Law & humanities

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  1. 1. Law and culture: Scots languages, legal narratives and discourse communities. Professor Paul Maharg Australian National University
  2. 2. 2 preview Discourse communities Natural law discourse in Scots culture Discourse conflict in Scottish literature, legal thought and society
  3. 3. 3 discourse community? that language use in a group is a form of social behavior, that discourse is a means of maintaining and extending the group's knowledge and of initiating new members into the group, and that discourse is epistemic or constitutive of the group's knowledge. Swales, J. (1990). The concept of discourse community, Genre Analysis: English in Academic and Research Settings. Boston, Cambridge UP, 21-32, quoting Herzberg, B. (1986), The Politics of Discourse Communities, Paper presented at the CCC Convention, New Orleans, La, March 1986. See also speech communities & interpretive communities, eg Stanley Fish on interpretive community
  4. 4. 4 A discourse community has a broadly agreed set of common public goals. has mechanisms of intercommunication among its members. uses its participatory mechanisms primarily to provide information and feedback. utilizes and hence possesses one or more genres in the communicative furtherance of its aims. In addition to owning genres, it has acquired some specific lexis. has a threshold level of members with a suitable degree of relevant content and discoursal expertise. Swales, J. (2011). The concept of discourse community. Writing about Writing. Downes & Wardle, Boston, 471-3.
  5. 5. 5 with porous borders Anti-foundationalism teaches that questions of fact, truth, correctness, validity, and clarity can neither be posed nor answered in reference to some extracontextual, ahistorical, non-situational reality, or rule, or law, or value; rather, anti-foundationalism asserts, all of these matters are intelligible and debatable only within the precincts of the contexts or situations or paradigms or communities that give them their local and changeable shape. Stanley Fish, 'Anti-foundationalism, Theory Hope and the Teaching of Composition', Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies. Oxford, Clarendon Press, 1989, p.344
  6. 6. 6 Natural law jurisprudence A form of inquiry within which there are attempts to combine jurisprudence, civic humanism and practical ethics in a coherent moral and political outlook. Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press, 1996, 5
  7. 7. 7 In Renaissance/Reformation Scotland Law is the dictate of reason, determining every rational being to that which is congruous and convenient for the nature and condition thereof. James Dalrymple, Viscount Stair, The Institutions of the Law of Scotland. 1681, reprinted 1981. Edited D.M. Walker, University Presses of Edinburgh & Glasgow, I,I,I. (1619-1695)
  8. 8. 8 Francis Hutcheson Francis Hutcheson (1694-1746) Professor of Moral Philosophy, University of Glasgow (1730-46) An Inquiry into the Original of our Ideas of Beauty and Virtue (1725). Portrait by Allan Ramsay, c.1745 (holding a copy of Ciceros De finibus)
  9. 9. 9 The old Notions of natural Affections, and kind Instincts; the Sensus communis, the Decorum, and Honestum, are almost banished out of our Books of Morals; we must never hear of them in any of our Lectures for fear of Innate Ideas; all must be Interest and some selfish View Francis Hutcheson, Collected Works, 7 vols, facsimile edition prepared by Bernhard Fabian. Hildesheim: Olms, 1969-90. Vol VII, 475
  10. 10. 10 sensus communis as virtuous spiral 1. Translation by Aquinas for a phrase in Aristotles De Anima, where it is used to describe the cognitive activity of the mind to engage in discriminating relationships between particulars and universal in effect, a meta-sense. Schaeffer, J.D. (1990). Sensus Communis: Vico, Rhetoric and the Limits of Relativism. Durham, North Carolina, Duke University Press. 2. In the Stoic tradition, for example Senecas De Beneficiis, it refers more to the manners and sense of decorum that belong to a society or community in the 18th century revival of Stoic literature Shaftesburys Sensus Communis: An Essay on the Freedom of Wit and Humour is an example. For Hutcheson: 1 creates 2. 2 influences 1. Moral theory is lived practice
  11. 11. 11 In all Governments, even the most Absolute, the Natural End of the Trust is acknowledged on all sides to be the Prosperity and Safety of the Whole Body. When therefore the Power is perverted from this end to the Ruin of a People, either by a Monstrous Tyrannical Intention, or any such Folly or Wickedness of the Rulers as must have the same effect, the Subjects must have a Right of Resistance, as the Trust is broken; beside the manifest Plea of Necessity. Francis Hutcheson, Collected Works, 7 vols, facsimile edition prepared by Bernhard Fabian. Hildesheim: Olms, 1969-90. Vol VI, 271 Cf Scots republican & humanist writings, eg George Buchanan, De jure regni apud Scotos (A Dialogue concerning the rights of the Crown in Scotland) (1579)
  12. 12. 12 Adam Ferguson (1723-1816). Portrait by Henry Raeburn, c.1790. Collection: The University of Edinburgh Fine Art Collection. Adam Ferguson 1723-1816 Chaplain to the Black Watch regiment Professor of Moral Philosophy and Pneumaticks, Edinburgh University Essay on Civil Society (1767) Explores a complex model of historical & social continuity
  13. 13. 13 [T]he highland clans could be characterised as belonging to the shepherd stage. The stage of agriculture was still vivid in mind even if farming was in a process of transformation into a capitalistic, market-oriented production; and the stage of commerce was rapidly gaining in the second half of the eighteenth century when the Scottish lowlands were the economic wonder region of Europe Eriksson, B. (1993) The first formulation of sociology: a discursive innovation of the eighteenth century, Archives-Europenes-de-Sociologie, 34(2), pp. 251-276, 272,
  14. 14. 14 Ferguson on university study Now is your time to begin Practices and lay the Foundation of habits that may be of use to you in every Condition and in every Profession at least that is founded on a literary or a Liberal Education. Sapere & Fari quae sentiat are the great Objects of Literary Education and of Study. ... mere knowledge however important is far from being the only or most important Attainment of Study. The Habits of Justice, Candour, Benevolence, and a Courageous Spirit are the first Objects of Philosophy the Constituents of happiness and of personal honour, and the first Qualifications for human Society and for Active life. Quoted in Richard B. Sher, 'Professors of Virtue: the Social History of the Edinburgh Moral Philosophy Chair in the Eighteenth Century', in Studies in the Philosophy of the Scottish Enlightenment, ed. M.A. Stewart (Clarendon Press, Oxford, 1990), pp.117-8, quoting Adam Ferguson's Lectures, mss EUL, 1775-6, fols.540-41)
  15. 15. 15 Fergusons appeal lies in his refusal to let philosophical systems blind him to the stark realities of capitalist shifts in later eighteenth century Scotland; but also in his refusal to admit that a complex and sophisticated philosophical tradition two millennia in the making had little of worth to say to him or his society. Rejecting utilitarianism, he creates an ethics based upon self-interest and benevolence, upon competition and stoic communitarianism Hill, L. (2006) The Passionate Society. The Social, Political and Moral Thought of Adam Ferguson, International Archives of the History of Ideas. Dordrecht, Springer, 85.
  16. 16. 16 Edinburgh University, 1783-86 Writer to the Signet; Advocate 1792 Sheriff-Deputy of Selkirkshire, 1799 Clerk to the Court of Session, 1807 Waverley, 1814 Chronicles of the Canongate, 1827Portrait of Walter Scott, Henry Raeburn, 1809. Commissioned by Constable following the success of Walter Scott, 1771-1832
  17. 17. 17 http://www.walterscott.lib.ed.ac.uk/works/novels/drovers.html
  18. 18. 18 Robert Louis Stevenson, 1850- 1894 Edinburgh University, 1867-72 Advocate, 1875 Kidnapped, 1886 Catriona, 1893 Weir of Hermiston (unfinished at death) RLS in Samoa, 1894
  19. 19. 19 Natural law discourse, late nineteenth century There is a sort of scale, or gradual ascent, through several almost insensible steps, from the lowest and weakest claims of humanity to those of higher and more sacred obligation, till we arrive at some imperfect rights so strong that they can scarce be distinguished from the perfect, according to the variety of bonds among mankind, and the various degrees of merit and claim upon each other. James Lorimer, The Institutes of Law: A Treatise of the Principles of Jurisprudence as Determined by Nature. Second edition. Edinburgh 1880
  20. 20. 20 discourse conflict in Catriona This is a political case ah, yes, Mr Balfour! Whether we like it or no, the case is political and I tremble when I think what issues may depend from it. To a political case, I need scarce tell a young man of your education, we approach with very different thoughts from one which is criminal only. Salus populi suprema lex is a maxim susceptible of great abuse, but it has that force which we find elsewhere only in the laws of nature: I mean it has the force of necessity. Robert Louis Stevenson, Catriona . Edinburgh, 1893. Reprinted Canongate Publishing, Edinburgh, 1989, 32
  21. 21. 21 discourse conflict in Weir of Hermiston [Jean Rutherfords] view of history was wholly artless, a design in snow and ink; upon the one side, tender innocents with psalms upon their lips; upon the other, the persecutors, booted, bloody-minded, flushed with wine ... Nor could she blind