scholarly journals The Rationality of Legal Discourse in Habermas's Discourse Theory

2003 ◽  
Vol 23 (2) ◽  
Author(s):  
Eveline T. Feteris
Keyword(s):  
Research Program ◽  
Legal Discourse ◽  
The Other ◽  
Discourse Theory ◽  
Legal Argumentation ◽  
Complementary Relationship ◽  
Rational Discourse ◽  
The One ◽  
Politics And Law ◽  
Legal Procedures

This paper argues that Habermas's conception of the rationality of moral and legal discussions has import for argumentation theorists interested in the rationality of public deliberations in politics and law. I begin with a survey of Haber mas's discourse theory and his criteria of rationality for moral and legal discourse. I then explain why, in his view, the forms of rational discourse in morality and law complement each other. My aim is to show how Habermas's account of this complementary relationship opens up fruitful perspectives for argumentation theory. Specifically, his thought can stimulate research regarding, on the one hand, the ways in which legal procedures provide for presumptively rational resolutions of moral disputes and, on the other hand, the applicability of ideal argumentation-theoretic models to the legal field. I conclude with a proposal for integrating Habermas's ideas in a research program for legal argumentation.

Muslims, Islamic Law, and the Sociopolitical Reality in the United States

2000 ◽  
Vol 17 (2) ◽  
pp. 1-28
Author(s):  
Sherman A. Jackson
Keyword(s):  
Islamic Law ◽  
The United States ◽  
The Other ◽  
Double Consciousness ◽  
American Muslims ◽  
Way Of Life ◽  
Subjective Responses ◽  
Self Image ◽  
The One ◽  
Politics And Law

Native born African-American Muslims and the Immigrant Muslimcommunity foxms two important groups within the American Muslimcommunity. Whereas the sociopolitical reality is objectively the samefor both groups, their subjective responses are quite different. Both arevulnerable to a “double Consciousness,” i.e., an independently subjectiveconsciousness, as well as seeing oneself through the eyes of theother, thus reducing one’s self-image to an object of other’s contempt.Between the confines of culture, politics, and law on the one hand andthe “Islam as a way of life” on the other, Muslims must express theircultural genius and consciously discover linkages within the diverseMuslim community to avoid the threat of double consciousness.

Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth

2021 ◽  
pp. 1-20
Author(s):  
José Duke S. Bagulaya
Keyword(s):  
Civil War ◽  
International Law ◽  
Legal Discourse ◽  
The State ◽  
The Other ◽  
State Of Exception ◽  
Utopian Vision ◽  
The World ◽  
Realistic Representation ◽  
The One

Abstract This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.

scholarly journals Defeasibility, Law, and Argumentation: A Critical View from an Interpretative Standpoint

Argumentation ◽  
2020 ◽  
Author(s):  
Francesca Poggi
Keyword(s):  
Explanatory Power ◽  
The Other ◽  
Legal Argumentation ◽  
Legal Interpretation ◽  
Central Theme ◽  
Critical View ◽  
Legal Literature ◽  
Close Relationship ◽  
The One ◽  
Definition Of

AbstractThe phenomenon of defeasibility has long been a central theme in legal literature. This essay aims to shed new light on that phenomenon by clarifying some fundamental conceptual issues. First, the most widespread definition of legal defeasibility is examined and criticized. The essay shows that such a definition is poorly constructed, inaccurate and generates many problems. Indeed, the definition hides the close relationship between legal defeasibility and legal interpretation. Second, this essay argues that no new definition is needed. I will show that from an interpretative standpoint, there is nothing special about legal defeasibility. Contrary to what some authors maintain, no unique or privileged source of legal defeasibility exists, nor are there privileged arguments to justify it. Specifically, legal defeasibility refers to interpretative outcomes deriving from interpretative arguments that, on the one hand, are very different from one another, and, on the other, are often employed to justify different interpretative outcomes. In the legal field, the problems related to defeasibility have little in common with the problems that this label covers in other areas—such as logic or epistemology—and they are nothing but the well-known problems related to legal interpretation. In conclusion, this paper argues that as far as legal argumentation is concerned, the notion of legal defeasibility lacks explanatory power, and it should be abandoned.

Argumentacja prawnicza w relacjach prawnik – klient

2019 ◽  
Vol 78 ◽  
pp. 264-279
Author(s):  
Sławomir Lewandowski
Keyword(s):  
Subject Matter ◽  
Legal Discourse ◽  
The Other ◽  
Legal Argumentation ◽  
Number Of Factors ◽  
Special Character ◽  
The Subject

A lawyer’s conversation with a client is discourse of special character including elements of a legal discourse. One of the parties in this discourse (client) speaks about facts and the other party (lawyer) provides information about law. The content, form as well as effectiveness of the legal argumentation which a lawyer presents in such a situation depends on a number of factors in terms of both the subject matter and the person concerned. This argumentation is characterised by lack of formalisation, however, it has certain limitations of legal, pragmatic and ethical nature. It precedes and to some extent prepares the argumentation which will be presented in the process of law application.

The Rhetoric of Fragmentation: Fear and Faith in International Law

2009 ◽  
Vol 22 (1) ◽  
pp. 1-28 ◽  
Author(s):  
ANNE-CHARLOTTE MARTINEAU
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Historical Perspective ◽  
Legal Discourse ◽  
The Other ◽  
Current Debate ◽  
Critical View ◽  
Political Implications ◽  
The One ◽  
Fragmentation Of International Law

AbstractOver the last decade international lawyers have been increasingly concerned with the ‘fragmentation’ of international law. However, given that this expression has been repeatedly used by the profession since the mid-nineteenth century to depict the state of international law, one may wonder about its recent revival in the international legal discourse. Why has it re-emerged? What can we learn from previous invocations? An answer may be sought by contextualizing the fragmentation debate in a historical perspective. This brings out the repetitive and relatively stylized modes in which the profession has narrated legal developments. This essay suggests a correlation between periods of crisis in general and a critical view of fragmentation on the one hand, and periods of scholarly enthusiasm and the prevalence of positive views about fragmentation on the other. This analysis sheds critical light on both the implicit assumptions and political implications of the current debate on fragmentation.

Interpreting law in socio-pragmatic space

Semiotica ◽  
2017 ◽  
Vol 2017 (216) ◽  
pp. 109-130
Author(s):  
Vijay K. Bhatia
Keyword(s):  
Hong Kong ◽  
Legal Discourse ◽  
The Other ◽  
Professional Communication ◽  
Diverse Range ◽  
Basic Law ◽  
The One ◽  
Occupy Central ◽  
Theoretical Issues ◽  
Legal Meaning

AbstractUnlike any other form of professional communication, legal discourse, especially in a legislative context, is unique in the sense that it is full of contradictions. Firstly, it is highly depersonalized, as its illocutionary force is independent of any specific writer or reader, and yet it is meant to address a diverse range of audiences. Secondly, it is meant for ordinary citizens, but is written in a style that is meant only for legal specialists. Thirdly, although its primary function is to assign rights and impose obligations to act or prohibit action, it is written in a highly nominal style (language of thinking) rather than verbal style (language of doing). And finally, legislative provisions are meant to be “clear,” “precise,” “unambiguous,” on the one hand, and “all-inclusive,” on the other, which can be seen as a contratdiction in terms. Most of these seeming contradictions make it difficult for the various stakeholders, which include specialists as well as non-specialists, to manage “socio-pragmatic space” in the construction and, more importantly, interpretation of such provisions, particularly when they are interpreted in broadly socio-political contexts. Drawing on some of the contradictory interpretations of certain sections of the Basic Law, widely regarded as the mini-constitution of Hong Kong, this paper will identify and discuss key theoretical issues emerging from a diversity of meanings attributed to somewhat innocuous legislative constructions, which precipitated the “Occupy Central” movement, largely popularized as the symbolic “Umbrella Movement.” The paper thus attempts to highlight two rather different aspects of interpretation of legal meaning, one in the court of law for the negotiation of justice, and the other in wider socio-political and public domains where law is interpreted broadly with wider social implications.

A Century of Milestones of Non-Muslim Islamic Law Scholarship

2003 ◽  
Vol 31 (2) ◽  
pp. 370-379
Author(s):  
Peri Bearman
Keyword(s):  
Research Program ◽  
Islamic Law ◽  
The Other ◽  
Library Collection ◽  
Legal Studies ◽  
Intellectual Interest ◽  
The One ◽  
Made In

My assignment has an added degree of difficulty in that I follow Frank Vogel's presentation on Islamic law, which captured your intellectual interest, and precede Lesley Wilkins’ talk on building a library collection, which will interest you professionally. I have chosen to offer a talk on the achievements made in non-Muslim — here primarily European and American — scholarship on Islamic law, scholarship in the making, as it were, hoping that it will segue easily from the one talk to the other. I will not be describing the Islamic Legal Studies Program and what we do, but if you have any questions about the research program we run, I will be happy to answer them afterwards.

A Coalitional Approach to Theorizing Decolonial Communication

Hypatia ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 404-420 ◽  
Author(s):  
Gabriela Veronelli
Keyword(s):  
Research Program ◽  
The Other ◽  
Body Politics ◽  
Edouard Glissant ◽  
Politics Of Knowledge ◽  
Other Hand ◽  
Maria Lugones ◽  
The One

This article begins by examining the importance that critical intercultural dialogues have within the Modernity/Coloniality Research Program toward reaching an alternative geopolitics and body‐politics of knowledge, in order to raise the question whether the colonial difference creates conditions for dialogical situations that bring together critiques of coloniality emerging from different experiences of coloniality. The answer it offers is twofold. On the one hand, if one imagines such situations to be communicative exchanges à la Bakhtin that put logos at the center, given what is termed the coloniality of language and speech, the possibility of such exchanges is feasible only as an abstract gesture. On the other hand, when one faces the complications of the erasure of dialogue produced by coloniality, the kind of decolonial communicative relations that seem possible among people thinking and acting from the colonial difference are less conscious or agential than emotive. By articulating the relations between coalitional methodologies (María Lugones) and a global sense of connection (Édouard Glissant) the article proposes a nondialogical theory of decolonial communication: a way of orienting ourselves with a sense of permeability and recognition of being on the same side that doesn't need to be politically motivated but is always active.

scholarly journals Rhetoric of violence. On eristic methods used by Stalinist courts in the perspective of Chaïm Perelman’s theory

2018 ◽  
Vol 6 (2) ◽  
pp. 7-48
Author(s):  
Marcin Pieniążek
Keyword(s):  
Theoretical Perspective ◽  
The Other ◽  
Legal Argumentation ◽  
Modern Theory ◽  
Ancient Rhetoric ◽  
Judicial Discourse ◽  
Chaim Perelman ◽  
The One ◽  
Forms Of Violence ◽  
Total Elimination

Eristic methods of the Stalinist courts are a phenomenon, on the one hand, well-documented, yet on the other hand, insufficiently explored from the theoretical perspective. They can be understood as forms of violence occurring in the language of the judicial discourse participants (judges, prosecutors), aimed at the total elimination of political opponents. The article is an attempt to characterise these methods using the conceptual instruments, developed by Chaïm Perelman and presented in the work Logique juridique. Nouvelle rhétorique and L’empire rhétorique. Rhétorique et argumentation. What weighs in favour of using Perelman’s theory are its roots in the abundant achievements of the ancient rhetoric. More importantly, however, one of the main objectives of Perelman was the development of the modern theory of legal argumentation, including judicial one. In this regard, the views of the philosopher are adopted as a counterpoint in the rhetorical analyses of the abuses of the Stalinist courts discussed on the example of the Trial of the Sixteen and the Trial of General A. E. Fieldorf „Nil”.

scholarly journals Philosophy as Verse-Performance: five poems and a formalist prospectus

2017 ◽  
Vol 2 (2) ◽  
pp. 342
Author(s):  
Christopher Norris
Keyword(s):  
The Other ◽  
Rational Discourse ◽  
Introductory Essay ◽  
Poetic Practice ◽  
The One

This article consists of five poems and an introductory essay. The poems are intended on the one hand to make a case for the currently underrated virtues of poetic formalism, i.e., for the revival of rhyme and meter as aspects of poetic practice. On the other they argue for a distinctly philosophical mode of poetry that embraces the values of conceptual or rational discourse as against a romantic-modernist conception premised on the intrinsic superiority of lyric, metaphor, symbol, analogy, and suchlike touchstone values. These issues are laid out programmatically in the opening essay and developed in a more performative as well as formal way in the five poems. 

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