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The Boundaries of Meaning and the Formation of Law

The Boundaries of Meaning and the Formation of Law: Legal Concepts and Reasoning in the English, Arabic, and Chinese Traditions

Copyright Date: 2006
Pages: 322
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  • Book Info
    The Boundaries of Meaning and the Formation of Law
    Book Description:

    Gu's original perspective on legal history challenges established theories of law based on political science, sociology, and philosophy. She argues that language at a specific time and place determines how the law works in each culture. As each language accumulates too many meanings and connotations, the law becomes inflated by rulings, interpretations, and codified cases that overlap and contradict one another.

    eISBN: 978-0-7735-6002-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
    Sharron Gu
  4. Introduction
    (pp. ix-2)

    This is a comparative study of the relationship between language and the formation of legal ideas and practice. It challenges the sociological and philosophical theories of law by arguing that a given society’s cultural communication plays an important, if not a determinate, role in the formation of legal tradition and its development. Different forms of justice and legality are based less on static principles, rational reasoning, or social relations than on the language through which principles are defined, reason is cultivated, and social distribution is justified. On the one hand, language conceptualizes both legal ideas and legal practice by making...

  5. PART ONE The History of the Language and Transmission of Legal Concepts:: Concrete and Abstract Rights in Medieval England, China, and the Middle East

    • [PART ONE Introduction]
      (pp. 3-4)

      Part 1 analyzes and compares the formation and transmission of the basic concepts of justice and law in Old, Middle, and early Modern English, ancient and classical Arabic, and ancient and classical Chinese. Instead of comprising a conventional textual investigation, it emphasizes how the concepts of justice were elaborated and transmitted in accordance with the linguistic and literary tendencies of each culture at different times. It illustrates how these conceptual characteristics determined the basic features of the legal imagery and practice within these cultures.

      The analysis focuses on the aspects of the historical transmission of law shared by these three...

    • CHAPTER ONE The Conceptualization and Transmission of Abstract Rights: The Romanization of English Law
      (pp. 5-39)

      Scholars have different views regarding the origins of English Common Law and legal institutions. While some scholars emphasize Anglo-Saxon practice, others concentrate on the legislation introduced after the Norman Conquest.¹ The reconstruction of the formation of the Common Law presented in this chapter is revisionist in three ways.

      First, this chapter claims that the unique nature of English Common Law was shaped, more than anything else, by the transplantation of Roman terminology into the English language when the latter was being transformed from an oral into a written form. The fluid and ambiguous, yet adaptive, justice of Old English was...

    • CHAPTER TWO The Elaboration of Absolute, Concrete, yet Fluid Rights: The Islamization of Arabic Law
      (pp. 40-75)

      One of the most difficult issues in the study of Islamic law is that its legal language has a wide spectrum of connotations and thus lacks absolute boundaries. Many legal concepts have not acquired a standardized and technical mode of expression. A single word could bear multiple meanings, and a single meaning could be conveyed by a variety of distinguishable, yet interchangeable, terms. Chapter 2 is intended to analyze the process by which Arabic (later Islamic) legal concepts acquired their form and were transmitted. It attempts to give Western readers a sense of Arabic’s fluid and interpenetrated meanings rather than...

    • CHAPTER THREE The Formation of Concrete, Specific, yet Conflicting Rights: The Moralization of Chinese Law
      (pp. 76-106)

      Chapter 3 investigates the transmission of the basic concepts of law and justice in ancient and classical Chinese. It shows how legal terms first built conceptual boundaries but later lost their absolute meanings through constant redefinition. The chapter also examines how legal interpretation and jurisdictional sanction went beyond the language, becoming administrative and political rather than legal. In order to compare and contrast the historical realization of legal rules and practice in China with that of England and the Middle East, it divides the formation of Chinese law into three periods similar to those of English Common Law and Islamic...

  6. PART TWO Legal Language, Reasoning, and the Structure of Legislation:: The Authority of Words and the Words of Authority in English, Chinese, and Islamic Law

    • [PART TWO Introduction]
      (pp. 107-108)

      Part 2 investigates the relationship between forms of language, dimensions of legal reasoning, and the structure of legislation. It compares the legislative history of English, Islamic, and Chinese law and demonstrates that the form of language, at a particular time, frames the dimensions of legal ideas and the structure of legislation. Legal certainty took different forms during different stages of linguistic and literary development. Legal concepts had various degrees of binding power. When legal concepts were identical to the nonlegal language of society, they represented no more than inscribed moral judgments. The authority of legislation lay beyond legal language, residing...

    • CHAPTER FOUR The Boundaries of Meaning, Linear Reasoning, and the Separation of Powers: The Authority of Words in English Law
      (pp. 109-134)

      The purpose of English legislation, from the thirteenth to the sixteenth century, was to build boundaries defining the rights of the state (i.e., first the king and later parliament) and those of civil society (i.e., groups and individuals). To achieve a political balance, legal boundaries were constantly reconsidered and redefined. Although many scholars have analyzed the process by which legislation was developed, they have paid very little attention to the cultural, literary, and linguistic foundations of English legislation. It is the precise and rigid meanings of formative English that made absolute legal boundaries possible. The linguistic reorientation of the English...

    • CHAPTER FIVE Fluid Meaning, Correlative Reasoning, and Diverse Jurisprudence: The Words of Interpretive Authority in Islamic Law
      (pp. 135-157)

      Chapter 5 investigates the relationship between the forms of legal Arabic and the development of Islamic jurisprudence. It treats the fluidity and transmutability of Arabic as the formal foundation of Islamic law and its legal reasoning. It argues that the interpenetrated boundaries of Arabic meanings, especially those between abstract and concrete meanings, determined the consistent integration of legal and ethical (religious) rulings. The strong capacity of Arabic to generate, distinguish between, yet juxtapose (rather than exclude) various levels of connotation explains why Islamic legal certainty was derived from juristic rather than conceptual authority.

      This argument is demonstrated by means of...

    • CHAPTER SIX Boundless Meaning, Multidimensional Reasoning, and Boundless Power: The Words of Legislative Authority in Chinese Law
      (pp. 158-189)

      Chapter 6 is an analysis of the relationship between the boundaries of meaning, dimensions of reasoning, and forms of legislative power in ancient and medieval China. It illustrates three related characteristics of Chinese legal thought and institutions as determined by the history of legal language. Chinese legal ideas have a strong ethical, rather than metaphysical, emphasis. They are mainly centred on a concept of duty rather than right, and there is no well-defined boundary between Chinese legal and political power. This study, conducted through an investigation of the history of Chinese legal ideas, is divided into three periods.¹

      During the...

  7. Conclusion
    (pp. 190-192)

    This general review of legal history illustrates that a particular language at a particular point in its history shaped the law and the legal ideas of a given society. Each legal language represents a continued dialogue and negotiation whose idioms, vocabularies, and structures have accumulated and been transmitted. Law and legal reasoning evolved from being single-dimensional to being multidimensional and became increasingly sophisticated with the growth of language.

    The different legal systems examined in this study shared some basic tendencies of development. The most significant are: (1) that they were constantly reconceptualized and (2) that they became increasingly specified and...

  8. Notes
    (pp. 193-234)
  9. Bibliography
    (pp. 235-282)
  10. Index
    (pp. 283-293)