Juridical Form Research Articles

Correction: Legal Survivals and the Resilience of Juridical Form

Correction: Legal Survivals and the Resilience of Juridical Form

Legal Survivals and the Resilience of Juridical Form

AbstractLegal institutions are created at a certain point in time, intended to be applied to ‘life’ as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions—referred to in the paper as “legal survivals” –outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico–genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socio-economic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law’s claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest.

Legal Survivals and the Resilience of Juridical Form

Legal Survivals and the Resilience of Juridical Form

Civil Justice as An Option for Fulfilling Environmental Justice Through The Principles of Ius Curia Novit and Rechtsvinding

Civil trials on the principle of ius curia novit and rechtsvinding become a breath of fresh air for justice seekers seeking their laws that fulfill the ideè des rechts (rechtssicherheit: legal certainty, zweckmässigkeit: expediency, and gerechtigkeit: justice). The principle of ius curia novit which means that the judge is considered to know the law becomes a space for judges in making legal discoveries (rechtsvinding). The implementation of laws by judges is not merely a matter of logic and proper use of the mind, but rather the provision of juridical forms rather than basing on juridical experience and judgment rather than basing on abstracts, because the law cannot be complete, only one stage in the process of forming a law that is forced to seek its completeness in the legal practice of the judge. The judge's wiggle room in fulfilling the sense of justice for justice seekers in the environment as the decision No. 374 / Pdt.G / LH / 2019 / PN.Jkt.Pst which granted the lawsuit of the plaintiffs (Advocacy Team of the Capital Movement (Initiative to Clean the Air of the Universe Coalition) based the findings of the judge's law, basing on Decision Number: 36 / KMA / SK / II / 2013 concerning the Enactment of guidelines for handling environmental cases. Keyword : ius curia novit, rechtsvinding, onrectmatigedaad, lawsuit, environment.

Philosophy Of Law And The Development Of Law As A Normative Legal Science

Philosophy is an attempt to fundamentally study and express a man's depiction in the world towards the afterlife. The object is material and formal. Through this normalization of human behavior, the law traces almost all areas of human life. Legal philosophy analyzes the legal principles and answers questions related to legal problems in both normative and empirical juridical forms so that legal objectives can be achieved, namely for improvement in human life. The method of approach used is normative juridical, analytical descriptive research specifications are expected to provide a detailed, systematic, and comprehensive picture based on the correlation of data with each other on the Philosophy of Law and The Development of Law Normative Legal Sciences. The type and source of data used are secondary as a primary data source, consisting of primary legal materials, secondary legal materials, and tertiary legal materials. The data analysis method is qualitative. The legal theory does speak of many things that can fit into the political field of law, legal philosophy, legal science, or a combination of those three fields. Therefore, the theory of law may at some point talk about something universally numbered. Still, he may be talking about very specific things according to a particular place. The function of the law is not enough just as social control, but more than that. The function of the law expected today is to move the community to behave by new ways of acting or behaving by the provisions of the law.

Drei Stufen der Gleichheit?

The text develops three theses: First, equality has three juridical aspects, namely universal equality, particular equality and social equality. Second, liberal freedom must always appear in these three aspects simultaneously in order to become concrete and real. Third, equal freedom is not exhausted in this liberal juridical form but strives beyond it by itself for quasi-revolutionary change.

Imagination as Crisis: Spinoza on the Naturalisation and Denaturalisation of Capitalist Relations

Abstract Many current Marxist debates point to a crisis of imagination as a challenge to emancipatory thoughts and actions. The naturalisation of the capitalist mode of production within the production of subjectivity is among the chief reasons behind this state of affairs. This article contributes to the debate by focusing on the notion of imagination, marked by a deep ambivalence capable of both naturalising and denaturalising social relations constitutive of the established order. Such an understanding of imagination is constructed from within the framework of historical materialism, and it draws on Spinoza and Marx, taking advantage of the similarities between the two with respect to the constitution of the subject. From this stems an investigation into the imagination as a material force that partakes both in subjection and liberation. This is further demonstrated in regard to juridical forms of subjectivation and the possibility of subverting these forms through imagination.

International Juridical Forms and Legal Subjectivity: A History of the Subject in Southeast Asia from the Anglo-Dutch Treaty of 1824 to the ASEAN Charter

AbstractUsing Michel Foucault's concept of modes of objectification, this paper argues that treaties, declarations, and agreements constitute international juridical forms that transform human beings into legal subjects. It retraces the objectification of “natives” in nineteenth-century colonial treaties that made human beings accessories to territories and transformed them into colonial subjects. This legal construct, the paper contends, was rendered unstable in the UN era when treaties re-objectified the “natives” into “peoples”, thereby allowing colonial subjects to re-subjectify themselves into actors and re-describe themselves with an adjective, a nationality. The paper then brings the history to the twenty-first century and posits that ASEAN is now objectifying new trans-national subjects that are ontologically connected to the regional economy. This history of legal subjectivity reveals not only the power of international juridical forms as a mode of objectification, but also the trajectory of subject formation in Southeast Asia under the ASEAN Charter.

New materialism in business ethics: the juridical form as a disciplinary apparatus

This paper contributes to the philosophical approach of business ethics by inserting the current state of business ethics, which is captured by semi-legal casuistry and frameworks, and Karan Barad's posthuman theory known as 'new materialism', into a proposal for the study of business ethics. The merging of business ethics and posthuman theory results in a so-called 'posthuman approach to critical business ethics'. My proposition is that these semi-legal frameworks weaken the field of business ethics, or even make it disappear. In addition to descriptive, empirical, social-scientific business ethics, there is also philosophical, normative, critical business ethics. This paper is written in the belief that these two branches of business ethics are navel-gazing toward legal or semi-legal frameworks - such as self-regulation and alternative dispute resolution (ADR) - creating a discourse of utility and regulation, rather than a discourse of ethics.

New Materialism in Business Ethics The Juridical Form as Disciplinary Apparatus

This paper contributes to the philosophical approach of business ethics by inserting the current state of business ethics, which is captured by semi-legal casuistry and frameworks, and Karan Barad's posthuman theory known as 'new materialism', into a proposal for the study of business ethics. The merging of business ethics and posthuman theory results in a so-called 'posthuman approach to critical business ethics'. My proposition is that these semi-legal frameworks weaken the field of business ethics, or even make it disappear. In addition to descriptive, empirical, social-scientific business ethics, there is also philosophical, normative, critical business ethics. This paper is written in the belief that these two branches of business ethics are navel-gazing toward legal or semi-legal frameworks - such as self-regulation and alternative dispute resolution (ADR) - creating a discourse of utility and regulation, rather than a discourse of ethics.

State and Law in young Marx: epistemological and theoretical elements from a post-Marxist approach

This paper seeks to identify some epistemological and theoretical paths in young Marx´s writings about law, in order to suggest a critique of current state and law from a post-Marxist view. First, the paper argues that young Marx draws the basis for a materialist and political critique of law against idealistic and dogmatic approaches. Second, the bourgeois opposition between unreal generality and real individuality -identified by the young Marx – allows us to analyse law as a juridical form rather than a utopian or essential content of the social. Finally, the young Marxian distinction between political emancipation and human emancipation leads us to think, on the one hand, about the juridical institution of the liberal individual – as isolated monads – and, on the other hand, about the intimate relationship between law and its transgression.

Labour Law, Capitalism and the Juridical Form: Taking a Critical Approach to Questions of Labour Law Reform

Abstract This article seeks to demonstrate the potential contribution that a closer attention to structural factors can make to our understanding of some of the practical problems, such as the problem of personal scope, facing labour law today. This means engaging closely with questions about labour law’s socio-economic function and, in turn, the socio-economic function of its juridical form. Having shown the importance of engaging with these issues, drawing on the works of Karl Korsch, Karl Renner and Evgeny Pashukanis for this purpose, the article shows how we can use this structural understanding of law, and labour law, to constructively inform our interventions in contemporary debates about labour law’s personal scope.

Offshore Mysteries, Narrative Infrastructure: Oil, Noir, and the World-Ocean

Situated within debates of world literature, petrocultures, and the blue humanities, this article provides a methodological approach to interpreting genre, energy forms, and world-literature. This relies on Dominic Boyer’s concept of ‘energopolitics’ (adapted from Foucault’s biopolitics), which considers the codependence of political power, electricity, fuel and energy infrastructure. Echoing Fredric Jameson (1981) and Patricia Yaeger (2011), the article argues that looking for a text’s ‘energopolitical unconscious’ is a means of discerning the way energopolitics and energy are encoded in world-literary plot, form, and genre. Then, it turns to a comparative reading of two novels, Carlos Fuentes’s The Hydra Head (1978) and Ian Rankin’s Black & Blue (1997), to argue that such novels provide an understanding of relationships between world-literary genre, forms of energy, and the world-oceanic regime of the offshore. The offshore is a juridical-spatial regime that circumvents nation-state regulation through extraterritorial ownership practices. It is a political and infrastructural power over the oceanic flows of capital and energy, to produce a spatial environment that exceeds the juridical boundaries of nation-states. Thus, if the world-ocean is the space upon which fossil capital depends for its realisation, the offshore is the legal form of fossil capital in the world-ocean. Finally, the article argues that noir mysteries are the genre of the offshore, as it is a genre particularly capable of indexing its social tensions. Noir’s settings and atmospheres are intimately connected with petromodernity’s infrastructure: hotels, highways, flickering streetlights and eerie hinterlands, ports and warehouses; the mystery is an excellent formal device, providing both narratorial motivation and a code for traversing imagined territories and detecting their secrets. At the same time, noir’s generic investment in investigations of legality and power—its ‘legal grammar’—makes it a useful stage through which to pursue questions of sovereignty, ocean-space, territory, and juridical forms.

Taking the Bundle of Rights Seriously

After a painfully long set up, that attempts to ground three claims about property law (in general) and the nature of the beneficial interest (in particular), this article considers two arguments about the law of discretionary trusts. The first is the bundle of rights argument. This argument concerns the interpretation of "property" in legislative provisions. It suggests that where legislation is concerned with the structure of the social relationships that property institutions facilitate (rather that the juridical structure of rights and duties under property law), interpretations regarding what amounts to a "property" interest should also be "functional" (rather than "formalistic"). The second argument is the concept of the illusory trust. This argument concerns the standard package of constitutive elements required by trust law when a settlor uses the trust institution to order his or her affairs. Where an ostensible trust lacks a constitutive element, it can be said to be illusory. I consider here recent attempts to further delineate the concept of the illusory trust, that look to the "substance" or "reality" of the trust, and in doing so, shift our attention away from juridical form and onto social function. I will argue that only the former argument needs to be taken seriously.

The Politics of Death and the Question of Palestine

Abstract This article considers the work of Hannah Arendt and Ghassan Kanafani in relation to the social and juridical logic and form of the settler colony and of the settler-colonial logic and form of the Israeli state and its ideology, Zionism. The argument is framed in relation to two moments: (1) the notion and practice of Bildung—education, training, formation—where the subject of language, in becoming literate, thoughtful, and self-reflective, is to become a being that recognizes itself and others in these and related terms: as legible, autonomous, and self-determining; and (2) the ongoing debates around the politics of death, articulated through the writing of Michel Foucault, Giorgio Agamben, Carl Schmitt, Achille Mbembe, and Arendt. The article argues that, insofar as they presume an understanding of Bildung as a principal category of social thought, these debates reiterate the terms they claim to diagnose or contest. It also argues that, in their affective relation to decolonization, Arendt—and Foucault and Agamben—conjures and advances a social panic in a desire to domesticate the destabilizing force of anticolonial struggle. Finally, the article reads Kanafani’s Rijāl fī al-shams (Men in the Sun) to argue that Kanafani’s novelistic practice discombobulates the terms privileged in the settler colony and in its social and literary logic and form, as it promises a nonredemptive, anomic, and non-state-centric futurity.

Across Islands and Oceans: Re-imagining Colonial Violence in the Past and the Present

The three texts addressed in this review essay challenge us to question and creatively re-imagine the representation of material spaces at the centre of the colonial project: oceans, islands, ships and archives. Elizabeth McMahon deconstructs the island and its metaphorics, charting the relationship of geography, politics and literature through the changing status of islands, as imagined by colonists, beginning in the Caribbean and ending in Australia. Renisa Mawani destabilises colonial geography by re-animating the ocean and presents, amongst others, the ship and the ocean, as both method and juridical form. Writing against the ‘free sea’, Mawani addresses the imperial reliance on control of the ocean and the intensive juridification of the sea. Stewart Motha re-imagines law’s aggressive acts of adjudication, and challenges its originary fictions by exploring the logic, aesthetics and violence of legal processes that preserve and disavow the past at the same time. Each monograph considers the imaginaries, fictions and material geographies of colonialism, alongside how these imaginaries have been used as sites of counter-claim and resistance by those subjected to their technologies.

From the Blacksmith’s Forge to the Fires of Hell

Early Buddhist texts were first being composed and compiled during South Asia’s Iron Age, and thus contain many references to iron and other metal technologies. This article examines one metalworking image that came to play a special role in the imagination of early Buddhists: the red-hot iron ball. I argue that the iron ball, which comes to be a torture device in hell, force-fed by hell wardens, is a mimesis of the pi??ap?ta, or almsfood offered to monks and nuns by the laity. Around iron ball imagery clusters a set of related Buddhist concerns: anxieties about undisciplined and deceitful monks and nuns, especially in relation to taking alms; the public perception of the sa?gha; the conceptualization of Buddhist hells as an unfortunate karmic result of lacking discipline; and the relationship between these hells and Indian juridical forms of punishment.

Legal form determination for the development of clusters' activities

In this study, the authors have investigated the determination of the most suitable legal form for the development of the cluster management activities. In each particular case the developers of the cluster have to assess the objectives of the cluster, the principal aspects of the mutual partnership, the risks that could be provoked, and in accordance with the derived decisions. The choice of the cluster legal activity form depends on the objectives and on the branch in which the cluster is operating, on the number of the cluster participants, on the type of the activities of the cluster, on the openness or closeness to new members, type of the contributions of the partners and the other factors. The most reliable solution regarding the choice of the model of the functioning and management of the cluster has to be derived as well legal regulation of the legal form of the activity discussed. The advantages and disadvantages of two models of the cluster formation discussed. During experimental evaluation, the significance of criteria was determined and the expert evaluation on legal form for the 245 development of clusters activities was performed. Foundation and management of the clusters are determined firstly by the fact that in one case a new established legal person performs the functions of the cluster coordinator while in another case one of the cluster participants performs the functions and partners legal cooperation determined by Agreement on Partnership. Article analyses the multi-criteria decisions-making to establish the cluster with the certain type of juridical form of legal person or to develop cluster management activities by the Partnership Agreement. The recommendations presented by application of MCDM calculus methods with aspect of percentage.

Foucauldian rituals of justice and conduct in Zainab Salbi’s Between Two Worlds

This article explores the Iraqi-American life writer Zainab Salbi’s memoir Between Two Worlds: Escape from Tyranny; Growing up in the Shadow of Saddam (2005) in the light of a Foucauldian framework to examine both visible and invisible tactics of power once exercised by Saddam Hussein’s authoritarian regime. The Foucauldian analysis of juridical forms and sovereign power as features of governmentality and political rationality are useful in understanding Salbi’s narration of Saddam Hussein’s use of the law and law-like regulations for perpetuating his authoritarian domination. I argue that through the ritual exercise of justice and conduct, the portrayed tyrant achieves the subjugation and constitution of individuals as well as the control of groups. The article suggests that by documenting her life story in an act of Foucauldian indocilité, or conscious insubordination, Salbi desubjugates the established politics of truth, and in so doing, detaches herself from the various modalities of subjectivity that the specific strategies of governmentality seek to formulate and impose on her as an Iraqi individual.

“De tormentas en el lenguaje”. Gli affanni identitari di Ceuta e Melilla

Abstract – The present paper aims to shed light on the linguistic contacts that take place in the Spanish offshoots of Ceuta and Melilla. The two cities, considered essential outposts in the colonial configuration of the then glorious empire, were subsequently incorporated – through a dubious juridical form – into the Spanish societal landscape. Their adhesion to the European concert had then expanded the space of interconnection between migrations, cultures and languages. In order to accurately analyze the linguistic and socio-political peculiarities of Ceuta and Melilla, it is necessary to start from the history of their identities, marked by the image of the fences, once built to defend them from invaders, today to stem the phenomenon of migration. The defensive barriers, in fact, have not hindered the transit of new expressions and linguistic forms, subsequently incorporated into the register of native speakers. What was the result of these encounters? Moreover: what is the impact on the already problematic Spanish identity issue? We intend to answer these questions, in attempt to describe – with clarity and disenchantment – the image of a nation in constant evolution, poised between its ancient pains and its aspirations for the future.