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1.
Petar Bojanić 《Law and Critique》2010,21(1):1-16
This paper is a reconstruction of Levinas’ reading of Hegel and his understanding of violence (of the enemy and the war).
Combining Franz Rosenzweig’s reflections which concern the sick philosopher and Hegel’s state, as well as Derrida’s interpretation
of the different attributes of violence, our aim is also to give full evidence of Derrida’s critical reading of Levinas. The
first part illustrates the various classifications of the figures of violence from the different periods of Hegel’s life and
the traces that these figures have left in Levinas’ texts beginning with ‘Liberté et commandement’ in 1953. In the second
part we discuss Hegel’s well-known analogy from his Rechtsphilosophie on sovereignty and the organism—that is to say the parallel reading of some paragraphs of Naturphilosophie too—and the relation between totality and violence, in Levinas’ ‘ontology as allergy’ and in Derrida’s autoimmunology. 相似文献
2.
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
3.
Christine Black 《International Journal for the Semiotics of Law》2009,22(2):197-208
This article is an innovative piece and at the same time—a timely piece, in a world of global warming. A time in which fierce
scientific debates are being fought over anthropogenic impact. Yet the general public would appear to ‘feel’ the change, without
any need for measurement and contesting of findings. This ‘feeling’ is manifest in the Earth Hour. It is this collective act
which I would argue is borne out of feelings for the earth. Feelings which tell people instinctively a change in behaviour
is needed. This article therefore examines the semiotics of a jurisprudence which is premised on feelings. Feelings towards
the Djang—a primordial force expounded by the Australian Aboriginal Senior Law Man Bill Neidjie of the world heritage listed—Kakadu
National Park, Australia. He foresaw the climatic shifts and wanted to assist European Australians—Balanda to help avert the possible consequence. 相似文献
4.
David Martinez-Zorrilla 《Law and Philosophy》2011,30(6):729-749
In recent years, the most widespread doctrine about the conflicts between fundamental (usually constitutional) legal rights
could be summarized in the following three main theses: (1) The elements in conflict are legal principles, as opposed to legal
rules; (2) Those conflicts are not consequences of the existence of inconsistencies or antinomies between the norms involved,
but rather depend on the empirical circumstances of the case. In other words, the norms are logically consistent and the conflicts
are not determinable a priori or in abstracto, but only in concreto; and (3) The classical criteria for solving conflicts between norms, such as lex superior, lex posterior and lex specialis, are not suitable to solve conflicts among fundamental legal rights. Indeed, they require a specific method known as ‘weighing
and balancing’. Although all three theses could be (and indeed have been) regarded as problematic, in this paper I address
mainly the second one. I try to show that there is room for a tertium genus between antinomies (deontic inconsistencies) and conflicts caused by strict empirical circumstances that I call ‘contextual
antinomies’. There are situations in which the norms involved are not inconsistent but the conflict arises for logical reasons.
My thesis is that many conflicts between fundamental legal rights fall in this category. I offer, in an appendix, a proposal
of formalization of this kind of conflict and the elements involved in it. 相似文献
5.
Arne de Boever 《Law and Critique》2009,20(3):259-270
This essay reconsiders Marx’ prehistory of capital through the lens of the work of Giorgio Agamben, who in the wake of Foucault
has proposed a bio-political theory of sovereignty that breaks down the analytical separation between sovereignty and governmentality
that Foucault in his work tries to maintain. Although Agamben mentions Marx only once in his study of sovereign power, I argue
that his study nevertheless contributes to our understanding of the capitalist relation as not only a governmental but also
a sovereign power relation. In the first part of this essay, I show through a philological commentary on Marx’ use of the
adjective ‘vogelfrei’—translated as free, rightless, without protection, outlawed—to characterise the proletariat, that the Marxian proletariat
is a figure of what Agamben in his study of sovereign power calls bare life. In the second part of the essay, I show that
this sovereign dimension of the capitalist relation is also substantiated by Marx’ analysis of the logic of the capitalist
relation as that of the exception. After Carl Schmitt, who wrote that ‘sovereign is who decides on the state of exception’,
Agamben has argued that the logic of the exception is the logic of sovereign power. Reconsidered through the lens of Agamben’s
argument, Marx’ account of the prehistory of capital reveals that there is a sovereign logic of the exception at work in the
capitalist relation. In the final part of the essay, I start from Agamben’s single reference to Marx in his study of sovereign
power to discuss the importance of my conclusions for Agamben’s political message. 相似文献
6.
In the United States, infamous crimes against innocent victims—especially children—have repeatedly been regarded as justice
system “failures” and resulted in reactionary legislation enacted without regard to prospective negative consequences. This
pattern in part results when ‘memorial crime control’ advocates implicitly but inappropriately apply the tenets of routine
activities theory, wherein crime prevention is presumed to be achievable by hardening likely targets, increasing the costs
associated with crime commission, and removing criminal opportunity. In response, the authors argue that academic and public
policy discourse will benefit from the inclusion of a new criminological perspective called random activities theory, in which tragic crimes are framed as rare but statistically inevitable ‘Black Swans’ instead of justice system failures.
Potential objections and implications for public policy are discussed at length. 相似文献
7.
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: |
8.
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
9.
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
10.
In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between
the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving
it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective
justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective
justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to
explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that
‘corrective justice’ cannot be a complete answer to the question of what tort law is for. 相似文献
11.
12.
Using our own experiences in attempting to ‘do’ public criminology in the wake of a violent sexual assault on our campus,
we offer a critique of the emerging public criminology framework. Focusing specifically on tensions between fact and emotion
and representations of expertise in the news media, we argue for a greater respect for emotional responses to crime in moving
the public criminology agenda forward. We suggest that if public criminology sets as its goal educating the public about crime
with an eye towards injecting a counter/critical discourse into ‘get tough’ crime control policies, then public criminologists
need to recognize and take seriously the public’s emotions rather than negate them. Drawing on the work of Ahmed (The cultural
politics of emotion. Routledge, London, 2004), we suggest that the role of the expert is not to simply inform citizens of the ‘facts’ about crime, but to establish—through
emotions—the relationship between themselves and the imagined criminal Other (Young in Imagining crime: Textual outlaws and criminal conversations.
Sage Publications, London, 1996). Thus, alongside trying to convince the public to be more ‘rational’ when it comes to crime, critical criminologists must
start to accept people’s fear and anger as legitimate reactions and try to redirect these emotions toward more productive
ends. 相似文献
13.
Michael Blecher 《Law and Critique》2008,19(3):297-306
The governance phenomenon brings law back to its very ‘origin’, namely, law-making (‘Recht-Fertigung’), and reveals that law
is not anchored to a specific ‘polis’ or to Hobbesian statehood, but is able to pursue different forms of ‘the common’ as
long as its paradox function is fulfilled. Law recognises and develops normative standards for the creation of social structures
while also leading a continuous battle against any restrictions to democracy, common wealth and justice connected to these
structures. Law here acts ‘politically’ and in affinity to social movements that struggle against any form of social ‘immunisation’.
This article analyses the conditions of this affinity and its consequences for the concept of ‘justice’.
相似文献
Michael BlecherEmail: |
14.
Daniel Raveh 《Journal of Indian Philosophy》2008,36(2):319-333
The article offers a close reading of the famous upanişadic story of Indra, Virocana and Prajāpati from the eighth chapter
of the Chāndogya-Upanişad versus Śankara’s bhāşya, with special reference to the notions of suşupti and turīya. That Śankara is not always loyal to the Upanişadic texts is a well-known fact. That the Upanişads are (too) often read
through Śan-kara’s Advaitic eyes is also known. The following lines will not merely illustrate the gap between text and commentary
but will also reveal an unexpected Upanişadic depiction of ‘dreamless sleep’ and ‘transcendental consciousness’. Suşupti is described here as ‘one step too far’, as a ‘break’ or discontinuity in one’s consciousness; whereas turīya is depicted positively, and surprisingly even in wordly terms. Unlike the third state of consciousness in which there is
no ‘world’ nor ‘me’, and which is described through Indra’s character as ‘total destruction’ (vināśa); in turīya, the world ‘comes back’, or rather the ‘renouncer’ returns to the world. Sankara’s position, as far as the story under discussion
is concerned, is radically different. For him, the Upanişadic story illustrates the continuity of consciousness in all its states. For him, the identification with merely one of the consciousness-states
is an error (adhyāsa) which causes suffering. Consciousness prevails even in suşupti, and turīya has nothing to do with ‘coming back to the world’, since there is nowhere to come back from or to. Turīya, as seen by the Advaitin, consists of all the other states of consciousness together, or as K. C. Bhattacharyya puts it,
‘It is not only a stage among stages; it is the truth of the other stages’.
The article is dedicated to Prof. Daya Krishna (1924-2007). 相似文献
15.
‘Globalization’ implies, among other things, the radical crisis of the metaphysical and theologico-political conceptions of
sense. The crisis of the device built upon the concepts of the abstract individual, the nation and the State is at the same
time the crisis of the subject as a master and an owner of sense (each time, the sense). But, if human beings are subtracted by the national, historical and metaphysical identities, by the system of the meanings-image, they
are exposed to the possibility itself of sense as what precedes and exceeds every constituted identity or reality. This article
aims at exploring in Jean-Luc Nancy’s thought the strict relationship between the ‘non-appropriable’ nature of sense and the
being-in-common of human beings considered not as abstract individuals, but as multiple-singularities. A community that is the opening itself of sense, is not sacrificed to an originary or future Unity, but it is offered to the event of the present; to the existences
as events and to an ‘immediate mediation’ as surprise. The experience of this offer as surprise is what Nancy calls ‘freedom’.
Graduate student at the University of Venice, Italy; conducting a study of ‘the centres of temporary detention’ for migrants
in Italy. The translations of all extracts are mine unless otherwise provided. These pages are dedicated to the migrants of
the Association Solidariedade Imigrante of Lisbon, Portugal (to each one and to all of them, their friendship is for me such a great gift). I would like to thank
Vania Trento Miotto and Thanos Zartaloudis with all my heart for the precious help in the revision of this article. Obviously,
the responsibility for these pages rests entirely with me. 相似文献
16.
17.
Carrol Clarkson 《Law and Critique》2007,18(3):361-374
This paper explores the implications of uses of the word ‘we’ in post-apartheid South African fiction. ‘We’ in these novels
is typically a contested linguistic site – which tells of the loss of inherited communities, and reflects the ethically complex
negotiations of a ‘we’ perhaps still to come. Yet if the internal narratives assert a loss of community, each event of the
novel’s being-read inaugurates a new ‘community’ of readers. The paper considers the ethical implications of the act of reading
a literary text in post-apartheid South Africa. In the course of the argument, I draw links between African philosophies of
community, and Jean-Luc Nancy’s proposition that ‘I’ does not precede ‘we’. Thus I suggest some ways in which philosophies
from Africa contribute towards current debates about ‘we’ in contemporary continental philosophy.
相似文献
Carrol ClarksonEmail: |
18.
Nicola Lacey 《Criminal Law and Philosophy》2010,4(2):109-133
This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility
for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s
grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction
between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful
metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently
troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates
the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong
with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal
law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing
the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were
fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand
that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because
‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s
story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable
basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense
of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United
States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality
and innocence. 相似文献
19.
Through two case studies, this essay examines the relationship between the operation and practice of law in Aotearoa New Zealand and the naming of the ‘unlawful’, ‘uncivil’ or ‘disorderly’ within a colonial context. Against the background of the apparent complicity between law and colonial interest and desire in Aotearoa, I argue
that, in both the ‘Haka Party’ case (1979) and Mair v Wanganui City Council (1996), the acts of the defendants draw attention to the relationship between the authority of the law and the repression
or exclusion of difference. According to the judges in both cases, the dictates of Maori law and custom were in conflict with the principles of ‘law and order’. Read in terms of colonial relations, the perceived relationship
between Maori law and custom and the threat to ‘civilization’, law and order reveals the way in which ‘the law’ has operated
in a culturally biased manner and has reflected the interests of Pakeha (New Zealanders of European descent). Thus, the perceived threat of the challenge made to the law in either case can be seen
as the threat to reveal it for what it is, to expose the violence that maintains it, and thus to open a space for critique.
Perhaps more powerfully than any physical attack on the system itself, these acts which expose the law challenge it in the
name of justice, making it possible for the law to be seen both as a reflection of a particular cultural interest and hence as co-opt-able,
takeable and able to be made to serve another end, that of the other in the name of justice.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
20.
The present study explores the theory and, to the greatest degree possible given the limitations of the data, the reality
of aboriginal participation in what may be defined as ‘organized crime’ in Canada, engaging the possibility of a definition
of ‘aboriginal organized crime’ and the proposal of a ‘typology’ of participants. In the development of both the definition
and typology, the researchers build upon Beare's definition of organized crime to include the dimension of motivations—whether
social, political or economic—which theorists agree are crucial in understanding organized crime activities, but which do
not appear in current definitions of the term, as well as important contextual factors informing participation in aboriginal
organized crime networks. 相似文献