Affective Legal Analysis
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Affective Legal Analysis
On the Resolution of Conflict
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 |