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Law & Humanities Blog

The Reason For Reasoning
Blackstone's Idea of Rights
Joan of Arc As Political Actor

Posted: 25 Apr 2011 12:58 PM PDT

Does Homo jurisconsultus represent an evolutionary milestone? Check out Mark D. White's semi-tongue in cheek post at Psychology Today, discussing a new paper by Hugo Mercier and Dan Sperber (via The Literary Table). Drs. Mercier and Sperber investigate why humans have developed reasoning ability. What is it for? And here I thought it was just to make the decision among the Kindle, the Nook, and the Kobo that much easier.

Blackstone's Idea of Rights

Posted: 25 Apr 2011 08:47 AM PDT

Helge Dedek, McGill University Faculty of Law, has published Of Rights Superstructural, Inchoate and Triangular: Some Remarks on the Role of Rights in Blackstone's Commentaries in The Rights of Private Law (A Robertson and D. Nolan, eds. Hart Publishing, 2011).

Here is the abstract.

Peter Birks has famously described the way in which rights operate in Blackstone's legal cosmos as "superstructural." In order to fully understand what this assessment entails, we will have to take a closer look at how the elements of Blackstone's conceptual mechanism – right/wrong, rights, wrongs, and remedies – interact and complement each other. This "juridical" analysis, however, will inevitably take us back to the more foundational aspects of Blackstone's vision of private law. In a formalist jurisprudence, Ernest J. Weinrib has explained, conceptual constructions and philosophical foundations are closely and intrinsically linked in the sense that the former are the expression of the latter – an insight particularly helpful, I believe, in Blackstone's case, where the explicit verbalization of philosophical underpinnings remains fragmentary and basic theoretical assumptions have to be gleaned from doctrinal construction and categorization. As we shall see, the rights-remedies division in Blackstone's organizational scheme is the expression of a "dualist" conception of the rights-remedies relationship: Blackstone's perception of private law is not a Weinribian vision of a coherent, transactional unit, defined by the correlativity of right and duty. The "rights" that come into existence when a "wrong" is committed are of such nature that they can only be perceived as a triangular relationship that necessarily involves plaintiff, defendant and the state.

Download the essay from SSRN at the link.

Joan of Arc As Political Actor

Posted: 25 Apr 2011 08:07 AM PDT

Winnifred Fallers Sullivan, Suny University at Buffalo Law School, has published Joan's Two Bodies: A Study in Political Anthropology as Buffalo Legal Studies Research Paper No. 2011-017. Here is the abstract. The article is forthcoming in Social Research.

From all of the evidence, Joan of Arc was a conventionally pious Catholic and a patriotic Frenchman. Yet she was tried as a heretic and executed as a traitor. She unnerved both her friends and her enemies in the church and the state with her zeal. And she continues to fascinate. Almost six centuries after she was burned at the stake, her body still has life. This essay uses Kantorowicz's reading of the historical development of the legal fiction of the king's two bodies to re-focus our attention on what Joan of Arc accomplished as a political actor.

Download the article from SSRN at the link.