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Law in the Time of Oxymora: A Synaesthesia of Language, Logic and Law
Rostam J. Neuwirth
Subtype
2018-05
PublisherRoutledge
Publication Place2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Other Abstract

The initial idea for Law in the Time of Oxymora gradually concretized as the result of diverse educational and professional experiences gained over the past two decades all around the world. Throughout these years, every new research question or experience at large appeared to invite the sole conclusion that a strongly dualistic conception of law as of life – expressed in a binary logic and in language through an infinite number of dichotomies, antagonisms or dualistic pairs – poses a serious obstacle to successfully tackling the problems caused by the increasingly complex and rapidly changing world in which we live. In this world, the complexity and the accelerated pace of change equally threaten – like a new pandemic global disease – to undermine law, especially the rule of law as an instrument providing legal certainty and predictability. These factors seem to contribute to the failure of law to meet expectations and to solve the great problems faced by the global governance debate today.

The apparent failure of the present international legal order, which is characterized by the absence of a coherent body of global law, is what invited the association with the book Love in the Time of Cholera written by Gabriel García Márquez, which provided more than the phonetical inspiration for the title of this book. By showing that love can flourish even in a time of pandemic disease, Márquez provided, in my view, encouragement to try to find ways for law to function as a “social medicine” as described so well by Pierre Lepaulle. To successfully do so, however, law must carefully address the prospects for global governance in the future, which James N. Rosenau described as the ability “to discern powerful tensions, profound contradictions, and perplexing paradoxes”. In law, however, contradictory language mostly causes a malaise, given the law’s strongly dualistic conception, which holds that a contract is either void or valid, an act legal or illegal, or a person innocent or guilty, but – usually – never both at the same time.

The possibility of a cure for this malaise of the law is what prompted my inquiry into the language and logic of the rhetorical figures of the oxymoron, the enantiosis and the paradox, or the so-called “essentially oxymoronic concepts”, as I described them in an article published in 2013 as a homage to the notion of “essentially contested concepts” coined by Walter B. Gallie in 1956. Law in the Time of Oxymora departs from the premise of a possible shift from contested to oxymoronic concepts to an examination of the likely trend of an increase in the use of essentially oxymoronic concepts. Subsequently, it assesses the extent to which this linguistic trend is a harbinger of more profound changes, which could eventually pave the way to deeper cognitive and possibly genetic changes. The reason is that cognitive changes are urgently needed if the objectives of a drastic institutional and legal reform of the present system and the establishment of a coherent global legal order are to be accomplished. In trying to show how oxymora and paradoxes may trigger such changes in cognition and possibly genetics, synaesthesia provides an adequate metaphor for a greater unity of perception, whether it is applied to the different senses themselves, to language, logic and law, or to art, science and law. In sum, a greater unity of the senses, and in perception as a whole, is expected to form the basis for overcoming the global fragmentation of laws and possibly many other serious problems, the solution of which may have been prevented so far by a neglect of the fact that contradictions are only apparently absurd, however, they may in fact be or turn out to be true.

It is certainly true that this book would never have been possible without all the creators of the different artistic, scientific, legal and other works cited throughout this book, which are too numerous to be listed in a separate bibliography. They have all made the research for this book not only an exciting synaesthetic journey but have also provided many missing links and great intellectual support for a topic which has not yet been addressed in such a comprehensive way. In this task, great inspiration has come from the many people with whom I was so privileged to study and research at different places. The journey began with my studies at the law faculties of the Université d’Auvergne in Clermont-Ferrand (France) and the Karl-Franzens University in Graz (Austria). It continued at McGill University, where so many important insights were received during my postgraduate studies, notably in the classes by my supervisor Prof. H. Patrick Glenn, who sadly passed away too early and without being able to comment critically on my book as he had promised. His teaching and supervision were a true eye-opener to the rich and diverse world of law and the essential role of the comparative method for law and legal reasoning across the world’s different legal traditions. At the same time, more inspiration came from Armand De Mestral, Rabbi Joshua Shmidman, El Obaid A. El Obaid and Stephen Toope, who all reinforced my interest in the various foundations of the unity in the diversity of law in a global context. I would equally like to acknowledge the many interesting seminars or courses delivered by my supervisor, Bruno de Witte, as well as Giuliano Amato, Philip Alston, Gráinne de Búrca, Pierre-Marie Dupuy, Claus-Dieter Ehlermann, Christian Joerges, KarlHeinz Ladeur, Neil Walker and Jacques Ziller during the time I spent at the European University Institute.

For my legal formation and later academic career, an indispensable professional experience was provided by my work in the regional courts in Styria, as well as the International Law Bureau of the Austrian Federal Ministry of Foreign Affairs in the context of the Austrian EU presidency in 2006. Following the work in the Foreign Ministry, I moved on to teach at two National Law Schools in India, the Hidayatullah National Law School (HNLU) and the National University of Juridical Sciences (NUJS) in Kolkata (India). Here, all my gratitude goes to Mahendra P. Singh, the former Vice-Chancellor of NUJS, for his unique mentorship, great intellect and kind support over all those years.

As a unique Eastern-Western place, my special thanks go to the Macau SAR and the University of Macau for providing such an interesting research environment in legal, economic, historical, cultural and culinary terms. Equal thanks go to my colleagues and students at the Faculty of Law for providing support for so many ideas through related research and teaching activities. Equally important were my various stays as a visiting professor at the University of New South Wales, the Eduardo Mondlane University, Hokkaido University, the European University Institute, the Pan-European University, Kobe Law School, the University of Life Sciences in Vienna and the Universidad Andina Simón Bolívar in Quito. Although there are too many to list, every single conference was a rich source of ideas, and I would like to especially mention the Juris Diversitas annual conferences in 2016 and 2017, which provided an open-minded platform for the presentation of the principal ideas underlying this book.

Finally, I also thank the following friends and colleagues who directly or indirectly contributed to the realization of this book: Irene Calboli, Ignazio Castellucci, Christine A. Corcos, Christiaan De Beukelaer, Denis De Castro Halis, Yvonne Donders, Iris Eisenberger, Rai Ekraj, Francesco Francioni, Miguel Goede, Christoph Beat Graber, Peter Griss, Sonei Griss, Véronique Guèvremont, Frank Hammel, Lilian Hanania-Richieri, Daniel and Brigitte Hollegha, Andrew Johnston, Martin Kleiner, Michael Kratzer, Arno Kreilhuber, Andreas Kumin, Lee Keun-Gwan, Li Shiqiao, Michel Levi Coral, Bing Ling, Esther Lorenz, Salvatore Mancuso, Stefan Meyer, Gu Minkang, Olivier Moréteau, Colin B. Picker, Andreas Rahmatian, Akira Saito, Robert Schuetze, Martina Spernbauer, Alexandr Svetlicinii, Yoshiyuki Tamura, Gonzalo Villalta Puig, Wang Heng, Richard H. Weisberg, Peter K. Yu, Zhao Yun, and Lorenzo Zucca.

Beyond words, a true conditio sine qua non for the realization of the book is the strong support from my closest family, in the context of which I want to mention my father Holger, to whom this book is dedicated, as he laid the foundations to it in more than a dozen ways and provided important critical feedback on an earlier draft. To my mother Eva, I am grateful for her belief in me and for having, from the very beginning, truly set the foundations for me to pursue my career globally. Similarly, I acknowledge my grandparents, who continue to provide essential support, guidance and hope, even from the life after life. Further acknowledgements go to Iris P. Neuwirth, Mohammed M. Abderrahmane and Harald “Harry” Neuwirth, Gösta Neuwirth and Olga Neuwirth, who also provided great support to this book, far beyond the mention or explanation of specific oxymora. At last, my special gratitude and love goes to my wife Pui Mang and my very favourite “oxymora”, our two children Elam J. and Lea J.

                                                                                                 Rostam J. Neuwirth, Macau, October 10, 2017

Table of Contents

    Preface xiii
1 Prologue: the quest for light 1
2 Introduction 3
3 From essentially contested to oxymoronic concepts 6
    3.1 Essentially contested concepts: contestation and conflict 6
    3.2 Oxymoron, enantiosis and paradox: contradiction and
           convergence 11
    3.3 Perceptions of change 16
    3.4 Changes of perception 20
4 Essentially oxymoronic concepts in art and science 25
    4.1 Essentially oxymoronic concepts in art 26
    4.2 Essentially oxymoronic concepts in science 33
    4.3 The senses as a bridge between art and science 51
    4.4 Art and science: one culture? 58
5 Oxymora in the law 60
    5.1 What is this thing called “law”? 62
    5.2 Essentially oxymoronic concepts in case law 66
    5.3 Essentially oxymoronic concepts in jurisprudence 86
    5.4 Is law “essentially oxymoronic”? 108
6 Change of language or language of change? 112
    6.1 The evolution of language: neologisms and semantic
           change 113
    6.2 Two minds or one? Dual process 126
    6.3 Culture and geography of mind 131
    6.4 Duality of human nature: “nature vs nurture” or
           cognitive genetics 135
7 Law in the time of oxymora: just injustice? 144
    7.1 Essentially oxymoronic concepts “in action” 145
    7.2 Essentially oxymoronic concepts “in books” 152
    7.3 “Just injustice”: changes of the law and the law of changes 156
    7.4 Law and justice: from “dual process” to “due process” 164
8 Cognition: mind the change or change the mind? 169
    8.1 Oxymoronic reasoning or other contradiction-solving
           mechanisms 171
    8.2 West-Eastern considerations of oxymora: 
           analysis vs synthesis 183
    8.3 Art, science, law and technology: metaphors of the future? 197
    8.4 Law and cognition: the solution of paradoxes in law 205
9 Law for the time of oxymora: mnemonic law 215
    9.1 Global law and mnemonics: the challenges 218
    9.2 The contours of a global mnemonic legal order 229
    9.3 The “colour of law” or cognitive coherence through legal
           synaesthesia 234
9.4 Law and the language of the future: from instinct, via
       intellect to intuition 243
10 Concluding remarks 253
11 Epilogue: a new era of light 257
    Index 263

ISBN978-0-8153-4669-2 ; 978-1-351-17020-8
DOI10.4324/9781351170208
URLView the original
Is Part of SeriesJuris Diversitas ; Juris Diversitas
Pages284
Language英語English
WOS IDWOS:000454699900013
WOS SubjectLaw ; Language & Linguistics
WOS Research AreaGovernment & Law ; Linguistics
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Document TypeBook
CollectionFaculty of Law
AffiliationProfessor of Law at the University of Macau (China)
First Author AffilicationUniversity of Macau
Recommended Citation
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Rostam J. Neuwirth. Law in the Time of Oxymora: A Synaesthesia of Language, Logic and Law[M]. 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN:Routledge,2018.
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