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Toward a Concrete Temporality of Adjudication: Law's Subject and Event Toward a Concrete Temporality of Adjudication: Law’s Subject and Event A thesis submitted to the University of Manchester for the Degree of Doctor of Philosophy in the Faculty of Humanities 2016 Tanzil Chowdhury School of Law CONTENTS Table of Legislation…………………………………………………………………….…………...7 Table of Cases………………………………………………………………………………….……8 Table of Figures………………………………………………………………………….………….9 Abstract…………………………………………………………………………….………….……10 Declaration…………………………………………………………………………………….……11 Copyright Statement………………………………………………………………………………12 Acknowledgements………………………………………………………………………….……13 INTRODUCTION 14 The Temporality of Adjudication and its ‘Multiple Pasts’………………………..….………17 Temporality as the difference between Abstract and Concrete Judgment …….………..20 The Temporality of Adjudication and the Exercise of Power…………………………....….24 Thesis Questions and Contributions………………………………………………….….…….26 Thesis Outline………………………………………………………………………………..…….30 CHAPTER ONE: Literature Review 34 1.1 Literature Outline………………………………………………………………..…………….35 1.2 Some Examples of Legal Temporalities……………………………………...……………37 2 1.3 Law and Time: General Literature…………………………………………………….……40 1.31“Time, Law and Society”…………………………………………………….….……60 1.32“The Temporalities of Law” ……………………………………………….………....63 1.33 Kelman & the ‘Time Frames’ …………………………………………………..……65 1.4 The Kantian Axiom and Heidegger………………………………………………………....70 1.5 Gadamer and Law: Creative Applications …………………………………..…………....75 1.6 Bergson, Law and Adjudication …………………………………………………….……...78 1.7 Common Themes……………………………………………………………………...………91 CHAPTER TWO: ‘TOLR & TOA’- Two Important and Interrelated Discussions of Legal Temporality 94 2.1 Adjudication, the Retrospective Narrative and the (fallacy) of the Natural Persons as the Primary Epistemic Subject……………………………………......……………….…….95 2.2 Temporality of the Legal Rule (‘TOLR’) and the Temporality of Adjudication (‘TOA’)……………………………………………………………………………………………….98 2.21 Temporality of the Legal Rule…………………………….……………………..….99 2.22 Temporality of Adjudication………………………………….…………………….102 CHAPTER THREE: Theories of Time- Bergson, Gadamer & Dominant-Spatial Temporality 106 3.1 Bergson and Durée.......................................................................................................107 3.2 Dominant-Spatial Temporality………………………………………………….……….…112 3 3.21Temporality as Spatial......................................................................................112 3.22 Spatial Temporality as Dominant.....................................................................116 3.3 Gadamer and Effective History................................................................................... 120 3.4 Recalling Heidegger and the Kantbuch…………………………………………………..121 CHAPTER FOUR: Adjudication as Cognition- ‘Dominant-Spatialised Temporality’ 124 4.1 The Merits of Dominant Spatial Temporality in the Retrospective Narrative…….…125 4.2 The Demerits of Dominant Spatial Temporality in the Retrospective Narrative…...130 4.21‘Time-Frames’ and indeterminacy....................................................................131 4.3 The Spatial Past- Constructing the Natural Persons qua Legal Subject……………………………………………………………………………………………..135 4.31 Who/What is the Subject of Law?....................................................................................................................................136 4.32 Legal Subjectivity and the ‘Spatial Past’...........................................................141 4.33 Broadening the Legal Event ............................................................................144 4.34 The Nature of the Broadening..........................................................................148 4.35 The Nature of its Pastness...............................................................................148 CHAPTER FIVE: Adjudication as Understanding- ‘Durational Temporality’ 150 5.1 Tending toward Durée……………………………………………………………….………151 4 5.2 Shifting Focus from Judges to the Natural Persons: Gadamer’s Effective History and Bergson’s Pure Past………………………………………………………………….….…153 5.21 Effective History of the Natural Persons...........................................................154 5.22 Pure Past of the Natural Persons.....................................................................157 5.3 The Variegated Past………………………………………………………………....………163 5.4 ‘Releasing the Subject’: the Encounter and the Problem…………………..…...…….168 5.41 Revisiting the Encounter.................................................................................169 5.42 Revisiting the Problem.....................................................................................171 5.42 A Fairer Adjudication?.....................................................................................172 CHAPTER SIX: Temporality in Practice: A Case Law analysis 175 6.1 R v. Ahluwalia: the case of ‘Temporal Stretching’ ……………………........…………..178 6.11 Adjudication as Cognition: Problematic Provocation as limited to the Spatial Past ……………………………………………………………………………………….………...180 6.12 Sections 54 and 55 of the Coroners and Justice Act 2009- overcoming the limitations of provocation?.......................................................................................184 6.13 Battered Woman Syndrome and Diminished Responsibility as tending toward Adjudication as Understanding................................................................................187 6.2 R v. Hill & Hall and R v. Saibene: Civil Disobedience as ‘responding to the Variegated Past’ ……………………………………………………………………………………………..…189 6.21 R v. Hill and Hall: ………………………………… .............................................191 6.22 The dominant in dominant-spatial temporality and speculative futures ...........194 6.23 R v. Saibene and others...................................................................................197 6.24 Situating Criminal Damage in the Variegated Past ..........................................198 5 6.25 To-ing and Fro-ing: The Nature of Introspection ..............................................202 CONCLUSION 204 ‘Temporality as Metaphysical’ or ‘Temporality as an Analytical Lens’…………….……206 Responsibility and Nihilism in Adjudication as Understanding…………………..……...207 The workability of Adjudication as Understanding: a few remarks on Constitutionality……………………………………………………………………………….....208 The Relation to Concrete Judgment and its Transformative Potential …………………213 The ‘Temporal Trap’ of Adjudication as Cognition…………………………………...….…216 Modernity, Law and marginalising Temporality……………………………...………….….218 BIBLIOGRAPHY 219 Word Count 86903 6 TABLE OF LEGISLATION Constitutional Reform and Governance Act 2010 Coroners and Justice Act 2009 Criminal Appeal Act 1968 Criminal Damage Act 1971 Criminal Justice and Public Order Act 1994 Criminal Law Act 1967 European Convention on Human Rights 1950 Foreign Compensations Act 1950 Gender Recognition Act 2004 Interpretation Act 1978 Offenses Against the Persons Act 1861 Rome Statute of the International Criminal Court 1998 United States Constitution 1787 War Damage Act 1965 7 TABLE OF CASES Anisminic Ltd v. Foreign Compensation Commission Obergefell v. Hodges 576 U.S. ___ (2015) [1969] 2 AC 147, HL Pepper v. Hart [1992] UKHL 3 Bolton v. Stone [1951] A.C. 850 Richardson v. DPP [2012] UKSC 8 Brown v. Board of Education, 347 U.S.483 (1954) Burmah Oil Company Ltd v Lord Advocate [1965] AC 75 R v. Ahluwalia [1993] 96 Cr. App. R. 31 Bushell Case (1670) 124 E.R. 1006 R v. Baillie (John Dickie) [1995] 2 Cr. App. R Canavan v. Rita Ann Distributers ( D. Md. Mar. 23, R v. Burstow [1998] AC 147 2005)/ 2005 wl 670-777 R v Clinton [2012] EWCA Crim 2 Chandler v. DPP [1964] AC 763, 791, 796 R v. Dawes [2013] EWCA Crim 322 Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, 398 R v Duffy (1949) 1 AER 932 Delgamuukw v British Columbia [1997] 3 S.C.R. R v. G [2008] UKHL 37 1010 R v. Hill [2008] EWCA Crim 2 Detention Action v. First-tier Tribunal, Upper Tribunal, Lord Chancellor [2015] EWHC 1689 R v. Hill, R v. Hall 89 Cr.App.R. 74 DPP V. Shaw [1962] AC 220 R v. Hunt [1987] AC 352 Duport Steel v. Sirs [1982] 1 WLR 142 R v. Ibrams & Gregory (1982) 74 Cr. App. R. 15 Fairchild v. Glenhaven [2002] 3 WLR 89 R v. Jones (Margaret) [2006] UKHL 16 Froom v. Butcher [1976] 1 QB 286 R v. Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435 Liversidge v. Anderson [1942] AC 206, HL R v. McCann and others [2008] NICA 52 Lochner v. New York U.S. 45 R v. Medical Appeal Tribunal, ex parte Gilmore McLoughlin v. O’Brian [1983] 1 A.C. 410 [1957] 1 QB 574, CA Magor and St Mellons RDC v. Newport Corpn [1949] R .v R [1991] 3 WLR 767 2KB 481 R v. Saibene and others (Lewes Crown Court, 2010) Magor and St Mellons RDC v. Newport Corpn [1951] 2 All ER 839 R v. Thornton [1992] 1 ALL E.R. 306 Muir v. Glasgow Corporation [1943]A.448 State v. Preslar (1885) 48 NC 417 18 Nettleship v. Weston [1971] 2 QB 691 8 TABLE OF FIGURES Figure 1- Suzanne Guerlac, Thinking in Time: an Introduction to Henri Bergson (Cornell University press, 2006) 153 ……………………………………………………………………….79 Figure 2- Henri Bergson, Matter and Memory (Nancy Margaret Paul & W.Scott Palmer trs, Digireads.com Publishing, 2010) 105 …………………………………………………………....81 Figure 3- ‘Temporality of the Legal Rule(s)’…………………………………………………..…94 Figure 4- ‘TOLR-TOA’…………………………………………………………………...…………98 Figure 5- ‘Spatial Past of Adjudication as Cognition’…………………………..……………..137 Figure 6- ‘Broadening the Legal Event’…………………………………………………..…….141 9 ABSTRACT
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