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Captive audiences and unwanted advertisement: The construction of public/private borders in legal discourse
Unformatted Document Text:  5 by perpetually generating speech that reinforces disciplinary clefts (Luhmann, 1988) is especially true for legal talk. This feature of the legal discourse, sometimes called ‘judicial closure’, is probably one of the reasons why the practice of law making has been considered, until recently, disembodied from social life and immune to its influences (Blomley, 1994). The outcome of a trial was thought to be the logical product of a “self-contained mode of reasoning” (K. L. Scheppele, 1994b), as well as a ‘stable’ outcome in the sense that similar circumstances would always lead to similar decisions. However, modern approaches, particularly those influenced by critical legal scholarship, have sought to challenge the objectiveness and abstractness of law. Recent decades have seen an infusion of rhetorical analyses of judicial opinions informed by idea that the practice of justice making involves interpretative processes not strictly reducible to legal vocabularies. Various schools of thought, whether named ‘legal interpretation’, ‘postmodern legal theory’, or ‘narrative jurisprudence’, have exposed judicial closure as just one of the myths through which law legitimizes its power. Legal scholars have shown that the nature of ‘facts’ in legal discourse brings into question assumptions about the nature of truth (K. Scheppele, L., 1994a); that personal values and institutional norms bear influence on the process of reasoning (Sunstein, 1990); that linguistic codes influence witness credibility (Jacquemt, 1996); and that existing social hierarchies and racial stereotypes are likely to affect the outcome of a trial (Delaney, 1993). Consequently, we have argued for regarding the practice of law as a process of persuasive interpretation, rather than deduction, and for acknowledging the mutual influence of law and spatially embedded social activities (Popescu & Gandy Jr., 2001).

Authors: Popescu, Mihaela. and Baruh, Lemi.
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5
by perpetually generating speech that reinforces disciplinary clefts (Luhmann, 1988) is
especially true for legal talk.
This feature of the legal discourse, sometimes called ‘judicial closure’, is
probably one of the reasons why the practice of law making has been considered, until
recently, disembodied from social life and immune to its influences (Blomley, 1994). The
outcome of a trial was thought to be the logical product of a “self-contained mode of
reasoning” (K. L. Scheppele, 1994b), as well as a ‘stable’ outcome in the sense that
similar circumstances would always lead to similar decisions. However, modern
approaches, particularly those influenced by critical legal scholarship, have sought to
challenge the objectiveness and abstractness of law. Recent decades have seen an
infusion of rhetorical analyses of judicial opinions informed by idea that the practice of
justice making involves interpretative processes not strictly reducible to legal
vocabularies. Various schools of thought, whether named ‘legal interpretation’,
‘postmodern legal theory’, or ‘narrative jurisprudence’, have exposed judicial closure as
just one of the myths through which law legitimizes its power. Legal scholars have
shown that the nature of ‘facts’ in legal discourse brings into question assumptions about
the nature of truth (K. Scheppele, L., 1994a); that personal values and institutional norms
bear influence on the process of reasoning (Sunstein, 1990); that linguistic codes
influence witness credibility (Jacquemt, 1996); and that existing social hierarchies and
racial stereotypes are likely to affect the outcome of a trial (Delaney, 1993).
Consequently, we have argued for regarding the practice of law as a process of
persuasive interpretation, rather than deduction, and for acknowledging the mutual
influence of law and spatially embedded social activities (Popescu & Gandy Jr., 2001).


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