Constitutional Paradox Research Articles

Identity and Intervention: Disciplinarity as Transdisciplinarity in Gender Studies

Within the past 40 years, feminist studies/women’s studies/gender studies/studies in gender and sexuality has effectively grown into a globally practised academic discipline while simultaneously resisting the notion of disciplinarity and strongly advocating multidisciplinarity, interdisciplinarity, and transdisciplinarity. In this article, I argue that gaining identity through refusing an identity can be viewed as being a constitutive paradox of gender studies. Through exploring gender studies as a transdisciplinary intellectual discipline, which came into existence in very particular multidisciplinary historical conditions of the feminist movement, I suggest that transdisciplinarity within gender studies takes on a meaning which results in a radical problematization of the academic goal of ‘knowledge production’. Instead of such ‘knowledge production’, transdisciplinarity in gender studies promotes intervention which reaches beyond the concepts of accountability, innovation and corporate management. I argue that Jacques Derrida’s promotion of the Collège International de Philosophie in 1982 in its particular relationship to the tradition of philosophy provides a parallel example of such an attitude. Adding to Joan Scott’s and Clare Hemmings’s insights on gender studies in terms of critique and transformation, I argue that transdisciplinarity as practice of ‘intervention’ is crucial for the construction of gender studies disciplinary identity, based upon apparent non-identity.

The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes

AbstractUsing the crisis in Ukraine and the annexation of Crimea as a foil, the aim of this article is three-fold. First, it offers an internal critique of the influential answers that normative theory and international jurisprudence provide to the paradox of constitutionalism. Second, building on critical engagement with these approaches, this article mobilizes constitutional theory to find a constructive response to the crisis in Ukraine that goes beyond the prescriptions offered either by normative theory or international jurisprudence. In doing so, it seeks to sketch a broad constitutional framework not forpostbut rather forearly-conflict constitution-making. The final aim of this article is to contribute to a richer self-understanding of constitutional theory vis-à-vis its disciplinary neighbors.

Explorations in History, Films and the Nation: A Study of the Representations of Kashmir Insurgency in the Hindi Mainstream Cinema

This paper engages with the politics of framing to explicate how Bollywood has framed the political, material and ideological compulsions of Kashmir insurgency, nation-formation, and citizenship in India. Moving beyond traditional readings, I will focus on the multiple ways in which the images of Kashmir's conflict in the past and present are communicated to, and shared in, the popular culture, highlighting the importance of “remembering” certain segments of the past and “forgetting” or ignoring others. This paper deals with the cinematic images that seek to challenge and renegotiate modern, political, and ethical dilemmas by exploring the constitutive tension, aporias, perplexities and paradoxes between— “man” and “citizen,” the principle of universal human rights and that of state sovereignty, the growing problem of statelessness, and biopolitical humanitarianism.

Holey Union: The Constitutional Paradox of Secession

There are secessionist movements in all parts of the world, encompassing both democratic and non-democratic countries. It is typically thought that this important phenomenon is regulated by international law alone. But, this article argues that when looking anew at constitutional law through the lens of secession, democracies’ weak spots are revealed. While political actors and scholars traditionally believe that bans on political parties ('militant democracy') and constitutional eternity clauses (`unconstitutional constitutional amendment`) are used and justified to protect democratic values alone, they are in fact also used to fight against secession. Democracies have been able to conceal their fight against secessionists, by creating a large gap between “the law on the books” and “the law as practiced.” This raises paradoxes so extreme, the democracies begin to appear to be using the tools of authoritarian regimes. In addition to exposing the facts on the grounds, the article also makes two normative claims: First, it argues that secession reveals the ways in which both doctrines—the ban and eternity clauses—are inextricably intertwined. This assertion is general and goes beyond the secession context. Second, the article argues that secession is helpful in revealing the intricate relationship between constitution-making and constitution-amending powers. Even those who hold that the power to amend the Constitution should be treated as equal to the constitution-making power may find that an exception is needed in the secession context. Secession may be regarded as an annihilation of the Constitution because it redefines the sovereign bodies. As such, secession necessitates extra-constitutional mechanisms. Contrary to the prevailing understanding that it is sufficient to garner the support of the seceding population, secession may require the independent deliberate consent of two new peoples—the seceding as well as the remaining population. Studying the delicate dance of constitutional democracies and secessionist movements not only enables a better understanding of constitutional law but may also shed new scholarly light on assumptions that Constitutions are generally silent about secession and may even implicitly allow it.

The Time of Animal Voices

Phenomenology’s attention to the theme of animality has focused not on animal life in general but rather on the animal dimension of the human and its contested relation with humanity as such. Phenomenology thereby reproduces Agamben’s “anthropological machine” by which humanity is constructed through the “inclusive exclusion” of its animality. The alternative to this “inclusive exclusion” is not, however, a return to kinship or commonality, but rather an intensification of the constitutive paradox of our own inner animality, understood in terms of the anonymous, corporeal subject of perception that lives a different temporality than that of first-person consciousness. This provides us with an entirely different context for encounter with non-human others, insofar as they speak through our own voices and gaze out through our own eyes. This position is developed through a reading, first, of the proximity of Merleau-Ponty’s early work with that of Max Scheler, who paradigmatically reduces human animality to bare life. Merleau-Ponty differentiates himself from Scheler by emphasizing, in The Structure of Behavior, that life cannot be integrated into spirit without remainder. Merleau-Ponty’s later work thinks this remainder as the ineliminable gap and delay in the auto-affection of the body and as a chiasmic exchange that anticipates Deleuze and Guattari’s concept of “becoming animal.” This remainder of life within consciousness is the immemorial past of one’s own animality. It follows that our “inner animality” is neither singular nor plural but a kind of pack that speaks through the voice that I take to be mine. Furthermore, in the exchange of looks between myself and a non-human other, the crossing of glances occurs at an animal level that withdraws from my own reflective consciousness.

From Constitutions to Constitutionalism: An Opportunity for Arab States, Not a Paradox

The paradox of modern constitutionalism resides in having two imperatives, apparently irreconcilable, i.e. a governmental power generated from the ‘consent of the people’ and, in order to be sustained and effective, that power must be divided, constrained and exercised through distinctive institutional forms. This paradox reflects the dilemma arising from the dialectical interaction between constituent power and constitutional form. I will argue that constitutionalism, as a limited government, does not contradict with Arab and Islamic legal culture. While modern constitutionalism, as a normative order, requires the adherence to the rule of law and the protection of human rights, it is in the name of national, religious, historic or cultural particularities that modern constitutionalism is discredited, as being essentially ‘Western’, not appropriate for Arab-Islamic culture. This paper challenges this rejection and argues for the possibility, and the necessity thereof, of applying modern constitutionalism in contemporary Arab states.

The Paradox of Administrative Preemption

Administrative preemption is a convenience and contrivance for modern government. But, as uncovered here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as (1) “Law” for federalism purposes and (2) “not Law” for separation of powers. The Founders surely never intended this. Although much has changed since then, resort to the Court’s interpretive glosses for modern government fare no better. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government. Perhaps administrative preemption is right, and the Court’s legitimating glosses for modern government are wrong. Or perhaps the inverse is true. This Article’s insight is that these cannot all be right — at least not without a new constitutional bargain.

Paradox and Legitimacy in Transnational Legal Pluralism

This paper analyses the understanding of legitimacy found in the innovative ‘transnational legal pluralism’ research paradigm that Peer Zumbansen establishes in a recent article in Transnational Legal Theory. While it was suggested that legitimacy will replace the constitutional paradox of traditional legal thinking, this research provides an adaptation to that claim. After first constructing the unavoidable permanence of legal paradox found in Niklas Luhmann's and Jacques Derrida's work, this characteristic of legal paradox is applied to the emerging concepts of input, throughput and output legitimacy that have proven essential for transnational legal regimes. The analysis argues that the legitimacy of transnational law proves to be no less paradoxical than constitutions. As such, building conceptualisations of legitimacy on these principles becomes significantly problematic. Instead, it is suggested that legitimacy should be based on a regime's ability to scrutinise its own understanding of its embeddedness in society, and as part of that, the grounds on which it selects input about its activities.

Truth, Perspectivism, and Philosophy

In Nietzsche’s later work the problem of the possibility of philosophy presents a significant interpretative and practical dilemma. Nietzsche attempts to undermine the idea of the absolute, as a source of value, meaning and truth, and to tease out the traces of this idea in our philosophising. He is thus one of those who has given us the means to complete the Kantian project of moving beyond metaphysical realism and a representational understanding of meaning. However, along with the gift comes a paradox. For Nietzsche’s diagnosis seems to make it clear that desire for the absolute is intrinsic to the practice of philosophy – that in important respects, philosophy just is the (hopeless) attempt to frame or discover overarching, contextless objectivity. Furthermore, Nietzsche’s analysis of philosophy is accompanied by a recognition and critique of the nihilism that arises in reaction to the collapse of absolutism. I suggest that we can find (in Nietzsche) a resolution of this paradox that involves the continuation of philosophy, not through a consciousness for philosophy, but through understanding philosophy as a process without a subject. That is, understanding philosophy as a practice that does not involve a moment that is the resolution of the paradox at all, but which is a process, involving the continual crisis of its paradox (which we might see as a constitutive paradox).

Scientific progress specific to biology: An epistemological overview

Progresses in leading edge life sciences are undeniable, but there is more to it: from an epistemological perspective, they rest on a paradox vitalizing the very project of biology. Making our understanding of organic functioning all the more objective, life sciences yet exploit a paradigm which structurally rules out any opportunity to explain why biological phenomena are explainable the way we claim they are. As such a blind spot is constitutive of the disciplinary boundaries that condition and permit objective modelling, evolutions in scientists' mode of thought (i.e. paradigm shifts) may require at crucial points some interaction with epistemologists or historians of sciences. The model case of ontophylogenesis thus shows not only how such cooperation can be useful (both in normal science and in transitional contexts), but mostly why it plays a role in helping biology to get out of its intrinsic paradox. The most innovative feature of ontophylogenesis would thus be the following: to give account for the mode of intelligibility it chose by explaining it – in a truly Darwinian manner –in the core of the theory. Though this epistemic move definitely confirms biology to be an autonomous science as long as it faces its constitutive paradox, the methodological detour such realization implied would go through occasional interplay with “exclusively reflexive approaches” – that is to say, humanities.

Polygamy in India - With Special Reference to the Bulkiest Constitution in the World

The research work analyzes the issue of Polygamy with reference to the bulkiest constitution in the world. Most of the debaters argue that the Indian polygamy law only prohibits polygamy among one religious group. Thus, current Indian law poses a constitutional paradox because permitting polygamy among Muslim men but prohibiting it among Hindus under the freedom of religion provisions violates the equal protection provisions of the Indian Constitution. The author takes a departure from this standpoint and argues that there are several reasons why Polygamy was not made punishable under the muslim personal law. The reasons are umpteen, i.e., historical reasons, political reasons, etc. which are further elucidated in the report. Relevant constitutional provisions and judicial pronouncements are being articulated and discussed with reference to the issue of Polygamy.Hence, the legislation in India, prohibiting polygamy among Hindus yet allowing polygamy among Muslims, is not unconstitutional and it doesn’t violate the provisions of Articles 13, 14 and 15 of the Indian Constitution.

Subjected Subjects? On Judith Butler's Paradox of Interpellation

Judith Butler's theory of the constitution of subjectivity conceptualizes the subject as a performative materialization of its social environment. In her theory Butler utilizes Louis Althusser's notion of interpellation, and she critiques the constitutive paradoxes to which its tautological framing leads. Although there is no pre‐existing subject, as it is constituted in the turn to the interpellative hail, Butler nonetheless theorizes a guilt and compulsion acting on an “individual” that compels his or her turn to answer the hail. There is a price to pay for subjectivity in Butler's schema: the reprimand of the interpellative law that punishes at the same time as it constitutes. But a return to Althusser's text finds that he does not rely so much on coercion and guilt in his explanation of the subject's answer to the hail. Althusser can instead be read as suggesting that we are already an instantiation and enactment of power‐ideology and, to paraphrase Michel Foucault, are already the principle of our own “subjection.” This contests the notion that we are in any way compelled to submit to an external, punitive force to become subjects. As subjects, we are always‐already the embodiment of the field of society‐power‐ideology.

Association and Exclusion: The Paradox of Liberal Constitutionalism

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

Constitutional Paradox in Feminism: A Refliction in Sighs of Silent Victims of Armed Conflict

The research paper is focused on some ground realities which are very rarely discussed in context of women. We, the people of India, have entered into the new millennium and even today our parliament has to frame new laws day by day first for the sake of protection, security and dignity of women. Did anyone ever probe into the root cause? Are we developing or our parliament will always be busy in enacting legislations for the safety of gender equality? What type of freedom we, the women are enjoying, if even today the women is overburden with family culture but man is not .There are plenty of laws enacted by parliament for the protection of women. But when the time comes for the application of laws, then political pressures cannot let the judiciary be independent. The ‘woman’ is the subject of feminist politics in India. The category of ‘woman’ as the subject of feminist politics in India reflects a failure of constitutionalism. The army for safety and security of a nation. It is sad to discuss the shabby picture of our army. Break out of armed conflict undoubtedly affect society, but women being particularly vulnerable are often the silent victims. Women are not directly involved in warfare, however, the major victims of warfare. There is no answer to this question that why a separate sect of feminist theories had to take to birth in spite of our ground norm ‘The Indian Constitution’ and ‘The Indian Penal Laws’? The directive principles of state policy provides under Article 39 (a) that state shall strive its policy toward securing equal rights to men and women an adequate means of livelihood. Then why a women have to chose to become a prostitute or call girl. Where are our equal economic rights? Even being good qualification there is a quite number of women who are being sexually exploited at workplaces but they are silent because of the fear of unemployment? We are celebrating 60th Republic Day but with hundreds of amendment and plethora of legal enactments. A woman has always been viewed in need of protection rather than being recognized as individuals with rights. Thus feminists have argued that view of women in need of protection and designation of rape as a crime against honor. Undoubtedly, the situation is much better than the past traumatic history of women. But at the same time, there is no newspaper which does not contain the news of rape, sexual harassment at work place, honor killings, NRI fraudulent marriage, abortions, female foeticide, domestic violence, dowry etc. etc.In India, in spite of special constitutional framework and guarantees in addition to other legislations. Crimes against women are rampant. They are on the increase. The constitution imposes a fundamental duty on every citizen through Article 51 A (e) to renounce the practices derogatory to the dignity of women. How many of us are aware of this fundamental Duty? Not many, I think so. A citizen is expected to comply and respect this fundamental duty. The gravity and responsibility becomes more on the shoulders of army. Everyone look at them with hope, trust and sense of security. When army becomes a danger for women-we can well imagine our security in future! We take pride in talking of our constitution making special provisions in favor of women- yes, indeed such provisions do exist - they were provided by the founding fathers, after great deliberations. But the question is: Have the women been able to reap the benefits provided for them under the constitution of India? The procedure for the attainment is justice is so lengthy that girl turned into women and women becomes old lady when she get justice and loses all hopes. There is still a long way to go to achieve the goals entrenched in the constitution.

Entre prescrições e singularizações: o trabalho em vias da criação

O presente texto enfoca a necessidade de tornar visíveis as múltiplas atividades industriosas atualizadas por parte dos trabalhadores em ambiente laboral regulado e ordenado, considerando as dramáticas dos usos de si como formuladoras de possíveis criações. Problematiza a incessante tensão entre instituído e instituinte como paradoxo constituinte das relações de trabalho. Aborda o que se passa nos processos de trabalho apoiando-se em alguns conceitos da abordagem ergológica e da obra de M. Foucault. Formula uma visão sobre os mundos do trabalho hoje que nos permite pensá-lo como luta cotidiana por modos de viver que afirmem a vida como tendência criadora.

The Paradox of Constitutionalism. Constituent Power and Constitutional Form – Edited by Martin Loughlin and Neil Walker

The Paradox of Constitutionalism. Constituent Power and Constitutional Form – Edited by Martin Loughlin and Neil Walker

Citizen Indians: Native American Intellectuals, Race and Reform; E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox

Book Review| December 01 2008 Citizen Indians: Native American Intellectuals, Race and Reform; E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox John David Miles John David Miles Search for other works by this author on: This Site Google American Literature (2008) 80 (4): 841–843. https://doi.org/10.1215/00029831-2008-044 Cite Icon Cite Share Icon Share Twitter Permissions Search Site Citation John David Miles; Citizen Indians: Native American Intellectuals, Race and Reform; E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox. American Literature 1 December 2008; 80 (4): 841–843. doi: https://doi.org/10.1215/00029831-2008-044 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search Books & JournalsAll JournalsAmerican Literature Search Advanced Search The text of this article is only available as a PDF. © 2008 by Duke University Press2008 Article PDF first page preview Close Modal Issue Section: Book Reviews You do not currently have access to this content.

The Constitutive Paradox of Modern Law: A Comment on Tully

The Constitutive Paradox of Modern Law: A Comment on Tully

The Paradox of Constitutionalism or the Potential of Constitutional Theory?

Modern constitutionalism, the editors of the collection of essays under review claim, has at its centre a paradox between the people as sovereign or constituent power and the constitution; constitutions are the creation of the people yet, once created, impose restraints on them. Examination of the paradox is the object of the essays in this volume. By doing so, the editors Martin Loughlin and Neil Walker contend, we shall be in a better position to understand a number of trends impacting upon ‘the activity of governing’ and ‘to throw new light on the character of the modern discourse of constitutionalism’.1 The result is a varied collection of essays, some philosophical, some case studies of constitutional systems, others exploring constitutional questions arising from globalization and the creation of supra-national institutions. The opposite trend of political communities emerging within national constitutional systems is the subject of one of the essays, while...

The Paradox of Constitutionalism: Constituent Power and Constitutional Form

The Paradox of Constitutionalism: Constituent Power and Constitutional Form