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This chapter explores the emergence (not always explicit), the uses and the misuses of proportionality analysis during a crucial period of Peruvian democracy: the transition of the 2000s, following the collapse of the Fujimori regime. The history of the principle of proportionality in Peru is associated to the development of judicial review and the expansion of constitutionalism. Its increasing presence in judicial reasoning reveals progress in terms of the effectiveness of constitutional rights and the defense of democratic institutions, but also an alarming trend toward its formalistic use. Since the Constitutional Tribunal has been the main actor behind this process, the chapter mainly focuses on its decisions, but some decisions by the Supreme Court and by administrative courts are also covered, given its recurrent use by the judiciary at large and its role in decentralized judicial review, especially in the context of ordinary criminal procedures where the legality of pretrial detention is examined.
In this book, Stanley E. Porter offers a unique, language-based critique of New Testament theology by comparing it to the development of language study from the Enlightenment to the present. Tracing the histories of two disciplines that are rarely considered together, Porter shows how the study of New Testament theology has followed outmoded conceptual models from previous eras of intellectual discussion. He reconceptualizes the study of New Testament theology via methods that are based upon the categories of modern linguistics, and demonstrates how they have already been applied to New Testament Greek studies. Porter also develops a workable linguistic model that can be applied to other areas of New Testament research. Opening New Testament Greek linguistics to a wider audience, his volume offers numerous examples of the productivity of this linguistic model, especially in his chapter devoted to the case study of the Son of Man.
This chapter subjects the revival of formal and classical law values in contract law to critical examination. The emergence of a commercially oriented contract law is explored across a number of contract developments over recent years: the reassertion of party autonomy and the emphasis on contract law as default rules; the return to a formalist style of contract interpretation; the marginalisation of equity and considerations of public policy in contract; the tendency of judges to uphold contract terms whose validity was previously regarded as questionable (‘no oral modification’ and ‘no reliance’ clauses); the dilution of common law controls on contract terms (in relation to penalties, for example). The first part of the chapter examines recent contract law developments that suggest the re-emergence of formalism in law. The second part explores the common law’s retreat from a role as general regulator of contracting activity in the context of an increasingly contractualised society.
This chapter sets out the main objectives and major themes of the work. The overall aim of the project is to establish the implications of a diminishing contract law (common law in particular). By ‘diminishment’ is meant the return to formal and classical law values in the common law and a reduced field of application for the rules of contract law. A brief outline is given of the topics that are explored during the course of the book: the rise of private ordering through contracts and the legal response to this; the ‘contractualisation’ of society; the formalist turn in modern contract law; the likely future pressures on legal development (such as ‘smart contracts’). The chapter raises some initial arguments concerning the drawbacks of a diminishing contract law (lack of development of public rules of contract law; lack of legal scrutiny of many modern contracts, or aspects of them; lack of opportunity for courts to express and apply the normative values that should underpin contracting). The chapter also anticipates, and responds to, some initial questions or criticisms about the project.
This chapter proposes a theory of legal instrumentalism – contextually, a more explanatory framework than either Marxist or Confucian legal theories – to explain the function and role of law in Chinese society. This kind of instrumentalism, which differs from the debate over this theory in the Anglo-American tradition, is situated in China’s authoritarian regime, where a primary concern is the maintenance of political stability through strengthening authoritarian legality for the ruler. On this premise, economic development, as well as other social goals – such as efficiency of the government – for which the law can undoubtedly be placed in an instrumental position may become a priority in the ruler’s political agenda. When it comes to dispute resolution, the primary matter of concern is not the achievement of the formalist justice of Western tradition via either a formal or informal process but rather the settlement of disputes for which the law primarily plays a facilitative role as a tool, regardless of what strategies it may use. Instrumentalism of this kind, which is suitable for Chinese society both culturally and historically, shows that law is visible and does matter in China, although it cannot be completely understood through the lens of other legal traditions.
Chapter 1 examines behavioural coherence as a marker of both fictional and actual identity. Concentrating on the recognition scenes in Medea and Thyestes, this chapter contends that Senecan recognition is less about revelation than about validation of an identity achieved through consistent, habitual conduct. It discusses key concepts of decorum and Stoic persona-theory as ways of evaluating Atreus‘ and Medea’s self-construction. It also demonstrates how such behavioural repetition has gone largely unnoticed, as scholars have focused instead on the textual repetition highlighted by dominant methods of intertexual analysis.
The Introduction sets forth the book’s main parameters and situates its study within the current landscape of Senecan scholarship. In addition, it provides a detailed overview of major theoretical approaches to literary character from the late nineteenth century to the present, arguing against the limitations inherent in both the formalist/structuralist method of character criticism, and the humanist/psychological method, and proposing instead a blended theory of character that recognises both structural and person-like qualities. The final section of the Introduction narrows focus to theatrical contexts and considers how stage performance affects the presentation and reception of fictional character.
Not all ontological concerns which surround the concept of (customary) international law (CIL) have disappeared, rather they have shifted. Whereas the existence of a genuine international legal system is taken as a ‘given’, questions still remain about its genesis and the position of CIL within it. Some, for example, still question whether we can truly speak of customary international law, while others recast the concept of CIL through a formalist perspective. Accordingly, formalism, in its moderate form, treats formal sources, documents and/or proclamations as ‘better’ tools for both (a) the preservation of existing rules of CIL and (b) the ‘creation’ of new legal rules. At its more extreme, formalism purports the view that (c) IL (or even CIL) finds its genesis only in formal sources, documents or proclamations. While some formalisation is undeniably helpful and even necessary, we should be more critical of this formalist paradigm. In this way, the chapter seeks to respond to these positions through a revival of the legacy of Sir Henry Maine and the evolutionary conception of law for which he laid out the first foundation. By operationalising this conceptualisation, a new vision spawns for CIL: a vision beyond mere formalism.
This chapter examines what is arguably Cavendish’s most famous publication, her proto-science fiction novel The Blazing World, from a textual bibliographical perspective, for the purpose of showing that textual bibliography and more traditional literary interpretive analysis can and should be brought together in Cavendish studies. The printed volume in which Cavendish’s novel was originally published, the 1666 collection, printed in London, includes both a treatise and the novel together. I establish a collation formula for this book, and examine the binding, signature marks, pagination, running titles, and systematic hand corrections. These textual bibliographical details demonstrate that the original intention was for Blazing World to end with what we now call Part I, and that Part II was hastily sent to the printer after Part I and the Epilogue had already been printed as a completed whole. The essay ends by showing how this bibliographical fact might change our reading of the narrative itself, and might also prompt us to ask new questions of Cavendish’s writing methods.
This chapter ventures into defining the Islamic legal tradition, its main characteristics as a legal tradition. Three main themes shed light on the nature of Islamic law historically. These themes are (1) legal pluralism, (2) legal determinacy, and (3) legal reform. While defining a tradition is hampered by its pluralism, legal determinacy allows for some stability and a better attempt at definition. I argue that in our conceptualization of the Islamic legal tradition we must incorporate the practice of law in the work of judges, rather than narrowly focusing on the black-letter discourse of jurists. It is this interaction, which is captured in several legal genres, that creates a stable legal system. In addition to the realist nature of this approach, it also promises to open up new possibilities for legal reform.
Can Kant’s theory of fine art serve as a theory of modern art? It all depends on what ‘modern’ means. The word can mean current or contemporary, indexed to the time of use, and in that sense the answer is yes: Kant’s theory of genius implies that successful art is always to some extent novel, so there should always be something that counts as contemporary art on his theory. But ‘modern’ can also be used adjectively, perhaps more properly as ‘modernist’, to refer to art of a particular moment, in some cases superseded by postmodern art. Kant’s theory is not a theory of modernist art in at least one prominent form, the formalism of Clement Greenberg. But other theories, such as those of George Dickie and Arthur Danto, although triggered by particular works of modernist art and meant to accommodate them, were meant to be theories of what art was always doing, and Kant’s is too. In that sense it can be considered a modern theory of art but not a theory of modern art.
Bakhtin's reception was unusual, because he was unknown outside a small circle of Soviet scholars until the 1960s. This chapter describes his belated rehabilitation and recognition as a scholar. In the English-speaking world, he was initially understood as part of Russian Formalism, but after the publication of his essays on the novel in 1981, he became a theoretical icon and master thinker. Enthusiasm for Bakhtin was widespread, suspiciously so, as he was embraced by widely divergent schools and trends in the literary critical world. His status as a theortical 'cure' or alternative to post-structuralism is discussed, as is the interesting appropriation of his work by feminist and postcolonial criticism.
Bakhtin's work is difficult to interpret because it amalgamates so many different intellectual strains and influences. His early interest in Neo-Kantian philosophy and phenomenology, the first largely mediated through his friend M. I. Kagan, structured his ideas permanently. His interest in and commitment to Christian thought, and Russian Orthodox thought specifically, was important but is often over-emphasised. Bakhtin's further intellectual development was spurred by encounters with Russian Formalism, linguistics (particularly early versions of sociolinguistics), and the Marxist literary debates of his time. Far from maintaining a saintly distance from the diputes around him, Bakhtin was fully engaged by and tried to participate in debates about the role of style in literary writing and the idea of realism and the positive hero.
The Chinese Communist Party's (CCP) ideology, rooted in its foundational struggles, explicitly denounces “bureaucratism” (guanliaozhuyi) as an intrinsic ailment of bureaucracy. Yet while the revolutionary Party has blasted bureaucratism, its revolutionary regime has had to find a way to coexist with bureaucracy, which is a requisite for effective governance. An anti-bureaucratic ghost thus dwells in the machinery of China's bureaucratic state. We analyse the CCP's anti-bureaucratism through two steps. First, we perform a historical analysis of the Party's anti-bureaucratic ideology, teasing out its substance and emphasizing its roots in and departures from European Marxism and Leninism. Second, we trace both the continuity and evolution in the Party's anti-bureaucratic rhetoric, taking an interactive approach that combines close reading with computational analysis of the entire corpus of the People's Daily (1947–2020). We find striking endurance as well as subtle shifts in the substance of the CCP's anti-bureaucratic ideology. We show that bureaucratism is an umbrella term that expresses the revolutionary Party's anxiety about losing its popular legitimacy. Yet the substance of the Party's concern evolved from commandism and revisionism under Mao, to corruption and formalism during reform. The Party's ongoing critiques of bureaucratism and formalism unfold in parallel fashion with its efforts to standardize, regularize and institutionalize the state.
This chapter reviews how the early post-Kantians perceived the need of reforming Kant’s Critique in order to complete the philosophical revolution it had initiated. In 1785, Jacobi had brought Spinoza to the discussion, claiming that his monism undermined human freedom and personality. He further claimed that this monism was the logical conclusion of all philosophy. The post-Kantians’ task was thus threefold: (1) to demonstrate that personalism is consistent which monism, which they in principle accepted as the necessary standpoint of reason; (2) to show that Kant’s idealism could be the basis for the desired personalism; and (3) to overcome what they took to be the formalism of Kant’s system that stood in the way of it. All this came down to ridding the system of its presumed unknown “thing-in-itself” while finding a principle that would unify it internally, not just by means of external reflection. Fichte had attempted this with his “I.” Even more important, however, was his analysis of feeling, which he considered the concrete counterpart of the “I” and which, as in the feeling of guilt, brought reason and nature together. This was the synthesis that the post-Kantian idealists explored in their different ways.
Chapter 6 shows how Cicero establishes a normative framework for the writing of literary history. Across the dialogue and through the various speakers he offers a sustained critique of literary historiography. Several fundamental tensions and conflicts emerge: absolute versus relative criteria in assessing literature and building canons; presentism and antiquarianism; formalism and historicism; and the recognition that all literary histories are subject to their crafters’ emphases and agendas.
This chapter challenges the representations of international law that dominate the turn to history. The vision of international law as metaphysically grounded and of lawyers as scholastics or moralising judges is resonant because it shores up a familiar fantasy. Yet that vision bears little relation to the ways in which contemporary international lawyers use the past in the practice of making legal arguments. This chapter explores the indeterminacy and capaciousness of the past materials out of which international legal arguments are assembled and the varied roles lawyers are trained to adopt in making such arguments. It shows that international lawyers are already immersed in a centuries-long debate over the grounds of law’s authority, into which historicising techniques and anti-metaphysical approaches have long been incorporated. Many influential forms of international legal thought, including legal realism, positivism, critical legal studies, and game theory, have been informed by an anti-metaphysical orientation. Far from being a revolutionary insight, the claim that historicising a text can settle its meaning is just one of many claims that are already part of the broader argumentative world of international lawyers, and no more likely than any other to resolve interpretative controversies or offer the truth of legal history.
In this chapter on “Constructive Disorderings,” Eyers argues that Wallace Stevens subtly eludes our most common ways of treating literature. Where many scholars today reflexively adopt a historicist-contextualist approach to literature, Stevens, Eyers argues, instead produces a rather more uncanny, and more powerful, approach to historical time. Focusing in particular on “Of Mere Being” and “The Idea of Order at Key West,” Eyers locates in this verse repeated scenes of historical-temporal “afterwardsness,” whereby what would seem to have come first in fact came later, and where what one would have expected to follow on is instead shown to have been there all along. Far from resulting in mere disorder, however, such instances, when read closely and associatively, bring into being a singular poetic logic of historical time and, further, a radical rerouting of our expectations about modernism.
On the surface, the ethical vocabulary of stylistic virtue reflects the fact that moral and stylistic virtues overlap. A “manly” style may connote masculine strength, just as an “honest” author may promise fidelity in representation. However, the “aesthetic” critics of the mid- to late-nineteenth century did not disavow this seemingly moralistic lexicon. Instead, Chapter 2 shows how the doubleness of stylistic virtues made them appealing to critics who sought to provide an ethical justification for formalist methods. By tracing the theory of stylistic virtue in the four Victorian critics most influenced by Aristotle – John Ruskin, Matthew Arnold, Walter Pater, and Oscar Wilde – it reveals a process of “ethico-aesthetic drift” whereby “ethical character” was increasingly understood as an aesthetic phenomenon that had autonomous value. As literary criticism came to be seen as a creative act on a par with the production of art, it too became an ethically valuable act, investing style and its appreciation with an unprecedented level of attention and esteem.
The conceptual framework that accompanies stylistic virtue was the product of over two thousand years of rhetorical, critical, and philosophical development, much of which appears to collapse in the first decades of the twentieth century. However, the Afterword suggests that stylistic virtue persisted in constituent and strategically obscured forms: for example, in T.S. Eliot’s analysis of stylistic “impersonality” and I.A. Richards’s conception of the poem as “pseudo-statement.” The Afterword goes on to claim that contemporary virtue theory provides a promising avenue for the continued defense of style, and of aesthetic value more generally, as an ethical good, offering an innovative way of defending the humanities at a moment of contemporary crisis.