Law & Humanities Blog |
- The Greek and Roman Laws of Obligations
- Constitutional Discourse and Systems Theory
- IP Stories
- Narrative and Rhetoric In Legal Persuasion
| The Greek and Roman Laws of Obligations Posted: 02 May 2011 11:43 AM PDT Helge Dedek, McGill University Faculty of Law, and Martin Schermaier have published Obligation (Greek and Roman), in the Encyclopedia of Ancient History (Roger Bagnall, Kai Brodersen, Craige Champion, Andrew Erskine, and Sabine Huebner eds., Oxford: Wiley & Blackwell, 2011). Here is the abstract. Justinian's Institutes defined the concept of obligation as follows: Obligatio est iuris vinculum quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura (Iustinian Institutiones 3.13.pr): The obligatio is a "legal tie" (iuris vinculum) that binds us to render a performance to another person according to our laws. This definition timelessly expresses the nature of an obligation: a debtor owes a duty to the creditor. The content of such a duty, and exactly how it may or must be performed, are infinitely variable and determined by the event that gives rise to the obligation, not by the concept of obligation itself. When we examine the idea of an obligation, it is possible to distinguish between the debtor's duty and the debtor's potential liability. The concept of "duty" expresses that someone (the debtor) owes something to another (the creditor). The concept of "liability" adds that the debtor can be held responsible if he breaches such a legal duty: the creditor can seek the assistance of the courts if he does not receive what was owed to him.Download the text from SSRN at the link.   |
| Constitutional Discourse and Systems Theory Posted: 02 May 2011 11:27 AM PDT Pablo Holmes, Flensburg University, has published The Rhetoric of 'Legal Fragmentation' and its Discontents: Evolutionary Dilemmas in the Constitutional Semantics of Global Law in volume 7 of the Utrecht Law Review (April 2011). Here is the abstract. This paper engages in the current debate on legal fragmentation and social inclusion from the perspective of systems theory. Its particular focus is directed at the changing patterns of social inclusion/exclusion under the condition of the emerging constitutional discourses of world law. While fragmented global law would still be able to safeguard functional differentiation, the neutralization of exclusionary dynamics is successively failing. This failure is attributed to the decline of politics in world society. |
A fragmented global law operates to a lesser degree in concert with national politics in order to guarantee the modern imperative towards full inclusion.Download the article from SSRN at the link.
Posted: 02 May 2011 08:05 AM PDT
Jessica M. Silbey, Suffolk University Law School, has published Comparative Tales of Origins and Access: Intellectual Property and the Rhetoric of Social Change at 61 Case Western Reserve Law Review 195 (2010). Here is the abstract.
This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms "the Access Movements" are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property "promote the progress of science and the useful arts." Relying on cases, statutes and recent policy debates, this Article contrasts the language of traditional intellectual-property law (origins and exclusivity) with the new language of the Access Movements (anti-origins and access). The Article compares the language of the Access Movements to that of sociopolitical movements of the past, and it draws lessons for successful and unsuccessful uses of rhetoric to enact social change. The Article concludes by showing how the language of the Access Movements retains certain core elements of the intellectual-property regime to which it is reacting and investigates whether this is an effective strategy (whether or not a conscious one) to stimulate change.Download the article from SSRN at the link.
Narrative and Rhetoric In Legal Persuasion
Posted: 02 May 2011 08:01 AM PDT
Linda L. Berger, Mercer University School of Law, has published The Lady, or the Tiger? A Field Guide to Metaphor and Narrative at 50 Washburn Law Journal 275 (2011). Here is the abstract.
Metaphor and narrative reassure us that things hang together, providing a sense of coherence to the patterns and paths we employ for perception and expression. In this field guide, I hope to illustrate - with images and stories when possible - how better understanding of metaphor and narrative can guide those engaged in legal rhetoric and persuasion.Download the article from SSRN at the link.
The article briefly summarizes cognitive theory relating to metaphor and narrative, provides snapshots of their use in the field, in real-life legal persuasion, and suggests ways to adapt metaphor and narrative to a specific example of legal persuasion. In the field guide section, the article uncovers a few of the metaphorical frames and narrative paths that exist in practice. In the guided exploration, to illustrate the process of excavating and re-shaping persuasive arguments, the article explores the storytelling and framing of the briefs (including the brief of the NAACP Legal Defense Fund) and the majority (Justice Douglas') and dissenting (Justice Harlan's) opinions in Boykin v. Alabama, the U.S. Supreme Court decision requiring an affirmative showing that a guilty plea was entered knowingly and voluntarily.
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