenos da ordem do dia tais quais „soft law“, „governo de múltiplos níveis“ ou „pluralismo jurídico“. A distinção entre normativo e empírico é a chave interpretativa, aqui, de tal forma que a investigação desta última esfera pertence ao domínio das ciências sociais e não da teoria do direito. PALAVRAS-CHAVE: Identidade entre Estado e direito. Hans Kelsen. Teoria pura do direito. Teoria normativa. Pluralismo jurídico. ABSTRACT: When facing eminent change of the way government institutions and activities are structured, legal theory can tell us in what respects legal scholarship needs to take account of such change - and also, in what respects is does not. Using a Kelsenian approach, this paper shows how legal theory (understood as a normative discipline) has no difficulty in coping with modern-day phenomena such as "soft law", "multi-level government", and "legal pluralism". The distinction of the normative and the empirical is key here, where the study of the latter falls into the domain of the social sciences, not legal theory. KEYWORDS: Identity of legal order and state. Hans Kelsen. Pure theory of law. Normative theory. Legal pluralism. SUMÁRIO: 1 Transformação do Estado – de que Estado? 1.1 Um Estado, duas dimensões, três elementos? 1.2 Diferenciação dos conceitos de Estado. 1.3 Conceito teórico-jurídico de Estado e transformação do Estado. 2 Transformações do conteúdo do direito. 2.1 Autorregulação. 2.2 »Soft law«. 3 Transformação da estrutura do direito: Substituição do Estado. 3.1 »Sistemas de múltiplos níveis« e »pluralismo jurídico« como (aparente) desafio a um teoria do direito centrada no Estado. 3.1.1 »Sistemas de múltiplos níveis«. 3.1.2 »Pluralismo jurídico«. 3.2 Substituição, não transformação do Estado. 3.2.1 A antiquada teoria do direito centrada no Estado como quimera. 3.2.2 A necessária unidade da perspectiva jurídica da ciência normativa. 3.2.2.1 Derrogação apenas internamente a uma ordem jurídica. 3.2.2.2 Construção do direito internacional público e do direito europeu. 3.2.3 O caráter arbitrário da escolha do ponto de partida da abordagem jurídica. Conclusão – perspectivas científico-normativas e científico-sociais sobre a “transformação do Estado”. Referências Bibliográficas. * Publicação original: REIMER, Philipp. »L’État, c’est le droit!« - Zur Aktualität der Staatslehre Hans Kelsens im Angesicht sich wandelnder Staatsgewalt. In: HESCHL, Lisa et seq (Eds.). L'État, c'est quoi? Staatsgewalt im Wandel. 54. Assistententagung Öffentliches Recht. Graz: Helbing & Lichtenhahn, 2014, p. 37-57. Traduzido por Rodrigo Garcia Cadore, doutorando em Teoria do Direito e Direito Público pela Universidade de Freiburg (Albert-Ludwigs-Universität Freiburg), Alemanha, com autorização do autor.** Livre-docente em Direito Público e Teoria do Direito pela Universidade de Freiburg (Albert-Ludwigs-Universität Freiburg), Alemanha. Professor Privatdozent na Faculdade de Direito da Universidade de Mainz (Johannes Gutenberg Universität Mainz), Alemanha.

The Rights Kind of Politics

2018 ◽  
Author(s):  
Brooke A. Ackerly
Keyword(s):  
Political Economy ◽  
Human Rights ◽  
Political Theory ◽  
Global Justice ◽  
Normative Theory ◽  
Political Community ◽  
The Political ◽  
Transformative Politics ◽  
Taking Responsibility ◽  
Normative Political Theory

Just responsibility is a way of taking responsibility for all forms of global injustice (not just women’s human rights) and to all people, even those who consider themselves removed from the politics of global injustice (though they want to be engaged). Chapter 7 applies the theory to taking responsibility through the enactment of roles in the political economy—those of consumer, donor, worker, and activist—and beyond. It summarizes the view of political community, accountability, and leadership essential to transformative politics. Just responsibility is more than a normative theory of human rights principles. It is also a normative political theory of how to carry out those principles not only in the practices proscribed by our roles in the political economy, but also in imaginative practices that defy the boundaries of those roles in order to transform the political economy. Just responsibility is a human rights theory of global justice.

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