The Paradigm Case: Is Reasoning and Writing in Film Studies Comparable To (or With) Reasoning and Writing in Law?
To what extent can theories or models that have been developed by literary and film theorists inform legal knowledge? Can any such literary and film models offer any serious insights to legal epistemology or are such ‘borrowings’ likely to remain at best rather superficial? The purpose of this contribution is to suggest that there are a number of theories – or at least models – that can prove quite fruitful for lawyers. Three, in particular, will be examined: namely personification theory, representation theory and reception theory. Personification theory is concerned with the notion of persona in cinema, theatre and literature and reflects, in particular, on the relevance of identity in films like Vertigo (1958) and Phoenix (2014). Persona, of course, is both a literary and a legal concept and so there is, however tenuous, a direct conceptual connection. Representation theory (see Bacon extract overleaf) has already had some impact on law – it can be seen as an aspect of fiction theory (see Vaihinger) – and this impact might be revived with the publication of a recent work by Professor Mathieu. Reception theory (see Dzialo overleaf) is more closely associated with hermeneutics which of course as a scheme of intelligibility has attracted much attention from jurists. Nevertheless the categories of text developed by Stagier have, perhaps, a particular reference for the jurist: what is the relationship between legal texts and their readers and does this relationship vary according to the nature of the text in question? One further point will be developed with respect to these theories or models mentioned. Perhaps labelling them as ‘theories’ or ‘methods’ is unhelpful; a more fruitful label might be one mentioned by Bouriau in his examination of Vaihinger’s ‘as if’ (comme si) fiction theory. It is not so much a theory; it is more of an ‘epistemological attitude’ (attitude épistémique).
Geoffrey Samuel Born in 1947 in England, Geoffrey Samuel is currently a Professor of Law at the University of Kent and a Professor affilié at the École de droit, Sciences Po, Paris. He received his legal education at the University of Cambridge and holds doctoral degrees from the Universities of Cambridge, Maastricht and Nancy 2 (honoris causa). He has also held many visiting posts in France, Belgium and Switzerland and is still a visiting professor in Rome (Tor Vergata), Fribourg and Aix-en-Provence. Geoffrey Samuel is the author of many books on contract, tort, remedies, legal reasoning and legal epistemology, the most recent being An Introduction to Comparative Law Theory and Method (Hart, 2014) and A Short Introduction to Judging and to Legal Reasoning (Edward Elgar, 2016). His areas of specialisation are the law of obligations, comparative law and legal reasoning.