Eugene Garver

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Justice as Play is a highly illuminating gloss on Coke's idea of the law as "artificial reason," and one of its merits is that it is equally about the law as artificial and as reason. While he leans on Huizinga to talk about justice as play, Jack Sammons deepens the analogy by another meaning of play, celebrating the venerable connections between the trial and the drama as relatively insulated arenas for developing alternatives to the existing political order. According to Jack, legal argument can be regarded as play because of that relative insulation. So I want to turn from judicial to deliberative and political reasoning and ask whether it too can be regarded as play, in spite of its not having several of the features that Jack singles out to make his analogy. To be quite unfair to Justice as Play, one could say that it argues that justice, and legal argument, is play because political argument is not. I am interested in what we can learn about political argument from thinking about legal argument as play.

I also want to ask a question Jack does not ask: if legal argument is a game, what sort of game is it? Justice, as embodied in trials and other legal proceedings, is a very peculiar sort of game. One set of people plays and another pays. The best analogy I can think of is cock-fighting. In addition, one often has to participate, while in most games, playing is optional. So I want to use Justice as Play as a place to look at the nature of representation.