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13 L. & Critique 1 (2002)

handle is hein.journals/lwcrtq13 and id is 1 raw text is: WILLIAM E. CONKLIN THE TRAP * ABSTRACT. A professor is brought before a secret tribunal in his law faculty for the purpose of deciding the appropriateness of a student's grade. The grounds of the grade appeal are that the professor had taught critically instead of practically and that he had done so with an academic bias and prejudice. He is also alleged to have taught philosophy rather than law. After many hours of examination and cross-examination as a defendant and as an expert witness, the professor, Flink, begins a dialogue with a spirit in an effort to understand the nature and identity of law. Flink comes to appreciate that law is a displacing discourse rather than a structure of categories signified in an official writing. The analytic method familiar to officials in common law jurisdictions, Flink comes to understand, excludes the experiential meanings that are manifested through unwritten gestures and rituals. Officials embody signs with experiential expectations and past assumptions. The embodiment of meaning brings life into legal language. But such an embodiment is forgotten as officials decompose textual fragments and reported social events into analytic units. Legal analysis is so successful that officials even forget that they had forgotten something so important as the embodiment of meaning. The professor and the spirit also ask whether justice is an 'ought' and where one can locate such an 'ought'. They conclude that there is a structure within which legal officials reason. The exteriority of the structure is an unwritten 'ought' realm. But the struc- ture possesses a gap, which enters into such an unanalysable object-less realm. Analytic reasoning has assumed that reason can take an official only so far until she or he must journey outside the structure to an unanalysable realm of personal values. However, the embodiment of meanings also incorporates unwritten collective values of which officials, precisely because of the success of the analysis project in forgetting that something was forgotten, have never been conscious. It is such an unanalysable realm that grounds or authorises the analytic project. The exterior authorising origin of the analytic units of the structure rests upon a possibility that requires faith on the part of the officials, a faith that there exists a foundation, radically different from the analytic units, on the other side of the structure. The officials can, at best, imagine or picture the authorising origin, located as it is in the unanalysable object-less realm exterior to the written language of the structure. The imagined origin takes the 'form' of a bodiless spirit. The officials (and the professor and spirit) are haunted by the possibility that the structure of humanly posited rules are ultimately authorised by a spirit. KEY WORDS: analytical jurisprudence, education, memory, nature and identity of law, phenomenology * The Trap was written for and first read as a three Act play on Sunday May 24th, 1987 at the Critical Legal Studies Study Camp at Chaffey's Locks, Ontario, Canada. The theme of the study camp was 'different voices'. It was subsequently read in part at the LA Law and Critique 13: 1-28, 2002. O © 2002 Kluwer Law International. Printed in the Netherlands.

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