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1.
Janice Richardson 《Law and Critique》2007,18(2):229-252
Christine Battersby has argued that it is Kant (and not Descartes) who provides the paradigm model of what it is to be a self
in modernity. The Kantian self is established in opposition to its other. The body is commonly envisaged as a container, with
selfhood as something that is defended against the outside. In contrast, she proposes a feminist reworking of such a model
of selfhood, applicable to both men and women, in which the self and other emerge over time through patterns of relationality.
This paper introduces Battersby’s work by focusing upon her early analysis of Kantian aesthetics, in particular the sublime.
The aim is to draw out some of the legal and political implications of her work, particularly with regard to the common law’s
developing conception of privacy. This is carried out by distinguishing her ontological position from the psychology of Carol
Gilligan and then by considering the overlapping concerns of Jennifer Nedelsky in the area of legal theory.
相似文献
Janice RichardsonEmail: |
2.
Jeanne L. Schroeder 《Law and Critique》2007,18(1):117-142
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.
相似文献
Jeanne L. SchroederEmail: |
3.
Constructing Women Who Experience Male Violence: Criminal Legal Discourse and Individual Experiences
Helen Baker 《Liverpool Law Review》2008,29(2):123-142
This article examines the relationship between how women who experience violence from a male partner construct themselves,
and how criminal legal discourse constructs female victims of violence. It is argued that in both arenas, women are constructed
according to norms which emanate from a discourse of conventional femininity which operates together with a practice of shame.
Utilising empirical data gained from qualitative interviews with women who experienced male violence, the article contends
that the construction of the female victim of violence in criminal legal discourses as imbued with stereotypical ‘feminine’
characteristics such as passivity and weakness, may influence these women’s own construction and understanding of themselves.
The existence of a practice of shame further consolidates the self-regulation of the women themselves to these norms of femininity.
This construction is posited to be problematic as the experiences of women of male violence rarely ‘fit’ within these explanations.
The article contends that in order to better understand women’s experiences of male violence; both criminal legal and individual
women’s discourses need to be read in terms of the power, knowledge and effects which they exert upon individual women. It
is argued that this alternative reading of these discourses has the potential for transformation as they are invested in the
subject.
相似文献
Helen BakerEmail: |
4.
Christopher Hutton 《International Journal for the Semiotics of Law》2009,22(3):279-292
This paper considers the tension between timelessness and timeboundedness in legal interpretation, examining parallels between
sacred texts and secular law. It is argued that familiar dualities such as those between statute and judge-made law, law and
equity, written and spoken discourse, dictionary meaning versus intended or contextual meaning, can be examined using this
timeless/timebounded framework. Two landmark English cases, DPP v Shaw (1961) and R v R (1991) are analyzed as illustrating contrasting aspects of the socio-legal politics of “reasoning backwards”. The related
temporal distinction between ex ante and ex post points of view is examined both within legal theory and as a key issue for linguistic and semiotic systems. The argument
is made that this distinction is the key to a wide range of methodological and theoretical problems in relating linguistics
and semiotics to law.
相似文献
Christopher HuttonEmail: |
5.
Ayşegül Sabuktay 《Crime, Law and Social Change》2009,51(5):511-530
This article is concerned with deviations from legal functioning of the modern state, which is supposedly grounded on legal
structure, but may conduct extra-legal activities. In this article, special focus is directed to certain extra-legal activities
of the following modern states: the Susurluk Affair in Turkey, the Iran-Contra Affairs of the USA, GAL in Spain, the Gibraltar
Killings committed by UK soldiers, and enforced disappearances in Argentina. These cases are interpreted from the points of
view of Max Weber’s and Jürgen Habermas’s theories of the rule of law, Hans Kelsen’s legal positivism, Carl Schmitt’s theories
of the political and sovereignty, and Austin Turk’s theory of political criminality. Our purpose, then, is to evaluate these
theories vis-à-vis the cases of extra-legal activities of the state.
相似文献
Ayşegül SabuktayEmail: |
6.
Tom Sorell 《Criminal Law and Philosophy》2007,1(2):215-222
There is something intuitively correct about singling out emergency workers for legal protection, and for criminalizing not
just assault, but obstruction. Moreover, at least one sophisticated theory of right and wrong – Scanlon’s—indicates some deep
reasons for endorsing these intuitions. After applying Scanlon’s theory in the relevant way, I want to argue that the same
grounds it provides for recent Scottish legislation and UK sentencing guidelines can also be given for punishing more seriously
offences that current English law trivialises.
相似文献
Tom SorellEmail: |
7.
Vincent Colapietro 《International Journal for the Semiotics of Law》2008,21(3):223-246
Too often C. S. Peirce’s theory of signs is used simply as a classificatory scheme rather than primarily as a heuristic framework
(that is, a framework designed and modified primarily for the purpose of goading and guiding inquiry in any field in which
signifying processes or practices are present). Such deployment of his semeiotic betrays the letter no less than the spirit
of Peirce’s writings on signs. In this essay, the author accordingly presents Peirce’s sign theory as a heuristic framework,
attending to some of the most important ways that it might serve to facilitate a semeiotic investigation of our legal practices.
He pays close attention to the ways the topics of history, formalism, reductionism, and generality become, from a Peircean
perspective, salient features of legal studies.
相似文献
Vincent ColapietroEmail: |
8.
Jiří Přibáň 《International Journal for the Semiotics of Law》2009,22(2):179-195
The spirit of the laws is a symbol reflecting the ontological status and transcendental ideals of the system of positive law.
The article analyses historical links between the romantic philosophy of the spirit of the nation (Volksgeist), which subsumed Montesquieu’s general spirit of the laws under the concept of ethnic culture, and recent politics of cultural
and ethnic identity. Although criticising attempts at legalising ethnic collective identities, the article does not simply
highlight the virtues of demos and the superiority of civic culture against the vices of ethnos and the regressive nature of ethnic politics of identity. Instead, the author argues that the civil democratic concept of
political identity is part of the more general process of social differentiation: unlike the pre-political ethnic concept
of identity, it can be converted to generalised democratic procedures and thus dismantle the totalitarian claims of cultural
identity politics.
相似文献
Jiří PřibáňEmail: |
9.
Using social network analysis (SNA), we propose a model for targeting criminal networks. The model we present here is a revised
version of our existing model (Schwartz and Rouselle in IALEIA Journal, 18(1):18–14, 2008), which itself builds on Steve Borgatti’s SNA-based key player approach. Whereas Borgatti’s approach focuses solely on actors’
network positions, our model also incorporates the relative strength or potency of actors, as well as the strength of the
relationships binding network actors.
相似文献
Tony (D.A.) Rouselle |
10.
With the economics of racism of the 1930s and 1950s American South in mind, our essay explores the relationship between the
act of writing and institutional penology. Taking an obscure, but visceral autobiographical account by Paterson and Conrad
(Scottsboro Boy, Garden City Doubleday, 1950), we examine how discipline, punishment, and institutional identity emerge out of publishing, or, as Foucault put it, “the
power of writing.” Narratives of delinquency born out of a racialized penal economy tend to resist attempts to tame the criminal,
making institutional survival a productive discourse, and its articulation, a unique revolutionary act.
相似文献
Karl Precoda (Corresponding author)Email: |
Paulo S. PolanahEmail: |
11.
Richard Bailey 《Law and Critique》2009,20(2):113-132
This article is based on interviews with former Australian immigration detainees conducted by the author. The interviews explored
the experience and understanding of resistance while in detention. The article calls into question Agamben’s twin conclusions
that nothing short of a complete re-founding of ontology is required to liberate humanity from biopower and that this refoundation
will spring from bare life. Contrary to Agamben’s depiction, the camp proves to be a place of determined and often successful
defence of a relation of politics and life based not on the camp and biopower, but on solidarity and freedom. Detainees in
Australian immigration detention, like prisoners in the Nazi concentration camps, refused to abandon their politics. Rather
than seeking to transform bare life, they rejected it and made their own decision on life and politics.
相似文献
Richard BaileyEmail: |
12.
Alexandre Lefebvre 《Law and Critique》2006,17(3):389-414
This article stages an encounter between Habermas and Deleuze on law, rights, and adjudication. Most of the article is spent
developing Habermas’s concept of adjudication as the application of communicatively generated norms. This application, I argue,
involves a complex temporality that is at once retrospective and non-creative. Deleuze is used to critique this concept of
adjudication in favor of one based on concrete situations and the creation of new problems. In so doing, I will develop Deleuze’s
notorious, and notoriously hostile, remarks on human rights and philosophies of communication by relating them to discourse
ethics and to the positive conception of law and judgment that can be drawn from his work.
相似文献
Alexandre LefebvreEmail: |
13.
Jacques De Ville 《Law and Critique》2008,19(2):87-114
This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation,
speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present
context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s
thinking in the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of
ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in
Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications
for constitutional interpretation.
相似文献
Jacques De VilleEmail: |
14.
Considering earlier research into police use of force as well as the judicial and practical frame of police work in Germany,
the article presents the results of an empirical study on the individual and collective legitimization of the use of force
by German police officers. There are numerous justifications for the use of force expressed by focus group participants in
eight German Federal States who were responding to a hypothesized scenario. In the discussions observed within the groups,
reference is first made to the state’s duty to prosecute alleged offences and the measures or formal actions to do this—hence,
the legal authority to use force. In the course of the discussions, however, it became obvious that illegal violence may occur,
although it was not perceived as such by the officers. Overall, and after an intensive analysis of the focus group discussions,
it can be stated that use of force (whether legal or not) depends on the police officer’s perception of the resistance of
the person being engaged with. In this regard, different social–cultural or physical–material factors can be identified. They
have different influences on the individual legitimization of police actions, intertwined with the perception of the situation
as constructed by the officer. Three ways of perceiving the situation can be deduced, resulting in different patterns of justification
for the use of force.
相似文献
Astrid Klukkert (Corresponding author)Email: |
Thomas OhlemacherEmail: |
Thomas FeltesEmail: |
15.
Karen Atkinson 《Liverpool Law Review》2008,29(2):143-163
This article examines the effects of the Charity Commission’s implementation of risk-based regulation on the political campaigning
activities of charities. In doing so, it draws on the findings of a recent empirical study which explored charity representatives’
awareness of relevant law and regulation and their perceptions of the obstacles they faced in their campaigning work. The
article begins with a brief exploration of the emergence of risk-based approaches to regulation, followed by consideration
of the legal and regulatory requirements for risk management by charities. Moving to its main focus of political campaigning,
the article notes the unique legal issues faced by charities in campaigning work. It provides a comparative evaluation of the 2004 and 2008 versions of Charity Commission guidance CC9 on campaigning and
political activity by charities (CC9) in terms of their approach to legal compliance, their formulation of the specific risks
of campaigning and their approach to the process of risk management itself. In addition, the article considers the relevance
to campaigning activity of the Commission’s current plans for an ‘enhanced approach’ to risk in its compliance work. The article
concludes by considering the potential impacts on charitable campaigning of both the Commission’s overall approach to campaigning
and its perceived risks, and of further entrenchment of risk principles in charity regulation.
相似文献
Karen AtkinsonEmail: |
16.
Institutionalized corruption: power overconcentration of the First-in-Command in China 总被引:1,自引:1,他引:0
Among various kinds of corruption in China, corruption of the First-in-Command (FIC) is most pernicious, threatening the legitimacy
of the Chinese Communist Party and the stability of the state. This paper examines several specific institutional arrangements
under China’s current political structure, including the people’s congress, the ruling party system, and the collective leadership
team system, to see how they have contributed to power overconcentration in the hands of FICs. This is done in a two-round
process: first through the collective leadership team and then by the gestating decision-making rule. The paper also assesses
four institutional innovations designed to prevent FIC corruption.
相似文献
Ren Jianming (Corresponding author)Email: |
Du ZhizhouEmail: |
17.
Jane Johnson 《Criminal Law and Philosophy》2008,2(3):291-307
The standard view of Kant’s retributivism, as well as its more recent reworking in the ‘limited’ or ‘partial’ retributivist
reading are, it is argued here, inadequate accounts of Kant on punishment. In the case of the former, the view is too limited
and superficial, and in the latter it is simply inaccurate as an interpretation of Kant. Instead, this paper argues that a
more sophisticated and accurate rendering of Kant on punishment can be obtained by looking to his construction of the concept
of justice. In so doing, not only is a superior account of Kant furnished, but also one up to the task of resolving the vexed
issue of justifying legal punishment.
相似文献
Jane JohnsonEmail: |
18.
Dragana Radosavljevic 《Liverpool Law Review》2008,29(3):269-285
The parameters of legal structures within which perpetrators of most serious international crimes are surrendered to the ICC
and the legal frameworks within which the rights of such individuals are best protected are not sufficiently precise in international
law. By examining both international and some national jurisprudence with regard to mala captus bene detentus practice, the reach of the right to challenge the legality of one’s arrest is evaluated with a conclusion that there is no
uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate
the effects of abuse of process against accused persons.
相似文献
Dragana RadosavljevicEmail: |
19.
Youth, Police Legitimacy and Informal Contact 总被引:1,自引:0,他引:1
Lyn Hinds 《Journal of Police and Criminal Psychology》2009,24(1):10-21
This paper explores the under-researched topic of young people’s attitudes towards police in two studies using structural
equation modelling. The first study examines the influence of police legitimacy on the willingness of young people to assist
police. The second study examines the impact of informal contact with police during a community policing project on young
people’s willingness to assist police. Findings show that young people who view police as legitimate are more willing to assist
police. Participation in the community policing project had a significant and positive influence on young people’s willingness
to assist police independent of young people’s attitudes about police legitimacy.
相似文献
Lyn HindsEmail: |
20.
William Rasch 《Law and Critique》2008,19(1):19-34
Richard Tuck locates a conundrum in the Hobbesian world view. Whereas the nation-state is desired to effect the pacification
of the domestic sphere, a world state and the promise of global pacification is feared. Kant’s strong program for perpetual
peace is presented as a moral imperative to establish through legal means a world republic based on reason and individual
autonomy. Kant emphasizes the empirical impossibility of a world republic and hence advocates the weaker program of a world
federation of states. This essay argues not the empirical but the logical impossibility of Kant’s strong program and by extension
any program of perpetual peace that claims to be essentially different from ‘mere’ peace as truce. In so doing this essay
distinguishes between political theory based on the assumption of the ontological priority of peace and political theory based
on the assumption of the ontological priority of violence and argues for the necessity of thinking the latter.
相似文献
William RaschEmail: |