An Anthropology of the Legal Subject: On the Transformation of a Legal Concept

In this thesis I critique the modern tendency to construct the legal subject upon a sharp distinction between Reason and body and to ground the normative force of law on an ideal conception of Reason. The legal subject is thereby presented as a disembodied cogitans to the neglect of his corporeality. This disregards both the necessarily material aspect of the legal subject and the necessarily embodied aspect of legal action, and results in an inadequate account of how legal normativity is manifested in material reality. This thesis aims to construct a theory of material legal normativity by re-incorporating the body of the subject into legal action and presenting that as the proper locus of law’s normative force. Although I focus on the material body in favour of Reason or rationality as the locus of action, I do not dismiss the possibility of meaningful normative action which is free from determination by material forces. I aim to construct a theory of action which is both material and normative by navigating the opposition between ideal Reason and material determinism. I do this by proposing an alternative conception of normative action which draws together the mechanism of habit and the manner of interaction with the material world. This theory of normative action will then form the basis for an account of normative legal action which gives due weight to the embodied nature of the legal subject as the proper locus for the material manifestation of the normative force of law.

This paper aims to find out the extent to which Indonesia views the concept of nature as a legal subject. This research can provide comprehensive information and understanding, which focuses on comparative law and how the application of the Theory of Legal Transplantation. Two experiences have occurred, namely in New Zealand and Ecuador, which have answered the view of nature as a legal subject. Based on these two experiences, it becomes urgent in the preparation of this research to describe the concept of nature as a legal subject in Indonesia by comparing Indonesian regulations on environmental protection and examining how Indonesia views the concept of nature as a legal subject through the existing legal system, as well as definitive legal subjects. The method used is normative juridical with a comparative approach and conceptual approach. The writing of this legal Article has the novelty of discussing the application of Articles 66 and 91 of Law Number 32 of 2009, which explicitly discusses the concept of nature as a legal subject in Indonesia and the view of Legal Transplantation Theory. The results of this study indicate that Indonesia's Law on environmental protection still does not need to recognize nature as a legal subject. Still, with the experience of two countries that have accommodated nature as a legal subject, it is not impossible through Legal Transplantation Theory that the influence in the form of legal instruments or concepts can be transplanted to the Indonesian State as a source of environmental protection regulation formation.

Semiotically, it is worth discussing some legal terminology that expresses the legal subjects in the criminal procedure law drawn up in 2012. In China’s new criminal procedure law, it can been seen that different legal concepts are adopted to refer to the same legal subject, while different legal subjects are referred to by the same legal concept. In Article 106 of the new criminal procedure law, “participants in the proceedings” means the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses, and interpreters. However, all kinds of criminal lawsuit participants appearing in the new criminal procedure law are far beyond the scope of “participants in the proceedings” defined in Article 106. While Article 3, Article 4, and Article 290 of the new criminal procedure law are all about subjects in the criminal procedure law, nevertheless, why is Article 290 arranged as the last article? With the help of the Peircean semiotic methodology and Greimas’ semiotic theory fused with legal materiality, some semiotic interpretations of legal terms are very necessary. Background metalanguage, consensus metalanguage, and context-oriented metalanguage are the foundation for analyzing the problems mentioned previously. In addition, legal language autonomy and unipolarity, the relationship of legal text and real legal meaning, and the transition from law in the text to the law in action provides several strong perspectives to make them clear. Drawing upon semiotic methodology fused with legal materiality, this paper will explore legislative techniques and methodology, especially logical deduction by reasoning between lawmakers and judges, including legal interpretation, legal reasoning, and interest measure. It will be beneficial to establish the authority of China’s new criminal procedure law and have it smoothly implemented in China.

A critical appraisal is presented in this paper concerning to comparative legal research in the development of laws within the legal system of a particular country. The emphasis is given on the essential roles of comparative legal research from different aspects of legal branches which co-related to one another. This is closely connected with acceptance of Comparative Law as a legal subject. The analysis is done by viewing the importance of comparative legal research from five (5) main different legal angles of those who involved directly or indirectly with the development of the legal system itself. Such different perspectives are listed as: (i) legal education, (ii) legal scholarship, (iii) legal practice, (iv) practice of the judiciary, and (v) practice of the legislature. Several examples of practices in relation to comparative legal research are taken into account for references, such as from Malaysia, Japan and European countries.

Economic Analysis of Contract Law from the Internal Point of View

This thesis explores the intersections of law, popular culture and medium through a cultural legal reading of the transmedial universe of Persona 4, a Japanese video game. Seeking to mimic the journey of how an ideal consumeristic fan of Persona 4 may move about the texts – not abandoning the franchise at the conclusion of the core game, but instead pursuing Persona 4’s many available official spin-offs, sequels and retellings – this thesis illustrates how cultural legal studies can be enriched by analysing a text beyond the initial point of contact. Synthesising methodologies from areas of video game studies, fan studies, psychoanalysis and cultural legal studies, this investigates the many multimodal texts of Persona 4, from video game to manga to stage play. In undertaking this investigation, this thesis tracks both how the change in medium can affect and/or alter a text’s jurisprudential meaning and also demonstrates how a cultural legal reading can be enhanced, subverted or destabilised through this transmedial analysis. Following a strain of cultural legal studies that reads popular culture texts as suggestive jurisprudential reimaginings of law, this thesis identifies Persona 4 as a complex retelling of the relationship of the person to law. This articulation of personhood within Persona 4 is considered on two levels: a metatextual level and a textual level. On a metatextual level, the thesis analogises the entwined relationship of player and digital avatar with the symbolic legal mask of personhood and the embodied individual experience that it covers. The familiar fragmentation between self and player conjures up juristic associations of personhood that mirror different occupiers of the legal persona. On a textual level, Persona 4 questions of a split self are visible through game’s narrative content, distinct realms of gameplay styles, and frequent references to notable psychoanalyst, Carl Jung. Regardless of Persona 4’s attempt to craft a narrative of a singular, monadic self, Persona 4 demonstrates the inability of the creators and players to let go of their fragmented identity even within a fictional setting. The persistent thematic of self and identity throughout the game opens up a space of critique that animates the tensions of the legal subject as a fictional, imaginary identity that law uses to construct and bind subjects to it. Beyond the core game, this thesis also examines how the narrative of legal personhood that courses through each iteration and retelling of the Persona 4 universe is changed by its medium, extended by new additions to the world, or challenged by canonical inconsistencies or redactions. Furthermore, the thematic of the fragmented self that undercuts the Persona 4 universe resonates with fans who tailor this theme to their own narration of circumstance and self through their fan artefacts. Fan creations are examined as fan explorations of the uncertainty of their own identies, using romantic and sexually-oriented artefacts to transgress the limitations of their ‘real’ selves in a fictional way. Humorous fan works, on the other hand, play with the space between avatar and person, constantly seeking a concrete articulation of the self yet never being able to find one. The journey through Persona 4 ultimately evinces a struggle for the consumer to experience themselves as anything but fractitious. The video game acts as a catalyst for people knowingly experiencing themselves as permanently divided – between player and avatar – and carrying this tension forward into other iterations of Persona 4 as well as their own creations within the universe. Unable to achieve the singular, unified self that Persona 4 allegedly promotes, consumers of Persona 4’s universe struggle with the revelation that legal personality is truly discordant with the self despite the illusions of unity they are sold.

The main focus of the paper is the expression of identity in academic texts dealing with legal subjects. This represents the final stage of a research project which has investigated authorial ethos primarily in relation to the writers' profession and the juridical system at the basis of their legal expertise, with little focus on eminently culture-based aspects like argumentation styles. The present analysis is intended to fill such a gap by comparing the different argumentative strategies employed by native (NS) and non-native speakers of English (NNS) in discussing legal subjects. This study will be based on a sub-corpus of CADIS (Corpus of Academic Discourse, compiled by the University of Bergamo, cf. Gotti 2006) consisting of 80 articles - 40 authored by NS and 40 by NNS - taken from major publications in legal studies, namely, the European Journal of International Law, the Yale Law Journal, the Harvard Law Review, the Harvard International Law Journal, the European Law Journal, the International Review of Law and Economics. These journals are places where different kinds of juridical expertise, rhetorical styles and different levels of linguistic competence meet, thus representing an interesting source of investigation in that authors use English as a common language to discuss legal matters from different perspectives. The analysis of the discourses used by NS and NNS, based on previous studies on identity and discourse (Milton / Hyland 1996, Duszak 1997, Flottum 2006), will focus mainly on the interactive and epistemic level of discourse. On the one hand, the analysis of first person pronouns, of interactional structures like imperative and interrogative forms, and of meta-textual strategies, will provide grounds to measure the different degree of personalisation, of solidarity and of reader-inclusiveness employed by NS and NNS (Nichols 1988, Swales et al. 1998, Hyland 2002). On the other hand, the focus on the different modes of argumentation and of data organization (i.e., through negative and/or concessive constructions), and on the use of mitigation, will provide evidence to discuss the different levels of assertiveness by which the authors balance objective information and subjective evaluation to construct specific authorial ethos (Duszak 1994, Hyland 1998, 2001).

This book challenges the correspondence theory of judicial fact construction – that legal rules resemble and subsume facts ‘out there’ – and instead provides an account of judicial fact construction through legally produced times- or adjudicative temporalities- that structure legal subject and event formation in legal judgement.Drawing on Bergsonian and Gadamerian theories of time, this book details how certain adjudicative temporalities can produce fully willed and autonomous subjects through ‘time framed’ legal events – in effect, the paradigmatic liberal legal subject – or how alternative adjudicative temporalities may structure legal subjects that are situated and constituted by social structures. The consequences of this novel account of legal judgement are fourfold. The first is that judicial fact construction is not exclusively determined by the legal rule (s) but by adjudication’s production of temporalities. The second is that the selection between different adjudicative temporalities is generally indeterminate, though influenced by wider social structures. As will be argued, social structures, framed as a particular type of past produced by certain adjudicative temporalities, may either be incorporated in the rendering of the legal event or elided. The third is that, with the book’s focus on criminal law, different deployments of adjudicative temporalities effect responsibility ascription. Finally, it is argued that the demystification of time as that which structures event and subject formation reveals another way in which to uncover the politics of legal judgement and the potential for its transformative potential, through either its inclusion or its elision of social structures in adjudication’s determination of facts.This book will be of interest to students and scholars in the field of legal judgement, legal theory and jurisprudence.

To historians of public international law, diplomatic history is essential to a correct understanding of normativity in International Relations. Yet, this aspect is not sufficiently present in the current scientific production. State practice, or the construction of concepts by legal subjects in a horizontal order reflects the state of the law as it is, as well as the process in which international norms are not only elaborated, but -more essential- amended and interpreted by privileged intermediaries. Eighteenth-century French and British diplomacy after the Peace of Utrecht can serve as a case to show the added value of a supplementary explanation grid, next to traditional political history and a legal history restriced to the writings of canonical authors. Archival records in Europe contain far more information on the life of international law than hitherto estimated by jurists.

R OGER JOHN TRAYNOR is clearly a man in love with the law. In more than 800 opinions as Associate Justice and now as Chief Justice of the Supreme Court of California, and in more than a score of extrajudicial statements on legal subjects he has demonstrated that his romance with the law is no dalliance of the moment but a lifelong passion. The affair is one in which the feeling is mutual. Chief Justice Traynor has been received into the select company of the Great Men of the Law. That society holds no elections; it presents no annual awards; and there may even be uncertainty as to the exact membership rolls, but none can doubt that Roger Traynor is a member in good standing. Chief Justice Traynor has made his mark without apparent effort. He has given each case, the commonplace as well as the exotic, the trivial as well as the epochal, the same careful scrutiny in order to reach the fairest possible result consistent with contemporary legal standards. Indeed, Roger Traynor has displayed a seeming carelessness for his own reputation for judicial regularity. Where others tread the careful path that leads safely to mechanical application of established law, sometimes avoiding the reasoned opinion in favor of string citations of fitfully relevant precedent, Traynor has asked bold, hard questions about the law; and his inquiries have sometimes led him to venture new answers to old questions. He has challenged inappropriate stability as well as heedless change.' Always clear and often eloquent in his opinions, Chief Justice Traynor can be blunt where plain words are demanded. In addition, he has written extensively, and well, in the law reviews, always testing frontier ideas against accepted notions, inviting discussion of the judicial process2

Modern constitutions of civilized countries guarantee every person's right to life, physical and mental integrity. Since constitutional norms guarantee the protection of 'human' life, this led to the question: 'At what point is 'human' life considered to begin?' A grand majority of legal regulations is intended for people who are already born, which is why it is often questioned whether they are adequate for the unborn, i.e. what position contemporary legal systems occupy toward conceived and unborn human life. This paper attempts to answer the question whether the legal rule 'he who causes damage must compensate for it' can be applied in case of a conceived and unborn person; i.e. if an embryo, considering that it has not become a legal subject, could claim the position of 'other', i.e. a human? Analyzing the German legal theory and case law, the author concludes that the civil law protects nasciturus from harm inflicted on their body or health, so a positive answer to the question could be given only from the point of view that for the right to compensation it is of little consequence when the harmful event took place; rather, what matters is the fact that, due to the event, the child was born with defects that could be qualified as damage in terms of legal regulations concerning liability.

This paper considers how legal education and training should react to change in the legal professions. It refers briefly to existing literature on the character of these changes and develops information on new forms of legal work. It then goes on to consider a set of developing legal concepts and legal subject areas in order to begin a critical discussion of whether, and how, legal education should reorganise in view of the changes in the profession. How should one begin the process of constructing legal education for a globalised, internationally regulated, industrialised, “deprofessionalised” legal profession with resultant effects on legal careers, legal concepts and legal subject classifications? Looking at the paradigms of legal work, concepts of “graduateness”, types of legal career and new legal concepts, this paper begins the work of mirroring changes within society against changes in legal practice and consequential developments for legal education. Preprint of an article by Avrom Sherr, Woolf Professor of Legal Education and Director, Institute of Advanced Legal Studies, University of London.

Professional Work, Professional Careers and Legal Education: Educating the Lawyer for 2010

There is a debate among legal scholars in relation to whether legal subjects and legal persons as concepts are synonymus. To say that they are not, allows to state that the ideal term to legally argue that animals have or may have rights is that of the legal subject and not the legal person. As a fundamental legal concept, the legal subject constitutes an expression that has a greater breadth of content and is not related only to human beings or with components traditionally attributed to the legal person. This approach avoids confronting doctrinal resistances for ascribing rights to animals based on the formula humans=persons=rights.

‘The Best Me I Can Possibly Be’