Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, November 26, 2012

Aricle on The Ground Between Facts and Norms

Richland,%20JustinJustin Richland (Associate Professor, University of Chicago) recently published his article entitled Perpetuity As (and Against) Rule: Law, Tradition, Juris-Diction, American Bar Foundation, Chicago, IL (Oct. 17, 2012).  The abstract available on SSRN is below:

“Between facts and norms” is how Jürgen Habermas (1998) describes the mediating place that law occupies and by which it exercises its unique communicative force in state-level societies. But law is not the only discourse that stakes an authorizing claim to that mediating ground. Discourses of tradition, for example, have increasingly been turned to in current indigenous politics as a way to insure that contemporary native governance systems reflect the integration of their particular cultural norms with the vicissitudes of everyday native life in the 21st century. At the same time, both law and tradition, in managing this in-between place, have come under heavy critique for making authoritative representations that are always exceeded by the actual lives and times whose measure they take. This paper is an examination of these claims and critiques as they unfold in the discourses of law and tradition proffered in inheritance dispute hearings before the Hopi Tribal Court between the mid 1990s and 2000s. More specifically I will argue for understanding the authority that law and tradition generate between facts in norms in terms of what I call their perpetuity – that spatio-temporal framing, observable in the details of their actual discourses, by which both law and tradition are alternatively invoked to authoritatively represent the relevant issues of a case at hand. As I show, to the extent that in the Hopi court’s Anglo-style processes the authority of law or tradition are invoked as competing to occupy exclusively the mediating time-space between facts and norms, the quality of law and tradition’s perpetuity can also be understood as a kind of jurisdiction, or juris-diction: discourses of law that call forth the force and limits of legal authority. In conclusion, I will suggest the possibility for extending these understandings beyond the Hopi context by exploring the problems that inheritance disputes generally, and the Rule Against Perpetuities in particular, have long posed for Anglo-American law, suggesting that perpetuities operate at the very heart of that which stands as (and against) rule.


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