Amatory Jurisprudence and the Querelle des lois

Cardozo Law Review, 2007

Literature Compass, 2006

This essay examines the emerging ideological relation between literature and law in the Romantic era and the significance of this relation to modern Western conceptualisations of what constitutes ‘law’ and ‘literature’. In particular, the article explores the problematics of juridical textuality in the Romantic period – the extent to which the law comes to be regarded as text– and seeks to set this within the context of developing conceptualisations of ‘literature’ as a juridically defined commodity. The modern understanding of ‘literature’ began to be shaped in the Romantic era by a juridical re-formulation of the relation between the author, the text, the reader and the publisher: creative, original writing –‘literature’– becomes a commodity copyrighted to an author/publisher. This development is accompanied by the State’s recognition of the growing cultural and political power of new and diverse textual forms in an era of the mass production and consumption of ‘literature’, and the article considers alongside the contemporaneous formulation of copyright regulations the draconian censorship of textual production in this period. With reference to diverse juridical and literary sources (Clara Reeve’s The Progress of Romance, Blackstone’s Commentaries, Bentham’s Fragment on Government, Godwin’s Enquiry and Caleb Williams, amongst others), I examine the extent to which these various phenomena reveal the subjection of textuality in the Romantic era to the modern force of law.

The paper is to answer the question what jurisprudence is. Is it still “the science of things divine and human”, as it was wonderfully stated in the Code of Justinian in 534, following Roman law (Roman jurisprudence) and great Roman jurists like Ulpian? Is jurisprudence still “the science of the just and the unjust”, as we read in the Code? I propose to go to Justinian’s Compilation, Book I. Of Persons, I. Justice and Law: Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. The paper will also examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century. The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe. My thesis is that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was essentially redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Now axiological consistency of Western law is full of … inconsistency. Something is broken in jurisprudence. Nowadays, in the beginning of the 21st century, for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy. However, there are good exceptions (Finnis, Witte, Bankowski). There is an axiological struggle in this science indeed. What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state. Its practical importance in legal education and political science is remarkable. I analyse relations between law and religion (and morality) in jurisprudence while talking about the condition of the today Western jurisprudence. Furthermore, while going back to the origins of law in Europe, I focus on three roots: Greek philosophy (Aristotle and Plato), Roman law (Ulpian, Cicero, Gaius etc.) and Medieval jurisprudence and theology (St. Thomas Aquinas, Medieval jurists like Accursius, Iacobus, Bartolus, Baldus, and the Salamanca school of natural law in the persons of Suarez, Molina, Lessius etc.). Western law conceptually was rooted in Christianity. Sadly, while answering the question from the paper sub-title, it seems to me that nowadays jurisprudence is more about human things, but almost not about divine things; God does not exist for the legislator and most of the legal scholars. God died, as Nietzsche said. Nowadays also the great idea Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) is a slogan, since moral philosophy as “a mother of law” (Baldus Commentaria to D. I.I.I.2) seems dubious. The necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Colosseum, and Golgotha, is becoming so obvious. This was and is Justinian’s heritage.

Liverpool Law Review, 2013

Law and critique, 2024

In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.

Australian Feminist Law Journal, 2003

For French poet, playwright, author and theorist, Hélène Cixous, the question of origin is always a question of the origin of the very drive to write; it is always a question of the ‘wild heart’: for one must have a ‘touch of something savage, uncultured, in order to let it happen.’ This ‘wild heart’, this drive to write, is, in the Cixousian lexicon, closer to the ‘feminine’; and the texts it produces constitute what she calls ‘feminine writing’ or écriture féminine. Endeavoured in this article is a discussion of law and legal authority, which disrupts or transcends (classic) phallic discourse. Relying heavily upon the poetic writings of Cixous, it will be demonstrated that ‘feminine writing’, as a narrative (non)structure, which does not conform to predictability and linearity, resists a return to the origin. Such writing ‘frees the writer to express and communicate complex ideas, values and attitudes, ones which may have been previously repressed’ (Comte 2001: 8). In so doing, ‘feminine writing’ encourages a discussion of law that has been otherwise neglected or unexpressed and offers a unique challenge and resistance to the authority upon which law’s foundational claims rest.

2019

The collection of thirty-five essays presented here examines the links forged through the ages between the realm of law and the expressions of the humanistic culture. The essays are organized into sections of ten chapters based around ten different themes. Two main perspectives emerged: in some articles the topic relates to the conventional approach of ‘law and/in humanities’ (iconography, literature, architecture, cinema, music), other articles are about more traditional connections between fields of knowledge (in particular, philosophy, political experiences, didactics). The variety of authorial nationalities gives the collection a multicultural character and the historiographical interpretation is the element that unites the collection, with a breadth of the chronological period goes from antiquity to the contemporary age. This project is the result of discussions that took place during the XXIII Forum of the Association of Young Legal Historians held in Naples in the spring of 2017

ehumanista Journal of Iberian Studies, 2006

2015

There is hardly anything more decorously and liturgically performed than what takes place in lawful spaces of experience, as one should not forget that the main other contender, table manners broadly understood, share with the law much of its embodied techniques and artifacts. Indeed, hasn’t even Ronald Dworkin chosen “courtesy” of all things as his departing metaphor to work out the ingredient features of law as an interpretive practice? Could such nonsensical similarities, derived as they are out of mere, insignificant ornamentation, amount to more than eventual flourished criticisms? This contribution attempts to articulate a positive answer to this question. As I read Benjamin reading Kafka’s Der neue Advokat, I suggest what fragments of the European legal tradition one could read Kafka as weaving together in his short story, such as Justinian’s Novela 146 and The story of the given horse, and explore what is a possible outcome of this mosaic for a critique of legal interpretation. Legal interpretation and rituals of glorification, ritual and textual coherences are not as far apart as a standard account of the history of the law would have it. At its very end, pivoting on a philosophical-historical evaluation of the glossators’ self-depiction of their interpretive practice, I propose a theoretical model to approach legal interpretation as one crucial venue for the articulation of law-preserving violence, and how it can be researched as a ritual of glorification, and its debates, accordingly, as doxographical disputes, composing together, to employ a yet scholarly unexplored concept Benjamin introduced in the Karl Kraus essay, a “language-cult.”