Contemporary Indigenous Art,Resistance and Imaging the Processes of Legal Subjection

Postcolonial discourse is incredibly diverse and postcolonial art in Australia has numerous critical modes. This paper describes an approach in Contemporary Indigenous art that attempts a critique of the law from within the law rather than outside of it. It takes a radical form of over-proximity, rather than avant-garde distance, and finds the gap and failure in law’s attempt at creating legal subjects of us all. In the work of Gordon Bennett, Danie Mellor and the duo Adam Geczy and Adam Hill, there is a working through the political and legal ramifications of the Indigenous subject in contemporary Australia. The focus on processes of initiation and subjectivization, or what Althusser called “interpellation” and show the effects of this interpellation in the Indigenous subject and offer modes of resistance. The artists are informed by Lacanian notions of subjectivization and utilise this approach to semiotics and power as the starting point for their critique.     

Deconstructing jurisprudence: An experiential feminist critique

Feminist legal scholars continue to raise questions concerning the nature of jurisprudence in its treatment of women. Central to this debate are issues of knowledge, truth, and power founded on the patriarchal code of justice. This article argues that the essentialism of the masculine system alone is entirely inadequate in speaking for the voice of women and/or for the feminine in consciousness. By disrupting Freudian and Lacanian constructions of female sexuality through a psycho-linguistic analysis, these insights are then applied to the works of both Carol Gilligan and Catharine MacKinnon. In doing so, it is discovered that an uncultivated feminine discourse is grounded in experience, gatherings, consciousness-raising, and interpersonal truth. Constituting an unadulterated code of feminine justice requires a return to imaginative discourse; a process whereby metaphors, symbols, and myths for and about women are re-constituted and freed from misogynous language and culture.     

Mothers,Maidens and the Myth of Origins in the Irish Constitution

This article examines the ``hidden' ideological appeal which the 1937 Irish Constitution attempted to make by the invocation of the rural ideal, a hybrid of Irish nationalism, Catholicism and, most importantly, Gaelic romanticism. In this move, the historical legitimacy of the new state could be defined through the constitution by an appropriation of diverse symbols from an imagined past, a golden age of Gaelic unity and moral certainties. Particular attention will be paid to the image of woman as a representation of the nation in the 1937 Constitution, and to the context of Irish nationalist discourse generally, where she repeatedly appears in the archetypal forms of either mother or virgin. The predominance of the image of woman as mother in the Constitution, in contrast to her appearance in pre-independence nationalist discourse (where she regularly figured as a combination of mother, helpless maiden, seductress and destroyer) will be examined in terms of the Lacanian themes of Lack and jouissance (or enjoyment). This cultural (and legal) shift will be examined in terms of the renunciation of enjoyment inherent in this new national imagery, and in relation to the redemptive potential of the image of woman as mother; themes which appear significant in relation to post-colonial political formations generally, and to post-independence Irish political discourse in particular.     

Transcarceration: Notes on a psychoanalytically-informed theory of social practice in the criminal justice and mental health systems

The application of Lacanian psychoanalytic semiotics to the intersecting categories of criminal justice and mental health is relatively novel. In this paper the phenomenon of transcarceration or the repeated channeling of disordered defendants (subjects) through institutional regimes of discipline and coercion is outlined. Attention is directed at the intra-psychic and intersubjective mechanisms responsible for the structuring of discourse. Lacan's schematization on the constitution of master narratives through the Discourse of the Master is also delineated. The author concludes by demonstrating how transcarceration is fundamentally about language and privileged speech patterns which agents of both systems as well as subjects themselves perpetuate. This revised version was published online in July 2006 with corrections to the Cover Date.     

On the Incoherence of Legal Language to the General Public

I will suggest, in this article, a possible explanation of the fact that legal language appears incoherent to the general public. I will present one legal text (an indictment), explaining why it appears incoherent to legal laypersons. I will argue that the traits making this particular text appear incoherent are, first, that a specialized legal meaning is conveyed implicitly and, second, that there are no key-words that could direct laypersons to the knowledge making this meaning obvious to legalists. I will conclude that any legal text having these traits is likely to appear incoherent to the general public and suggest that the traits making my example appear incoherent might be rather common among the various texts of the various legal systems. On this suggestion there is no need to assume any causal relation between lawyers’ social interests and the apparent incoherence of legal language as it entails that this incoherence is inevitable. (I will argue that it is a result of the facts that legal language is ordinary language used, in the ordinary way, in the special context of the legal discourse.)     

The Languages of the Law: An Integrated View From Vico and Conceptual Metaphor Theory

Work on the relation between figurative language and the law is a fairly recent trend, within legal discourse studies, linguistics, and semiotics. The work in conceptual metaphor theory, for example, is starting to unpack the underlying metaphorical and metonymic structure of legal language, producing some new and important insights into the nature of this language. Missing from this emerging line of inquiry are the views of the Neapolitan philosopher Giambattista Vico, who was the first to understand the power of figurative language in the creation of symbolic systems, like language and the law. His tripartite evolutionary model of language shows that there is not one language of the law, but three “languages.” By integrating Vico’s model with the work in conceptual metaphor theory it will be possible to penetrate the underlying conceptual structure of legal discourse and thus lead to a more insightful science of this discourse.     

The Hysterical Attorney: The Legal Advocate Within Lacanian Discourse Theory

In this essay, I apply Jacques Lacan'sfour discourses to the legal profession. A lawyer –i.e. a legal expert – engages in the Master'sdiscourse when he writes the law; he engages in theUniversity discourse when he interprets or attempts tojustify the law. In contrast, an attorney – i.e. a legal advisor – engages in the Analyst'sdiscourse when she counsel's her client; she engagesin the Hysteric's discourse when she represents herclient. From a Lacanian perspective, the two lawyer'sdiscourses are masculine, while the two attorney'sdiscourses are feminine. I divergefrom Lacan's view that the Analyst's is the mostradical discourse. The insight gained throughanalysis can only challenge and change the law iftranslated through the Hysteric's discourse. Consequently, despite dominant sexual stereotypes tothe contrary, to be an effective advocate should takeon a radically hysteric femininity.     

The Sovereignty Game States Play: (Quasi-)States in the International Order

This article discusses the puzzle of sovereign statehood in the context of state failure and anarchy in Sub-Saharan Africa. In the first section it suggests to analyse sovereignty as a discursive fact in terms of a Wittgensteinian language game. This renders recognition a pivotal element and rejects foundationalist notions of sovereignty. The second section analyses the ‘quasi-statehood narrative’. Whereas this narrative presents sovereignty as a game, it applies two different notions of games concomitantly. This article argues that the notion of quasi-statehood maintains an empirical kernel as the core of ‘real’ sovereign statehood and as such remains within the conventional sovereignty discourse. The epilogue states that such foundationalism is not an innocent analytical move. It shows how language can have far-reaching political impact in terms of legitimation of political actions, and how, ultimately, the conventional discourse drains international relations of its content. This will be illustrated by U.S. position to state failure in their War on Terrorism.     

In Search of Common Values Amongst Competing Universals: An Argument for the Return to Value’s Original Meaning

This article presents an argument for the return to the original meaning of the concept value. This is achieved by revisiting the genealogy of the concept and by placing in perspective and questioning the common parlance thereof in contemporary legal discourse. The approach is decidedly against the often casual way in which courts and commentators treat the concept, seemingly as concretisation, validation, exegesis or reinforcement of fundamental norms, but without paying attention to its original meaning and use. It is submitted that we confine our talk of values to the products of valuation, that is, the taste, the will, the esteem and/or perspective of some individual or group. Yet, it is not suggested that we completely discard the use of values discourse in law, the goal is rather to restate the inherent relativity of values language in legal discourse. This will bring necessary order to the current conceptual disarray and will foster mutual understanding and alliance.     

Human Rights – Human Bodies? Some Reflections on Corporate Human Rights Distortion,The Legal Subject, Embodiment and Human Rights Theory

This paper responds to the subversion of international human rights discourse by corporations. It begins by placing such subversion in three contexts: the ascendance of human rights as the dominant discourse of contemporary moral and political life; the emerging challenges to human rights posed by other-than-natural-human entities; and ambiguity in the relationship between the legal subject and the human being. The author suggests that in order to resist corporate human rights distortion it is important to reclaim the language of the human for the natural human being, despite complex philosophical and definitional challenges attending the designation of the term ‘human.’ The author suggests that by re-attending to the implications of human embodiment for human rights theory it might be possible to re-invigorate the protective potential of human rights for vulnerable human beings and communities against powerful disembodied legal persons (corporations).     

Rethinking subjectivity in law and ideology: A semiotic perspective

Post-Renaissance thought ushered in a new global optimism; however, postmodernist thought has recently challenged many of the claims to truth that form the basis of this line of inquiry and semiotic analysis has been one of its critical tools. Accordingly, this paper focuses on establishing a psychoanalytic semiotic perspective in law which is materially based. Law, ideology, and subjectivity are investigated in terms of discourse analysis. A Lacanian framework is integrated with a critically informed analysis that examines how the ‘what happened’ in the courtroom is constructed. It is argued that subjectivity is intrinsically connected with discourse. Two levels of discourse analysis are examined: the level of juridico-semiotic production, and the sphere of intra- and inter-subjective semiotic production. The notion of a semiotic grid constituted by three axes is developed, and extraverbal context is conceptualized as determinative. An alternative conceptualization of subjectivity in law based on Lacan is then argued for.     

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.

法学语体研究——基于法学期刊编辑学的视角

经过20多年的发展,作为边缘法学的法律语言学的学科地位在事实上得以确立,法言法语渐被纳入学科研究对象。此外,作为现代语言学的分支,语体学已相对成熟,但法学语体问题却少有人问津。这也许与修辞学泰斗王德春教授主张语体种类之一的科学语体"不再细分"有关,也与自古以来"文术多门,各适所好"、"明者弗授,学者弗师"有关。然而,法学语体具有科学语体与政论语体甚至公文语体交叉的特点,可以视为语言分化的结果。法学语体研究滞后对我国法学研究与报刊编辑出版中的语言质量已造成消极影响。法学语体逐渐形成一些典型的语言手段及表达方式,如:词汇上庄重、严谨、文雅;句式完整,但具扩展性;语篇上具连贯性、充分性。我们应当恰当使用带语体色彩的词汇体现法学气派,并且合理使用长句、复合句反映法学风格。灵活运用的多种修辞表达方式充分体现了学术语境的科学理性与思维美感。法学语篇不妨在行文上流光溢彩,活泼多姿。与此同时,要防止不当话语修辞对交际和传播带来的负面影响。     

论强奸罪应当废除——基于后现代女性主义立场的一种观点

后现代女性主义将强奸视为一种"语言"。借由"话语塑造主体"这一机制,男性在有关强奸的立法与司法仪式中被塑造为身体上的压倒性体力占有者,女性则具有了"可被强奸"的属性。女性在男权社会中被客体化的事实在强奸罪这一罪名中得到进一步强化。后现代女性主义主张的话语转换策略提醒我们应当跳出既有法律框架来思考防治强奸的对策,即可以考虑在社会条件成熟的时候,取消"强奸罪"这一法律语言,达到改变女性弱势地位,约束男权的扩张,抑制强奸行为发生的目的。至此,女性以主体地位进入法律史,性别平等得到实现。     

Punishment and Welfare:

This paper will attempt to situate the current discourse on 'crack pregnancies' within the context of a broader regulatory discourse.' It will argue that defining and locating state intervention solely within the confines of formal legal discourse not only privileges the criminal law, but (1) occludes recognition of the ways in which regulation and control are effected by administrative law and welfare policy and (2) fails to specify the role of the welfare state in the construction and reproduction of dominant cultural norms of womanhood and mothering. The paper draws on feminist literature and fieldwork-in-progress to suggest that many of these women are already subject to substantial mechanisms of social control and cultural reproduction. In concluding, it is suggested that the construction of this debate to date has served to deflect attention away from the fissures of gender, race and class that render these women's lives as publicly problematic.     

语篇分析在司法语境中的应用

法律语篇分析是从法学语言的视角研究与法学有关的种种语言现象,并运用语篇学的研究方法分析法学语言,包括立法语言、司法语言、法律科学语言、法学翻译以及法学古文等一切有关法律规则和法学研究的口语和书面语。司法语境中的语篇分析,是从微观的角度分析司法人员、律师和涉案当事人的各种语言现象,旨在解决司法过程中的语言证据收集、话语标记识别、语言环境分析、控辩双方对同一语言证据材料的不同理解可能导致不同审判结果等可能存在的一系列问题,促使我国司法实践部门对法律语言的更多关注,以拓宽我国法学语言界的研究视野,进一步提高工作效率。     

Globalization and the capacity of violence to transform social spaces: Some critical points about the Latin America debate

The aim of this study is to try andexplain the relationship between violenceand the changes taking place in socialspaces. Violence, in all its dimensions,has taken a central place in Latin Americansocial life and has become an almosttotally private issue. This implies aseries of spatial and socialtransformations in the cities. The neweffects of violence influence social andethnic segregation and seem to operate insimilar ways in different societies. Thismotivates a comparative analysis of thesecurity services situation in differentcountries. Such a comparison will allow usobtain a better vision of the effects ofviolence as social facts and will allowplanning future comparisons with otherregions easier.     

<Emphasis Type="Italic">Keyu and Others</Emphasis> (2015): Derridean Hauntology and Lacanian-Žižekian Psychoanalysis in Between the Lines

This article will explore Derridean hauntology in relation to the UK Supreme Court case of Keyu & Others, as well as through the lens of Lacanian-?i?ekian psychoanalysis. In particular, this article will argue that there are two main groups of spectres, or ghosts, which loom over the case. The first are the spectres of Marxism and class struggle, which form the overarching framework of the case. The second are the spectres of the victims of the Batang Kali killings in 1948 at the hands of a Scots Guard patrol. Here, Lacanian-?i?ekian psychoanalysis can shed light on the tension between democracies and undemocratic measures, which co-exist side by side and indeed are mutually constitutive. In addition, Lacanian-?i?ekian psychoanalysis can provide a way to further understand the need for the victims’ and their relatives’ voices to finally be heard and acknowledged by the Symbolic Order (the big Other). Lacanian-?i?ekian psychoanalysis can further offer a useful interpretive framework through which to understand the traumatic impact of the killings of the Batang Kali rubber plantation workers on their relatives (the appellants of the case), and how it can potentially be mitigated through articulation and integration into the Symbolic. In so doing, this article will expose and bring to light the spectres and ghosts, as well as the obscene underside, that are latent in cases of historical human rights violations, whether those are related to insurgencies in the days of the decline of the British Empire or otherwise. This is important in terms of giving a voice, as well as acknowledging that voice, of the victims and survivors of such human rights violations, which is often silenced or ignored, as well as exposing and acknowledging the obscene supplement that characterizes, for example, democracies and their workings.