The spirit of the laws is a symbol reflecting the ontological status and transcendental ideals of the system of positive law. The article analyses historical links between the romantic philosophy of the spirit of the nation (Volksgeist), which subsumed Montesquieu’s general spirit of the laws under the concept of ethnic culture, and recent politics of cultural and ethnic identity. Although criticising attempts at legalising ethnic collective identities, the article does not simply highlight the virtues of demos and (...) the superiority of civic culture against the vices of ethnos and the regressive nature of ethnic politics of identity. Instead, the author argues that the civil democratic concept of political identity is part of the more general process of social differentiation: unlike the pre-political ethnic concept of identity, it can be converted to generalised democratic procedures and thus dismantle the totalitarian claims of cultural identity politics. (shrink)

There are two Habsburg empires in our minds: One – that of Stefan Zweig and Joseph Roth – evokes melancholy and a sense of loss, a yearning not for simpler but perhaps more colourful, less exacting...

It is my contention that the law has its origins and derives its authority from moral precepts; and this morality is not dead, but is a live spirituality and ultimately depends on connection with the divine. In the spirit of the law, what is mercy and the admonition to love one's fellow humans as oneself and its application in the new millennium? If this view is accepted it has profound implications for the way law is practised. The implications for (...) the role of customary law in the legal decision-making process and the recognition of indigenous rights generally are affected. (shrink)

This article explores the future impact of an African renaissance with a specific emphasis on information ethics to address the needs of the emerging virtual realm. The four main focus areas include the technologi-cal challenges to deploy ICT infrastructure to enable the delivery of information to the people and to allow for new means of communication. The second focus considers the economic obstacles that need to be consi-dered in the quest to empower average citizens to exercise their right to access (...) information. The third focus addresses the linguistic and cultural realities that hinder the adoption of some ICTs. The final focus considers the legal framework that has to be developed and strengthened to establish citizen‘s rights of access and privacy in cyberspace. (shrink)

As the World Anti-Doping Code is up for revision, the paper proposes a framework for reading the Code based on a relatively literal approach and an almost exclusive focus on the ?spirit of sport? as a key element of the Code. The author argues that this single element can contribute to revealing the underlying rationale of the Code, as it serves to justify bans of doping substances and methods, in some cases without recurring to evidence sustaining the claims made. (...) For a substance/method to be banned, the Code requires that two out of three criteria be met: performance enhancement, health risk and the spirit of sport. The paper demonstrates how these provisions link to other parts of the Code, (under the rules of the Code 2009) in the absence of performance-enhancing properties combined with a health risk. The paper draws implications from these findings regarding terminological (im)precision, legal certainty/predictability, transparency/accountability, limits to arbitrary exercise of power and internal/external validity. (shrink)

This open access book seeks to identify the ethical spirit of European Union law, a context in which we can observe a trend towards increasing references to the terms ‘ethics’ and ‘morality’. This aspect is all the more important because EU law is now affecting more and more areas of national law, including such sensitive ones as the patentability of human life. Especially when unethical behaviour produces legal consequences, the frequent lack of clearly defined concepts remains a challenge, particularly (...) against the background of the principle of legal certainty. This raises the question to which extent the content of these references is determined and whether it is possible to identify an ethical spirit of EU law. Answering that question, in turn, entails addressing the following questions: In references to ethics concerning EU law, can we identify references to a particular theory of practical philosophy at all; and, if so, to one or more normative ethical theories? Further, should these non-legal concepts be imported in an unaltered way, or be adapted to the legal context? This book explores the different layers of EU law, including the role of ethics in EU lawmaking and in EU case law, as well as the implementation of relevant EU directives in selected Member States. In addition to the above-mentioned normative philosophical lens, the book also analyzes the findings from the legal lens of EU integration, i.e., especially EU values, human rights and the cornerstone of human dignity. (shrink)

Beheld in terms of international law, its subjects such as states, governments or international organizations always communicate with each other based on the spirit of the provisions of the field of international law.In the framework of the breaches, respectively the deliberate violation of these provisions, is the case of the so-called "Gulenists", where all the links of the system under which the extradition matter is built upon, are exempted.Our country will keep this stain for a long time, while in (...) the archives of justice it will be treated as a case that should not have happened, always based on the commitment to the strict implementation of the provisions of the field of international law that our state has always had. At least they should have been held accountable, even criminally; hence, such cases to have never been repeated in our country.The lack of criminal accountability of the actors-senior state officials directly implicated in this case has left scars in our system, which at that moment is widely considered as a delayed system, while at an instant the whole commitment in this direction is shaken.This stain could have been avoided post festum - even in the circumstances when it happened, that is, even in the situation when all the political actors had been implicated in this case.In this regard, whilst analyzing the provisions we can assume that despite the deficiencies and continuously looking at the volume of legal provisions of this law, yet, we can consider that our system in this area has advanced and has ongoing initiatives to improve this system to the extent that could meet the requirements in relation to the dynamics of social and international relations. (shrink)

SummaryIn the Social Contract, Rousseau predicted that Europe would experience a cycle of increasingly intense wars, culminating in invasion from the east: first, Russia would conquer Europe's exhausted and war-torn states; then, Russia would itself become overextended and Europe would ultimately be overrun by the Tartars. The future of the modern state would be a version of the fall of Rome. The present essay provides an explanation of why Rousseau held such apocalyptic views by placing them in the context of (...) projects to reform Europe's political economy in the aftermath of the Seven Years’ War. In 1767, when Catherine the Great was planning a major revision of the Russian legal code, she outlined her goals in a manifesto called the Grand Instruction, key sections of which were derived from Montesquieu's analysis of depopulation of the countryside caused by uncontrolled industrialisation. The Grand Instruction became the subject of a critical exchange between the Physiocrat Le Trosne and Diderot, who, drawing upon Rousseau, was by turns both sympathetic to and sceptical of Physiocracy. This discourse reveals a triangular debate about the possibility of stabilising the international order by imposing a balance between the agricultural and manufacturing sectors of Europe's rapidly growing economies. (shrink)

In comparison with the creation of language, translation from one language to another offers greater challenges for those working with languages, be the text for translation concerned with philosophy, literature or law, all of which are arguably highly professional domains. When it comes to the translation of legal fiction, a highly interdisciplinary genre, even experienced practicing translators tend to fall short of being well equipped with sufficient legal knowledge and terminologies, not to mention the capacity to detect the subtleties that (...) are inherent in a legal term. All of the problems above account for the often less-than-satisfactory quality of legal fiction in translation, misleading or confusing the potential target audience. After making the prior theoretical investigations, this paper attempts to analyze some problems in the current Chinese translation of such legal novels as Franz Kafka’s Der Prozess and Charles Dickens’s Bleak House, and then take a corrective stance, hoping to arouse the translators’ awareness of the importance of this genre, as well as their awareness of the essential professional skills they still need to acquire, so that they can reach equivalent accuracy in legal technicalities, as well as subtlety and nuance that reflect the legal spirit. (shrink)

The so-called ‘Right to Be Forgotten’ cases have been provoked by people’s desires to make their own determinations about what personal information is accessible online to others (and when, and how) in a world of data permanence. Legally at stake is how personhood is defined and defended. Thus far, European law has primarily concerned itself with the delisting of ‘data subjects’ from search results and the deletion or anonymization of personal information from and by search engine operators. As a result, (...) personhood has fallen into a kind of legislative void [ 43 ] I argue that this void is engendered by an old friction between the traditional Western secularist cognitive models that have formed the skeleton of Western law and the pulsing flesh of living human subject creation that pushes back against it. At the very least, the digital immortality of our images, voices, words and more, are bringing forth a variety of aspects of our ‘person.’ Meanwhile, religious worldviews have long understood and made use of phenomenological ideas of human becoming and transcendence that are far more congruous with how—even modern secular—people make meaning of their lives and self-creation, and how they think of posthumous existence. Moving through and with some of the most recent thinking in philosophy, anthropology, and cognitive science, I will develop the argument that human subjectivity is not only impossible to limit to the body, but that a radicalized ecological view is the only one that can ‘save’ us. (shrink)

In this paper, I argue for the existence of pathologies of juridicism. I attempt to show that the Western regime of right tends to colonize our intersubjective relations, resulting in the formation of affective and habitual dispositions that actually hinder participation in social life. Speaking of pathologies of juridicism is to claim that the legal form fundamentally contaminates the way in which we relate to ourselves, to others, and to the world, resulting in an ethically deformed, distorted or deficient form (...) of subjectivity. To support my thesis I consult a philosopher, whose work still provides a powerful analysis and critique of juridicism, namely, Hegel. Hegel provides an historic and a systematic theory of the pathologies of juridicism. His historical theory locates the origin of the abstract subjectivity of right in Roman antiquity. His systematic theory understands the negative effects of an absolutization of the legal domain as a persistent threat to social integration and an individual’s pursuit of the good life. I clarify these argumentative dimensions in two steps, beginning with Hegel’s historical analysis of right in his Lectures on the Philosophy of History. I then reconstruct Hegel’s critique of the subjectivity of right in the short chapter on the ‘Condition of Right’ in his Phenomenology of Spirit. In conclusion, I argue that, although Hegel’s diagnosis is correct, his prescribed therapy must fail: instead of radically altering abstract right in terms of content and form, it only recommends its complementation through other ethical spheres. (shrink)

Critical theory spelled out as learning progress in the medium of law can hardly do anything but retrospectively smooth out any elements of social struggles that deviate from the objective spirit. This comment argues that the voices of those who neither are in nor have been allowed entry into the learning process are hardly visible any more in the gray light of the coming twilight from which the learning processes are described. It does so by questioning the role of (...) the global South in Brunkhorst’s book and aims at scenting out blind spots in Brunkhorst’s narration of the connection between international law and the liberation movements of the South. (shrink)

The renewal of Jewish sovereignty in 1948 created a grave challenge to Jewish tradition. As a system that was constructed in exile for a non-sovereign society, Jewish law was lacking "laws of state." The legitimacy of military action and the distinction between just and unjust wars are prime examples of fundamental issues that Jews did not have to confront for a very long period of time. This article examines contemporary Jewish legal responses to the challenges posed by the creation of (...) the Israeli military. It focuses on the efforts of Rabbi Shlomo Goren, the first Chief Rabbi of the Israel Defense Forces, to create a modern corpus of Jewish law and ethics relating to war and the military. The Diaspora-based rabbinic literature seemed to oppose the use of force, reinterpreting Biblical references to military heroism as allegorical expressions of valor in the study of Torah. In an attempt to create an approach that legitimized the use of force while, at the same time, maintaining the rabbinic moral compunction regarding reliance on force, Rabbi Goren’s innovative corpus integrated Biblical and rabbinic sources, as well as pre-rabbinic apocryphal and historical sources. His writings on the subject are studied on a historical level, trying to uncover the various personalities and ideological positions to which he reacted. Rabbi Goren’s approach is examined through an analysis of his views on the proper treatment of the enemy and on the Peace for Galilee War in Lebanon. He advocated a balance between power and spirit, a balance that is also reflected in the personal internal harmony of Rabbi Goren himself: a merger of two worlds — the traditional student of the rabbinic study hall and the modern Jewish military officer — worlds by which he was influenced, between which he was torn, and that he tried to synthesize. (shrink)

The way comparative law methodology is handled by the variety of experiences of normative complexity around the world is, in itself, a stimulating and promising field of research. In particular, the “hybrid” character of the European Union legislation, being juridical and linguistic at the same time, remains the core of comparative law studies, but the dynamic relationship between law and language is constanlty producing ever-changing scenarios, calling for combined scientific approaches. Along with comparative law, semiotics in particular has ensured the (...) proper reading of the complex juridical and linguistic interconnections between the EU legislation and the national courts interpreting and applying them, thanks to its implicit dynamicity and ability to favor the visualization of the real normative semantic flow. By means of a case study, the opening of this “Pandora’s box” will demonstrate that, despite the lack of correspondence among EU categorical and conceptual structure, legal language, court enforcement and spirit of the people (social group), shared contexts of meanings within the EU and the national contexts are already flourishing and become visible when approached from a specifically comparative and semiotics point of view, that's to say as legal _formants_ and as _signs_ and _meta-concepts._. (shrink)

In accordance with the spirit of the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party [December 1978], Comrade Hua Guofeng, in his "Report on the Work of the Government" delivered to the Second Session of the Fifth National People's Congress [address of June 18, 1979], provided a thorough discussion on the strengthening of socialist democracy and improvement of the socialist legal system. This session of the Congress solemnly passed the Electoral Law, the Criminal Law, (...) the Law of Criminal Procedure, and other important laws, opening a new chapter in the establishment of democracy and law in our nation. This is highly significant as a major turning point for workers throughout the nation, lifting the historical lid at all levels so that we may proceed with the four modernizations with a common mind and purpose throughout the nation, to further develop democracy and fulfill the establishment of the legal system. This will affect the consolidation and development of the state system of the dictatorship of the proletariat. It will protect the personal interests of the people, prevent the revival of counterrevolutionaries, and guarantee the realization of the four modernizations. (shrink)

This chapter contains sections titled: Hegel and Religion The Experience of Religion The Concept of Religion References Further Reading.

Modern neurotechnologies are rapidly infringing on conventional notions of human dignity and they are challenging what it means to be human. This article is a survey analysis of the future of the digital age, reflecting primarily on the effects of neurotechnology that violate universal human rights to dignity, self-determination, and privacy. In particular, this article focuses on neuromarketing to critically assess potentially negative social ramifications of under-regulated neurotechnological application. Possible solutions are critically evaluated, including the human rights claim to the (...) ‘right to mental privacy’ and the suggestion of a new human right based on spiritual jurisdiction, where the human psyche is a legal space in a substantive legal setting. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.

Drawing from a variety of Hegel’s writings, Shannon Hoff articulates a theory of justice that requires answering simultaneously to three irreducibly different demands: those of community, universality, and individuality. The domains of “ethicality,” “legality,” and “morality” correspond to these essential dimensions of human experience, and a political system that fails to give adequate recognition to any one of these will become oppressive. The commitment to legality emphasized in modern and contemporary political life, Hoff argues, systematically precludes adequate recognition (...) of the formative cultural contexts that Hegel identifies under the name of “ethical life” and of singular experiences of moral duty, or conscience. Countering the perception of Hegel as a conservative political thinker and engaging broadly with contemporary work in liberalism, critical theory, and feminism, Hoff focuses on these themes of ethicality and conscience to consider how modern liberal politics must be transformed if it is to accommodate these essential dimensions of human life. (shrink)

ABSTRACT English-language commentary on the role of the French Revolution in Hegel’s Phenomenology of Spirit tends to equate the so-called “fury of destruction” (Furie des Verschwindens) with the violent dialectic of rival factions’ rush for power. Here it is argued that “Absolute Freedom and Terror” ought instead to be read in the light of a “fury of disappearance”, namely in terms of the extinction of dissenting citizens’ legal personhood. This is achieved by recourse to civil death, a criminal sentence (...) that declares the individual, who is very much alive, legally dead. While there are some actual and quite painful consequences for recipients of such a sentence, civil death is effective mainly on the philosophical and constitutional planes, where it maintains the illusion of a unanimous general will, fleetingly securing the state from failure. A focus on personhood and civil death also taps into the larger Hegelian dialectic of legalism and tradition, and into the various shapes community life takes therein, beginning with Greek Ethical Life, and ending in Absolute Freedom and Terror. (shrink)

Nietzsche and Legal Theory is an anthology designed to provide legal and socio-legal scholars with a sense of the very wide range of projects and questions in whose pursuit Nietzsche's work can be useful. From medical ethics to criminology, from the systemic anti-Semitism of legal codes arising in Christian cultures, to the details of intellectual property debates about regulating the use of culturally significant objects, the contributors (from the fields of law, philosophy, criminology, cultural studies, and literary studies) demonstrate and (...) enact the sort of creativity that Nietzsche associated with the "free-spirits" to whom he addressed some of his most significant work. (shrink)

The objectives were to deeply study the impact of new entrepreneurial spirit on the cultivation of entrepreneurial values and entrepreneurial ability of college students. First, the influencing factors of college students' entrepreneurial values were analyzed based on new media, entrepreneurial spirit, entrepreneurial values, and other related theories. Second, the corresponding questionnaire was designed and elaborated on the four aspects of college students' entrepreneurial values, namely, entrepreneurial competence, entrepreneurial risk, and entrepreneurial ethics. Finally, the data results of the questionnaire (...) were studied. The results show that in entrepreneurial values of college students, they believe that entrepreneurship is the most important for personal development, with an overall average of 3.86. In the point of view of entrepreneurial competence, they think that independent learning ability plays a significant role in entrepreneurship, with an average of 3.91. In the view of entrepreneurial ethics, they consider that the law is the most crucial during the entrepreneurial, with an average value of 4.35. It means that college students still have certain legal knowledge. After analyzing the results of the questionnaire on entrepreneurial factors, it is found that college students lack social experience and have a low ability to take risks. Meanwhile, entertainment is the first choice for college students on new media platforms, and the time of viewing is more than 5 h/day. Therefore, the influence of new entrepreneurial spirit is researched on the cultivation of entrepreneurial values and entrepreneurial ability of college students, which provides a new theoretical basis and optimization direction for entrepreneurial education in universities in the future. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Democracy, Spirit, and RevitalizationWalter B. Gulick (bio)The assumptions of democracy as an associational ethos of vulnerable life are, first, that we don't already know how best to order our common life and, second, that we don't know what the abstract ideals of empathy, emancipation, and equity entail in the concrete.—Michael Hogue1In American Immanence: Democracy for an Uncertain World, Michael S. Hogue grounds his proposal for a political theology (...) in a critique of American exceptionalism and its supportive "redeemer symbolic."2 In the Anthropocene era, Hogue states, American exceptionalism "legitimates the extraction of diverse forms of value and justifies the externalization of diverse costs" (29) with unconscionable costs to the natural environment and international justice. As indicated in the passage quoted above, Hogue's reaction to the rigid assumptions supportive of American exceptionalism is to offer a humble acknowledgement of political fallibility coupled with what he terms "a theopolitics of resilient democracy" (184; see also 3–6).My concern in this essay is largely practical. I will focus on discerning what intellectual, emotional, and communal resources might be drawn upon to further develop and actually effect the needed changes that Hogue so ably points out. Relatedly, I will inquire into who the most likely candidates are to devote energy to the reconstruction of social structures and practices so that they express values that Americans at their best uphold. Finally, I will reflect upon the role that spiritual ideals and communal practices might play in energizing effective democratic action. [End Page 5]I. Hogue's Critical and Constructive TasksHogue's overriding interest is to outline an epistemic/axiological/environmental/political stance that does not give rise to the various sorts of injustices and dysfunctions that mark the Anthropocene era, especially our allegiance to policies that eventuate in what he calls "climate wickedness." The alternative vision he embraces develops pragmatic naturalism as a method of inquiry and exposition. His reflections are especially indebted to the thought of Dewey, James, and Whitehead (78–82). During a time when e-words are normally associated with forms of electronic communication, Hogue offers instead two trios of e-words with another sort of significance—one that signifies a stance he wishes to overcome and one that communicates what he hopes to achieve. Our current era is unfortunately in thrall, he says, to extraction, externalization, and exception, whereas what we should strive for is a society marked by empathy, emancipation, and equitability. Well put. He presupposes that democratic governance, deeply embedded in American history, ought to serve as the vehicle for achieving what the positive set of e-words promotes. To this end, Hogue quotes appreciatively from Dewey's article, "Democracy is Radical": Democracy "is radical because it requires great change in existing social institutions, economic, legal and cultural" (170). This understanding of democracy slumbers now; what might it take to reawaken it? And if reawakened, what changes might be made to establish the more nearly equitable political influence that is basic to the promise of democracy?Hogue, recognizing in good pragmatic fashion the importance of consequential change, states, "In contrast to foundationalist commitments to antecedents and precedents, pragmatic naturalism commits to a prospective concern with consequents" (80). Foundational commitments to antecedents may certainly impede needed change, but surely attention to the historical events and practices that gave rise to current problems is needed to avoid repeating previous errors. Hogue refers to Whitehead's vision of social symbolism, suggesting that "social change can be catalyzed by the improvised revision of existing symbolic repertoires or the innovative formation or subversive interjection of new symbols" (99). I'm not fully convinced by Whitehead's claim. I suspect that many of our social problems are rooted below the linguistic level in an array of affective issues that elude symbolic adjustment. New strategies are needed to counter the prevalence of fear and resentment in society as promoted for political and commercial reasons and tied to Hogue's strongly voiced recognition that we live in an uncertain world.Here is my understanding of how Hogue both frames our current social and cultural situation and what he says might begin to remediate these circumstances. [End Page... (shrink)

In both the literal and metaphorical senses, it seemed as if 1970s America was running out of gas. The decade not only witnessed long lines at gas stations but a citizenry that had grown weary and disillusioned. High unemployment, runaway inflation, and the energy crisis, caused in part by U.S. dependence on Arab oil, characterized an increasingly bleak economic situation. As Edward D. Berkowitz demonstrates, the end of the postwar economic boom, Watergate, and defeat in Vietnam led to an unraveling (...) of the national consensus. During the decade, ideas about the United States, how it should be governed, and how its economy should be managed changed dramatically. Berkowitz argues that the postwar faith in sweeping social programs and a global U.S. mission was replaced by a more skeptical attitude about government's ability to positively affect society. From Woody Allen to Watergate, from the decline of the steel industry to the rise of Bill Gates, and from Saturday Night Fever to the Sunday morning fervor of evangelical preachers, Berkowitz captures the history, tone, and spirit of the seventies. He explores the decade's major political events and movements, including the rise and fall of détente, congressional reform, changes in healthcare policies, and the hostage crisis in Iran. The seventies also gave birth to several social movements and the "rights revolution," in which women, gays and lesbians, and people with disabilities all successfully fought for greater legal and social recognition. At the same time, reaction to these social movements as well as the issue of abortion introduced a new facet into American political life-the rise of powerful, politically conservative religious organizations and activists. Berkowitz also considers important shifts in American popular culture, recounting the creative renaissance in American film as well as the birth of the Hollywood blockbuster. He discusses how television programs such as All in the Family and Charlie's Angels offered Americans both a reflection of and an escape from the problems gripping the country. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

Many feminist and other interpreters of the Phenomenology of Spirit have misconstrued the motive behind Hegel’s representation of ethical life and his assessment of Antigone’s agency in its downfall. Upon developing an alternative interpretation, based on Hegel’s challenge of ethical life’s purportedly immediate reading of the meaning of sexual difference, this paper assesses several prominent feminist interpretations in its light. Hegel’s critique of the unstable and unsustainable relationship between nature and law, or sexual difference and legal identification, is shown (...) to constitute a valuable resource for contemporary feminist and legal approaches to the politically volatile negotiation of nature and culture and the critique and elaboration of law. (shrink)

The Meditations of Marcus Aurelius are treasured today--as they have been over the centuries--as an inexhaustible source of wisdom. And as one of the three most important expressions of Stoicism, this is an essential text for everyone interested in ancient religion and philosophy. Yet the clarity and ease of the work's style are deceptive. Pierre Hadot, eminent historian of ancient thought, uncovers new levels of meaning and expands our understanding of its underlying philosophy. Written by the Roman emperor for his (...) own private guidance and self-admonition, the Meditations set forth principles for living a good and just life. Hadot probes Marcus Aurelius's guidelines and convictions and discerns the hitherto unperceived conceptual system that grounds them. Abundantly quoting the Meditations to illustrate his analysis, the author allows Marcus Aurelius to speak directly to the reader. And Hadot unfolds for us the philosophical context of the Meditations, commenting on the philosophers Marcus Aurelius read and giving special attention to the teachings of Epictetus, whose disciple he was. The soul, the guiding principle within us, is in Marcus Aurelius's Stoic philosophy an inviolable stronghold of freedom, the "inner citadel." This spirited and engaging study of his thought offers a fresh picture of the fascinating philosopher-emperor, a fuller understanding of the tradition and doctrines of Stoicism, and rich insight on the culture of the Roman empire in the second century. Pierre Hadot has been working on Marcus Aurelius for more than twenty years; in this book he distills his analysis and conclusions with extraordinary lucidity for the general reader. (shrink)