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1.
Jacques de Ville 《International Journal for the Semiotics of Law》2008,21(2):117-137
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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Jacques de VilleEmail: |
2.
Kirsty Duncanson 《International Journal for the Semiotics of Law》2011,24(4):385-404
In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh
as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining
to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the
evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the United States’ Constitution
is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives
and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its
physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the
film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At
the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of
constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional
law is experienced as “natural” through the phenomenological experience of cinema. 相似文献
3.
David Shulman 《Journal of Indian Philosophy》2008,36(4):481-505
Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where
it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha
Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry;
these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At
times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested
between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil. 相似文献
4.
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: |
5.
This article consists of a tentative exploration regarding the Buddhist portrayal and critique of Sāṃkhya epistemology and the theory of reflection (pratibimbavāda) as expressed in the Sāṃkhyatattvāvatāraḥ chapter of Bhāviveka’s 6th century Madhyamakahṛdayakārikā, and its auto-commentary the Tarkajvālā; and the Jain portrayal and critique of Sāṃkhya epistemology and the theory of reflection as expressed in Haribhadrasūri’s 8th century Śātravārtāsamuccaya (ŚVS) and Yogabindu. The article includes a translation of the Yogabindu, verses 444–457. 相似文献
6.
Ronnie Lippens 《Crime, Law and Social Change》2003,40(4):323-347
This essay aims to contribute to an unobtrusive criminology of organisation. In particular its focus is on organisational imagineries of ethical business practice. The essay thus is about organisational imageries and imagination, as well as about the connections between those and what might roughly be called organisational justice. This essay tries to find out whether the imaginery of specific organisations holds come clues as to the boundaries (of imagination) within which textual or practical forms of organisational justice may take shape. This essay is part of a broader, though fairly recent research agenda that deals with the role and impact of imagination in organisational life. 相似文献
7.
Ian Ward 《Liverpool Law Review》2010,31(3):207-232
Edmund Burke’s Reflections on the Revolution in France is one of the defining texts in the history of English constitutional thought. It is conservative in its overt defence of
England’s ancient constitution, and in particular the twin bulwarks of Church and Crown. In more immediate terms, it was written
against those who appeared to sympathise with the principles of the French revolution, men such as Joseph Price and Tom Paine.
But the true ‘genius’ of Burke, as Wordsworth famously noted, does not lie in the surface defence of traditional conservative
institutions and principles. It lies, rather, in an appreciation that constitutions are aesthetic expressions, their vitality
dependent upon the strength of the political imagination which they strive to shape and to nurture. What is truly distinctive
about Burke’s Reflections accordingly is that it was written as a poetic as much as a political treatise. The purpose of this essay is to explore this
genius and this poetic. 相似文献
8.
Uladzislau Belavusau 《International Journal for the Semiotics of Law》2010,23(2):165-183
The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech
(between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary
constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its
genealogy in the Ancient rhetorical cradle. 相似文献
9.
Mark Antaki 《Law and Critique》2012,23(1):1-20
Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully
considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment
is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its
overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the
Law’, which illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified:
the theoretical (turning to imagination as synthesis), the progressive (imagination as empathy), the transformative (imagination
as invention) and the nostalgic (imagination as attunement). Most of these turns to imagination remain complicit with disenchantment.
‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians
turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law
a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning
to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest
to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves
symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment
by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities. 相似文献
10.
While the discourses and practices of crime prevention are of increasing salience, few criminologists have sought the inclusion of corporate illegalities on such agendas. Relatedly, within criminology, there has been a diminished tendency to think in idealistic, utopian and emancipatory terms. This paper is one small attempt to think in precisely such terms.1 But it is not an exercise in pure imagination. In particular, the paper makes extended reference to Finland, where recent experience suggests that corporate crime prevention may be feasible, under certain conditions, albeit subject to certain limitations. Thus we consider both the desirability and the feasibility of corporate crime prevention intruding upon the generally narrowly constructed terrain of ‘crime prevention’. We begin with a critique of some of the key aspects of crime prevention discourses – at both theoretical and practical levels – with a particular emphasis upon the extent to which these are both more appropriately and usefully applied to corporate crime prevention, before going on to discuss corporate crime prevention ‘in action’, through a focus upon recent developments in Finland. In a concluding section, we consider various aspects of both the desirability and feasibility of corporate crime prevention. 相似文献
11.
Nathan Gibbs 《Law and Critique》2010,21(2):147-162
This article seeks to shed light on some of the problematic assumptions underpinning the contemporary debate over the constitutional
identity of the European Union. The central claim put forward here is that the development of the European Union’s constitution
is significantly constrained by what Charles Taylor has described as the modern social imaginary. The constraint operates
at two levels. First, modern understandings of constitutionalism typically ignore or underemphasize its dynamic and historical
characteristics and its relationship with the self-understanding of political subjects. Thus, modern constitutionalism fails
to acknowledge the importance of historically conditioned assumptions involved in the formation of the identities of political
subjects. In short, it fails to understand constitutionalism as a ‘regime’. Second, modern constitutionalism’s blind-spots
result in a relatively unreflective adherence to a particular type of constitutional regime: the modern economy and its associated
‘consumerist’ form of political citizenship. 相似文献
12.
Qianfan Zhang 《Frontiers of Law in China》2007,2(1):23-43
This paper discusses the evolution and recent trends in the development of the constitutional concept of “public use” in the
case-law history of the United States starting from the source of US government’s taking powers and the original meaning of
the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of “public use” and “public
interest” are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion.
In the United States, the safeguard of “public interest” in taking mainly lies legislative rather than judicial control. In
a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public
use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a “public interest machine”,
which automatically generates laws and decisions on behalf of public interests through the democratic representative process.
The paper eventually suggests that China should divert its attention from the theoretical definition of “public interest”
to institutional construction, and should make the National and Local People’s Congresses and their standing committees to
play major roles in deciding taking and compensation schemes.
__________
Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45 相似文献
13.
Bixin Jiang 《Frontiers of Law in China》2007,2(2):167-197
Emergent administrative power is a necessary power for dealing with emergent situation. Although different emergent administrative
powers under different constitutional systems are different in content, they share the same logic structure. The establishment
and the execution of the emergent administrative power shall be subject to the regulation of law. The regulation of emergent
administrative power requires for the adoption of various measures with attention to the balance of values.
Translated from Faxue Yanjiu 法学研究 (Case Journal of Law), 2004, (2): 3–16. 相似文献
14.
As law originates in violence, it is always haunted by its constitutive trauma. Recourse to law's origin, which is implicitly
or explicitly sought in (constitutional) adjudication, thus requires a way to deal with law's trauma. What is needed is a
cover, to be provided through (legal) interpretation. Four such interpretive ‘cover up’ operations, all necessarily somewhat
duplicitous, are discussed. The first three represent main currents in legal theory. First, the standard legal view, which
denies the trauma but relies on traditional authority to cover it. Second, a ‘neurotic’ solution, in which trauma is also
denied but nevertheless cover is produced through collective interpretation. In the third, ‘perverse’ solution, trauma is
admitted, and even enjoyed; on the other hand, it is denied that cover can be produced by any interpretive authority. The
fourth option provides an alternative: recognition of law's trauma, covering it through the collectively shared practice of
interpretation. It is shown that an example of such a collective effort can be found in the Dutch practice of gedogen, the deliberate under-enforcement of law, which is capable of creating an ‘informal rule of law’ that deals with intractable
social problems more successfully than attempts formally to enforce applicable law.
This revised version was published online in November 2006 with corrections to the Cover Date. 相似文献
15.
欧洲近现代历史上宪政民主政制的生成、建构与演进 总被引:2,自引:0,他引:2
宪政民主政制与社会经济发展之间的关系,是一个值得深入进行理论探讨和实证研究的新课题。本文对西方宪政民主的起源、生成与演变史做了一个鸟瞰式的回顾,为探究宪政民主与经济发展之间的关系提供一些背景知识。在从词源和辞义上辨析了西方文字中的"constitution"以及以及与之对应的中文"宪法"和"宪政"的基本含义之后,本文对英国、法国和德国近现代宪政民主政制的生成、建构和演变史做了一些简略的历史考察,并在最后一部份对近现代欧洲历史上宪政民主政制下的法律制度的生成原因做了理论的和历史的分析。 相似文献
16.
Stacy Douglas 《Law and Critique》2011,22(2):171-187
This article explores the powers and potentialities of imaginations of political community at the site of the museum in contemporary
South Africa. Taking the District Six Museum (Cape Town) and Constitution Hill (Johannesburg) as the empirical backdrop, I
explore the ways in which memorialising practices at these sites bolster or deflate the exaltation of the post-1996 constitutional
moment. This argument aligns closely with contemporary discussions by South African constitutional theorists about the role
of monumentalism and counter-monumentalism. Indeed, I argue that memorialising techniques employed at the District Six Museum
offer a practice of memory-making that resists the fixed and limited boundaries proffered by the new South African constitutional
discourse exalted at Constitution Hill. However, my critique does not include a call for a reform of the latter. Instead,
I argue that the continuation of monumental memory practices at Constitution Hill, in juxtaposition to counter-monumental practices at District Six, serves a key role in revealing the limits of fixed notions of law and subjectivity
in imagining past and future political communities. Drawing on Antonio Negri’s concept of constituent power, I argue that
the juxtaposition of monumental and counter-monumental memorial practices exposes the illusion of the division between transcendent
Power (potestas) and immanent power (potentia). Finally, I turn to Emilios Christodoulidis’ conception of ‘strategies of rupture’ to consider ways in which this contradiction
might be made to ‘persist’ through the site of the museum. Indeed, if the goal is to illuminate the illusion of transcendent
power, the juxtaposition of memorialising practices between the two sites (a museological form of ‘tapping of contradiction’)
may serve as a platform for the truth of constituent power to be realised. 相似文献
17.
Daniel McLoughlin 《Law and Critique》2009,20(3):245-257
In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism.
In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional
theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the
legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity
between totalitarianism and the Moral Law is the problem of the undecidable, which arises when the empty ground of normative
judgment comes to light. 相似文献
18.
In the svārthānumāna chapter of his Pramāṇavārttika, the Buddhist philosopher Dharmakīrti presented a defense of his claim that legitimate inference must rest on a metaphysical
basis if it is to be immune from the risks ordinarily involved in inducing general principles from a finite number of observations.
Even if one repeatedly observes that x occurs with y and never observes y in the absence of x, there is no guarantee, on the basis of observation alone, that one will never observe y in the absence of x at some point in the future. To provide such a guarantee, claims Dharmakīrti, one must know that there is a causal connection
between x and y such that there is no possibility of y occurring in the absence of x. In the course of defending this central claim, Dharmakīrti ponders how one can know that there is a causal relationship
of the kind necessary to guarantee a proposition of the form “Every y occurs with an x.” He also dismisses an interpretation of his predecessor Dignāga whereby Dignāga would be claiming non-observation of y in the absence of x is sufficient to warrant to the claim that no y occurs without x. The present article consists of a translation of kārikās 11–38 of Pramānavārttikam, svārthānumānaparicchedaḥ along with Dharmakīrti’s own prose commentary. The translators have also provided an English commentary, which includes a
detailed introduction to the central issues in the translated text and their history in the literature before Dharmakīrti. 相似文献
19.
Human rights are both a means for the ideological justification of the status quo and for its utopian subversion. In order to account for this paradox we need to consider the role that our capacity to form images plays in human
rights discourses. I will first discuss how best to conceptualise the capacity to produce images, which is the focus of this
paper. In order to go beyond the impasse generated by philosophical approaches to imagination as an individual faculty, and by sociological approaches to the imaginary
understood as a social context, I propose to use the category of the ‘imaginal’, understood simply as that which is made of
images and can therefore be both the product of an individual faculty and a social context. Second, I show how the imaginal
enters the three major strategies of justifications of human rights, when we think of them as ‘human’, as ‘rights’ and as
‘rational’. Finally, I will show that the imaginal is also the force that compels us to enforce human rights, to put ourselves
in the shoes of others and imagine a world that is different from the one in which we are currently living. 相似文献
20.
As a developing country, China has been pressured by the developed countries to increase the levels of intellectual property
(IP) protection and to adopt IP rules that even go beyond the minimum international standards. IP regimes are established
to promote advances in science and culture by rewarding creation and invention. However, developing countries do not necessarily
appropriately share the benefits from the harmonization of IP protection standards over the world. Fortunately, not every
developed country or international organization is concerned only with its own interest when evaluating the tendency of international
IP protection policies. In fact, they have made many studies or findings in favor of the concerns and interests of developing
countries. This paper investigates the conflicts between IP rights and human rights, as well as the validity of IP laws under
constitutional arguments, with the purpose of providing new strategic policy arguments in China’s future amendments to IP
laws, and related negotiations with developed countries.
__________
Translated from Faxue Yanjiu 法学研究 (Law Research), 2005, (6): 105–115 相似文献