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Law in Theory, Law in Practice

Legal Orientalism and French Jesuit Knowledge Production in India

Danna Agmon

Letters written by early modern missionaries played an important role in the development of global intellectual networks and inquiry into religion, language, cartography, and science. But the historical ethnography of law has not recognized the role that Jesuits played in creating the field of comparative law. This article examines the writings on law in India by the French Jesuit Jean-Venant Bouchet, who was an important source for Enlightenment philosophes and later Orientalists. It considers Bouchet’s systemic accounts of Indian law alongside his more ethnographic description of his legal encounters in South India, and argues that the practice of conversion and experiences in local legal fora determined and shaped Bouchet’s interpretation of Indian law. In other words, legal scholarship was produced in spiritual, religious, and political contexts, and cannot be abstracted from them.

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Law and Liberation

Critical Notes on Agamben’s Political Messianism

Jayne Svenungsson

Throughout history, Jewish notions of justice, hope and redemption have inspired political visions within as well as beyond the Jewish tradition. In the past century, examples can be drawn from Ernst Bloch to Walter Benjamin and Jacques Derrida. Also in the present politico-philosophical debate, a number of prominent voices draw explicitly on Jewish sources in their attempts to formulate radical visions. This article engages with one of the more influential figures in this respect, Giorgio Agamben. Although Agamben offers a highly original and constructive reading of Jewish notions of justice, hope and redemption, it will nevertheless be argued that he fails to do justice to an essential element in Jewish conceptions of liberation. In consistently posing ‘law’ as the counterpole to liberation, Agamben disregards the extent to which law, in the Jewish tradition, is constitutive of justice, hope and redemption. Moreover, in equating ‘law’ with coercion and oppression he also fails to recognize the progressive force of the politico-juridical system, which is the target of his critique.

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Liberty, Law and Leviathan

Of Being Free from Impediments by Artifice

Lena Halldenius

The argument in this article is that Hobbes' theory of freedom in Leviathan allows for four ways of being free to act - corporal freedom by nature, freedom from obligation by nature, the freedom to disobey and the freedom of no-rule - each corresponding to a particular absence, some of which make sense only in the civil state. Contrary to what some have claimed, this complexity does not commit Hobbes to an unarticulated definition of freedom in tension with the only one that he explicitly offers, which is that freedom consists of nothing other than the absence of external impediments of motion. To be free from obligation is to be free from impediments. As a political subject in the state, the power that is blocked or compelled by law is a person's power to perform artificial acts as her will directs. Laws and prior commitments are external impediments that block or compel making an artificial, institution-dependent act either impossible or unavoidable. The bonds of law bind artificially yet corporally, given that the power that makes them is, quite literally, an external body that moves at will.

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Life at a Tangent to Law

Regulations, ‘Mistakes’ and Personhood amongst Kigali’s Motari

Will Rollason

This article concerns the relationship between motorcycle taxi drivers in Kigali and the legal frameworks that govern their business. While motorcyclists commonly subvert legal processes, or avoid complying with regulations, this should not be understood in terms of their ‘resistance’ to legal orders. To do so would imply that laws are imposed on their social lives from without; however, I show how illegalities help to structure social life by creating ‘mistakes’ that are the basis of social relations. I argue that motorcyclists do not confront legal orders in the idiom of resistance, but neither are they determined or shaped directly by legality. Rather, partially formed by breaches of rules, law is integral to their lives, shaping them indirectly or tangentially, according to the relationships and connections ‘mistakes’ with respect to law enable. Law regulates life not by encoding its rules, but by allowing certain kinds of relationships to form.

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Patrick Cockburn

Both courts of law and political theorists have grappled with the problem of giving the concept of ‘need’ a place in our reasoning about the rights and wrongs of property regimes. But in the U.K., legal changes in the last fifteen years have eroded the legal possibilities for striking some compromise between the claims of the needy and the rights of property owners. Against this backdrop this article compares three theoretical accounts of how the fact of human need should impact upon our thinking about property rights: the rights-based arguments of Jeremy Waldron, the radical democratic theory of Lawrence Hamilton and the anarchist commentary of Colin Ward. While ‘theories’ of need have paid much attention to the nature of need ‘itself’, the article argues that this comparison reveals another issue that is just as important: where and how should claims of need be registered in legal and political processes?

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The Rule of Law as a Condition for Development toward Sustainability

Toward a New Legally Oriented Environment at a Global Level

Giovanni Tartaglia Polcini

This article, conceived on an open-process approach, explains the Italian rule of law’s model promoted by Italy in multilateral and bilateral fora. The rule of law aims to counter the abuse of power by the authorities and to build a new legally oriented environment in a multilevel order. (The rule by law, however, may be used to oppress or discriminate against people and to avoid accountability under the guise of formality, legality, and legitimacy.) Furthermore, the rule of law is instrumentally valuable to economic sustainable growth in delivering concrete development. The Italian achievements are demonstrated by the experiences acquired in G20 anti-corruption initiatives that vouch for Italy’s legitimacy and credibility on priority areas related to the struggle against global crime, drugs, money laundering, and terrorism. Moreover, Italian juridical diplomacy for promoting the rule of law at the multilateral level is framed according to the guidelines of sustainable development and the protection of human rights.

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"You’re a Trickster”

Mockery, Egalitarianism, and Uncertainty in Northeastern Namibia

Megan Laws

The trickster has held a prominent place in the study of folklore, as much as it has been central to anthropological understandings of egalitarianism. In both, the trickster embodies an insoluble tension between the repressed, amoral desires of the individual and the moral demands of social life. This tension, so it goes, is visible in the ambiguity of the figure—a protean indeterminate being, neither good nor bad. Among the Jú|’hoànsi of northeastern Namibia, the trickster is similarly ambiguous. The figure conveys not a clash of values, but rather the doubt and uncertainty people feel toward those with whom they share resources, or about different ways of sharing and how they might relate to one another. This article approaches such uncertainty through a focus on the mocking phrase “you’re a trickster” and the moral discourses that accompany it.

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Identity and Traditional Law

Local Legal Conceptions in Svan Villages, Georgia

Stéphane Voell, Natia Jalabadze, Lavrenti Janiashvili and Elke Kamm

Traditional law continues to be relevant for the Svans (Georgians), who usually live in the highlands of the Caucasus, but who have also migrated to various parts of Georgia. To grasp its practice we draw on approaches in which its use is discussed as a strategy for '(re)asserting collective identities' (Benda-Beckmann) in order to enforce specific goals. But our research also shows another dimension of traditional law: more than in actual conflict resolutions, traditional law is found in narratives, that is in memories of how conflicts were resolved earlier and should be solved today. These stories, however, of how and when traditional law should be applied rarely correspond to lived reality. Drawing on Brubaker and Cooper, we argue that beside a rather instrumental motivated use of traditional law in asserting collective identities, its contemporary practice can only be fully understood if we also acknowledge its non-instrumental practice.

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Lawrence Rosen

When I was thinking of going to law school, I went to speak with a law professor at the university where I had done my PhD. ‘Well, Mr. Rosen,’ he said, ‘the thing about law school is it will teach you how to think.’ I kept waiting for the other shoe to drop: think about law, think like a lawyer. No, he meant think – period. With all due humility, I was at that time coming from the Institute for Advanced Study in Princeton, NJ, and should like to imagine that I had actually learned a few things while doing my doctorate at his own university. In the forty years since, while serving as an adjunct professor of law and visiting professor at several such institutions, I have also encountered the occasional law scholar who, in a moment of academic noblesse oblige, has regarded my anthropology credentials as quaint but insufficient evidence that one has the tough-minded capacity that flows from a legal education. The lawyers may pay some attention to a few other disciplines, but, even though they may have given in to the allure of economics and bolstered their intellectual self-image with the odd philosopher or historian, the question remains why the law schools still tend to regard anthropology as almost entirely irrelevant.

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Succession Law in Israel

Individualism and the Family

Shelly Kreiczer-Levy

Succession law has faced enormous challenges in recent years, as changes in family structure have begun to emerge. The purpose of this article is to examine how Israeli succession law defines and shapes familial relations and the function of the different actors (legislature and courts) in this process. In addition, the article analyzes the tension between the free will of the property owner and familial obligations related to inheritance law. In doing so, it focuses on two legal rules: intestate succession rules, which reflect the role of the legislature in defining the family, and undue influence, which demonstrates the role of the courts in shaping familial structures.