Agamben and Marx: Sovereignty, Governmentality, Economy

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.     

An economic theory of intentional torts

The topic of intentional torts is, at first glance, an unpromising one for economics. ‘Intent’ is not a normal part of the economist's vocabulary and does not appear to correspond to any concept in economics. Perhaps this is why there is so little economic writing on intentional torts as such.¹ We shall argue, however, that the concept of intentional tort can be given a coherent economic meaning and we shall try to show that the common law treatment of intentional torts can be explained on the hypothesis that the common law attempts to promote efficiency.     

``Greenwich, 1 January 2000': De-inventing the Law of Britain in a Tent

This is an essay on what happened during January 2000 on Greenwich peninsula, London. The Millennium Dome in Greenwich, London, is read here as a site of the nomadic law of the labyrinth. At the Dome, a law of hyper-nomadics is emerging. In the Dome – a nomadic home, a temporary home quickly pitched of/for/by nomads – Britishness, I argue, is being seriously played as perpetual de-invention in a labyrinthine space, somewhere in-between the Law of Lures and the Law of Commands, in-between the Law of the Desert, the Law of the Game and the Law of Orderings. The Dome is being read here as an image/space through which New Britishness forces/forges itself to the fore, as well as an image/space that forces/forges New Britishness to force/forge itself to the fore. In this essay, ``Law', as well as ``Semiotics', are being used in a very broad sense. The ``Law of Britain', i.e. that which keeps ``Britain' apart/together, or, in other words, ``Britishness', so I will argue, not only elusively occupies a labyrinthine space in-between said Laws (of Lures, of Commands, as well as those of the Desert, of the Game, and of Orderings), which it articulates while it nevertheless also weakens them, dissolves them. ``It', the Law of Britain, Britishness, I will argue, also roams nomadically in-between ``spaces of belonging' and ``spaces of becoming'. In and through the Dome, an interstitial, meridional space, ``it' surfaced – it shaped surfaces – forming a labyrinth that articulates various nomadics, while not allowing any of these to fully emerge. This is ``its' newness, this could be read as the Law of ``New Britain' or ``New Britishness': an ever-elusive labyrinthine mes(s)(h) of surfaces in-between belonging and becoming. This essay is part of an attempt at ``reading the figural', to use Rodowick's words here. Rodowick reads Deleuze who reads Foucault – theorist of spatialization – who reads figures, such as Magritte('s). Figures are clusters of ``visibles' and ``expressibles'. Their light and sound – ``light, sounds and shapes', says the Millennium Dome leaflet – form imaginary spaces – ``spatial images' – that allow for specific ``statements' to be produced and to be read in them; which, in turn, allows for the (re)production of specific ``visibles' and ``expressibles'. The specificity of the Dome, the spatial image of New Britain, of New Britishness, is that the Law of Britain whirls in there, in labyrinthine windings, on surfaces, somewhere in-between belonging and becoming, roaming elusively in-between statements, allowing and (re)producing myriads of specific statements, though none specifically.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

On Some Connections Between Legal Communication and Violence

The first version of this article was written and published in 1989 in Tartu in Russian.¹ As perestroika gathered strength the possibility emerged to take a fresh academic look on concepts which had been dogmatically frozen by “historical Marxism” for many years. One of those laying in the dead end was the Marxist concept of law together with its relation to violence. For a young scholar studying at Tartu University 15 years ago, there was always a possibility to try to apply some ideas and approaches drawn from Yuri Lotman’s articles and lectures. The power of his ideas and its brilliant presentation had already for years fascinated everybody dealing with problems of society and culture in Tartu. The other sources of the present analysis are the ideas about the nature of law and legal communication as they appeared in the 1920s–30s in the works of several Soviet scholars as Eugene Pashukanis and Mikhail Reisner. Both scientists were later condemned and forgotten in the Soviet Union. I also felt very comfortable with the understanding of the nature of law as “language of interaction” expressed and developed by the American lawyer and scholar Lon L. Fuller. The present article focuses only on the logic of communication based on the principle of exchange, reciprocity/contract and mechanism (code) of symbolic equalizations necessary, for achieving such reciprocity. But it is appropriate to point out that in a broader context, contract and reciprocity in society are balanced by different types of principles of human interaction. In this broader understanding, L. Fuller and Y. Lotman are close in their interpretations of cultural interaction and human communication. If we compare Fuller’s article “Two Principles of Human Association”² to Lotman’s “‘Contract’ and ‘Devotion’ as Archetypical Models of Culture”³ we see their approaches are in fact complementary.¹ Kannike, S.H., “O nekotorykh svjazjakh pravovogo obshchenija s nasilijem. Istorija I sovremennost’”, in Tartu Ülikooli Toimetised 850. Studia luridica. Historia et theoria3 (Tartu: Tartu Ülikool, 1989), 76–93² Fuller, L., “Two Principles of Human Association”, in L. Fuller, (ed), The Principles of Human Order(Durham: N.C. Duke University Press, 1981), 67–85³ Lotman, Y.M., ““Dogovor” i “vruchenie sebja” kak arhitipicheskie modeli kul’tury”, in Uchenye zapiski Tartuskogo gosudarstvennogo universiteta 513. Trudy po russkoi I slavjanskoi filologii 332. Literaturovedenije: problemy literaturnoi tipologii I istoricheskoi preemstvennosti(Tartu, 1981), 3–16     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

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.     

Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

Psychosis and the Law: Legal Responsibility and Law of Symbolisation

This paper argues for the practical importance ofpsychoanalysis for criminology, an importancewhich finds its raison d'être in thenecessity that a subject be response-able for there tobe full legal responsibility. In recognising therequirement for a certain linguistic constellation tobe in evidence – namely that there be a subject ofenunciation who is able to answer for what hearticulates at the level of his statement – thecorrespondence between legal responsibility and thelaw of symbolisation, Lacan's term for theOedipus complex, is addressed. Starting from thefictitious structure of truth and its corollary, thefact that `truth is grounded on the fact that itspeaks', the unconscious emerges as a grammaticalapparatus for the production of meaning. The logic ofexception, indexed on the signifier of theName-of-the-Father, is exposed as the mechanism forthe operation of this grammatical apparatus as it isbrought to bear on the trace of subjective division.I then demonstrate the importance of division for thesubject of law by presenting the deleterious effectsof the dysfunctional grammar of psychosisthrough a study of President Schreber's Memoirs and his use of grammatical devices in orderto institute a constitutional democracy in the realmof God – and thus submit the Father to his Name.     

The Times of Law

In this essay, I situate Kunal Parker's Common Law, History, and Democracy in America, 1790–1900, within a broader set of intellectual currents engaged with questions of time and temporality. Although Parker's book centers on the common law and history and develops specific conceptions of time, in so doing, he invites legal historians and legal scholars to ruminate on the times of law, particularly the temporal relations that law has with itself. Placing Parker in conversation with Henri Bergson and the recent Bergsonian revival in critical theory, I suggest that law has a duration, a formulation that opens other itineraries to consider the dynamic times of law.     

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.     

Testing Theory and the Analysis of Time Series Data

Although the relationship between unemployment and crime has been a longstanding interest in criminology, there is little agreement about appropriate models for analyzing this relationship. David Greenberg's (this issue) discussion highlights two issues that raise questions about recent research on the unemployment–crime relationship. First, he extends the work of Hale and Sabbagh (1991) and argues that cointegration methods should be used instead of first-differenced regression models to analyze unemployment and crime time series data. Second, he argues that previous attempts to test his strain theory linking unemployment to the age distribution of crime rely on flawed hypotheses, inappropriate data, and faulty measurement. In this paper, I address both of Greenberg's claims. I begin with a discussion of the relative utility of cointegration analysis and of first-differenced regression models for the analysis of the unemployment–crime relationship, focusing on the link between theory and statistical model. I then discuss the possibility of ever testing and falsifying Greenberg's strain theory.     

Peace as Immobility

This essay speculates on howimageries/imaginations of peace emerge beforeand beyond the words of peace talk andpractice. Exploring the example of OperationRestore Hope (1992–1993) in Somalia, itis argued that imageries/imaginations of peace,e-merging from and into everyday socialities and tribal puissance –echoing Maffesoli – to a significant degree tostructure the outcome of (international)peacemaking operations. The essay describeshow, during Restore Hope (a test casetowards President Bush's ``new world order')imageries/imaginations of peace as immobilitye-merged, before and beyondthe words of a medic's Law of Stabilization.This essay explores the imaginary ofinternational peacekeeping operations. As such,it tries to move beyond the words and the signsof international law. It wants to explore theimages, the imageries, the imaginations thatroam – merging and dissipating – beforelaws, before the Law of the Symbolic.     

G. A. Cohen's Conception of Law: A Critique*

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so-called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History (Cohen 1978, 216–47). In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance.     

Plato and the origin of mental health

This essay examines the history of the concept of mental health. Its origin can be traced to Plato, who argued that immorality is to the soul what disease is to the body. The purpose of this argument was to answer those who thought that morality is a set of social conventions, and in that sense, is contrary to nature. Plato responded by turning to those who made a systematic study of nature – the medical writers of his day – and claiming that if proper balance is needed to maintain a healthy body, the same is true of the soul. Thus the natural state of the soul is one in which the various parts agree on which should rule. This does not mean that Plato sought to excuse immoral behavior by treating it as a medical condition, only that he regarded immoral behavior as contrary to nature and thus treatable. Although later attempts to define mental health are not as rigid as Plato's, it is remarkable how many of his insights are still applicable, in particular the claim that morality and mental health, though not identical, are nonetheless linked. A case in point is the experience of wanting something but not liking the fact that you want it. Plato regarded internal conflict of this sort as a paradigm case of psychic dysfunction. I argue that we can regard it as either a moral failing or a mental one.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

Ferrajoli on Rights

The author considers the distinction drawn by Ferrajoli betweenrights and their guarantees to be an important acquisition forpost-Kelsenian legal theory, but criticises the distinction drawn between fundamental rights and patrimonial rights, in particular contesting the hypothesis that non-disposability/inalienabilityis a characteristic of fundamental rights. On the contrary, Joribelieves that there is a substantial symmetry between fundamentalrights and patrimonial rights, because patrimonial rights can beseen as guarantees of the fundamental right of equal legal capacity.He also argues that the distinction between fundamental and patrimonial rights cannot be drawn solely on the formal terrain, but must beextended to their contents and their ethical importance. Finally,he studies Ferrajoli's thesis of citizenship: in his opinion, theabolition of citizenship hoped for by Ferrajoli would lead to asort of imperialism of rights, ethically a position fraught withproblems, in the light of the ethical value of individual autonomy.     

Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

Rethinking organizational crime and organizational criminology

Organizational crime and organizational criminology, obviously, are, orshould be about ``organization'. This essay wants to explore what is goingon in contemporary ``organizations'; it wants to think through what iscurrently happening in today's organizations. It will argue thatcontemporary organizational life has arrived in a phase of transition.New forms, and new modalities of organizational morality are taking shape.So is organizational regulation. This, as will hopefully become clear, is ofimportance to organizational criminologists who, inevitably, though oftenimplicitly, have been researching and writing about organizational orbusiness ethics and morality for some time now. This essay suggests analternative way of conceptualizing life and regulation in contemporaryorganizations. It suggests a reading of contemporary organizations as clustersof labyrinthine networks – i.e. the raw materials and again the outcome oflabyrinthine moralities – in which – as Deleuze and Guattari had it – theOutside is always already potentially, though undecidably,Within. To students of organizational regulation, and organizationalcriminologists are amongst them, this essay argues that contemporaryorganizations are gradually turning into highly complex networks (of networks) thatare often inextricably interwoven with surrounding networks. This has aprofound impact on how organizational moralities emerge and develop, onon how these in turn impact on the contents and the orientation oforganizational action. This essay will argue that regulating contemporaryorganizatons is bound to be simultaneously much easier as well as muchmore complex than in a previous, ``bureaucratic' age.     

Hijacking Law

This essay considers the legal strategies of comparative communities in South Asian, Middle Eastern, and US history. What does it mean for a particular group to “hijack” a body of law, taking everyone on board to an unwanted destination? The piece compares the legal strategies of the Parsi community in colonial and postcolonial India to those of the German Jewish yekke population in mandate Palestine and early independent Israel, the women's movement in India in recent decades, and Protestants in contemporary America before the 2015 Obergefell decision legalizing same‐sex marriage. There are multiple ways of trying to take control of a body of law, and for multiple reasons. A group may capture a body of personal law to perpetuate its own values within the group. It may try to control a territorial legal system to impose its values on the entire population. It may work across bodies of personal law to obtain as uniform a result as possible—as if the system were a unified field, not a segmented one. Or its group members may make available their legal expertise to shore up a newly independent state's legal system. The essay suggests that taking control of a body of law does not necessarily mean hijacking it.