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DIVAn interdisciplinary critique of the relationship between words and the law /div
In just over one year since United States v. Windso - the case invalidating sections of the Defense of Marriage Act (DOMA) that defined marriage, for purposes of federal statutes, as the "union of man and woman" - more than a dozen states have had their same-sex marriage bans ruled unconstitutional. This suggests a shift in legal meaning; previously successful arguments against same-sex "marriage" now seem irrational as argumentative ground has shifted. Since favorable rulings redefine "marriage" to include same-sex unions, this thesis analyzes Kitchen v. Herbert, a 2014 legal opinion from the United States Court of Appeals Tenth Circuit, to understand the rhetorical processes underpinning its redefinitional act. That analysis draws on Kenneth Burke's theories of entitling and constitutions and discusses the rhetorical concepts of terministic screens, casuistic screens, scope and circumference as key features of the rhetoric of the legal opinions. The findings call for a balancing of deconstructive and conventional approaches to legal discourse.
DIVAn interdisciplinary critique of the relationship between words and the law /div
Law and Love in Ovid challenges the view that legal language in poetry is a sign of frivolity and argues that it signals a radical return to the roots of law's creation.
The Encyclopedia of Rhetoric is a comprehensive survey of the latest research--as well as the foundational teachings--in this broad field. Featuring 150 original, signed articles by leading scholars from many different fields of study it brings together knowledge from classics, philosophy, literature, literary theory, cultural studies, speech and communications. The Encyclopedia surveys basic concepts (speaker, style and audience); elements; genres; terms (fallacies, figures of speech); and the rhetoric of non-Western cultures and cultural movements. It covers rhetoric as the art of proof and persuasion; as the language of public speech and communication; and as a theoretical approach and critical tool used in the study of literature, art, and culture at large, including new forms of communication such as the internet. The Encyclopedia is the most wide ranging reference work of its kind, combining theory, history, and practice, with a special emphasis on public speaking, performance and communication. Cross-references, bibliographies after each article, and synoptic and topical indexes further enhance the work. Written for students, teachers, scholars and writers the Encyclopedia of Rhetoric is the definitive reference work on this powerful discipline.
The law has traditionally been regarded as a set of rules and institutions. In this thoughtful series of essays, James Boyd White urges a fresh view of the law as an essentially literary, rhetorical, and ethical activity. Defining and elaborating his conception, he artfully bridges the fields of jurisprudence, literature, philosophy, history, and political science. The result, a new approach that may change the way we perceive the legal process, will engage not only lawyers and law students but anyone interested in the relationship between ethics, persuasion, and community. White's essays, though bound by a common perspective, are thematically varied. Each of these pieces makes eloquent and insightful reading. Taken as a whole, they establish, by triangulation, a position from which they all proceed: a view of poetry, law, and rhetoric as essentially synonymous. Only when we perceive the links between these processes, White stresses, can we begin to unite the concerns of truth, beauty, and justice in a single field of action and expression.
In classical scholarship, the presence of legal language in love poetry is commonly interpreted as absurd and incongruous. Ovid's legalisms have been described as frivolous, humorous, and ornamental. Law and Love in Ovid challenges this wide-spread, but ill-informed view. Legal discourse in Latin love poetry is not incidental, but fundamental. Inspired by recent work in the interdisciplinary field of law and literature, Ioannis Ziogas argues that the Roman elegiac poets point to love as the site of law's emergence. The Latin elegiac poets may say 'make love, not law', but in order to make love, they have to make law. Drawing on Agamben, Foucault, and Butler, Law and Love in Ovid explores the juridico-discursive nature of Ovid's love poetry, constructions of sovereignty, imperialism, authority, biopolitics, and the ways in which poetic diction has the force of law. The book is methodologically ambitious, combining legal theory with historically informed closed readings of numerous primary sources. Ziogas aims to restore Ovid to his rightful position in the history of legal humanism. The Roman poet draws on a long tradition that goes back to Hesiod and Solon, in which poetic justice is pitted against corrupt rulers. Ovid's amatory jurisprudence is examined vis-à-vis Paul's letter to the Romans. The juridical nature of Ovid's poetry lies at the heart of his reception in the Middle Ages, from Boccaccio's Decameron to Forcadel's Cupido iurisperitus. The current trend to simultaneously study and marginalize legal discourse in Ovid is a modern construction that Law and Love in Ovid aims to demolish.
The law is full of stories, ranging from the competing narratives presented at trials to the Olympian historical narratives set forth in Supreme Court opinions. How those stories are told and listened to makes a crucial difference to those whose lives are reworked in legal storytelling. The public at large has increasingly been drawn to law as an area where vivid human stories are played out with distinctively high stakes. And scholars in several fields have recently come to recognize that law's stories need to be studied critically.This notable volume-inspired by a symposium held at Yale Law School-brings together an exceptional group of well-known figures in law and literary studies to take a probing look at how and why stories are told in the law and how they are constructed and made effective. Why is it that some stories-confessions, victim impact statements-can be excluded from decisionmakers' hearing? How do judges claim the authority by which they impose certain stories on reality?Law's Stories opens new perspectives on the law, as narrative exchange, performance, explanation. It provides a compelling encounter of law and literature, seen as two wary but necessary interlocutors.ContributorsJ. M. BalkinPeter BrooksHarlon L. DaltonAlan M. DershowitzDaniel A. FarberRobert A. FergusonPaul GewirtzJohn HollanderAnthony KronmanPierre N. LevalSanford LevinsonCatharine MacKinnonJanet MalcolmMartha MinowDavid N. RosenElaine ScarryLouis Michael SeidmanSuzanna SherryReva B. SiegelRobert Weisberg.
Is legal reasoning rationally persuasive, working within a discernible structure and using recognisable kinds of arguments? Does it belong to rhetoric in this sense, or to the domain of the merely 'rhetorical' in an adversative sense? Is there any reasonable certainty about legal outcomes in dispute-situations? If not, what becomes of the Rule of Law? Neil MacCormick's book tackles these questions in establishing an overall theory of legal reasoning which shows the essential part 'legal syllogism' plays in reasoning aimed at the application of law, while acknowledging that simple deductive reasoning, though always necessary, is very rarely sufficient to justify a decision. There are always problems of relevancy, classification or interpretation in relation to both facts and law. In justifying conclusions about such problems, reasoning has to be universalistic and yet fully sensitive to the particulars of specific cases. How is this possible? Is legal justification at this level consequentialist in character or principled and right-based? Both normative coherence and narrative coherence have a part to play in justification, and in accounting for the validity of arguments by analogy. Looking at such long-discussed subjects as precedent and analogy and the interpretative character of the reasoning involved, Neil MacCormick expands upon his celebrated Legal Reasoning and Legal Theory (OUP 1978 and 1994) and restates his 'institutional theory of law'.
From 1981 to 2010, the advancements of women in the United States can be seen in the words of the four pioneering women on the Supreme Court. The Rhetoric of Supreme Court Women: From Obstacles to Options, by Nichola D. Gutgold, explores how Sandra Day O'Connor and Ruth Bader Ginsburg used effective rhetoric and worked to overcome gender obstacles, while cultural changes in America provided Sonia Sotomayor and Elena Kagan with a wider range of rhetorical options.Gutgold's exploration of these four Supreme Court women provides valuable insight into the use of political communication and the changing gender zeitgeist in American politics.