This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial decisions, (...) official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart's jurisprudence. Indeed, the book's analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship - or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal - can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.. (shrink)

Para o direito, o poder é legítimo quando se subordina às regras jurídicas em vigor. Para o poder, o direito é válido na medida em que se torna instrumento da dominação. As relações entre o direito e o poder têm sido objeto das mais diferentes abordagens na sociologia, política ou filosofia. Entre os estudiosos do direito, contudo, o assunto não tem recebido a devida atenção. Infelizmente, porque a contribuição dos juristas para a discussão é bastante peculiar e, portanto, insubstituível. Este (...) livro resulta das reflexões de um profissional do direito sobre um dos mais relevantes aspectos suscitados pelo tema. Nele, discute-se como a produção do conhecimento jurídico é influenciada pelo poder, em uma sociedade capitalista. Depois de apresentar um panorama significativo da teoria política, de Hobbes e Foucault, passando por Weber e os marxistas, o autor centra a sua análise nos fundamentos jurídicos típicos do capitalismo (igualdade, legalidade e legitimidade), para examinar a forma pela qual a doutrina do direito é instrumentalizada na reprodução do poder, e, em certa medida, reage sobre este para ampliá-lo. Com o presente trabalho, Fabio Ulhoa Coelho, professor de direito comercial e de lógica jurídica da Pontifícia Universidade Católica de São Paulo, obteve por esta instituição o título de doutor em direito. Da Banca Examinadora, que o aprovou com distinção, participaram os juristas Tércio Sampaio Ferraz Jr. (orientador), Dalmo de Abreu Dallari, Celso Bastos, Maria Helena Diniz e Eros Roberto Grau. Em razão do seu aprofundamento, abrangência e atualidade, esta obra não pode faltar na bibliografia das disciplinas de teoria geral do estado e filosofia do direito, em nível de graduação ou pós-graduação, interessando também aos estudiosos das demais áreas das ciências humanas. (shrink)

A obra procura ter como inspiração central a ideia de Justiça. Considerando a Justiça como uma exigência comunitária de fazer o Bem e impedir o Mal, ela só se realiza plenamente quando organizada sob a forma de Poder, isto é, da força a serviço do Direito.

이 논문은 생명철학과 생명정치학의 함의와 그 관계를 해명하려는 글이다. 생명에 대한 존재자적 탐구가 생명의 의미를 망각한다면 생명철학은 그 존재론적 의미를 밝히는 형이상학적 작업이다. 그에 비해 생명정치학은 생명체의 타당한 존재론적 터전을 정립하는 실천 철학의 영역에 속한다. 현대의 사회문화적 상황은 생명을 실용주의적 관점에 따라 대상화함으로써 생명이 생명으로 자리할 터전을 박탈한다. 이런 현대 사회의 생명성 망각과 생명 소외 현상을 넘어설 길을 생명철학의 존재론과 생명정치학의 실천철학에서 찾으려는 노력이 이 글에 담긴 근본 목적이다. 이를 위해 먼저 이 두 학문을 포괄하는 맥락에서 설정한 생명학의 범위와 내용을 (...) 해명한다. 이어 생명철학의 내용을 설명한 뒤, 이를 바탕으로 생명정치학의 내용을 소개한다. 여기에는 F. 푸코의 생명관리정치와 G. 아감벤의 생명정치학이 포함된다. 이어 현대 사회에서 생명에 대한 과학적 지식을 전유하면서 이를 자본주의적 맥락으로 몰아가는 생명자본의 정치경제학을 비판적으로 분석한다. 이런 논의를 바탕으로 결론에서는 우리의 실존과 존재를 생명성으로 연결지어 해명하는 철학적 사유가 필요함을 말하면서 정당하게 이해하는 생명철학적 학문을 주장할 것이다. 그에 따라 생명과 올바른 관계맺음을 가능하게 하는 생명정치학이 정초될 수 있기 때문이다. (shrink)

Roberto Esposito is one of the most prolific and important exponents of contemporary Italian political theory.

Roberto Esposito is one of the most prolific and important exponents of contemporary Italian political theory. Bíos -his first book to be translated into English-builds on two decades of highly regarded thought, including his thesis that the modern individual-with all of its civil and political rights as well as its moral powers-is an attempt to attain immunity from the contagion of the extraindividual, namely, the community. In Bíos, Esposito applies such a paradigm of immunization to the analysis of the radical (...) transformation of the political into biopolitics. Bíos discusses the origins and meanings of biopolitical discourse, demonstrates why none of the categories of modern political thought is useful for completely grasping the essence of biopolitics, and reconstructs the negative biopolitical core of Nazism. Esposito suggests that the best contemporary response to the current deadly version of biopolitics is to understand what could make up the elements of a positive biopolitics-a politics of life rather than a politics of mastery and negation of life. In his introduction, Timothy Campbell situates Esposito’s arguments within American and European thinking on biopolitics. A comprehensive, illuminating, and highly original treatment of a critically important topic, Bíos introduces an English-reading public to a philosophy that will critically impact such wide-ranging current debates as stem cell research, euthanasia, and the war on terrorism. Roberto Esposito teaches contemporary philosophy at the Italian Institute for the Human Sciences in Naples. His books include Categorie dell impolitico, Nove pensieri sulla politica, Communitas: orgine e destino della comunità, and Immunitas: protezione e negazione della vita. Timothy Campbell is associate professor of Italian studies in the Department of Romance Studies at Cornell University and the author of Wireless Writing in the Age of Marconi. (shrink)

Since the 1960s the bio/technosciences have occupied a central place in philosophical thinking. The paper sets out three theoretical configurations embodying major challenges for today’s gender studies in philosophy, since they raise an obstacle, each in its own way, to the discussion on implications of the bio/technosciences in the political field and the area of gender theory: firstly naturalism in the field of the philosophy of science; secondly the paradigm of applied ethics; and thirdly the discourse of philosophical (...) anthropology that has been reactivated in philosophical debates about the bio/technosciences. To conclude, some of the future tasks will be mentioned which fall to gender studies in philosophy. (shrink)

In the 4th century B.C., philosophers began to write not only philosophical texts, but also biographical ones. As biographers, they often presented members of their own schools as the epitome of their ideals, or tried to prove that the followers of others lived in ways inconsistent with their own doctrines, which the writers thereby hoped to show were ultimately unrealizable. Other biographies contained chapters engaging in doxographical or more properly philosophical discussions. Even when the philosopher-biographers' attention turned to the lives (...) of politicians and poets, they would find occasions to introduce their philosophical concerns. This whole genre of Greek biography, then, is an rich source of commentary on the philosophical doctrines current in Antiquity. The papers collected in this volume explore the many ways in which philosophy was incorporated into such texts, as well as how the genre was used as a means of philosophical instruction, discussion and polemics. They analyze texts from the 4th century B.C. to the 6th century A.D., some belonging to the best-known examples of the genre, and others being virtually unknown to most students of Antiquity. The volume contains studies of, among others, Dicaearchus, Timaeus, Philodemus, Plutarch, Lucian, Iamblichus, Philostratus, Eunapius and the anonymous Prolegomena to Plato's Philosophy. (shrink)

In this paper, I explore how bio-hybrid forms can be created and combined starting from organic forms. The thesis put forward is epistemological: the combinatorial practice of bionics, biomimetics, biorobotics, and all design strategies inspired by nature is not based on a kind of biomimetic inspiration, i. e., on a kind of imitation of nature, but on a practice of translation. To develop this thesis, I focus on the practices of contemporary biorobotics, first examining the practice of translating natural forms (...) into technical artefacts as developed by Raoul Heinrich Francé at the beginning of the 20th century, secondly, analysing the production of robots capable of replicating complex locomotion systems and, finally, investigating the interaction between robots and living organisms (fish). In the last part of the paper, I reflect on the philosophical payoff and broader conditions of possibility for this translational practice. I discuss when and to what extent a translation of biological forms into biotechnical ones is acceptable and point out the notion of form that underlies this practice. Moreover, I draw attention to the need to philosophically investigate what happens between different domains of knowledge – and especially between science and technology. This article is thus an invitation to philosophers to develop a philosophy in the interstices of knowledge production. (shrink)

What role do images play in philosophical persuasion? With the advent of bio-art in the 1990s, a new vista opened up for this age-old puzzle: the possibility of creating images through bioengineering of living matter. Here, I test the critical intentions of bio-artists by setting up a comparison between, on the one hand, bio-art, and on the other, bioethics, a philosophical discipline, which developed at around the same time as this new artform. I argue there is an aspect of ethics--'the (...) difficulty of reality' in Cora Diamond's coinage--which analytic bioethics obscures, and which art can help us come to terms with. I develop my argument by comparing the work of artists Eduardo Kac, Stelarc and Maja Smrekar, with utilitarian bioethics by philosophers like Julian Savulescu. Philosophical concepts of the living presence, the viral image and the pensive image are revisited through this inquiry. (shrink)

This paper investigates the fundamental idea at stake in current bioeconomies such as Europe's Bio-Based Economy (BBE). We argue that basing an economy upon ecology is an ambivalent effort, causing confusion and inconsistencies, and that the dominant framing of the damaged biosphere as a market-failure in bioeconomies such as the BBE is problematic. To counter this dominant narrative, we present alternative conceptualisations of bio-economies and indicate which concepts are overlooked. We highlight the specific contradictions and discrepancies in the relation between (...) economy and ecology, and then work towards outlining a genuine and consistent conceptualisation of the BBE. The philosophical perspective of Emmanuel Levinas is employed to develop a more profound understanding of the tensions at stake; Levinas' work is compared with that of Nicholas Georgescu-Roegen's work on bioeconomics, and found to be of complementary value. Our hypothesis is that, rather than the impossible, absolute amalgamation of economy and ecology striven for today, a principal heterogeneity between humankind and nature must be acknowledged if a bioeconomy that truly operates within the carrying capacity of planet Earth is to be achieved. (shrink)

La science et la technique ont fait des progrès indéniables. Elles ont amélioré les conditions de vie en même temps qu'elles ont détruit la nature en en faisant une techno-nature, une nature artificialisée avec tous les méfaits, les dégâts qu'elle a apportés. Plusieurs chercheurs ont décrié cet état des choses, mais les philosophes semblent ne pas s'en préoccuper. Ils sont versés dans les spéculations nébuleuses de la philosophie "brune" : la métaphysique. La bio-éco-philosophie ou philosophie "verte" se veut être une (...) philosophie de l'homme dans, avec et pour la nature, où l'homme transversal, remplaçant l'homme transcendantal, se sent responsable de la vie et de la survie de l'environnement présent pour les générations futures. C'est la philosophie de la durabilité et de la résilience qui a pour rôle d'impacter, d'infléchir, d'induire le changement d'attitude, de mentalité et de comportement de l'homme vis-à-vis de la biosphère et de tous les écosystèmes. (shrink)

Astract Sex investigates the impact of advances in contemporary science and information technology on conceptions of sex. Evolutionary theory and the technologies of viral information transfer, cloning and genetic engineering are changing the way we think about human sex, reproduction and the communication of genetic information. Abstract Sex presents a philosophical exploration of this new world of sexual, informatic and capitalist multiplicity, of the accelerated mutation of nature and culture.

Within the philosophy of biology, recently promising steps have been made towards a biologically grounded concept of agency. Agency is described as bio-agency: the intrinsically normative adaptive behaviour of human and non-human organisms, arising from their biological autonomy. My paper assesses the bio-agency approach by examining criticism recently directed by its proponents against the project of embodied robotics. Defenders of the bio-agency approach have claimed that embodied robots do not, and for fundamental reasons cannot, qualify as artificial agents because (...) they do not fully realise biological autonomy. More particularly, it has been claimed that embodied robots fail to be agents because agency essentially requires metabolism. I shall argue that this criticism, while being valuable in bringing to the fore important differences between bio-agents and existing embodied robots, nevertheless is too strong. It relies on inferences from agency-as-we-know-it to agency-as-it-could-be which are justified neither empirically nor conceptually. (shrink)

The Aristotle-Kant tradition requires that autonomous activity must originate within the self and points toward a new type of causation (different from natural efficient causation) associated with teleology. Notoriously, it has so far proven impossible to uncover a workable model of causation satisfying these requirements without an increasingly unsatisfying appeal to extra-physical elements tailor-made for the purpose. In this paper we first provide the essential reason why the standard linear model of efficient causation cannot support the required model of agency: (...) its causal thread model of efficient causation cannot support the core requirement that an action is determined by, and thus an expression of, the agent’s nature. We then provide a model that corrects these deficiencies, constructed naturalistically from within contemporary biology, and argue that it provides an appropriate foundation for all the features of genuine agency. Further, we provide general characterisations of freedom and reason suitable to this bio-context (but that also capture the core classical conceptions) and show how this model reconciles them. (shrink)

Within the philosophy of biology, recently promising steps have been made towards a biologically grounded concept of agency. Agency is described as bio-agency: the intrinsically normative adaptive behaviour of human and non-human organisms, arising from their biological autonomy. My paper assesses the bio-agency approach by examining criticism recently directed by its proponents against the project of embodied robotics. Defenders of the bio-agency approach have claimed that embodied robots do not, and for fundamental reasons cannot, qualify as artificial agents because (...) they do not fully realise biological autonomy. More particularly, it has been claimed that embodied robots fail to be agents because agency essentially requires metabolism. I shall argue that this criticism, while being valuable in bringing to the fore important differences between bio-agents and existing embodied robots, nevertheless is too strong. It relies on inferences from agency-as-we-know-it to agency-as-it-could-be which are justified neither empirically nor conceptually. (shrink)

In this article, I reconsider bio-essentialism in the study of kinship, centering on David Schneider’s influential critique that concluded that kinship was “a non-subject” (1972:51). Schneider’s critique is often taken to have shown the limitations of and problems with past views of kinship based on biology, genealogy, and reproduction, a critique that subsequently led those reworking kinship as relatedness in the new kinship studies to view their enterprise as divorced from such bio-essentialist studies. Beginning with an alternative narrative connecting kinship (...) past and present and concluding by introducing a novel way of thinking about kinship, I have three constituent aims in this research article: (1) to reconceptualize the relationship between kinship past and kinship present; (2) to reevaluate Schneider’s critique of bio-essentialism and what this implies for the contemporary study of kinship; and (3) subsequently to redirect theoretical discussion of what kinship is. This concluding discussion introduces a general view, the homeostatic property cluster (HPC) view of kinds, into anthropology, providing a theoretical framework that facilitates realization of the often-touted desideratum of the integration of biological and social features of kinship. [bio-essentialism, kinship studies, homeostatic property cluster kinds, Schneider, genealogy]. (shrink)

The main goal of Henri Bergson’s philosophy of nature is to offer a dynamic understanding of living phenomena. It is in this context that we main­tain that the author left us a “bio-philosophy,” that is, an interpretation which, by adopting a positive model of biology as a cognitive paradigm, describes the essential character of living activity as time or duration (durée). Bergson’s posi­tive metaphysics, which brings science to the metaphysical field and provides an inner perspective of the vital (...) principle, consolidated itself in the study of evolutionary theories like Darwinism. However, the specificity of the perspective Bergson presents to us lies in the fact that he positions himself as a philosopher and not as a scientist: he does not seek a merely scientific explanation of reality, but an integral vision that allows us to give scientific evolution a metaphysical reading. Thus, when Bergson upholds the insufficiency of pure Darwinism, and proposes a true evolutionism, it is because he thinks that the only way to understand the evolutionary nature of life is by overcoming a strictly mechanistic perspective. For Bergson, such an interpretation results from the artificial way in which our intellectual functions deconstruct reality and lead to an incomplete and fragmented reading of the evolution of organisms. As a philosopher he seeks an explanatory level which, being scientifically based, is not restricted to the physico-chemical limits of reality. For that reason, Bergson claims that the inner cause of evolution is an activity where growth and division occur as a natural result of the divergence of life’s tendencies. (shrink)

Roberto Esposito, Bíos: Biopolitics and Philosophy, with an intro. and trans. Timothy Campbell. Minneapolis: University of Minnesota Press, 2008; Nikolas Rose, The Politics of Life Itself: Biomedicine, Power, and Subjectivity in the Twenty-first Century. Princeton, NJ: Princeton University Press, 2007.

Technology takes an unprecedented position in contemporary society. In particular, it has become part and parcel of governmental attempts to manufacture life in new ways. Such ideas concerning the governance of life organize around the same contention: that technology and life are, in fact, highly interconnectable. This is surprising because if one enters the sites of techno-scientific experimentation, those visions turn out to be much frailer and by no means “in place” yet. Rather, they afford or enforce constant interfacing work, (...) a particular mode of manufacturing life, rendering disparate, sturdy, and often surprisingly incompatible things available for one another. Here, we contend that both of those aspects, pervasive rationalities of interconnectability and practices of interfacing mark the cornerstones of what we call a new techno-bio-politics of life. In order to grasp the government of life under the technological condition, we must understand how both human and non-human entities are being rendered interconnectable and re-worked through practices of interfacing. We take neuro-technology and care robotics as two illustrative cases. Our analysis shows that the contemporary government of life is not primarily concerned with life itself in its biological re-constitution but rather with life as it is interfaced with and through technology. (shrink)

Foucault coined the term biopolitics when thinking about political philosophy, this concept designates a double path: a) anatomo-politics (regulation of bodies) and b) biopolitics of the population (massification of behaviors). Among these notions, the police emerges: a device that is an apparatus of discipline and a state apparatus and characterizes modern political rationality as a “political technology of doctors” between the 17th and 18th centuries (Classical Era). This work, therefore, focuses on investigating the notion of police in Foucault’s writings (...) from the prism of a genealogy of the police as a bio-police and questioning whether this idea is born as 1) a device of repression, as one thinks, or 2) advocates a technique of improving state sovereignty and strengthening the state within the state. In this work we defend the second hypothesis. (shrink)

Lectures from experts in scientific research, law, insurance, philosophy, ethics, theology and public policy.

According to Foucault, power in modern society is diffuse and pervasive, and works through the agency of free subjects. Its imperatives are internalized by indi­viduals who become self-disciplined, are tied to a particular identity, and govern their own behavior accordingly. Drawing on recent insights from neuroscience, the whole process of norm internalization can be seen as an expression of “neuropower” and a form of “neuropolitics” through which social and power relations become ingrained not just in human bodies and minds, but (...) also in human brains. In recent decades, this process has been partly reversed as a result of the proliferation of information technologies and the electronic media. (shrink)

While the philosopher Rosi Braidotti sees her own, new materialist work as opposed to the analysis of biopolitics from Heidegger to Agamben, the present contribution establishes a dialogue between these two lineages. Starting with Aristotle’s distinction between zōē and bíos politikos, it puts the analyses of biopolitics in immunitarian modernity in conversation with new materialism conceptualizations of affirmative difference and relationality. Replacing the negative logic of identity/alterity, life/death, dualism or dialectics and desire-as-lack of the Western philosophical and psychoanalytic traditions with (...) human and more-than-human post-individualistic subjectivity as part of a rhizomatic web, NM proposes a groundbreaking shift to post-anthropocentrism. The biopolitical fear of viral contamination cedes to viral contamination as the generative vanishing of borderlines between self and other. In this vital geocentrism marking a new kind of politics, the sym-poetic life force of zōē generates complex allegiances between heterogeneous entities in a shared world. (shrink)