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1.
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
2.
Paul Johnson 《Law and Critique》2012,23(1):43-66
This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had
been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes
an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary
European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue
that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence
in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach,
strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction
of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its
evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding
of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human
Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where
non-heterosexuals continue to face discrimination in contemporary Europe. 相似文献
3.
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
4.
5.
Jacques de Ville 《Law and Critique》2010,21(1):17-37
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. 相似文献
6.
Andreja Zevnik 《Law and Critique》2011,22(2):155-169
The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity
of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale
for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge
for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say,
of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from
it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions
of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations
that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places;
secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion
of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s
account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove
particularly useful here. 相似文献
7.
Malcolm Voyce 《Law and Critique》2010,21(2):183-198
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. 相似文献
8.
Robert Eaglestone 《Law and Critique》2009,20(3):271-280
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’. 相似文献
9.
Jessica Whyte 《Law and Critique》2009,20(3):309-324
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. 相似文献
10.
The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies
the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical
analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’
arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist
economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis
for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain
segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their
colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth.
In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies,
including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to
obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression. 相似文献
11.
Linnell Secomb 《International Journal for the Semiotics of Law》2010,23(3):299-313
In ‘Force of law’ Derrida appears to suggest that emancipatory ideals and human rights have a continuing relevance. This may
seem a surprising proposition from a theorist often interpreted as critical of humanist and Enlightenment principles. This
paper argues, however, that Derrida does not reject, outright, humanist, Enlightenment and emancipatory strategies but instead
deconstructs these in order to propose alternate ‘ethical’ and ‘political’ possibilities. Focusing on ‘The ends of man’, ‘Force
of law’ and ‘Autoimmunity’ this paper argues that Derrida does not advocate an anti-humanism but instead gestures toward an
alternate unconditional hospitality, responsibility, friendship, justice and democracy-to-come, displacing the anthropomorphism
of humanism and advocating instead an openness to a heterogeneous otherness. 相似文献
12.
13.
In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between
the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving
it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective
justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective
justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to
explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that
‘corrective justice’ cannot be a complete answer to the question of what tort law is for. 相似文献
14.
Why Emotions Matter: Expectancy Violation and Affective Response Mediate the Emotional Victim Effect
The mechanisms behind the ‘emotional victim effect’ (i.e., that the emotionality of a rape victim’s demeanor affects perceived
credibility) are relatively unexplored. In this article, a previously neglected mechanism—observers’ affective response to
the victim—is proposed as an alternative to the traditional expectancy-violation account. The emotional victim effect was
replicated in an experiment with a sample of police trainees (N = 189), and cognitive load was found to increase the magnitude of the effect. Importantly, both compassionate affective response
and expectancy violation actively mediated the emotional victim effect when the other mechanism was controlled for. These
findings extend previous research on credibility judgments by introducing a ‘hot’ cognitive component in the judgment process.
Theoretical and practical implications are discussed. 相似文献
15.
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. 相似文献
16.
Daniel Raveh 《Journal of Indian Philosophy》2008,36(2):319-333
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). 相似文献
17.
Massimo Renzo 《Criminal Law and Philosophy》2010,4(3):267-282
According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they
are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread
or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international
community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that
crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate
account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against
humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a
harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate
theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of
crime and criminal law, one based on the notion of accountability. 相似文献
18.
Jacques De Ville 《Law and Critique》2008,19(2):87-114
This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation,
speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present
context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s
thinking in the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of
ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in
Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications
for constitutional interpretation.
相似文献
Jacques De VilleEmail: |
19.
Is it Important to Examine Crime Trends at a Local “Micro” Level?: A Longitudinal Analysis of Street to Street Variability in Crime Trajectories 总被引:3,自引:0,他引:3
Elizabeth R. Groff David Weisburd Sue-Ming Yang 《Journal of Quantitative Criminology》2010,26(1):7-32
Over the last 40 years, the question of how crime varies across places has gotten greater attention. At the same time, as
data and computing power have increased, the definition of a ‘place’ has shifted farther down the geographic cone of resolution.
This has led many researchers to consider places as small as single addresses, group of addresses, face blocks or street blocks.
Both cross-sectional and longitudinal studies of the spatial distribution of crime have consistently found crime is strongly
concentrated at a small group of ‘micro’ places. Recent longitudinal studies have also revealed crime concentration across
micro places is relatively stable over time. A major question that has not been answered in prior research is the degree of
block to block variability at this local ‘micro’ level for all crime. To answer this question, we examine both temporal and
spatial variation in crime across street blocks in the city of Seattle Washington. This is accomplished by applying trajectory
analysis to establish groups of places that follow similar crime trajectories over 16 years. Then, using quantitative spatial
statistics, we establish whether streets having the same temporal trajectory are collocated spatially or whether there is
street to street variation in the temporal patterns of crime. In a surprising number of cases we find that individual street
segments have trajectories which are unrelated to their immediately adjacent streets. This finding of heterogeneity suggests
it may be particularly important to examine crime trends at very local geographic levels. At a policy level, our research
reinforces the importance of initiatives like ‘hot spots policing’ which address specific streets within relatively small
areas. 相似文献
20.