Necroethics of Terrorism

This essay is an attempt to begin to think through the complex interlacing of Levinasian ethics, violence, terror and war. The question driving this essay is: in the midst of the harrowing debris of body parts that followed the synchronised explosions of bombs in a number of London train carriages and a bus, what can possibly remain of the ethical? This question will be examined in the context of what remains unspeakable in the face of such acts of violence. Framed by the authorising rubric of declarations of law—as ‘that which speaks in the language of legislation and promises certainty in the anxious aftermath of the loss of certainty’, and the attendant concerns with the question of the ‘enemy’ (as clandestine operative of terror and as object of fantasies)—this essay seeks to examine the ‘unspeakable remainder’ of declarations of law, as that which unsettles (legislated) promises of certainty in the anxious aftermath of a terrorist explosion and its ongoing trauma. In the course of this essay, I proceed to think through the contentious relation between violence and ethics in the context of a Levinasian framework, arguing for a Levinas that challenges and unsettles pietistic views of his ethical philosophy. In deploying the neologism necroethics, I attempt to examine anachronic and necrological violence and its relation to the ethical injunction to own responsibility for the dead.     

Face to Face with Child Abuse: Towards an Ethics of Listening

This paper is concerned with faces. It is concerned with the face of a sexually abused seven years old child -- with my face -- and with the marginalisation and violation of children’s own subjective experiences of abuse by the law. Drawing upon my own subjective experience of sexual abuse as a young child, silenced for twenty-five years, I interpret my own sexual abuse as a profound experience of ‘homelessness’. To be homeless is to lack a primal place in the world, to be in a permanent state of disorientation, to be displaced. To be homeless is not necessarily to be emotionally insecure, but to be voiceless. Accordingly, the subject of sexual abuse is an emotionally dislocated subject and I interpret my own abuse in terms of an enduring experience of the violation of place. In other words, I would argue that the physical act of sexual abuse is less important than the site or place of abuse. The significance of sexual abuse is that it reveals the homelessness of our own sojourn and the poverty of our own subjectivity. Given this interpretation, I find the 1989 UN Convention on the Rights of the Child problematic and I attempt to think child sexual abuse in ethical terms. Following Emmanuel Levinas, I present sexual abuse in terms of the ethical significance of the face-to-face relationship and I argue that rights-based advocacy must listen to what children say. It must think through what listening to that voice entails in ethical terms. This revised version was published online in July 2006 with corrections to the Cover Date.     

Levinasian Ethics and Legal Obligation*

Abstract. This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the “third party” (le tiers) in modifying Levinas's primary ethical structure of the “face to face” relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. L. A. Hart, that propose a systematic distinction between legal and moral species of obligation.     

Levinas’s Contribution to the Law of Hospitality

Liverpool Law Review - This article examines the ethical thinking of Levinas, from which Derrida’s Law of Hospitality is derived, to see if it is sustainable in the face of Badiou’s...     

试论医疗机构及其医务人员的伦理困境与法律对策——以法定医疗伦理损害责任为背景

在医疗伦理损害责任背景下,医疗机构及其医务人员在具体履行医疗告知义务时、患者(特定情况下其近亲属)知情不同意时、以及面临具体法之局限性时,常常陷于对患者的知情权、生命健康权、自主决定权、乃至自身的法律责任风险进行个人抉择的伦理困境。尽管导致伦理困境的原因是多方面的,但从法律视角来看,制定明确、规范的医疗伦理行为指引,建立解决医疗伦理困境的常设机构,健全医疗风险规避、医疗社会保障和医疗伦理督察制度,应是现实可行的应对之策。     

Critical Legal Theory’s Turn to Schmitt: Not Waving but Drowning?

I examine the current enthusiasm among some academics, whom I shall broadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which has at times been accompanied by disenchantment with Emmanuel Levinas’s ethical insights. I examine the reasons for this turn to Schmitt which I attribute to the sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to a disengaged and irrelevant discourse. I contrast their antithetical approaches through their conceptions of the Other (which in Schmitt’s case is developed through his friend and enemy distinction) and explain how, together with state of exception theory; it has appeared to some CL theorists to offer a platform for exposing the liberal democratic attempt to export human rights as a violent imperialising mission. I argue that Schmitt’s thinking represents an intellectual cul-de-sac and that Levinas continues to offer a more rewarding model of critique.     

Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales

The Australian state of New South Wales (NSW) was the first jurisdiction to fully deregulate law firm structure and allow alternative business structures in the legal profession. At the same time it also introduced an innovation in regulation of the legal profession, requiring that incorporated legal practices implement ‘appropriate management systems’ for ensuring the provision of legal services in compliance with professional ethical obligations. This paper presents a preliminary empirical evaluation of the impact of this attempt at ‘management‐based regulation’. We find that the NSW requirement that firms self‐assess their ethics management leads to a large and statistically significant drop in complaints. The (self‐assessed) level of implementation of ethics management infrastructure, however, does not make any difference. The relevance of these findings to debates about deprofessionalization, managerialism, and commercialism in the legal profession is discussed, and the NSW approach is distinguished from the more heavy‐handed English legal aid approach to regulating law firm quality management.     

Ethics,Justice, and Suffering in the Thought of Levinas: The Problem of the Passage

Emmanuel Levinas is the philosopherof suffering as such: a suffering withoutregard for its causes and justifications thatis manifested to the I in its encounter,``beyond being', with the face of the Other. ``Ethics as first philosophy', however,subsequently passes over to justice in Levinas'thought, and this means that it passes througha violence that is very much in being. The movement from ethics to justice revealswhat this essay calls ``the problem of thepassage'. Using the thought of Levinas as itspoint of departure, the essay attempts touncover this problem in all of its profundity. A characteristic of all thinking in the Westernphilosophical tradition, the passage fromA to B is best understood as a mode ofthinking that clings to the passage assuch – in the form of ``A B' – as itsown special way of persisting in being. At thesame time, however, this means that ethicscannot support or comfort justice withoutdevouring itself, which is to say the self that both ethics and justice seem torequire.     

Levinas and the possibility of justice

I consider the question of whether critical legal theory can amount to more than an obstructive exercise and point to an alternative approach to the problem of institutional justice. I am not trying to redeem critical legal theory neither do I attempt to exonerate it from the charge of obstruction or as Drucilla Cornell terms it, negative dialectics. However, I share to some lesser degree the concern that it ought to be possible to offer more than the exposure of camouflaged injustice. By camouflaged I mean that branch of jurisprudence, positivist in outlook and tonality that maintains and defends the violation of the other as an integral and necessary aspect of law and further argues that as such it is entirely ethical. I examine a number of different perspectives to this seemingly impossible challenge. Borrowing from and adapting their theses I then go on to suggest my own solution for applying alterity to juridical encounters with the Other.Dr. Amanda Loumansky is a Sessional Lecturer at the Faculty of Continuing Education, Birkbeck College, University of London, London, UK     

Law as a culture: Global thoughts from a small Island*

ABSTRACT

This paper will seek to address the challenges of teaching legal ethics to undergraduate law students, both generally and in my own institutional context. Ethical conduct has long been held to be a central feature of professionalism and, traditionally, codes of ethics constituted one of the hallmarks and defining characteristics of the professions. The legal profession is no exception to this; however, it has not always been recognised that university law schools have an important role to play in preparing law students for the ethical challenges of legal practice. More recently this indifference has given way to an acceptance of the importance of this area of learning. Rather than being whether to teach legal ethics to law students, therefore, the two fundamental questions for educators are, first, what do students need to learn from the teaching of legal ethics and, secondly, how this is to be achieved. This study also aims to consider the specific challenges of teaching legal ethics to law students from widening participation backgrounds. These issues are particularly important in my own professional context as programme leader for an undergraduate qualifying law degree at an institution with a high population of widening participation students.     

法律实践如何面对“家庭”?

转型中国的法律实践在处理有关家庭伦理与亲情的问题上,采用了一些积极而又零散的做法。这种能动而混乱的实践逻辑,既表明转型中国家庭问题的复杂性,也反映出转型中国的法律实践还缺少一个统一的家庭法哲学来指导。实际上,不仅家庭伦理和道德是法律伦理与精神的来源,而且家庭关系与家庭秩序也是社会关系和秩序的根本;更重要的,家庭能力还是国家整体能力的基石。因此,在社会转型、全球化以及大国崛起的整体背景下,当下中国的法律实践,就不仅必须要为中国家庭的战略地位进行重新定位,而且也必须要为家庭功能的重塑与家庭的重建提供各方面的支持;这样,在处理家庭问题上,它就既要审慎,也要开放。     

Levinas,Israel and the Call to Conscience

This article argues that Gillian Rose’s critique of Levinas’s marriage of political commentary to his thinking on ethics is misplaced in that it fails to identify the nature and essence of his project. I demonstrate that Rose’s complaint rests upon Levinas’s refusal to contextualise his ethics, which she perceives as a betrayal of modernist philosophy. I reject this analysis and demonstrate how clearly it misses the mark when she takes Levinas to task for his supposed ‚exoneration’ of Israel. Levinas’s position on Israel is, on an initial superficial reading, ambivalent but within that ambivalence he has clearly identified the gap that exists between Israel as a political entity and Israel as a spiritual community. It is precisely the very diremption, to which Rose takes such exception, that opens up the possibility of calling the state of Israel to moral accountability.     

Diversion effects,incentive effects,and the goals of research ethics promulgations

It was with great sadness that the philosophical and ethical communities noted the recent passing of Alan Wertheimer. It is not possible to engage in serious work regarding international research ethics (nor much of political philosophy more broadly) without encountering and wrestling with his careful contributions. He was welcoming of discussion and generous with his intellectual energies. Ongoing work in these areas will be so much the poorer for his absence.     

The philosopher’s courtly love? Leo strauss, eros, and the law

This essay poses a critical response to Strauss’ political philosophy that takes as its primary object Strauss’ philosophy of Law. It does this by drawing on recent theoretical work in psychoanalytic theory, conceived after Jacques Lacan as another, avowedly non-historicist theory of Law and its relation to eros. The paper has four parts. Part I, ‘The Philosopher’s Desire: Making an Exception, or “The Thing Is...’’’, recounts Strauss’ central account of the complex relationship between philosophy and ‘the city’. Strauss’ Platonic conception of philosophy as the highest species of eros is stressed, which is that aspect of his work which brings it into striking proximity with the Lacanian-psychoanalytic account of the dialectic of desire and the Law. Part II, ‘Of Prophecy and Law’, examines Strauss’ analysis of Law as first presented in his 1935 book, Philosophy and Law, and central to his later ‘rebirth of classical political philosophy’. Part III, ‘Primordial Repression and Primitive Platonism’, is the central part of the paper. Lacan’s psychoanalytic understanding of Law is brought critically to bear upon Strauss’ philosophy of Law. The stake of the position is ultimately how, for Lacanian psychoanalysis, the Law is transcendental to subjectivity, and has a founding symbolic force, which mitigates against speaking of it solely or primarily in terms of more or less inequitable ‘rules of thumb’, as Plato did. Part IV, ‘Is the Law the Thing?’ then asks the question of what eros might underlie Strauss’ paradoxical defense of esoteric writing in the age of ‘permissive’ modern liberalism – that is, outside of the ‘closed’ social conditions which he, above all, alerts us to as the decisive justification for this ancient practice.     

人与人格分离技术的形成、发展与变迁——兼论德国民法中的权利能力

人格是特定社会的准入条件,因而生物人与法律人的分离,乃是法律人格制度的基本模式。这个模式中核心的要素,就是法律人格的“适格判断”的标准。在法律文明的早期,血缘、地域、财产等身份要素,充当着法律人格的判别标准,由此所引起的身份人格必然带有不平等的色彩。近代法律人格的基本特点,就是个人的伦理属性成为了法律人格的适格标准,由此奠定了近代法律人人平等的基础。《德国民法典》上的“权利能力”概念,是由实定法所界定的法律人格的适格条件,这一实定法上的概念,仍然是建立在关于人的伦理性判断的基础之上的。     

Beautiful Day: Awakening to Responsibility

Recently published works, such Elaine Scarry's On Beauty and Being Just, have suggested the natural confederacy of the sensory appreciation of beauty and the achievement of social justice. Scarry (amongst others) has proposed that the opiated moment in which one is arrested by beauty's spell results in a ‘radical decentrification’, where under they who behold beauty are awakened to alterity and, consequentially, encouraged to realize an ethical agenda based upon just (sic) relations between people. The present article refutes the adequacy of the beauty - ethics - justice triptych and, instead, proposes that the entire variegated aesthetic quantum operates as the medium through which recognition of (in)justice reminds us of our responsibility to the other. As essentially inarticulate concepts, justice and responsibility are capable of ‘speaking’ to us through the channel of the aesthetic. The aesthetic is the plane of dialogue on which our felt appreciation of (in)justice prompts us to responsibility. This revised version was published online in July 2006 with corrections to the Cover Date.     

Embracing Emotionality: Clothing My “Naked Truths”

There is increasing awareness and recognition that researchers’ emotions will contribute to a richer and deeper understanding of what they are studying. Researchers’ emotions as analytic tools are particularly relevant when working with marginalized or oppressed groups because of the emotional aspect generally associated with human suffering. This paper discusses how adopting a reflexive practice can help researchers embrace and use their emotions as a part of the research process, enabling a more humanistic approach to studying crime and those whose marginalization and oppression are intricately tied to their crime. More specifically, this paper examines my own experiences of doing research with Aboriginal female offenders in a federal prison. I problematize the process of embracing emotionality by reflecting on the paralysis that evolved in my research with these women as I experienced an overwhelming sense of despair and hopelessness. I contend that social science in the academic arena, not unlike many other institutions in society, has adopted a method of surveillance thereby instilling a sense of fear and judgment upon those working in academic arenas. After describing my reflexive process throughout this emotional paralysis, I describe my discovery of safe spaces as a way of dealing with my emotions and how engaging in creative analytic practice enabled me to clothe my nakedness and vulnerability as I represented, and ultimately re-created my self in the research process. As part of that evolution, embracing emotionality ultimately enabled me to engage in knowledge building as well as advocacy with and for Aboriginal women in prison.     

CAST THE FIRST STONE?

Notorious scientific scandals leave the impression that a line between ethical and unethical research can be drawn, but routine examples show that an ethical penumbra exists. Breaches of ethics in science rarely surface. Most collegial charges of unethical conduct can be dismissed as being partisan; outsiders’ethical questions are more threatening, because they imply that violations are widespread. Such implications can be neutralized by “self-regulation.” Unethical behavior must be purposive. Technical violations can be attributed to ignorance. The downplaying of ethics preserves the “community-of-scholars” myth; highlighting the ethics issue would destroy this myth.     

Professional Minimalism? The Ethical Consciousness of Commercial Lawyers

This article investigates empirically, through semi‐structured interviews, what shapes the professional ethical consciousness of commercial lawyers. It considers in‐house and private practice lawyers side by side, interrogating the view that in‐house ethics are different and inferior to private practice to suggest as much similarity as difference. In both constituencies, and in very similar ways, professional ethical concepts are challenged by the pragmatic logics of business. We examine how their ethical logics are shaped by these pragmatic logics, suggesting how both groups of practitioners could sometimes be vulnerable to breaching the boundary between tenable zeal for the client and unethical or unlawful conduct. Although they conceive of themselves as ethical, the extent to which practitioners are well equipped, inclined and positively encouraged to work ethically within their own rules is open to question. As a result, we argue professional ethics exert minimal, superficial influence over a more self‐interested, commercially‐driven pragmatism.     

The federal government and academic texts as barriers to informed consent

Informed patient consent for medical treatment is required by both law and medical ethics. Yet, both federal agencies and academicians are participating in the suppression of information about the heightened risk of breast cancer posed by oral contraceptives and induced abortion. There is historical precedent in the long-delayed acknowledgement of the smoking/lung cancer link. By law, a patient has the right to be fully informed of the nature of her medical condition and any proposed course of therapy. It is assumed that a patient will be given the complete and true scientific basis of her diagnosis and treatment, to ensure that her well-being and her autonomy in decision-making are protected. Informed consent is the process by which a patient can participate in choices about medical treatment. It originates from the legal and ethical right of the patient to direct what is done to her body, and from the ethical duty of the physician to involve the patient in her medical care. Our federal government has become a barrier to informed consent concerning oral contraceptive drugs and induced abortion.