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Who's afraid of the big bad fish? Rethinking what the law wishes to have

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journal contribution
posted on 2003-04-01, 00:00 authored by John MorssJohn Morss
This article aims to re-evaluate the contribution of Stanley Fish to legal studies. In  "The Law  Wishes to Have a Formal existence", Fish accused the law of maintaining a formal,  positivistic self-image as principled; an activity rhat rises above processes of interpretation and of moral judgement. For this `antiformalist‘ Fish there is thus a false sense of self-sufficent closure to the law's discourse. More recently however: in discussing the practice of another profession (namely literary criticism) Fish demonstrates that the basis of aclivity per se is internal intelligibility - that is intelligibility  within a defined community. These apparent  inconsistencies are explored. Re-reading `The Law Wishes to Have a Formal Existence' one can discern errors in Fish's account of a key case and one can also find support for the  professionalism position that he subsequently articulates. It is therefore argued that  Fish's account of the general characteristics of professional practice, including legal, are of value. The implications of his account of professionalism in the law are, however, incompatible with the usual understanding of his more combative statements about the role of formal language and principle-based argument of the law.

History

Journal

Melbourne University law review

Volume

27

Issue

1

Pagination

199 - 216

Publisher

Melbourne University

Location

Melbourne, Vic.

ISSN

0025-8938

eISSN

1839-3810

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal; C Journal article

Copyright notice

2003, Melbourne University

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