This essays argues that Freud’s vision of the rule of law may be worthwhile pondering by legal scholars. It can heighten awareness of its unconscious dimensions and point to a variety of ways in which the law functions as part of culture or civilization, rather than as a system with its own rules. The first two parts of the essay seek to reconstruct Freud’s notion of the rule of law as a dialectical or paradoxical civilizatory force, restraining the passions even (...) though they drive it. These two parts retrace Freud’s genealogy of the law’s prehistoric origins and unconscious dynamics, which can be found in Totem and Taboo and, in summary form, in Moses and Monotheism. Then, the third section critically assesses the problems and limitations of some of the uses legal scholars made of Freud’s genealogy. Finally, the essay returns to the intellectual context of Freud’s conception of the rule of law, concluding with the claim that a Freudian perspective implies, in fact, that legal studies should be conceived as cultural studies. (shrink)

“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is (...) not only consistent with traditional jurisprudence; it is an essential branch of it. (shrink)

Psychoanalytic reasoning is an instance of inference to the best explanation and provides an extension of commonsense psychology that is potentially cogent, cumulative, and radical.

African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within various (...) legal traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

The underlying contention guiding this collection is that psychoanalysis can provide a novel approach to theorising our investments in sport. When exploring, examining, discussing, and debating the fascination and frustrations that characterizes sport, what this collection will consider are the very ways in which we become “stuck” in sport. For us, getting “stuck” helpfully describes the degree to which one can both be interested in sport, following a particular team or training regularly, while also being frustrated, angered, and undermined by (...) sport (grievances, which, in most cases, in no way discount or prevent one’s very love of sport). What compounds this contradiction is that a psychoanalytic approach to sport does not necessarily provide or outline any answers to the problems of sport. Rather, we double-down on the fact there is no rational explanation as to why millions of people choose to partake in strenuous forms of physical exclusion for years on end, with the only reward being a medal or personal best for the lucky few—not to mention the multitudes who choose to watch these athletic spectacles. Certainly, this is not to say that sport does not have its explanations. We are all too familiar with the cliched responses and tired explanations: “it makes me feel good”, “it keeps me busy”, “it releases endorphins”, “I enjoy the social-side”, “my Dad followed this team, so, in a way, I’m continuing the tradition”. What goes amiss in such routine responses is why this specific activity—sport, in whatever form—is chosen? When so much of sport requires one to partake in choices that fundamentally affect one’s life, then we require a theoretical space in which we can begin to ask important questions of both sport and ourselves. On this basis, sport is not necessarily detached from our lives, a mere weekend past-time, separate from the world of work (although it can be described as such); instead, as this collection will assert, a psychoanalytic account of sport can allow us to question and explore what it is that makes us human and what is it about our inherent sociality that makes sport such an important part of so many lives. To do so, requires an investigation into the desires, fears, and fantasises that underscore the subject—the very phenomena that psychoanalysis seeks to examine. (shrink)

Though the psychoanalytic method of interpretation is seen by psychoanalysts as a reliable scientific tool for investigating the unconscious mind, its reputation has long been marred by what’s known as the consensus problem: where different analysts fail to reach agreement when they interpret the same phenomena. This has long been thought, by both practitioners and observers of psychoanalysis, to undermine its claim to scientific status. The causes of this problem, however, are dimly understood. In this paper I attempt to (...) illuminate one important cause of the consensus problem by investigating the role which reliance on ‘associative evidence’ has in generating consensus failures. Various options for overcoming the difficulties with this form of clinical evidence are then examined. It is argued that these problems can be mitigated by the notion of overall associative fit, though they are exacerbated by certain loose standards used for what counts as acceptable associative evidence. The possibility of using more rigorous standards is discussed. (shrink)

It is possible and thereby feasible to develop and implement a pragmatic methodology for a preemptive evidentiary system of ‘Paraphysical Jurisprudence’ for mediating the occurrence of massacres. A required comprehensive completion and formalizing of the tools of epistemology (theory of knowledge) already exists and has been tested both ecumenically and scientifically. The evolution of epistemology has followed the historical progression from myth and superstition to logic and reason to empiricism and now finally to the utility of ‘transcendence’ as a (...) tool in knowledge acquisition. An inspiring example from popular culture is illustrated in the 2002 Hollywood film noir “Minority Report” designed by its director to present a ‘plausible future world’ for the year 2054 wherein an elaborate ‘Precrime Unit’ is tested to prevent murder by utilizing a trio of ‘precogs’ bathed in a ‘photonic milk’ able to presciently predetermine impending occurrences of homicide for which the Precrime Police Unit then intervenes to prevent. Disdain for a putative so-called scientific metaphysics by natural philosophers is deeply rooted in modern pragmatic societies; perhaps rightly so as consistency, credibility and lack of a comprehensive theory has been heretofore emphatically lacking. In addition to the major problem of repeatability is the perceived distinction between domains of the physical and so-called ‘spiritual’ as mutually exclusive. In this work a strong case is made for the rigorous viability and near term putative implementation of a system of paraphysical jurisprudence drawing on the utility of a panoply of concepts. The remaining question is when does feasible become practical in the face of a steady increase in the heinous massacre of innocents? (shrink)

Drawing upon Martha Fineman’s vulnerability theory, the paper argues that the legal claims of homeless appellants before and during the COVID-19 pandemic illustrate our universal vulnerability which stems from the essential, life-sustaining activities flowing from the ontological status of the human body. By recognizing that housing availability has constitutional significance because it provides for life-sustaining activities such as sleeping, eating and lying down, I argue that the legal rationale reviewed in the paper underscores the empirical, ontological reality of the body (...) as the basis for a jurisprudence of universal vulnerability. By tracing the constitutional basis of this jurisprudence from Right to Travel to Eighth Amendment grounds during COVID-19, the paper outlines a distinct legal paradigm for understanding vulnerability in its universal, constant and essential form – one of the central premises of vulnerability theory. (shrink)

The proposed theoretical motivation for legal fictionalism begins by focusing upon the seemingly supernatural powers of creation and control that mere mortals exercise over legal things, as a subclass of socially constructed things. This focus brings to the fore a dilemma of uncharitableness concerning the ontological commitments expressed in the discourse of whole societies about such things. Either, there is widespread equivocation as to the fundamental concept expressed by terms such as ‘existence’ or our claims about legal and other institutional (...) things are never really true. When stated as a dilemma, rather than assuming either horn from the outset, our broader social practice of fiction-telling yields a reason to prefer the fictionalist horn. -/- I differentiate three grades of legal fictionalism and contrast strong legal fictionalism with Horacio Spector’s weak form. Only the stronger form has it that engagement in a fictional discourse of law can provide reasons for legal decision-making independent of moral opinions or policy considerations. This stance relies on the claim that maintaining a fictional discourse with respect for its integrity justifies inferences to conclusions about a fictional domain beyond what is described in existing expressions of the discourse. Focusing on ontology allows an analogy between a fictional discourse of law and literary or popular fiction, in which context such inferences are more obviously persuasive. I argue that this notion of respect for the integrity of such a discourse saves legal formalist jurisprudence from the indeterminacy objections of legal realists. (shrink)

Comparative religion scholar Thomas Berry’s influential concept of “Earth jurisprudence” has been helpfully elaborated in three principal books. My first section identifies four of their common themes, deriving therefrom an implicit narrative: (1) the basis of ecology is autopoiesis, which (2) originally generated human communities and Indigenous vernacular laws, which were (3) later reasserted by forest defenders who fought to create the Magna Carta’s “Charter of the Forest,” which is (4) now championed globally by the Indian physicist and eco-activist (...) Vandana Shiva’s Earth Democracy movement. My next three sections identify mutually exclusive elements of the three books, deriving the following alternative narrative: self-conscious new dancing rituals (Cullinan) could empower an historically informed reconstruction of private property (Burdon) via commons-based vernacular law (Weston and Bollier). And my conclusion offers one template for such a strategy, namely a new environmental variation on my dancing-poetic conception of legal justice, christened “emerald star-law.”. (shrink)

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates (...) about experimental philosophy generally, one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (ICT) (...) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives. One such alternative is Structural Realism (SR), which is influential among the natural sciences, and especially physics. “Informational Structural Realism,” (ISR) is a variant of SR that was introduced by Luciano Floridi. Unlike the coherentist theories, ISR promotes examination of the connections among types of information and informational structures. It is an important shift for legal theory today, since the challenges that the ICT presents have to do with pattern recognition across vast domains of diverse data. An informational jurisprudence is now required to understand the issues emerging from the ICT. (shrink)

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and (...) argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

This article addresses the question whether skiing as a nature sport enables practitioners to develop a rapport with nature, or rather estranges and insulates them from their mountainous ambiance. To address this question, I analyse a recent skiing movie from a psychoanalytical perspective and from a neuro-scientific perspective. I conclude that Jean-Paul Sartre’s classical but egocentric account of his skiing experiences disavows the technicity involved in contemporary skiing as a sportive practice for the affluent masses, which actually represents an urbanisation (...) of the sublime, symptomatic for the current era. (shrink)

Abstract: The Present Article provides the Comprehensive Prudence behind the Intellectual Property Rights. In Indian sub-continent various Laws are enacted which grants Protection to the intellect. Intellectual Property has various domains and its kinds, it can be a Process, Product, Design, Literature, Music, Art, Computer programs or a Brand name. This Article covers the basic principles and the Rationality behind Intellectual Property Rights granted to the Proprietor by the Government.

Sport poses a number of important and no less significant questions, which, on the face of it, may not necessarily seem very important or significant to begin with – a peculiarity that we believe to be integral to sport itself. This article introduces, explores and outlines the psychoanalytic significance of this peculiarity. It explores how the emotions stirred by sport are intertwined with a realm of fiction and fantasy. Despite its lack of practical utility, sport carries an undeniable gravity, (...) encapsulating the aspirations of communities, nations and continents. As a result, psychoanalysis can be used to critically reflect on the purpose and meaning of sport: that is, why do we need sport, and why, for large sections of the world’s population, do we rely on it? Ultimately, while psychoanalysis maintains a unique relation to a variety of unexpected fields of study – including art, culture and neuroscience – we seek to add to this expanding list of inquiry by including sport in this critical domain. By utilising sport as a platform to elucidate psychoanalytic concepts, it is recognised that sport can also prompt questions for psychoanalysis. In so doing, theoretical discussions on the social, cultural and political dimensions of sport through psychoanalytic theory are introduced and applied. (shrink)

Since humankind’s earliest philosophical inquiries, society has been plagued by the taboos associated with suicide. It has been rebuked without respite, both on moral and religious grounds. This paper comes to the defense of suicide by combating the opprobrious arguments that have been raised against it. It begins by exploring what exactly constitutes ‘suicide’, then follows a historical account of the ethics surrounding it from antiquity to modern times. Specific focus is given to Kant’s deontological secularization of the previously, strictly (...) theological, natural law argument. It claims that Kant is in large part to blame for the stigma around suicide, and by proxy mental health in general in the twenty-first century. Finally, this paper will address said stigma vis-à-vis psychoanalytic ethics and offer a complete restructuring of the concept of suicide in an attempt to change how the western world perceives it. (shrink)

Fichte argues that the conclusion of Kant’s transcendental deduction of the categories is correct yet lacks a crucial premise, given Kant’s admission that the metaphysical deduction locates an arbitrary origin for the categories. Fichte provides the missing premise by employing a new method: a genetic deduction of the categories from a first principle. Since Fichte claims to articulate the same view as Kant in a different, it is crucial to grasp genetic deduction in relation to the sorts of deduction that (...) Kant offers. I propose to interpret genetic deduction as the simultaneous fulfillment of two tasks: answering the question quid facti by deriving the categories from the I and answering the question quid juris by establishing our entitlement to the categories as conditions of experience. While the second task represents Fichte’s agreement with Kant’s transcendental deduction, the first reflects his correction of Kant’s metaphysical deduction. (shrink)

In various documents the view emerges that contemporary biotechnosciences are currently experiencing a scientific revolution: a massive increase of pace, scale and scope. A significant part of the research endeavours involved in this scientific upheaval is devoted to understanding and, if possible, ameliorating humankind: from our genomes up to our bodies and brains. New developments in contemporary technosciences, such as synthetic biology and other genomics and “post-genomics” fields, tend to blur the distinctions between prevention, therapy and enhancement. An important dimension (...) of this development is “biomimesis”: i.e. the tendency of novel technologies and materials to mimic or plagiarize nature on a molecular and microscopic level in order to optimise prospects for the embedding of technological artefacts in natural systems such as human bodies and brains. In this paper, these developments are read and assessed from a psychoanalytical perspective. Three key concepts from psychoanalysis are used to come to terms with what is happening in research laboratories today. After assessing the general profile of the current revolution in this manner, I will focus on a particular case study, a line of research that may serve as exemplification of the vicissitudes of contemporary technosciences, namely viral biomaterials. Viral life forms can be genetically modified (their genomes can be rewritten) in such a manner that they may be inserted in human bodies in order to produce substances at specific sites such as hormones (testosterone), neurotransmitters (dopamine), enzymes (insulin) or bone and muscle tissue. Notably, certain target groups such as top athletes, soldiers or patients suffering from degenerative diseases may become the pioneers serving as research subjects for novel applications. The same technologies can be used for various purposes ranging from therapy up to prevention and enhancement. (shrink)

Legal concepts can sometimes be unclear, leading to disagreements concerning their contents and inconsistencies in their application. At other times, the legal application of a concept can be entirely clear, sharp, and free of confusions, yet conflict with the ways in which ordinary people or other relevant stakeholders think about the concept. The aim of this chapter is to investigate the role of experimental jurisprudence in articulating and, ultimately, dealing with competing conceptual inferences either within a specific domain (e.g., (...) legal practice) or between, for example, ordinary people and legal practitioners. Although this chapter affirms the widespread assumption that experimental jurisprudence cannot, in and of itself, tell us which concepts should be applied at law, it highlights some of the contributions that experimental jurisprudence can, in principle, make to normative projects that seek to prescribe, reform, or otherwise engineer legal concepts. Thus, there is more that experimental jurisprudence can normatively offer than has usually been claimed. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws (...) are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

This book demonstrates how the authors have experienced the power of phenomenology in their therapeutic work with patients, especially those struggling with horrific trauma; in their encounters with psychological and philosophical theories; and in their efforts to comprehend destructive ideologies and the collective traumas that give rise to them. The Power of Phenomenology presents the trajectory of this work. Each chapter begins with a contribution written by one or both authors, extending the power of phenomenological inquiry to one or more (...) of these diverse contexts. The contributions are followed, one or two at a time, by a dialogue between the authors, illustrating the dialectical process of their long collaboration. The unusual format seeks to bring the phenomenology of their collaborative efforts to life for the reader. (shrink)

(No abstract is available for this citation).

The family is a social group. Its characteristics are among other things; common residence, co-operation and reproduction. The family has always been considered to be the foundation or nucleus of the society; the most basic unit of its organization. The structure of the family varies according to each society. In pre-colonial era, the family as a social group among the Yorùbá, was a large unit, and extended in nature. They were bound together by the realization of having a common ancestor; (...) alájọbí. All the members of the family see one another as blood relations, as such incest was (and still is) a taboo. Apart from this, sexual relationship among the Yorùbá is heterosexual and permissible only in marriage; between husband and his wife/wives. Though extra-marital relationships are practiced, it is frowned at for men, but intolerable for women. Homosexuality is also a taboo; punishable by public disgrace, with culprits liable to excommunication from the society, especially if unrepentant. It cannot be totally ruled out that these anomalous relationships were not secretly engaged in by few non-conformists among the Yorùbá, before coming into contact with the West, the fact remains that the magnitude by which they are practiced in present times is alarming; threatening the harmony and cultural heritage of the Yorùbá. This fear is expressed in the literary genres of the Yorùbá, especially the film, which is the contemporary popular theatre of the Yorùbá of Nigeria and other tribes in Africa. This study examined sexual relationship among members of the family, in randomly selected Yorùbá films that have family-living as their major or minor themes; to know how affected is the stability of family (sexual) relationship among the Yorùbá. This is in the light of evolving modernity; with its individualistic life-style of people globally, as against the inherited communal social organization of the Yorùbá; built around the virtuous ọmọlúwàbí principle. The plausible reasons for the anomalous behaviors are also examined. Our findings are that prevailing strict traditional conditions, living in private homes as nuclear family, not being properly oriented in Yorùbá cultural values, increased exposition to Western lifestyles and its more relaxed societal expectations, and non-realization of the possibility of anomalous sexual behaviors as mental and biological issues that can be medically treated; are some of the reasons why such behaviors manifest, and are becoming prevalent. We have suggested communal encouragement with empathy, to seek medical assistance for and by the ‘diseased’ person. One finding here is that prevailing traditional conditions, ignorance, poor orientation and westernization present the anomaly mildly and make people not to see anomalous sex behavious as a mental disorder which requires medical attention. (shrink)

In Law, Pragmatism and Democracy, Richard Posner wrestles with the ghost of John Dewey for the mantle of pragmatist jurisprudence. Most commentators have seen this work as pitting Posner against Dewey in a contest of pragmatisms, the stakes for which are no less than their respective legacies for legal and democratic theory. Some have sided with Posner and others with Dewey. I contend that the commentators have misidentified the target of Posner’s critique. Posner had another legal theorist in mind (...) and he was disingenuous in naming Dewey. A careful reconstruction of Posner’s argument shows that Dewey’s pragmatism provides a genuine middle way between Posner’s position and that of his intended rival. (shrink)

In this essay I intend to analyze the issue of good government in the works of Adam Smith, the importance of which seems to have not received due attention. The reconstruction is driven by three hermeneutical hypotheses concerning the role played by the idea of good government in the development of Smith's speculation: 1) the «good government» has a synthetic character, holding together the different aspects – moral, legal, economic and political – of his reflection; 2) it emerges against the (...) backdrop of the first acquisitions of the Theory of Moral Sentiments about the ‘mediating’ role of the middle class, and especially during the reflection that goes from the Lectures on Jurisprudence to the Wealth of Nations, and then feeds back into the subsequent rewritings of the Theory; 3) From the moment the «good government» appears, it becomes a descriptive and prescriptive idea of the social order. In the conclusions I will show how these hermeneutical hypotheses might have implications in the history of political, legal and economic thought. (shrink)

I review the debate between ‘realist’ and ‘constructivist’ understandings of the psychoanalytic unconscious. To oversimplify, realists hold that unconscious mental states exist in the analysand’s mind fully formed and with determinate intentional content, independent of consciousness, and these are discovered in analysis. Constructivists (including relationalists and intersubjectivists) hold that the unconscious meaning of clinical material does not exist ‘pre-organised’ in the analysand’s mind, but is constructed, not discovered, through the analytic relationship. I argue that the debate is multiply confused. (...) For example, different meanings of ‘psychoanalysis’ and ‘constructivism’ are at play, and a number of central arguments rest on misunderstandings of complex philosophical positions concerning the status of science and the nature of human knowledge. Once these confusions are removed, an understanding of the psychoanalytic unconscious that retains the strengths of both realism and constructivism presents itself. (shrink)

In an often-forgotten proclamation during an autobiographical interview in 1995, Thomas Kuhn notes, without much explanation, his indebtedness to psychoanalysis. While in the wake of Kuhn's 1962 publication The Structure of Scientific Revolutions, many psychoanalytic scholars have made use of his work to justify shifts in psychoanalytic traditions, few have attempted to point out the relation between Kuhnian science and the psychoanalytic process. This article argues that there is a strong affinity between the developmental and structural themes (...) of Kuhn’s scientific revolutions with that of the psychic restructuring that occurs in the psychoanalytic process. Furthermore, these affinities represent the lasting effects that psychoanalysis had on a young Kuhn. Utilizing the metapsychology of psychoanalyst Hans Loewald to highlight the theoretical underpinnings of Kuhn’s debt to the psychoanalytic experience, while also paying close attention to Kuhn’s discussions on resistance in science and his open-systems notion of individual and world, the author argues that we will learn how psychoanalysis, through Kuhn's own psychoanalytic treatment, revolutionized science. (shrink)

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological concerns (...) outweigh them in the overall assessment of the value of the work. (shrink)

Michael Crichton (1942–2008) was a prolific writer of “science novels”, portraying the psychodynamics and sociodynamics of genomics and other NBIC (Nanotechnology, Biotechnology, Information technology and Cognitive science) fields, fostering critical reflection on their societal dimensions. Science novels may serve as “literary experiments”, as windows into the (future) impacts of current research. Although on the surface level Crichton’s books may be seen as entertaining bestsellers, an in-depth reading allows them to emerge as exploratory exercises, usable as course material for science students. (...) To open up this “deeper” dimension, I read Crichton’s work from a psychoanalytic angle, focusing on typical scenes and themes, such as the idea of a scientific crisis, geneticization and gender role reversal. The core question of a typical Crichton novel usually is: what will happen when a new laboratory research field suddenly comes out into the open? Notably, the gender dimension reflects and exemplifies the fascinations and concerns with contemporary technoscience addressed by him. (shrink)

This paper examines how the concepts of utility, impartiality, and universality worked together to form the foundation of Adam Smith's jurisprudence. It argues that the theory of utility consistent with contemporary rational choice theory is insufficient to account for Smith's use of utility. Smith's jurisprudence relies on the impartial spectator's sympathetic judgment over whether third parties are injured, and not individuals' expected utility associated with individuals' expected gains from rendering judgments over innocence or guilt.

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought (...) to copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

Psychoanalysis, particularly as articulated by figures like Freud and Lacan, highlights the inherent division within the human subject—a schism between the conscious and unconscious mind. It could be said that this suggests that such an internal division becomes amplified in the context of generative art, where technology and algorithms are used to generate artistic expressions that are meant to emerge from the depths of the unconscious. Here, we encounter the tension between the conscious artist and the generative process itself, which (...) may yield unexpected, even uncontrollable results. -/- This paper, therefore, seeks to address this division within the modern subject and its relationship to technology, wherein the division within the living body is revealed through the presence of prosthetic elements, which mirrors the division brought about by the incorporation of language as a signifier. I argue that the amplification of this internal schism does not necessarily lead to a more fractured subject. Instead, generative art, bolstered by advancements in AI and machine learning, offers a unique opportunity for individuals to externalize and explore their minds in novel ways. -/- By examining contemporary works such as Hal Foster’s Prosthetic Gods, which stands as a pivotal exploration of the convergence between modernist art and psychoanalytic theory and Isabel Millar’s Psychoanalysis of Artificial Intelligence, this paper elucidates the profound implications of Freud’s vision of modern -/- subjectivity as Prothesengott (Prosthetic God) and address the questions concerning this technological imbrication of the human mind and body through the Lacanian framework. Although for Freud, Man does not become a real God, rather, the potential to transcend one’s limitations ascribes us to God-like qualities by seeking to generate new forms of life that go beyond merely reproducing nature — a transcention of the natural. Millar emphasizes that Freud observes that this is evidenced by the fact that these additional organs remain distinct from the organism and can never assimilate into it. One continually falls short of realizing the fantasy he envisions, opting instead to use his supplementary artificial organs to endlessly revolve around the objects of the drive. -/- This evolving relationship that the drive has with its technological objects, resounds in Lacan’s conception of “lathouse” which allows extimate objects to convert interiority (unconscious) into exteriority (conscious) and exteriority into interiority. The thesis of this paper seeks to employ this underutilized concept to understand the nature of human subjectivity and its bodily and structural relationship to generative art. Therefore, this paper emphasizes what really happens when we enter into this relationship with the lathouse, whereby this artificial object has effects in the "real of jouissance", where these Lathouses create a network, namely the Alethosphere. My goal is to argue that generative art as a technological development, can be seen as an extension to the development of the drive. Conclusively, I make the claim for generative art's potential to externalize the human creative drive by emphasizing the interplay between randomness and structure, and how it offers a means to surpass our inherent limitations by presenting an avenue for self-expression that transcends traditional modes of art. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...) as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

In this paper, I will reread the history of molecular genetics from a psychoanalytical angle, analysing it as a case history. Building on the developmental theories of Freud and his followers, I will distinguish four stages, namely: (1) oedipal childhood, notably the epoch of model building (1943–1953); (2) the latency period, with a focus on the development of basic skills (1953–1989); (3) adolescence, exemplified by the Human Genome Project, with its fierce conflicts, great expectations and grandiose claims (1989–2003) and (4) (...) adulthood (2003–present) during which revolutionary research areas such as molecular biology and genomics have achieved a certain level of normalcy—have evolved into a normal science. I will indicate how a psychoanalytical assessment conducted in this manner may help us to interpret and address some of the key normative issues that have been raised with regard to molecular genetics over the years, such as ‘relevance’, ‘responsible innovation’ and ‘promise management’. (shrink)

Therapeutic Jurisprudence (‘TJ’) and virtue ethics are major parallel forces for good in legal practice. Both seek to understand and mediate frailness in human behaviour and explain why such ‘goodness’ is important for lawyers and their clients. But while a TJ practitioner and a virtue ethicist are often in agreement, they are fraternal rather than identical twins. This paper is addressed to those practising lawyers for whom TJ may become a central motivation to practice law, by reflecting on the (...) moral advantages that virtue ethics can offer such practitioners in their daily decision making. (shrink)

1900 was a remarkable year for science. Several ground-breaking events took place, in physics, biology and psychology. Planck introduced the quantum concept, the work of Mendel was rediscovered, and Sigmund Freud published The Interpretation of Dreams . These events heralded the emergence of completely new areas of inquiry, all of which greatly affected the intellectual landscape of the 20 th century, namely quantum physics, genetics and psychoanalysis. What do these developments have in common? Can we discern a family likeness, a (...) basic affinity between them, so that we can use the one to deepen our understanding of the other? One common denominator is that they open up realms of inquiry that are significantly different from the world of everyday experience, namely the realm of elementary particles, of genes and genomes, and of the unconscious. But to what extent can we meaningfully argue, for instance, that the genome is the biological unconscious, and the unconscious the psychic genome? To address these questions, I will build on the work of two key intellectual figures who have explored the affinities of these developments in depth, namely Erwin Schrödinger (a quantum physicist and avid reader of Schopenhauer who initiated molecular biology) and Jacques Lacan (who reframed the specificity of psychoanalysis with the help of 20 th century science: the era of structural linguistics, but also of quantum physics, molecular biology, bioinformatics and DNA). (shrink)

The psychiatric diagnostic system, as exemplified by the DSM, is a pseudo-scientific framework for diagnosing sick Cartesian isolated minds. As such, it completely overlooks the exquisite context sensitivity and radical context dependence of human emotional life and of all forms of emotional disturbance. In Descartes’s vision, the mind is a “thinking thing,” ontologically decontextualized, fundamentally separated from its world. Heidegger’s existential phenomenology mended this Cartesian subject-object split, unveiling our Being as always already contextualized, a Being-in-the-world. Here I offer a critique (...) of studies in “phenomenological psychopathology” that presuppose the validity of the psychiatric diagnostic system and leave it unchallenged. In this vein, I contend that all emotional disturbances are constituted in an indissoluble context of human interrelatedness. Specifically, I claim that all emotional disturbances, including those objectified by the DSM, take form in relational contexts of severe emotional trauma. There are no psychiatric entities, only devastating contexts. Additionally, I show that Heidegger’s analyses of Angst, world-collapse, uncanniness, and thrownness into Being-toward-death provide extraordinary philosophical tools for grasping the existential significance of such contexts of emotional trauma. Applying Heidegger’s concept of authenticity, I suggest that emotional health entails an ease of passage—i.e., an absence of dissociation—between the world of trauma and the world of everydayness. (shrink)

Our purpose in this article is to draw attention to a connection that obtains between two dilemmas from two separate spheres: sports and the law. It is our contention that umpires in the game of cricket may face a dilemma that is similar to a dilemma confronted by legal decision makers and that comparing the nature of the dilemmas, and the arguments advanced to solve them, will serve to advance our understanding of both the law and games.

The ArgumentThis essay examines Freud's construction of a mythical moment during early childhood, in which differences between male and female sexual identities are said to originate. It focuses on the way in which Freud divides fear and envy between the sexes, allocating the emotion of fear to men, and that of envy to women. On the one hand, the problems of this construction are pointed out, but on the other hand, it is shown that even a much-maligned myth may still (...) provide food for thought.Then, four critiques of Freud which have been articulated by prominent feminist psychoanalysts – Karen Horney, Nancy Chodorow, Luce Irigaray, and Jessica Benjamin – are presented, as well as the alternative visions of sexual identities which these thinkers have developed. The basic metaphors or economies guiding these visions of sexual difference are appraised in terms of their breadth and depth, with particular reference to their ability to acknowledge and integrate the presence of fear and envy as passions which are evoked but also repressed in the face of sexual difference.From this angle, the contributions of Nancy Chodorow and Luce Irigaray are found to be more limited than those of Karen Horney and Jessica Benjamin, since the former two theorists allocate fear primarily or exclusively to men, as Freud has done, while they remain completely silent on envy. Differences in the scope or reach of the four feminist approaches are explained as a result of the theorists' differing perceptions of the social, political, and cultural position of women in patriarchal society. (shrink)

Sigmund Freud (1856–1939), one of the most influential figures of the 20th century, remains also one of its most controversial. Far from being an outmoded icon of modern psychology’s early historical development, Freud’s doctrines (the “talking cure” in particular) have irrevocably shaped the way human behavior is understood today. Psychoanalysis has waged an assault on traditional conceptions of human nature by eclipsing everything of a transcendent order—even branding religion itself a kind of psychopathology. The corrosion of religion and spirituality in (...) our human collectivity has left an epistemological and ontological vacuum that has been largely been filled by psychoanalysis and its off-shoots, as also the welter of psycho-babel we encounter at every turn. Psychoanalysis, like behavioristic psychology, has not died or disappeared, as is too often assumed—on the contrary, it forms the very substratum upon which all contemporary therapies are formulated. The consequences for Western civilization have been destructive and far-reaching, as this masterful study—nay, dissection and diagnosis—of the disease makes blisteringly clear. (shrink)

In a first investigation, a Lacan-motivated template of the Poe story is fitted to the data. A segmentation of the storyline is used in order to map out the diachrony. Based on this, it will be shown how synchronous aspects, potentially related to Lacanian registers, can be sought. This demonstrates the effectiveness of an approach based on a model template of the storyline narrative. In a second and more Comprehensive investigation, we develop an approach for revealing, that is, uncovering, Lacanian (...) register relationships. Objectives of this work include the wide and general application of our methodology. This methodology is strongly based on the “letting the data speak” Correspondence Analysis analytics Platform of Jean-Paul Benzécri, that is also the geometric data analysis, both qualitative and quantitative analytics, developed by Pierre Bourdieu. (shrink)

BAIL JURISPRUDENCE in India (as in other common law countries) has evolved laying emphasis on the right to liberty of the accused as opposed to the requirement of the State to keep him/her under custody... The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to the society by preventing the accused who had been set at liberty by the bail order from tampering with the evidence in a heinous crime. (...) At the same time, cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the Court, which granted bail. Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it has been emphasized that the same should always be exercised very sparingly by the court of law. (shrink)

Seit 2018 regt sich im anglo-amerikanischen Raum vermehrt das Interesse, Sport als quasi-rechtliches Regelsystem zu untersuchen. Man geht davon aus, dass die Probleme und Lösungen in Sportsystemen den Vergleich mit Rechtssystemen erlauben. Tagungen, Aufsätze und Bücher zum Thema „Jurisprudence of Sport“ deuten darauf hin, dass hier ein neuer Forschungsbereich entsteht. Dieser Beitrag bietet eine Einführung in die Thematik.