A Short History of Jaina Law

The nineteenth century English neologism ‘Jaina law’ is a product of colonial legal intervention in India from 1772 onwards. 'Jaina law' suggests uniformity where in reality there is a plurality of scriptures, ethical and legal codes, and customs of sect, caste, family and region. The contested semantics of the term reflect alternative attempts by the agents of the modern Indian legal system and by Jain reformers to restate traditional Jain concepts. Four interpretations of the modern term 'Jaina law' can be distinguished: (i) 'Jaina law' in the widest sense signifies the doctrine and practice of jaina dharma, or Jaina ‘religion’. (ii) In a more specific sense it points to the totality of conventions (vyavahāra) and law codes (vyavasthā) in Jaina monastic and lay traditions. Sanskrit vyavasthā and its Arabic and Urdu equivalent qānūn both designate a specific code of law or legal opinion/decision, whereas Sanskrit dharma can mean religion, morality, custom and law. (iii) The modern Indian legal system is primarily concerned with the 'personal law' of the Jaina laity. In Anglo-Indian case law, the term 'Jaina law' was used both as a designation for 'Jain scriptures' (śāstra) on personal law, and for the unwritten 'customary laws' of the Jains, that is the social norms of Jain castes (jāti) and clans (gotra). (iv) In 1955/6 Jaina personal law was submerged under the statutory 'Hindu Code', and is now only indirectly recognised by the legal system in the form of residual Jain 'customs' to be proved in court. The article traces the process in modern Indian legal history of narrowing the semantic range of the modern term 'Jaina law' from 'Jain scriptures' down to 'Jain personal law' and finally 'Jain custom', which may lead not only in the official obliteration of Jaina legal culture, which continues to thrive outside the formal legal system in monastic law, ethics and custom, but also of Jaina 'religion'

Time-Mindedness and Jurisprudence

Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: (1) from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; (2) analytic jurisprudence studies only time-­‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-­‐slice legal system is incapable of explaining the normativity of law. Postema recommends an approach to jurisprudence based on sociability with other disciplines, including its own history and general philosophy; he also recommends an approach grounded in synechism – Peirce’s label for the attempt to find continuities between seemingly-­‐discontinuous phenomena. My comments are largely sympathetic to Postema. I show that his argument about the normativity of law makes the most sense if we embed it in a “meaning as use” theory of legal language and its conceptual content. I am more skeptical of synechism, which on its face rejects a perfectly valid and valuable historiography focused on discontinuity – the kind of history written by Kuhn, Foucault, and Marx. I show that Peirce’s argument for synechism fails, whereas Postema’s version of synechism broadens the notion of continuity to include what might ordinarily be thought of as discontinuities. On the one hand, that rescues Postema from the charge of ruling out valid approaches to history on a priori grounds; on the other, it makes Postema’s version of synechism less distinctive than he supposes

A Global History of Ideas in the Language of Law

This book argues that the narrowing focus of the global history of ideas on narratives in historical research, philosophy and political theory neglects the fact that the central concepts of the history of political ideas are articulated in the language of law. Key figures of the history of ideas, like Kant, Hegel and Weber, engaged deeply with the philosophy and sociology of law. This monograph reveals the significance of the legal semantics of the history of ideas

Merits Stripping

As the debate rages about the power and wisdom of Congress to “strip” federal courts of jurisdiction to adjudicate particular controversial federal issues, the discussion either ignores another means of constricting the power and influence of the courts. That is the distinct act of “merits stripping.” Merits stripping eliminates, limits, or diminishes enforceable substantive rights and the merits of claims brought to enforce those rights. Merits strips diminish the amount of real-world actors and conduct subject to legal duties and protected by legal rights. Merits striping limits who can sue whom over what conduct. Merits strips can target statutory or constitutional rights and can be affected by the legislative, executive, or judicial departments, acting individually or in concert. A “strip” occurs whenever the scope of legal rights (and the legal duties those rights impose on others) falls below some baseline of preexisting law or normative preference. Unfortunately, courts and commentators often conflate merits stripping with true jurisdiction stripping. But they are necessarily distinct concepts and such conflation confounds our ability to understand both. Three differences loom. First, while jurisdiction strips shift litigation out of federal court and into another forum (presumably state courts), merits strips eliminate enforceable rights altogether, in any forum. Second, the manner of litigating and resolving legal and factual issues will be different, depending on whether the “stripping enactment” being applied in court targets merits or jurisdiction; this distinction between merits stripping and jurisdiction stripping is a sub-category of the broader differences between judicial jurisdiction and substantive merits. Third, and most importantly, the structural and constitutional controversy surrounding the power to jurisdiction strip does not apply to merits stripping. Congress clearly has the power to redefine statutory rights, including narrowing those rights; courts clearly have the power to define constitutional rights, including narrowing those rights. One might disagree with the resulting scope of federal rights. But one cannot question the basic power to define those rights. This article defines and examines multiple examples of merits stripping of federal statutory and constitutional rights. It then considers the differences between merits stripping and jurisdiction stripping and how those differences play out in court. Ultimately, distinguishing these concepts is essential to understanding the operation of federal law in the federal courts

Gender in the crisis and remaking of Europe: re-gendering subsidiarity

This article analyses the gender dimension of the European Commission’s proposals to revise the governance of the European Union in response to the crisis by increasing the powers of the European Union level. The proposed change in the location of the subsidiarity boundary has significant gender implications: subsidiarity is gendered. The alternative strategies for economic growth and security have implications for democracy and gender equality. The concepts of ’gender regime’ (and its social-democratic and neoliberal varieties) and ’project’ are developed and applied. The possibility of the embedding of the gender-equality project in the new institutions proposed by the Commission is discussed

Corpus Analysis and Lexical Pragmatics: An Overview

Lexical pragmatics studies the processes by which lexically encoded meanings are modified in use; well-studied examples include lexical narrowing, approximation and metaphorical extension. Relevance theorists have been trying to develop a unitary account on which narrowing, approximation and metaphorical extension are all explained in the same way. While there have been several corpus-based studies of metaphor and a few of hyperbole or approximation, there has been no attempt so far to test the unitary account using corpus data. This paper reports the results of a corpus-based investigation of lexical-pragmatic processes, and discusses the theoretical issues and challenges it raises

Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education?

This article continues and expands on my earlier project of seeking to describe how legal negotiation should be understood conceptually and undertaken behaviorally to produce better solutions to legal problems. As structured problem solving requires interests, needs and objectives identification, so too must creative solution seeking have its structure and elements in order to be effectively taught. Because research and teaching about creativity and how we think has expanded greatly since modern legal negotiation theory has been developed, it is now especially appropriate to examine how we might harness this new learning to how we might examine and teach legal creativity in the context of legal negotiation and problem solving. This article explores both the cognitive and behavioral dimensions of legal creativity and offers suggestions for how it can be taught more effectively in legal education, both within the more narrow curricula of negotiation courses and more generally throughout legal education