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Law and culture: Scots languages, legal narratives and discourse communities. Professor Paul Maharg Australian National University

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Law and culture: Scots languages, legal narratives and discourse

communities.

Professor Paul MahargAustralian National University

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preview

Discourse communities Natural law discourse in Scots culture Discourse conflict in Scottish literature, legal thought and society

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‘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

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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.

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… 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

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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

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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)

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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 Cicero’s De finibus)

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‘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

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sensus communis as virtuous spiral

1. Translation by Aquinas for a phrase in Aristotle’s 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 Seneca’s 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 Shaftesbury’s 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

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‘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)

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Adam Ferguson (1723-1816).Portrait by Henry Raeburn, c.1790.Collection: The University of EdinburghFine 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

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[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-Européenes-de-Sociologie, 34(2), pp. 251-276, 272,

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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)

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Ferguson’s 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.

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• 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 Marmion

Walter Scott, 1771-1832

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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

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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

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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

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discourse conflict in Weir of Hermiston

[Jean Rutherford’s] 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 herself to this, that had they lived in those old days, Hermiston himself would have been numbered alongside of Bloody MacKenzie and the politic Lauderdale and Rothes, in the band of God’s immediate enemies. The sense of this moved her to the more fervour; she had a voice for that name of persecutor that thrilled in the child’s marrow; and when the mob hooted and hissed them all in my lord’s travelling carriage, and cried, ‘Down with the persecutor! down with Hanging Hermiston!’ and mamma covered her eyes and wept, and papa let down the glass and looked out upon the rabble with his droll formidable face, bitter and smiling, as they said he sometimes looked when he gave sentence, Archie was for the moment too much amazed to be alarmed, but he had scarce got his mother by herself before his shrill voice was raised demanding an explanation: why had they called papa a persecutor?

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‘“this is poleetical. Ye must never ask me anything poleetical, Erchie” ... And so [she] slid off to safer topics, and left on the mind of the child an obscure but ineradicable sense of something wrong’

Stevenson, R.L. Weir of Hermiston. Kerrigan, C., ed., Edinburgh, 1995, 12

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History is not a text, not a narrative, master or otherwise, but ... it is inaccessible to us except in textual form, and ... our approach to it ... necessarily passes through its prior textualisation, its narrativization in the political unconscious.

Jameson, F. The Political Unconscious: Narrative as a Socially Symbolic Act, Ithaca NY, 1981, 35

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Natural law jurisprudence & Scottish literature

A form of inquiry within which there attempts to combine ‘jurisprudence, civic humanism and practical ethics in a coherent moral and political outlook.’

Scott’s position in the tradition? Stevenson’s position on the cusp of the tradition?

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discourse conflict

1. How does Scott deal with discourse conflict in The Two Drovers?

2. Goodrich’s description of the Haida culture in court: what’s the basis of the discourse conflict?

3. How do courts narrativize conflict so as to achieve discourse dominance?

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Scots Referendum campaign as discourse & constitutional conflict – seen internationally

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Alasdair Gray

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Cp: Salus populisuprema lex

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‘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 of 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

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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

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Cameron’s response

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