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1.
Nathan Moore 《International Journal for the Semiotics of Law》2007,20(1):33-54
This paper is broadly concerned with Deleuze’s distinction between ‚la loi et les lois’ on the one hand, and jurisprudence
on the other. Jurisprudence is the␣creative action of legal practice, the process by which it is forced to think constructively
and anew. In such circumstances legal thought is akin to Deleuze’s concept of the event. I explore the distinction between
law and jurisprudence by way of Deleuze’s comments on control societies, arguing that, under control, law ceases to be a juridical
hierarchy conforming to disciplinary modes to become a regulatory practice of interminable modulation. In order to begin to
explore the relations and connections between law/jurisprudence and control, the paper will look to the semiotics of C.S.
Peirce (who influenced Deleuze’s work on cinema). In particular it will argue that control operates predominantly through
icons. As a consequence I argue that the proper ground of the sign, the event, is co-opted and, following from this, that
control functions through the confusing of sense and meaning.
Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray. 相似文献
2.
Mark Greenberg 《Law and Philosophy》2011,30(4):419-451
In this paper, I challenge an influential understanding of naturalization according to which work on traditional problems
in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V.
Quine famously proposed the ‘naturalization of epistemology’. In a prominent series of papers and a book, Brian Leiter has
raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine
Quine’s naturalization of epistemology and Leiter’s suggested parallel and argue that the parallel does not hold up. Even
granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching
in the legal case that is parallel to the philosophical overreaching of Cartesian foundationalism in epistemology. Moreover,
if we take seriously Leiter’s analogy, the upshot is almost the opposite of what Leiter suggests. The closest parallel in
the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. 相似文献
3.
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: |
4.
Jamie Murray 《International Journal for the Semiotics of Law》2006,19(2):127-151
This article orientates Deleuze & Guattari’s pragmatic semiotics towards a semiotics of law. This pragmatic semiotics is explored, and directly related to the theory of emergence and complexity that is also a key feature of Deleuze & Guattari’s work. It is suggested that the development of these aspects of Deleuze & Guattari’s thought in relation to law allows the contours of a noological legal theory to be sketched out. Noology is the study of images of thought, their emergence, their genealogy, and their creation. A first exploration of this noological legal theory is then carried out by the conceptualisation of nome law as the first emergence of law as theorised by Deleuze & Guattari in the plateau “1837: Of the Refrain” from “A Thousand Plateaus”. This is a conceptualisation of law’s emergence in a far-from-equilibrium palaeolithic hunter-gatherer pack, and contrasts to accounts of law’s origin in a founding violence or mythical contract. It is the ‘big bang’ of legality, and the opening up of a first image of legality, problematic of social organisation, and anthropomorphic knowledge space. 相似文献
5.
Ekow N. Yankah 《Criminal Law and Philosophy》2012,6(2):255-272
There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy,
particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing
it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein
develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same
strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral
ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both
in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can
be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes
little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime
back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and
likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career
criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal
punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating
the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what
is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political
theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and
strengthen civic society. 相似文献
6.
On Foreign Ground: Grand Narratives,Situated Specificities,and the Praxis of Critical Theory and Law
This article is the first part of a two-part project which is critical of trends in contemporary U.S. critical and interdisciplinary
legal scholarship and pedagogy. The larger project seeks to use this critique to model fruitful approaches to critical and
theoretical scholarship in law “beyond 2000”.The focus of this article’s criticism is the work of two significant scholars
of the second wave of what might broadly be called CLS scholarship, or more precisely critical, theoretical and interdisciplinary
legal scholarship: Jack Balk in and Pierre Schlag. Looking back to the work of Duncan Kennedy and Stanley Fish, respectively
progenitors of CLS and of theoretical interdisciplinary legal scholarship in the U.S., it is argued that the work of all four
is marked by two significant flaws: lack of self-reflexivity and a desire for a realm of theory which unselfconsciously adopts
the Cartesian split subject. The article then uses the work of Vicki Kirby and Pierre Bourdieu both to identify the tendencies
it critiques, and to suggest why the work of Terry Threadgold and Peter Goodrich might provide models for a praxis of critical
theory in law which is of particular use in the context of professional subject formation.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
7.
Marcel Danesi 《International Journal for the Semiotics of Law》2012,25(1):95-106
Work on the relation between figurative language and the law is a fairly recent trend, within legal discourse studies, linguistics,
and semiotics. The work in conceptual metaphor theory, for example, is starting to unpack the underlying metaphorical and
metonymic structure of legal language, producing some new and important insights into the nature of this language. Missing
from this emerging line of inquiry are the views of the Neapolitan philosopher Giambattista Vico, who was the first to understand
the power of figurative language in the creation of symbolic systems, like language and the law. His tripartite evolutionary
model of language shows that there is not one language of the law, but three “languages.” By integrating Vico’s model with
the work in conceptual metaphor theory it will be possible to penetrate the underlying conceptual structure of legal discourse
and thus lead to a more insightful science of this discourse. 相似文献
8.
Amy Swiffen 《Law and Critique》2010,21(1):39-51
The paper explores the role of Jacques Lacan’s Ethics of Psychoanalysis in debates in law and legal philosophy. It proceeds by considering a debate between Slavoj Žižek and Judith Butler over Lacan’s
concept of the real, which forms part of a larger discussion over the future of democracy and the rule of law (Butler et al. 2000). Through reference
to discussions of the relationship between law and ethics based on the Antigone tragedy, I argue that the difference between Žižek and Butler’s positions should not be understood in terms of the correctness of
their reading of Lacan, but in terms of the political commitments that inform their respective interpretations. I explain
the implications of this debate over one of Lacan’s most enigmatic concepts, thereby showing how Lacan’s theory can be used
to rethink the politics of law in light of the increased emphasis on ethics in contemporary legal debates. 相似文献
9.
Kwangbai Park 《Law and human behavior》2011,35(4):288-305
This article advances a method based on standard test theories and measurement models to determine correct verdicts for jury
trials, and to estimate juror accuracy, juror ability, and trial difficulty (and the relationships among them). With five
vignette cases and 1,318 juror eligible adults as the subjects, the model consistently identified verdicts that accorded with
the judge’s instructions on the law as correct. With the correct verdicts, the strength of the relationship between juror
accuracy and juror ability was found to be substantial. These findings suggest that the assumption of equivalent accuracy
of jurors underlying the Condorcet’s jury theorem (Condorcet, Essai sur l’Application de l’Analyse a la Probabilite des Decisions
Rendues a la Pluralite des Voix, Paris, 1785) may be untenable for general cases where jurors of diverse dispositions and abilities serve together; and that the role
of juror ability in determining the accuracy of legal decisions could be more significant than that of attitudes and values
because, unlike attitudes and values, ability could affect juror’s legal decisions regardless of the type of the case. 相似文献
10.
Dawn Watkins 《Liverpool Law Review》2011,32(2):113-133
The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship
between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship
and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd
White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through
the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a
group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling
seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the
project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings,
but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school. 相似文献
11.
黎四奇 《Frontiers of Law in China》2009,4(1):114-126
Though China’s present multi-level legal rules have provided necessary guidelines to assumption of losses from unauthorized
transactions in e-banking business, such problems as lack of cohesion among legal documents, unified processing of clients,
lack of clear principles of imputation, and disconnection between legal provisions and practices have in fact constrained
the in-depth development of e-banking business. Thus, correct philosophies shall be adhered to and carried out on the basis
of dialectic criticism and meanwhile, the specific institutional designs shall be further improved.
Li Siqi, Ph.D, is a professor of Law at Hunan University. Prof. Li, specializing in financial law, has released 60 research
articles or so. He is of the view that the practicability of law has made it certain that study on law should stick to the
society-to-society rule, though scholars relatively emphasize rule-styled legal research and holds that financial law is composed
of public law and private law. Moreover, the financial sustainable economic development means that the tenet of financial
law centers on safety, but not absolutely on profit; and the relation of financial and legal innovation should not be considered
only in the framework of financial law. The propensity of interest pursuit of capital will not only unduly affect assessor’s
judgment, but it should be under the legal freedom. Only being coupled with abstract theory of freedom doctrine, China’s financial
legal innovation may be clear. Thus, the legal research should not only stick to conventional legal value, but extend to the
financial safety. 相似文献
12.
Emilios Christodoulidis 《Law and Critique》2009,20(1):3-26
The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in
political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers
as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress
to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy
of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’,
or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task
facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom
(the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of
law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon
of communicative exchange. 相似文献
13.
Ayşegül Sabuktay 《Crime, Law and Social Change》2009,51(5):511-530
This article is concerned with deviations from legal functioning of the modern state, which is supposedly grounded on legal
structure, but may conduct extra-legal activities. In this article, special focus is directed to certain extra-legal activities
of the following modern states: the Susurluk Affair in Turkey, the Iran-Contra Affairs of the USA, GAL in Spain, the Gibraltar
Killings committed by UK soldiers, and enforced disappearances in Argentina. These cases are interpreted from the points of
view of Max Weber’s and Jürgen Habermas’s theories of the rule of law, Hans Kelsen’s legal positivism, Carl Schmitt’s theories
of the political and sovereignty, and Austin Turk’s theory of political criminality. Our purpose, then, is to evaluate these
theories vis-à-vis the cases of extra-legal activities of the state.
相似文献
Ayşegül SabuktayEmail: |
14.
Paula Gaido 《Law and Philosophy》2011,30(6):685-698
This article seeks to clarify Joseph Raz’s contention that the task of the legal theorist is to explain the nature of law,
rather than the concept of law. For Raz, to explain the nature of law is to explain the necessary properties that constitute
it, those which if absent law would cease to be what it is. The first issue arises regarding his ambiguous usage of the expression
“necessary property”. Concurrently Raz affirms that the legal theorist has the following tasks: (a) explain the essential
properties of that which the concept of law refers to, which exists independently from any concept of law; (b) explain the
essential properties of law given our concept of law. After trying to dissolve the ambiguity of Raz’s argument, I conclude
that based on his methodological commitments the only possible task for a legal philosopher would be conceptual analysis,
understood as the task of explaining our concept of law. 相似文献
15.
Elina Staikou 《International Journal for the Semiotics of Law》2010,23(3):283-298
The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance
of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as
the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions,
for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference),
philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend”
in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right
otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships”
at the origin of all law and socius. 相似文献
16.
Jacques de Ville 《International Journal for the Semiotics of Law》2010,23(3):239-242
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. 相似文献
17.
Markus Gunneflo 《Law and Critique》2012,23(1):67-82
The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant
amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an
attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921,
‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities
of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that
the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the
interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different
way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form
of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is
considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against
the kind of legal violence of which the targeted killing judgment is exemplary. 相似文献
18.
Narnia Bohler-Muller 《Law and Critique》2007,18(2):253-274
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’.
相似文献
Narnia Bohler-MullerEmail: |
19.
Andrew Halpin 《European Journal of Law and Economics》2011,31(1):91-109
In this contribution I focus on a particular characteristic of Ronald Coase’s work, as exhibited in “The Problem of Social
Cost”: his ability to force upon his audience a clearer grasp of reality than they previously held. More specifically, I aim
to consider to what extent the “blackboard economics” that Coase himself derided have been avoided in a Coasean world, taking
that expression to refer in some sense to a world where Coasean insights can flourish, and as such to be a world not simply
of Coase’s own making but a world that has been developed by others in applying the Coase Theorem. My strategy is to interrogate
the nature of a Coasean world through developing a framework that can look more closely at different approaches to theoretical
modelling, the different worlds involved in these models, and the different positive and normative applications that can be
derived from them. I shall further consider whether the understanding of the law that inhabits a Coasean world reflects a
“real-world” legal environment. Finally, I shall seek to assess the impact of Coase’s work on our understanding of the relationship
between law and economics, in our world. 相似文献
20.
This article focuses on why and how law was mobilized to regulate agricultural pesticide abuse in Texas during the 1980s.
Pesticide abuse is defined as a significant, violent corporate crime worthy of additional analysis. The dynamic forces leading
to development of reactive and proactive mobilization efforts are examined. Black’s propositions that proactive law becomes
the major form of mobilization in regard to generalized social needs, in conflict situations, and in protection of society’s
lower strata are confirmed. Restraints and limits on legal mobilization are discussed. 相似文献