This present paper is devoted to the analysis of the decisional juridical discourses of the Appellate Body of the World Trade Organization. For this end, we decided to develop the research around two poles which shall be approached in an interweaving manner: the first concerns an examination of the methods of interpretation adopted by the Appellate Body and the second, which is a consequence of the former, devotes itself to the problem derived from the interpretation of authentic international treaties (...) in more than one language. In the light of these two approaches we can verify that the interpretation of the Appellate Body is highly influenced by the search for the purpose of the text and the construction of the juridical discourse in question is made with reference to the linguistic system analyzed as a dictionary. It was established, that the Appellate Body carries out a dictionary interpretation with a tendency, even incipient, to consider the linguistic versions of the World Trade Organization Agreements. Finally, the task is structured having as a backdrop two interdependent concepts which should not be neglected in an analysis of international juridical discourses. They are the following: ‹juridical culture’ and ‹language’. Both will be dealt with from a semiotic perspective since the central element of our study – and of the intersection between these two concepts – is the linguistic sign. (shrink)

Making use of Kafka's The Trial, this book explores the theory behind modern legal discourse. In order to investigate the subject the author explores a range of questions: how and why does the legal discourse of a modern state conceal the experienced meanings of a non-knower; if one has been harmed, does the legal discourse recognize the harm; does the harm sometimes slip through the juridical categorizations; if recognized, is the harm re-presented through a vocabulary, grammar (...) and gestural style which are familiar to the expert knowers but not to the person harmed? (shrink)

The idea of empowerment has gained a significant role in the discourse of poverty. I outline a restricted conception of empowerment inspired by Kant’s idea of rightful honour. According to this conception, empowerment consists in enabling individuals to assert their own human rights (juridical empowerment). I apply this conception to impoverished persons and argue that it is crucial to their self-respect, their so-called ‘power-[from-]within,’ and their political agency, and has a teleological primacy regarding our efforts to reduce poverty. (...) I also defend the idea that there is a moral right to this form of empowerment and a corresponding duty to empower the impoverished as rights-asserters. Juridical empowerment will be compatible with a pluralism of substantive accounts of the moral wrongs of poverty and with broader conceptions of empowerment. (shrink)

The starting point of the following considerations is the assumption that philosophical communitarian discourse as well the juridical discourse about communitarian rights represent two sides of the same phenomenon. When the European Union was founded, the ideological basis of the liberal democracies, concerning human and individual rights, seemed to be insufficient. Therefore we need to return to the communitarian elements of culture and tradition that will ensure real autonomy.

The organizational changes that occurred within the Italian prison system led to profound modifications in the way juridical–educational professionals working in prison perceive themselves and their role. The present study aims at exploring the representations of their professional identity in two groups of JEPs working in as many correctional facilities in Italy. To reach this goal, the JEPs taking part to the research were administered the Symbolic Drawing of the Organizational Life Space, a graphic symbolic tool useful to understand (...) the main features, values, and culture of an organization. The analysis was performed on the drawings made by the JEPs along with the transcriptions of their discourses while performing the task. The outcomes, presented in a previous study published in Narrare I Gruppi call for a further, in depth, analysis of the JEPs discourses, therefore the present study focuses on such transcripts. This article aims at investigating the specific values connected to the JEPs' pro... (shrink)

Moral injury is a term whose popularity has grown in psychology and psychiatry, as well as philosophy, over the last several years. This presents challenges, because these fields use the term in different ways and draw their understanding from different sources, creating the potential for contradiction. This, however, is also an opportunity. Comparison between behavioral sciences and philosophy can help enrich understandings of harms considered not just psychological but moral. To this end, I provide an overview of the more influential (...) writing of moral injury, mapping them into three broad discourses: clinical, juridical-critical, and structural. This overview then leads to a discussion of how comparative engagement among these discourses promises to expand on current theories of moral harm. I argue that such a comparison will demonstrate that more emphasis on structural violence will strengthen current understandings of moral injury, often understood in a more narrow sense to be a result of more direct, physical violence, allowing us to view moral injury as a result of institutional and social violence and injustices. (shrink)

When it is ethically justifiable to stop medical treatment? For many Muslim patients, families, and clinicians this ethical question remains a challenging one as Islamic ethico-legal guidance on such matters remains scattered and difficult to interpret. In light of this gap, we conducted a systematic literature review to aggregate rulings from Islamic jurists and juridical councils on whether, and when, it is permitted to withdraw and/or withhold life-sustaining care. A total of 16 fatwās were found, 8 of which were (...) single-author rulings, and 8 represented the collective view of a juridical council. The fatwās are similar in that nearly all judge that Islamic law, provided certain conditions are met, permits abstaining from life-sustaining treatment. Notably, the justifying conditions appear to rely on physician assessment of the clinical prognosis. The fatwās differ when it comes to what conditions justify withdrawing or withholding life- sustaining care. Our analyses suggest that while notions of futility greatly impact the bioethical discourse regarding with holding and/or withdrawal of treatment, the conceptualization of futility lacks nuance. Therefore, clinicians, Islamic jurists, and bioethicists need to come together in order to unify a conception of medical futility and relate it to the ethics of withholding and/or withdrawal of treatment. (shrink)

Thanks to Axel Honneth, recognition theory has become a prominent fixture of critical social theory. In recent years, he has deployed his recognition theory in diagnosing pathologies and injustices that afflict institutional practices. Some of these institutional practices revolve around specifically juridical institutions, such as human rights and democratic citizenship, that directly impact the lives of the most desperate migrants. Hence it is worthwhile asking what recognition theory can add to a critical theory of migration. In this paper, I (...) argue that, although its contribution to a critical theory of migration is limited, it nonetheless carves out a unique body of ethical insights related to diagnosing the interpretative and epistemic pathologies and injustices associated with the legal processing of migrants’ claims for asylum. Going beyond discourse ethics, which mainly highlights procedural violations of legislative and judicial deliberation, it trains our gaze on the institutional biases that lead migrants to be misrecognized or under-recognized as credible witnesses to their own refugee status. (shrink)

The University of Michigan conference “Where Religion, Policy, and Bioethics Meet: An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care” in April 2011 addressed the issue of brain death as the prototype for a discourse that would reflect the emergence of Islamic bioethics as a formal field of study. In considering the issue of brain death, various Muslim legal experts have raised concerns over the lack of certainty in the scientific criteria as applied to the definition and diagnosis of (...) brain death by the medical community. In contrast, the medical community at large has not required absolute certainty in its process, but has sought to eliminate doubt through cumulative diagnostic modalities and supportive scientific evidence. This has recently become a principal model, with increased interest in data analysis and evidence-based medicine with the intent to analyze and ultimately improve outcomes. Islamic law has also long employed a systematic methodology with the goal of eliminating doubt from rulings regarding the question of certainty. While ample criticism of the scientific criteria of brain death (Harvard criteria) by traditional legal sources now exists, an analysis of the legal process in assessing brain death, geared toward informing the clinician’s perspective on the issue, is lacking. In this article, we explore the role of certainty in the diagnostic modalities used to establish diagnoses of brain death in current medical practice. We further examine the Islamic jurisprudential approach vis-à-vis the concept of certainty (yaqīn). Finally, we contrast the two at times divergent philosophies and consider what each perspective may contribute to the global discourse on brain death, understanding that the interdependence that exists between the theological, juridical, ethical, and medical/scientific fields necessitates an open discussion and active collaboration between all parties. We hope that this article serves to continue the discourse that was successfully begun by this initial interdisciplinary endeavor at the University of Michigan. (shrink)

The postmodernist view, with its emphasis on the nature of discursive practices in constructing subjectivity and reality, has found many applications. This book develops a critically informed psychoanalytic semiotic view derived from Lacan, and applies it to the study of law. It also integrates some of the central concepts of chaos theory in describing how the legal text is constructed and how it may be read. Postmodern feminist analyses focusing on a possible ecriture feminine provide key insights, and the notion (...) of an empowered democracy is offered as a potentially generating milieu for a revolutionary replacement discourse. (shrink)

This article examines the way in which the sublime comes to matter within various eighteenth century legal discourses, particularly in the work of Thomas Hobbes, John Locke and Edmund Burke. The essay seeks also to relate the theoretical works of these philosophers and lawyers to practical legislative developments of the period, in particular, the passage of the Black Act in1726 and the Marriage Act in 1753. The sublime comes to matter to the law in this period in the sense that (...) philosophical conceptualizations of the sublime in terms of power and transcendence become increasingly significant to representations of the nature and function of English law. Such theoretical accounts of the law as are found in the work of Hobbes, Locke, and Burke, moreover, translate into juridical practices designed to affirm the status of the law as a transcendentally sublime source of political authority in the eighteenth century. This article subjects that understanding of the law to a feminist critique that draws upon the work of the French philosopher, Luce Irigaray. It will be shown that the sublime within Western thought is generally associated with a sense of dread as to the possibility of the annihilation of consciousness. This ontological dread entails, in Jean Francois Lyotard’s terms, a recognition of the possibility of “nothing further happening” to the subject. Within Western discourse, this dread is projected onto, or made material in the form of, some ‘other’ that is, in Irigaray’s estimation, most usually feminine. Thus, the sublime comes to matter in this second, ontological sense and it is within this context that the transcendental sublime emerges as a response to a sense of dread that is projected on to some material, feminine, or feminised, ‘other’. In eighteenth century legal discourse, this ‘other’ take the form of the ‘state of nature’, or the revolutionary mob, or the revolutionary female who signifies more than anything a return to animality and chaos –an ontological and political fall from grace. The Black Act and the Marriage Act, with their shared emphasis upon the preservation of political stability and patriarchal property rights, may in this context be regarded as manifestations in the legal domain of the metaphysical principles of the transcendental sublime – with its emphasis upon an escape from, and a control of, the dreadful, feminine ‘other’. (shrink)

This article surveys four approaches to moral obligation to non-Muslims found in Islamic legal thought. The first three approaches I refer to in this article as the "revelatory-deontological," the "contractualist-constructivist" and the "consequentialist-utilitarian." The main argument of this article is that present in many of the contemporary works on the "jurisprudence of Muslim minorities" (fiqh al-aqalliyyat) is an attempt to provide an Islamic foundation for a relatively thick and rich relationship of moral obligation and solidarity with non-Muslims. This attempt takes (...) the form of a fourth "comprehensive-qualitative" approach to political ethics in that it appeals not to juridical reasoning of the type "is x permissible and in which conditions?" but rather to Islamic ideals of what it means to live a good life, of what believing, normatively-committed Muslims want to pursue in this world, not only what they may pursue without fear of punishment. This meta-ethical approach builds on and goes beyond the first three. The force of this argument is that this fourth "comprehensive-qualitative" approach to moral obligation to non-Muslims is novel, emergent and not found not in the writings of outright reformers but in those of conservative, "neo-classical," shari'a-minded - even Muslim Brotherhood-affiliated - Islamic scholars. What also adds to the force of this argument is that the other meta-ethical discourses, particularly of contract and utility (maslaha), already get these scholars quite far towards a doctrine of "loyal resident alienage" in non-Muslim societies. That even orthodox Islamic scholars go further shows that they have some interest in giving a theological or principled foundation to a much thicker and richer form of moral obligation to non-Muslims, a relationship which involves recognizing non-Muslims qua non-Muslims and contributing to their well-being. (shrink)

The study of argumentation is prospering. After its brilliant start in Antiquity, highlighted in the classical works of Aristotle, after an alternation of ups and downs during the following millennia, in the post-Renaissance period its gradual decline set in. Revitalization took place only after Toulmin and Perelman published in the same year their landmark works The Uses of Argument and La nouvelle rhétorique. The model of argumentation presented by Toulmin and Perelman’s inventory of argumentation techniques inspired a great many scholars (...) in various ways to take up the study of argumentation in a serious manner. Nowadays there are well-established logical approaches to argumentation, but also social and socio-psychological, linguistic, juridical and other approaches. In most of these approaches traces can be found of the influence of the classical and neo-classical argumentation theories just mentioned. (shrink)

The concept of hermeneutic science is outlined by Habermas as a reflection within the ordinary language, addressed to the dialogic dimension of intersubjective recognition and connected to the juridical guarantee. The guarantee function fulfilled by the discursive agreement towards every real dialogue is obvious: it indicates the main reference point for the regulation and coordination of social action, tracing a line of demarcation between being and having to be, facts and norms. Speech, communicative agreement and legal guarantee are mutually (...) qualified terms where the public discussion of institutional issues makes it possible to define the normative validity as non-assimilatory generality, placed beyond any populistic yearning, tracing a line of demarcation between law and power. The idea of deliberative democracy expresses the relationship and distinction between the universalism of rights and the factuality of the norm issuing, between the idea of good and the idea of right, in order to support democratic decision-making legitimacy. Combining the reasons of the markets with those of civil solidarity, through independent forms of regulation both from the obsolete state sovereignties and from the traditional international perspectives, represents a primary challenge of the Habermasian theory where the critical role of the rational public sphere appears fundamental. (shrink)

We review the definition of the Full Bayesian Significance Test (FBST), and summarize its main statistical and epistemological characteristics. We review also the Abstract Belief Calculus (ABC) of Darwiche and Ginsberg, and use it to analyze the FBST’s value of evidence. This analysis helps us understand the FBST properties and interpretation. The definition of value of evidence against a sharp hypothesis, in the FBST setup, was motivated by applications of Bayesian statistical reasoning to legal matters where the sharp hypotheses were (...) defendants statements, to be judged according to the Onus Probandi juridical principle. (shrink)

This paper explores the possibility of a standard legal language (e.g. English) for a principled evolution of law in line with technological development. In doing so, reference is made to blockchain networks and smart contracts to emphasise the discontinuity with the liberal legal tradition when it comes to decentralisation and binary code language. Methodologically, the argument is built on the underlying relation between law, semiotics and new forms of media adding to natural language; namely: code and symbols. In what follows, (...) I will concentrate on the study of factors that explain why such approach can be fruitful for the future of law and innovation. I have three reasons for selecting this topic. The first is a more pragmatic reason, based on my current research of law as a linguistic phenomenon. Secondly, the topic does also touch the matter on binary code language, rivalrous to legal alphabetic language. Lastly, the study aims at emphasizing the pivotal role of the jurist as an interpreter in a changing society accommodating diverging realms of reality. The study is structured as follows. Firstly, a quick exam of the traits of blockchain networks would provide the contextual link to establish the arguments in support of the need of a standard legal language. Secondly, a comparison between liberal legal institutions and theory of semiotics is set to perceive their functioning and ascertain their limits in the light of todays unprecedented changes. Thirdly, a summary on blockchain networks’ legal features would constitute the thrust behind the idea of a uniform legal language. Methodologically, the argument does also establish some relations with classical laws of physics and philosophy of media. Its aim is to demonstrate how the suggested legal interpretation and semiotic-based approach can contribute to overcome existing stumbling blocks including, but not limited to, the lack of cooperation at the international level as well as the gap in State norms when it comes to innovation. In this sense, the proposed strategies do not intend to replace current advances in the legal thought. In contrast, it seeks to harmonise their results providing a methodical approach that can concur to inform a new technique to address new controversial issues. In practice, the proposed method regarding the adoption of a uniform legal language would lower transactive costs in terms of normative coordination in the matter of international cooperation and in the definition of applicable law among different legal systems. Alternatively, it might contribute to the convergence of legal systems and/or their underlying concepts. Differently put, article’s contribution can be envisaged in fostering juridical consistency with regards to different forms of languages’ coexistence. (shrink)

In this paper, I verify whether the Brazilian courts’ juridical discourse has any argument in favour of the equal right to marriage of the homosexuals. The jurisprudence is an outstanding place of analysis because we can know the way the courts interpret and apply the norms; it is also a place for the creation of an influent juridical discourse about the homosexual family rights. I identify as well the arguments for and against extending the family status (...) to the homosexual couples, and analyse if in these arguments there is any gender and sexuality stereotype. (shrink)

This article argues that Machiavelli’s chapters on the Decemvirate ( D 1.35, 1.40-45) advance an internal critique of the juridical discourse of sovereignty. I first contextualize these chapters in relation to several of Machiavelli’s potential sources, including Livy’s Ab urbe condita, Dionysius of Halicarnassus’s Roman Antiquities, and the antiquarian writings of Andrea Fiocchi and Giulio Pomponio Leto. I then analyze Machiavelli’s claim that the decemvirs held “absolute authority” ( autorità assoluta)—an authority that was unconstrained by either laws or (...) countervailing magistrates. I proceed to argue that Machiavelli’s account of the decemvirs’ election contains a web of allusions to the lex regia, the “royal law” by which the Roman people were thought to have conveyed their sovereign power to an emperor. By modeling the decemvirs’ election on the lex regia, Machiavelli reveals the political limitations of the doctrine of popular sovereignty; moreover, he illustrates that even free and fair elections can easily give rise to tyranny. (shrink)

While popular debate grapples with the legality of gay marriage, networks of medical, political, and juridical discourses produce and situate sexuality in a field of knowledge that is constantly under examination and administration. The rationalization of sexuality, and its dispersion into multiple fields of knowledge, has become part of a system of power relations that produces identities and manages them. Within this context, this paper places Horkheimer and Adorno's excursus on Sade's Juliette in conversation with Foucault's first volume of (...) the History of Sexuality. It explores how instrumental reason and power/knowledge relationships produce discourses of sexuality, which have come to dominate Western society. It also explores possible sites of resistance, through the notion of performativity, that exist within these modes of rationalization and power. I argue that this interlocution of Horkheimer and Adorno with Foucault helps us see sexuality as a site of both domination and resistance. It also shows how sexuality is produced in a field of contestation where possibilities of practices of freedom are always circumscribed by modes of rationalization and networks of power. (shrink)

While popular debate grapples with the legality of gay marriage, networks of medical, political, and juridical discourses produce and situate sexuality in a field of knowledge that is constantly under examination and administration. The rationalization of sexuality, and its dispersion into multiple fields of knowledge, has become part of a system of power relations that produces identities and manages them. Within this context, this paper places Horkheimer and Adorno's excursus on Sade's Juliette in conversation with Foucault's first volume of (...) the History of Sexuality. It explores how instrumental reason and power/knowledge relationships produce discourses of sexuality, which have come to dominate Western society. It also explores possible sites of resistance, through the notion of performativity, that exist within these modes of rationalization and power. I argue that this interlocution of Horkheimer and Adorno with Foucault helps us see sexuality as a site of both domination and resistance. It also shows how sexuality is produced in a field of contestation where possibilities of practices of freedom are always circumscribed by modes of rationalization and networks of power. (shrink)

Este trabajo analiza el método tópico-retórico, definido por Vico y escogido de la tópica jurídica como modelo de razonamiento filosófico, y estudia su carácter de técnica de ensamiento problematista, necesario en la producción de pruebas argumentativas.PALABRAS CLAVE: Vico, tópica, retórica, método aporético, problematismo, quaestio.This paper deals with the topical-rhetorical method, which Vico borrowed from juridical discourse as a model for philosophical reasoning. It studies it as a technic of problematist thought, requested for the production of argumentative proofs. KEYWORDs: (...) Vico, topical, rhetoric, aporetic method, problematism, quaestio. (shrink)

The article investigates Dostoevsky’s juridical discourse and demonstrates that the apologist of the Russian soul had a genuinely European mind. In his novel The Idiot in particular, in which the death penalty and imprisonment are explored, Dostoevsky unmasks—more radically even than Victor Hugo—the supposedly civilised and lenient forms of modern criminal justice. Dostoevsky’s criticism is ahead of its time; his arguments resemble those subsequently put forward by Foucault. A comparison with Anatoly Pristavkin’s report on post-Communist crime and jurisdiction (...) underscores the topicality of these reflections. (shrink)

Although international law grants a distinct juristic personality to indigenous peoples, this subjecthood is premised on a hierarchical reading of ethnicity and indigeneity. Through illustrations of Adivasi experiences in India, this article interrogates the prejudices of the global juridical discourse that are reproduced by the domestic jurisdiction, exposing the voyeuristic performance of legality in constructing indigenousness.

In this paper, I provide an analysis of the emergence of “problematic of alien sexuality.” I first locate discourses about “alien sexuality,” and the so-called anchor baby in particular, within other national discourses surrounding maternity, the fetus, and citizenship. I analyze the ways that national political discourses surrounding “anchor babies” and “alien maternity” construct the “problematic of alien sexuality,” thus constituting the “alien” subject as always-already perverse. I suggest that this production of a sexually deviant and threatening “alien” subject functions (...) in the normative dichotomy that places the sexually pure citizen on the one hand, and the perverse anticitizen on the other, in what I call “backwards uncitizening.” My analysis of this process shows that the perverse “alien” subject, as constituted in significant part by nonjuridical normalizing mechanisms of biopower, resists the juridical discourse that is supposed to determine it. (shrink)

In line with his theory of secularization according to which all significant concepts of the modern theory of the state are secularized theological concepts, Carl Schmitt argues in Constitutional Theory that people’s (Volk) constitution-making power in modern democracy is analogical to God’s potestas constituens in medieval theology. It is also undoubtedly possible to find a resemblance between Schmitt’s constitution-making power and God’s power as it is described in medieval theology. In the same sense as the constitution-making power is absolutely free (...) from all normative ties, God’s potestas constituens, or rather, God’s potentia absoluta is free from such ties. Yet, unlike the Schmittian constitution-making power, God’s potentia absoluta was not, in medieval theology, originally intended as a description of some form of divine action: the absolute power of God referred to the total possibilities initially open to God. However, when the canonists started to employ the term potentia absoluta in their speculations concerning the papal plenitude of power (plenitude potestatis) by the end of the thirteenth century, they used it in a different sense than the theologians previously. According to certain canonists, the pope, by his potentia absoluta, could grant de facto dispensations from divine and ecclesiastical laws. Later on, this notion became a theological notion as well, but given its origin in juridical discourse, the constitution-making power, rather than being a secularized theological notion, is a theologized juristic notion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Theorizing the Language of LawJesús Rodríguez-Velasco (bio)Law transforms reality, de iure and de facto, inasmuch as it attempts to bridge the gap between that which is done de facto and that which is regulated de iure. It is standard practice, for Alfonso X of Castile,1 to reinvent the means of writing the law. He does not limit himself to compiling or revising existing legal statutes; rather, he elevates the (...) corpus of the law to the level of juridical science. Dominating the meaning of the word—its hermeneutics and its relation to truth, lies, rhetoric, history, and poetry—is also the key to dominating juridical discourse itself and its capacity for creating certainty. Or, at least, for controlling uncertainty. Uncertainty, that is to say, the ambiguity in the interpretation of the relationship between words and things, appears to be one of the targets of Alfonsine juridical science.It is in the institutions that one can best study this desire for control. In particular, the need for control becomes visible in the court and the places related to it (the palace, chamber, or bedroom), codified by the law in order to put justice into action, in the representation of power, in cultural exchange, in education, and in recreation. Here legislation acquires a special significance with respect to the word, to narration, and to rhetoric. This is a philological problem: How does one compose and administer a text capable of controlling its own interpretation? How does one transpose this same dynamic to the institutions? How does one transmit this notion from the institution to those who inhabit it and who are, after all, the subjects of the legal science?It is therefore fitting to examine legislation about legal discourse, which is, in itself, the theory of law—not, however, in its abstract aspects but rather in the concrete elements of the formation of a legal vocabulary, in the way in which words, whose semantic and hermeneutic problems are clear, give life to this legal vocabulary. How is legal discourse constructed? In what way is it transmitted? What are the consequences of its dissemination? In what way is the law in charge of words, in particular, those expressed in the institutions?Perhaps the problem is philological, in the sense supposed by Giambattista Vico. Vico, in his Principi per una scienza nuova [1: 10] proposed that the study of philosophy, as a science of truth could not exist independently without a philology, the origin of the conscience of certainty (coscienza del certo). Attaching myself, then, to this idea of certainty (although not, of course, from Vico’s perspective) throughout this study I shall call “the space of certainty” the theoretical and conceptual construction (which is of both a philological and textual character) stipulated by the legislator in an attempt to control the distinct concepts related to the legal word, its institutional statute and its legal, moral, and cultural hermeneutics. I shall thus attempt to understand the meaning of this space of certainty, in what way it has been constructed, and how it affects legal, political, social, and cultural mechanisms. [End Page 64]1Law and KingIn the first title of the first Partida, Alfonso outlines the virtues of the laws.2 In addition, this first law discusses the overall structure of the Siete partidas, as if, in fact, they were nothing more than a lengthy and virtuous discourse about the law. It makes sense as the Partidas are not only a legal code capable of being enforced but also an enormous manual on legal theory. The law(s) and legal doctrine, then, come together to form the first expression of legal science. Going further than compilations of Roman law such as the Liber augustalis,3 further than the scientific expressions of jurisprudence of specialists from Bologna, the Île-de-France, and Orleans utroque iure,4 the Partidas—and I should like to insist on this—can be considered a constitutional legal text. In this sense the Partidas attempts to regulate the actual material from which the laws are made: language. Put another way, the text of the Partidas is at once legality, establishment, and discussion of legal language... (shrink)

This article recounts Foucault’s critical reevaluation of Thomas Hobbes in his 1975-76 lecture course, published as Society Must Be Defended (2003). In probing Hobbes’ pivotal role in the foundation of the modern nation-state, Foucault delineates the ”philosophico-juridical” discourse of Leviathan from the ”historico-political” discourses of the English insurrectionists whose uncompromising demands were ultimately paved over by the more conventional seventeenth century debate between royalists and parliamentarians. In his most sustained engagement with political philosophy proper, Foucault effectively severs the (...) two co-constitutive terms, enumerating the damning consequences of thinking politics apart from history and philosophy apart from the laws and codes that had been “born in the mud and blood of battles.” Displacing himself in the archive, Foucault doubles the Levellers and Diggers’ efforts to restage the violent conquests that undergird our seemingly calm governmental regimes. This doubling, I argue, evinces the profound influence of Deleuze’s innovative ontology of time on Foucault’s genealogical method. Foucault’s research strategy takes a fundamental turn towards specific techniques of cultural memory in the wake of his colleague’s radical reconceptualization of virtuality, difference, and repetition. To this end, I take up Foucault’s review essay ”Theatrum Philosophicum” and his comments on method in ”Nietzsche, Genealogy, History” in order to draw an analogy between what he does in 1976 and what the Levellers and Diggers were doing in 1651. In the final analysis, genealogy means war, and, in this war, it is the very being of the virtual itself that is at stake. (shrink)

ABSTRACTThe juridical force of time forms a critical, but hitherto unexplored part of Hugo Grotius’s discourse on the justice of war and peace. Grotius defines war as a span of time in which disputed rights and armed conflicts between states are examined in reference to temporal coordinates. This method allows him to adjust otherwise static laws to meet the demands of times and spaces in an increasingly expanded world. In doing so, Grotius is also able to reconcile multiple (...) layers of laws in a temporal framework, which suspends one layer of law, to be revived at later times. Finally, cautious in the use of the language of time, Grotius admits both that right demands immediacy, and that justice suffers delays. By this nexus of delay and emergency, Grotius warns against the abuse of ‘time’ as a legal concept to justify unlawful claims, which still rings with alarm today. (shrink)

Con base en la hipótesis de que las leyes son fuentes de legitimación de las relaciones de dominación existentes en las sociedades capitalistas, aunque contradictorias, y que en este contexto, el abogado como especialista en el manejo de la ley, tiene una mayor importancia, en este artículo analizo los discurso políticos y legales de los abogados que han actuado y/o actuan en la asesoría jurídica de la entidad oficial que representa a empleadores rurales en el Brasil, denominada “Confederação de Agricultura (...) e Pecuária do Brasil” (CNA). En particular, examinaré la retórica y los argumentos de sus principales demandas (laborales y fundiárias) en la coyuntura de la globalización neoliberal, que tuvo inicios a media-dos de 1980. (shrink)

In this paper, I argue that the Hindmarsh and Wik cases stand as crucial case studies that evidence the ongoing production of terra nullius within contemporary Australian contexts. They bring into focus the critical importance the signifiers of property, capitalist ‘productivity’ and legality within the settler-colonial state. Alongside notions of ‘civility,’ discourses surrounding ‘economic productivity’ and ‘equality before the law’ are consistently mobilised in these cases to assert white sovereignty. In contradistinction to the discourses that construct Indigenous people’s relation to (...) land as a singular and affective ‘affinity,’ media, political and legal texts script white Australian land uses such as farming and mining as ‘productive’ and necessary for economic prosperity. They are posited with ‘monetary’ output and juridical standing in order to produce the narrative that the continent was lawfully ‘settled’ by ‘illustrious’ white Australians. Moreover, these signifiers ramify within colonial law. Following these cases, the state amended the Aboriginal and Torres Straight Islander Heritage Protection Act 1984 and the Native Title Act 1993 respectively. They ensured the material construction of the Hindmarsh Island Bridge and the revocation of specific Indigenous land rights in order to sustain the settler-colonial state’s claims to sovereignty. (shrink)

Our varied communities of discourse face a rhetorical future shaped by juridical styles reminiscent of the "adversary culture" postulated by post-war American critic Lionel Trilling. Itself the subject of litigious debate. the adversarial spirit today shows few signs of weakening, but its influence can be better understood and guided along certain tracks. To influence this adversarial style in coming decades, we need to explore the difference between evidencebased reasoning, which draws on the sensationalist logic ofinduction. and reflexive reasoning, (...) which draws on the second-order logic of presumption. Understanding the structures and dynamics of this reflexive style forces us to address our responsibilities as speakers, as we seek to shape our rhetorical future. Close examination of adversarial contlict may lead us toward useful consensus on how the new game should be played. (shrink)

This paper addresses one of the challenges in human rights education concerning the conceptualization of a pedagogical orientation that avoids both the pitfalls of a purely juridical address and a ‘cheap sentimental’ approach. The paper uses as its point of departure Richard Rorty’s key intervention on human rights discourse and argues that a more critical orientation of Rorty’s proposal on ‘sentimental education’ has important implications for HRE. This orientation is not limited to perspectives such as Rorty’s voyeuristic approach (...) to sentimentality, but rather focuses explicitly on the emotional and political consequences of various manifestations of sentimentality. Such an orientation in HRE will not only encourage learners to become more sympathetic to the living realities of those who suffer, but it will also interrogate the conditions of hearing narratives of suffering so that possibilities for cheap sentimentality are minimized as much as possible. (shrink)

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights (...) to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike other legal rights, they possess universal moral validity. In this paper I argue that this tension between the legal and moral aspects of human rights can be resolved if and only if human rights are conceived as moral aspirations and not simply as legal claims. In particular, I shall argue that there are two reasons why human rights must be understood as moral aspirations that function non-juridically: First, the basic human goods to which human rights provide secure access are determinable only in relation to basic human capabilities that are progressively revealed in the course of an indefinite (fully inclusive and universal) process of collective learning; second, the institutional impediments to enjoying human rights are cultural in nature and cannot be remedied by means of legal coercion. (shrink)

In much extant scholarship, Dante is either misused as the prophet of the modern Italian nation-state or dismissed as a naive imperialist. This paper steers clear of both these characterizations and gives serious consideration to Dante’s own understanding of nationhood. I examine the construction of language and national community in De vulgari eloquentia and then place Dante’s idea of the nation in the context of his argument for world government in Monarchia. Grappling with the received view that for Dante, as (...) for Aristotle, language is inherently political, the paper suggests that Dante’s nation is first and foremost a kind of psychological bond arising from the experience and use of common language; it is not embodied in political-juridical institutions, nor is it a suitable sphere for human self-realization through civic discourse and participation. The recovery of Dante’s ‘non-political’ understanding of the nation cautions against a blanket dismissal of premodern ideas of the nation and offers a more nuanced perspective on language, national identity, and the future of nation-states. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Nonplaces:An Anecdoted Topography of Contemporary French TheoryBruno Bosteels (bio)In its juridical sense, a non-lieu is a judgment that suspends, annuls, or withdraws a case without bringing it to trial. It is thus a judgment that announces or enunciates that there will be no judgment as to guilt or innocence, a finding that there is no place to judge. It therefore renders justice by refusing to render it under (...) the law, which it does when it pronounces or enunciates the non-lieu.—Peggy Kamuf, "Béance"1Inside the Spatial TurnIf modernity will always be remembered as an era dominated by questions of time and history, then perhaps the steady waning of modern ideals invites us to think of the entry into something called the postmodern as a passage dominated by questions of space and geography. As Michel Foucault once famously observed in a 1967 conference paper, first published two decades ago: "Perhaps we might say that some of the ideological conflicts that animate today's polemics oppose the pious descendants of time and the willful inhabitants of space" ["Of Other Spaces" 22]. This conflict over time and space presupposes a much larger argument that is not only historical but also methodological in nature. What is at stake is both a question of the passage, or transition, from modernity to postmodernity, if that is indeed what we decide to name modernity's aftermath, and a question of the theoretical consequences that follow from giving precedence to space over time in treating this very transition. With regard to this second question, too, Foucault's work stands as exemplary insofar as he was able to show the degree to which a vital emphasis on space, geography, and territoriality [End Page 117] forces us to take leave of the modern paradigm of consciousness—typically associated with the category of time and its unfolding in the mind or spirit—in favor of a situated understanding of knowledge, subjectivity, and power. "Metaphorizing the transformations of discourse in a vocabulary of time necessarily leads to the utilisation of the model of individual consciousness with its intrinsic temporality," Foucault observes in an interview with the editors of the French journal of geography Hérodote, and he continues: "Endeavouring on the other hand to decipher discourse through the use of spatial, strategic metaphors enables one to grasp precisely the points at which discourses are transformed in, through and on the basis of relations of power" ["Questions on Geography" 69–70]. Whether real or metaphorical, a willful displacement of our categorial apparatus from time to space thus might enable one to avoid the idealist temptation inherent in a strictly discursive or textual model, by inscribing all discourses and practices in the geopolitics of power relations.My aim in the following pages is not to go over the much-discussed shift from time to space once more, even as I take advantage of several of its methodological principles along the way. Instead, I want to map out a momentous change of perspective that has been taking place over the past few decades within the parameters of the so-called spatial turn itself. In fact, if and when modernity is coming to an end, both in the sense of completing itself and of revealing its character as a finite historical entity, not only does whatever shape critical thought takes in the face of this turnabout need to be securely fastened onto specific places and spaces but, if we are to believe a growing number of authors, particularly but by no means exclusively in France, the study of art, literature, politics, philosophy, and even anthropology would also require a thorough consideration of so-called "nonplaces" as a rigorous category for critical thinking today [for a brief discussion of the use of "nonplace" in Anglo-American anthropology, including Melvin M. Webber's notion of "nonplace urban realm" from the mid-1960s, see Weiner]. In the end, these proponents of the nonplace confront us with one disarmingly simple question: how can critical thinking in the present time respond to the task of having to work through whatever lies outside of the order that is actually in place?The Exhaustion of... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:From the Sacrifice of the Letter to the Voice of TestimonyGiorgio Agamben’s Fulfillment of MetaphysicsJeffrey S. Librett (bio)By denying us the limit of the Limitless, the death of God leads to an experience in which nothing may again announce the exteriority of being, and consequently to an experience which is interior and sovereign. But such an experience, for which the death of God is an explosive reality, discloses as (...) its own secret and clarification, its intrinsic finitude, the limitless reign of the Limit, and the emptiness of those excesses in which it spends itself and where it is found wanting.—Michel Foucault, “Preface to Transgression”Can there be a discourse that, without being a metalanguage or sinking into the unsayable, says language itself and exposes its limits?—Giorgio Agamben, “The Idea of Language”I shall not rest until every German sees that it is a shameful thing to be a lawyer.—Adolf Hitler, speech before theReichstag, April 26, 1942From his early works on, Giorgio Agamben has opposed the thought of no contemporary philosopher more consistently and programmatically than that of Jacques Derrida, whose questioning of phonocentric metaphysics Agamben has tried to replace by a characterization of metaphysics as (what I am calling here) graphocentric. To go back behind the replacement of the voice by the letter is for Agamben to recover the event of language itself, the taking-place of language as Being.1 In his conceptualization of the project for such a recovery, as we shall see, Agamben’s commitment to Heidegger’s fundamental ontology is overdetermined by his investment in the Christian God as logos.This philosophical program in Agamben’s early essays guides his later work on the homo sacer-sovereign relation but also distorts and disturbs the later work in three principal ways. First, it prompts him to propose an exclusively juridicopolitical understanding of the sacredness of the homo sacer, effectively scapegoating the juridical sphere for a more broadly theopolitical problem, while placing the specifically Christian background [End Page 11] of his antinomianism in a misleadingly secular, rational, and universalist light. Symptomatically, in order to accomplish this juridicopolitical reduction Agamben must reject Bataille’s analysis of sacrifice—along with the entire modern anthropological reading of the sacred—out of hand. For this rejection protects his discourse against any sustained confrontation with the importance of the sacrificial dimension for both what he calls the homo sacer and his own approach to law in his theorization of the homo sacer..Second, Agamben’s philosophical program impoverishes the account he provides of the Nazi death camps as an extreme example of the sovereign-homo sacer relation by making it impossible for him to appreciate the importance of Christian antinomianism in the formation of National Socialist ideology. For Agamben’s philosophical orientation requires or presupposes that he ignore or underestimate, first of all, the sacrificially anti-Semitic dimension of Christian antinomianism—the tendency of such antinomianism to make Judaism responsible for the ontological desert into which representation exiles us all. Further, as a consequence of his continuing commitment to this tradition, Agamben cannot see how important the tradition remains, even if in a displaced form, for Nazi anti-Semitism. I argue that Agamben’s animus against the letter blinds him to the Christian and sacrificial dimensions of the Holocaust—he ignores the former and explicitly, emphatically denies the latter dimension—because this animus represents his own commitment to the Christian antinomianism that, in its racialized National Socialist form, attempts to rid itself of the letter by sacrificing not only Judaism but the (biologically, racially construed) Jews. Because his radically antinomian program would become unsettled by his recognition of its important overlap with the ideological bases of National Socialism, Agamben cannot ultimately acknowledge the Christian and sacrificial aspects of the Holocaust.Finally, in Remnants of Auschwitz—his main reading (outside of Homo Sacer) of the significance of the Nazi death camps—Agamben positions “testimony” as the exemplary instance of the speaking of speech, the taking-place of language. The result of the destruction of European Jewry becomes here the revelation of poetic speech as a manifestation of the absolute. Unwittingly, Agamben ends up participating in... (shrink)

Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...) own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism—namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)—this train of reflection diagnoses briefly a sequence of complementary main difficulties (as «obstacles» to recognising Law’s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law’s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality). (shrink)

This paper examines the role of performance in law and music as a structural means of their self-programming construction. Music and law are considered as parallel social practices or performative doings. The paper begins with a critical analysis of the special aesthetical features of present-day juridical practice as exemplified by legal trial and legal expertise. Drawing upon reflections on the modern discourse on aesthetics and art, the article then examines in greater detail the specific traits of performance in (...) law and jazz music. Performative processes move from representation to presentation, from a preoccupation with rules and controlling to induced self-programming. Both law and jazz regard the unknown future as a resource for present decisions by “inventing” new possibilities; both require, expand and promote a responsibility that does not follow from statutes nor can be expressed in a code of ethics. Finally, the article addresses the performance situation in jazz. Jazz being polyphonic and improvisational by nature, improvisation makes explicit tradition by staging the context dependency of its performance. It is mediated by the knowledge, the operational history and the communication of the participants. Jazz is an exercise in the possibilities of an “aesthetics of imperfection” which can open up new ways of seeing law and politics. (shrink)

This early essay from German media theorist Friedrich Kittler examines a number of epistemic shifts occurring in late 18th-century Germany, anticipating in both methodology and content his groundbreaking 1985 work Aufschreibesysteme [ Discourse Networks]. Of primary concern to Kittler here is the invention of what he calls (drawing upon Foucault) the ‘authorship-function’, product of a new constellation of medial, pedagogical and juridical forces. Alongside broader societal transformations (the transition from societies of the law to societies of the norm, (...) the appearance of new sexualities), Kittler documents the emergence of the author in the late 18th century through analyses of new pedagogical practices (including the invention of hermeneutics), changes in childhood alphabetization, and new erotic relationships between authors and their readers. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:“Unauthorized Propositions”The Federalist Papers and Constituent PowerJason Frank (bio)The PEOPLE, who are the sovereigns of the State, possess a power to alter it when and in what way they please. To say otherwise is to make the thing created, greater than the power that created it.—Anonymous, Federal Gazette, March 18, 1789The we of the Constitution’s “We the People” was as much of an artificial construct as the Constitution itself, (...) it was its creature, not its creator.—Sheldon Wolin, The Presence of the PastIn Federalist No. 40, James Madison engaged the vexing question of whether the Philadelphia Convention of 1787 had been properly authorized “to frame and propose” the new Federal Constitution of the United States [83]. Madison explored there “the ground on which the Convention stood” [264], which he identified as the purportedly solid foundation of the people themselves [Morgan 272]. Federalist No. 40 offers a theoretically probing yet avowedly practical reflection on the availability of foundations and on dilemmas of popular authorization in times of constitutional crisis; it may be productively read as an exemplary eighteenth-century American reflection on a state of exception. As such, Federalist No. 40 provides helpful orientation to how the popular constitutionalism of the revolutionary and postrevolutionary years confronted and navigated—if never fully resolved—some of the most insistent paradoxes of modern democratic theory.In No. 40, Madison was preoccupied with the theoretical and historical dilemmas surrounding the eighteenth-century American conception of the people’s constituent power—that is, the ultimate power of the people to alter fundamental law “when and in what way they please.”1 However, in contrast to most contemporary theoretical approaches to constituent power—whether influenced by the political theology of Carl Schmitt or the immanentist optimism of Michael Hardt and Antonio Negri—Madison’s navigation of the attending dilemmas of popular authorization resisted the turn to metaphysical abstraction and the appeal to a transcendent or immanent absolute. In his approach to the problem of constituent power, Madison insisted on the productive irreducibility of institutional mediation and the performative elicitation of a retrospective authorization by the people. While accepting the absence of a firm ground of legal authorization (the unbroken authority of law), Madison also rejected a wholly extralegal or unmediated appeal to the people themselves (the transcendental appeal to spirit beyond the letter of the law). Instead, he endorsed a political navigation of these dilemmas in medias res. Confronting [End Page 103] the dilemma of constituency—how does the people give birth to itself as a self-authorizing subject?—Madison shifted the register of discourse away from the formal and juridical and toward the informally ethicopolitical. Doing so, he was able to affirm a rupture in law while simultaneously enlisting another register of normative continuity. This essay outlines Madison’s productive encounter with these dilemmas in The Federalist, and suggests the relevance of his example for recent debates in democratic theory, too often captivated by the formal rubrics of “norm” and “exception.”1The government which [the Federalists] are so enthusiastically fond of is as yet an ideal phantom, a chimera, a mere theory detested and execrated by every true friend to government.—“One of the People,” Carlisle Gazette, January 9, 1788Madison wrote Federalist No. 40 as a response to widespread and persuasive Anti-Federalist claims that the Philadelphia Convention had exceeded the mandate granted to it by the Annapolis Convention of 1786 and the Congressional Act of 1787, both of which authorized the meeting of the Philadelphia Convention “for the sole and express purpose of revising the Articles of Confederation” [259]. While the Philadelphia Convention was, in Bruce Ackerman’s words, “expressly subordinated to existing institutions and procedures” [Ackerman 43], it had nonetheless produced an entirely new constitutional text and—theoretically more problematic for Madison—an entirely new procedure for its popular ratification [see also Ackerman and Katyal]. Under Article 13 of the Articles of Confederation, constitutional reform could come about only through the unanimous assent of the thirteen state legislatures.2 Under the Philadelphia Convention’s plan, the ratification of the proposed constitution would bypass the constituted power of the state legislatures and appeal instead to the... (shrink)

People everywhere search for answers by using the resources of their traditions. They wish to do so in a legitimate way, and so they consult official institutions, specialists, and skilled individuals for their opinions; regardless of religious or cultural contexts, the common aim of these experts is to produce security, unity, and trust. Therefore, the norm-finding processes in Islamic and Western contexts share fundamental similarities: the problem of finding a final ground for judgment, the strategies of constructing coherence and of (...) organizing consensus, and the difficulties of obtaining legitimacy. What makes one debate "Islamic" and the other one "Western" is the different semantic materials, the different authorities, the different languages, and the different juridical frameworks. In my comparison of Muslim and Western discourses and practices, I conclude that Muslim and non-Muslim scholars tend to overemphasize the uniqueness of Muslim legal and practical responses to bioethical challenges, because they restrict their purview to legal opinions, ignoring larger dynamics of legitimization. (shrink)

Following the work of Barbara Cassin, this paper proposes to examine certain ways of speaking that Aristotle described as not so much human as plant-like [homoioi phutôi] and to consider whether these non-human ways of speaking might yet adduce forms of discourse that serve to model how central principles of justice can be thought. The paper does this by drawing upon Cassin’s extensive engagement with Sophistry in the classical world together with her concerted interest in the activities of the (...) Truth and Reconciliation Commission in post-apartheid South Africa. When Aristotle, in book Gamma of the Metaphysics, dismissed the speech of those spoke “otherwise” (for example, those who failed to obey the law of non-contradiction) he formalised a chauvinism that philosophy had, at least since Plato, derided as sophistry. For Cassin, however, this presumed superiority of one way of speaking over another is something that holds true only when the grounds and elemental terms of a discourse have been and remain uncontested. In this way, language in Aristotle is regulated in advance, and determines what is admissible in the court of discourse according to prescribed and recognisable forms. Accordingly, illuminated by Heidegger and yet (like Arendt) departing from his conclusions, Cassin explores the sense in which language is something ontologically constitutive but in a manner that contests rather than secures its speakers’ relations to one another. In place of a metaphysics and ethics of belonging and authenticity, Cassin’s work is oriented by figures of precarity and exile such that truth is not so much something to be discovered, once and for all, but to be contested, negotiated, and re-worked each and every time. Key to this form of discourse, the paper will claim, is the uniquely non-juridical approach to justice undertaken by the Truth and Reconciliation Commission. Here, as Cassin explains, rather than a logic of individual rights and wrongs, there is a performative role for those involved. This “politics via discourse” dislocates the identity of received (rational) subjects and allows for narrative testimony itself not only to bear witness to a past but to signal a future – one based not on the apportionment or allocation of justice but on its ongoing struggle (an eristics or agonistics) for a humanity to come. (shrink)

Hans Kelsen and Max Weber are conventionally understood as initiators not only of two distinct and opposing processes of concept formation, but also of two discrete and contrasting theoretical frameworks for the study of law. _The Foundation of the Juridical-Political: Concept Formation in Hans Kelsen and Max Weber _places the conventional understanding of the theoretical relationship between the work of Kelsen and Weber into question. Focusing on the theoretical foundations of Kelsen’s legal positivism and Weber’s sociology of law, and (...) guided by the conceptual frame of the juridico-political, the contributors to this interdisciplinary volume explore convergences and divergences in the approach and stance of Kelsen and Weber to law, the State, political science, modernity, legal rationality, legal theory, sociology of law, authority, legitimacy and legality. The chapters comprising _The Foundation of the Juridical-Political _uncover complexities within as well as between the theoretical and methodological principles of Kelsen and Weber and, thereby, challenge the enduring division between legal positivism and the sociology of law in contemporary discourse. (shrink)

In the English translation of Giorgio Agamben's Homo Sacer, the concepts of the "norm" and "normal" are ambiguously replaced by "rule" and "regular." Important distinctions, inherited directly from Carl Schmitt are thereby obscured. Kurt Hildebrandt, whose work on the norm is more explicitly biopolitical, provides further contextualization for Schmitt's legal theory; likewise, Georges Canguilhem has analyzed the biological metaphors latent within the concept of the juridical norm. In conclusion I argue that it also makes sense to read Agamben's work (...) in the context of the normative discourse. (shrink)