Juridical Order Research Articles

Biopolitics in the Trial of Jesus (John 18:28–19:16a)*

This article explores the biopolitical dimension of the trial of Jesus in John 18:28–19:16a from the Agambenian perspective of “bare life.” According to Giorgio Agamben, bare life, namely, life at risk of death through sovereign power, operates in the “state of exception.” The state of exception is a state wherein the threshold between the juridical order and anomie, or that between an insider and outsider of the juridical order becomes blurred as a result of a law that is suspended from its effectiveness yet is effective in its suspension. Jesus can be interpreted as a bare life in a zone of absolute undecidability in which both the Jewish and Roman laws simultaneously are operative and ineffectual. More specifically, Jesus is an insider in both the Jewish and Roman worlds on the grounds that he is subject to both the rules of Judaism and the Roman Empire. But at the same time, Jesus is an outsider from both the Jewish and Roman worlds explicitly because his kingship goes beyond both earthly rules (18:36; cf. 8:23; 17:14, 16). Paradoxically, Jesus is simultaneously an insider in and an outsider from each of the Jewish and Roman sovereignties. That is to say, Jesus lives in both of the sovereignties, while at the same time belonging to neither of them. It follows from this that Jesus resides in an in-between zone between insider and outsider. My contention, therefore, is that Jesus is such a liminal character—an unfixed and unfixable character in a zone of uncertainty—that he subverts the sovereign power and hierarchical dualism of the Jewish and Roman worlds.

‘Ye Haath Mujhe De Dey, Thakur!’: The Dacoit, the Insurgent and the Long Arm of the Law

This essay argues that the figure of the dacoit/daku in Bombay cinema functions as the subaltern who is interpellated by, and yet cannot be contained by, the strictures of ‘modern’ law in a newly-independent post-colonial state. Reminiscent of an older polity, where rural outlaw figures operated as rebels to the existing social order inflected by caste and gender, dacoits in popular Hindi films give voice to the peasant insurgent, dispossessed of his land by age-old caste-based, as well as new, forms of governance. Taking up three screen dacoit characters in Bombay cinema, Gabbar Singh from Sholay (1975), Phoolan Devi from Bandit Queen (1994) and Paan Singh Tomar from Paan Singh Tomar (2010), this paper argues that in its obsession with the representation of dakus, Bombay cinema betrays its anxiety about a post-colonial juridical order that continues with the oppressions of feudal and colonial hierarchies. Thus, Bombay cinema continues to rely on the subaltern as idea and concept in order to map the tension between a nationalist/statist history and a narrative of rebellion and resistance from below, particularly in caste terms. (The term ‘Ye haath mujhe de dey, Thakur!’, from Sholay, translates as ‘Give me these hands, Thakur!’).

Equilibrium Of The Governments By The Principle Of Subsidiary

The principle of subsidiarity on these days is not identified so much as a legal or philosophical concept, but as testing capabilities and possibilities of this principle. Application of the principle of subsidiarity is able to exploit the potential of all collectivity, fully implementing the Constitution. The task of the juridical order must be recognition of the dignity of every person; which should be promoted and evaluated through a legislation based on the principle of subsidiarity. This principle expresses a preference in performing the functions of government at the closest level of citizens. Subsidiarity can be of various types such as horizontal or vertical; positive or negative; static or dynamic; substantive or procedural. In some countries, subsidiarity is specifically defined in their constitutions, while in some other countries is implied. But this principle in the civil law is defined more directly. Subsidiarity does not find the same application in all states and this fact depends not only on each country's traditions but also and in their development. Key words: Subsidiarity, Constitution, State, juridical order, law.

Where Are Liberty and Law?: Subjectivizing the Naïve in Chénier, Pushkin, and Lermontov

This essay discusses Russian reception of Andre Chenier's 1794 ode to Young Captive, written while poet was awaiting execution in Saint Lazare prison. The French ode itself describes a scene of reception, as lyric subject overhears plaintive song of a female prisoner on other side of his cell wall and plies her lament into the gentle laws of verse. This scene depicts foundational tension of modern political subject, as naive, vitalist impulse to liberty (or revolution) is contained within a constitutional, juridical order. In his 1825 elegy to Chenier, Pushkin lays bare violence of this dialectical encounter, undermining foundational promise of European modernity. Subsequently, Lermontov rereads Chenier (and rewrites Pushkin) to recover ambivalence of modern subject's impossible position between liberty and law.

The Institution of Justice. Solidarity as the Obligation of the Moderns according to Durkheim

This essay is dedicated to Durkheimian conception of justice. The Hobbesian polarization between law and justice is considered paradigmatic for modern political thought. The Durkheim contribution is a significant reformulation of Hobbes’ alternative, able to highlight differently the constitutive tension between law and justice. Durkheim’s criticism against contract theories reframes the juridical order trough the concept of solidarity, considered by Durkheim as the unthought premise to modern obligation. The contract theory, has to been considered as the modern way to think the relation between society, individual, property and work. Thus, contract theory becomes the claim allowing the emergence of a new conception of justice able to call into question - by the way of the notion of fair contract – the formal premises on which contract itself is grounded. So characterized, social justice join the notion of solidarity reframing the concept of obligation itself.

Efectos causados por un legislador compulsivo en el principio constitucional de seguridad jurídica. El ejemplo de las amplificadas tasas judiciales

<p>La seguridad jurídica es un principio del Derecho totalmente constitucionalizado, y porta un contenido propio que, a la vez, se proyecta sobre todo el Ordenamiento jurídico para poder cualificarlo como tal, sirviendo de criterio indicativo de la veraz viveza del Estado de Derecho. No es desconocido que se ha venido contrastando desde hace años su debilitamiento material, al margen de su proclamación formal. Los últimos tiempos han incrementado exponencialmente ese padecimiento constitucional. En este trabajo se propone contrastar esa situación sirviéndonos de un ejemplo de actualidad: las relanzadas tasas judiciales y su encaje en el ámbito propio del referido principio constitucional. Se intentará demostrar que el resultado de ese ejercicio no será muy positivo</p>

From spaces of exception to ‘campscapes’: Palestinian refugee camps and informal settlements in Beirut

The recent literature on the refugee condition and spaces has heavily drawn on Agamben's reflection on ‘bare life’ and the ‘camp’. As refugees are cast out the normal juridical order, their lives are confined to refugee camps, biopolitical spaces that allow for the separation of the alien from the nation. But is the camp the only spatial device that separates qualified and expendable lives? What happens when the space of the camp overlaps with the space of the city? Taking the Palestinian refugee camp of Shatila in Beirut as a case, this study problematises the utilisation of legal prisms and clear-cut distinctions for the understanding of the production of bare life and spaces of exception. Isolated at the time of its establishment, Shatila is today part of the so-called ‘misery belt’. Physical continuities are also reflected by the distribution of the population as both Palestinians and non-Palestinians, including Lebanese, live in Shatila and the surrounding informal settlements. As physical and symbolic boundaries separating the refugee and the citizen blur, I argue that the exception is not only produced through law and its suspension. While legal exceptions place the Palestinians outside the juridical order, other exclusions run along sectarian and socio-economic lines cutting through the Lebanese body. As Shatila and the informal settlements are entangled, a new spatial model of analysis defined as the ‘campscape’ is proposed. Once the exception leaks out of the space of the camp, the campscape becomes the threshold where the refugee, the citizen and other outcasts meet.

The Silence of Ely S. Parker: The Emancipation Sublime and the Limits of Settler Memory

NAIS 1:2 FALL 2014 The Silence of Ely S. Parker 1 Articles MARK RIFKIN The Silence of Ely S. Parker: The Emancipation Sublime and the Limits of Settler Memory I’M WATCHING Lincoln in a movie theater, and in the middle it cuts from a scene about the machinations of political operatives paid by the Lincoln administration to secure House votes for the Thirteenth Amendment to a scene of General Ulysses S. Grant in Virginia meeting with Confederate commissioners . One of the men in the frame appears to me to be Native. Later, at the end of the film in a scene set at the Appomattox courthouse, the site of General Robert E. Lee’s surrender, that man returns, and I suddenly realize that it must be Ely S. Parker.1 A chief of the Tonawanda Senecas who played a central role in their fight to reclaim their reservation in the wake of the supplemental Treaty of Buffalo Creek of 1842, Parker served as secretary and aide to Grant from Parker’s enlistment in the army in 1863 through Grant’s election as president. The men originally met in 1860 while Parker was serving as a civil engineer in Galena, Illinois.2 The published screenplay confirms the historical identity of this figure on the screen, including Parker in the official cast of characters (Kushner, xvi).3 In the scenes in which Grant appears, though, it never designates Parker by name, instead including him as one of the general’s other unremarked “aides” (91), “officers” (140), or “staff” (157). Furthermore, at no point in the movie does he speak. The film’s screenwriter, Tony Kushner, clearly felt it necessary to represent Parker’s existence for the sake of accuracy, but even as the movie captures his presence, it vacates that fact of any substantive significance, with Parker functioning more or less as a historical prop. I could not help reading the film’s simultaneous awareness of his presence and failure to address it as a kind of allegory for the ways Native sovereignties, histories, and struggles with the U.S. settler-state cannot meaningfully enter into an historiographic imagination organized around the Civil War, especially one in which emancipation serves as the pivot point for narrating national time. Onto what other histories does Parker’s presence open? If we were to approach Lincoln as something like a distillation of how the Civil War continues to be envisioned Mark Rifkin NAIS 1:2 FALL 2014 2 in the U.S., how might Parker’s unnamed and silent appearance suggest the ways that such accounts of the U.S. past foreclose an engagement with Indigenous polities and geographies as well as the ongoing history of state assaults on them? In this way, Parker’s passing and unremarked entry into the film’s imagination can be read as a trace, pointing toward temporalities of indigeneity and settler colonialism that remain unintelligible within the narrative of the Civil War as epochal/redemptive break.4 Clearly a product of contemporary perspectives and sensibilities, ­ Lincoln suggests the role the Civil War plays in current forms of national self-­ representation, particularly as they seek to cast the United States as a multiculturalnationcommittedtomodesofantiracistinclusion .5 Withinthisvision of history, emancipation serves as a crucial marker of a national commitment to equality, but one that requires a break in the usual operation of the nation in order for the promise of liberty to be actualized. In Lincoln, the Civil War appears as a transformative caesura in the time/space of the nation, a state of exception in which the legal and political order of the country is suspended in the process of realizing national ideals. Giorgio Agamben suggests that “the state of exception appears as the legal form of what cannot have ­ legal form,” and he asks, “If the state of exception’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it?” (1, 23). A national norm of universal equality that has no precise legal status and that directly contravenes the institutionalized structure of chattel slavery ostensibly serves as the basis for a suspension of law in the...

Las transformaciones del concepto de empresa

In this work are presented a series of reflections about the importance and meaning of the concept of enterprise in labor relationships. The work shows how with the passage of the years a juridical concept was built. Which nowadays represents difficulties for the light of a globalized juridical concept and of market opening and that at least in laboral matter it traduce generally in difficulties for workers protection. By the same way here is commented the way of how this concept was built in laboral laws and how nowadays the enterprise is recognized in the Mexican laboral legislation showing its magnitude and meaning. In the other side this work analyzes how this juridical-laboral concept shows great limitations versus the diversity and complexity that nowadays has the organization of the enterprises. By the same way are studied the implications that the concept of enterprise could have since the recently approved reformation to the federal labor law in 2012 in México. The work comments the new regulation of the subcontracting in Mexico as a prove of the attempts of the legislator to regulate the new types of enterprise organization. The evolution of the concept of enterprise has been faster in other sectors of the Mexican juridical order as the trading and the fiscal where these norms had reflected the best way the evolution of the enterprises in their norms not the same as in laboral matter new types of enterprise organization. The evolution of the concept of enterprise has been faster in other sectors of the Mexican juridical order as the trading and the fiscal where these norms had reflected the best way the evolution of the enterprises in their norms not the same way in laboral matter which has severe implications. By its side the jurisprudence has done gentle and limited attempts for moving along the construction of a renewed concept of enterprise according with these times. These differences juridical-laboral of the concept of enterprise are severe when we talk about enterprises which operations overcome a country’s frontiers because in these cases the national law shows with more limitations and difficulties for its regulation. This work aims to propitiate the debate of the needs to represent the basic concepts of the laboral law as a required reflection for its renovation.

Retos de la gestión pública: presupuesto por resultados y rendición de cuentas

Document searches draw attention to the need to discuss, theoretically and practically, the challenges that must be faced by public administration in the management of preparing a budget by results and accountability, particularly when taking into account the useful tools in the process of ensuring “good government”.To do this, a conceptual analysis of both tools was performed. Firstly, the management by results approach is presented, along with the challenges that this new framework involves for the public administration in relation to the optimisation of the use of public resources, to ensure a transparent and equitable process and to improve the performance of public bodies, becoming the basis for better accountability (the second aspect analysed in the document).Accountability becomes a challenge, on being an effective means of monitoring and sanctions between society and government, through which the public servants have to respond, explain and justify their actions, subjected to an ethical and juridical order, to the completing of objectives. It is here where the direct participation by the civil society is fundamental for the evaluation of the results.The document analyses these concepts at a time when our country has the improvement in the quality of public spending as a national priority. Thus, the results approach in the budget preparation has to be considered, by those responsible for economic policy, such as a key mechanism to achieve this, and in turn accountability is particularly linked, to the push that it attempt to give to social policy, as an important element in the administration for the management of public funds, which can help to ensure the effectiveness and transparency of these processes.

The Observance of the International Acts from the Albanian Penal and Procedurial Penal Legislation in Consideration to the Juvenile Protection

The juveniles’ right bore and is getting developed as a very important branch of the law. The principals that should be followed to respect the juveniles’ rights in the normative and institutional aspect dwell there. The foundations of these principals are placed in many international acts, specific for the juveniles. This work aims to fulfill a comparative study between the international legislation and that of the Albanian state, in protection of the juvenile. The aim is a two-folded one: firstly to observe up to what stage the Albanian legislation guaranties this protection keeping in mind the international standards and secondly to identify in the specific internal laws of the Albanian government the provisions that ensure the juvenile protection. It cannot be spoken of a mere juvenile justice system in Albania that not only can recognize their rights but also execute them accurately. The first step made toward this direction is the recognition of these rights in the Albanian legislation, the ratification of different international acts in protection of the juvenile. The circle of the rights presented to the children in the internal juridical order in Albania is growing. It is of a great importance that even in Albanian the branch of the juveniles’ rights can be observed as a special branch of the justice in general with its own principals accompanied by a convenient judicial practice. This, in order that the juvenile (mainly the delinquent juvenile), can have reliefs to grow up and get developed within the social community where he lives. The internal laws that will be analyzed are: The Constitution, The Penal Code and The Code of Penal Procedure of the Albanian Republic. DOI: 10.5901/mjss.2013.v4n9p175

¿Ideal democrático? Del activismo judicial a la constitucionalización del derecho

La constitucionalización del derecho en Colombia obedece a una participación activa del juez, en particular del juez constitucional. El precedente judicial fuente del derecho es una muestra de la inclusión del juez en el escenario constitucional como garante de la democracia y del derecho. El ideal democrático incluye irreversiblemente al juez constitucional y sus interpretaciones. La sobreinterpretación del derecho responde a una interpretación amplia de la Constitución y a la construcción de normas que en algo contribuyen a llenar las lagunas del derecho. Con ello, el neoconstitucionalismo, es constitucionalizar el ordenamiento jurídico.

States of Exception, Ethics and New Beginnings in Middle East Politics

The work of philosopher Giorgio Agamben on ‘states of exception’ generated discussion across various fields of enquiry about the suspension of juridical norms in liberal democracies. In the wake of Agamben's influential writing, ‘state of exception’ commonly stands for the manifest might of the governing. However, the governed can also ethically refashion themselves under states of exception of their own. This essay goes beyond a juridical understanding of exception by examining an ethical exception in the texts of three writers whose politics exude a sense of encompassing emergency in the Middle East. They are Palestinian novelist Ghassan Kanafani, US peace activist Rachel Corrie and Egyptian Muslim Brotherhood theorist Sayyid Qutb. I discuss ways these writers conceptually expand exception's relation to norm—from that of suspension to that of cohabitation and complicity with the norm. Informed by Hannah Arendt's discussion of the human capacity to begin anew, I argue that, when not confined to the quandary of juridical order, state of exception can emerge as subjects' ethical capacity for political renewal, one that is not necessarily beholden to sovereign state power over law and life.

La Revolución Francesa : Una Perspectiva Histórica Para Entender Su Legado Jurídico En Latinoamérica (The French Revolution: A Historic Perspective to Understand its Legal Legacy in Latin America)

The article reviews the historic context in which the French Revolution took place, including the political and economic order existing at the time of the Revolution, the rejection of that order by the revolutionaries, and the basic ideas upon which they built the new political and juridical order in France. The article highlights the ideology, the passions, and the political schemes designed by the revolutionaries as these developed in the aftermath of the French Revolution.

Democracy Under Threat: The Use of Privative Clauses to Circumvent Judicial Review in Australia

Australia’s current migration legislation has a number of privative or ‘ouster’ clauses that either limit or bypass the judicial review processes. The partial suspension or withdrawal of the juridical order has been characterised by juridical exceptionalism with the insertion of these special clauses into legislation that confer wide discretionary powers on public offices and limit particular types of judicial inquiry. Such clauses attempt to restrict the obligations of ministerial review and they impose strict time limits on appellants seeking to challenge decisions made by ministers and their delegates. The application of privative clauses in federal legislation, particularly in migration legislation, has been a controversial aspect of recent policy making because this process challenges the separation of powers principle inherent in democratic systems of government. As a result, the contestation between the powers of the law makers and the oversight function of the judiciary has far reaching consequences for Australian democracy, and it opposes long established common law principles that legislative action should not be immune from judicial oversight. This paper argues that the insertion of privative clauses into Australia’s migration legislation has significantly reduced the degree of separation between the legislature and the judiciary to such an extent that government migration policy is ethically deficient and, as the High Court has recently determined, legally flawed.

Direito fundamental à cidade sustentável e os dilemas do planejamento urbano no estado democrático de direito

No bojo das inovações pertinentes ao direito urbanístico trazidas pelo Estado Democrático de Direito, o presente artigo objetiva abordar o direito fundamental à cidade sustentável seguindo pelos meandros de sua relação com o princípio fundamental da dignidade da pessoa humana, uma vez que o ambiente citadino se caracteriza, essencialmente, por ser espaço político, social, cultural e filosófico, em que é possível o desenvolvimento das potencialidades humanas. Nesse sentido, é realizado um estudo sobre os diferentes institutos jus-urbanísticos em vigor no ordenamento jurídico pátrio, conferindo especial ênfase à Lei Federal 10.257 - autodenominada Estatuto da Cidade - ao Plano Diretor Municipal, assim como as mudanças paradigmáticas ocorridas com a positivação da função social da cidade e da propriedade na Constituição da República federativa do Brasil.

Blacklisting and the ban: Contesting targeted sanctions in Europe

This article examines the practice of targeted sanctions as they are deployed against individuals and groups suspected of financing and facilitating terrorism in Europe. Substantial academic attention and critique has surrounded targeted sanctions and blacklists, as these practices challenge existing logics of evidence, criminal culpability and proportionality. This article seeks to move the analysis of blacklisting beyond the breach of individual rights and toward an understanding of the wider political implications. It draws upon the work of Giorgio Agamben to offer a reading of blacklisting in terms of its symbolic function of banishment and exclusion, which simultaneously redraws the boundaries around normal, valued, ways of life. The article teases out the exceptional and pre-emptive nature of blacklisting as a security measure. It analyses in some detail the Kadi case before the European Court of Justice, and argues that blacklisting and its current contestations work to inscribe the principles of pre-emption into the international juridical order.

<b>“Novas” “Sensibilidades” Velhas Decisões: notas sobre as transformações jurídicas recentes.</b> <br>doi:10.5007/2177-7055.2011v32n62p79

The declarations and international conventions allied with the organization and mobilization processes of social groups of ethnic identity resulted, in recent decades, in profound changes to the Brazilian juridical order. The recognition of social and cultural diversity brought “legal pluralism” to the law. This notion, that was taken as an instrument of criticism of positive law, and therefore, treated as something “residual” or “peripheral” is brought to the center of reflections about law. It is observed that this process takes place inside a juridical order, which is also transforming itself, creating what might be called a “new” “juridical sensitivity”. Other concepts are incorporated to the “legal pluralism”, composing a lexicon of terms, fired indiscriminately by the interpreters of the law. In this changing environment it is possible ask: does this “new” “juridical sensitivity” tend to contribute to decisions that can be considered fairer, taking into account the social reality which is taken as plural and complex, with its deep economic contradictions?

<b>“Novas” “Sensibilidades” Velhas Decisões: notas sobre as transformações jurídicas recentes.</b> <br>doi:10.5007/2177-7055.2011v32n62p79

The declarations and international conventions allied with the organization and mobilization processes of social groups of ethnic identity resulted, in recent decades, in profound changes to the Brazilian juridical order. The recognition of social and cultural diversity brought “legal pluralism” to the law. This notion, that was taken as an instrument of criticism of positive law, and therefore, treated as something “residual” or “peripheral” is brought to the center of reflections about law. It is observed that this process takes place inside a juridical order, which is also transforming itself, creating what might be called a “new” “juridical sensitivity”. Other concepts are incorporated to the “legal pluralism”, composing a lexicon of terms, fired indiscriminately by the interpreters of the law. In this changing environment it is possible ask: does this “new” “juridical sensitivity” tend to contribute to decisions that can be considered fairer, taking into account the social reality which is taken as plural and complex, with its deep economic contradictions?

Colombia's Drug Trafficking Subculture: Its Literary Representation in La Virgen de los sicarios and Rosario Tijeras

IntroductionVIOLENCE SEEMS TO FORM a central part of Latin American and Caribbean history. In fact, Latin America has not only suffered from colonial violence, which has condemned it to its peripheral position, but it has also experienced the violence inherent in the very constitution of the state and social order. In addition, the current era of globalisation has intensified this phenomenon, as it has deepened the state of dependency and the inequality which exist within and beyond national territories.The focus on Colombian violence and its literary representation may seem limiting, as this is a social problem that has spread throughout the continent, and the Caribbean.1 However, the increasing use of the term colombianisation within national and international borders to define a situation of extreme violence, illustrates the cultural and political significance this country has assumed on the global stage, in relation to violence. Indeed, Colombia has been subjected to multiple forms of violence, and this multiplicity has been completely infiltrated by the submerged economy of drug trafficking organisations.2Over the last twenty-five years this widespread violence has ceased to be a rural phenomenon and has taken on many urban features. This is due to the fact that the war between drug barons, guerrilla and paramilitary groups, and the high levels of unemployment in the countryside have forced people to abandon rural areas in large numbers. Thus, Colombian cities have experienced an uncontrolled expansion of outlying areas called comunas, labyrinthine territories excluded from the benefits of the city and which consequently do not abide by the rules established for the rest of the metropolis. Using the term coined by Carlos Monsivais,3 these cities have become 'rituals of chaos' where fear, as a common denominator, permeates social interactions, leading to the existence of multiple subcultures through which frustrations and conflicts affecting many social sectors are expressed. Although this situation has increased the fragmentation of the city and implied a dramatic rupture in the social order, it has not manifested itself as a catastrophe because it offers a variety of opportunities. Violence, far from being an ephemeral product, has turned into the financial base of many Colombian citizens,4 and the professionalisation of 'the violent' has become a part of the country's informal economy, giving rise to a society dominated by terror. This is what Susana Rotker has defined as 'the citizenship of fear',5 a market tendency in which the lack of trust between one citizen and another intensifies, marking the shift from citizen to potential victim.Bearing in mind the weakness of the state,6 membership in the criminal Colombian underworld seems to be a unique way out - often perceived as a magical solution - an escape not only from economic problems but also from social invisibility. In this context, the emergence of the drug trafficking subculture, while establishing a strong criticism of capitalism, suggests a criminal way out that constitutes a modus operandi in the anomic sectors. Indeed, drug trafficking offers an exhilarating route to enrichment and social recognition. In the analysis of any subculture it becomes difficult to determine if such a culture operates within or against the base of the hegemonic one, which, in this case, may be seen as a paradoxical linkage. The drug trafficking subculture, whilst implying a notion of difference from the dominant culture, imposing itself against the institutional juridical order and installing a set of special values, symbols and merchandising, is in fact, within certain parameters, constituted by this same hegemony, as fashion and consumerism.Youngsters inhabiting the marginal areas of the city, the comunas or urban ghettos, are the most vulnerable group within this world of crime and murder linked to drug trafficking. They have been trapped in a global system and a society that is existing within one of the strictest paradigms of neo-liberalism and capitalism operating during the last decades of the twentieth century. …