Introduction to "Law and the Possibility of Discourse" (E. Melissaris ed.),
Debates and Dialogues section of Social & Legal Studies, March 2008.
The Concept of Appropriation and the
Offence of Theft, Modern Law Review, 2007 70 (4) 581-597.
The English law of theft
is confusing and problematic in principle. Since the
introduction of the Theft Act 1968 there has been
inconsistency in the interpretation of appropriation as
court and commentators have grappled with the intuition
that appropriation must entail some subjective element
and cannot be purely objective. Although subjectivity is
traditionally associated with culpability rather than
with conduct, it is argued that some acts can be
subjective and yet factual and stand as causes to
effects. Appropriation is such an act, its necessary and
sufficient condition being a mindset, here termed
proprietary subjectivity, on the part of the actor. It
is argued that clarification of the concept of
appropriation can help to resolve misperceived problems.
Such clarification will also reveal other problems in
the law of theft. Some tentative comments de lege
ferenda are made suggesting how these problems can
be addressed.
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“Diachronic Universalization and the
Law” in The Universal and the Particular in Legal Reasoning,
Z. Bankowski and J. MacLean (eds.), pp. 129-141, Ashgate 2006.
In
this chapter I argue that systematicity,
institutionalisation and, subsequently, coherence, on
the one hand, and universalisation, on the other, pull
in opposite directions. I approach the problem by
focusing on the temporal aspect of universalisation and
highlight the fact that, in its strong sense,
universalisation must extend over time as well as over
space. In moral reasoning this counterfactual assumption
can guide action, if, in a Kantian vein, we see time as
a prerequisite of the unity of consciousness and
therefore set timelessness as a requirement of the
faculty of practical reason. In the context of
institutionalised legal reasoning, though, this
‘transcendental imagination’ of rational agents is
substituted by the contextual imagination of the law,
which sets the temporal horizon, from which reasons for
action are drawn. Moreover, diachronic universalisation
is also impaired by the need for stability, which is
expressed as the requirement of present coherence. In
the final analysis, what really resurfaces in these
tensions is the fundamental tension between legal and
moral reasoning, if the former is to be understood as
bound to an historically specific system of rules.
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“The Limits of Institutionalised Legal
Discourse”, Ratio Juris, 18/4 December 2005, pp. 464-483.
One of the most powerful
accounts of the necessary connection between law and
morality grounded on the openness of communication is
provided by Robert Alexy, who builds a discourse theory
of law on the basis of Habermas’ theory of general
practical discourse. In this article I argue that the
thesis based on the openness of legal discourse is
problematic in that it does not provide a convincing
account of the differentiation of legal discourse from
other practical discourses. I offer an understanding of
the institutionalisation of legal discourse as the tacit
commitment of the participants to their shared normative
experience and in particular in: 1) the possibility of
containing normative force in space, 2) the possibility
of transforming word into deed, 3) the possibility of
grasping and controlling time and 4) the possibility of
transforming deed into word. That commitment of
participants in legal discourse is revealed as a set of
fundamental assumptions embedded in all legal
utterances, which provide the necessary bedrock that
makes communication possible. It also provides a basis
for the institution of legal discourse, to the effect
that their problematisation signifies a departure from
the latter.
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“The Chronology of the Legal”,
McGill Law Journal, (2005) 50/4, pp. 839-861.
The most influential legal
philosophies—notably legal positivism—tend to draw a
sharp epistemological distinction between the concept of
time and the concept of law. The author provides legal
pluralist account of law, understanding it to consist in
a shared idea of justice and the shared normative
experience of participants in a legal discourse. A
common assumption by participants of their ability to
grasp and control time—what the author terms
“chronos”—forms one aspect of their shared experience of
the legal. A normative understanding of time is thus
fundamental to a normative understanding of law.
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The More the Merrier? A New Take on
Legal Pluralism, Social and Legal Studies, 13/1 March 2004,
pp. 57-79.
Legal pluralism provides
an alternative and very useful way of thinking about
thelegal as well as about discourses about the legal, as
it sets itself the multiple task of looking at the law
and theory both from an internal and an external point
of view. This article distinguishes between two main
theoretical strands of legal pluralism.
Empiricism-positivism includes early sociological
endeavours that trace self-regulating social groups and
point out that the formal law of the state is not and
cannot be responsive enough to those legal orders.
Anthropological legal pluralism, which studies the ways
peoples living within a congruent State regulate
themselves despite the existence of a central law, also
belongs here. Empiricism-positivism commits the fallacy
of trying to define the law criterially, thus importing
in that pluralistic law the knowledge of a dominant
legality. This is what the ‘other’ legal pluralism is
anxious to avoid. It turns to new ways of understanding
the legal and seeks to make sense of and also facilitate
the interpenetration of dispersed legalities. In
particular, I refer to the work of three theorists.
Günther Teubner and his systems-theoretical legal
pluralism, Boaventura de Sousa Santos and his suggestion
that new subjectivities emerge, and Robert Cover and his
account of jurisgenerative commitments and the violence
committed by state law. I argue that, although they too
suffer from various shortcomings, these three approaches
to legal pluralism can be fruitfully combined. From that
combination a new understanding of legal pluralism will
emerge as the radicalization of the way we think about
the legal, an understanding that collapses observation
into participation and thus leaves it up to regulatory
discourses themselves to organize their communication.
Finally, I argue that this legal pluralistic knowledge
cannot be achieved by an already established and
institutionalized legal order. At a first stage it is
academic legal studies that must provide a forum, in
which the dispersed legal discourses and theories can
reveal themselves and communicate with each other.
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Is Common Law Irrational? The Weberian
'England Problem' Revisited, Northern Ireland Legal Quarterly,
55(4), Winter 2004, pp. 378-395
The article takes a new
approach to Max Weber’s ‘England problem’ by recasting law’s
rationality as discursive along Habermasian lines.
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Emmanuel
Melissaris
Ubiquitous Law explores the possibility of understanding the
law in dissociation from the State while, at the same time, establishing the
conditions of meaningful communication between various legalities. This book
argues that the enquiry into the legal has been biased by the implicit or
explicit presupposition of the State's exclusivity to a claim to legality as
well as the tendency to make the enquiry into the law the task of experts, who
purport to be able to represent the legal community's commitments in an
authoritative manner. Very worryingly, the experts' point of view then becomes
constitutive of the law and parasitic to and distortive of people's commitments.
Ubiquitous Law counter-suggests a new methodology for legal theory, which will
not be based on rigid epistemological and normative assumptions but rather on
self-reflection and mutual understanding and critique, so as to establish
acceptable differences on the basis of a commonality.
