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1.
Lucie Lemonde 《Critical Criminology》1996,7(1):75-106
Over the past two decades, the prisoners rights movement and active judicial intervention in prison law have widely expanded
in Canada. This movement has had a significant impact on the emergence of new norms of correctional justice. The recentCorrections and Conditional Release Act, (November 1992), inserts notions of human dignity; due process of law; and to a certain extent, the fundamental rights of
prisoners.
The aim of this essay is to measure the impact of prisoners rights discourse, and the legal obligation to act fairly towards
prisoners, on the practices and quality of disciplinary decisions. Based on observations made at disciplinary hearings in
various penitentiaries and interview data derived from the main actors, the author assesses how the ‘judiciarization’ of social
relations and the ‘legalization’ of discipline in the prison have contributed to the birth of a more humanized prison and
the promotion of human dignity for those people who are incarcerated.
相似文献
2.
This article interrogates the relationship between the sovereign event and a legal decision that purports to place sovereignty
beyond law. It argues that sovereignty cannot be regarded as unitary, and elaborates the process of iterability by which the
sovereign event is split from the outset. This dynamic is examined through an interrogation of the non-justiciability of sovereignty
in Mabo v. Queensland (No. 2)(1992). Along with the unitary conception of sovereignty, Mabo (No. 2) deployed an absolute measure for community in the form of the ‘skeletal principle’ of the doctrine of tenure. The paper argues
that a conception of the political that affirms the One sovereign source of community and law instead of the original dis-position of law, nation and community repeats the original violence, and will, at best, run aground on the righteous (mis)recognition
of the ‘appropriate savage’. It concludes with an indicative rethinking of community through the thought of Jean-Luc Nancy.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
3.
Lori Beaman-Hall 《Critical Criminology》1996,7(1):53-74
Beginning with the idea of law as discourse, this essay examines the ways in which legal method is gendered. Texts, such as
affidavits and court forms, and local ‘mundane’ practices are part of the production and affirmation of the law as a producer
of truth. A possible methodology for exploring legal method, ‘legal ethnography,’ is introduced as a means by which wemight
explicate how legal method works to support and reify legal discourse, in the process silencing the voices of women. The essay
also explores how legal method comes to be accepted as a ‘tool of the trade’ by lawyers, who then use it to translate the
primary narrative of the client into a cause of action that is comprehensible to lawyers, judges, and other actors in the
legal system. Finally, the limitations of the proposed methodology are considered. 相似文献
4.
Jeanne L. Schroeder 《Law and Critique》2007,18(1):117-142
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.
相似文献
Jeanne L. SchroederEmail: |
5.
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
6.
Paul Johnson 《Law and Critique》2012,23(1):43-66
This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had
been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes
an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary
European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue
that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence
in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach,
strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction
of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its
evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding
of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human
Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where
non-heterosexuals continue to face discrimination in contemporary Europe. 相似文献
7.
George S. Rigakos 《Critical Criminology》1996,7(2):75-91
This essay examines the rise of neoconservative thought within criminological discourse from the enlightenment ‘quarrel’ with
ancient philosophy and church supported scholasticism in the 1700s to the present day. From the perspective of criminology,
it is argued that there is little new about the ‘new right’ with the exception that it has managed to galvanize itself as
a popular retributionist alternative among the working class in the United States, Canada, and England. The current organization
of social institutions in a modern ‘risk society’ facilitates the easy re-definition of the crises of late-modern capitalism
into issues of social control. It is not surprising we find the right reinvigorated and prominent under these conditions.
New left realism and crime control through social development are offered as competitive platforms from which to advance critique
of barbaric right-wing crime-control policies.
Despite all my rage, I am still just a rat in cage (Smashing Pumpkins 1996) 相似文献
8.
This paper is in five main parts. The first introduces membership categorisation analysis (MCA) as originally outlined by
Harvey Sacks and, here, as a possible extension of semiotic analysis. MCA is broadly a contribution to discourse analysis
in general and to conversation analysis in particular. The approach concerns membership categorisation devices such as family,
the categories they can contain such as ‘mother’, ‘father’, ‘child’, etc. and the category-bound activities or predicates
commonsensically attachable to such categories. The second section looks at the legal background to family law in Australia
and shows that its basic assumption is, by and large and with some exceptions, to work from categories (what people are) rather
than from predicates (what they in fact do). In the third section, we examine a particular Family Court case (Re Patrick) which highlights the contestation between these approaches. Following this, we examine some recent shifts in the Australian
states and territories towards more predicationally-based legislation and argue for their coherence in contemporary society
and its increasingly flexible conceptions of what may constitute a family. Finally, we return to the question of semiotics
generally and make a case for our MCA-based distinctions as contributions to a possible semiotics of law.
In the beginning was the deed – Goethe 相似文献
9.
Preeti Nijhar 《Liverpool Law Review》2006,27(3):337-360
This article seeks to identify how, and in what ways, the debate over ethnic identity acquired saliency during the different
phases of black settlement in England, especially against the backcloth of the socio-cultural processes and the economics
of colonialism. It outlines how the ‘other’ was constituted in different discourses, policies, and practices, and how these
constructions were appropriated by the criminal justice agencies. Critically, ethnic identity as subordinate and ‘inferior’
was produced by many of the same mechanisms as was developed with regard to the indigenous ‘criminal’ class in Victorian England.
Societal reaction, through criminal and civil statutes, established the identity of the ethnic minorities of early nineteenth
century England, not just as subordinate strata, but also by a more complex process, as a variant of the newly emergent ‘criminal’
class. It is argued that, caught in the hub of empire, the ‘ayahs’, the ‘lascars’ and the domestic servants (See R. Visram,
The Ayahs, Lascars and The Princes (London: Pluto).) in England’s ports found themselves reconstructed as part of the ‘criminal’ class and subsequently subjected
to disciplinary measures of social control and surveillance. The author argues with regard to the indigenous population, conceptions
of the threat of the non-Western crystallised around the same popular images of ‘savagery’ and of moral degeneracy, a process
reinforced in imperial fiction. A desire to ‘civilise’ and improve the peculiar habits of the non-Western followed directly
from indigenous precedent. 相似文献
10.
The first half of the paper shows how the imperial quality of the common law putatively accommodates the demand for legal
foundation. The second half takes the Mabo decision as a test of this supposed ability and finds it foundationally wanting. The continuing insistence of the indigenous
presence provides the key.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
11.
Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the
difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question
confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with
measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution
specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no
war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government
to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s
legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt
and Agamben in order to come to a better understanding of this important set of cases. 相似文献
12.
Andreja Zevnik 《Law and Critique》2011,22(2):155-169
The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity
of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale
for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge
for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say,
of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from
it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions
of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations
that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places;
secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion
of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s
account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove
particularly useful here. 相似文献
13.
14.
Jacques de Ville 《International Journal for the Semiotics of Law》2010,23(3):239-242
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. 相似文献
15.
Yvon van der Pijl Brenda Carina Oude Breuil Dina Siegel 《Crime, Law and Social Change》2011,56(5):567-582
This article intends to respond to a recent call (e.g., Zhang Global Crime 10(3):178–195, 2009; Brunovskis and Surtees International Migration 48(4):1–38, 2010) for more innovative studies and methodologies in order to move beyond the current discourse on human trafficking. We do
so by describing three ethnographic fragments on the dynamics of (dealing with) sex trafficking within Europe. The concepts
of ‘friction’ and ‘collaboration’ (Tsing Cultural Anthropology 15(3):327–360, 2000, 2005) are used to analyse these fragments. These concepts refer to creative processes that occur as people interact across differences.
They give insight into how universal ideas on freedom and justice enable collaboration between parties involved in fighting
human trafficking who do not necessarily share a common goal. We conclude that the presented method of ‘patchwork ethnography’
is useful in studying sex trafficking as it implies a strong focus on connections between ‘sites of diverse knowledge’, without
losing sight of individual stories of people making those connections. ‘Patchwork ethnography’ is innovative and it allows
researchers to expose and untangle the workings of the supposedly all-powerful phenomenon and the encompassing, uniform, hegemonic
discourse surrounding human (sex) trafficking. 相似文献
16.
17.
Markus Gunneflo 《Law and Critique》2012,23(1):67-82
The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant
amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an
attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921,
‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities
of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that
the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the
interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different
way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form
of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is
considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against
the kind of legal violence of which the targeted killing judgment is exemplary. 相似文献
18.
This essay provides a gloss on the relationship between the common law and the ‘law of the land’. It does so by turning attention
to the technologies and identifications that continue to give Australian jurisdiction its place. These relations repeat the
long pattern of the common law ordering of colonisation. They also provide the governmental conditions of legal responsibility
for settlement.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
19.
Maria Drakopoulou 《Law and Critique》2007,18(3):331-360
Feminists have so often declared and celebrated the fecundity of the relationship between feminism and legal reform that critique
of legal doctrine and norms, together with proposals for their reconstruction, have become the hallmarks of the modern feminist
engagement with law. Yet today the long-cherished ‘truth’ about law’s potentially beneficial impact on women’s lives has started
to fade and the quest for legal change has become fraught with problems. In responding to the aporetic state in which feminist legal scholarship now finds itself, this paper offers a recounting of the relationship between feminism
and the politics of legal reform. However, in so doing, it seeks neither to support nor to oppose these politics. Instead,
it explores the historical contingencies that made this discourse possible. Utilizing Foucault’s concept of episteme, it demarcates the nineteenth century as the historical moment in which this discourse arose, and tracing the epistemic shifts underpinning the production of knowledge, locates its positivities at the interface of the time’s episteme and the discourse of transcendental subjectivity that it engendered.
相似文献
Maria DrakopoulouEmail: |
20.
Jessica Whyte 《Law and Critique》2009,20(3):309-324
In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle
of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all
his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not
to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s
theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the
relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically
on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to
fulfil the law, and what form of political task this would entail. 相似文献