 |
|
The Representational Dialectic (With Illustrations From Obscenity, Forfeiture, and Accident Law) |
|
| Human understanding derives from a "representational dialectic," whereby abstractions make sensory experiences intelligible. The first element of this dialectic, a human tendency to focus on the concrete, may be called "depictionalism." The second element, an effort to subsume the concrete within an abstract organizing principle, may be called "rationalism." A struggle between these two modes, one focused on the tangible or images of the tangible, and the other privileging abstract schemas such as language, has been underway for millennia. Most realms of culture, including philosophy, religion, art, politics, and some of the sciences, provide evidence of this conflict. In attempting to overcome the appeal of depictionalism, advocates and proponents of rationalism frequently equate depictionalism with primitive or magical thinking-in short, error. In this Article, Anita Bernstein argues that lawmakers and law reformers have aligned themselves with rationalism, and that ignoring or slighting depictionalism has hindered both understanding of the law and the creation of optimal legal rules. Using obscenity, forfeiture, and accident law as examples, Professor Bernstein shows the representational dialectic at work in the law, and discusses its implications for doctrinal clarity, law reform, and political accountability of the state. | |
|
|
|
Copyright
© 1999 by California Law Review, Inc. |
|