Penal ideology, sentencing and the legitimacy of trial justice

The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the ‘rule of law’. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of ‘justice’ in sociological accounts of the ‘reality’ of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial‘s ‘relevant audience’. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived ‘legitimacy’ of international trial justice.     

Derrida’s Other Ends of Man

In ‘Force of law’ Derrida appears to suggest that emancipatory ideals and human rights have a continuing relevance. This may seem a surprising proposition from a theorist often interpreted as critical of humanist and Enlightenment principles. This paper argues, however, that Derrida does not reject, outright, humanist, Enlightenment and emancipatory strategies but instead deconstructs these in order to propose alternate ‘ethical’ and ‘political’ possibilities. Focusing on ‘The ends of man’, ‘Force of law’ and ‘Autoimmunity’ this paper argues that Derrida does not advocate an anti-humanism but instead gestures toward an alternate unconditional hospitality, responsibility, friendship, justice and democracy-to-come, displacing the anthropomorphism of humanism and advocating instead an openness to a heterogeneous otherness.     

Kant, Copyright and Communicative Freedom

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.     

Law,Genre and the Voice of the Friend

The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions, for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference), philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend” in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships” at the origin of all law and socius.     

Between Justice and Law in Aotearoa New Zealand: Two Case Studies

Through two case studies, this essay examines the relationship between the operation and practice of law in Aotearoa New Zealand and the naming of the ‘unlawful’, ‘uncivil’ or ‘disorderly’ within a colonial context. Against the background of the apparent complicity between law and colonial interest and desire in Aotearoa, I argue that, in both the ‘Haka Party’ case (1979) and Mair v Wanganui City Council (1996), the acts of the defendants draw attention to the relationship between the authority of the law and the repression or exclusion of difference. According to the judges in both cases, the dictates of Maori law and custom were in conflict with the principles of ‘law and order’. Read in terms of colonial relations, the perceived relationship between Maori law and custom and the threat to ‘civilization’, law and order reveals the way in which ‘the law’ has operated in a culturally biased manner and has reflected the interests of Pakeha (New Zealanders of European descent). Thus, the perceived threat of the challenge made to the law in either case can be seen as the threat to reveal it for what it is, to expose the violence that maintains it, and thus to open a space for critique. Perhaps more powerfully than any physical attack on the system itself, these acts which expose the law challenge it in the name of justice, making it possible for the law to be seen both as a reflection of a particular cultural interest and hence as co-opt-able, takeable and able to be made to serve another end, that of the other in the name of justice. This revised version was published online in July 2006 with corrections to the Cover Date.     

Without Negative Origins and Absolute Ends: A Jurisprudence of the Singular

This paper is a preparatory analysis for a jurisprudence of the singular. Through a critical analysis of the negativity and the absolving character of the transcendental metaphysics of law and justice it reads mainly through M. Heidegger, Heraclitus, G. Agamben and J-L. Nancy a realignment of the questioning of justice that takes its provisional name in ‘dike’, at thepoint where the routes of ontology, the juridical and the political intersect and reveal the pseudo-propriety of their presuppositions. Without the transcendental dialectical discourse of the origin and its absolving-absolute ‘ends’, this paper re-poses the urgency of thinking the singular-multiple ‘right’ otherwise. This revised version was published online in July 2006 with corrections to the Cover Date.     

Strategies of Rupture

The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom (the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon of communicative exchange.     

Derrida,Semiotics and Justice

In this essay, one of Derrida’s early texts, Plato’s pharmacy, is analysed in detail, more specifically in relation to its reflections on writing and its relation to law. This analysis takes place with reference to a number of Derrida’s other texts, in particular those on Freud. It is especially Freud’s texts on dream interpretation and on the dream-work which are of assistance in understanding the background to Derrida’s analysis of writing in Plato’s pharmacy. The essay shows the close relation between Derrida’s analysis of Plato’s texts and Freud’s study of the dream-work. The forces at work in dreams, it appears, are at play in all texts, which in turn explains Derrida’s contentions in relation to the pharmakon as providing the condition of possibility of Plato’s texts. The essay furthermore points to the continuity between this ‘early’ text of Derrida and his ‘later’, seemingly more politico-legal texts of the 1990s. A close reading of Plato’s pharmacy, with its investigation via ‘writing’ of the foundations of metaphysics, and thus also of the Western concept of law, is obligatory should one wish to comprehend how Derrida attempts to exceed the restricted economy of metaphysics through his analysis of concepts such as justice and hospitality.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.     

Ideas of Transgression and Buddhist Monks

It is implicit in a western understanding of law that law is a series of generalisations, which are universal and which aim to promote social community. At the same time ‘law’ is expected to operate in a territory (rather than for specific people or castes) where it applies, and to apply to a community of rights-bearing subjects. Such a view of law may have reflected part of the values of the European Enlightenment where law was seen as a rational science and where religion has been seen as excluded from law. An alternative route in the study of law is to study ‘transgressions’. The literature on ‘transgression’ suggests transgressions form an amorphous category and a proper examination of them is not closed by the normal taxonomy between the studies of ‘law as obedience’ versus ‘laws as violation’. In one sense transgressions are part of the rule, yet a separate category in their own right. I use the concept of ‘transgression’ to attempt to describe the legal significance of ‘violations’ in the rules of the Buddhist monks (Vinaya). I conclude that a proper consideration of the role of sexual desire in the Vinaya allows me to show that ‘violations were accepted within an institutional framework, that ‘violators’ were not excluded from the order of monks and that sexual experience could be seen as an alternative, if controversial, path of spiritual development.     

Nome law: Deleuze & Guattari on the emergence of law

This article orientates Deleuze & Guattari’s pragmatic semiotics towards a semiotics of law. This pragmatic semiotics is explored, and directly related to the theory of emergence and complexity that is also a key feature of Deleuze & Guattari’s work. It is suggested that the development of these aspects of Deleuze & Guattari’s thought in relation to law allows the contours of a noological legal theory to be sketched out. Noology is the study of images of thought, their emergence, their genealogy, and their creation. A first exploration of this noological legal theory is then carried out by the conceptualisation of nome law as the first emergence of law as theorised by Deleuze & Guattari in the plateau “1837: Of the Refrain” from “A Thousand Plateaus”. This is a conceptualisation of law’s emergence in a far-from-equilibrium palaeolithic hunter-gatherer pack, and contrasts to accounts of law’s origin in a founding violence or mythical contract. It is the ‘big bang’ of legality, and the opening up of a first image of legality, problematic of social organisation, and anthropomorphic knowledge space.     

The Expressionless: Law, Ethics, and the Imagery of Suffering

The essay discusses law’s inability to address the phenomenon of human suffering and, at the same time, investigates a possible theoretical kinship between Walter Benjamin’s notion of ‘the expressionless’ and Emmanuel Levinas’s understanding of suffering as the foundation of an interhuman ethics. The kinship between Levinas and Benjamin is examined with reference to suffering in the visual arts and, more specifically, in Matthias Grünewald’s Isenheim Altarpiece and Francis Bacon’s crucifixion triptychs. The essay argues that in the crucifixion scenes of both Grünewald’s medieval altarpiece and Bacon’s triptychs, suffering is what constitutes ‘the expressionless’. After every detail of the image, every element of attribute, motif, composition and colour have been accurately depicted, a residue still remains, an ethical truth that cannot be appropriated into a meaningful unity but that nevertheless calls for a response. While law must always give suffering a utilitarian value in its attempts to assign responsibility for the injury occurred, the essay argues that the fragmentariness in all true art that Benjamin calls ‘the expressionless’ is akin to Levinas’s understanding of the constitutional uselessness of suffering, its essence as ‘for nothing’.

His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity.     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.     

Toward “Safer” and “Better” Communities?: Canada’s Youth Criminal Justice Act,Aboriginal Youth and the Processes of Exclusion

After a decade of high incarceration rates, the Canadian Department of Justice has revised its approach to juvenile justice. Enshrined in the Youth Criminal Justice Act (YCJA), the renewed youth justice system stresses the importance and responsibility of community for crime control. While on the surface the state’s appeals to such programmes as restorative justice seem laudable, caution should be exercised in fully endorsing this approach. While community initiatives have been criticized for “widening the net of social control” and intruding state control deeper into social life, their exclusionary potential is perhaps more troubling. Following Derrida’s metaphysics of presence, I suggest that ‘community’ perpetually finds meaning in opposition to the other. In this environment, Aboriginal youth, who are among the most marginalized in Canadian society, will likely be the most unfavourably effected. This paper does not, however, entirely reject the Act’s appeal to community. Nevertheless, I argue that for meaningful challenges to contemporary constructions of community and youth justice to occur the discursive limits forced upon ‘community’ must be fractured and fashioned in ways that renounce homogeneity. We strongly believe the solution to youth crime is in the community. Give the community the ability to deal with it and they will (Canada 1997).     

Rethinking the Notion of a ‘Higher Law’: Heidegger and Derrida on the Anaximander Fragment

The Anaximander fragment, in the readings of both Heidegger and Derrida, speaks of that which exceeds positive law. In this article, the author provides a detailed reading of Heidegger’s Der Spruch des Anaximander, showing how Heidegger relates this fragment to his thinking of Being, the latter having been ‘forgotten’ by metaphysics. Heidegger’s reading at the same time involves a contemplation of technology and of the ontological relation of beings to each other. Derrida’s reading of Heidegger’s Der Spruch highlights specifically those parts of Heidegger’s text where that which precedes Being’s gathering, Being’s disjoining or dissemination, is pointed to. This disjoining, Derrida contends, speaks of the gift of a day more ancient than memory itself and ties in closely with certain aspects of the thinking of Marx. Derrida’s focus on that which precedes Being is in turn related to his contemplation of the law or condition of possibility of technology and also of that which makes possible a relation to the other as other. This condition of possibility, or the gift of Being, which Heidegger’s text also speaks of, involves a ‘higher law’ which can serve as a ‘measure’ for the evaluation, interpretation and transformation of positive law.

Racist Offenders and the Politics of ‘Hate Crime’

In the UK and USA ‘Hate crime’ has become a topic of public controversy and social mobilization around issues of violence and harassment. This has largely but not exclusively addressed racism, homophobia and gender based violence. This article has three objectives. First, to situate hate crime legislation within a broad theory of modernity;secondly to examine the politics of its emergence as a public issue; thirdly to use data from the authors' recent research in Greater Manchester to illuminate the complexity of the concept of ‘hate crime’. The centrality of ‘hate crime’ to current debates derives from the importance of rights-based regulation of complex societies and the juridical management of emotional life. Hatred and violence have become problematic behaviour thrown into relief by a long term civilizing process. Hate crimes have thus acquired powerful rhetorical focus for mobilization of victim and identity politics. With reference to racist violence in Oldham and elsewhere in Greater Manchester, we argue that in its application and construction, however, ‘hate crime’ is a complex phenomenon that might dramatize rather than regulate the problems it seeks to address. This revised version was published online in July 2006 with corrections to the Cover Date.     

Policing Outlawed Desire: ‘Homocriminality’ in Beat Spaces in Australia

Drawing on interview data of gay men who have had their behavior in public spaces scrutinised by agents of the law for signs deviance, this article explores the historical characteristics of police animosity towards such conduct in Australia. This entails examining encounters between police and gay men who pursue desire in ‘beat’ (or ‘cottage’ to the use the UK term) spaces. Exploring why these outlaw gay male subjects are so abject and troubling to the law, the discussion documents how law’s desire to regulate gay men plays out in the masquerade of ‘plain-clothes’ agent provocateur operations where police entrap gay men by mimicking gay bodily appearances, gestures and mannerisms. This article also examines how police regulation of gay desire functions as a form of violence that delimits expressions of same sex desire in public spaces. A key theme that underpins the analyses in this paper is that the policing of desire in ‘beat’ spaces helps produce qualities of illicitness and dangerousness and that this, in turn, fuels the circuit of desire at play between gay men and agents of the law.