Just So: “The Law Which Governs Australia is Australian Law”

This essay provides a gloss on the relationship between the common law and the ‘law of the land’. It does so by turning attention to the technologies and identifications that continue to give Australian jurisdiction its place. These relations repeat the long pattern of the common law ordering of colonisation. They also provide the governmental conditions of legal responsibility for settlement. This revised version was published online in July 2006 with corrections to the Cover Date.     

Majesty and mercy: undocumented immigration,deferred removal action,and the spectacle of sovereign exceptionalism

The article casts a critical gaze at the Obama Administration’s decision – articulated in a series of bureaucratic memos and directives issued June 2010–July 2012 – to exercise prosecutorial discretion in processing 300,000 undocumented immigrants slated for deportation from the US Commentators on the partisan left hailed the Administration’s decision as a pragmatic and humane effort to implement federal immigration laws. Commentators on the partisan right argued that prosecutorial discretion constituted an effective – and illegal – abdication of the president’s mandate to execute the letter of immigration law. This article positions the decision, instead, at the nexus of sovereign exceptionalism and political community-building and argues that deferred action constitutes the highest and most controversial deployment of the “majesty” of territorial state sovereignty: the process of selectively meting out “mercy” to those who approximate the set of expectations bound up in the notion of the “good” American. Petitioners for deferred action status, I argue, function, ideologically, to construct the undocumented petitioner’s liminality as help and reify the sovereign power’s exceptionalism. The discussion, in turn, invites us to revisit Schmittian and Agambenian conceptions of sovereign exceptionalism and rethink the work sovereign prerogative does in the everyday.     

略论施米特的宪法思想

施米特的宪法政治思想对后世产生了极大的影响,也渗透在中国的1982年宪法里。浓郁的政治色彩成为他的宪法思想中的一大特色,我们应辩证去看待它,尽量吸收借鉴它对我国现代法治有益的思想。     

Between two rights: Julien Freund and the origins of political realism in France

Julien Freund (1921–93) was a French sociologist and political theorist who taught at the University of Strasbourg in the 1960s and 1970s. Although he is the author of over two dozen books, Freund remained throughout his lifetime something of a marginal figure in his own country. Yet, strangely, Freund is now receiving more scholarly attention in France than ever before. The question is why? This paper attempts to provide an answer by looking at Freund's attempt to establish an alternative intellectual canon in France that was heavily indebted to the German tradition of political realism. The story begins with Freund's early relationship with Raymond Aron, and suggests, perhaps provocatively, that Freund is responsible for luring Aron back into his studies on Max Weber dating from the 1930s. It then moves on to explore Freund's relationship with Carl Schmitt. Freund became Schmitt's closest French friend and, for forty years, exhibited a veritable obsession with disseminating Schmitt's work in France. Finally, it suggests that recent attempts by those who wish to place Freund within a current tradition of French liberalism are mistaken. Instead Freund must be placed within a German Neue Rechte context, and specifically his desire to introduce the German tradition of political realism into France. In the end the article argues that the French Nouvelle Droite—with its stress on the cultural and ethnic foundations of the nation-state—pushed Freund's political thought in a decidedly anti-liberal and seemingly pseudo-fascist direction.     

Observing the Breach: Dignity and the Limits of Political Theology

This paper draws together a number of debates concerning ‘dignity’. It points to reasons for the endurance of the concept of dignity, and thereby indicates some limits to analysis via political theology. Dignity is incongruous in law and ethics: it is naturalised theology illicitly augmenting liberal and postmodern theory. At the same time, phenomenologies of dignity suggest that it is something ‘observed in the breach’ when we encounter the diminution of the individual. Political theology would encourage us to treat this appearance of diminution as a point of aporia in ethics and closure in law, ostensibly articulating the loss of ‘humanity’ but in fact revealing nothing more than the reduction of all norms to sovereign decision. However, deconstructive counter-arguments to political theology are possible. First, the persistence of dignity hinges upon perception of loss rather than on any distinctive norms. Second, language games invoking dignity should be seen as performing solidarity. Third, there is a productive instability in the languages of dignity and human dignity. Together, these qualities mean that dignity, despite its theological genealogy, can justifiably play some role in both liberal and postmodern ethics.