The question of whether and how law plays a role in producing social change has received renewed scholarly attention, powered by research on the role of social movements in law making and the relation between court decisions and backlash. Reflecting the broader turn to empiricism within legal scholarship, this research either directly engages in or builds upon the empirical study of law in ways that chart exciting new scholarly directions — but also raise important conceptual and methodological questions. This essay explores these questions in an effort to frame what is at stake and guide future research. It makes three contributions.First, it offers a map of the law and social change field, suggesting how researchers across disciplines have asked a set of questions that can be understood as part of a coherent model in which law is viewed as both an “input” and “output” of social change campaigns. Within this model, debate centers on what factors cause lawyers and activists to turn to law as a tool of reform in the first instance (input analysis) and whether legal mobilization ultimately advances movement goals (output analysis). Focusing on the input side, the Essay next outlines how existing research presents a more nuanced story of legal mobilization than posited by the conventional view of rights claiming in court to advance underrepresented interests. In contrast to the traditional account of lawyers deploying litigation as a substitute for traditional politics, the input literature offers a more complex and dynamic account of the relationship of legal mobilization to political power; of lawyers to clients and constituencies; and of litigation to other legal and nonlegal social change strategies.Finally, the Essay turns to the output side to consider the multiple — and often contested — ways in which law may effect change. Here, it highlights an important challenge that empiricism poses to law and social change researchers: the challenge of evaluation. In particular, much of the debate about law and social change has centered on whether legal mobilization makes positive or negative contributions to reform efforts. As these debates become more informed by interdisciplinary research, it is useful to think about how the questions asked may shape the answers produced — and what this means for our understanding of law as a tool of transformative politics. Toward this end, the Essay identifies four key evaluative challenges — how to account for background conditions, select baselines, understand burdens of proof, and weigh counterfactuals — and offers some thoughts on how they might be addressed.
One of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the “burden of proof” can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice.
Both scholars and practitioners of law have a lot to win from insights into how political and societal forces have influenced the form and content that is given to specific rules. This is because these forces often continue to play a role in the subsequent phase of implementation. The rational model for analysing collective decision making distinguishes as relevant variables the actors involved, their positions towards the issue at stake, the salience the issue has for these actors and the influence or power of the actors. However, a theory about the collective decision making concerning legal rules would be incomplete without the inclusion of the variables of the rhetorical model. In this article it is clarified why we also need the rhetorical model to explain such decision making. The Dutch Governmental decision making concerning Pre-implantation genetic diagnosis (PGD) in 2008 is analysed as case study. In addition, the rational and the rhetorical model for analysing collective decision making are with respect to the object of research, the main assumption, the kind of application and the questions of what is accepted as the proof of truth and how the researcher is positioned towards the object of his research. This comparison shows that the insights produced by the rhetorical model, contrary to what lawyers often are made to believe, are not necessarily less objective than the insights produced by the rational model.
This article explores the complex relationship between law and (scientific) expertise. The author first discusses the difference between scientific knowledge and scientific expertise, tracing the historical roots of the concept of proof in a legal rather than a mathematical context. Second, the historical roots of the fair trial are discussed in terms of the premodern épreuve and the modern preuve, demonstrating the relationship with coordinate and subordinate types of justice. Third, Foucault's analysis of épreuve, enquête, and examèn is extended to clarify how preuve and épreuve have been integrated into the fair trial, which is explained in relation to the formal and the substantive notions of the "Rechtsstaat." This analysis finally allows the author to discuss the difference between two approaches of scientific expertise in court: one claiming that judges should defer to science and another claiming that a court of law is one of the spaces in which such expertise can be contested. The article concludes that the integration of subordinate and coordinate justice exemplified in the fair trial, opens new perspectives for the testing of scientific expertise, taking into account whose interests are at stake.
Over the past decade the relationship between law and popular culture has become the subject of a considerable and growing literature. This work has addressed, via a range of research methods and t...
reason and factual subjects, and reality-the latter two terms now taking on a specifically modernist charge. Put otherwise, the trend leading from symbolism to modernism was to confer upon highly particularized signifiers ever more limited access to transcendental signifieds; modernism, in parallel with something like Benjamin's notion of allegory, turns into a thematic difficulty that very access to latent meanings which symbolism took for granted. But This content downloaded from 157.55.39.176 on Sat, 09 Apr 2016 07:10:21 UTC All use subject to http://about.jstor.org/terms 76 Poetics Today 12:1 postmodernism deranges the entire symbolist-modernist economy. In complicity with a work like Derrida's Of Grammatology, postmodernism ascribes a sort of transcendental energy to the play of signifiers themselves. And if, for modernism, utopian hopes are spawned by the conflict between word and thing, postmodernism bases the idea of Utopia on a strange new materiality resident in words themselves. The foregoing may seem to contradict my own earlier remarks relating modernism to Habermassian (noncoercive) consensus and postmodernism to Lyotardian (antiterroristic) dissent. But I believe this objection to be superficial. If the modernist project, in order to avoid an empty or idea of Utopia, preserves an Enlightenment separation between words and things, this does not diminish but rather increases the importance of consensus. Consensus, after all, provides a corrective to empty or, worse, terroristic ideas: the larger the community of language users that agrees on a certain way of relating representations to the world, the more likely, at least for that particular community, that other relations between words and things will prove subjective or empty or terroristic. The gap between reference and referent, in fact, drives the dynamic by which consensus forms, then breaks apart, then forms again in seriatim, as evidence against a given representational scheme (local representations it cannot account for) begins to outweigh evidence for that scheme (local representations it can account for). Likewise, if postmodernism, as opposed to modernism, abolishes the gap between reference and referent, and instead invests itself with a sort of material density that is the stuff of Utopia, this in no way implies that dissent is impossible or unimportant. To the contrary, dissent becomes at once present reality and anticipation of the future. Since the postmodernist can no longer appeal to material referents in arbitrating competing representations, such arbitration of competing views itself provides the only grounds for knowledge and for hope. The alternative to dissent is in fact inertia, and death. The materiality that postmodernism confers upon our views themselves suggests that, unless we continually examine and reshape those views, hope will be dissipated in that same hall of mirrors in which reality as such gives way to an infinite montage of simulacra. In the space remaining, I cannot hope to confirm this general model for understanding modernism and postmodernism. This would require nothing less than an extended survey of a significant percentage of the literature grouped under both these categories. Such an undertaking clearly would amount to a book-length study, at the least. However, I believe that I have succeeded in adumbrating broader cultural or conceptual linkages and connections that help account for the undecidability of the modernism/postmodernism debate-as it is This content downloaded from 157.55.39.176 on Sat, 09 Apr 2016 07:10:21 UTC All use subject to http://about.jstor.org/terms Herman Modernism/Postmodernism currently waged. This debate is undecidable precisely because, despite the deceptive appearance of common assumptions, the debaters define in different ways such crucial terms as representation and progress. Supporters of cultural modernism, given their presuppositions about words and things, cannot help but base their utopian aspirations on consensus. Conversely, supporters of postmodernism, given their assumptions about the materiality of representations, cannot help but invest sheer disagreement with a sort of exhilarating, even transcendental, energy. We cannot hope to bring to a peaceable end a discussion in which the participants think they share a single vocabulary, but actually do not. We can merely stake out the grounds for conflict. In what follows, I shall focus on Woolf's Orlando (1928) and Herr's Dispatches (1978) in order to make, in the context of literature itself, some first, rough indications of the subtle shifts in vocabulary that I have described in the context of theory. I do not mean to suggest that these indications amount to proof for my overall argument; I offer them merely to make that argument seem perhaps slightly less abstract.
Book Reviews139 Thaddée Soiron, O. F. M., La condition du théologien, Introduction et adaptation française par Yves Becker et Jean-Robert Hennion, O.F.M. (Coll. Credo, Paris: Librairie Pion, [1953]; 193pp.) This booklet is the first volume of a new collection, pubUshed under the direction of H. I. Marrou, Professor of the Sorbonne, and of the Franciscan A. Hammann. "Credo" wants to publish theological essays for educated Christians of our time, assays showing the connection between our living Faith and the doctrinal (scientific ?) expression of it. A leading principle of the coUection will be the famous "Back to the sources", meaning here the Bible, the Fathers and Liturgy; consequently, history will be emphasized. The Editors intend to include works originally written in foreign languages, but corresponding to their program. A representative of the so-called ,,Verkündigungstheologie", Soiron first pubUshed his work in 1935, under the title „Heilige Theologie". La condition du théologien is an "adaptation", viz. certain passages are dropped (e. g. pages 7—35, and more phrases in the subsequent text), most of the references, which in the German original were printed in the text, are now in footnote, etc. The translations are quite fluent, though not ideal: for instance, in the first chapter the translators were obviously confused by Soiron's speculations about "Ustening" as first requisite of Faith. They confuse the reader by translating "Hören" and "Haltung" by "attention" (cf. p. 46—47 of the French with p. 35—37 of the German edition); the version of "Haltung" is rather "attitude"; "attention" is a possible translation of "Hören", but does not always render the idea of Soiron. Becker and Hennion note that for the translation of biblical texts (of the New Testament) they usually took Le Nouveau Testament of E. Osty. On principle this method is acceptable . In certain instances, however, an other translation better fits the context: e.g. p. 48, Soiron is speculating upon "hearing the word", and, consequently, Rom. X 17 requires the translation "Ainsi la foi vient de ce qu'on entend; et l'on entend, lorsque la parole du Christ est prêchée". The version of Osty (la foi naît de la prédication et la prédication se fait sur l'ordre du Christ) is correct of course, and, perhaps, better renders the idea of St. Paul; but the version we propose corresponds to the letter of both the Greek and the German, and is required by the context of Soiron. We say it regretfully, but we prefer rather to recommend reading the German original of Soiron. Eligius M. Buytaert, O. F. M. Franciscan Institute The Moral Obligation of Voting. By Titus Cranny, S. A., S. T. D. (Washington, D. C. : The Catholic University of America Press, 1952. Pp. XXVII—155.) The Lawyer Looks Beyond the Law. Essays in Human Dignity. (Issued by the WilUam J. Kerby Foundation. The CathoUc University of America Press, 1951. Pp. 91. % 2,50.) 140Franciscan Studies The moral obUgation of voting, expounded principally in the Ught of certain papal and episcopal documents, is the subject of Fr. Cranny's doctoral dissertation. After a brief discussion of the concept and nature of voting, the author devotes the bulk of his material to the principles governing the obUgation of voting; the dissertation ends with a chapter on particular duties that foUow the duty of voting. In the opinion of the reviewer, the nature of the right to vote has received a far too meager and inadequate discussion. Moreover the title is somewhat misleading: its connotation is wider than the intent of the proofs contained in the mass of material assembled together. The papal and episcopal pronouncements cited by the author deal with the obligation of Catholic to vote, particularly in circumstances where the CathoUc religion, the Church and its institutions are at stake. In the main the work is a restatement of opinions current among theologians; nevertheless it is a timely topic designed to awaken the CathoUc to his civic responsibilities. The other volume under consideration is a collection of seven compact lectures deUvered by specialists in the field of American and reUgious thought at the Twelfth Annual...