Volume 11, Issue 1 -

This essay draws on the works of Jacques Derrida and Bernard Stiegler, particularly the concept of the pharmakon , to outline a pharmacological critique of the concept of equity in Aristotle’s Nichomachean Ethics and Rhetoric and the Equitable remedies of the former Court of Chancery which make up the architecture of financial capitalism.

This article’s support for the critical equity agenda can be found in proposing that scholarship on equity could benefit from embracing a distinctive “Law and History” approach. In doing so, it acknowledges that amongst “mainstream” areas of law, equity has been the subject of very extensive historical scrutiny, and suggests that further but differently focused historicization can complement what is already exigent within conventional legal history alongside critical legal history. In illuminating how “Law and History” might differ from traditional and critical legal histories, the analysis explains how “Law and History” embodies established approaches within both, but emphasises the work of historians to a much greater degree than either. In identifying its current hallmarks, it explains that the parameters of “Law and History” are still being worked through. It also suggests that this notwithstanding, setting out for lawyers how historians perceive themselves and their work, and approach their craft – drawing this from current and highly profiled debate within history itself – identifies the potential of history as a resource of critique across legal scholarship. In identifying historians’ own perceptions of the importance of “mutual reinforcement” in social science scholarship, the analysis also explains how law can become a much more extensive resource of critique for history than is currently the case.

This paper defends the distinction between law and equity with regard to legal reasoning. It argues that equity not only can provide – as the late Bernard Rudden said – an alibi but equally can add an extra dimension to the reasoning process. It helps the legal reasoner to escape from a two-dimensional “flat” world into one that functions in three-dimensions in which the complexities of social reality can be given more adequate expression.

This essay draws on Marxist thinking to argue that equity is essential to the social reproduction of finance capital. Equitable doctrines can be seen as assemblages that define and reproduce the way in which money, people and property relate to each other. Assemblages of equity/capital are ideological complexes – ways of being, thinking and acting that effectively legitimize a particular mode of production. The role that equity plays in the functioning of a regime of profit making is effectively concealed from the student of the subject. Feminist scholars have perhaps been the most successful in drawing attention to the “hidden” patriarchal logic of the subject. However, unless feminist insights are linked to an understanding of the social reproduction of capital, we cannot appreciate how modes of capital accumulation operate under cover of the legitimizing effects of equitable doctrines.

Orthodox ideas of ownership tend to depict property as a private domain that expresses the owner’s formal rights. Yet equity does much to resist this outlook, deploying ethically-loaded ideas such as conscience and articulating an interpersonal and distinctly duty-driven character to property relations. Focusing on English case law, this article suggests that we can gather various strands of equitable property norms, particularly those derived from the constructive trust, around relationships of responsibility and vulnerability. Furthermore, the article asks what such equitable ideas about property might therefore tell us about the purportedly (self-)possessive character of human subjectivity. Rather than constructing people as sovereign, autonomous proprietors, we might read equity as tracing an ethical quality to the way we perceive ourselves and others through property-related ideas.

As a highly prolific legal mechanism that both predated and subsequently found form amid the development of Anglo-American capitalist societies, the modern-day trust operates across manifold private, commercial, domestic and international spheres. As a consequence of their complex legal, economic and political significance that informs, for example, the worlds of global corporate finance as well as public pensions, trusts play a remarkably important role in helping shape the wider socio-cultural domain of Anglo-American jurisdictions and beyond. Yet trusts remain under- or ill-considered juridical sites in terms of continuing critical-legal dialogues, and especially the dialogue between equity and psychoanalysis. This article will explore how the trust mirrors or recreates in an external juridical form the internal regulation of desire and enjoyment that occurs within the psychic space of the subject-as-trustee. In particular, via duties and obligations a trustee holds on behalf of the subject-as-beneficiary, and the resultant breach that is said to occur when such duties and obligations are not met. Using two key formulations this article will aim to assess the trustee as castrated by means of a (re)interpretation and (re)imagination of some fundamental and formal aspects of breach of trust from the perspective of psychoanalysis. The first formulation relates to the continuous force of unconscious desire (the death drive) that pushes the subject-as-trustee ever onwards towards the thing ( das Ding ) and surplus enjoyment ( jouissance ), thus producing an (inevitable) affective paradox or trap in which the trustee finds themselves caught. The second, albeit intimately connected with the first, relates to the internal regulatory or prohibitive psychical mechanisms that prevent or seek to prevent the subject-as-trustee from pushing past the limit on enjoyment imposed by the pleasure principle. To be exact, a limit that has been consciously and deliberately recreated in the trust mechanism, and by extension the so-called “onerous” duties of the subject-as-trustee, as a means of preventing a breach of trust.

The first part of this essay means to make a modest contribution to the critical – that is to say investigative and non-traditional – study of the philosophical origin, sense, and parameters of the concept of equity. Its focus will at first be on Aristotle. Then I will seek to widen the Aristotelian concept of equity by a consideration of the moral and intellectual capacity of “enlarged mentality” as found in Hannah Arendt’s interpretation of Kant. In doing so, I will actively seek to loosen the legal or judicial bonds of this concept, instead allowing it to freely enter a larger conceptual space involving the political and the psychological. In the second part of the essay, this larger conceptual space leads me to a wider meditation with speculative moments concerning the possibility of an ontological extension of a trans-legal interpretation of equity through a consideration of some aspects of the work of French philosopher Jean-Luc Nancy, particularly his notion of “exscription.” In the third part of the essay, I then supplement this Nancean meditation with a psychological turn focusing on Nancy’s commentary on Freud’s remark on the “extension of psyche.” I offer these speculative moments to step beyond Aristotelian and Arendtian/Kantian constraints and also in order to advance possible philosophical exploration of equity and justice against overly narrow containers in “legal philosophy” including “critical legal theory.”

Equity’s remedial intervention may be traced back to the pharmacological ambiguity of writing, as construed by Plato in the dialogue Phaedrus . It would be easy to read the Platonic recasting of the ambivalence of writing as a stark antagonism between remedies and poisons, which ultimately derives from the divide between Platonic models and copies. However, the construction of this dichotomy is part of a more general transformation, which predates Platonic narrations: during the process of elaboration of the Greek alphabetic written language, the relation of opposition emerges as the cornerstone of the new theoretical vocabulary of the philosophers. Before this process, in the Iliad pharmaka appear instead as almost always benign herbal preparations. In the later text of the Odyssey , the various pharmaka have different effects, which may even radically diverge from each other: Helen’s pharmacy hosts a variety of pharmaka , both healing and poisonous. And yet, this contrast is only recast as mere opposition in Aristotle’s systematization of the relation implied by Parmenides and revisited by Plato. The divergence between remedial and poisonous pharmaka in Helen’s pharmacy is then recaptured within the Christian bipolar view, which legal equity inherits. It may be time to claim the differential rather than oppositional distribution of pharmaka , by ascribing the variety of juridical remedies to a multiplicity of equities.

Dystopias are speculative fictions with a close connection with the present condition and focus on the transformative potential of human agency. Paul Johnston’s futuristic crime fiction Body Politic (1997) presents a dystopian government set in 2020 Edinburgh, where the murder investigation soon transforms itself into the investigation of the whole society. The space of the city opens up to reveal a dysfunctional landscape of dissimulation and becomes the creative space both for the author and the detective character to engage with multifarious aspects. Johnston’s narrative addresses geopolitical issues, bioethical issues related to medicine advancement, society’s institutions and power relations. The private eye turns inward and presents an introspective analysis both of the individual and of society; if the purpose of dystopia and speculative fiction is a defamiliarization of the present in order to critically engage with it, Johnston brings the genre a step further as he establishes an uncanny experience of the present itself which leads to a critical engament of the individual with the deeper aspects of his personality.

The Early Modern period is characterised by political and social turmoil, so the investigation of new forms of government develops with the aim to restore peace and stability. The theological idea of sovereignty reveals the weakness of its foundational principles, which are overtaken by a renewed interest in scientific discoveries and an increasing faith in human reason. As a consequence of all this, new concepts of government arise and spread in Europe, opening the way to new political and social scenarios. In the circumscribed space of the unknown island in The Tempest , Prospero and Gonzalo seem to be the representatives of two utopian ideas of society, and it is apparent that their words reflect topical legal and philosophical questions concerning the idea of sovereignty and the form of government. Their points of view are clearly inspired by significant works, such as Thomas More’s Utopia , Montaigne’s essay Of Cannibals and Ovid’s Metamorphosis , that deeply influenced Early Modern thought. From this basis, I will explore the philosophical and legal issues that emerge from this Shakespearean play, and in particular how the investigation on human nature, natural law and positive law is interrelated with that on the form of government. The analysis of the text’s botanical metaphors is the core of this study since I believe they represent an attempt to clarify and analyse these abstract concepts through images that were familiar to the Jacobean audience. Moreover, I will argue that at the end of the play Prospero and Gonzalo abandon the island with a sense of defeat and disillusion that foreshadows the Hobbesian pessimistic perspective about human nature.

This article attempts to explore the “national” spatial imaginary through a close reading of the 2016 film Journey , commissioned by the Australian Department of Immigration and Border Protection, focusing on two distinct spatio-temporal frameworks operating throughout the film, as a means of discussing immigration and asylum policy in the context of performative spatial imaginaries. This critical focus on the specific medium of film takes into account the ideological production of spatial narratives, and introduces a form of close reading which explores juridico-political frameworks through the cinematic art form, building on a body of scholarship which examines the visual dimensions of the law (Anne Bottomley and Nathan Moore, “Law, Diagram, Film: Critique Exhausted,” Law and Critique 23.2 (2012), 163–182; Law, Culture and Visual Studies , eds. Anne Wagner and Richard K. Sherwin (Dordrecht: Springer, 2014); Genealogies of Legal Vision , eds. Peter Goodrich and Valerie Hayaert (Abingdon: Routledge, 2015)). In the context of a global crisis in forced displacement, it is important to do more than simply want to take these frameworks to task, by bringing to the fore the complicity of these filmmakers in producing a distinctly ideological spatial imaginary of Australia for particular purposes: if the government want this film to be “seen,” it will be seen through a critical eye which subverts its cinematic techniques and reveals its peculiar strategies.

This essay addresses different patterns of the visualisation of the law. It examines how scholars attempt to depict, represent, and perform the law and its founding authority. It also focuses on the pragmatics of legal language: written and spoken standard legal English are pragmatically enriched within contexts where the law is interpreted, uttered, or performed. The linguistic notion of “context” discloses the interrelations between the agendas of law and power and reveals how the law conveys its content to the body politic as its ultimate addressee. It then proposes a renewed concept of legal linguistics. In order to determine the different ideologies underpinning the evolution of English legal language, as well as its prototypical forms of the visualisation of the law, three stages in the history of the English language will be examined: Late Middle English, Early Modern English, and Contemporary English. Each of these stages will be likened to the different parts of judicial proceedings. This will allow us to examine how English legal language has been used in a specific context, the trial, where the law is both uttered and performed.

It is generally agreed that in photojournalism pictures come first. However, also the short verbal texts that accompany them play a crucial role, as they lead readers among the different signifieds of the image. A multimodal discourse analysis of captions will aptly consider both the linguistic elements that appear within the verbal discourse and the image-text relation. The interconnectedness of captions and pictures has lately been defined as a “loop,” a view which blurs the traditional distinction between anchoring and relaying processes theorized by Barthes. The association of the relaying function with comics, however, seems to establish an interesting point of contact between photojournalism and pop art. Captions actually show the tension between “high” and “low” culture, the former being traditionally identified with the word and the latter with the image. While in the heyday of photojournalism captions were made necessary by the poor quality of the photographs, they soon began to provide an abstractive summary of the story told by the picture. This selective process involves interpretation. For this reason, captions can be ethically misleading and even legally controversial forms of discourse, for instance when they are used instrumentally to convey a specific point of view. In photojournalism dealing with crime cases, in particular, captions may display a sensationalist and populist view of justice, thus articulating the thoughts of public opinion supported by the newspaper’s stand. My case study focuses on the caption that accompanied the photo portraying Perry Smith and Richard Hickock while leaving the courtroom on March 29, 1960. The two murderers – who have become famous after the publication of the documentary novel In Cold Blood – had just been sentenced to death by hanging. As reported by Capote, the caption that appeared in the Kansas newspaper read “The Last Laugh?” Starting from this case, the present work will try to investigate the complexity of captions as multimodal forms of discourse.

In the contemporary world the law must use images to enforce our compliance: the law needs some enforcement in the form of visual help. Why then does the law have to rely on advertising in order to have its voice heard? What impact does advertising have on the legal profession?