Laws of Empire

The central characters in Hardt and Negri'sinfluential Empire are a globalized``empire' and the revolutionary ``multitude'opposing yet constituting it. Althoughinstantiated as substantial and achieved, whenclosely observed, Empire and the multitudebecome insubstantial and unachieved. Thesecontrary qualities can be combined in law. Somesuch resolution is signalled by the largeinitial emphasis which the work places on lawas the existential expression of Empire. Yetlaw plays at best a peripheral and fitful partin the rest of Empire. There is a blockon the uninhibited resort to a law which wouldcombine the contrary qualities and this blockis the monism infusing the multitude and thencethe Empire it constitutes. Nonetheless, thatlaw is sufficiently present in the work, notonly to counter and substitute for itsimpossible monism, but also to accentuate thesignificance of law in modern arrogations ofthe ``global' – as the little exercise whichnow follows will reveal.     

Enacting the “Incomprehensible China”: Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law

The great ambition of Japanese colonialism, from the time of its debut at the end of the nineteenth century, was the reformulation of Chinese law and politics. One of the most extraordinary examples of this ambition is The Administrative Law of the Qing Empire [Shinkoku Gyōseihō], a monumental enterprise undertaken by the Japanese colonial government in Taiwan intended not only to facilitate Japanese colonial administration of Taiwan but also to reorder the entire politico‐juridical order of China along the lines of modern rational law. This article examines the legal analysis embraced in The Administrative Law of the Qing Empire and recounts its attempt to reconstruct the Qing's “political law” (seihō) by a strange, ambiguous, and hybrid resort to “authenticity.” The strangeness of this Japanese colonial production comes from Japan's dual position as both colonizer of Taiwan and simultaneously itself colonized by “modern European jurisprudence”(kinsei hōri). In uncovering the effects of modern European jurisprudence on the Japanese enterprise, we will discover Japan's pursuit of its own cultural subjectivity embedded in The Administrative Law of the Qing Empire, epitomizing the campaign of national identities observable in the process of East Asian legal modernization.     

On Her Majesty's Commercial Service: Bribery,Public Officials and the UK Intelligence Services

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Compleat Contemplators and Pertinacious Schismaticks: Speculations on the Clash of Two Imaginary Sovereignties at Dale Farm and Meriden (UK)

In this essay two photographs taken during the events (2011) at Dale Farm and at Meriden—both involving issues of gypsy and traveller settlement in rural areas—are analysed and interpreted in some depth. Use is thereby made of Izaak Walton’s The Compleat Angler (1653). This book, as is argued in this contribution, includes, in embryonic form, a whole imaginary of forms of sovereignty which, it could be said, is still to a significant extent structuring conflicts between gypsy and traveller communities on the one hand, and rural residents on the other. The exploration of Walton’s imaginary in which supposed compleat contemplators are pitched against intransigent, dogmatic, pertinacious schismaticks, enables us to tease out images of nomadism and sovereignty and allows us to argue how the clash of imaginary sovereignties both at Dale Farm and at Meriden is, at the core, a clash of irreconcilable forms of life which, each, rest upon what existentialists would call an original, radical choice. We conclude with some notes on the need to acknowledge but also to interrogate, in and during conflicts between gypsies and travellers and rural residents, the radical nature of the existential choices that underpin such conflicts. Without any such acknowledgement, and without any meta-communicative interrogation of the choices that underpin imaginary forms of life, one may not hope to be able bridge the chasm between radically chosen, diametrically opposed forms of life.     

Imagining Human Rights: Utopia or Ideology?

Human rights are both a means for the ideological justification of the status quo and for its utopian subversion. In order to account for this paradox we need to consider the role that our capacity to form images plays in human rights discourses. I will first discuss how best to conceptualise the capacity to produce images, which is the focus of this paper. In order to go beyond the impasse generated by philosophical approaches to imagination as an individual faculty, and by sociological approaches to the imaginary understood as a social context, I propose to use the category of the ‘imaginal’, understood simply as that which is made of images and can therefore be both the product of an individual faculty and a social context. Second, I show how the imaginal enters the three major strategies of justifications of human rights, when we think of them as ‘human’, as ‘rights’ and as ‘rational’. Finally, I will show that the imaginal is also the force that compels us to enforce human rights, to put ourselves in the shoes of others and imagine a world that is different from the one in which we are currently living.     

Constitutionalism,populism, and the imaginary of the authentic polity: a socio-legal analysis of European public spheres and constitutional demoicratization

The sociology of constitutionalism emphasizes the duality of constitutions as both power limitations and power enhancements. Following the socio-legal perspective, this article focuses on the constitutional imaginary of the public sphere and distinguishes it from the imaginary of the authentic polity, in which the constituent power of the people is protected against the corrupting effect of representative institutions and technocratic bodies. The promise of authenticity is behind the recent resurgence of populism and the constitution of what Zygmunt Bauman describes as ‘explosive communities’. The final part of the article focuses on the transnational politics and law of the European Union (EU) and discusses its possible responses to the imaginaries of constitutional populism – most notably, the emergence of European public spheres and demoicracy. Without the constitutional imaginaries of an anti-explosive transnational and democratically constituted community, further enhancement of the power of EU institutions will always lead to populist backlash at the national and local levels of its member states.     

Toward a New Legal History of Capitalism and Unfree Labor: Law,Slavery, and Emancipation in the American Marketplace

New work on the “history of capitalism” reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson's book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom makes this argument with force, utilizing the concept of “slave racial capitalism” to suggest how race‐based slavery constituted a necessary component of early American economic expansion. Using Johnson's framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely “slave racial capitalist” regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.     

``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.     

Authority and Authorisation

The core of Kelsen's strong views onauthority emerging from his concept of law is this:Authority of law, authority in law andauthority about law are one and the same thing.The conceptual problems suggested by these threedifferent prepositions must and can be solved in onefell swoop. Kelsen's core view will first be probed bygiving an account of what is a promising approachoffered in a fairly early text, Das Problem derSouveränität, namely, what it means to`set' or `posit' the law. Inevitably, this leadsto an interpretation of the Grundnorm, one thatintends to accommodate as many Kelsenian emphases aspossible. The Grundnorm will be presented as ashield against hypostatising authority. From there,some characteristics will be inferred of the type ofauthority that arises from Kelsen's account of legalknowledge, which will be called, somewhat polemically,authority without an author.     

Review essay / dworkin's “full political theory of law”

Ronald Dworkin, Law's Empire Cambridge: The Belknap Press of Harvard University Press, 1986, xiii + 470 pp.     

Agenda-setting in the German Bundestag: origins and consequences of party dominance

The procedure for setting the agenda in the German Parliament originated in the middle of the nineteenth century in the Prussian Chamber of Deputies in which an informal committee arranged the agenda by an inter-party consensus. This party-dominated procedure, continued in the Reichstag of the Empire and the Weimar Republic, was institutionalised in the German Bundestag in the second half of the twentieth century. It takes account of the central role of the Fraktionen in the Bundestag and of the specialisation and division of labour that developed within them. The procedure is designed to achieve consensus among all parties and to distribute agenda-setting power between parliament and cabinet. Though remarkably decentralised, it has predictable outcomes that contribute to the impression that the Bundestag is a stage-managed parliament.     

Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

Hannah Arendt's Moral Ontology: Comments on David Luban's Arendt on the Crime of Crimes

David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality—or realities—that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution one cannot escape the framing relevance of the “political” —an idea that is also present in her imaginary condemnation speech of Eichmann—Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”     

Imperialism, crime and criminology: Towards the decolonisation of criminology

Cohen (1988) once concluded that it is ironic that critics in the West are identifying forms of social control that are more traditional in the Third World as better alternatives to the neo–classical and positivistic repressive traditions in the West while some suggest that what they found malignant in the West should be exported to the Third World as benign. In this paper, I am going beyond Western crime control models to examine the character of criminology itself as an imperialist science for the control of others.     

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.     

The Pure Theory of Law and the Fragile New Democracies of the Developing World

Political and socio‐economic distress invariably accompanies democratic orders in Nigeria. Usually, the people turn to the military, justifying this by reference to a whimsically transferable peoples’ will as Grundnorm (a basic norm, order or rule that forms an underlying basis for the legal system). However, though ‘We the People’ is contained in the Preamble, it is dangerous to so situate the Grundnorm in the will of the people other than that will expressed by them in the Constitution. That said, the Grundnorm is still, for juristic and jurisprudential reasons, to be found in the Preamble.

For new democracies, the Nigerian example illustrates how not to employ the Grundnorm theory if democracy is to survive.     

Representing Theory and Theorising in Criminal Justice Studies: Practising Theory Considered

The author considers the role and place of theory in criminal justice studies. The argument is that the operation and interrogation of fundamental categories is integral to social scientific enquiry and if criminal justice studies is to resist a technocratic “protective service” orientation it must promote theorising and thinking conceptually via the texts which represent the discipline to undergraduates. Although theory is situated at the core of social science curricula, there is little or no agreement on its role or place in research and pedagogy. The dominant understanding of theory within criminal justice studies (including its sociological and criminological incarnation) is that it is something to be referred to. What is seldom emphasised in theory or methods texts is the practice of theorising. Texts that are designed to be the student’s first contact with the field of criminal justice studies, and which reflect broader attitudes toward social enquiry, seldom consider the methodological and pedagogical issues related to the production and role of analytic concepts and do not present social science as an imaginative or reflexive practice. Drawing on critical realist metatheory, this paper advances a distinction between social and sociological problems and social science and protective service toward illustrating that a social science approach to the study of criminal justice demands the operation and interrogation of analytic categories and explicit consideration of issues of epistemology and ontology. Works which seek to avoid this serve only to foster a passive rather than active engagement with their subject matter.     

Miscarriage of Justice? Postcolonial Reflections on the ‘Trial’ of the Maharajah of Baroda, 1875

This article revisits the Baroda Incident 1875, providing a detailed examination of the Enquiry or ‹trial’ for the first time, and locating that examination in the wider socio-cultural context of the nineteenth century British Empire (especially the Raj) and the exporting of the ‹British’/English legal culture to the Empire. The implications of the establishing of British principles of justice, including the value placed upon Indian-generated evidence and testimony by the courts, are explored, in order to establish the Baroda Incident as a significant miscarriage of justice. Using historical methodologies as well as postcolonial insights, it demonstrates that the concepts of justice on which the British prided themselves were intrinsincally racialised as well as gendered, with profound modern resonances. Dr. Judith Rowbotham is a Reader, School of Arts and Humanities, Nottingham Trent University.     

Tarka as Cognitive Validator

The meaning of the term ‘tarka’ is not clear in the modern literature on Classical Indian Philosophy. This paper will review different modern readings of this term and try to show that what the Nyāyasūtra and its classical commentaries called a ‘tarka’ should be understood as the following: a tarka is a cognitive act that validates a content (of a doubt or a cognition or a speech-act) by demonstrating its logical fitness or invalidates a content by demonstrating its logical unfitness. A tarka can act as a metatheory too. Generating certainty is, according to the Classical Nyāya, a job assigned to an epistemic instrument (pramāṇa). It fails to do so when there arises a doubt regarding it. The moment a tarka dispels the doubt, the epistemic instrument generates certainty. Tarkas of different types will be exemplified by critically analyzing Gaṅgeśa’s applications of tarka in his magnum opus Tattvacintāmaṇi. These examples will clarify the definition of tarka formulated in this paper.     

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.