Slideset for a class in Law & Humanities, ANU College of Law, July 2015.

1. Law and culture: Scots languages,
legal narratives and discourse
communities.
Professor Paul Maharg
Australian National University

2. 2
preview
 Discourse communities
 Natural law discourse in Scots culture
 Discourse conflict in Scottish literature, legal thought and society

3. 3
‘discourse community’?
‘… that language use in a group is a form of social behavior, that discourse is
a means of maintaining and extending the group's knowledge and of
initiating new members into the group, and that discourse is epistemic or
constitutive of the group's knowledge.’
Swales, J. (1990). The concept of discourse community, Genre Analysis: English in Academic and
Research Settings. Boston, Cambridge UP, 21-32, quoting Herzberg, B. (1986), The Politics of
Discourse Communities, Paper presented at the CCC Convention, New Orleans, La, March 1986.
See also ‘speech communities’ & ‘interpretive communities’, eg Stanley Fish
on interpretive community

4. 4
A discourse community…
 has a broadly agreed set of common public goals.
 has mechanisms of intercommunication among its members.
 uses its participatory mechanisms primarily to provide information and
feedback.
 utilizes and hence possesses one or more genres in the communicative
furtherance of its aims.
 In addition to owning genres, it has acquired some specific lexis.
 has a threshold level of members with a suitable degree of relevant
content and discoursal expertise.
Swales, J. (2011). The concept of discourse community. Writing about Writing.
Downes & Wardle, Boston, 471-3.

5. 5
… with porous borders
Anti-foundationalism teaches that questions of fact, truth,
correctness, validity, and clarity can neither be posed nor answered
in reference to some extracontextual, ahistorical, non-situational
reality, or rule, or law, or value; rather, anti-foundationalism asserts,
all of these matters are intelligible and debatable only within the
precincts of the contexts or situations or paradigms or communities
that give them their local and changeable shape.
Stanley Fish, 'Anti-foundationalism,
Theory Hope and the Teaching of
Composition', Doing What Comes
Naturally: Change, Rhetoric, and the
Practice of Theory in Literary and Legal
Studies. Oxford, Clarendon Press,
1989, p.344

6. 6
Natural law jurisprudence…
A form of inquiry within which there are
attempts to combine ‘jurisprudence, civic
humanism and practical ethics in a coherent
moral and political outlook.’
Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the
Scottish Enlightenment. Cambridge: Cambridge University Press, 1996, 5

7. 7
In Renaissance/Reformation Scotland…
‘Law is the dictate of reason,
determining every rational being to
that which is congruous and
convenient for the nature and condition
thereof.’
James Dalrymple, Viscount Stair, The Institutions of the Law of Scotland. 1681,
reprinted 1981. Edited D.M. Walker, University Presses of Edinburgh & Glasgow,
I,I,I.
(1619-1695)

8. 8
Francis Hutcheson
Francis Hutcheson
(1694-1746)
Professor of Moral
Philosophy, University of
Glasgow (1730-46)
An Inquiry into the
Original of our Ideas
of Beauty and Virtue (1725).
Portrait by Allan Ramsay, c.1745
(holding a copy of Cicero’s De finibus)

9. 9
‘The old Notions of natural Affections, and kind
Instincts; the Sensus communis, the Decorum, and
Honestum, are almost banished out of our Books
of Morals; we must never hear of them in any of
our Lectures for fear of Innate Ideas; all must be
Interest and some selfish View’
Francis Hutcheson, Collected Works, 7 vols, facsimile edition prepared by
Bernhard Fabian. Hildesheim: Olms, 1969-90. Vol VII, 475

10. 10
sensus communis as virtuous spiral
1. Translation by Aquinas for a phrase in Aristotle’s De Anima, where it
is used to describe the cognitive activity of the mind to engage in
discriminating relationships between particulars and universal – in
effect, a meta-sense.
Schaeffer, J.D. (1990). Sensus Communis: Vico, Rhetoric and the Limits of
Relativism. Durham, North Carolina, Duke University Press.
2. In the Stoic tradition, for example Seneca’s De Beneficiis, it refers
more to the manners and sense of decorum that belong to a society
or community – in the 18th century revival of Stoic literature
Shaftesbury’s Sensus Communis: An Essay on the Freedom of Wit and
Humour is an example.
 For Hutcheson:
 1 creates 2. 2 influences 1.
 Moral theory is lived practice

11. 11
‘In all Governments, even the most Absolute, the Natural End of the
Trust is acknowledged on all sides to be the Prosperity and Safety of
the Whole Body. When therefore the Power is perverted from this
end to the Ruin of a People, either by a Monstrous Tyrannical
Intention, or any such Folly or Wickedness of the Rulers as must
have the same effect, the Subjects must have a Right of Resistance,
as the Trust is broken; beside the manifest Plea of Necessity.’
Francis Hutcheson, Collected Works, 7 vols, facsimile edition prepared by Bernhard
Fabian. Hildesheim: Olms, 1969-90. Vol VI, 271
Cf Scots republican & humanist writings, eg George Buchanan, De jure regni apud
Scotos (A Dialogue concerning the rights of the Crown in Scotland) (1579)

12. 12
Adam Ferguson (1723-1816).
Portrait by Henry Raeburn, c.1790.
Collection: The University of Edinburgh
Fine Art Collection.
Adam Ferguson
• 1723-1816
• Chaplain to the Black Watch
regiment
• Professor of Moral Philosophy
and Pneumaticks, Edinburgh
University
• Essay on Civil Society (1767)
• Explores a complex model of
historical & social continuity

13. 13
[T]he highland clans could … be characterised as belonging to the shepherd
stage. The stage of agriculture was still vivid in mind even if farming was in
a process of transformation into a capitalistic, market-oriented production;
and the stage of commerce was rapidly gaining in the second half of the
eighteenth century when the Scottish lowlands were the economic wonder
region of Europe’
Eriksson, B. (1993) The first formulation of sociology: a discursive innovation of
the eighteenth century, Archives-Européenes-de-Sociologie, 34(2), pp. 251-276,
272,

14. 14
Ferguson on university study
‘Now is your time to begin Practices and lay the Foundation of
habits that may be of use to you in every Condition and in every
Profession at least that is founded on a literary or a Liberal
Education. Sapere & Fari quae sentiat are the great Objects of
Literary Education and of Study. ... mere knowledge however
important is far from being the only or most important Attainment
of Study.
The Habits of Justice, Candour, Benevolence, and a Courageous
Spirit are the first Objects of Philosophy the Constituents of
happiness and of personal honour, and the first Qualifications for
human Society and for Active life.’
Quoted in Richard B. Sher, 'Professors of Virtue: the Social History of the Edinburgh Moral Philosophy Chair in the
Eighteenth Century', in Studies in the Philosophy of the Scottish Enlightenment, ed. M.A. Stewart (Clarendon Press,
Oxford, 1990), pp.117-8, quoting Adam Ferguson's Lectures, mss EUL, 1775-6, fols.540-41)

15. 15
Ferguson’s appeal lies in his refusal to let philosophical
systems blind him to the stark realities of capitalist shifts in
later eighteenth century Scotland; but also in his refusal to
admit that a complex and sophisticated philosophical
tradition two millennia in the making had little of worth to
say to him or his society. Rejecting utilitarianism, he
creates an ethics based upon self-interest and benevolence,
upon competition and stoic communitarianism
Hill, L. (2006) The Passionate Society. The Social, Political and Moral
Thought of Adam Ferguson, International Archives of the History of
Ideas. Dordrecht, Springer, 85.

16. 16
• Edinburgh University,
1783-86
• Writer to the Signet;
Advocate 1792
• Sheriff-Deputy of
Selkirkshire, 1799
• Clerk to the Court of
Session, 1807
• Waverley, 1814
• Chronicles of the
Canongate, 1827Portrait of Walter Scott, Henry
Raeburn, 1809.
Commissioned by Constable
following the success of
Walter Scott, 1771-1832

17. 17
http://www.walterscott.lib.ed.ac.uk/works/novels/drovers.html

18. 18
Robert Louis
Stevenson, 1850-
1894
•Edinburgh University,
1867-72
•Advocate, 1875
•Kidnapped, 1886
•Catriona, 1893
•Weir of Hermiston
(unfinished at death)
RLS in Samoa, 1894

19. 19
Natural law discourse, late nineteenth century
‘There is a sort of scale, or gradual ascent, through several almost
insensible steps, from the lowest and weakest claims of humanity to
those of higher and more sacred obligation, till we arrive at some
imperfect rights so strong that they can scarce be distinguished
from the perfect, according to the variety of bonds among mankind,
and the various degrees of merit and claim upon each other.’
James Lorimer, The Institutes of Law: A Treatise of the Principles of
Jurisprudence as Determined by Nature. Second edition. Edinburgh 1880

20. 20
discourse conflict in Catriona
‘”This is a political case – ah, yes, Mr Balfour!
Whether we like it or no, the case is political – and
I tremble when I think what issues may depend
from it. To a political case, I need scarce tell a
young man of your education, we approach with
very different thoughts from one which is criminal
only. Salus populi suprema lex is a maxim
susceptible of great abuse, but it has that force
which we find elsewhere only in the laws of
nature: I mean it has the force of necessity.”’
Robert Louis Stevenson, Catriona . Edinburgh, 1893. Reprinted Canongate
Publishing, Edinburgh, 1989, 32

21. 21
discourse conflict in Weir of Hermiston
[Jean Rutherford’s] view of history was wholly artless, a design in snow and
ink; upon the one side, tender innocents with psalms upon their lips; upon
the other, the persecutors, booted, bloody-minded, flushed with wine ...
Nor could she blind herself to this, that had they lived in those old days,
Hermiston himself would have been numbered alongside of Bloody
MacKenzie and the politic Lauderdale and Rothes, in the band of God’s
immediate enemies. The sense of this moved her to the more fervour; she
had a voice for that name of persecutor that thrilled in the child’s marrow;
and when the mob hooted and hissed them all in my lord’s travelling
carriage, and cried, ‘Down with the persecutor! down with Hanging
Hermiston!’ and mamma covered her eyes and wept, and papa let down
the glass and looked out upon the rabble with his droll formidable face,
bitter and smiling, as they said he sometimes looked when he gave
sentence, Archie was for the moment too much amazed to be alarmed, but
he had scarce got his mother by herself before his shrill voice was raised
demanding an explanation: why had they called papa a persecutor?

22. 22
‘“this is poleetical. Ye must never ask me anything poleetical, Erchie” ...
And so [she] slid off to safer topics, and left on the mind of the child an
obscure but ineradicable sense of something wrong’
Stevenson, R.L. Weir of Hermiston. Kerrigan, C., ed., Edinburgh, 1995, 12

23. 23
History is not a text, not a narrative, master or otherwise, but ... it is
inaccessible to us except in textual form, and ... our approach to it ...
necessarily passes through its prior textualisation, its narrativization in the
political unconscious.
Jameson, F. The Political Unconscious: Narrative as a Socially Symbolic Act, Ithaca
NY, 1981, 35

24. 24
Natural law jurisprudence & Scottish
literature
A form of inquiry within which there attempts to
combine ‘jurisprudence, civic humanism and practical
ethics in a coherent moral and political outlook.’
Scott’s position in the tradition?
Stevenson’s position on the cusp of the tradition?

25. 25
discourse conflict
1. How does Scott deal with discourse conflict in The Two
Drovers?
2. Goodrich’s description of the Haida culture in court:
what’s the basis of the discourse conflict?
3. How do courts narrativize conflict so as to achieve
discourse dominance?

26. 26
Scots Referendum campaign as discourse &
constitutional conflict – seen internationally
Tharoor,I.,‘HowScotland’s‘Yes’campaignwonevenwhenitlost’,
TheWashingtonPost,19September2014.

27. 27
Alasdair Gray

28. 28
Cp: Salus populi
suprema lex

29. 29

30. 30

31. 31
‘In all Governments, even the most Absolute, the
Natural End of the Trust is acknowledged on all sides to be
the Prosperity and Safety of the Whole Body. When
therefore the Power is perverted from this end to the
Ruin of a People, either by a Monstrous Tyrannical
Intention, or any such Folly of Wickedness of the Rulers as
must have the same effect, the Subjects must have a Right
of Resistance, as the Trust is broken; beside the manifest
Plea of Necessity.’
Francis Hutcheson, Collected Works, 7 vols, facsimile edition prepared by
Bernhard Fabian. Hildesheim: Olms, 1969-90. Vol VI, 271

32. 32
discourse conflict in Catriona
‘”This is a political case – ah, yes, Mr Balfour!
Whether we like it or no, the case is political – and
I tremble when I think what issues may depend
from it. To a political case, I need scarce tell a
young man of your education, we approach with
very different thoughts from one which is criminal
only. Salus populi suprema lex is a maxim
susceptible of great abuse, but it has that force
which we find elsewhere only in the laws of
nature: I mean it has the force of necessity.”’
Robert Louis Stevenson, Catriona . Edinburgh, 1893. Reprinted Canongate
Publishing, Edinburgh, 1989, 32

33. 33
Cameron’s response

34. 34

35. 35