Matthew S. Weinert on Hegel’s Laws: The Legitimacy of a Modern Legal Order. By William E. Conklin. Stanford: Stanford University Press, 2008. 381pp.

A review of: Hegel’s Laws: The Legitimacy of a Modern Legal Order. By William E. Conklin. Stanford: Stanford University Press, 2008. 381pp

Derrida's Territorial Knowledge of Justice

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge

Which Takes Precedence: Collective Rights or Culture?

This Paper claims that, contrary to the common assumption of Anglo-American jurists, collective rights are secondary to a analytically and experientially prior culture. Culture constitutes the identity and content of a collective right. The thrust of my Paper examines the disjunction between collective rights and the culture constituting a collective right. The clue to the disjuncture is that a collective right is assumed to be a rule or principle signified or represented in a written language. A rule or principle is a concept. A culture, in contrast, is constituted from an experiential knowledge in an unwritten language. I raise two contexts where a collective right cannot be identified without a consideration the analytically prior culture of the social group protected by a collective right: peremptory norms in international law and affirmative discrimination clauses in constitutional law. I then highlight a crucially important factor generating the unwritten language of a culture: namely, the collective memories of a group. Although a personal memory is experienced in a context-specific event, a member of a group absorbs its collective memory. The collective memory of the group exists before one is a member. Such a memory may defer to some event centuries earlier. The event may possess a mythic or even false character which cannot be verified except as a myth or historical falsity. One cannot be accepted as a member of a group without the group’s collective memory. Shared assumptions and expectations characterise a collective memory generating a culture. Such assumptions and expectations constitute meant objects. Meant objects are not posted by some source 2 external to the individual members. Meant objects are experienced. A jurist cannot analyze the signified collective rights without examining the social culture said to be represented by the boundary of the collective rights. One may be able to rationally justify a collective right in terms of its source, such as a basic constitutional text, the regularity of behaviour of lawyers and judges or some ultimate concept such as dignity. Such a rational justification, however, does not address why an individual is obligated to defer to the collective rights of an in-group in a state. One has to examine the social-cultural assumptions and expectations presupposed in the content of such collective rights in order to understand why the rights are obligatory. Such an examination dissolves the traditional boundary of legal knowledge which has excluded cultural phenomena generating the collective rights

Human Rights and the Forgotten Acts of Meaning in the Social Conventions of Conceptual Jurisprudence

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law

Editorial Board

Editor-in Chief William Conklin Recent Decision Editor David O. DeGrandpre Note Editor Theodore Corontzos Business Manager Charles F. Angel Staff G. Richard Dzivi Douglas C. Allen John A. Alexander Donald J. Beighle Melvyn M. Ryan Thomas F. Dowling Faculty Advisor Edward L. Kimbal

McNair Summer Research Journal 2009

2009 McNair Summer Research Journal features abstracts of the summer research of the following students: Vanessa Babb, Roshoyah Bernard, Jordynn Bree, Jessica Callea, Dustin Conklin, Sharon Frazier, Samuel Hickson, William Liktor, Debra Joseph McEwen, Karin Pena, Angela Robinson, Allie Scott, Jermaine Sprague, and Andrea Westmoreland.https://digitalcommons.brockport.edu/mcnair_journal/1003/thumbnail.jp

Daydream Believing: Visionary Formalism and the Constitution

The failure of traditional strands of legal formalism to provide a satisfactory account of law\u27s relation to material conditions, and its distinction from political practice, has given rise to a new variant of formalist theory: visionary formalism. In this essay, the authors examine visionary formalism through the work of one of its leading exponents, William E. Conklin. They contend that, far from rescuing legal formalism, the visionary account of constitutional adjudication put forward in Conklin\u27s recent treatise, Images of the Constitution, exposes formalism for what it is: an effort to romanticize and legitimize a peculiarly regressive mode of political practice. In the final sections of the essay, the authors provide their own account of the connections among law, politics and material conditions. They conclude that only a constitutive legal theory , embracing a critical understanding of the political nature and historical contingency of legal structures, offers any real hope of harnessing law as a progressive social instrument

Bruce, Roscoe Conklin, Sr.

Title: Papers, 1897-1924 Description: 2 linear ft. Notes: Educator. Contains personal correspondence between Roscoe C. Bruce and members of his family, including his father, Senator Blanche K. Bruce; his mother, Josephine B. Bruce; his wife, Clara Burrill Bruce; and his son, Roscoe C. Bruce, Jr. Includes letters and clippings relating to his term as Assistant Superintendent of the DC Public Schools, and financial papers relating to the management of the Blanche K. Bruce plantation in Mississippi and Kelso Farm in Washington, DC. Also includes clippings relating to the controversy arising from the barring of Roscoe C. Bruce, Jr., from the freshman dormitory at Harvard University because of his color, 1923. Non-family correspondents include W. E. B. DuBois and Carter G. Woodson. Purchased from Martha A. Smoot, Washington, DC, 1954. Subjects: Bruce, Blanche (Blanche Kelso), 1841-1898 Bruce, Clara Burrill Bruce, Josephine B. Bruce, Roscoe Conkling, Jr. Bruce family Colleges and universities; Race relations; Integration and segregation Du Bois, W. E. B. (William Edward Burghardt), 1868-1963; As correspondent Educators; Bruce, Roscoe Conkling, Sr. Farms and farming; 19th and 20th centuries; Washington, DC Harvard University, Cambridge, Mass.; Racial discrimination Integration and segregation, Racial; Education Kelso Farm, Washington, DC Mississippi; Business, industry and trade; Agriculture; Plantations Mississippi; Politics; Papers of persons active in; 19th century Plantations; Business affairs; Mississippi Plantations; Mississippi Public schools; Washington, DC Race discrimination; Harvard University Race relations; Harvard University Real property; Mississippi Real property; Washington, DC School superintendents and principals; Washington, DC Tuskegee Institute; Faculty; Bruce, Roscoe Conkling, Sr. Washington, DC; Business, industry and trade; Agriculture; Farms and farming Washington, DC; Education; Schools; Public Washington, DC; Public schools; Bruce, Roscoe Conkling, Sr., assistant superintendent Woodson, Carter G. (Carter Godwin), 1875-1950 Location: Howard University, Moorland-Spingarn Research Center (Washington, DC) NIDS Fiche #: 4.72.10 NUCMC Number: MS 83-122

Editorial Board

Editor-in Chief Charles W. Willey Associate Editors Edward W. Borer Charles C. Lovell Index Editors Wayne E. Linnell Kenneth E. O’Brien Business Manager Bruce D. Crippen Staff John P. Acher Charles F. Angel Maurice R. Colberg, Jr. William Conklin Theodore Corontzos David O. De Grandpre G. Richard Dzivi Marvin J. Sorte First-Year Assistants Douglas C. Allen John A. Alexander Donald J. Beighle Eugene I. Brown Melvyn M. Ryan James W. Thompson Faculty Advisor Edward L. Kimbal