The Horizons of the Constitution: <Emphasis Type="Italic">Politeia</Emphasis>, the Political Regime and the Good

How do we think about the word politeia when this involves a reaching back to the past? The response, pursued in this paper, is that in the classical understanding of politeia there is a significant connection between the question of the ‘good’ and the constitution; a connection which has become occluded or obscured by modern constitutional thought. In support of this understanding of politeia it must be acknowledged that what is meant, in this paper, by ‘good’ is very different from that conventionally found in contemporary constitutional, legal or political theory. In an effort to disclose how politeia unravels this novel sense of ‘the good’ the paper will closely consider the philosophical work of Hans-Georg Gadamer on Plato. The paper claims that this largely neglected work is of importance to contemporary constitutional philosophy, particularly in so far as it focuses, as in this paper, on classical traditions or origins within constitutional thought.     

Remarks on the Origin of All-Inclusive Pervasion

Previous studies have claimed that the term ‘all-inclusive pervasion’ (sarvopasa?hāravyāpti) appeared for the first time in the Hetubindu, and that it was Dharmakīrti who created this theory. This article attempts to modify this view and to show that the prototype of this theory can already be found in Dignāga’s system of logic. Dignāga states in the third chapter of the Pramā?asamuccayav?tti that the co-existence of a logical reason with what is to be proved is understood by means of two types of exemplification that sum up external items (bāhyārthopasa?h?ta). Furthermore, with respect to where the pervasion is indicated, he states in the second chapter of the same work that the non-deviation of a logical mark from what is to be proved is indicated elsewhere (anyatra). He also implies that anyatra means in the substratum in general (ādhārasāmānya) and that the subject is implicitly included in other substrata, i.e., in the substratum in general. Building upon Dignāga’s awareness of the issue, the conflict between the universality of pervasion and the particularity of actual inference, Dharmakīrti reinforced Dignāga’s system of logic by demonstrating that a property to be proved as the universal is not particularised by the subject by the use of the idea of ‘the exclusion of nonconnection’ (ayogavyavaccheda) and by adopting the concept of ‘all’ in place of ‘external items’.     

Law,the Digital and Time: The Legal Emblems of <Emphasis Type="Italic">Doctor Who</Emphasis>

This article is about time. It is about time, or more precisely, about the absence of time in law’s digital future. It is also about time travelling and the seemingly ever-popular BBC science fiction television series Doctor Who. Further, it is about law’s timefullness; about law’s pictorial past and the ‘visual baroque’ of its chronological fused future. Ultimately, it is about a time paradox of seeing time run to a time when time runs ‘No More!’ This ‘timey-wimey’ article is in three parts. The first part looks to a hazy remembered past of the legal emblem tradition as presented in Peter Goodrich’s Legal Emblems and the Art of Law to learn visual literacy and also to glimpse the essential elements of modern legality with authority, decision and violence. The second part maps how these images and icons of modern legality are manifest in the Doctor Who fiftieth year anniversary special ‘The Day of the Doctor.’ The third stage looks beyond these first order meanings to understand the chronological chaos of ‘The Day of the Doctor.’ The technicity of the image as a portal through time and space that the narrative revolves around charts the implications for the digital end of time for law.     

The Indivisibility of Human Rights

This article defends a novel, normative conception of the indivisibility of human rights. Human rights are indivisible because normative commitment to one mutually entails normative commitment to another. The normative conception enables us to defend three important theoretical and practical corollaries. First, as a conceptual thesis normative indivisibility lets us see how human rights constitute a unified system not liable to the typical counter-examples to indivisibility as mutual indispensability. Second, as a dialectical thesis, normative indivisibility can support linkage arguments in defense of controversial human rights. And third, as a political thesis, normative indivisibility can show why the political thesis of indivisibility means that states lack discretion to ‘pick and choose’ which human rights to implement.     

Post-secular Messianism Against the Law: Judith Butler on Walter Benjamin and ‘Sacred Life’

This essay focuses on Judith Butler’s configuration in Parting Ways: Jewishness and the Critique of Zionism (2012a) of sacred life from the mystical motifs that traverse Walter Benjamin’s writings as the pivot of an anti-identitarian ethics committed to non-violent resistance. To gain critical leverage on Butler’s post-secular stance, my analysis turns to Talal Asad’s ‘Redeeming the “Human” Through Human Rights’ chapter from Formations of the Secular (2003), where he enunciates a disparity between a ‘pre-civil state of nature’ and the notion of ‘inalienable rights’ that informs the subject’s rights under secular law. In underscoring the secular state’s inability or refusal to ascribe sacredness to ‘real living persons’ over and against ‘“the human” conceptualized abstractly, or imagined in a state of nature’ as presumed by natural law, Asad indirectly articulates what is at stake in Butler’s explication in Parting Ways of Benjamin’s ‘Critique of Violence’. In this context, Butler unpacks Benjamin’s remarks about the sixth commandment’s non-coercive disposition and the inner struggle its provisional applicability prompts. A conception of ‘sacred life’ crystallizes through Butler’s emphasis on the open-endedness of this struggle, which encourages us to abandon a solipsistic investment in our own suffering in the process of acknowledging its eternally transient rhythm. I argue that Butler supplements this motif by drawing upon Hannah Arendt’s grounding of the political in cohabitation. My contention is that while ‘sacred life’ forms the backbone of Butler’s affirmation of civil disobedience, Arendt empowers Butler’s ethics to transcend Benjamin’s Jewish-messianic melancholy by radicalizing the passivity that refracts it.     

Rethinking the History of the <Emphasis Type="Italic">Kāma</Emphasis> World in Early India

This essay introduces a special issue on the history of kāma?āstra in medieval India. It briefly reviews the secondary scholarship on the subject from the publication of the first translations of the genre at the end of the nineteenth century. It highlights the relatively unexplored history of later kāma?āstra, and stresses the need for contexualized and detailed studies of the many kāma?āstra treatises produced in the second millennium CE. The introduction, and the essays that follow, also argue for an expanded interpretive framework for the genre, moving beyond ‘sex’ and ‘sexuality,’ to a more widely defined notion of a ‘kāma world’, in which sensual pleasure is understood as being deeply enmeshed with aesthetic, ethical and cosmopolitan cultures.     

<Emphasis Type="Italic">Alice’s Adventures</Emphasis>, Abductive Reasoning and the Logic of Islamic Law

How does a Muslim jurist think the law and how, accordingly, he judges a fact? Using Alice in Wonderland as hermeneutical device to explore the logic of fiqh, this article identifies a divergence between Western and Islamic legal thinking in the application of abduction as key form of inference in the law of Islam. In particular, looking at the fact/law relation in symbolic terms, the article highlights how, while a dichotomy between fact and law characterizes Western legal thinking, fiqh upholds a connection between the “real” and the “right” (?aqq), where the effort (ijtihād) in understanding sharī‘ah postulates the actualization of the “rule” (?ukm) in God’s creation. Thus, if sharī‘ah pre-scribes the Law, not only is the rule discovered through the sources (u?ūl), but the right has to be justified through a verdict de-scribing the fact, for the law to be validly stated for the given situation. In this sense, abduction as explanatory “hypothesis” (Peirce) and “inference to the best explanation” (Harman) of sharī‘ah provides an account for the probabilistic nature of fiqh, its ramification (furū‘) through verdicts, as well as for the epistemic and narrative function of the tradition as core aspects of the logic of Islamic law. At the same time, doubts can be raised about the compatibility between this logic and the deductive logic of modern state law, as a sub-product of Western legal thinking.     

His Dark Legalities: Intellectual Property’s <Emphasis Type="Italic">Psychomachia</Emphasis> in Philip Pullman’s <Emphasis Type="Italic">His Dark Materials</Emphasis> Trilogy

This article will explore the vastest, most terminal, and—at least in the natural law tradition–most legal of spaces: namely, the home of the divine sovereign, Heaven. Specifically, I am interested in the contemporary (re)depiction of heavenly space as a ‘Miltonic’ theatre of war, as represented in Philip Pullman’s fantasy trilogy, His Dark Materials. This spatial mise-en-scene, as spectacular as it is, is a peculiar choice for an avowed atheist and anticlerical like Pullman. For it would seem to confirm than confront the verities of theology and the very structures of belief that Pullman seeks not only to critique but to overthrow. Namely, that Heaven exists, though as an absolute monarchy rather than (as Pullman plugs for) a republic. I will argue, however, that Pullman’s neo-Blakean vision of Heaven-as-Hell (ruled over by the tyrannical Metatron, as regent for a senescent ‘Authority’, i.e. God) is a metaphor: a metaphor for legal rather than theological space. And the legal space that Pullman metaphorises, I will argue, is nothing less than the imaginary of millennial intellectual property rights, an ideo-juridical inner space more and more projected upon and underpinning spatial notions like the ‘Commons’. The war in Heaven, then, is an elaborate allegory for struggles over the contol of knowledge under the conditions of Global Capital, with Lord Asriel, Lyra and Will functioning as Lessig-style activists, colonizing the new technologies (anachronised here as ‘amber spyglasses’, ‘subtle knives’, ‘alethiometers’ etc.) to topple ‘The Authority’ of intellectual property law and institute a democracy of digitality in which ideas are free to circulate in that most unreal and Real of spaces, the internet.     

‘My Eyes Were Open’: Awakened Maternal Identity and Leaving Violent Relationships for the Infant/Children

A qualitative secondary analysis explored stories of mothers (n = 49) who left violent relationships (VRs) through a lens of maternal identity. Constant comparative method identified a theory of Awakened Maternal Identity (AMI) and Leaving VR for the Infant/Children. Mothers described how the VR diminished their maternal identity (DMI). Partners controlled the VR though unrealistic infant care expectations, criticisms of infant care, harsh parenting, and control over mothering decisions. DMI lowered the mother’s capacity to provide emotionally nurturing infant care. Over time, mothers experienced AMI- as their ‘eyes were opened’ they experienced a stronger sense of mothering responsibility, focused more on the infants and children, and eventually prioritized their relationship with the infants and children over the partner. AMI seemed a turning point that led to leaving the VR for the infants/children. Recommendations offered for professionals to foster AMI as potential means to initiate the leaving VRs.     

Revisiting <Emphasis Type="Italic">Plato’s Pharmacy</Emphasis>

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.     

Growing up Sexist: Challenges to Rawlsian Stability

John Rawls pinpoints stability as the driving force behind many of the changes to justice as fairness from A Theory of Justice to Political Liberalism. Current debates about Rawlsian stability have centered on the possibility of maintaining one’s allegiance to the principles of justice while largely ignoring how citizens acquire a sense of justice. However, evaluating the account of stability in political liberalism requires attention to the impact of reasonable pluralism on both of these issues. I will argue that the first question of Rawlsian stability – how a child acquires a sense of justice – remains unanswered in Political Liberalism. This fact has been overlooked by Rawls, his defenders, and his critics. The failure to attend to the ways reasonable pluralism undermines Rawls’s own story about a child’s moral development ultimately threatens Rawls’s account of stability in political liberalism – or so I will argue. Despite all of the changes Rawls makes to justice as fairness in order to resolve the stability challenge, Political Liberalism fails to deliver the robust stability Rawls seeks.     

Kant with Freud: Derrida’s Analysis of the Ancient Dream of Self-Punishment

During his 2000–2001 seminar on the death penalty, Jacques Derrida argues that Kant is the most ‘rigorous’ philosophical proponent of the death penalty and, thus, the thinker who poses the most serious objections to the kind of philosophical abolitionism that Derrida is trying to develop in his seminar. For Kant, the death penalty is the logical result of the fundamental principle of criminal law, namely, talionic law or the right of retaliation as a principle of pure, disinterested reason. In this paper, I demonstrate how Derrida attempts to undermine Kant’s defence of the death penalty by demonstrating both its internal contradictions (the tenuous distinction between poena forensis, that is, punishment by a court, and poena naturalis, natural punishment) and its strange affinities with the law of primitive peoples (as understood by Freud in Totem and Taboo). I argue that Derrida’s repeated returns throughout the seminar to Kant’s Metaphysics of Morals suggest that Kant’s seemingly rational defence of the death penalty is ultimately motivated by interests that belie the supposed disinterestedness of modern law and by a notion of natural justice that at once subtends and subverts all criminal law.     

Otherness in the Pratyabhijñā philosophy

Idealism is the core of the Pratyabhijñã philosophy: the main goal of Utpaladeva (fl. c. 925–950 AD) and of his commentator Abhinavagupta (fl. c. 975–1025 AD) is to establish that nothing exists outside of consciousness. In the course of their demonstration, these ?aiva philosophers endeavour to distinguish their idealism from that of a rival system, the Buddhist Vijñānavāda. This article aims at examining the concept of otherness (paratva) as it is presented in the Pratyabhijñā philosophy in contrast with that of the Vijñānavādins’. Although, according to the Pratyabhijñā, the other subjects are not ultimately real since all subjects are nothing but limited manifestations of a single absolute subject, the fact that we are aware of their existence in the practical world has to be accounted for. The Vijñānavādins explain it by arguing the we infer the others’ existence. The Pratyabhijñā philosophers, while refuting their opponents’ reasoning as it is expounded in Dharmakīrti’s Santānāntarasiddhi, develop a particulary original analysis of our awareness of the others, stating that this awareness is neither a perception (pratyak?a) nor an inference (anumāna), but rather a guess (ūha) in which we sense the others’ freedom (svātantrya).     

A ‘Fool’ and His Sugar-Sweetened Beverage are Soon Taxed

Tax policy informed by Libertarian paternalism suggests that taxes should be levied on non-‘rational’ choice (i.e., where a person makes a ‘foolish’ decision by their own internal standards). In respect of excise taxes on sugar sweetened beverages, the regressivity of such policies can then be justified by reference to a progressive health effect, since the poor are more sensitive to changes in price and disproportionately tend to consume sugar sweetened beverages. However, as it currently stands, that conclusion is based merely on a presumption of irrationality of the poor as a class and neither the relative price of goods subject to such taxes, nor the associated ‘welfare loss’ from the levy of the tax, have been systematically measured. Such a presumption of non-‘rationality’ in food choice only holds with respect to persons who are not bound by relative prices of food, namely the wealthy. Accordingly, it is reasonable for scholars to consider the levy of excise taxes on unhealthy food consumed primarily by the wealthy (e.g., foie gras) as a ‘nudge’ toward a healthier food choice. Furthermore, the poor are rational agents capable of analysing and comparing relative prices of food products taking into account the health effects. As various scholars have now proposed in medical journals, any incremental tax levied on the poor in respect of sugar-sweetened beverages should be offset, for example, with a credit for healthy foods including fruits and vegetables.     

The Politics of Revolt: On Benjamin and Critique of Law

In his essay ‘Critique of Violence’, Walter Benjamin subjects violence (Gewalt) to a critique in order to establish the criterion for violence itself as a principle. His starting point is the distinction between law-positing and law-preserving violence. However, these are for him inseparable and subjected to the law of historical change: the history of the law is nothing but the dialectical rising and falling of legal orders. Benjamin’s analysis of legal violence and his criticism of parliamentary democracies, this article advances, should be related to the critical analysis of the possibilities for alternative politics in contemporary democratic rule of law states, as those advanced by Bernard Noël, Philippe Lacoue-Labarthe, Jean-Luc Nancy and Jacques Rancière. For Benjamin, it is only law-destroying divine violence, whose principle is justice (Gerechtigkeit), not power (Macht), that is able to break this circle and open up a new era. Divine violence is, however, not only a provocative but also an extremely problematic, even dangerous, concept, as Jacques Derrida, among others, has claimed. This article considers, therefore, whether the concept of divine violence has any real political relevance in the contemporary era.     

Traces of Yogācāra in the Chapter on Reality (<Emphasis Type="Italic">artha</Emphasis>) Within a Work on the Paths and Stages by Gling-ras-pa Padma rdo-rje (1128–1188)

This article aims to introduce some features of the literary output of Gling-ras-pa Padma rdo-rje, who was the teacher of the ‘Brug-pa bKa’-brgyud-pa school’s founder, gTsan-pa rGya-ras Ye-shes rdo-rje (1161–1211) in Tibet. The work that I draw upon here is titled A Torch of Crucial Points. A Condensation and Presentation of all Dharmas that are to be Practiced (gCes pa bsdus pa’i sgron ma ‘am| bslabs par bya ba’i chos thams cad mdor bsdus te bstan pa), a presentation of the entire outline of Buddhist practice that resembles the doctrinal stages (bstan rim) literary genre. Based on an edition and translation of the fifth chapter of the 17 that comprise the work, here I focus on several concepts, such as the three natures (trisvabhāva) and the allground consciousness (ālayavijñāna), that pertain to the system of Yogācāra and the terminology related to it. These are shown as they appear in the framework of the work, which is heavily influenced by the tradition of Mahāmudrā and the background of its author’s life as a wandering yogin in the lineage of Mi-la ras-pa (1040–1132).     

<Emphasis Type="Italic">Avivakṣitavācya-dhvani</Emphasis> and the Deterritorialization of Signifier: A Liberating Experience for Language,Author and Reader

This paper aims to make an anti-canonical reading of the avivak?itavācya-variety of dhvani conceptualized by the ninth century Sanskrit literary critic ānandavardhana in his seminal work Dhvanyāloka. In this paper, I argue that avivak?itavācya-dhvani opens up a signifier to new significations that are not conventionally associated with it through a process of deterritorialization. In any language, convention functions as a structuring mechanism upon a signifier by clearly demarcating a rigid semantic ambit for it. By the term ‘conventional semantic ambit’, I mean the boundary of signification set by convention for each signifier. The primary problem associated with the imposition of a definite territory upon a signifier is that it prevents an individual signifier from representing any new significations that are not conventionally attached to it. For example, in the conventional semantic ambit, the word ‘cat’ cannot represent the idea of a ‘dog’. In the act of mapping a fixed territory for each signifier, convention also structures the individual-user of the language by forcing him or her to confine to a specific plan of dealing with signifiers. Thus, the individual user of language within a conventional semantic ambit is rendered absolutely passive, as s/he has nothing new to contribute or create, other than reproducing an always-already existing plan of functioning. It is precisely this structuring tendency of convention that gets challenged in ānanda’s avivak?itavācya-dhvani. Such a mechanism is definitely a liberating experience for both the signifier and the individual-users (both the author and the reader or speaker and listener) of the language who are forced to accept the signifiers in a specific fashion. Along with the exposition of avivak?itavācya-dhvani’s resistance to a signifier’s conventional semantic ambit, this paper also aims to conceptualize the figure of the reader that avivak?itavācya-dhvani anticipates for itself.     

The Girl Who Knew Her Brother Would Be Coming Home: <Emphasis Type="Italic">Ārṣajñāna</Emphasis> in <Emphasis Type="Italic">Praśastapādabhāṣya</Emphasis>, <Emphasis Type="Italic">Nyāyakandalī</Emphasis> and <Emphasis Type="Italic">Vyomavatī</Emphasis>

Although seldom mentioned in the secondary literature on Vai?e?ika, the cognitive category of ār?ajñāna (??i cognition) is accepted as a distinct category of vidyā (knowledge) within both early and later Vai?e?ika texts. This article deals with how ār?ajñāna is conceptualized in Pra?astapādabhā?ya (PBh), ?rīdhara’s Nyāyakandalī (NK), and Vyoma?iva’s Vyomavatī (Vy). The main focus lies on how ??i cognition is treated in these texts and what terms are used in the process. I aim to clarify the analysis of ??i cognition apparent in the above sources and outline the implications this might have for the somewhat grander objective of a mapping of the semantic landscape of cognition and knowledge in Vai?e?ika texts. The categories of yogic perception (yogipratyak?a) and siddhic vision (siddhadar?ana) are also treated since they are included within a shared discourse.     

Before the Law: Criminalization,Accusation and Justice

This review essay critically engages three socio-legal books directed to the changing bases of criminalization; namely, Lacey (In search of criminal responsibility: ideas, interests, and institutions, Oxford University Press, Oxford, 2017); Farmer (Making the modern criminal law: criminalization and civil order, Oxford University Press, Oxford, 2016); and Norrie, Justice and the slaughter bench: essays on law’s broken dialectic, Routledge, New York, 2016). The texts explore how modern (largely English) institutions of criminal law proscribe, assign responsibility and appear through contradictory socio-political ‘constellations’. They variously reference criminal law’s expanding punitiveness as it: embraces revived character-based ways of attributing responsibility via ideas of risk; drifts away from a social function of creating civil order; and, works through a ‘broken dialectic’ that fails to recognize its ethico-political auspices. The ensuing ‘overcriminalization’ is referenced variously, but this review questions a tendency to work off legal lexicons, with consequent limitations placed on the scope of social analysis. Referring to Roman and Cape colonial forms of criminalization, this review highlights processes of accusation that call subjects to account as criminals, thereby signalling an initiating socio-political layer upon which unequal forms of overcriminalization rest.