LAW AND CRITIQUE最新文献

In 2018, the Danish Supreme Court revoked Adam Johansen’s citizenship in conjunction with his conviction for terrorism. Applying a proportionality test adapted from European Court of Human Rights (ECtHR) jurisprudence for naturalised, not natural, citizens, the Danish court determined that Johansen’s Muslim faith tied him to Tunisia, his father’s country, rather than to Denmark. In March 2022, the ECtHR unanimously upheld this judgment. In so doing, the ECtHR solidified an emerging standard in cases of citizenship revocation for natural citizens, which standard is weaker than the protections enjoyed by naturalised citizens. This article reviews the Danish and ECtHR jurisprudence to show how the explosive expansion of citizenship revocation in relation to terror crimes, combined with the ECtHR’s emerging jurisprudence rejecting substantive review for such revocation, demonstrates a significant, multidirectional weakening of rights protections in Europe.

Despite the many differing perspectives possible regarding the concept of a propertyright, one central aspect is, arguably, the primal exclusionary impulse and its specialconnection to a particular form of subjectivity, especially in terms of how people feelabout space, enclosed space and any subsequent property rules applicable. Suchaspects limit speculative thought concerning the enactment of challenging housingreforms. This essay therefore asks: Why is exclusion so relevant to spatial ethics, andis it only a particular form of subjectivity that is involved in the phenomena ofexclusionary impulses? As a response, new speculative thoughts are proposed thataim at challenging such specialised subjectivity, exclusionary impulses and spatialengagement: re-sanctification of enclosed space, de-objectification of being and a callto develop new or alternative subjectivities and modes of somatic thought.

This article provides a reading of the Truckers’ Freedom Convoy, which emerged in response to Covid-19 related public health measures in 2022. It argues the movement invites an interrogation of the affective structures of modern liberal subjectivity. We first map the social and political configurations of the movement, highlighting its links with white supremacist conspiracy theories, such as QAnon and Great Replacement Theory. We argue these conspiracies were used to frame Covid-19 countermeasures as the continuation of a perceived trend toward the deliberate but surreptitious erosion of freedom qua white freedom. To this end, the notion the pandemic was really a ‘plandemic’ is informative. For adherents of this view, Covid-19 and its freedom-inhibiting countermeasures were merely deliberate steps towards an already occurring conspiracy. Referencing psychoanalytic theory, the article examines how racial liberalism structured the racist fantasies that drove the freedom movement’s attempts to safeguard freedom by flaunting Covid-19 restrictions. We argue the movement provided its members with a pathway towards jouissance that allowed fear to be performatively refused in the name of freedom. This, we argue, allowed members to embody their imagined status as exalted subjects of the white nation.

This article challenges the long-standing boundary that separates human beings from non-human entities, whether animate or inanimate. In doing so, it engages with the jurisprudential strands that debate the transformative power of law in moving towards a fuller recognition of human relations with non-human entities. To this end, the article first examines the legal theoretical strategies that scholars have so far developed to overcome the dichotomous vision that pits humans against non-humans. It then argues for a new model of understanding property, called cont(r)actualisation, which seeks to reconfigure existing strategies. It makes the case that the legal categories of person and object should be brought together under the overarching heading of ‘legal entity’. Rather than being built around humans as persons/subjects and non-human entities as objects/objects, law should be built around the contingent points of contact between particular entities in a particular web of relations. In this way, the article advances a view that does justice to how these entities contribute to what human beings are and do.

In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.

This paper discusses the role of Law and Legal Thinking in Critical Theory with specific reference to the arguments that Michael Hardt and Antonio Negri offer in their book Commonwealth. The core idea is that Critical Theory is no less radical, but much more concrete, when it is performing not only an external, but also an internal critique of the Law. It shows that the role of the law in critical theory emerges as a problem when the latter claims that ‘there is no outside’ and that ‘the legal base of the system structures our lives.’ It then discusses optimistic and pessimistic strategies to overcome the problem, and argue for a demanding strategy which consist in articulating the external and the internal critique of the law. To make this point, the paper goes back to the epistemic context in which critical attitudes are deployed (the ‘Conflict of the Faculties’), describes the four theoretical moves constitutive of the historical moment in which, at the end of the 18th Century, modern law as we know it was conceived of and founded; and sketches the key moments of the history of the internal critique of the law. It then illustrates the demanding strategy with examples taken from the field of Intellectual Property, and concludes that the Law is malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system and also that alternatives spoken in the language of the law are no less radical, but certainly, more concrete than others.

Justice is usually represented as a feminine figure holding a pair of scales and a sword. The history of that image is relatively recent and has attracted a great deal of attention. However, a different appreciation of it may come from a “nocturnal” jurisprudence seeking to foreground its presence and effects in the transmission of modern culture and so also of law. In this essay, I take my cue from Aby Warburg and the Pathosformeln that, he suggested, can be glimpsed through certain material objects inherited from the past—specifically, Dürer’s The Death of Orpheus and other related visual art. I then consider what Giorgio Agamben calls ‘the image of the image’ emphasising the timely quality of those images and I ask, with Georges Didi-Huberman, whether it might not be high time to “return” that which those images ostensibly show. The associations established in this essay between those different insights may help to recognise the extent to which the innumerable images to do with justice found at the four corners of the world can make the cognitive and emotional experience of those encountering them a rather more complex and potentially problematic affair than it may be at first supposed. What, on closer inspection, can those images give us to see? Are the ancient configurations they sometimes transmit not made up of crystals of historical memory carrying dormant energies that could be suddenly reignited in unpredictable ways? Should the task ahead not be, in some cases, one of restitution—the inapparent gift that turns the “blotted-out” into something striking that can be then handed over and known? These, I argue, are some of the questions a “nocturnal” jurisprudence of the image can be about.

The relationship between academic freedom and freedom of speech features prominently in public and political discussions concerning the role of universities in Western liberal democracies. Recently, these debates have attracted increased attention, owing in part to media framing of a ‘free speech crisis’, especially in UK and US universities. One type of response is to regulate academic expression through legislation, such as the UK’s 2023 Higher Education (Freedom of Speech) Act. This article offers a critical analysis of the assumptions concerning the performativity of speech in this kind of legal intervention. It extends Judith Butler’s discussion of the concept of ‘harmful speech’ as reported by Butler (Excitable speech: a politics of the performative, Routledge Classics, London, 1997) to conceptualize speech-acts as performative not only when it comes to populations, but also when it comes to institutions. Reconceptualizing universities as producing as well as being constituted by speech-acts, the article argues that the effects of free speech legislation need to be considered in the context of the transformation of universities and other political actors (including governments and student unions) in the second half of the twentieth and the beginning of the twenty-first century. It argues that legal enforcement of free speech at universities further obscures the distinction between negative and positive liberties identified by Isaiah Berlin (Two Concepts of Liberty, Oxford University Press, Oxford, 1958), and considers this shift as part of the reconfiguration of political ontology in late modernity.