From jurisdiction to juriswriting: deconstruction at the limits of the law
From jurisdiction to juriswriting: deconstruction at the limits of the law
复制标题
从管辖权到法学写作:法律界限的解构
DOI:
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发表时间:
2015
期刊:
影响因子:
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通讯作者:
D. Matthews
中科院分区:
文献类型:
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作者:
D. Matthews
Juris-‐diction
is
the
“speaking
of
the
law,”
the
performative
and
enunciatory
mode
of
normativity.
As
the
expressive
register
of
the
law,
jurisdiction
names
practices
for
declaring,
showing
and
determining
the
limits
and
possibilities
of
legality.
Read
in
these
terms,
jurisdiction
poses
centrally
important
questions
to
law
and
jurisprudence
but,
as
a
principle
in
its
own
right,
it
has
received
little
attention.
Contributing
to
a
small
but
growing
critical
literature
on
jurisdiction
this
thesis
contends
that
jurisdiction
has
a
unique
character
that
deserves
careful
theorising.
Taking
the
common
law
tradition
as
its
primary
site
of
engagement,
the
thesis
argues
that
jurisdiction
has
a
dual
aspect,
functioning
to
both
offer
a
ground
for
positive
or
formal
law
and
reflect
an
extant
set
of
informal
practices.
In
this
sense,
jurisdiction
operates
as
a
third
term
for
the
law,
mediating
between
two
lawful
registers:
the
positive
law
and
a
“law
of
originary
sociability.”
I
argue
that,
though
attempting
to
fix
and
determine
this
relation,
jurisdiction
is
marked
by
ambivalence
and
instability.
This
indeterminacy,
however,
is
often
overlooked;
jurisdiction
is
presented
as
if
it
were
simply
a
matter
of
sovereign
force
or
fiat.
Rather
than
conceive
jurisdiction
as
an
expression
of
the
law’s
sovereign
authority,
the
thesis
argues
that
jurisdiction
is
a
privileged
point
at
which
we
can
see
the
law’s
fragility.
Jurisdiction,
then,
is
a
legal
technique
open
to
critical
intervention
and
interruption.
Such
strategies
of
intervention,
that
seek
to
occupy
jurisdiction’s
function
but
articulate
it
otherwise,
I
name
“juriswriting.”
My
approach
to
jurisdiction
is
developed
through
the
philosophy
of
Jacques
Derrida
and
Jean-‐Luc
Nancy.
Both
thinkers
understand
law
to
have
two
distinct,
but
related,
senses.
On
the
one
hand,
there
is
the
law
as
positive,
determinative
and
violent,
on
the
other
hand,
law
is
presented
as
inoperative
and
indeterminative,
connected
either
to
the
law
of
differance
or
an
ontological
assertion
of
our
“being-‐with”
(Mitsein).
Both
Derrida
and
Nancy
reserve
a
place
for
“law”
that
exceeds
the
positive
law
and
is,
in
fact,
bound
to
it
in
a
paradoxical
double
bind,
both
providing
its
conditions
of
possibility
and
denying
its
full
efficacy.
This
characterisation
of
a
doubled
aspect
to
law
provides
the
theoretical
frame
for
my
understanding
of
jurisdiction
and
is
traced
through
my
engagements
with
Kafka;
the
sixteenth
century
constructions
of
the
common
law;
jurisdiction’s
performative
and
declaratory
mode;
as
well
as
jurisdiction’s
role
in
bringing
political
community
into
relation
with
the
law.
The
engagement
with
Derrida
and
Nancy
not
only
provides
the
theoretical
orientation
for
this
study
of
jurisdiction
but
represents
a
second
strand
to
the
argument
pursued
in
the
thesis.
Moving
away
from
the
Levinasian
inspired
understanding
of
deconstruction
and
the
law
of
the
1990s,
the
thesis
seeks
to
offer
a
more
holistic
reading
of
Derrida’s
work,
drawing
on
both
his
later
texts
with
a
specifically
juridico-‐political
bent,
as
well
as
the
earlier
interventions
on
writing
and
speech
act
theory.
Nancy
–
particularly
his
ontology
of
“being-‐with”
and
his
work
on
community
–
provides
a
useful
supplement
to
Derrida’s
thinking.
As
the
ethical
readings
of
deconstruction
in
the
1990s
turned
to
Levinas,
I
turn
to
Nancy
in
order
to
foreground
a
political
current
within
Derrida’s
work.
Reading
Derrida
with
Nancy
allows
me
to
develop
a
sense
of
the
political
possibilities
at
stake
in
reimagining
jurisdictional
practices
and
techniques,
particularly
important
for
my
understanding
of
juriswriting.