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Fleerackers, F. (2000). Affective Legal Analysis. On the Resolution of Conflict. Duncker & Humblot. https://doi.org/10.3790/978-3-428-49049-3
Fleerackers, Frank. Affective Legal Analysis: On the Resolution of Conflict. Duncker & Humblot, 2000. Book. https://doi.org/10.3790/978-3-428-49049-3
Fleerackers, F (2000): Affective Legal Analysis: On the Resolution of Conflict, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-49049-3

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Affective Legal Analysis

On the Resolution of Conflict

Fleerackers, Frank

Schriften zur Rechtstheorie, Vol. 193

(2000)

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Abstract

Indeed, if the legal field is to be understood as instrumental to democracy's $acohabitation$z of individuals, research on dispute resolution remains pre-eminent as a means to understand how individual views differ and how different views can be overcome. As a central part of $aconflict analysis,$z such research would assist an interdisciplinary quest for a dynamic understanding of democracy and law. It would focus on how different individuals with different conceptions of the good can live together in their community, in their world. Scientific research in the fields of communication, economics, psychology, history, political theory and philosophy, to name but a few, would side with legal theory in a shared ambition to analyze the way individuals are affected by their views as well as by their institutions, in order to provide society with a dynamic means to solve conflicts and enhance citizenship or legal awareness. Such research necessarily coincides with empathy-oriented education, directed towards an understanding of different conflict positions and the related comprehensive or non-comprehensive views affecting them. An affective education, analyzing all affective mechanisms of societal or interpersonal disputes and their legal or alternative resolution. A clinical education, offering an interactive simulation with regard to these positions and their affective impact, demonstrating how individual views continuously affect the positions taken, how disputes are affected by the legal or other institutions that attempt to solve them, and how the effectiveness of legal or other solutions to the conflict at hand depends on a practice of affective legal analysis. Thus legal and civic education, by way of affective narration and clinical simulation, join affective legal analysis in its endeavor to provide society with a similarly affective and non-rationalizing approach of legal awareness.

Table of Contents

Section Title Page Action Price
Preface 5
Table of Contents 7
Prologue 9
Affective Legal Analysis 9
Emotivism 11
Contents 13
Chapter 1: The Conveyance of Legal Awareness 15
1.1. Legal Awareness 15
Philosophy of Law and Legal Theory 21
1.2. Juridification and Legal Discourse 25
Subjectivity and Legal Discourse 25
History 26
Contract 27
Discourse 29
Language and Rule 30
1.3. The Effectiveness of Law and Affective Legal Analysis 32
Rationalizing Legal Analysis and Affective Legal 33
Legal Positivism as a Dominant Narrative 35
1.4. Civic Education: Authoritative, yet Alternatives-based 37
Liberalism as a Dominant Narrative 38
Civic Education and Civil Disobedience 41
1.5. Affective Legal Analysis and Rationalizing Legal Analysis 43
Affective Legal Analysis: Three Stages 44
Rationalizing Analysis: Three Ideological Components 50
1.6. Affective Legal Analysis: The Quest for Legal Awareness 52
A Theory of Justice 55
1.7. The Conveyance of Legal Awareness: A Preliminary Conclusion 60
The Fallacies of Rationalizing Legal Analysis 62
Contractualism, Individualism, Proceduralism 64
Legal Discourse and Institutional Discourse 65
Fukuyama's Rationalizing Institutional Analysis 67
Chapter 2: Political and Legal Theory on the Conveyance of Legal Awareness 71
2.1. Double Contingency and Difference 71
Difference 72
2.2. Altruism and Individualism 73
Altruism, Individualism and Civic Education 77
2.3. Communitarianism and Liberalism 81
Answering Communitarian Criticism 84
Dworkin's Liberal Community 85
2.4. Political Liberalism 88
Affective Analysis 92
Public Reason: The Inclusive View 95
Political Liberalism as a Dominant Institutional Narrative 101
2.5. Affective Institutional Analysis and Affective Legal Analysis 105
Affective Legal Analysis of the Conveyance of Legal Awareness: An Inventory 109
2.6. Civic Education and the Conveyance of Legal Awareness: A Conclusion 111
Affective Analysis of Institutional Discourses 112
Alternatives-based and Authoritative 114
Chapter 3: Human Rights and Affective Legal Analysis 117
3.1. Human Rights, Individualism and Universality 117
Human Rights 118
Human Life 119
3.2. Individualism and the Legal Image of Man 119
Individualism and Human Rights 120
3.3. Individualism and Universality 122
3.4. Democracy and Human Rights 127
3.5. Human Rights and Human Life 130
Meaning in Life 130
Values and Choice 132
Note 136
3.6. Affective Legal Analysis and Contemporary Human Rights Discourse 136
3.7. Rawls's Law of Peoples 143
Affective Analysis of Contemporary Human Rights Discourse 153
3.8. Rorty's Human Rights Culture 155
3.9. Human Rights and Affective Legal Analysis: A Conclusion 160
Chapter 4: Alternative Dispute Resolution and Affective Legal Analysis 163
4.1. Alternative Dispute Resolution and Affective Legal Analysis 163
4.2. Alternative Dispute Resolution: Syntax and Efficiency 166
4.3. Alternative Dispute Resolution: Ideology and the Affective Turn 171
Effects and Effectiveness of Conflict Resolution 177
4.4. Alternative Dispute Resolution and Rationalizing Legal Analysis 180
4.5. Game Theory and Alternative Dispute Resolution 184
Three Rationalizing Assumptions and Three Game Theoretic Concepts 186
4.6. ADR-Scholarship and Affective Legal Analysis: A Conclusion 188
Rationalizing Legal Analysis Continued 191
Glossary of Terms 195
Bibliography 198
Index 206