The Expressionless: Law, Ethics, and the Imagery of Suffering

The essay discusses law’s inability to address the phenomenon of human suffering and, at the same time, investigates a possible theoretical kinship between Walter Benjamin’s notion of ‘the expressionless’ and Emmanuel Levinas’s understanding of suffering as the foundation of an interhuman ethics. The kinship between Levinas and Benjamin is examined with reference to suffering in the visual arts and, more specifically, in Matthias Grünewald’s Isenheim Altarpiece and Francis Bacon’s crucifixion triptychs. The essay argues that in the crucifixion scenes of both Grünewald’s medieval altarpiece and Bacon’s triptychs, suffering is what constitutes ‘the expressionless’. After every detail of the image, every element of attribute, motif, composition and colour have been accurately depicted, a residue still remains, an ethical truth that cannot be appropriated into a meaningful unity but that nevertheless calls for a response. While law must always give suffering a utilitarian value in its attempts to assign responsibility for the injury occurred, the essay argues that the fragmentariness in all true art that Benjamin calls ‘the expressionless’ is akin to Levinas’s understanding of the constitutional uselessness of suffering, its essence as ‘for nothing’.

'The Lady Doth Protest Too Much' Kosovo, and the Turn to Ethics in International Law

Most international lawyers approved of the 1999 bombing of Serbia by the members of the North Atlantic alliance. But most of them also felt that it was not compatible with a strict reading of the UN Charter. The article describes the argumentative techniques through which international lawyers tried to accommodate their moral intuitions with their professional competence. The urge to achieve this, the article argues, arose from a general turn to ethics in the profession that has been evident since the end of the Cold War. This has often involved a shallow and dangerous moralisation which, if generalised, transforms international law into an uncritical instrument for the foreign policy choices of those whom power and privilege has put into decision-making positions.     

The European Group on Ethics: Law,Politics and the Limits of Moral Integration in Europe

Abstract: The article offers a critical review of the institutional role of the European Group on Ethics in the EU, focusing on the appointment and composition of the group, the nature of its ‘opinions’, the way these are used by the Commission and other EU institutional actors, looking in particular at its controversial Opinion 22 on the ethical review and funding of stem cell research under the FP7 programme. The analysis highlights the methodological difficulties faced by the group in the grounding of its Opinions, the blurring of normative moral and legal orders, the risk of politicisation of ethics and the potential overreach by the EU of its competences in reliance on a group of this kind to reach unity on deeply contested moral questions in a culturally and morally diverse Europe.     

Ethics,Justice, and Suffering in the Thought of Levinas: The Problem of the Passage

Emmanuel Levinas is the philosopherof suffering as such: a suffering withoutregard for its causes and justifications thatis manifested to the I in its encounter,``beyond being', with the face of the Other. ``Ethics as first philosophy', however,subsequently passes over to justice in Levinas'thought, and this means that it passes througha violence that is very much in being. The movement from ethics to justice revealswhat this essay calls ``the problem of thepassage'. Using the thought of Levinas as itspoint of departure, the essay attempts touncover this problem in all of its profundity. A characteristic of all thinking in the Westernphilosophical tradition, the passage fromA to B is best understood as a mode ofthinking that clings to the passage assuch – in the form of ``A B' – as itsown special way of persisting in being. At thesame time, however, this means that ethicscannot support or comfort justice withoutdevouring itself, which is to say the self that both ethics and justice seem torequire.     

Face to Face with Child Abuse: Towards an Ethics of Listening

This paper is concerned with faces. It is concerned with the face of a sexually abused seven years old child -- with my face -- and with the marginalisation and violation of children’s own subjective experiences of abuse by the law. Drawing upon my own subjective experience of sexual abuse as a young child, silenced for twenty-five years, I interpret my own sexual abuse as a profound experience of ‘homelessness’. To be homeless is to lack a primal place in the world, to be in a permanent state of disorientation, to be displaced. To be homeless is not necessarily to be emotionally insecure, but to be voiceless. Accordingly, the subject of sexual abuse is an emotionally dislocated subject and I interpret my own abuse in terms of an enduring experience of the violation of place. In other words, I would argue that the physical act of sexual abuse is less important than the site or place of abuse. The significance of sexual abuse is that it reveals the homelessness of our own sojourn and the poverty of our own subjectivity. Given this interpretation, I find the 1989 UN Convention on the Rights of the Child problematic and I attempt to think child sexual abuse in ethical terms. Following Emmanuel Levinas, I present sexual abuse in terms of the ethical significance of the face-to-face relationship and I argue that rights-based advocacy must listen to what children say. It must think through what listening to that voice entails in ethical terms. This revised version was published online in July 2006 with corrections to the Cover Date.     

A Word About the Change of Title from Soviet Law and Government to Russian Politics and Law

With the final disintegration of the Soviet state in December 1991, the title Soviet Law and Government suddenly lost all meaning. After considering the unsatisfactory alternatives, we decided to rename the journal Russian Politics and Law. Yet, in every respect, the journal's coverage will remain much wider than the title implies.     

Particular Rights and Absolute Wrongs: Giorgio Agamben on Life and Politics

Over the past decade, as human rights discourses have increasingly served to legitimize state militarism, a growing number of thinkers have sought to engage critically with the human rights project and its anthropological foundations. Amongst these thinkers, Giorgio Agamben’s account of rights is possibly the most damning: human rights declarations, he argues, are biopolitical mechanisms that serve to inscribe life within the order of the nation state, and provide an earthly foundation for a sovereign power that is taking on a form redolent of the concentration camp. In this paper, I will examine Agamben’s account of human rights declarations, which he sees as central to the modern collapse of the distinction between life and politics that had typified classical politics. I will then turn to the critique of Agamben offered by Jacques Ranciere, who suggests that Agamben’s rejection of rights discourses is consequent to his adoption of Hannah Arendt’s belief that, in order to establish a realm of freedom, the political realm must be premised on the expulsion of natural life. In contrast to Ranciere, I will argue that far from sharing the position of those thinkers, like Arendt, who seek to respond to the modern erosion of the borders between politics and life by resurrecting earlier forms of separation, Agamben sees the collapse of this border as the condition of possibility of a new, non-juridical politics.

法律与逻辑——对法律与逻辑关系的一种全面解读

本文主要对法律与逻辑关系进行了全面的探讨。对逻辑学和法学之间交叉性的一些问题进行了回顾和总结。首先,探讨了什么是“法律逻辑”,并重点介绍了我国学者较陌生的“规范逻辑”,将两者进行了比较;其次,对法理学和逻辑学都关心的“法律推理”问题进行了探讨,比较了“法律推理”和“司法推理”两者的异同,以及两大法系“法律推理”的特点和差异;最后,对饱受批判的“法律形式主义”进行了研究,指出应当辩证地看待“法律形式主义”的功与过。最后,作者结合我国的实际,认为:我们不能借口反对“法律形式主义”而忽视和否定逻辑在法律领域中的作用。     

The Politics of Caesura: Giorgio Agamben on Language and the Law

The concept of division or caesura is central to the political and legal philosophy of Giorgio Agamben. This paper examines the different ways in which Agamben characterises the law in terms of caesura, and the manner in which this analysis of law is grounded in his analyses of language. I argue that there are two forms of legal division to be found in Agamben’s political analyses. The first is the division that occurs when the legal system produces determinate identities, such as those of nation, and socio-economic status. However, this form of division is itself predicated upon the division that delimits the law as such, the caesura between political and bare life. The way that Agamben sets up both of these political problems is deeply indebted to his analyses of the ‘presuppositional structure’ of metaphysical language—the fracture between signification and its excess.

Law and Politics Reconsidered: A New Constitutional History of Dred Scott

This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber's Dred Scott and the Problem of Constitutional Evil (2006) . It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney's Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis's celebrated dissent amounted to an unjudicial manipulation of the law, albeit for the higher purpose of striking at the political hegemony of the slaveholding class.
This essay is an abridgement of a longer work ( Leonard 2009 ) that offers, among other things, further analysis of the unjudicial character of Curtis's dissent.     

数字时代司法责任伦理之守正

在数字化浪潮下,司法活动呈现出去责任化的趋势,具体表现为责任感的缺失和责任推诿的加剧,因而亟待法学界对司法责任伦理予以革新。数字技术导致司法责任消解的机理是复杂和多元的,主要源于其兼具权威性与非权威性、确定性与不确定性、机械性与能动性等多重面孔。当前我国司法工作中的数字技术主要被应用于证据指引系统、风险评估工具、在线诉讼平台的开发等事项上,这些领域也是司法责任伦理冲突最为激烈的场域。数字时代应当坚守人本主义司法责任伦理,准确界定机器、技术人员、系统部署者与司法官的责任框架,在拥抱技术的同时树立科学的责任观,借助数字技术建立和完善符合时代特征的司法责任体系。     

荀子政治法律思想批判

荀子思想在有关性恶、法制方面颇有创意,其礼法融合、圣王之治诸内容成为中华法系之内核。然而论及法为工具、礼为根本的基础上演化出的“化性起伪”、“君上之势”、“圣王之治”等有关的政治法律思想时,其思路却相当幼稚,使中国的制度文化深陷专制之泥潭。     

法治视野下的行政权限争议及其解决——从“魔兽争霸”网游监管权之争谈起

现代行政权能随着经济与社会的发展而呈现不断扩大的趋势,但各类行政机关之间围绕行政权限发生的争议也随之日益增多。这不仅会导致行政效率的下降,而且会严重影响行政机关的威信并损害行政相对人的利益。＂魔兽争霸＂网游监管权之争即是其中典型。当然,目前已经存在一些解决权限争议的行政惯例,但行政惯例的作用有限,且有悖行政法治的基本理念。从行政法治的视角来看,有关部门应当进一步树立正确的行政执法理念,拓展行政权限争议解决渠道,完善相关争议解决制度,以促进行政权限争议解决过程的规范、效率和公正。     

From Operational Strategy to Serving the Customer: Technology and Ethics in Welfare Law

We previously wrote critically on the UK's welfare computerization programme of the 1980s and in this article we investigate the latest programme. Our argument is that welfare is being seen and is being understood in a technological context rather than a truly welfare one— that is, that the technology behind the computerization projects model views of how welfare recipients should be processed. In the 1980s, the computer model that was being applied was one of data processing (i.e. the 'business model'). In the 2000s, it is the model of computer-based communication (i.e. the 'Internet model'). But further, the new technological communication model is being effused with an ethical aspect— that those who do not communicate are lacking in socio-ethical responsibility to society, and are deemed not to be truly living up to their role as citizens.     

Consolations of the Law: Jurisprudence and the Constitution of Deliberative Politics

Initially, deliberative politics offers a failure of self-identity in that the literature dealing with it divides between its determinate elevation in terms of reason, and such, and its dissipation in response to the diversity of interests pressing on it. Next, drawing on the resources of poststructural jurisprudence and by way of locating law at a defining limit of deliberative politics, a similar divide is found in law itself. Then, more productively, law is shown to be constituted with-in that divide and to take characteristic content from it. Finally, the analysis is returned to deliberative politics where the divide found in the literature can now be seen as offering this politics possibilities of effective constitution and distinctive content.     

The Boycott of the Law and the Law of the Boycott: Law, Labour, and Politics in British Columbia

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.     

由渤海溢油事件引发的对海洋伦理建设的思考

目前,渤海湾溢油事件已成为公众关注的焦点,在整个事件中,事故责任方、执法部门和公众都对此次事件给予了不同的回应。造成此次事故的原因是多方面的,而海洋伦理的缺失是发生事故的关键。造成海洋伦理失范的原因既有价值观方面的原因,也有利益驱动、法律制度的缺失以及监管不到位等原因。因此,相应的海洋伦理建设需要从多方面着手,构建人海和谐的新海洋伦理观,以杜绝此类悲剧的再次发生。