Copyright (c) 2009 All rights reserved. http://works.bepress.com/rmohr Recent documents in Richard Mohr en-us Sun, 31 May 2009 10:57:01 PDT 3600 http://works.bepress.com/rmohr/18 http://works.bepress.com/rmohr/18 Tue, 24 Feb 2009 16:47:35 PST Three cities, three days, how many senses? I lost count in the eruption of designer menus, philosophy "master classes," children's activity spaces, all night music parties, herbs and spices, exhibitions including Picasso erotica, and strolls past the flower, fish and formaggio sections of the market in Modena. The latest edition of the city's philosophy festival organized each year since 2001 was dedicated to the senses. From Friday to Sunday, 16-18 September, 2005 Modena and its smaller neighbors Carpi and Sassuolo gave over their piazzas, exhibition spaces, libraries, restaurants and churches to the festival. The trains between the three centers were crowded with "cultural commuters," who were invited to scheduled en route discussions with various philosophers on a number of the trips. R. Mohr http://works.bepress.com/rmohr/17 http://works.bepress.com/rmohr/17 Tue, 24 Feb 2009 16:47:35 PST Kaarlo Tuori, professor of law, judge, and counsellor to the Constitutional Committee of the Finnish Parliament, has embarked on an ambitious project. He aims to build on the positivism of Kelsen and Hart, but to discover a normative justification of law which goes beyond their limited validity claims. This is the 'critical' element which he adds to 'legal positivism'. Kelsen's basic norm and Hart's rule of recognition are irreducible underlying principles. The arbitrary nature of such principles is intellectually suspect, while their internal self referentiality renders them morally sterile. The law is the law -- because we recognise it as such or because it is founded on the basic norm -- and as such it is valid. This leads to a lack of critical purchase, which is the fundamental drawback of positivism when confronted by natural law or other ethically based theories. Classical mid-twentieth century positivism offers no ethical foundation outside the declared law from which we may criticise unjust laws. R. Mohr http://works.bepress.com/rmohr/16 http://works.bepress.com/rmohr/16 Tue, 24 Feb 2009 15:25:32 PST Law has had a traditional reference to land, conceived as territory, in the notion of a jurisdiction, where the law of the land applies equally to all individuals. Recent critiques of this view have suggested that a plurality of laws may apply in particular places. How this spatial pluralism impacts on dominant views of law is considered through two instances in which law has interacted with competing conceptions of place and territory in relations between European and Indigenous Australians. Space, law and identity are seen to constitute each other in complex forms. Indigenous beliefs and practices challenge the claims to universality of Western conceptions of law and space deriving from Roman law and spatial practices. R. Mohr http://works.bepress.com/rmohr/15 http://works.bepress.com/rmohr/15 Tue, 24 Feb 2009 14:32:22 PST Since the mid 1990s, the contraction of available resources and the spread of 'new public management' approaches have presented new challenges to European judicial systems, expecting them to improve simultaneously their efficiency, quality of service delivery and accountability mechanisms, in line with the expectations on other branches of the public sector. Through an analysis of some of the findings of several research projects financed by different institutions, this article considers ways in which these expectations, and the projects to which they give rise, play off against the very different traditions of the law and the judiciary. In various countries these expectations have produced a number of procedural, structural and above all managerial policies that have led to new forms of 'managerial' evaluation of the activities of courts and judges. The approaches to be found range from traditional statistical surveys of caseload, largely lacking in any consequences, to performance based remuneration systems that define the salary of individual judges based on the number of cases they decide. F. Contini http://works.bepress.com/rmohr/14 http://works.bepress.com/rmohr/14 Tue, 24 Feb 2009 14:25:15 PST The evaluation of judges' performance takes place in many ways. Traditionally, there are avenues of appeal and legal accountability mechanisms. More recently, ministries of justice and judicial councils across Europe have introduced a range of complaints mechanisms, quality assessment procedures and other managerial methods of judging judges and the courts within which they operate. This paper reports on a study of these mechanisms in nine member countries of the European Union. Our purpose is to survey the possible ways in which the judiciary can be evaluated, with a view to improving those practices and, ultimately, contributing to a better functioning of the courts. The study focuses on judges within the institutional context of courts. The staffs of courts are commonly employed by a ministry of justice or some other executive body. A ministry is responsible for allocating funds and accounting to parliament for their expenditure. In many European countries (including six of the nine discussed here) the status of judges (discipline, promotion, transfer, appointment), and in Denmark and the Netherlands also the management of courts, is under the direct responsibility of a judicial council which has substantial judicial representation and a degree of independence from the executive government. R. Mohr http://works.bepress.com/rmohr/13 http://works.bepress.com/rmohr/13 Tue, 24 Feb 2009 14:25:15 PST This is an inquiry into the ways in which reasoning attaches to cultural context. It considers whether to seek grounds for decision-making in some common ground or in a recognition of diversity. The essay considers feminist criticisms of Habermas's discourse ethics and Benhabib's efforts to revise such an approach in response to cultural diversity. While the conditions for communication across cultures may be readily met with good will and good procedures, the conditions for reaching binding or consensual decisions are more challenging. The essay rejects the possibility of universal standards for reasoned decisions on three grounds. Reasons conforming to the standards of a multicultural public cannot rest on a single yardstick. Reasoning cannot be detached, in the Cartesian manner, from the corporeal being who is doing the reasoning. Reasoning is not a private and privileged mental process conforming to a unique set of rules. Drawing particularly on traditions of rhetoric from Aristotle to Perelman, the essay concludes: that reasons must be addressed to diverse audiences; that the affective and bodily specificity of deliberators is of central relevance (it matters who judges are); and that we must all continue our "moral education" in dialogue with diverse groups and ways of thinking. R. Mohr http://works.bepress.com/rmohr/12 http://works.bepress.com/rmohr/12 Tue, 24 Feb 2009 14:25:14 PST This is an inquiry into the ways the state is constituted as an effective legal fiction. It is based on the premise that the state was not constituted, once and for all, some three centuries ago (as Bourdieu suggests) but that the existence of the state relies on continuing legal and social processes. The focus is on the translation from the legal to the social, specifically the semiotic interaction between law, space and daily life in the dynamics of this on-going mise en scène. This requires re-thinking a number of semiotic issues: first, Lefebvre's challenge to a semiotics which neglects the place of the material (body, space) and, second, a challenge to Lefebvre's assertions that the state operates in a realm of freedom in switching 'at will' between codes. Third, it is possible to question the conditions by which the state operates as a 'floating signifier' which maintains its domination by overwhelming us with its excess meanings. The inquiry proceeds by analysing the legal semiotics of space in different settings: the axis as an expression of legal and state power, from the courtroom to the capital city (Rome, Washington, Canberra), and street names with legal referents (Montréal and Mexico City, in addition to the above). After considering these self conscious attempts at meaning-making, the article concludes that the legal constitution of the state in urban space is not determined by a single wilful semiotic regime, but (taking insights from de Certeau) is contingent upon the interpretations and enactments of people who use the spaces. Except in the controlled environments of the courtroom and the planned capital city, everyday life is continually reconstituting the meanings of law and the state. R. Mohr http://works.bepress.com/rmohr/9 http://works.bepress.com/rmohr/9 Tue, 24 Feb 2009 14:22:27 PST Discussions of globailisation arose in the late twentieth century out of economic discourse about market liberalisation and the scale and global reach of transnational corporations. Legal discussions of the subject have tended to follow in the wake of these economic and geopolitical trends. R. Mohr http://works.bepress.com/rmohr/10 http://works.bepress.com/rmohr/10 Tue, 24 Feb 2009 14:22:27 PST The contributions to this edition of Law Text Culture arose from a series of workshops and seminars which Luke McNamara and I organised through the Legal Intersections Research Centre at the University of Wollongong during 2001 and 2002. Having recently formed a research group focusing on the social and disciplinary intersections of law, we set out to explore these intersections with the help of colleagues working in law, humanities and social sciences in Australia, North America and Europe. Some of their contributions to this exploration are collected here. R. Mohr http://works.bepress.com/rmohr/11 http://works.bepress.com/rmohr/11 Tue, 24 Feb 2009 14:22:27 PST This elegant, wide-ranging and stimulating book has everything but the music. In graphic form, even the music is available as a frontispiece to each chapter, introduced with an extract from the score of the music for which it is named. The work begins with a 'Prelude' and 'Fugue' (Bach) and has a 'Requiem' (Mozart) on the death penalty, while 'Quartet for the End of Time' (Messiaen) opposes modernism and the reification of law, looking to space (in legal geography), rather than time, for the source of a 'critical pluralism'. Surprisingly, this apparently precious device works, and it works at a number of levels. Analogies with the pieces of music help to illustrate the point of each chapter and the playful counterpoint between the music and the argument is a source of, well, aesthetic pleasure. By drawing our attention to the appreciation of formal structure shared by music and law, as in the sparse, elegant prose of the opening 'Prelude', Desmond Manderson uses the format of the book to illustrate his theory. R. Mohr