Juridical Order Research Articles

Where asylum-seekers wait: feminist counter-topographies of sites between states

This article examines topographies and counter-topographies of power operating transnationally across a range of sites inhabited by asylum-seekers en route between nation-states. In locations such as tunnels, detention centers and islands, journeys across time and space are truncated in myriad ways. For asylum-seekers, temporality is often conceptualized as waiting, limbo or suspension. These temporal zones map onto corresponding spatial ambiguities theorized here as liminality, exception and threshold. A feminist counter-topography of sites along time–space trajectories between states addresses both the architecture of exclusionary enforcement practices that capture bodies, and the transgressive struggles to map, locate, counter and migrate through the time–space trajectories between states. In outlining such counter-topography, the analysis enters into conversation with transnational feminist scholarship on politics of location and differentiation in order to challenge the universal dimensions of Giorgio Agamben's zones of exception that leave the un-differentiated body always paradoxically outside of juridical order.

A Search for Sovereignty: Law and Geography in European Empires, 1400 – 1900

A Search for Sovereignty: Law and Geography in European Empires, 1400 – 1900

Rationality, the rule of law, and the sovereign return

Spectres haunt the rule of law in South Africa. Law is deeply implicated in constituting and sustaining the structures and practices of the colonial and apartheid regimes. Despite this legacy, law is at the heart of transformation and renewal. The constitutional dispensations of 1994 and 1996 expressed a great faith in law - especially in 'the law of the law'. The early transformative metaphors of the 'book' and the 'bridge' in the Epilogue to the interim constitution evidence the aspiration that the introduction of a fundamental law and constitutional supremacy would help a fractured and wounded polity to turn the page, 'open a new chapter', and journey to a new social and political order. The abandonment of parliamentary sovereignty in favour of constitutional supremacy placed the rule of law and its custodians - judges - at the apex of the juridico-political order. It can of course be argued that this dispensation was arrived at through a representative and deliberative process where the peoples' delegates constituted a new order, which, through democratic means, posited the constitution as supreme. This reflects a feature of many modern liberal constitutional orders that claim to logically sustain the tension between constitutional supremacy and the sovereignty of the 'people', or indeed to sustain a productive tension about where sovereignty is located. This very liberal story is replete with tensions and contradictions - ones that are amplified and potentially unsustainable and undesirable in the South African setting. In this essay I consider aspects of the rule of law and constitutional supremacy as a feature of neoliberal governance. I contrast this with approaches to plurality that can inform the rule of law in ways that are more consistent with the aspiration of renewing the social and juridical order.

Sovereign Times: Acts of Creation

Contemporary understandings of sovereignty have generally followed, or borrowed heavily from, Carl Schmitt’s theory of the exception, which Giorgio Agamben refers to as a “topological” concept. Schmitt conceives of the sovereign as a figure who exists both inside and outside of the juridical order. This paper suggests that Schmitt’s theory of the sovereign exception involves not only a topology, but also a temporality, in that it treats the decision as a single, compacted instant — one in which crisis, decision, and decider all miraculously leap into existence. It further suggests that Agamben’s interpretation of Saint Paul’s “ ho nyn kairos” or “time of the now,” and his distinction between the prophet and the apostle, effectively reinforces the Schmittian conception of “sovereign time.” As an alternative, I refer to Jacques Derrida’s work on iteration and undecidability, and maintain that genuine decisions cast us into, rather than delivering us from, the aproias of time.

Bare Life, Interstices, and the Third Space of Citizenship

The Italian philosopher Giorgio Agamben s enigmatic treatise on the intricacy of sovereign power and the state of exception in his Homo Sacer has received wide critical attention from and social theorists in the past decade. In gesturing to the condition of the modern concentration as a paradigmatic case of what he calls - human subjects reduced to a naked depoliticized state without official status and juridical rights - Agamben identifies a similar form of totalitarian power operating in the juridical realm of contemporary liberal democracies (Agamben 1998). Extending upon Agamben, critical migration scholars have recently taken up his conception of bare life to delineate the plight of refugees and unauthorized migrants floating in the global economy, who live in an indefinite and suspended state of noncitizenship (Rajaram and GrundyWarr 2004; Salter 2008). The move in paralleling Homo Sacer s caricature of the juridico -political space of camp with the geopolitical condition of undocumented migration corresponds with Agamben s call to examine the ways in which citizen-subjects of our age have all appear [ed] virtually as hominess sacri (Agamben 1998, 111). Agambens transhistorical call notwithstanding, to what extent is the space of camp (and by implication, the largely suppressed agency of bare life caught within the camp) an adequate depiction of the social condition of undocumented migrants? Examining the workspace of private households where female migrants work as domestic workers and where labor laws and regulations are indefinitely suspended, in this essay I argue that, while these laboring spaces relate to as the undocumented workers are stripped of juridico -political rights and reduced to a state of exploited bare life, the conception of lacks a dynamic account of power relations to address the complex agency of migrant subjects as they negotiate their daily workspace. Significantly what begins for Agamben as a space of interstitiality posited in - a zone between life and death; inside and outside - ultimately slides into an immobile binary between the beings of citizens and the excluded bodies of bare life. Yet if the space of is interstitial in nature, what preempts the possibility of the abject manifesting an agency that is also interstitial in character? If the sovereign power occupies a space that is simultaneously inside and outside the juridical order, so does the undocumented in navigating a terrain of resistance/negotiation inside and outside the normative arrangement of citizenship. As I will argue, this negotiated resistance does not fundamentally alter the structured materiality of modern liberal juridical order and the economy of irregular migration that Agamben and his migration studies followers so powerfully portray. However, at the point when Agamben declares the death of life for the bare subjects, he omits a crucial spectrum of ambiguous and interstitial practices mounted by the abject - mediating between the two extreme ends of and nonpolitical - that actually extends and reanimates the life of from the very margins of abjection. In the following, I will first address the relevance of Agamben s work for studies of undocumented migration. Two elements in his conception of are particularly compelling for the condition of refugees and undocumented migrants: the immanence of interstitiality and the depoliticized state of bare life.1 In turn, I look at how critics have problematized Agamben s thesis and its connection to unauthorized migration by raising issues such as location and agency in an effort to resurrect the political for the abject. In particular, they point to of refugee antideportation campaigns and undocumented-worker protests as counterexamples of acts of citizenship or noncitizen citizenship that defy the image of as bodies of victims. Yet while chronicling such resistant constitutes an urgent intervention that counters the state of abjection, by understanding as solely visible and audible acts, this line of critique actually falls into Agamben s rigid binary that divides humanity into life (citizenship) and bare life (no rights, nonparticipation) - with the only difference being that the latter, byway of her citizen-like acts, can now transform and elevate into the position of the former. …

Legislación y actividad judicial en los concilios de Enrique II de Inglaterra (1154-1189)

This article refers to the extraordinary amount of legislation and judicial activity that took place at the councils of Henry II Plantagenet. By means of an analysis of the main sources of the period: the chronicles, the government records and the first legal and judicial treatises that appeared in England from the twelfth century, the following study concludes, also taking the political context and the juridical order into account, that the political culture of the time determined that all legislation of territorial enforcement required some form of assent and that there was no more appropriate accasion to obtain this than a council, just as for the resolution of judicial cases of public nature. This increasing institutionalisation explains the regularity and frequency, without precedents in medieval Europe, that these meetings reached in Henry II's England.

Medicina e Filosofia hoje: uma aproximação necessária para as cidades saudáveis

The conception of balance in reference to health and imbalance in reference to disease, which is associated with the conception of natural order governing the forces of the universe and juridical order that establishes justice and injustice, were common notions within the discourse of both natural philosophy and Hippocratic medicine. I intend to show that these notions still remain important to organize modern cities by discussing the ‘healthy cities’ project. I suggest to incorporate an ethical dimension into the discourse of healthy lifestyles, in the light of Kant´s conception of duties to oneself and his doctrine of virtue. My aim, with this new dimension strongly teleological, is to bring together man and city once again.

Konstrukcja i treść podstawowych autorskich praw osobistych w systemie prawa francuskiego

This article discusses the issues related to the construction and contents of basic moral rights in the system of French law. The article refers, fi rst of all, to the triad of basic moral rights: the right to decide on making the work available to the public (the right to disclosure), the right of authorship and the right of integrity of the work. Special emphasis has been laid on the analysis of judicial decisions of French courts, which decisions shape in a distinctive way legal basis, normative constructions and the contents of moral rights. Research based on the French copyright regime may be an excellent point of departure for comparative legal analysis as that regime constantly exerts considerable infl uence on the shape of the global and, in particular, the European system of copyright protection. That infl uence can also be seen in relation to Polish law, the more so the juridical order of French private law is clearly important for the development and culture of Polish civil law.

When the Theory Doesn't Fit the Facts: A Further Comment on Putrabali

The June 2007 decisions of the Cour de Cassation in the Putrabali arbitration represent the latest application of the French doctrine that an international arbitral award is not attached to any national juridical order and thus under Article VII of the New York Convention may be enforced in France even though annulled in its country of origin. The arbitration in Putrabali was conducted in London under the Rules of Arbitration and Appeal of the International General Produce Association (IGPA) between the Indonesian seller and the French buyer of a cargo of white pepper that was lost at sea while on route to Singapore for transhipment to Rotterdam. The buyer refused to pay. The IGPA Rules explicitly fix London as the geographical and juridical seat of the arbitration, confine party nominations for arbitrator to members of the IGPA Arbitration and Appeal Panel, exclude lawyers from any participation in the hearing or any appeal within IGPA, and allow application to the court under Section 69 of the UK Arbitration Act 1996 on issues of law arising in the arbitration. In October 2000 an award (the First Award) was rendered in favour of the seller. It was reversed in April 2001 by an appeal panel, which exonerated the buyer (the Second Award). The Second Award was annulled by a judgment of the High Court, which remanded the matter to the arbitrators. A Third Award, in August 2003, gave a net amount to the seller. In September 2003 the buyer obtained enforcement in France of the Second Award. The seller later unsuccessfully sought enforcement in France of the Third Award. The Cour de Cassation affirmed both decisions. The article considers three questions. First, in French law is party intent relevant in determining whether or not an arbitration is to be held to be embedded in a particular national legal system, as the facts suggest the parties intended in Putrabali? If so, should decisions of the legal system thus identified be taken into account in enforcement of awards in other countries? Second, is the French practice of granting enforcement to interim awards in favour of French respondents that can only serve to block enforcement of later adverse awards consistent with party expectations in international commercial arbitration? Third, does the French practice amount to no more than a race to the swift and is that consistent with party expectations or the more general interest of international commercial arbitration? The article concludes that there appear to be principles of French arbitration law that could usefully serve to modify current dogma and its application.

Lawless Sovereignty: Challenging the State of Exception

Giorgio Agamben describes the origins of sovereign power, that power which constitutes the state of exception, as a force that gains its strength in the `unlocalizable' space between fact and law. Terming this space the `zone of indistinction', Agamben illustrates the particular manner in which the state employs law through exception, helping to reveal the paradoxical and omnipotent qualities of sovereign power. While the implications of his analysis hold that this form of power should be confronted and challenged, Agamben does not arrive at how this may be pursued. By reading Agamben's writings alongside selected anti-colonialist texts by Frantz Fanon and Aimé Césaire, it is possible to gain insights regarding both the dangers inherent to this type of sovereign power, and how it can be challenged. It is argued that the type of state that governs by means of exception creates the conditions that lead to its own undoing. Groups whose consent to the state's juridical order was historically tenuous, if not altogether absent, lay claim to a distinct position that is always already external to state sovereignty and law. Challenges from this position gain force by appealing to an extra-state sovereignty that represents universalized justice rooted in lawlessness.

On political theology: A controversy between Hans Kelsen and Carl Schmitt

This article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitt's analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the state's unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The ‘legal miracle’—in this context meaning the occasional autonomization of the state from law—was for Schmitt the manifestation of sovereign power. However, for Kelsen it represented the negation of the state's essence, whose actions must be determined only by the legal order.

Indigenizing Agamben: Rethinking Sovereignty in Light of the "Peculiar" Status of Native Peoples

Indigenizing AgambenRethinking Sovereignty in Light of the "Peculiar" Status of Native Peoples Mark Rifkin (bio) But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. …. Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy …; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. —Cherokee Nation v. Georgia (1831) The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character. …. They were, and always have been, regarded … not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. —U.S. v. Kagama (1886) Protection of territory within its external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty…. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. —Oliphant v. Suquamish Indian Tribe et al. (1978) [End Page 88] What does "sovereignty" mean in the context of U.S. Indian policy? Looking at the statements above, all from U.S. Supreme Court decisions focused on the status of Native peoples, sovereignty at least touches on questions of jurisdiction, the drawing of national boundaries, and control over the legal status of persons and entities within those boundaries.1 While one could characterize the concept of sovereignty as a shorthand for the set of legal practices and principles that allow one to determine the rightful scope of U.S. authority, it seems to function in the decisions less as a way of designating a specific set of powers than as a negative presence, as what Native peoples categorically lack, or at the least only have in some radically diminished fashion managed by the United States. Further, the decisions cited seem less to extend existing legal categories and precedents than to indicate the absence of an appropriate legal framework in which to consider the political issues and dynamics at hand. Native peoples appear as a gap within U.S. legal discourse. These passages suggest that the available logics of U.S. jurisdiction are unable to incorporate Native peoples comfortably, and that continued Native presence pushes against the presumed coherence of the U.S. territorial and jurisdictional imaginary. While the decisions seem to be grasping to find language adequate to the disturbing legal limbo in which Native nations appear to sit, they also insist unequivocally that such peoples fall within the bounds of U.S. sovereignty, and the oddity attributed to U.S. Indian policy is offered as confirmation of that fact. Typifying "the relations of the Indians to the United States" as "peculiar" and "anomalous," while also consistently presenting Native peoples as unlike all other political entities in U.S. law and policy, indexes the failure of U.S. discourses to encompass them while speaking as if they were incorporated via their incommensurability. In Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben has described this kind of dialectic as the "state of exception," suggesting that it is at the core of what it means for a state to exert "sovereignty."2 He argues, "the sovereign decision on the exception is the originary juridico-political structure on the basis of which what is included in the juridical order and what...

Le droit international dans les États d’Amérique latine : regards sur l’ordre juridique argentin

In June 2005, the Supreme Court of Argentina delivered a judgment stating the unconstitutionality of the laws of amnesty adopted in order to cover up the massive and grave violations of human rights committed during the 1970-1980 military regime. To achieve this solution, the Supreme Judges based their reasoning on international law of human rights and in particular the pertinent case-law of the Inter-American Court of Human Rights about the right to the truth and justice recognized to the family of the numerous forced-disappeared persons. This 2005 judgment is the starting point of a wider-scope analysis of the place of conventional and customary international law within the Argentinean law and other Latin American States. The study is focused on the sense and scope of Article 75 par. 22 of the Argentina Constitution (revised in 1994) that renders constitutional some of international instruments of protection of human rights. Through the analysis of texts and the case-law of the Supreme Court, the article aims to establish that in spite of the favourable place recognized to a part of international norms - those dedicated to the protection of human beings-it is hard to conclude that Argentina is a widely and unconditionally opened State to international law in its entire. The Argentinean juridical order does not offer the so-searched pure form of monism.

Uma análise constitucional do direito de ação no processo civil brasileiro

O estudo objetiva a análise do direito de ação no processo civil brasileiro a partir da Constituição Federal. Aponta a crise por que passam Estado, Direito e Ciência Jurídica ,especialmente após a Segunda Guerra Mundial. Procedimentalismo e substancialismo, bem como jusnaturalismo e positivismo jurídico são apresentados em seus pontos fundamentais. Com fundamento em teorias que compõem uma “terceira via”, busca demonstrar a importância dos procedimentos na realização dos valores consubstanciados em princípios constitucionais que se irradiam por todo o ordenamento jurídico. Conclui que o processo não é apenas um instrumento, mas uma dimensão do direito. O direito de ação expresso no artigo 5º , XXXV da Constituição Federal é eminentemente processual e deve ser entendido como direito ao processo.

Do direito fundamental de acesso à justiça

O acesso à justiça é aqui estudado como direito fundamental. O artigo tem por escopo a conceituação dessa garantia e a identificação dos principais problemas que apresenta. Analisa a tutela dos direitos e oferece propostas visando aperfeiçoar o sistema de solução de controvérsias. Sustenta que a ordem jurídica justa é a que consagra os valores eleitos pela sociedade na Constituição e que a proteção jurisdicional aos direitos deve se harmonizar com os objetivos, valores e princípios constitucionais. Afirma que é necessário estimular os meios alternativos de solução de conflitos jurídicos, como a arbitragem, a mediação e a conciliação.

On Making Dehumanization Possible

Contemporary liberal assertions equate illegal oppression and practices of expulsion from the juridical order with exclusion from humanity. It is often argued that violence ensuing from the abandonment of persons beyond the pale of the law not only violates their humanity but also, and perhaps more crucially dehumanizes them or constitutes them as less than human. While the objective of these critical assertions is to expose the radical evil that illegal violence can institute, they also establish an equation between the protection of the law and the constitution of humanity, effectively granting the former a magical power to endow the latter. Moreover, these critical assertions reproduce a particular conviction that humanity is a status to be recognized and conferred, or seized and taken away. Rather than leave this relation between humanity and the law intact, by pointing to its political instrumentality in contemporary human rights campaigns, this paper examines what this relation does to politics and to subjects of violence beyond its instrumental use directed at highlighting the suffering of subjects (by employing a dehumanization rhetoric) and at insisting on human-rights-based remedies to combat it. The paper asks the following questions. First, what conceptual and theoretical assumptions about humanity and the law, as well as about the relation between them, make possible the dehumanization argument? Second, to what degree has the law's conception of humanity as a status moved beyond the juridical field, leading many humanist practitioners to assert, albeit critically, that certain groups and individuals are dehumanized? And, finally, what other ways of being human are foreclosed by the conceptual assumptions grounding the law-based humanity argument?

Ética, Direito e Justiça

This paper analyses the interrelation among ethics, law and justice in the juridical order, relation that exist in actuality.

European women's expectations

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.

Bare Life and the Limits of the Law

Bare Life and the Limits of the Law Margaret Kohn (bio) Giorgio Agamben. State of Exception. Chicago: University of Chicago Press, 2005. 104 pp. $12.00 (pbk). $30.00 (hc). 0226009254. Giorgio Agamben is best known for his provocative suggestion that the concentration camp – the spatial form of the state of exception - is not exceptional but rather the paradigmatic political space of modernity itself. When Agamben first made this claim in Homo Sacer (1995), it may have seemed like rhetorical excess. But a decade later in the midst of a permanent war on terror, in which suspects can be tried by military tribunals, incarcerated without trial based on secret evidence, and consigned to extra-territorial penal colonies like Guantanamo Bay, his characterization seems prescient. The concepts of bare life, sovereignty, the ban, and the state of exception, which were introduced in Homo Sacer, have exerted enormous influence on theorists trying to make sense of contemporary politics. Agamben recently published a new book entitled State of Exception that elaborates on some of the core ideas from his earlier work. It is an impressive intellectual history of emergency power as a paradigm of government. The book traces the concept from the Roman notion of iustitium through the infamous Article 48 of the Weimar constitution to the USA Patriot Act. Agamben notes that people interned at Guantanamo Bay are neither recognized as prisoners of war under the Geneva Convention nor as criminals under American law; as such they occupy a zone of indeterminacy, both legally and territorially, which, according to Agamben, could only be compared to the Jews in the Nazi Lager (concentration camps) (4). Agamben’s critique of the USA Patriot Act, at least initially seems to bare a certain resemblance to the position taken by ACLU-style liberals in the United States. When he notes that “detainees” in the war on terror are the object of pure de facto rule and compares their legal status to that of Holocaust victims, he implicitly invokes a normative stance that is critical of the practice of turning juridical subjects into bare life, e.g. life that is banished to a realm of potential violence. For liberals, “the rule of law” involves judicial oversight, which they identify as one of the most appropriate weapons in the struggle against arbitrary power. Agamben makes it clear, however, that he does not endorse this solution. In order to understand the complex reasons for his rejection of the liberal call for more fairness and universalism we must first carefully reconstruct his argument. State of Exception begins with a brief history of the concept of the state of siege (France), martial law (England), and emergency powers (Germany). Although the terminology and the legal mechanisms differ slightly in each national context, they share an underlying conceptual similarity. The state of exception describes a situation in which a domestic or international crisis becomes the pretext for a suspension of some aspect of the juridical order. For most of the bellicose powers during World War I this involved government by executive decree rather than legislative decision. Alternately, the state of exception often implies a suspension of judicial oversight of civil liberties and the use of summary judgment against civilians by members of the military or executive. Legal scholars have differed about the theoretical and political significance of the state of exception. For some scholars, the state of exception is a legitimate part of positive law because it is based on necessity, which is itself a fundamental source of law. Similar to the individual’s claim of self-defense in criminal law, the polity has a right to self-defense when its sovereignty is threatened; according to this position, exercising this right might involve a technical violation of existing statutes (legge) but does so in the name of upholding the juridical order (diritto). The alternative approach, which was explored most thoroughly by Carl Schmitt in his books Political Theology and Dictatorship, emphasizes that declaring the state of exception is the perogative of the sovereign and therefore essentially extra-juridical. For Schmitt, the state of exception always involves the suspension of the law, but it can serve two different purposes. A “commissarial dictatorship” aims at...

El crimen de la calle de San Vicente : Crime Writing and Bourgeois Liberalism in Restoration Spain

����� ��� ❦ Although crime has been written about in literature of all ages, it is generally acknowledged that modern crime and detective fiction came into being in the nineteenth century. The categories of delinquency and justice that shape this fiction are born with the liberal bourgeois state. As legal scholar David Garland points out, during this period two important projects—the “governmental” and the “Lombrosian” 1 —converge to give rise to criminology, a discipline that produces its object (a particular conception of criminality) as it sets out to contain it. In a wider context, Michel Foucault has observed how the birth of criminology, together with the establishment of modern juridical and penal institutions, is part of “the emergence of a new form of ‘law’: a mixture of legality and nature, prescription and constitution, the norm” (Discipline 304). This juridical order serves the interests of the new ruling classes by distinguishing, condemning, and concentrating attention on certain “illegalities” (257), while effacing and legitimizing others: those that support the prevailing economic structure, with all its inherent inequalities. 1 Garland explains: “By talking about a ‘governmental project’ I mean to refer to the long series of empirical inquiries, which, since the eighteenth century, have sought to enhance the efficient and equitable administration of justice by charting the patterns of crime and monitoring the practice of police and prisons. . . . The ‘Lombrosian project’, in contrast, refers to a form of inquiry which aims to develop an etiological, explanatory science, based on the premise that criminals can somehow be scientifically differentiated from non-criminals” (8).