Paradise Lost...: The Meaning of Modernity and the Antinomy of the Law

This essay argues for the centrality of the study of paradoxes of particularity and universality in the interface between law and politics in modernity. Particularly, in order to understand the process of constitution of a political collective and the role of supernumerary elements that re-enter a constituted legal-political system. After introducing the question of paradoxes or antinomies in the relation between law and politics in modernity, the essay engages with current understandings of exceptionalism and the possibility of a leftist or ‘real’ suspension of the law. In order to do so, this essay makes full use of certain theoretical tools developed in anthropological accounts of political and legal processes, and current French-oriented and Latin American political philosophy.     

以“中国领土和主权完整”说辞替代“一中原则”可行性之探讨

大陆方面与台北当局固然在宪政与法理上均主张两岸之间只有一个国家的存在,但是台北在过去十多年始终对北京所提出的“一中原则”感到顾虑重重。未来双方展开政治接触之时,大陆可不可以避免使用台湾方面感到困扰的“一中原则”,与台北共同使用“中国领土主权完整”这一概念,以体现双方的有重叠与契合的精神与立场？从两岸双方发表过的重要文件与谈话,以及双方学界论辩的结果,证明用“中国领土和主权完整”的说辞作为双方都便于接受的“一中原则”表述的替代性方案,在理论上应是可以被接受的,而且双方更容易在政治上达成共识。     

司法审查的第三条道路——弱司法审查的兴起、发展及其中国意义

如何处理议会与法院关系,进而很好地保护人权,对世界各国来说都是一个重要且棘手的问题。长期以来人们只能在威斯敏斯特的议会至上和美国式司法审查模式之间做出非此即彼的选择。然而,1980年代之后,一种允许法院通过司法审查积极保护人权,但同时又尊重民主所要求的人民自我统治的新的司法审查模式,即弱司法审查模式正在兴起。梳理此一模式的制度发展脉络和相关学术争论,客观评价此种司法审查模式对“议会／法院”关系的处理以及人权的保护所可能带来的影响,并在此基础之上反思此种模式对于中国可能的意义,毫无疑问,是十分重要的。     

Rethinking global governance: a China model in the making?

This paper examines Chinese perspectives on global governance, an area in which China has increased substantially the depth and breadth of its participation. The paper attempts to draw a mainstream perspective to inform our understanding of some key aspects of China's foreign policy. It demonstrates that while China's statist preference appeals to some Third World countries, such a preference leads the country to clash with the West over how to tackle global issues collectively, particularly over humanitarian intervention. While the Chinese perspective is in the process of evolving and far from reaching maturity, it is questionable whether the global community led by the West would find the Westphalian practice that China embraces admirable.     

我国域外送达机制的困境与选择

对近年来我国域外送达的非常态事件以及调研数据的分析表明 ,先入为主的定性和效率的低下是我国目前域外送达中的诸种问题的症结所在。改变现状以提高送达效率的基本思路是观念的更新和完善有关制度。     

The Unmasking of the Metaphysicians or the Deconstructing of Metaphysics?

Abstract

This essay argues that Popper's work, seen from the vantage point of increasing historical distance, can be viewed as the first attempt to understand the grand narrative as the adjustment of metaphysics to the modern world. When viewed from such a distance enduring questions regarding holism, identity, essentialism, and truth can once again be thrown into relief, together with the pressing issues of the paradox of freedom and sovereignty.     

The Responsibility to Protect and the End of the Western Century

Abstract

It is argued here that the ‘Responsibility to Protect’ (R2P) has to be placed in the context of the failure to develop new international norms around questions of intervention in the 1990s. Far from embodying global consensus, R2P represents the failure of the West to impose new global norms. This lack of consensus was revealed most dramatically by the disagreements among Western states themselves before the 2003 Iraq invasion. It is argued that many of the principles of the War on Terror (such as the commitment to pre-emptive action) are substantively similar to those of R2P. The essay concludes by considering R2P in light of the decline of the West.     

The Sovereignty Dodge and the Responsibility to Control: Should the US Do What Pakistan Won't Do?1

The killing of Osama bin Laden in Pakistan was justified by the Obama administration as an act of self-defense. Proponents of an expanded notion of self-defense argue that sovereignty implies responsibility not only for the protection of human rights, but also for the provision of public goods more generally, including effective territorial control. States which are unable to control their territory frequently become safe havens for militants who threaten the security of other states. Pakistan is a paradigmatic case of a ‘sovereignty dodge’ who, in the eyes of the United States, has forfeited its sovereign right to non-interference because of its failure to live up to its responsibility to control. In this article I explore the legality of US strikes against militant targets in Pakistan. I conclude that while international jurisprudence continues to adhere to a conservative reading of the rules on the use of force, states themselves have interpreted the law on self-defense more broadly, evincing a desire to keep the rules as indeterminate as possible.     

Recognition as if sovereigns? A procedural understanding of indigenous self-determination

In the last two decades we have witnessed a growing global acknowledgement of indigenous rights – manifested in the 2007 UN Declaration on the Rights of Indigenous Peoples – challenging the traditional nation-state-centred understanding of political rights and democracy. In this paper, the author argues that indigenous self-determination is to be understood as a way to level the balance of power between indigenous peoples and the nation-states in which they live. Without a solid legal foundation for indigenous peoples to define self-determination in their own languages and to negotiate the conditions of their relation with the nation-states on their own terms, the colonial past (and present) of violent conquest and domination might continue. Indigenous peoples' right to self-determination ought in this perspective to imply recognition of indigenous peoples as having a standing equal to nation-states, i.e. as if they were sovereigns. What self-determination means in political practice would thus be the outcome of negotiations between two (or more) equal political entities. In this way, the right to self-determination has to be interpreted procedurally rather than substantially.     

Thinking citizenship and its constitutive subject: interrogating the 2004 Irish citizenship referendum debate

This article considers a referendum which was held in the Republic of Ireland in 2004 involving a proposal to qualify the existing universal constitutional entitlement to birthright citizenship. Existing analysis of this referendum reflects dominant trends in citizenship scholarship. It does so by framing the issue in terms of two opposing perspectives – one particularistic (exclusive) and one universalistic (inclusive) – and positing the question of the ‘politics’ of citizenship as a trade-off between these diverging models. This article argues, however, that Rob (R.B.J.) Walker's notion of the constituent subject of (sovereign) politics challenges this dualistic framework as the necessary starting point for discussions about citizenship. It does so by problematizing the premise upon which it is based which is the taken-for-granted autonomous existence of persons (individuals) who are understood to be connected to, but ultimately separate from, ‘the state.’ This article concludes with reflections on what an alternative framework for exploring citizenship (based specifically on a historicization of subjectivity in relation to sovereignty) might look like. It suggests that this provides us with a different starting point to the prevalent form of a timeless dialectic of inclusion and exclusion, particularism and universalism, polis and cosmopolis currently determined by the boundaries of the Irish state.