Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.     

The Politics of Caesura: Giorgio Agamben on Language and the Law

The concept of division or caesura is central to the political and legal philosophy of Giorgio Agamben. This paper examines the different ways in which Agamben characterises the law in terms of caesura, and the manner in which this analysis of law is grounded in his analyses of language. I argue that there are two forms of legal division to be found in Agamben’s political analyses. The first is the division that occurs when the legal system produces determinate identities, such as those of nation, and socio-economic status. However, this form of division is itself predicated upon the division that delimits the law as such, the caesura between political and bare life. The way that Agamben sets up both of these political problems is deeply indebted to his analyses of the ‘presuppositional structure’ of metaphysical language—the fracture between signification and its excess.

国际法治:良法善治还是强权政治

国际法治意味着法治的原则适用于国际关系之中。法治的理想激发着国际法学家在国际社会实现法治,但是由于存在着重重障碍,强权政治在国际关系中仍然占据主导地位。但是,有可能建立人类利益作为国家决策的基础,代替以往抽象的国家利益和安全考虑。基于此,国际法治可以在良法善治的前提下实现。     

在政治、法律与社会之间——经典作家论法官的角色定位

法官的角色涉及到法官的形象与权能,因而成为马克思主义司法学说的重要组成部分。在经典作家看来,法官是政治上的独立者而非依附者;法律上的宣示者而非创造者;司法上的中立者而非偏倚者;诉讼中的主导者而非垄断者。这些定位,对于全面认识法官的地位、权能、职责有着极为重要的现实意义。     

Indigenous Australians: Language, and the Law

Indigenous peoples face a number of hurdles intaking cases to Australian law courts. In thecase that the social and economic problems canbe overcome, they face problems related to theintellectual structures of the court and thelanguage and philosophical beliefs that thecourt systems are based on. Derrida shows thatWestern metaphysics privileges speech overwriting, and this counts against indigenouscultures in which narrative knowledge is a formof writing. Due to this privileging, there is adifferend involving the courts and indigenouspeoples which makes the achievement of justicedifficult in the legal arena in Australia. Thisarticle questions whether the courts are thecorrect bodies to deal with indigenous issues.The achievement of justice is made moredifficult again by the truth-producing effectsof legal decisions, which render native titleas a weaker form of property right. Finally,indigenous Australians are caught in a catch-22situation, in which in order to receivejustice, they must Westernise their thought toadapt to the court system, and yet not allowany Westernisation of their culture. Such aWesternisation can be forced upon indigenouspeoples by the truth-producing effects oflanguage.     

Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law

For most of the 19th century, the labor movements of England and America seemed to be developing along similar lines. Then, in the decades around the turn of the century, both movements were embroiled in a common battle over the political soul of trade unionism. In England, the champions of broad, class-based social and industrial reforms prevailed. In the United States, they lost, and the winners were the voluntarists, who held that labor should steer clear of politics as much as possible. This article suggests that the key reasons for the divergence lie not in the sociology of the working class or labor movement, so much as in the character of the state and polity and the lessons trade unionists drew from experiences in those arenas. The difference between judicial supremacy in the United States and parliamentary supremacy in England combined with other differences in the two nations'forms of government to produce sharply contrasting lessons about the value of state-based reforms.     

Power Politics and the Rule of Law: Shakespeare's First Historical Tetralogy and Law's 'Foundations'

Legal scholars’ interest in Shakespeare has often focusedon conventional legal rules and procedures, such as those ofThe Merchant of Venice or Measure for Measure. Those plays certainlyreveal systemic injustice, but within stable, prosperous societies,which enjoy a generally well-functioning legal order. In contrast,Shakespeare's first historical tetralogy explores the conditionsfor the very possibility of a legal system, in terms not unlikethose described by Hobbes a half-century later. The first tetralogy'sdeeply collapsed, quasi-anarchic society lacks any functioninglegal regime. Its power politics are not, as in many of Shakespeare'sother plays, merely latent, lurking beneath the patina of anotherwise functioning legal order. They pervade all of society.Dissenting from a long critical tradition, this article suggeststhat the figure of Henry VI does not merely represent antiquatedmedievalism or inept rule. Through Henry's constant recourseto legal process, arbitration and anti-militarism, the firsttetralogy goes beyond questions about how to establish a functioninglegal order. It examines the possibility, and meaning, of ajust one.     

The Boycott of the Law and the Law of the Boycott: Law, Labour, and Politics in British Columbia

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.     

Law, Finance, and Politics: The Case of India

The liberalization of India's economy since 1991 has brought with it considerable development of its financial markets and supporting legal institutions. An influential body of economic scholarship asserts that a country's "legal origin"—as a civilian or common law jurisdiction—plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. Rather, we suggest there are complementarities between (1) India's relative success in services and software; (2) the relative strength of its financial markets for outside equity, as opposed to outside debt; and (3) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political economy explanations have more traction in explaining the case of India than do theories based on "legal origins."     

Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth

Whereas most sociolegal studies concerned with hegemony and resistance focus on the resistances of ordinary citizens in everyday life, this article focuses on the development of a particular social movement—the alternative birth movement—and analyzes the process by which this movement emerged and has achieved significant legislative victories. The analysis makes several contributions to the literatures on hegemony, resistance, and the law. First, by demonstrating the importance of medicine's assertion of its authority for the expansion and mobilization of the alternative birth movement, we show that the mobilization of the law by a dominant group may trigger the emergence of social movements seeking to resist hegemonic understandings and arrangements. At the same time, by examining how birth activists' organizational resources developed over time and were rendered meaningful in legislative debates, our study demonstrates the importance of avoiding dichotomous conceptions of structure and culture. In addition, by analyzing culture as a process of meaning-making rather than an independent and hierarchical set of values, the analysis shows how cultural and legal hegemony—even that of modern medicine—may be destabilized, even as it sets the terms of the effort to destabilize it and shapes the nature of the hegemony that will replace it.