Derrida’s Legal Times

2019 ◽  
pp. 147-167
Author(s):  
Bernadette Meyler
Keyword(s):  
Michel Foucault ◽  
Legal Theory ◽  
Political Sphere ◽  
Law And Politics ◽  
The Subject ◽  
The Law

The aim of this essay is to suggest what Jacques Derrida’s late forays into law and politics might contribute to thinking in legal theory beyond what can be derived from Michel Foucault and his inheritors. The key differences pertain to time and timing. In particular, Derrida’s writings lead us to reconsider the timing of the relation between the subject and the law, whether that subject is declaring independence or awaiting death. Through the vector of time, the trace of the subject—not self-present or autonomous but a subject nonetheless—is recovered within the juridico-political sphere.

Foucault and the Incompletion of Law

2008 ◽  
Vol 21 (3) ◽  
pp. 747-763 ◽  
Author(s):  
BEN GOLDER
Keyword(s):  
Michel Foucault ◽  
Subject Matter ◽  
Review Essay ◽  
Legal Theory ◽  
The Subject ◽  
The Law

In a late interview given to the French newspaper Le Monde, Michel Foucault discussed his dreams for a different style of criticism. ‘I can't help but dream about a kind of criticism’, remarked Foucault, in which one would ‘not try to judge, but to bring an oeuvre, a book, a sentence, an idea to life; it would light fires, watch the grass grow, listen to the wind, and catch the sea-foam in the breeze and scatter it.’ This somewhat wistful, poetic thought resonates with more familiar Foucauldian notions regarding the use of theory as a ‘toolkit’ or ‘toolbox’. Common to both these tropes – critique as affirmation and theory as functional – is the desire for thought to be put to work rather than put on trial, for sentences to be brought to life rather than delivered. And yet this presents the would-be Foucauldian book reviewer – and more so where the venue is the impeccably juridical one of the law journal – with a series of alluring problems. How might one elaborate such a Foucauldian critique in a context where one is expressly called upon to judge? What would such a non-judgmental Foucauldian critique look like? Are juridical practices of critique readily susceptible to Foucauldian appropriation or subversion? This set of related questions is emblematic of a wider concern of mine which forms the subject matter of this review essay, namely the place of Foucault (if indeed he has one) in legal theory. How does Foucault, that fabled figure of postmodern antinomianism who supposedly announced the demise and ‘expulsion’ of modern law, relate to legal theory? What might it mean to bring Foucault's unruly poststructuralism ‘into law’? And with what possible effects?

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

The Principle of Subsidiarity

2018 ◽  
Author(s):  
Federico Fabbrini
Keyword(s):  
Criminal Law ◽  
Institutional Design ◽  
Legal Theory ◽  
Law And Economics ◽  
Environmental Law ◽  
Multiple Perspectives ◽  
Constitutional Principle ◽  
Law And Politics ◽  
The Subject ◽  
Widespread Interest

‘“[T]hree correcting words of the legislator and entire libraries are turned into maculature.” Worse still: three additional words and entire libraries may be filled again with learned commentaries.’ It is in these apt terms that Robert Schütze has described the principle of subsidiarity. Since its introduction into the constitutional fabric of European Union (EU) law in 1992, a flurry of scholarly research has focused on the principle of subsidiarity, approaching the subject from multiple perspectives—be it legal theory, law and politics, or law and economics—and contextualizing its meaning in multiple legal and policy areas—from environmental law, to the internal market, from education, to social policy, and now criminal law. This widespread interest for subsidiarity is not surprising: as a core constitutional principle of the EU legal order, subsidiarity stands at the crossroads of questions about EU federalism and separations of powers, functionalism and institutional design, and the ends and means of European integration through law.

TROUBLE FOR LEGAL POSITIVISM

Legal Theory ◽  
2006 ◽  
Vol 12 (3) ◽  
pp. 225-263 ◽  
Author(s):  
Danny Priel
Keyword(s):  
Subject Matter ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Validity ◽  
Legal Norms ◽  
The Subject ◽  
The Law

Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations. I distinguish between two senses of “what the law is”: in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a claim about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms.

The Province of Jurisprudence Contested

2010 ◽  
Vol 23 (2) ◽  
pp. 515-535 ◽  
Author(s):  
Andrew Halpin
Keyword(s):  
Subject Matter ◽  
Legal Theory ◽  
Recent Book ◽  
The People ◽  
Core Feature ◽  
The Subject ◽  
The Law ◽  
Split Field ◽  
The Relationship ◽  
Field Of Inquiry

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, is regarded as presenting the opportunity for considering what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry. The scale of Hutchinson’s ambition matches John Austin’s original efforts to determine the Province of Jurisprudence, but seeks to replace an analytical approach to jurisprudence he associates with Austin by a theoretical approach committed to advancing “strong” democracy. This provokes an initial reflection on the nature of theoretical disageement, and in particular disagreement which goes beyond trivial theoretical contestability so as to contest the nature of the subject matter that is being investigated by establishing an appropriate field of inquiry for it. Three different techniques are introduced which are capable of demarcating the subject matter of jurisprudence through establishing a field of inquiry favouring a particular theoretical viewpoint: axiomatic disengagement, ambitious insight, and a split field of inquiry.Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out. First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy, and at the same time the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. Hutchinson’s one-dimensional representation of democracy along a participatory-representational continuum is rejected for failing to recognize a distinct fiduciary-beneficiary axis, which a richer understanding of “for the people” conveys. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.

Limits of Proofs in Criminal Process (Research Based on Rational Formalism)

2016 ◽  
Vol 4 (2) ◽  
pp. 0-0
Author(s):  
Денис Зотов ◽  
Denis Zotov
Keyword(s):  
Significant Role ◽  
Legal Theory ◽  
Process Research ◽  
Criminal Process ◽  
Potential Study ◽  
Specific Source ◽  
The Subject ◽  
The Law

The attitude to the notion of “the proving limits” in the criminal process science is controversial: starting from equation of it to “the subject of proving” and finishing with the attempts to identify it as a separate notion through such categories as limits, extent, depth, broadness, level, fullness, width, etc. Herewith the significant role in determination of the proving limits is highly desirable for the development of both the theory of process and the practical proving is recognised. The author analyses the existing theoretical views on the essential matter and proves limits and substantiates of the potential study of these views that would be based on principals of rational formalism. The author claims, that rational formalism as a method of the legal theory of proving does not contradict the contemporary concept of free judicial conviction. As the result of the study, the author offers his own notion of “proving limits” as a number of sources of prove which is required for judgment rational. Wherein the quantitative component of the notion “proving limits” can be expressed in the following ways: by the available sources provided by law; in a possible reference to specific source in the law (the obligatory proving limits); as one of the obligatory legally defined sourses.

scholarly journals The "Environmental Lawsuit" as an Instrument of Preventive Protection of the Constitutional Right to Healthy Environment in the Law of the Republic of Serbia

2021 ◽  
Vol 16 (31) ◽  
pp. 55-69
Author(s):  
Nikolina Miščević ◽  
Attila Dudás
Keyword(s):  
Environmental Protection ◽  
Legal Theory ◽  
Legal Institution ◽  
Healthy Environment ◽  
The Subject ◽  
The Law ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

A lot of attention has been paid to the environment and its protection in Serbian legislation. The right to healthy environment is guaranteed by the Constitution, and in the last two decades numerous laws have been passed regulating various aspects of the environment in order to ensure its protection. The subject of the paper is the claim to eliminate the danger of damage, stipulated by the Law on Obligations from 1978. From the enactment of the law, this legal institution has been considered as a means suitable for providing preventive environmental protection, which is why it is often called an “environmental lawsuit” in Serbian legal theory.

Without the Power to Drink or Contract

2020 ◽  
Vol 24 (1) ◽  
pp. 26-48
Author(s):  
Warren Swain
Keyword(s):  
Alcohol Consumption ◽  
Social Activity ◽  
Individual Responsibility ◽  
Roman Law ◽  
Current Position ◽  
Modern Times ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Over Time

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

Human Rights Activities as a Function of the Prosecutor’s Office

2020 ◽  
Vol 3 ◽  
pp. 88-93
Author(s):  
K.N. Golikov ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Russian Federation ◽  
The State ◽  
Main Function ◽  
Federal Law ◽  
The Subject ◽  
The Russian Federation ◽  
The Law

The subject of this article is the problems of the nature, essence and purpose of prosecutorial activity. The purpose of the article is to study and justify the role of the human rights function in prosecutorial activities in the concept of a modern legal state. At the heart of prosecutorial activity is the implementation of the main function of the Prosecutor’s office – its rights and freedoms, their protection. This means that any type (branch) of Prosecutor's supervision is permeated with human rights content in relation to a citizen, society, or the state. This is confirmed by the fact that the Federal law “On the Prosecutor's office of the Russian Federation” establishes an independent type of Prosecutor's supervision-supervision over the observance of human and civil rights and freedoms. It is argued that the legislation enshrines the human rights activities of the Prosecutor's office as its most important function. It is proposed to add this to the Law “On the Prosecutor's office of the Russian Federation”.

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