In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose (...) of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals. (shrink)

The paper attempts to construct a theoretical account of what melancholy—in a psychoanalytical and cultural sense—may mean for jurisprudence. It argues that the map of relations and displacements between the object and the subject that is associated with melancholy in different psychoanalytical approaches can be fruitfully adopted for understanding of normativity. Based on a thorough re-reading of Freud’s Trauer und Melancholie, it suggests that there is an irremovable component of melancholy contained in the primordial act of separation of normativity from (...) non-normative reality. This interpretation is confronted with Kelsen’s Theory of Pure Law in order to analyse in which respect the momentum of self-sufficiency within normativity entails structures of melancholy. Kelsen’s concept of ‘effectiveness’ is proposed as a key link which explains how melancholic withdrawal allows the law to interact with reality. Then the paper discusses Agamben’s theory of applicability and of the state of exception to demonstrate the law’s melancholic trap. Finally, the paper draws on Lacanian and post-Lacanian approaches to melancholy in order to investigate how melancholic momentum is inherent in the very structure of the law’s validity. (shrink)

The pure theory of law is a positivist legal theory put forward by Hans Kelsen. Recently there have been two attempts to understand democracy as a source for the normativity that the pure theory assigns to law. Lars Vinx seeks to understand the pure theory as a theory of political legitimacy, in which the normativity that the pure theory assigns to the laws of a state depends on the state’s adoption of certain legitimacy enhancing features, including being democratic. Uta Bindreiter (...) argues that, in the case of European Community law, an additional criterion of democracy must be added to the criteria that the pure theory normally requires of legal systems before the pure theory can presuppose the normativity of European Community law. This thesis will argue that neither of these two accounts succeeds in demonstrating that the normativity of the pure theory can be understood to depend on democracy. (shrink)

The present article commences analyzing the origins and influences of the religious discourse on the configuration of the modern constitutional discourse and the contributions of the jus-positivism in the consolidation of this sacred-civil language. The second issue is the definition of the U.S. Constitution as a mixed and not as a democratic constitution, with regard to the influences of Plato, Aristotle, Cicero and Polybius to the Drafters of the first modern constitutional text; stability and equilibrium took preference over democracy in (...) a wide sense. I also analyze how the Drafter’s decision has conditioned the modern constitutional system up to the present. (shrink)