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Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger

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Drawing on recent studies of social cognition, decision making, and analogical processing, this article recommends that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the most …

Book Review: "Gustav Shpet’S Contribution To Philosophy And Cultural Theory", Francis J. Mootz Iii

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The author reviews Gustav Shpet’s Contribution to Philosophy and Cultural Theory edited by Galin Tihanov. The volume provides a comprehensive introduction to the significance of the Russian philosopher Gustav Shpet (1879-1937) in the development of phenomenology, hermeneutics, semiotics, literary theory, psychology, and cultural criticism.

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

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Chaim Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman’s argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled “Perelman’s Th eory of Argumentation as a Rejection of Natural Law.”

However, my thesis is precisely that Perelman’s theory of argumentation connects to the natural law tradition in interesting and productive …

Argument, Political Friendship And Rhetorical Knowledge: A Review Of Garver's "For The Sake Of Argument", Francis J. Mootz Iii

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Gene Garver's recent book, "For the Sake of Argument: Practical Reasoning, Character and the Ethics of Belief" (U. Chicago Press, 2004), responds to the dilemma at the core of contemporary legal theory. Garver incisively describes why legal reasoning is viewed either as impotent or dangerous. Reason appears impotent in the legal context to the extent that we maintain its rigor by limiting its scope to dialectical demonstration; it appears dangerous to the extent that we free reason from having to provide definitive answers. Garver looks to Aristotle for a solution. To deal with the inadequacies of the accounts of practical …

What Might Have Been: Contraception And Religious Liberty, Leslie C. Griffin

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No abstract provided.

A Future Foretold: Neo-Aristotelian Praise Of Postmodern Legal Theory, Francis J. Mootz Iii

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Postmodern thinking puts severe stress on the project of legal theory. The philosophical critique of grand narratives, coupled with the radically pragmatic return to localized practices, has rendered theorizing suspect. Theory appears to be a quaint vestige of previous "bad faith" refusals to accept the finitude of human existence. But the postmodern position is even more complex, because postmodern anti-theorists tend to employ perplexing jargon and wield sophisticated and obscure concepts in their work. The postmodern puzzle is whether one can challenge theory without theorizing. Is theory defined by its practical effects, or by its refusal to become complicit in …

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

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This article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory.

Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At …

Rhetorical Knowledge In Legal Practice And Theory, Francis J. Mootz Iii

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Rhetorical Knowledge in Legal Practice and Critical Legal Theory has just been published by the University of Alabama Press as part of its series, Rhetoric, Culture and Social Critique. My central themes are that rhetorical knowledge - however imperfectly pursued and attained - is a feature of social life; that rhetorical knowledge plays an important role in legal practice; and that legal critique is appropriately grounded by the normative injunction to maximize the generation of and reliance on rhetorical knowledge in the administration of justice by legal actors. If nothing else, I want to make clear that by recovering and …

Law And Philosophy, Philosophy And Law, Francis J. Mootz Iii

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A roundtable discussion about the relevance of contemporary hermeneutical philosophy for legal theory raises a foundational question often neglected in interdisciplinary articles: What is the relationship between law and philosophy? The burgeoning scholarship drawing connections between legal theory and philosophy increasingly has come under attack for displaying a naive view about the potential legitimate exchanges between philosophers and legal academics. I have written elsewhere at length about the important insights that philosophical hermeneutics can lend to jurisprudential discussions of the rule of law. In this essay, I develop my argument by stepping back and attending more generally to the connections …

Women In Religious Congregations And Politics, Leslie C. Griffin

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No abstract provided.

The Ontological Basis Of Legal Hermeneutics: A Proposed Model Of Inquiry Based On The Work Of Gadamer, Habermas And Ricoeur, Francis J. Mootz Iii

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This paper provides a detailed account of Gadamer's philosophical hermeneutics and its relationship to contemporary problems in legal theory. I first demonstrate that Gadamer's approach charts a course between the inflated claims of critical legal studies and the subjectivism of the law and literature movement. I then interrogate the hermeneutical approach from the perspective of Habermas's critical theory. I conclude that Ricoeur's intervention in the Gadamer-Habermas debate helps significantly to draw out the critical elements of Gadamer's work. I conclude by developing new model of legal practice and theory grounded in the textuality of law.

Review Of Charles E. Curran, Toward An American Catholic Moral Theology (1987), Leslie C. Griffin

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No abstract provided.

Review Of J. Philip Wogaman, Faith And Fragmentation (1985), Leslie C. Griffin

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No abstract provided.