Irregular States or the Semiotics of Knight-Errantry

This article examines the transformation of the Order of St John (also known as the Knights of Malta) from a crusading and piratic entity (periodically in Jerusalem, Cyprus, Rhodes and Malta) into an irregular state actor without territory (in Rome). Specifically, it looks at the political rationales through which the Order has been historically constituted as an international subject and currently enacted as an “irregular state”, and evaluates the function of international legal discourse in making up for its missing territory, the supposedly ‘hard’ and ‘objective’ condition of statehood under international law.     

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.     

The Sovereign Event in a Nation's Law

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.     

Hong Kong can develop its capitalist system only under the framework of the “One China, Two Systems” policy

Hong Kong is an administrative and economic entity under the sovereignty of the People’s Republic of China, and has developed to be an international center for finance, trade and shipping for history reasons and international favor. Essentially, the local political system adopted by Hong Kong is that of a non-sovereign state as well as a non-political entity. In terms of its makeup, the political system is neither entirely occidental nor completely oriental but an administrative dominative system developed according to Hong Kong’s peculiar characteristics, which has been proved to be effective. It was true when the United Kingdom held the reins of power and it still continues since its territory was returned to the People’s Republic of China. This paper is delivered in the conference “The Evolution of ‘One Country, Two Systems’ in Hong Kong and Macao: Implication for Canada” held by University of Waterloo, Canada on March 24, 2006.     

Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond

The seventeenth century placed Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. As early as Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of ‘right’, ‘duty’, ‘justice’ and ‘power’ (corresponding, in their more vivid manifestations, to categories of ‘heir’, ‘celebrity’, ‘martyr’ and ‘monster’) combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular analogues acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

Drug trafficking,the informal order,and caciques. Reflections on the crime-governance nexus in Mexico

ABSTRACT

While Mexico is widely considered as an example of consolidated statehood, the deepening of drug-related violence and insecurity has corroborated the existence and expansion of ‘dark spaces’ governed by coalitions of state and non-state actors driven by criminal and political interests. In contrast to the prevailing interpretations and public narratives, I will argue that it is historically and conceptually flawed to understand such expressions of limited statehood solely in terms of the proliferation of criminal organisations and the exacerbation of the so-called war on drugs only. Instead, I will examine the historical patterns in Mexican state-making, in which actors and practices of political ordering outside the state properly speaking exercise multiple forms of de facto sovereignty and governance. These arrangements, including caciquismo, accommodate distinct crime-governance manifestations. The article substantiates its claims by looking at the examples from different periods and regions such as Sinaloa, Sonora and Michoacán.     

Agamben and Authenticity

The article argues that the contentious and complex concept of ‘authenticity’, which Agamben develops from Heidegger, forms a central continuity between Agamben’s earlier work, which focuses more on language and art, and his later work, which focuses more on politics. Moreover, I suggest that although this concept is often unquestioned and elided in his work, it plays a crucial role in the deep structures of his thought. Moreover, the ‘unthought concept’ of ‘authenticity’ is of concern because, while authenticity might possibly have a role to play in the sphere of how we come to understand and relate to artworks, there are reasons to be suspicious of this concept in the political realm if, indeed, these two ‘realms’ can be understood separately. If these two spheres cannot be clearly separated, as seems more likely, then it is even more important to explore and question the terms and cluster of concepts around ‘authenticity’.     

On Justice

This paper returns to the question of how to think of justice through Teubner’s recent definition of what he calls juridical justice. Juridical justice is defined as distinct from political, moral, social and theological conceptions of justice. Teubner attempts to think of an imaginary space for a juridical justice ‘beyond the sites of natural and positive law’ and searches for a conception of justice as the ‘law’s self-subversive principle’. This article reviews Teubner’s conception of juridical justice and further proposes a distinction between juridical and non-juridical understandings of justice.     

‘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.     

About the Impossibility of Absolute State Sovereignty

State sovereignty is often thought to be absolute, unlimited. This paper argues that there is no such a thing as absolute State sovereignty. Indeed, absolute sovereignty is impossible because all sovereignty is necessarily underpinned by its conditions of possibility—i.e. limited sovereignty is the norm, though the nature of the limitations varies. The article consists of two main sections: (a) the concept of sovereignty: this section is focused on some of the limitations the concept of sovereignty itself presents; and (b) a historical account of the notion of sovereignty as it was used in the Ancient Times. The particular focus on early notions of a modern concept such as sovereignty has to do with the fact that this early notion has been anthropomorphised with societal evolution. Therein, the current concept of State sovereignty embraces the same limitations it had in its ancient form as a non-fully developed conceptual idea. The implications of understanding State sovereignty as limited rather than absolute are several, both directly and indirectly. A main immediate consequence is that sovereign States can cooperate together, limit their sovereignty and still be considered sovereign.     

Mind The Gap

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’.

Between Constitutional Mo(nu)ments: Memorialising Past,Present and Future at the District Six Museum and Constitution Hill

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.     

Constructing Women Who Experience Male Violence: Criminal Legal Discourse and Individual Experiences

This article examines the relationship between how women who experience violence from a male partner construct themselves, and how criminal legal discourse constructs female victims of violence. It is argued that in both arenas, women are constructed according to norms which emanate from a discourse of conventional femininity which operates together with a practice of shame. Utilising empirical data gained from qualitative interviews with women who experienced male violence, the article contends that the construction of the female victim of violence in criminal legal discourses as imbued with stereotypical ‘feminine’ characteristics such as passivity and weakness, may influence these women’s own construction and understanding of themselves. The existence of a practice of shame further consolidates the self-regulation of the women themselves to these norms of femininity. This construction is posited to be problematic as the experiences of women of male violence rarely ‘fit’ within these explanations. The article contends that in order to better understand women’s experiences of male violence; both criminal legal and individual women’s discourses need to be read in terms of the power, knowledge and effects which they exert upon individual women. It is argued that this alternative reading of these discourses has the potential for transformation as they are invested in the subject.

L'impact du discours des droits des détenus et des normes d'équité sur le tribunal disciplinaire carcéral

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.      

Imperatives Without Imperator

Schmitt’s theologisation of sovereignty has been subjected, 50 years later, to a ‘quarter turn’ by Foucault’s move from issues of domination to issues of government. After a further 30 years, radicalising Foucault, Agamben’s archaeology of economy adds another ‘quarter turn’: the structure that emerges once the old European conjugality of facticity and validity, of praxis and being, emptied of all bonds, links, and loops, gives way to the bare opposition ‘bipolarity’. The new constellation provides the old legal-theoretical (kelsenian) problem of rules unsuspended from a ruler who would authorise them, with a new, unexpected, political content and with a change of epistemic paradigm.     

Legal ethnography: Exploring the gendered nature of legal method

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.     

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).     

Discursive Illusions in Legislative Discourse: A Socio-Pragmatic Study

This paper takes the position that interpretations of legal discourse are invariably taken in the context of socio-pragmatic realities to which a particular instance of discourse applies. What makes this process even more complicated is the fact that social realities themselves are often negotiated within the mould of one’s subjective conceptualisations of reality. Institutions and organisations, including people in power, often represent socio-political realities from an ideologically fuelled perspective, engendering many ‘illusory’ categories often a result of contested versions of reality. To substantiate this view, we discuss interpretations of a number of interesting contemporary and controversial laws, including America’s Patriot Act and Hong Kong’s proposed Article 23 of the Basic Law. Both laws can be seen as illustrative of the definitional conflict that abstract concepts such as democracy and human rights are subjected to in their own specific socio-political contexts. While America crowns itself with democracy and Hong Kong struggles to achieve it in effective synthesis with its unique political arrangement, the laws produced by both contrasting political systems are unexpectedly similar, aiming for the moderation of basic rights. The actions of both governments set against their beliefs and discourses, and furthermore set against one another and other media voices, particularly those of non-governmental organisations, political activists, and other socio-political groups, demonstrate contestation of realities, giving rise to ‘discursive illusions’, which seem to be interpreted not so much on the basis of their linguistic construction but more on the basis of socio-pragmatic factors, such as trust, belief, transparency, control and power.     

Without Negative Origins and Absolute Ends: A Jurisprudence of the Singular

This paper is a preparatory analysis for a jurisprudence of the singular. Through a critical analysis of the negativity and the absolving character of the transcendental metaphysics of law and justice it reads mainly through M. Heidegger, Heraclitus, G. Agamben and J-L. Nancy a realignment of the questioning of justice that takes its provisional name in ‘dike’, at thepoint where the routes of ontology, the juridical and the political intersect and reveal the pseudo-propriety of their presuppositions. Without the transcendental dialectical discourse of the origin and its absolving-absolute ‘ends’, this paper re-poses the urgency of thinking the singular-multiple ‘right’ otherwise. This revised version was published online in July 2006 with corrections to the Cover Date.     

‘Seeing’ is believing: Positivist terrology, peacemaking criminology, and the northern ireland peace process

In this essay, the authors seek to draw upon the understanding and critique of positivism within criminological discourse in order to offer one analysis of the British governments’ approach to the Northern Ireland peace process. They argue that this approach has been hampered not just by the political reliance of the John Major government on Ulser Unionist support at Westminster but by a political and ideological approach to the peace process, informed by positivist terrorology, which has lead to an inability to ‘see’ the potential for peace. Offering a brief analysis of one of its leading academic proponents, the authors argue that such a paradigm posits a view of the liberal democratic state as axiomatically legitimate. Politically-motivated violence within such a state is seen as a purely criminal attack upon it, fundamentally inexplicable in terms other than the deviancy of its perpetrators. Thus in this view, politically-motivated violence is only combatable through purely instrumental, technical, and scientific means. By way of contrast to this paradigm, the authors offer an alternative vision, based on the epistemologies of critical and peacemaking criminology which, they argue, offers much greater potential for the prospects of peace in Northern Ireland and similar political conflicts elsewhere. NIACRO