On Desire,Transcendence and Sacrifice

This contribution offers a careful but critical reading of Johan van der Walt’s theory of post-apartheid law as sacrifice and social struggle. By placing a theoretical emphasis on the inevitability of violence and the impossibility of love, Van der Walt’s thesis risks denying the possibility of thinking the world in a different, way. In order to reconceive the terms of community and horizontality in post-apartheid South Africa, there is a need to move beyond thinking the world as constructed according to tension, conflict and self-preservation at the expense of understanding and compassion. In developing a critique of law as sacrifice, I utilise Panu Minkkinen’s call for justice as the beyond of law that goes beyond the mere battle for recognition. I also address his view that the unappeasable desire of metaphysics entails the recognition that there is hope for the future and the recovering of transcendence as otherness. Secondly, I use Louis Wolcher’s work on Zen Buddhism to argue that any obsession with conceptual purity, as is glimpsed in Van der Walt’s work, ignores the impossibility of setting down the immutable and universal truth for all time. In other words, however attractive a theory of law as sacrifice may be, it is only one perspective amongst many others. Lastly, I contrast Van der Walt’s work with that of Luce Irigaray, and in particular her formulation of ‘horizontal transcendence’ that makes possible relations ‘between two’.

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.     

Using Google Scholar to Determine the Most Cited Criminology and Criminal Justice-Related Books

Building on recent research investigating the role of books in the discipline of criminology and criminal justice (C/CJ), this paper uses Google Scholar to identify the most cited books in the field. In particular, the researchers examined the most cited books in four different eras. Prior to1900, the most cited C/CJ-related book was On the Origin of Species. Merton’s Social Theory and Social Structure was the most cited book in the second era (1900–1949). The third era (1950–1999) produced the most cited work in the study, Foucault’s Discipline & Punish. And in the final era (2000 to present), Garland’s Culture of Control was the most cited work. The researchers also sought to determine the most cited books by women and African Americans/Blacks. The most cited book by a female author was Judith Herman’s Trauma and Recovery, and the most cited book by an African American/Black scholar was William Julius Wilson’s The Truly Disadvantaged. The authors conclude by arguing for the continued emphasis on demarcating the “great books” in the discipline.     

Agamben’s Grammar of the Secret Under the Sign of the Law

This paper suggests that a grammar of the secret forms a concept in Agamben’s work, a gap that grounds the enigma of sovereignty. Between the Indo-European *krei, *se, and *per themes, the secret is etymologically linked to the logics of separation and potentiality that together enable the pliant and emergent structure of sovereignty. Sovereignty’s logic of separation meets the logic of relation in the form of abandonment: the point at which division has exhausted itself and reaches an indivisible element, bare life, the exception separated from the form of life and captured in a separate sphere. The arcanum imperii of sovereignty and the cipher of bare life are held together in the relation of the ban as the twin secrets of biopower, maintained by the potentiality of law that works itself as a concealed, inscrutable force. But the ‘real’ secret of sovereignty, I suggest, is its dialectical reversibility, the point at which the concept of the secret is met by its own immanent unworking by the critic and scribe under the *krei theme, and subject to abandonment through the work of profanation; here, different species of the secret are thrown against one another, one order undoing the other. The secret founded upon the sacred is displaced by Agamben’s critical orientation toward the immanent: what is immanent is both potential and hiddenness.     

Derrida’s <Emphasis Type="Italic">The Purveyor of Truth</Emphasis> and Constitutional Reading

In this article the author explores Jacques Derrida’s reading in The Purveyor of Truth of Edgar Allan Poe’s The Purloined Letter. In his essay, Derrida proposes a reading which differs markedly from the interpretation proposed by Lacan in his Seminar on ‘The Purloined Letter’. To appreciate Derrida’s reading, which is not hermeneutic-semantic in nature like that of Lacan, it is necessary to look at the relation of Derrida’s essay to his other texts on psychoanalysis, more specifically insofar as the Freudian death drive is concerned. The present article explores this ‘notion’ as elaborated on by Freud in Beyond the Pleasure Principle as well as Derrida’s reading of this text. It also investigates the importance of the ‘notion’ of the death drive as well as the significance of Derrida’s reading of The Purloined Letter for constitutional interpretation. This is a modified version of a paper presented at the Critical Legal Conference, 14–16 September 2007 at Birkbeck Law School, University of London.

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Sovereignty Without Sovereignty: Derrida’s <Emphasis Type="Italic">Declarations Of Independence</Emphasis>

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.

In Defense of His Guru: Dratsepa’s Rebuttal to the Challenges Articulated by the Proponents of the Other-Emptiness Doctrine

The buddha-nature literature has a significant place within the Indian Mahāyāna tradition and Tibetan Buddhism. While it is usually included in the so-called Last Wheel of the Buddha’s teachings, many Tibetan thinkers began to cast doubts about the textual significance of buddha-nature discourse in fourteenth-century Tibet. In this article, I will examine one particular case where there is apparent tension between multiple Tibetan masters over the importance of buddha-nature teachings. This paper primarily analyzes Dratsepa’s commentary to the Ornament (mdzes rgyan) written by his teacher, Buton. Dratsepa construes the Ornament as a work critiquing Dolpopa’s interpretation of the buddha-nature literature. He levels a barrage of criticisms against Dolpopa by referring to Indian śāstras and sūtras that are equally important to both of them, and also by tracing his own assessment of the tathāgata-essence teachings to early Tibetan scholars. In contradistinction to Dolpopa’s claims, Dratsepa offers several nuanced readings of the buddha-nature literature and complicates the notion of what it means to have tathāgata-essence, what a definitive or provisional meaning entails, and the relationship between the Middle Wheel and the Last Wheel teachings. In brief, Dratsepa’s text sheds light on one of the earliest discourses on the tension between self-emptiness and other-emptiness presentations.     

Constitutionalism and imperialism Sub Specie Spinozae

This paper examines the public, private and political in the work of Adriana Cavarero by drawing upon the situations of two women whose lives feature in her work: Elizabeth I and Penelope. It includes an analysis of the way in which Cavarero is rethinking Hannah Arendt’s view of ‘the political.’ Cavarero’s exposition of the metaphor of the King’s two bodies in the common law is explored, along with her critique of hylomorphism. Finally, it extends her work in Stately Bodies by considering different images of the power of the body in later political discourses regarding the worker’s body and the effect of the advance of techno-science. This paper was presented at ‘The State He’s In – Political Philosophy and the Figural: A Conference with Adriana Cavarero on her book Stately Bodies: Literature, Philosophy and the Question of Gender’ at Warwick University, Department of Philosophy in May 2004. I would like to thank Adriana and all the conference participants for their comments. Thanks also to the referees of this paper. I have kept the informal style of presentation from the conference, along with the emphasis upon theoretical, rather than historical, analysis.     

Elizabethan ‘Spinning’ and Penelope’s Weaving: The Political, the Common Law and Stately Bodies

This paper examines the public, private and political in the work of Adriana Cavarero by drawing upon the situations of two women whose lives feature in her work: Elizabeth I and Penelope. It includes an analysis of the way in which Cavarero is rethinking Hannah Arendt’s view of ‘the political.’ Cavarero’s exposition of the metaphor of the King’s two bodies in the common law is explored, along with her critique of hylomorphism. Finally, it extends her work in Stately Bodies by considering different images of the power of the body in later political discourses regarding the worker’s body and the effect of the advance of techno-science. This paper was presented at ‘The State He’s In – Political Philosophy and the Figural: A Conference with Adriana Cavarero on her book Stately Bodies: Literature, Philosophy and the Question of Gender’ at Warwick University, Department of Philosophy in May 2004. I would like to thank Adriana and all the conference participants for their comments. Thanks also to the referees of this paper. I have kept the informal style of presentation from the conference, along with the emphasis upon theoretical, rather than historical, analysis.     

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.

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.

<Emphasis Type="Italic">Ayam aham asmīti</Emphasis>: Self-consciousness and Identity in the Eighth Chapter of the <Emphasis Type="Italic">Chāndogya Upanişad</Emphasis> vs. Śankara’s <Emphasis Type="Italic">Bhāşya</Emphasis>

The article offers a close reading of the famous upanişadic story of Indra, Virocana and Prajāpati from the eighth chapter of the Chāndogya-Upanişad versus Śankara’s bhāşya, with special reference to the notions of suşupti and turīya. That Śankara is not always loyal to the Upanişadic texts is a well-known fact. That the Upanişads are (too) often read through Śan-kara’s Advaitic eyes is also known. The following lines will not merely illustrate the gap between text and commentary but will also reveal an unexpected Upanişadic depiction of ‘dreamless sleep’ and ‘transcendental consciousness’. Suşupti is described here as ‘one step too far’, as a ‘break’ or discontinuity in one’s consciousness; whereas turīya is depicted positively, and surprisingly even in wordly terms. Unlike the third state of consciousness in which there is no ‘world’ nor ‘me’, and which is described through Indra’s character as ‘total destruction’ (vināśa); in turīya, the world ‘comes back’, or rather the ‘renouncer’ returns to the world. Sankara’s position, as far as the story under discussion is concerned, is radically different. For him, the Upanişadic story illustrates the continuity of consciousness in all its states. For him, the identification with merely one of the consciousness-states is an error (adhyāsa) which causes suffering. Consciousness prevails even in suşupti, and turīya has nothing to do with ‘coming back to the world’, since there is nowhere to come back from or to. Turīya, as seen by the Advaitin, consists of all the other states of consciousness together, or as K. C. Bhattacharyya puts it, ‘It is not only a stage among stages; it is the truth of the other stages’. The article is dedicated to Prof. Daya Krishna (1924-2007).     

Sharing a Single Seat: The Poetics and Politics of Male Intimacy in the Vikramāṅkakāvya

In this essay, I trace the enabling conditions for the major statement of the subversive subtext in Bilhaṇa’s Vikramāṅkadevacarita (VDC) by unpacking the operation of the work’s patent, eulogistic text. In particular, I will explore the place given to the depiction of male intimacy as a poetic substitute or simulacrum for the political alliances central to Vikramāditya’s coming to the throne, as described in the mahākāvya’s fourth through sixth sargas. My intention in focusing on the intense friendships between men is to highlight a significant rhetorical strategy of Bilhaṇa’s, which allowed the poet both to introduce and to buffer the poem’s most explicit statement of his skepticism towards royal power. It is this charged affective theme—one that occupied only a tenuous position within the regnant critical discourse of literary emotion at the time—that sets up Bilhaṇa’s most powerful and explicit denunciation of kingship. The explicit theme of royal praise and the subtext of its denunciation can thus be seen as contrapuntally related, which goes some way towards explaining how the court poet was able to successfully carry off his potentially incendiary literary project.     

Allergologies Versus Homeopathies

This paper is a reconstruction of Levinas’ reading of Hegel and his understanding of violence (of the enemy and the war). Combining Franz Rosenzweig’s reflections which concern the sick philosopher and Hegel’s state, as well as Derrida’s interpretation of the different attributes of violence, our aim is also to give full evidence of Derrida’s critical reading of Levinas. The first part illustrates the various classifications of the figures of violence from the different periods of Hegel’s life and the traces that these figures have left in Levinas’ texts beginning with ‘Liberté et commandement’ in 1953. In the second part we discuss Hegel’s well-known analogy from his Rechtsphilosophie on sovereignty and the organism—that is to say the parallel reading of some paragraphs of Naturphilosophie too—and the relation between totality and violence, in Levinas’ ‘ontology as allergy’ and in Derrida’s autoimmunology.     

The generation and exploitation of technological change: market value and total factor productivity

In this paper we articulate and test the hypothesis that TFP is a reliable and relevant measure of firm’s innovation capabilities, and, as such, accounts for Tobin’s q indicator. With this aim, we investigate empirically the relationship between firm level total factor productivity and the Tobin’s q. Measuring Tobin’s q allows inferring the actual value of knowledge capital from stock market valuation. We use a panel of companies listed on UK and the main continental Europe financial markets (Germany, France and Italy) for the period 1995–2005. Our results confirm that TFP is a reliable indicator of firm’s innovative capabilities. When we control for firm’s R&D investments and intangible assets, the effects of TFP on market value remain highly significant. This suggests that TFP is a broader measure of innovation capability than R&D is. The validation of the Tobin’s q and TFP relationship has important implications concerning firm’s technological innovation measurement.     

Agamben and Marx: Sovereignty, Governmentality, Economy

This essay reconsiders Marx’ prehistory of capital through the lens of the work of Giorgio Agamben, who in the wake of Foucault has proposed a bio-political theory of sovereignty that breaks down the analytical separation between sovereignty and governmentality that Foucault in his work tries to maintain. Although Agamben mentions Marx only once in his study of sovereign power, I argue that his study nevertheless contributes to our understanding of the capitalist relation as not only a governmental but also a sovereign power relation. In the first part of this essay, I show through a philological commentary on Marx’ use of the adjective ‘vogelfrei’—translated as free, rightless, without protection, outlawed—to characterise the proletariat, that the Marxian proletariat is a figure of what Agamben in his study of sovereign power calls bare life. In the second part of the essay, I show that this sovereign dimension of the capitalist relation is also substantiated by Marx’ analysis of the logic of the capitalist relation as that of the exception. After Carl Schmitt, who wrote that ‘sovereign is who decides on the state of exception’, Agamben has argued that the logic of the exception is the logic of sovereign power. Reconsidered through the lens of Agamben’s argument, Marx’ account of the prehistory of capital reveals that there is a sovereign logic of the exception at work in the capitalist relation. In the final part of the essay, I start from Agamben’s single reference to Marx in his study of sovereign power to discuss the importance of my conclusions for Agamben’s political message.     

Authority in Early Prāsaṅgika Madhyamaka

This paper examines the role of pramāṇa in Jayānanda’s commentary to Candrakīrti’s Madhyamakāvatāra. As the only extant Indian commentary on any of Candrakīrti’s works (available only in Tibetan translation), written in the twelfth century when Candrakīrti’s interpretation of Madhyamaka first became widely valued, Jayānanda’s Madhyamakāvatāraṭīkā is crucial to our understanding of early Prāsaṅgika thought. In the portions of his text examined here, Jayānanda offers a pointed critique of both svatantra inferences and the broader Buddhist epistemological movement. In developing this critique, he cites at length Candrakīrti’s Prasannapadā treatment of svatantra, and so comes to comment on the locus classicus for the Svātantrika-Prāsaṅgika distinction. For Jayānanda, svatantra inferences are emblematic of the Dignāga-Dharmakīrti epistemological tradition, which asserts an unwarranted validity to human cognition. As such, Nāgārjuna’s philosophy admits neither svatantra inference, nor pramāṇa (as “valid cognition”) more generally. Instead, Jayānanda argues for Nāgārjuna’s “authority” (pramāṇa) as our prime means for knowing reality. Jayānanda’s account of authority offers a helpful counterbalance to the current trend of portraying Prāsaṅgika Madhyamaka as a form of skepticism.     

Kumārila’s Buddhist

The pūrvapakṣa of the Śūnyavāda chapter of Kumārila’s Ślokavārttika (vv. 10-63) is the longest continuous statement of a Buddhist position in that work. Philosophically, this section is of considerable interest in that the arguments developed for the thesis that the form (ākāra) in cognition belongs to the cognition, not to an external object, are cleverly constructed. Historically, it is of interest in that it represents a stage of thinking about the two-fold nature of cognition and the provenance of the ākāra that is clearly more advanced than Dignāga but not quite as sophisticated as Dharmakīrti. In particular, although one may see an anticipation of Dharmakīrti’s famous sahopalambhaniyama argument in this text, it is not yet fully spelled out.