Undecidabilities and Law

Introductory Note

James Boyd White — Fri, 15 Dec 2023 00:00:00 +0000

This Introductory Note highlights the thematic core of “Justice as Translation and Counter-storytelling”, whilst exploring the corresponding “sophisticators” (translation and narrative). Even though acknowledging their differences, it concludes that they should be understood as creative forms of life (ways of challenging literal-mindedness), that are simultaneously necessary and impossible.

Au plus près du “différend”

François OST — Fri, 15 Dec 2023 00:00:00 +0000

Ce colloque pose la question radicale de notre temps : la diffraction sociale et culturelle actuelle, la revendication identitaire des minorités, la mise en avant systématique du « droit à la différence » ne discréditent-elles pas définitivement les grandes entreprises de médiation collective que sont le droit et la traduction - autrement dit, l’empire de la norme qui fait lien, et l’emprise du langage qui assure la reconnaissance ?
Mon constat est celui de l’isomorphie de ces mises en question ; mon intuition est celle d’une pareille isomorphie des manières dont il convient de les prendre au sérieux et de les traiter (les traiter, c’est-à-dire les assumer, et non les résoudre comme si on pouvait les dissoudre); mon souhait est de tenir le plus longtemps possible les deux bouts de la question : ne rien lâcher quant à la nécessité de la médiation et de la traduction tant du langage que du droit, tout en me tenant au plus près du « différend ». Comment donc faire droit aux revendications du particulier, et en même temps plaider en faveur des ressources médiatrices – mieux innovatrices – du langage et des valeurs à prétention générale ? Comment penser un jeu à somme positive ? Comment imaginer un dispositif social à « propriété émergente » où le tout est plus grand que la somme des parties ?

Narration as a threshold in the search for meaning

Maria Paola Mittica — Fri, 15 Dec 2023 00:00:00 +0000

How can a narration that has been moved by an artistic sensibility contribute to the understanding of the work of the jurist? The chosen narrative in response to the question is from literature and revolves around a page by Musil from The Man Without Qualities, in which Musil talks
about man’s need to give a narrative order to his life. As we shall see, this order is made up of a quality crossing Aesthetics. By making dialogue from this page by Musil with two works by Kiefer, we will try to show as the artistic way can be useful for the jurist to extend his/her sensibility and imagination.

Dante’s Political Narratives

Alberto Vespaziani — Fri, 15 Dec 2023 00:00:00 +0000

This contribution investigates Dante’s work by putting it under the lens of law and the legal literature that has taken an interest in his reflections. The essay is divided into three parts: the first part discusses some legal writing on Dante’s work; in the second part, I analyze some passages of the Monarchia in which Dante’s imperial vision emerges; in the third part, I discuss the three political cantos of the Commedia in which Dante deals with the municipal, national and universal dimensions of political action. I will argue that the political Dante does not reach the intellectual heights of Dante the poet, and that his conceptions of politics and law are contradictory and remain within the context of medieval culture.

Unpacking care and virtue from narrative ethics

Alessandro Serpe — Fri, 15 Dec 2023 00:00:00 +0000

The present research deals with the concepts of care and virtue, by emphasizing the branch of studies known as the ethics of care and the neo-Aristotelian virtue ethics seen as narrative ethics. In the first part, I explore the essential features of “care” with special regard to the early works of Mayeroff, Ruddick, Gilligan and Noddings. The second part focuses on the interest in the concept of virtue sparkled within Analytic philosophy after a long period of neglect, by referring briefly to the inquiries of Anscombe, Geach and Foot. The main
focus will be, however, upon MacIntyre’s view on virtue. In the wake of Aristotle’s concept of virtues as moral excellences MacIntyre argued for a down-to-earth approach to moral agency and moral decision-making. In the last part of the work, I will unpack care and virtue from both narrative ethics by identifying some possible areas of dis/agreements. A special emphasis will be laid on the narrativity underpinning both views.

The Black Women’s Literary Renaissance

Carla Faralli — Fri, 15 Dec 2023 00:00:00 +0000

Starting in the mid-1970s, black women came fully into the realization that their oppression was owed to several intersecting factors (what Kimberle Crenshaw identified as intersectionality). And with that appreciation, they began to
forcefully assert themselves in light of the specificity of their multifaceted condition and identity, to that end availing themselves of a range of tools, among which those of Law as Narrative (as detailed in Robert Cover’s essay “Nomos and Narrative”), enabling them to better describe their experience.

Law as an exclusive or inclusive normativity and discourse

Ana Margarida Gaudêncio — Fri, 15 Dec 2023 00:00:00 +0000

Regarding law as a necessarily exclusive and/or inclusive discourse, and the juridical text as a specific narrative expression of certain fractional form(s) of life, the continuously required translation of the meaning(s) and intention(s) of each word within it allows for innumerable different possibilities, according to the interpretive communities in presence and to the different identities they assume and express. Conceiving, therefore, the meanings of law and of the juridical materials and the intentions of legal thinking as multipolar conglomerates of partial convictions and understandings.
Exemplarily, some contemporary Feminist Jurisprudences and LGBT-GNCcrits, as derivations of the so-called third Critical Legal Scholar’s generation, in militant empowering sights, face law as an originally and intentionally exclusive normativity and discourse. Involving specific identity deflections in the definition of juridical intersubjectivity, and in the meaning, intent, and content of law, in order to get the recognition of some partially affirmed inclusive normativity and discourse. And, therefore, requiring specific juridical narratives, and translation frames, within prescriptive contents, both substantively – in the answers offered by law to gender problems and to subjects of different gender identity – and linguistically – in the concomitantly mobilised vocabulary and interpretation. Which offer new components and delimitations to the notion of subject of law, transferring the core of the discussion on the meaning(s) and content(s) of law from comparability and tertiality to incomparability and singularity… Drawing alternative images, and distinct statements, on identity and difference, beyond equality, as intrinsic features of law – subjectively, in the meaning and structure of the concept of juridical person, and, objectively, in the meaning and structure of juridical normativity and discourse.

The Pluralism of Identities as a Challenge to Law’s and Legal Theory’s Claim to Comparability

J M Aroso Linhares — Fri, 15 Dec 2023 00:00:00 +0000

The aim of this paper is to discuss the impact that a critical-reflexive experience of marginalized identities and forms of life—opening the path to a plural ensemble of outsider jurisprudence(s) and their particular (incommensurable) ways of storytelling — may have in our understanding of law as a specific practical-cultural way of creating and institutionalizing communitarian meanings. Should this impact be reduced to a contingent prescriptive statutory assimilation of plausible answers? Should not instead this impact be reconstituted under the possibilities of Fish’s interpretative communities, or, in alternative, as an opportunity (explored in the “thematic level” of Greimassian
semiotics) to confront different “narrative typifications of action” (Jackson) and the corresponding sociolects? Doesn’t this experience of the margins impose however a more drastic reflexive challenge? I would say it does, not only as a possibility to discuss the impact of narrative rationality in law’s construction of meaning (in counterpoint with other types of rationality), but also as an opportunity to discuss law’s and legal theory’s claims to comparability, which means returning to Duncan Kennedy and to the specific gaping wounds that Feminist Jurisprudence(s), Critical Race Theory, Lesbian, Gay and Transgender Legal Studies or Postcolonial Law Theory opened in Critical Legal Studies.

Phenomenology of Art and Narrative in Hannah Arendt

Camilo Arancibia Hurtado — Fri, 15 Dec 2023 00:00:00 +0000

Hannah Arendt’s aesthetic reflections have not been largely considered in Law and Literature (1), contrary to her contributions to political theory and philosophy. This article seeks to give an approach to the phenomenology of art developed by Arendt to apply it to Law and Literature. For this (2) I describe what this theory consists of, focusing the analysis on the notion of a work of art whose characteristics (permanence and uselessness) and functions (visibility and anticipation) are intertwined with two types of narrative: first, the narrative for redemption (3), based on which Arendt redeems the defeated in history and, second, narration for understanding (4), which seeks to morally
engage the reader in social phenomena. To highlight the use of both forms of narration, I pay attention to the use of Proust In Search of Lost Time in Arendt’s work, regarding the redemption of the Jewish outcast, and to the analysis of a story by Günter Anders entitled Die beweinte Zukunft (1961), based on which I present the concept of understanding developed by Arendt, but led to concern for the current climate crisis.
I conclude (5) with some projections and criticisms that show that Arendt’s phenomenology and her use of the narrative can be used in Law and Literature to reflect on the great problems of contemporary times.

Law as Literature in International Law

Maria João Pereira de Melo — Fri, 15 Dec 2023 00:00:00 +0000

We propose to reflect on the importance of narrative and language in international law as active elements of creation. To this end, we will rely on the law as literature methodological approach, demonstrating that importance in the light of the creation of binding force in jus cogens norms.

Principles as Guiding Lights and the Performance Moments for stabilizing indigenous possessory rights in Brazil

Aline Souza — Fri, 15 Dec 2023 00:00:00 +0000

This study proposes a methodological reflection on the problem raised in the Extraordinary Appeal 1.017.365/ SC, through which the Federal Supreme Court (Brazil) considers the definition of the legal-constitutional statute of the territories of traditional indigenous settlement as a matter of general repercussion. Is it possible to say that there is a conflict between two opposing narratives: traditionality versus temporality. To shed light on this issue, we count on Drucilla Cornell and her “Philosophy of the Limit”. This philosophy provides a deconstructionist and diachronic analysis of the legal system by promoting the genealogical reconstruction of the problem and the hierarchical relations involved. According to Cornell, legal interpretation is both a discovery and an invention of the solution through the normative orientation of principles, which act as guiding lights. Principles help us to avoid paths that go against their intended purpose,
which allows us to handle differences and disputes through the legal system. Despite that, there are several external complexities raised by the parties involved that draw attention to the “Performance Moments”, which means the moments for the presentation of different arguments by the different actors involved (not only lawyers but also other interested third parties) to the audience(s), in a responsible way for the intended effects and sensitive to the impressions received. This is a clear allusion to the metaphor of “Law as Performance” developed by Sanford Levinson and Jack Balkin, though with some differences, as their developments focus on the performance of jurists, especially in the role of interpreter/judge. At the same time, the present work also seeks to explore the “responsibilities in performances” of the other actors involved.

The Reconstitution Of Narratives By The Judge

Isabela Moreira Antunes do Nascimento — Fri, 15 Dec 2023 00:00:00 +0000

The judiciary is not a charity house. But it can’t be a lottery house either. When dealing with an applied social science (which is not – and cannot be - cartesian) the human factor will inevitably make a difference in the equation because people perceive the same situation differently, according to their own filters. The law, doctrine and jurisprudence could offer limits to this cognitive process, but end up being used (manipulated) later, just to justify what the subject-judge already wanted to do, simply deciding according to his own conscience. The ideal of justice is so discredited that the most modern courses revolve around persuasion (rhetoric) in court precisely because “in every head, a different sentence”. That increase the adherents to the empire of the law. But as history has taught, extremes are dangerous. On the one hand, narcissistic judges, who simply do what they want, when they want. On the other hand, judges who do not print their
identity in the decision, using only the law, the process in its rawness, forgetting the human factor. The judge can understand what cannot be written: emotions. But he is also a human being, so it is important that he perceives his own to remain in the place of external third party in the concrete realization of law. The intention, therefore, is to reverse the procedure so that it is heeded to legislative changes and contemporary jurisprudence, which should be followed by hierarchy, rather than anchoring itself in “diary-sentences” or “parchment-sentences”.Therefore, practical rationality, by encouraging the judge to fit the law (previously studied) to the concrete case (analyzed later) inspires (self)control (emotionally) and allows adequate fundamentation. It is possible and urgent because people under jurisdiction deserves some legal certainty.

Judges: officials, activists or mediators?

Rafael Vasconcellos — Fri, 15 Dec 2023 00:00:00 +0000

In legal systems there are interpretative openings and limits resulting from the bundling of internal factors, related do the judge, and external, related to the environment. The combination of these factors gives rise to a three-judge model: officials-judges, activists-judges and mediators-judges. Different methodological proposals seek ways to the correct answer or one capable of restricting discretion, with Ronald Dworkin’s argument of principle and
Castanheira Neves’ methodical scheme as affirmative conceptions. With the intention of providing a contribution to the problem of interpretation and its limits, this paper takes the opposite path (negative conception), stipulating assumptions, which if exceeded lead to a legally irrational and, therefore, arbitrary decision. Such presuppositions are the interpretative beacons seen under the objective-temporal and subjective-spatial binomial that can serve as interpretative limit.

Editorial

J M Aroso Linhares, Ana Margarida Gaudêncio — Fri, 15 Dec 2023 00:00:00 +0000

This editorial identifies the thematic core of the third volume of Undecidabilities and Law, which, concerning the challenges (and claims) of juridically relevant Justice, confronts two different (irreducible) assimilation modes: translation and counter-storytelling. It also considers the specificity of this volume, which, under the sign of exceptionality, departs from some of the rules that support the other volumes.