Before Identity, Gender and Human Rights

This is the beginning of an exploration of before as the thesis ‘before’ (temporally) and ‘be-fore’ (spatially) difference. Before denotes the origin and the desired destination. Before (in the double sense of ‘before’ and ‚be-in-the-fore’) opens up a space of pre-difference, of origin and of forgotten memory, as well as a space of desire, objective, illusion of teleology, unity, completion. Applied to the two domains of Human Rights and Sex/Gender, the space of ‘before’ yields two slightly different vistas: in human rights, a premodern, functionally undifferentiated society which had to invent human rights as its safeguards of functional differentiation. In Sex/Gender, ‘before’ brings a self-referential construction: that of ipseity, as the form of identity beyond comparison that does not play with id but with ipsum. Ipseity is inoperable but not useless. It is inoperable because it cannot be observed from anywhere without suffering rupture. It is not useless because it offers a ground for the reconceptualisation of difference, both through awe and desire.     

结构功能主义、法律进化论和法律的自动生成理论--卢曼的法社会学思想评述

卢曼是一位独具匠心的社会法学家。他在帕森斯的社会结构主义思想和管理理论的双重影响下 ,系统地提出了结构功能主义 ,法律进化论和法律的自动生成理论 ,揭示了法律与社会的密切联系和法律发展所具有的相对独立性。这些思想对我国的法学研究和法制建设都极具启发意义。     

Future Uncertainty as a Challenge to Law's Programmes: The Dilemma of Parental Disputes

The article poses the problem of the need for judges to make 'right' decisions. It then describes how judges have attempted to meet this requirement in difficult cases concerning parental disputes over contact with children where there have been allegations of domestic violence. Applying Luhmann's concepts of the legal system, law's function, law's coding and law's programmes (Das Recht der Gesellschaft (Society's Law) 1997), offers a very different perspective on the issue to that of the judiciary or legal commentators who tend to see the issue of the law, determining, with expert help, what is best for the child. Law's function of stabilizing expectations over time obliges it to deal with all matters that come before the courts through the application of 'conditional programmes' and prevents it from applying the 'purpose oriented programmes' of politics and those who see the issue in terms of ideological conflict.     

Thinking the law with and against Luhmann,Legendre, Agamben

After the failure of all enterprises in legal ontology, and after the success of all enterprises in legal system internal theodicy, the field of legal theory is now open to receive a range of more complex, less universalist, less politicised, but also more personally shaped, more fragile suggestions. My article focusses on three such ways of dealing with the law question: the work of Pierre Legendre, a French psychoanalyst and specialist of the history of administrative law and Christian religion, the work of Niklas Luhmann, the recently deceased founder of a new German schoolof sociological systems theory, and that of Giorgio Agamben, an Italian philosopher whose re-opening of the discussion on the Benjaminian notion of bare life and its relationship to law has provoked worldwide attention. This revised version was published online in July 2006 with corrections to the Cover Date.     

"软法"及其概念之证成——以公共治理为背景

"软法"是缺乏"国家法"的拘束力,但却意图产生一定的规范效果的成文规范.复杂、多元和速变的当代社会,要求政府转变角色:从"管制的主导者"走向"公共治理的辅助者"."软法"是公共治理的主要凭借."软法"概念是可以成立的:一方面,卢曼的系统论可以为它提供理论基础;另一方面,它也可以被看成是"国家法"概念的类比用法.     

The Silence of the Sirens

Risk is a projection of a specific temporality performed by the observer. However, this projection is doomed to impossibility because of the prohibiting problems of time, causality, subjectivity and relativity of risk. The observer is left only with a castrated projection that defies the role of science as a pedestal for the projection and institutes negation as its driving force. This projection is materialised within the Law in the form of the Precautionary Principle. Risk evokes undesired dualisms, especially the one between Idealism and Operationalism. The essay attempts to bring the two together by extrapolating the hard appearance of the legal system as seen through Luhmann’s autopoiesis and the need for critical openness of a contextualised environmental law. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Moral Efficacy of Aesthetic Experience: Figures of Meaning in the Moral Field

Abstract

This paper proposes to analyse the process that makes paths of action meaningful. It argues that this process is one of "figuration". The term "figuration" intends to outline how the experience of moral meaning is one that already positively marks out a field and to identify and analyse the mechanisms used for such marking and selection. It is my contention that these mechanisms predate the persuasion to a moral path; they are the process through which this path is constructed as meaningful. This thesis is elucidated through an analysis of the tactics of meaning in Kant's moral theory. Kant turns to aesthetics as a means of corroboration for his moral theory, but he also attempts to limit the scope of the interactions between his aesthetic and moral theory. For instance, when he writes on the topic of form in aesthetic taste or outlines the technical specifications of aesthetic judgment, it is arguably the arcane peculiarities of his system that are met. For this reason, Kant insists on the merely analogical relations between beauty and morality. However, it is also possible to see how certain aspects of Kant's aesthetic theory execute wider, and potentially more important, functions for his practical philosophy, such as providing meaningful orientation for the ascetic moral attitude of his duty-ethics. In this respect, certain figures of Kant's aesthetic theory may well be viewed as complementing the dependence in his moral philosophy, in the important sections on moral pedagogy and methodology, on appeals to heroic models and stories as ways of shaping and inculcating the moral disposition. This paper considers these aspects of interaction between Kant's aesthetic and moral philosophies as both (1) a problem for the consistency of his philosophy given his avowed exclusion of aesthetic and religious elements of meaning in his duty-ethics; and (2) as a case study for the new, schematic analysis of "moral figuration" outlined in the paper.     

从程序本位到程序自治--以卢曼的法律自治理论为基础

关于程序乃法治之枢纽的判断 ,程序本位论只回答了程序应该做到什么 ,程序自治论则进一步回答了程序如何做到这些。程序自治 ,即一种法律程序与其外界环境相对隔离的状态 ,在这种状态中 ,程序自身的展开过程同时也就是程序功能的实现过程。在具体的程序运作中 ,这要通过角色的分化与重组、时间顺序的安排、空间氛围的营造以及实体法规范的整合功能四个方面的机制来实现。     

对“软法”概念的冷思考——兼谈对卢曼法社会学理论的正确理解

我国现当今理论界的软法探讨需要认真进行整理和反省。细加分析，软法所设定的诸多立论依据实际上是站不住脚的。而卢曼的社会学理论在此讨论中的引用多属一种“误用”，对其进行全面和准确的理解恰好会对软法的概念起到一种否定性的作用。因此，对这一问题以及与之相关问题的研究应当多结合法律、政治等诸系统的特性进行科学性分析。