4 - Baudouin Dupret (CNRS, France): "Characterizing the World: Legal Decision Making and the Passage from Facts to Rule" [ID:30031]
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Sorry, that was, the recording just started, I'm sorry.

Yes, great.

So through the reading of among other scholars, Alan Watson, Brian Tamanaha, Nathan Brown,

I definitely learned a lot.

And when I say I learned a lot, it is without any kind of irony.

I learned a lot.

However, I got also the strong feeling that I did not learn exactly what I wanted to know,

that there was something missing in what should be called the classical approach to law.

So what was missing for me was the phenomenon of codifying, rule-referring, adjudicating,

pleading, defending, suing, appealing, looking for grounds, excuses, justifications, causes,

intentions, producing facts, characterizing facts, etc.

And the gerund form of these many expressions indicate their activity nature.

In other words, by looking for the law in the dynamics of history, research to my mind

had lost the phenomenon of the law itself.

These analyses were acutely grounded in concepts, categories, and theories, but by so doing,

probably they missed an essential part of the object and perhaps even the core of their

topic, i.e. the practice of codifying, code-referring, adjudicating, etc.

In sum, the law in these scholarly works was used as a resource for explaining larger issues

like change, power, domination, equality.

However, the law was forgotten as a topic in its own right.

Let's take the example of this loss of the phenomenon of the law.

In his now classical The Rule of Law in the Arab World, Nathan Brown addresses the issue

of the popular uses of courts in Egypt.

Up to then, very little was said and written about living law in the Middle East, as opposed

to the law which is found in legal treaties, case law compendia, and formal rulings.

Thus, Brown must be credited for having drawn our attention to the social dimension of law,

and this is no little achievement.

My contention, however, is that Brown, partly because of the kind of material upon which

he was relying, partly because of his taking the law as a resource for explanations about

the nature of politics in Egypt, told us stories about the law and did not provide us with

any description of the law in and as practice.

We certainly learn a lot about Cairoan representations of the law, i.e. about the way in which some

people of Cairo retrospectively and reactively constructed narratives on legal matters in

which they were involved.

But we remain ignorant of the law itself, that is, something which is an ongoing accomplishment

done in contingent settings by people oriented to the performance of their work, a work that

is accountable, recognizable, and made intelligible through situated practices.

In other words, we remain ignorant of what specific people, like prosecutors, judges,

victims, witnesses, do in particular settings, like prosecution offices, courtrooms, police

stations, and so on.

To understand my argument, it might be helpful to begin by insisting on what I call the gap

between natural accountability and the life world, I'm sorry, between the natural accountability

of the life world on the one hand and the formal renderings produced by scholars and

professionals of law on the other hand.

This gap is produced through a transformation of locally accomplished embodied and lived

activities into disengaged textual documents.

In the following little story, I try to present a vivid account of two incommensurable descriptions

of the same little story.

You have in your hand, in and on your handout, the little story I want to tell you.

During my first day in Cairo, I went shopping in the old market Khan al-Khalili with a relative.

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00:41:10 Min

Aufnahmedatum

2020-12-10

Hochgeladen am

2021-03-04 11:47:33

Sprache

en-US

There are probably many ways to deal with the issue of law, among which the historical perspective figures prominently. However, in this presentation, I contend that the emphasis on the historical process of law leads to miss the fundamental phenomenon which should be addressed when dealing with modern law: the practice of legal decision-making, that is, the ways in which law users make sense of the rules at their disposal (law in the books) and orient to them in the course of their daily occupational practices (law in action). My contention is, thus, that we must turn to people’s actual practices in concrete settings and within specific and identified constraints. In other words, we must observe and describe people’s practical orientations to what they identify as the applicable rules, to the ways in which they refer to, use, follow, manipulate, substantiate, or invoke such rules. This can be achieved at, at least, two levels: the search for procedural correctness and the search for legal relevance. In both cases, judges, using the techniques of precedents and templates, are processing legal rules in a more and more standardized way. My conclusion is that the methodology and epistemology adopted by contemporary judges, the legal material on which they draw, and the means by which they refer to this material have fundamentally altered the nature of legal cognition and of legal decision-making.

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