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Kahn's Reign And Its Metaphors For Law -- A Critique In The Philosophy Of Legal Culture, Alani Golanski
Kahn's Reign And Its Metaphors For Law -- A Critique In The Philosophy Of Legal Culture, Alani Golanski
Alani Golanski
This essay analyzes the three main metaphors through which Professor Paul Kahn, Yale Law, constructs both a substantive picture of law's appearance and his methodological thesis that nonlegal sources need not, and should not, be explored in explaining the rule of law. These metaphors are (1) law as language, (2) law as religion, and (3) law as "legal" artifact. This essay argues that (1) and (2) are acceptable metaphors, but that Kahn's treatment is imprecise, and the metaphors work better if handled differently. Regarding (3), the limitations Kahn imposes are untenable.
Analogical Reasoning As Translation: The Pragmatics Of Transitivity, Jonathan Yovel
Analogical Reasoning As Translation: The Pragmatics Of Transitivity, Jonathan Yovel
Jonathan Yovel
This paper attempts to examine the underlying structure of analogical reasoning in decision making. The immediate (but not exclusive) context is the form of reasoning commonly seen as prevalent in common-law judicial decision making. Following Wittgenstein and Strawson the paper identifies the problem of the contingency of transitivity of analogical relations as a serious impediment to analogical reasoning. It then proceeds to offer a method of translation that delineates the borders of contingency and analyticity of transitivity in such cases, as well as proposes how these borders may be manipulated. The theoretical insight is to treat analogical relations anaphorically, as …
What Is Contract Law 'About'? Speech Act Theory And A Critique Of 'Skeletal Promises', Jonathan Yovel
What Is Contract Law 'About'? Speech Act Theory And A Critique Of 'Skeletal Promises', Jonathan Yovel
Jonathan Yovel
What is contract law about? One way of looking at it is to conceive of the subject-matter of contract law in terms of promises - just as tort law arguably revolves around the concepts of accident or harm. Much like accidents - first-year law students are taught - promises are out there in the world, to be classified and distinguished so as to privilege some with legal enforceability. There is a language/world of promises, this approach seems to indicate, and a language/world of contracts. It is a main function of contract law to perform translations from the one to the …