Academic

Sammons on Justice as Literary Play

By Lawrence Solum

Jack Lee Sammons (Mercer University School of Law) has posted Justice as Play on SSRN.  Here is the abstract:

I am interested here in using Johannes Huizinga's work on play to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal literary game, and then choose, more or less, to call the outcome of this game "justice" and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this literary play? If we are to understand how this play became and becomes justice, I argue, we must abandon current assumptions about the legal conversation to appreciate anew not only its formal elements as a game -- constitutive rules; a "lusory attitude" (Bernard Suits' term) toward those rules upon which the game depends for its continuation; and, most important for this article, its insistence upon a certain playful "disinterestedness" or, as l call it here, an alterity or otherness -- but also beyond these its archaic Greek elements: agon, ritual, chance, and, most difficult of all, the remaining elements of sacredness and the divine. This then is the rhetorical task of the article and it proceeds by way of the ancient Greeks, not to define the legal conversation by its origins, but to attempt to reopen our understanding so that we can perceive the legal conversation anew.

Full post as published by Legal Theory Blog on December 09, 2008 (boomark / email).