His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

Policing Outlawed Desire: ‘Homocriminality’ in Beat Spaces in Australia

Drawing on interview data of gay men who have had their behavior in public spaces scrutinised by agents of the law for signs deviance, this article explores the historical characteristics of police animosity towards such conduct in Australia. This entails examining encounters between police and gay men who pursue desire in ‘beat’ (or ‘cottage’ to the use the UK term) spaces. Exploring why these outlaw gay male subjects are so abject and troubling to the law, the discussion documents how law’s desire to regulate gay men plays out in the masquerade of ‘plain-clothes’ agent provocateur operations where police entrap gay men by mimicking gay bodily appearances, gestures and mannerisms. This article also examines how police regulation of gay desire functions as a form of violence that delimits expressions of same sex desire in public spaces. A key theme that underpins the analyses in this paper is that the policing of desire in ‘beat’ spaces helps produce qualities of illicitness and dangerousness and that this, in turn, fuels the circuit of desire at play between gay men and agents of the law.

Between Justice and Law in Aotearoa New Zealand: Two Case Studies

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.     

Finding cover: Legal trauma and how to take care of it

As law originates in violence, it is always haunted by its constitutive trauma. Recourse to law's origin, which is implicitly or explicitly sought in (constitutional) adjudication, thus requires a way to deal with law's trauma. What is needed is a cover, to be provided through (legal) interpretation. Four such interpretive ‘cover up’ operations, all necessarily somewhat duplicitous, are discussed. The first three represent main currents in legal theory. First, the standard legal view, which denies the trauma but relies on traditional authority to cover it. Second, a ‘neurotic’ solution, in which trauma is also denied but nevertheless cover is produced through collective interpretation. In the third, ‘perverse’ solution, trauma is admitted, and even enjoyed; on the other hand, it is denied that cover can be produced by any interpretive authority. The fourth option provides an alternative: recognition of law's trauma, covering it through the collectively shared practice of interpretation. It is shown that an example of such a collective effort can be found in the Dutch practice of gedogen, the deliberate under-enforcement of law, which is capable of creating an ‘informal rule of law’ that deals with intractable social problems more successfully than attempts formally to enforce applicable law. This revised version was published online in November 2006 with corrections to the Cover Date.     

Learning Pain: Poetry in Emotion

This paper asks the question; is a poetic response to law and suffering legitimate? It reflects upon Robert Duncan's poem Persephone and imagines the (dis)connections between law, literature and poetry. It muses upon the “Trauma” of the poem and the “wound” considered in the context of both public and private law and considers the politics of sentimentality, dominant within the political agenda of the 21st century. The article uses the poem as a lens which reveals that the law fails to address the question of suffering as the wound of the poem is used by the poet as a pedagogical argument to teach us about loss.

     

The Brahman and the Word Principle (Śabda)

The literature of Bhartṛhari and Maṇḍana attention in contemporary times. The writings of the prominent linguistic philosopher and grammarian Bhartṛhari and of Manḍana, an encyclopedic scholar of later seventh century and most likely a senior contemporary of Śaṅkara, shape Indian philosophical thinking to a great extent. On this premise, this study of the influence of Bhartṛhari on Maṇḍana’s literature, the scope of this essay, allows us to explore the significance of Bhartṛhari’s writings, not only to comprehend the philosophy of language, but also to understand the contribution of linguistic philosophy in shaping Advaita philosophy in subsequent times. This comparison is not to question originality on the part of Maṇḍana, but rather to explore the interrelationship between linguistic philosophy and the monistic philosophy of the Upaniṣadic tradition. Besides excavating the role of Bhartṛhari writings on the texts of Maṇḍana, analysis this will reveal the interrelatedness of the Advaita school of Śaṅkara often addressed as ‘pure non-dualism’ (Kevalādvaita) and the Advaita of Bhartṛhari, identified as ‘non-dualism of the word-principle’ (Śabdādvaita).     

Observing the Breach: Dignity and the Limits of Political Theology

This paper draws together a number of debates concerning ‘dignity’. It points to reasons for the endurance of the concept of dignity, and thereby indicates some limits to analysis via political theology. Dignity is incongruous in law and ethics: it is naturalised theology illicitly augmenting liberal and postmodern theory. At the same time, phenomenologies of dignity suggest that it is something ‘observed in the breach’ when we encounter the diminution of the individual. Political theology would encourage us to treat this appearance of diminution as a point of aporia in ethics and closure in law, ostensibly articulating the loss of ‘humanity’ but in fact revealing nothing more than the reduction of all norms to sovereign decision. However, deconstructive counter-arguments to political theology are possible. First, the persistence of dignity hinges upon perception of loss rather than on any distinctive norms. Second, language games invoking dignity should be seen as performing solidarity. Third, there is a productive instability in the languages of dignity and human dignity. Together, these qualities mean that dignity, despite its theological genealogy, can justifiably play some role in both liberal and postmodern ethics.

On Desire,Transcendence and Sacrifice

This contribution offers a careful but critical reading of Johan van der Walt’s theory of post-apartheid law as sacrifice and social struggle. By placing a theoretical emphasis on the inevitability of violence and the impossibility of love, Van der Walt’s thesis risks denying the possibility of thinking the world in a different, way. In order to reconceive the terms of community and horizontality in post-apartheid South Africa, there is a need to move beyond thinking the world as constructed according to tension, conflict and self-preservation at the expense of understanding and compassion. In developing a critique of law as sacrifice, I utilise Panu Minkkinen’s call for justice as the beyond of law that goes beyond the mere battle for recognition. I also address his view that the unappeasable desire of metaphysics entails the recognition that there is hope for the future and the recovering of transcendence as otherness. Secondly, I use Louis Wolcher’s work on Zen Buddhism to argue that any obsession with conceptual purity, as is glimpsed in Van der Walt’s work, ignores the impossibility of setting down the immutable and universal truth for all time. In other words, however attractive a theory of law as sacrifice may be, it is only one perspective amongst many others. Lastly, I contrast Van der Walt’s work with that of Luce Irigaray, and in particular her formulation of ‘horizontal transcendence’ that makes possible relations ‘between two’.

Belize It or Not: Implied Contract Terms in Marks and Spencer v BNP Paribas

In Marks and Spencer v BNP Paribas, the Supreme Court restated the law on the implication of terms in fact, rejecting the previously authoritative approach taken by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd. This article examines two major departures from Belize in Lord Neuberger's leading judgment: the treatment of implication as a process separate from interpretation, and a return to the ‘traditional tests’ for the implication of terms. It argues that these are retrogressive steps in our understanding of contract terms, which risk fostering an incoherent and unprincipled approach to the law.     

<Emphasis Type="Italic">Ayam aham asmīti</Emphasis>: Self-consciousness and Identity in the Eighth Chapter of the <Emphasis Type="Italic">Chāndogya Upanişad</Emphasis> vs. Śankara’s <Emphasis Type="Italic">Bhāşya</Emphasis>

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).     

MWB Business Exchange Centres Ltd: The Practical Benefit Doctrine Marches On

In MWB Business Exchange Centres Ltd v Rock Advertising Ltd the Court of Appeal held that when an ongoing contract is varied so that one party's obligation to pay money is reduced, the variation is binding as long as the other party receives a practical benefit. In doing so, the Court of Appeal effectively confined the rule in Foakes v Beer to one‐off payments. This raises serious questions about the continued survival of Foakes v Beer. On the other hand, the Court of Appeal ensured that Foakes v Beer would not be killed off via equity by moving away from the suggestion in Collier v P & M J Wright (Holdings) Ltd that an agreed part‐payment of a debt by a debtor will always raise an estoppel preventing the creditor from demanding the remainder of the debt.     

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.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.     

The Tragic Plight of HIV-Infected Haitian Refugees at Guantanamo Bay

Last June marked the 14th anniversary of the closing of the world’s first, and only, HIV camp at Guantanamo Bay. This article revisits the infamous legacy of the Guantanamo Bay camp and the plight of the HIV-infected Haitian political refugees during the early 1990’s. Part I summarises the development of the United States’ immigration policy and the government’s history for excluding immigrants for health related reasons. Part II details the factual and historical background leading to the mass exodus of the Haitians and the sequence of tragic events which resulted in their confinement at Guantanamo Bay. Part III focuses on the seminal case of Haitian Centers Council, Inc. v. Sale (II) (Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028, 1049 (E.D.N.Y. 1993)) which was responsible for bringing about the closure of the HIV camp and granting parole to all HIV-infected refugees to enter the United States. The anticipated revolutionary reform of the HIV-exclusion policy emanating from this legal triumph never materialized. The United States government successfully sought to have the case vacated from the Court’s books. Consequently, the landmark precedent does not technically exist today. What does remain is the notorious HIV-exclusion policy which was distorted by the United States government to justify their detainment. Although the epic legal and emotional struggles of the Haitians are forgotten by many, the legacy of Guantanamo Bay continues to haunt the lives of those who were prisoners of the HIV camp.     

Derrida,Semiotics and Justice

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.     

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.

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’.

Ideas of Transgression and Buddhist Monks

It is implicit in a western understanding of law that law is a series of generalisations, which are universal and which aim to promote social community. At the same time ‘law’ is expected to operate in a territory (rather than for specific people or castes) where it applies, and to apply to a community of rights-bearing subjects. Such a view of law may have reflected part of the values of the European Enlightenment where law was seen as a rational science and where religion has been seen as excluded from law. An alternative route in the study of law is to study ‘transgressions’. The literature on ‘transgression’ suggests transgressions form an amorphous category and a proper examination of them is not closed by the normal taxonomy between the studies of ‘law as obedience’ versus ‘laws as violation’. In one sense transgressions are part of the rule, yet a separate category in their own right. I use the concept of ‘transgression’ to attempt to describe the legal significance of ‘violations’ in the rules of the Buddhist monks (Vinaya). I conclude that a proper consideration of the role of sexual desire in the Vinaya allows me to show that ‘violations were accepted within an institutional framework, that ‘violators’ were not excluded from the order of monks and that sexual experience could be seen as an alternative, if controversial, path of spiritual development.     

‘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.