This chapter contains sections titled: The Project of Formalism The Nature of Justification The Structures of Justification The Ground of Justification The Immanent Intelligibility of Law Conclusion References.

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases ; and adjudication is thus “autonomous” from (...) other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe. (shrink)

Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the (...) view that judicial behaviour can be represented using rules, and “rule formalism,” the view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges. (shrink)

A current focus of legal debate is the proper role of the courts in the interpretation of statutes and the Constitution. Are judges to look solely to the naked language of an enactment, then logically deduce its application in simple syllogistic fashion, as legal formalists had purported to do? Or may the inquiry into meaning be informed by perhaps unbridled and unaccountable judicial notions of public policy, using legal realism to best promote the general welfare? Judge Posner (...) considers the concepts of formalism and realism to be meaningful and useful in common law reasoning but in interpretation to be useless and, worse, forbidden. He analogizes unclear "orders" from a legislature to garbled battlefield communications, and argues that the duty of the recipient of those orders (the judge) is to advance as best he can the enterprise set on foot by the superiors. Case studies elaborate this thesis. Judicial decisions interpreting fixed texts, Judge Posner concludes, can be neither logically correct or incorrect, philosophically sound or unsound, until the ultimate jurist, time, has adjudged their results. (shrink)

Compares formalism and instrumentalism and evaluates their general claims. “Part of what is meant by formalism is this: The law provides sufficient basis for deciding any case that arises. There are no “gaps” within the law, and there is but one sound legal decision for each case.” The formalist also holds that law is traceable to an authoritative source. “…sound legal decisions can be justified as the conclusions of valid deductive syllogisms. Because law is (...) believed to be complete and univocal, all cases that arise can in principle be decided in this way. This is the formalistic model for legal justifications.” Moderate instrumentalism also accepts the notion that the law has sources and that past political events can determine what the law is for the future. However, they also maintain that the law has gaps. “Moderate instrumentalists and positivists alike embrace a source-based conception of the law as well as a formalistic model for legal justification; partly because of this combination, they reject the formalistic notion that law is complete and univocal. Instrumentalists, like positivists, emphasize that because the interpretation of authoritative legal texts and their application to cases are often controversial, reasonable arguments are often possible on both sides of a legal issue. Since there are no hard and fast rules for adjudicating such disputes, positivists conclude that law in such cases is indeterminate – not yet fully formed, needing judicial legislation. Instrumentalists most likely have a similar view of the law. They assume that law is determinate on an issue at a given time only if its identification and application are, roughly speaking, mechanical.” [Must keep in mind the distinction between determinate and conclusive.] “The instrumentalists make the decisive assumption that law is not determinate if it is controversial, for law is thought to be gappy and indeterminate only when reasonable legal arguments are possible on both sides of a legal question…This reasoning exposes a more fundamental assumption of formalism, instrumentalism, and positivism: Nondeductive reasoning is incapable of adequately establishing any conclusion.” This, though, is a radical thesis given that all scientific hypotheses are unproven deductively. [But it might be a claim restricted to legal reasoning. Moreover, it seems legitimate to wonder whether legal reasoning is really comparable to offering scientific hypotheses.] We should, however, reject the mechanistic model of legal and judicial reasoning that assumes a given major premise captured in authoritative legal texts that deductively produces conclusions in a situation to which a law applies. Take a law that requires some activity to be “economically efficient” but fails to specify economic efficiency. The text assumes that there is such a thing as economic efficiency, that some activities are so efficient and others not, that some judgments about economic efficiency are true and others false, and that the criteria of efficiency are determinable in principle. “[I]f there really are reasons for preferring one conception of economic efficiency to others in a given context, the assumption of the law in question would be true; if the court correctly identifies and applies that conception, it is simply carrying out its legal mandate. It would be faithful to the text, but it would not be limited to the four corners of the text and its literal implications.” Thus, a judge may employ non-mechanical reasoning in arriving at the meaning of legal requirements such as economic efficiency. Moral reasons are constitutive of the law. A judge must, in deciding the appropriate conc ption of economic efficiency, offer reasons for preferring that conception in the given context. (shrink)

This article argues that greater theoretical attention should be paid to the figure of the zombie in the fields of law, cultural studies and philosophy. Using The Walking Dead as a point of critical departure concepts of legal personhood are interrogated in relation to permanent vegetative states, bare life and the notion of the third person. Ultimately, the paper recommends a rejection of personhood; instead favouring a legal and philosophical engagement with humanity and embodiment. Personhood, it (...) is suggested, creates a barrier in law allowing individuals in certain contexts to be rendered non-persons and thus outside the scope of legal rights. An approach that rejects personhood in favour of embodiment would allow individuals to enjoy their rights without being subject to such discrimination. It is also suggested that the concept of the human, itself complicated by the figure of the zombie, allows for legal engagement with a greater number of putative rights claimants including admixed embryos, cyborgs and the zombie. (shrink)

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, (...) and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation. (shrink)

What is comparative legal history? This essay argues that to understand this new field of legal-historical studies, we need first to clarify how legal historiography has changed over time. To this purpose, this essay begins from two main ideas. -/- First, the writing of legal history is deeply intertwined with an image of law that tells us what law is, how it is created and by whom. This is, in fact, the premise for writing (...) legal history, as it determines the object of investigation. Second, the decades between 1930 and 1960 saw a profound turn in European legal science. Some legal scholars challenged the legacy received from the 19th century and launched an attack on the ‘formalism’ at the heart of its intellectual framework. -/- Those path-breaking insights gave life to a wave of works self-styled as comparative legal history published in the period 1930–60. At their heart were some of the challenging ideas that have continued to fuel original legal-historical research in the last few decades (e.g. to place law in context, to think outside the doctrinal box, the dislike of abstract theorising) and which today are shared as an obvious truth. They are the fruit of the antiformalist turn of between1930 and 1960. (shrink)

Emil Nielsen Busch and Marius Mjaaland (2023) ask whether controlled donation after circulatory death (cDCD) violates the dead donor rule (DDR). They begin their article with the claim, “The dead d...

According to Ronald Dworkin's mature views on jurisprudence, legal normativity depends on judges’ views about political morality. Plato's own mature views on this subject seem to take the contrary position as he claims that the law is expected to be authoritative in order to preserve a given state of affairs. Therefore, in Plato's view judges are not expected to interpret the law ubiquitously according to their own standards of political morality. In what follows, the discussion starts off by (...) offering a brief account of Dworkin's interpretivism and some of its shortcomings. We shall then move on to Plato's account of legal normativity, especially his views on the authority of law, law as preservation, and finally the politics of law in the light of the debate between conservatism and progressivism. (shrink)

I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled.

One of the fundamental questions of legal philosophy and theory is what it means to have a legal right, i.e. who can be considered a legal right holder. With the parallel development of bioethical doctrine, this question about rights holders is becoming increasingly relevant, raising the question of whether rights holders can be animals, trees, foetuses, future generations or machines (artificial intelligence). This question also applies to the dead, where the difficult question of the end of (...) life and the final occurrence of death also arises. By critically elaborating the positions of contemporary legal theorists in the context of two key theories of rights, the Will Theory and the Interest Theory and their mutual differences, the paper attempts to offer an account of the dead as potential right holders. In this context, the above legal theory elaboration is reflectively considered in the context of civil law doctrine of legal rights, as one of the fundamental areas within the general part of civil law. The legal subjectivity of the deceased is also observed in the field of (post-mortem protection) personality rights, but also in a pragmatic way in relation to recent domestic case law practice, as well as the case law practice of the European Court of Human Rights, where interesting legal issues have arisen that imply the question of the deceased as legal right holders. (shrink)

According to long-established narratives, legal thinking in Germany, France and the U.S.A. was shaped by formalist legal cultures for the most part of the nineteenth century until the respective legal sciences embraced their social responsibility in the early twentieth century. Recently, legal historians have begun to question these narratives. In separate analyses, they have shown that the critics of ‘Legal Formalism’ exerted a lasting influence on historical research since the early twentieth century, thereby (...) fostering a deeply charged understanding of nineteenth century jurisprudence. What went largely unnoticed, however, was the transnational dimension of this false narrative. Due to the transnational ties of the critics of ‘Legal Formalism’, a powerful misrepresentation of nineteenth century Western legal thought emerged that still influences contemporary global legal history. Dismantling the prejudices surrounding the Western jurisprudence of the nineteenth century causes crucial challenges for conceptualising nineteenth century Western legal thought. (shrink)

Intergenerational transfers are a core feature of the practice of private philanthropy. A substantial portion of the resources committed to charitable causes comes from transfers (either during life or at death) that continue to pay out after death. Indeed, much of the power of the charitable foundation lies in its ability to extend the life of an enterprise beyond the mortal existence of its initiating agents. Despite their prevalence, whether and in what way the instruments of intergenerational philanthropy can (...) be justified is controversial. Many have argued that these instruments unfairly privilege the interests of the dead at the expense of the living and unborn. More recently, others have argued that intergenerational charitable transfers comport with the demands of distributive justice and are therefore legitimate. This paper contends that both of these perspectives fail to see the problem for what it is. Intergenerational charitable transfers may indeed promote justice in certain respects, but they do so at the cost of imposing the judgments of the dead onto the living. Respecting the wishes of the past conflicts with an interest in “generational sovereignty.” The paper concludes that properly accounting for this interest in generational sovereignty doesn’t require the abolition of intergenerational philanthropy. But it does tell in favor of a different regulatory orientation than most legal systems currently adopt. (shrink)

We can construct a typology of rumours - defined broadly as unverified news - according to their relation to reality after their degree of veracity has been established, at least in the current state of knowledge, by experts (historians, scientists, police officers, journalists, and so on). If a rumour turns out to be correct it becomes an item of information. If a rumour is untrue it comes into the categories of affirming or denying rumours. Affirming rumours, which are the most (...) common type, state the reality of imaginary facts, for instance the rumour claiming that bananas from Costa Rica pass on to people flesh-eating bacteria that cause general necrosis. Denying rumours, which are rarer, deny the reality of established facts, for example rumours claiming that Elvis Presley is not dead or that Americans have never walked on the moon.It seems useful to distinguish various terms indicating negation. Rumours will be termed negative when they state facts associated with fear or hostility, whereas positive rumours evoke happy, welcome events. French researchers, who assign colours to rumours, talk about ‘black’ rumours or ‘rose-tinted’ ones. Specialists agree that there are around nine black rumours for every rose-tinted one. Rouquette (1975, 1990) has thoroughly studied this ‘bias towards negativity’, which is one of the main features of rumours. I shall talk about denying rumours and ideas when they deny commonly accepted events. These rumours are not necessarily negative: for instance survival legends often express the wish that a loved person were not dead. Finally, among denying rumours and ideas, we shall reserve the word negationist for revisionist claims that the gas chambers did not exist, or that a Nazi did not plan to exterminate the Jews during the Second World War. (shrink)

This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in (...) the title, the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point (...) of reference for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

One of the ways our legal system has avoided confronting this ugly reality is through a commitment to legal formalism. Legal formalism allows us to ignore the social determinants that my AUSA friend saw every day as he prosecuted federal drug cases. As my colleague Professor Michael Seidman has suggested, legal formalism, which has been effectively critiqued and displaced by legal realism in many other areas of law, continues to exercise considerable (...) influence over the way we think about criminal law. This formalist approach, in my view, has strongly affected the way we approach the drug problem. One consequence is that we continue to pursue an increasingly futile war on drugs and refuse to see the issue in its broader, realist dimension. A little realism on the subject of drugs, I suggest, would go a long way. There is much to be said for formalism in the criminal law. Formalism, with its commitment to fair procedures, clear rules, and restricted discretion, is a necessary part of any fair system of criminal law. The sanctions involved in the criminal system are too severe to permit them to be allocated in an open ended discretionary or regulatory manner. The criminal law's commitment to formalism is thus not a fault, but a strength. Discretionary regulatory schemes too often invite subjective judgments susceptible to abuse, prejudice, and favoritism. Formalist rules, by contrast, are built on the promise of treating likes alike. Precisely for this reason, however, we ought to reconsider whether the criminal approach makes sense when there is substantial evidence that the commitment to equality has been seriously compromised. Our dual commitments to equality and to the reduction of the human damage that drug abuse inflicts suggest that we should reduce our reliance on the criminal justice system. Alternative approaches, such as treatment and rehabilitation, promise to be both more effective and more fair. (shrink)

Transplantation of vital organs has been premised ethically and legally on "the dead donor rule" (DDR)—the requirement that donors are determined to be dead before these organs are procured. Nevertheless, scholars have argued cogently that donors of vital organs, including those diagnosed as "brain dead" and those declared dead according to cardiopulmonary criteria, are not in fact dead at the time that vital organs are being procured. In this article, we challenge the (...) normative rationale for the DDR by rejecting the underlying premise that it is necessarily wrong for physicians to cause the death of patients and the claim that abandoning this rule would exploit vulnerable patients. We contend that it is ethical to procure vital organs from living patients sustained on life support prior to treatment withdrawal, provided that there is valid consent for both withdrawing treatment and organ donation. However, the conservatism of medical ethics and practical concerns make it doubtful that the DDR will be abandoned in the near future. This leaves the current practice of organ transplantation based on the "moral fiction" that donors are dead when vital organs are procured. (shrink)

Recent literature in experimental philosophy has postulated the existence of the abstract/concrete paradox : the tendency to activate inconsistent intuitions depending on whether a problem to be analyzed is framed in abstract terms or is described as a concrete case. One recent study supports the thesis that this effect influences judicial decision-making, including decision-making by professional judges, in areas such as interpretation of constitutional principles and application of clear-cut rules. Here, following the existing literature in legal theory, we (...) argue that the susceptibility to such an effect might depend on whether decision-makers operate in a legal system characterized by the formalist or particularist approach to legal interpretation, with formalist systems being less susceptible to the effect. To test this hypothesis, we compare the results of experimental studies on ACP run on samples from two countries differing in legal culture: Poland and Brazil. The lack of significant differences between those results suggests that ACP is a robust effect in the legal context. (shrink)

This book represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought. Anthony Sebok traces the roots of positivism through the first half of the twentieth century, and rejects the view that one must adopt some version of natural law theory in order to recognize moral principles in the law. On the contrary, once one corrects (...) for the mistakes of formalism and postwar legal process, one is left with a theory of legal positivism that takes moral principles seriously while avoiding the pitfalls of natural law. The broad scope of this book ensures that it will be read by philosophers of law, historians of law, historians of American intellectual life, and those in political science concerned with public law and administration. (shrink)

Translated by Drew S. Burk and Anthony Paul Smith. Excerpted from Struggle and Utopia at the End Times of Philosophy , (Minneapolis: Univocal Publishing, 2012). THE END TIMES OF PHILOSOPHY The phrase “end times of philosophy” is not a new version of the “end of philosophy” or the “end of history,” themes which have become quite vulgar and nourish all hopes of revenge and powerlessness. Moreover, philosophy itself does not stop proclaiming its own death, admitting itself to be half (...) class='Hi'>dead and doing nothing but providing ammunition for its adversaries. With our sights set on clearing up this nuance, we differentiate philosophy as an institutional entity, and the philosophizability of the World and History, of “thought-world,” which universalizes the narrow concept of philosophy and that of “capital.” We also give an eschatological and apocalyptical cause to this end, of “times” or “ages” rather than those of philosophical practice. Last but not least, it is the Future itself in the performativity of its ultimatum that determines this end times, reversing these times from the Identity the Future accorded to it, withdrawing the thought-world from the lie of its death. Why this style of axioms and oracles, these more or less subtle distinctions, old and debased, with an appeal to the ultimata , to end times and last words? We fight to give, parallel to the concept of Hell, its new theoretical position, for its philosophical return and its non-philosophical transformation. No more so than any other word, Hell is not a metaphor here, just the Principle of Sufficient World. Every man, no doubt, has his “hell” readily available, connivance, control, conformism, domestication, schooling, alienation, extermination, exploitation, oppression, anxiety, etc. We have our little list that the Contemporaries established in the previous century in the same way one used to construct lists of virtues and vices or honors and wealth. They invented it for us without knowing it, for us-the-Futures who have as our responsibility to invent its use. In the Christian and Gnostic tradition, the struggle of the End Times takes place “on earth.” The most sophisticated of believers have it taking place in Heaven as well, above all in Heaven. The various kinds of gnosis imagine infinite falls and vertiginous highs, the vertigo of salvation. On Earth as in Heaven, a hell is available. The Marxists have the law of profit and the control of production, the class struggle Capital imposes on man. The Nietzscheans, the dull grumble of the struggle in the foundations of World and History, the domestication of man, the society of control. The phenomenologists, the capture of being, the most superficial amongst them, the age of suspicion. But all of these “hells” are taken from World, History, Society, and Religion. What we call Hell is no longer of the order of these specific and total intra-worldly generalities, it is both more singular and more universal, no longer being at all of the same order, it is the determinant Identity of these small hells strung out through history but unified here in the name of the last Humaneity. It is even found within the French idiom for hell [ enfer ], en-fer literally means “in-irons.” We are as much “in-irons” as we are “alive” [ en-Vie ]. We believe in Hell but as non-philosophers and it is even because we are non-philosophers that we can believe in it outside of any sort of religion. Hell is less mythological than ideological, it combines philosophizability with universal capital. Under what form? A single term could work for them without being a metaphor or something they would participate in by analogy, a more innovative and conjectural term than control, more universal than profit. It would denote the growing and permanent extortion of a surplus-value of communication, of speed and of urgency in change, in productivity and in work, in the pressure of images and slogans. It would be worse than solicitation, more tenacious than capture, more active and persecutory than control, softer and more insidious than a frontal attack, just as perverse as questioning and accusation, less brutal and offensive than extermination, less ritualized than inquisition, it would be soft and dispersed, instantaneous and vicious, it would be a crime without declared violence. Collusion and conformism, it would be afraid to show itself. Related to rumor, from which it borrows its infinite and tortuous ways. It is harassment. As a modernized form of Hell, perhaps harassment has a long future in front of it, of innocent torture, slow assassination, in short the fall, but radical with no way of recovering and which tolerates only salvation. THE PHILOSOPHICAL PAST OF NON-PHILOSOPHY Non-philosophy is thus Man as the utopian identity of the philosophical form of the World, a utopia destined to transform it. We still have to understand these equations, in particular that of the being-uni-versed from Man, and this book adheres to this by re-exposing non-philosophy in a different way via one of its new possibilities. It uses this opportunity to once again take up formulations that lead to objections answering certain external critics, as well as revisiting diverging interpretations specific to non-philosophers. A portion of this book is devoted to going through these theories via a strict or “lengthy” presentation of non-philosophy, and its defense against more expeditious solutions. This work of rectification is the occasion, merely the occasion, for refocusing non-philosophy on Man (the “Man-in-person,” “Humaneity”), and in a more innovative manner, on its utopian vocation established since the book Future Christ . As for this “occasion,” it is quite obvious. A school of posture, not to say a school of thought, supposes a minimum of closure from the most liberating of knowledge, a heritage, its utilization, and its no less certain dispersal. Within its development, a variety of interpretations will no doubt appear, deviations that are as much normalizations, and a struggle against this multiplication of divergent tendencies. These are perhaps not inevitable evils, especially here, merely a normal development according to the twisting paths of history. But the problem is made worse by the fact that this school of non-philosophers is that of utopia. Not the former attempts devoted to commenting on the worst authoritarian and criminal forms of the past and the present, but utopia as the determinant principle for human life, or to put it another way, of the Future as an irreducible presupposition of (for) thinking the World and History. Non-philosophers are engaged in an aleatory navigation between the respect for the most rigorous utopia, whose rules are not that of the reproductive imagination but those from the Future determining imagination itself, as well as the temptations, diversions, and remorse of history. Little by little, we will begin to understand that the Future as we understand it no longer has any temporal consistency or positive content, without being an empty form or a nothingness, but that it is foreclosed to past and present History, just as it is foreclosed to the place of places, the World, and that it is the only method for establishing the practice of thinking in a non-imaginary instance. Because it is the World and History that are imaginary and have a terrible materiality, it is not necessarily utopia. We will overlap two objectives here: the defense of non-philosophy against the (non-) philosophers that we are, only occasionally, and the introduction of philosophy to a rigorous future. Together they set out to definitively render, without any possible return to philosophical conformism or towards the facilities of the past and present, the non-philosophical enterprise understood as utopia or uchronia. Imagination and speculation, left to themselves and thus undistinguished, are quite good for participating in the grand game of History but have little value or worse for the Future which is unimaginable and unintelligible and must be maintained as such. MAN-IN-PERSON AS SUSPENSION OF THE PHILOSOPHICAL CHORA The point where philosophical resistance is concentrated is without a doubt the invention of the Name-of-Man, first name, oracular as much as axiomatic, of the determining cause for the non-philosophical posture. And that which concentrates the differends is the style of non-philosophy as identity that possesses the dual aspect, of discipline and of the oeuvre, of the theorem and of the oracle. But the real difficulty in understanding the simplicity of non-philosophy is profoundly hidden in the depths of philosophy itself. Because philosophy, from Parmenides to Derrida, even Levinas, continues to be a divided gesture, without a veritable immanence, transforming its thematic contents of transcendence in also forgetting to transform the operative transcendence in the element from which the ontology of surface is established which we will call, in memory of Plato, the chorismos. The general effect of the chora literally gives place to philosophy, demanding binding and sutures to which we will once and for all “oppose” the Man-in-person, his power of cloning, and his future being. All philosophy contains a hinter-philosophy in which it deploys its operations and weaves its tradition like an understudy of a topographical nature and in the best of cases being itself topological. Philosophy as well consists of two levels, its pre-ontological operative conditions on the one hand, and its superficial theme on the other, it too has its presupposed, but is not aware of it or erases it within the unity of appearance named Logos. Rightly, the Logos, and its flash or lightning nature, possesses a “dark precursor,” the chora, which is as much a virtual image, and philosophy, dazzled by its own lightning flash, seems to completely forget about it at the same time it sets itself up within it. Non-philosophy risks taking this same path, of confusing what it believes to be the real with its phantom double, contenting itself to working on the thematic level of philosophy, not its surface objects and its idle chatter (we stopped talking about this a long time ago and in any case they are merely simple materials for inducing a work of transformation), but the transcendence-form of its objects. In the end it risks, through precipitation, taking back up the heritage of philosophy, a heritage of a misunderstood presupposed, even more profound than the play of transcendences. This is what the imperative of the radicality of immanence meant, to treat immanence in an immanent manner, not to make a new object out of it. And from here we get non- (philosophy) and its refusal of the Platonic chorismos , symbol of all abstraction, and thus all transcendental appearance. There are no illusions. The message will leave a heritage in tattered pieces and interpretations. But it was difficult not to dispute the differend to its core. There will be complete confusion of the multiple, possible, and necessary effectuations of non-philosophy with its interpretations. The non-philosophical or human freedom of philosophical effectuation and the philosophical freedom of interpretation. Effectuations demand non-philosophy to return to zero from the point of view of its philosophical material and thus also but within these limits the formulation of its axioms , but in no way providing from the outset divergent interpretations of the aforementioned axioms. They are divergent because they do not take into account the material from which these axioms are derived within non-philosophy, and because they do not see themselves as symptoms of another vision of the World. The utterances of non-philosophy are not mathematical theorems and pure axioms, they merely have a mathematical aspect . They are, by their extraction or origin, mathematical and transcendental. And by their determined function in-Real, within non-philosophy, they are identically in-the-last-Humaneity entities which have an aspect of an axiom and an aspect of interpretation (or an oracular aspect as we say) that attempts (sometimes it is ourselves who provide the occasion) to isolate and transform, in complete freedom of interpretation. There will be an opportunity to complain about the complex character of the language of non-philosophy, an idiom saturated with classical references, sophisticated in a contemporary way. Its freedom of decision up against the whole of philosophy demands these effects of “complication” and “privatization,” as the saying goes. But it also demands fighting against the drift [ dérive ] of the pedagogical-all and the mediatic-all that leads philosophy into the shallow depths of opinion, which is the site of its impossible death. The noble idealism of “pop-philosophy” has been consumed into a “philo-reality;” against this we propose philo-fiction. Parricide, which is at the bottom of these interpretations and which we can judge as being quite fertile, although it has informed tradition, only takes place once or within one lone meaning. In regards to Parmenides, it was possible; Plato introduced the Other as non-being and language, bringing into existence the philosophical system of the World, but is it possible to repeat it again with the same fecundity in regards to non-philosophy, this time in introducing (non) religion or (non) art, still mixing them without taking into account this mixture, alternatively as a philosophical or religious resentment? If philosophy begins via a crime, it is no doubt obliged to continue down similar pathways, to the effect that the crimes of philosophy, once the founding crime has been committed, are a reaction of self-defense. It is undoubtedly from this that we get Marx’s declaration that history begins by tragedy and repeats itself or ends in farce. The preservation of rigor and fecundity is, in every respect, a psychologically difficult task within a theory such as non-philosophy. Having posited an essential objective of liberation in regards to philosophy and its services, one has often understood this objective as an authorization of providing particular interpretations of its axioms and ends up obliterating their scope. This ends up confusing, on one hand, two kinds of freedoms in regards to non-philosophy, the freedom of its interpretations and the freedom of its effectuations. On the other hand, any defense of “principles” against precipitated interpretations is immediately taxed with a will to orthodoxy, a prohibitive objection when we are dealing with, as is the case here, a heretical theory of thought. Nevertheless, it is time to stop confusing heresy as the cause of thought with an ideology of heresies, which is certainly not at all our object, but rather a form of normalization. As for the “disciplinary” aspect, which is not the only aspect, it demands something other than philosophical “answers to objections,” a precision in the definition and use of its procedures in the formation of utterances, since non-philosophy is neither a supplementary doctrine interior to philosophy nor a vision of the world but one whose priority is a “vision of Man,” or rather Man as “vision” that implies a theory and a practice of philosophy. In the end, struggle is only one aspect of non-philosophy, not its whole or telos, struggle coming only from its materiality. In particular, if the discipline of non-philosophy is inseparable from struggle, it is not a question of reducing the monomaniacal obsession of its “marching orders.” This would reduce its complexity and kill its indivisibility, deploying it in a “long march” and a form of Maoization whose philosophical presuppositions no longer have any pertinence here, a case of the One and the Two, which are now cloned and no longer tied together. More generally, non-philosophy is a complex thought composed of a multitude of aspects, which is to say, unilateral interpretations, of a philosophical origin but reduced by their determination in-the-last-instance . The “liberalism” of non-philosophy is merely one of the aspects of which it is capable, not an essence. Similarly, it is only capable of having a “Maoist” aspect. Let us generalize. The weakness of non-philosophy is due to a specific cause, the determination-in-the-last-Humaneity of a subject for the World. Everything that has a right to the philosophical city can be said about it in turn and in a retaliatory mode since Man contributes nothing of himself that Man takes from the World. We can consider non-philosophy as being pretentious, absurd, idealistic, empty, materialistic, formalistic, contradictory, modern, post-modern, Zen, Buddhist, Marxist; it endures or tolerates, perhaps “appeals” to, or at least renders possible, sarcasms, ironies, and insults without even talking about the misunderstandings, partly for the same reason as psychoanalysis. All of this goes beyond simple “deviations.” They are its aspects, which is to say, its “unilateral” philosophical interpretations in both senses of the word, being either sufficient coming from the mouth of philosophers, or reduced to their absolute dimension of sufficiency and totality in the mouths of non-philosophers, and both times due to the weakness and strength of Man-in-person as their determination only in-the-last-instance. The non-philosopher is certainly not a Saint Paul fantasizing about a new Church. The non-philosopher is either a (Saint) Sebastian whose flesh is pierced with as many arrows as there are Churches, or a Christ persecuted by a Saint Paul. What is engaged in here is the practice of retaliation. A negative rule of the non-philosophical ethics of outlawed discussion by way of argumentation (the sufficient is you, the orthodox one is always you, you are the fashionable one, and when a master you are someone else) that is founded on the confusion of effectuations of non-philosophy and of its overall interpretations. Retaliation is the law but as with any too-human law, it must acquire a dimension that displaces it, or rather emplaces it and takes away its authority but not all of its effectiveness. If the non-philosopher is only authorized by himself, which is to say by philosophy but limited by the Real-of-the-last-instance, its critique of other non-philosophers can merely be retaliatory under the same conditions, only by the Real limited in-the last-instance. THE TREE OF PHILOSOPHICAL SAINTLINESS The thematic horizon or material of these debates is in the relationships between philosophy, religion as gnosis, and non-philosophy. It is inevitable, regarding non-philosophers in general (whether they are non-philosophers by name or simply its neighbors) that we often end up evoking Marx’s Holy Family and imagining, arranged on the neighboring branches of the tree of philosophy and annexed, sometimes abusively, to non-philosophy, authors who would quite evidently and quite rightly refuse this label. So it is that we find, for example, a Saint Michel, a Saint Alain, a Saint Gilles 1 without even mentioning the youngest who aspire as well to the freedom of “saintliness” and who make their muted voices heard here. If there is a Holy Family of non-philosophers, it extends completely beyond these three, provided that the sectarian spirit can save us. This book is organized in the following manner: To begin, in order to recall the essential part of the problematic, we have organized a Summary of Non-Philosophy , a vade-mecum of notions and basic problems, in a classical style. Secondly, there is Clarifications On the Three Axioms of Non-Philosophy , designed to posit their proper use as much as to elucidate their meaning. Thirdly, an analysis of Philosophizability and Practicity , both being extreme constituents of philosophical material or the contents of the third axiom. Fourthly, the heart of this work: Let us Make a Tabula Rasa of the Future or of Utopia as Method . Fifthly, we have a theoretical outline of a non-institutional utopia, The International Organization of Non-Philosophy, L’Organisation Non-Philosophique Internationale, (ONPHI) already created in practice but under the conditions of possibility and functioning from which here we put into question “de jure,” thus not without a perplexity concerning “facts,” in any case, without the capability of “getting to the bottom of things.” Sixthly, an essay characterizing The Right and the Left of Non-Philosophy , a brief topology of several philosophizing and normalizing positions of proponents or tenants of this problematic. Seventhly, Rebel in the Soul: A Theory of Future Struggle , a systematic discussion starting from a confrontation of non-philosophical gnosis and non-religious gnosis to the extent that they pose, posed or perhaps still will pose themselves as rivals to non-philosophy in a mixture of fidelity and infidelity. Despite the fact that it can also be read as putting non-philosophy into perspective: it pits against a standard Platonism two contemporary appropriations of Gnosticism. On the basis of the paradigm of Man who never ceases to come as the Future-in-person, each one of these moments strives to reestablish not the “true” non-philosophy and its orthodoxy, but the minimal conditions to respect in order to allow for its maximum fecundity. And in order to bring about one of the last possibilities of its development, making explicit Humaneity as a utopia-for-the-World. In introducing these considerations in the form of a “testament” and “ultimatum,” we want to indicate two things: First, that this is the last time we will intervene in order to caution non-philosophers against the temptation of returning and looking backwards towards philosophy. Only a disillusioned nostalgia for the former World and its traditions barely remain permissible to us.… Secondly, that non-philosophy is also a sort of ultimatum for considering one’s life and transforming one’s thought from the perspective of a uni-version rather than a conversion. Man as future is this ultimatum in action, not an impatient self-proclaimed genius, and philosophy is his testament. It is obviously the ultimatum that determines this testament as “old” with a view towards a life that is, itself, non-testamentary. In and of itself, the “old” can never bear a veritable eschaton. Thus, this book intersects according to the logic of this paradigm, under the sign of the ultimate or “last” as future, philosophy as testament and cautionary note for maintaining the non-philosophical oeuvre as “future” or “utopian.” We will see that between these two dimensions it cradles a theory of struggle. In the end, this book envisions non-philosophers in multiple ways. It inevitably sees them as subjects of knowledge, most often academics insofar as life in the world demands, but above all as close relatives of three great human types. The analyst and political militant are quite obvious, for non-philosophy is close to psychoanalysis and Marxism insofar as it transforms the subject in transforming philosophy. Here again, one must have a sense not of certain nuances but of aspects (of the interpretations, albeit unilateralized) and not in order to construct a simple proletarization or militarization of thought as theory. To be rigorous, rather than authoritarian or spiteful, is its task. And lastly, non-philosophy is a close relative of the spiritual but definitely not the spiritualist. Those who are spiritual are not at all spiritualists, for the spiritual oscillate between fury and tranquil rage, they are great destroyers of the forces of Philosophy and the State, which are united under the name of Conformism. They haunt the margins of philosophy, gnosis, mysticism, science fiction and even religions. Spiritual types are not only abstract mystics and quietists; they are heretics for the World. The task is to bring their heresy to the capacity of utopia, and their utopia to the capacity of the paradigm. NOTES We will recognize allusions, and sometimes references, to closely related or distant themes, but which are related, in the work of Michel Henry, Alain Badiou and via the representative of “non-religious” gnosis of a Platonic origin, in Gilles Grelet. It goes without saying that these discussions are current and local, neither concerning the ensemble of doctrines nor prejudging the eventual evolution of certain amongst them. This concerns defining certain proximities with non-philosophy (rather than adversaries which in some sense they are) and typological and emblematic differends (rather than conflicts with a certain author). (shrink)

continent. 2.1 (2012): 29–35. Translated by Vincent W.J. van Gerven Oei from Jeroen Mettes. "Politieke Poëzie: Enige aantekeningen, Poëtica bij N30 (versie 2006)." In Weerstandbeleid: Nieuwe kritiek . Amsterdam: De wereldbibliotheek, 2011. Published with permission of Uitgeverij Wereldbibliotheek, Amsterdam. L’égalité veut d’autres lois . —Eugène Pottier The modern poem does not have form but consistency (that is sensed), no content but a problem (that is developed). Consistency + problem = composition. The problem of modern poetry is capitalism. Capitalism—which (...) has no image: the unrepresentable Idea of “everything.” The problem is that a poem cannot be justified. There is no excuse for it. Political poetry— pure poetry—has to be problematic, though not in a mannerist way. Yes, its problem is first its own problem—poetry’s existence in the same world as the newspaper—but therefore also always everybody’s problem (the problem of any world at all). The cult of the sublime points at a suspect desire for transcendence, nostalgia for paradise lost (the womb?). Melancholia of the post-. But a problem neither sorrows nor mourns, it is alive, and the fact that it is alive is the problem—the problem for death (rigidity, the status quo). Our symbols and ideologies do not hide any god: symbolic = state; imaginary = human; real = money. Problem: the possibility of communal speech (poetry) in the absence of a “we.” Or: what is a “we” that is not a collective subject (or in any case is not a volonté générale )? What is a universal history that is not a History? This work was started in the shade of the anti-globalization protests at the end of November 1999. I considered N30 to be the closure of the nineties, of my adolescence, and of the a seemingly total extinction of social desire. From the beginning I was skeptical about the alterglobalization movement as the avant-garde of a new politics, but something was happening . Maybe this event did not show that, as the slogan would have it, “another world” is possible, but for me it indicated that such possibility was at least still possible. That naked possibility is carrying forward. And if the fundamental tone of this work sounds more desperate than utopian, this is not caused by the catastrophic sequence that since 1999 has plunged us ever deeper into the right-wing nightmare—a nightmare that this work also gives an account for—but because my hope as yet remains empty. Composition . Composition is no design, but the production of an autonomous block of affects (i.e. a POEM), rhythmically subtracted from the language of a community. A poem does something. Is something. New Sentence . Choosing the non sequitur as compositional unit has the advantage that an abstract composition is subjected to the stress of concrete, social references. Where there is a sentence, there is always a world. (This does not hold necessarily for words on their own.) And where sentences collide, something akin to a textual civil war takes place. It is not about “undermining” whatever, or de-scribing the raging global civil war, but about writing social (or even: ontological) antagonism -- including all its catastrophic and utopian possibilities. Minor resistance. Why would poetry be the no protest zone par excellence? It is nothing but protest, not simply qua “content,” but in its most fundamental essence: rhythm. Rhythm is resistance against language, time, and space, and the basis of (what we will continue to call) autonomy. Rhythm starts with the anti-rhythmic caesura as Hölderlin remarked about Sophocles, a disruption of the quotidian drone. The destruction of everything that is dead inside of us. The noise of the avant-garde has never been the representation of the noise of (post)modernity (from the television or shopping mall), but the sober noise of the systematic exchange of an unbearable worldview. The poet does not describe, but looks for a way out: There is a Grain of Sand in Lambeth that Satan cannot find Nor can his Watch Fiends find it, tis translucent & has many Angles But he who finds it will find Oothoons palace, for within Opening into Beulah every angle is a lovely heaven William Blake was not mad. And there has always been only one poetry: the poetry of paradise. The principle is that there is something in art (the essentially creative element) that is disgusted by that which, unlike art, does not aim for the supreme. Wonder is not supreme, tranquility is not supreme, beauty is not supreme. Even amusement is not supreme! The supreme is supremely open, “das Einfache,/ Das Schwer zu machen ist” 1 : paradise. That is abstract. Literally. For me it is not about a concrete imagination, an idyll or utopia. There is no doubt a need for that, but it is not so much the supposed lack of imagination or ideals (human rights are ideals), but a fundamental lack of desire (human rights are no desires) that we suffer from, and from which we do not need to remove Nietzsche’s label of “nihilism.” “We.” George Oppen: “ Of Being Numerous asks the question whether or not we can deal with humanity as something which actually exists.” What is less actual than humanity? Nowadays it appears as a lifeless ideology of cynical power politics. Or as what makes one think. It is a shame to be human. The event is the caesura that defines rhythm. Writing toward the event is not the description of the event, but marking an abstract and intense space in which the event may unfold and keep itself. It is a task. “Remember that thou blesseth the day on which I seized thee, because such is thy obligation.” The event is a contraction (or a series of contractions) with its own rhythm and unique qualities. It is more than an explosion or demonstration. But at the same time less. The endless repetition of images and stories in the media points to a fear for the indeterminate and indeterminable void of the event. In the end there is nothing to see. We do not live in disaster’s shade or miracle’s light, but rather in the rhythm, which is contracted time, having little to do with omnipresent representations. For this book I did not intend a rhythm of evental representations (a narrative rhythm), but a rhythm which would be an event itself , because it draws the border between artwork and history. My desire for a direct engagement with the “extra-textual reality” has nothing to do with the representation of “rumor in the streets.” (What has less street cred than representation?) Naturally, a poem is no historical event and does not change anything. But a poem is a part of history that wants to be repeated forever, constructed in such a way that it is worthy of repetition. It is a part of desire (composition) made consistent (durable). The “historical event” flares up and burns down, and has to burn down to be effective. The leftovers are images and stories (representations), History—no event. The artwork—that is the ambition— remains event (though monumental and inefficient/inoperable). (No wonder that a historical singularity, a revolution, reminds us of a work of art; the resurrection yearns for a judgment, an affirmation; everything depends on it.) Hence the title does not summarize the book, let alone contract its “content” into a quasi-transcendental signifier. The title is juxtaposed to the book, like everything else inside the book, and in that relation it precisely forms a part of it. The ideal work is an open whole, lacking nothing but to which everything may be added. I have been interested in this “everything,” the world, or as I said above: capitalism. “Everything” is not the space for “wonder”—a code word, a shibboleth for petty bourgeois imagination (I recognize myself in the strangest things, a speaking dog, a canal, a pond standing straight—oh my god). No. The world is a social world, not YOUR world, poet. Power is number one. I will call “Dutch,” or “shitty,” whatever denies this power. That hurts, but this pain is an expression of the desire in the world to write another world, or as Blanchot says, “the other of all worlds” 2 : the world. Not as what “is there,” but rather as that which urges for an escape from what “is.” This is a testament of how radical reality has become, for me—or rather, a writing body—in a having-been-written. I am not interested in the problem of “meaning” as misunderstood by literary scholarsi: “order” in “chaos,” “symbolization.” Bullshit. What is there, hop, hope, now: the meaning of the taste in my mouth. Bullshit. I am not interested in the frustration of interpretation; I am writing for readers who do not want to interpret. I do not know how many “professional readers” will hear the music of a paragraph like: Sun. Sushi. Volvo. I hope more than I would think. There is a suggestion (or rather, an actual production) of speed and infinitive owing to the absence of plosives, i.e. articulations such as /k/, /t/, or /p/. Can you hear the slick suaveness? Driving car dark, vocal chiaroscuro of the word “sushi.” The unstressed /i/ stands in the middle of dark vowels and thus acquires its own special out of focus , like a momentary flash or brilliance—an obscure light. It is not about recognizing a story, but about avoiding any story whatsoever: the car disappears in the glow, cars and raw fish have nothing in common except their articulation in a language that brings them together, blurring them. A world appears in its disappearance. For a moment, light is a metaphor for language, though it cannot be reduced to tenor. It is not necessary to be a linguist or philosopher to hear this—a “difficult” poem all too often becomes an allegory of its own impenetrable being-language. The only demand: leave your hermeneutical fetish at home. This was no interpretation. Most shit has been stolen etcetera. That is no longer interesting. You cannot shoot the body with information and let your lawyers reclaim the bullets. So every sentence has been stolen. Also the ones “out” “of” “my” “head.” Why would I be allowed to steal from myself and not from others? Man takes what he needs to move forward. Whatever he encounters, finds in front of him, “occurs” to him. The writer as text editor, or singing pirate. Nothing new here. Important difference with for example Sybren Polet’s 4 montage technique: anti-thematicism. Most of the time ferocious citation from whatever I was reading, listening to, ended up in, and so on. I wrote chapter 12 on my laptop while watching CNN. On the air instead of en plein air . I often employed search engines to generate material. Chapter 20 offers the purest example of this. Often I stop recognizing a particular citation after some time. It is not uncommon for a stolen sentence to conform itself to the paragraph in which it finds itself. Sometimes I nearly arbitrarily replace words. Arbitrariness as a guarantee for absolute democracy. It is a poetics of the non sequitur : a conclusion that does not follow from the premises, the strange element in the discourse. A discourse of strangers. No logical, narrative, thematic unity. There is unity in speed/flight. It has to be read linearly, but not necessarily (not preferably) from beginning to end. The shortest distance between two points is a straight line, but this line precedes every point. The middle, the acceleration, comes first. A point occurs where two lines cross. It has been written from up close, at the level of the tension between sentences. Nothing to be seen from a distance: no form except the exchange of form, no geometrical or mythical meaning. You have to get in, “groping toward a continuous present, a using everything a beginning again and again” (Stein). 5 In Dutch, experimental poetry has been mainly dense: a small rectangular form filled with a maximum amount of poetic possibility. But at the moment the poem starts to relax, the anecdotical content seems to increase. This is what is called “epic”: long, narrative. I believe that an epic is more than that, in fact something completely different. An epic is “a poem including history,” 6 a long poem tied up with the life of community, that as a whole does not need to be narrative. The American poets of the twentieth century (Pound, Williams, Zukofsky, Oppen, Olson, Silliman) have put the epic back on the map by interpreting the poem itself as a map, and writing it as navigation. They have invented the experimental epic, a genre that has generated little original following in “our” poetry. N30 is the middle part—“always start in the middle”—of a trilogy, the contours of which remain as of yet unclear, although each episode investigates one of the three “ecstasies of time”—past, present, future—concerning society X. N30 concerns itself with the PRESENT: not with the description of actual facts but of the rhythm and the intense depth in which facts appear to us. Where are we? We are camping in the desert. Sometimes we are looking at the stars. As opposed to maximum density and minimal tension (a characteristic of most (post-)experimental lyricism), I have sought a minimal density and maximum tension in this book, considered as a long non-narrative prose poem. On the one hand, the minimal density is obtained by the inherent formlessness of prose, on the other hand by the conscious refusal of any active (formal, non-rhythmic) synthesis: the poem tells nothing, shows nothing, has no theme. I did not seek maximum tension either by loading the quotidian with epiphanic radioactivity (“wonder,” confirmation from above), or by means of the intensity of the linguistic structure. I want an abstract tension, but social in its abstraction, in other words, not neutralized by and subjected to Form. Instead of form (transcendent): composition (immanent). The concept is series. Ideal: every unit is necessary for the efficacy of the others and the whole, their relation is purely linear, i.e. non-hierarchic, non-syllogistic, non-discursive, non-narrative. Sentence related to sentence like paragraph to paragraph and chapter to chapter; the whole means nothing and represents nothing. Inside the sentence: syntax (Chomsky’s tree, a type of parallel circuit), outside: parataxis (coordination, an asyntactic line through language and world). I consider duration—the energy of duration (rhythm)—to be the fundament of a poem, the temporal inclination to delimit a “space.” Being as consistency, its consistency. A spatial part of time is not merely a metaphor for an inevitable trajectory, an inescapable time, something like “our time.” Not merely—because rhythm comes from language and is not projected onto it; the poem derives from the world like a scent and a color and a life from a flower. A series, a sequence: nothing potential, but truly infinite—the movement of an infinitude. The infinite series = everything minus totality. That means that there is no container—no Form, no Self, no Image, no Structure, not even a Fragment—just “the prose of the world.” No representation, but also no staging of the impossibility of representation (the postmodern sublime). These are no fragments, no image of a fragmented world or personality, no cautious incantations around the Void. It does not exist. It is a movement. Buying bread, a flock of birds, a bomb falling—they do not depict or represent anything, not literally, not metaphorically. There is an Idea, which is however nothing more than a rhythm, in the same way that capitalism is nothing more than a pure function. Parataxis: the white space between two sentences stresses, which is nevertheless always there, also between words, even between letters: the out of focus of idle talk, the gutter, the irreducible Mallarméan mist which renders even the seemingly most transparent text legible. The white space suggests a neutral medium for free signification, a substance of language. A non sequitur is an element from a foreign discourse, which stresses the white space as space, and problematizes freedom for supra-sentential signification. I start by withdrawing material, leaving the initiative to the sentences. In general a word presupposes less often a discourse than a sentence. What discourse is presupposed by “dog”? We could think of several, but why would we? It is more probable that, when faced with the naked word, we think of its naked (dictionary) meaning, of its denotative signified. By means of two simple interventions we may also write the word as sentence: Dog. In no way this suggests the discourse from which this sentence originates, but in any case we’re presupposing one. This is shown by questions like: “Whose dog? Who’s a dog? What kind of dog?” Etc. (Sentences are question marks.) A sentence implies/is a microcosm—a subject, a verb, an object, and so on. Even an incomplete or ungrammatical sentence does so. My main fascination while writing this book is the worldly and social aspect of language, an aspect that often becomes invisible, or rather, transparent in narrativity—the stretching of sentences into stories. Narrativity organizes a new discourse and a new world, and places a sometimes all too dispersing relation of transparence in between. The conventional novel is the brothel of being. I do not intend to prohibit brothels, and I have certainly not intended to write an anti-novel (THIS IS A POEM), but I do consider narrativity (in general, in poetry, in the news, in daily life) to be ontologically secondary with regard to an immediate being in the world through sentences, also if the latter have been withdrawn from a narrative or otherwise externally structured discourse (which in that case would therefore be chronologically primary ). Naturally, two or more sentences are always in danger of telling stories or arguing, just like the world is always in danger of becoming an objective representation, facing us, strangers. That is why need to wage war—against representation and against the interface, against interaction. AGAINST THE “READER.” To the extent that a sentence is worldly, writing is a condensed global war, and in so far as there is ultimately only one world and one open continuum of languages, it is a global civil war. Nice subject for an epic. The elaboration of a singular problem—prose as the outside of poetry, the form of the novel as purely prosodic composition scheme—“expresses” the universal problem: capitalism as Idea of the world vs. poetry as language of an (im)possible community. The paragraphs are blocks of rhythmically contracted social material. By choosing the sentence as the basic compositional component, an abstract whole may contain social sounds, without telling a story or showing an image. Composition is subrepresentative —a rhythmic, passive synthesis, or rather: a synthesis of syntheses. I never write large blocks of prose in one sitting, because there is no obvious organizational vector —plot, theme, conscience—outside the inherent qualities of the material itself. Usually I write down one sentence, sometimes two, but rarely more than three. Those sentences are usually placed in the text which I am editing at the time. In fact, there is no original composition, new chapters split off from chapters which became too long during the editing process. (Revision mainly consists of adding and inserting, displacing and dividing; only during the last phase, when the text has gained enough consistency, there may be subtraction to tighten the composition; each chapter requires a season of daily revision). This constant revision, accompanied by a continuous influx of collective background noise (to speak with Van Bastelaere), 7 makes every chapter a block condensed (“historical” and “personal”) time. The block itself is a-personal and a-historic; it is ontologically autonomous. If there is such a thing as a spirit of the times, I do not try to offer an image of it, but rather to cancel something of it by erecting a monument of its own excrement within its own boundaries. Tuning and dis-tuning , “in de taal der neerslachtigen een eigen geluid doen klinken,” 8 in other words, desiring in an Elysian way. In this sense I have intended to be able to write a political poetry. The ultimate political poem is the epic, “the tale of the tribe.” I consider N30 to be a prolegomenon to a future epic (of which it in the end will form a part a structural moment, as introduction-in-the-middle), an extended pile on top of an epic as narrative, a question of the tribe and question of its history. I was burdened by too much satire, too much bullshit. But: satire willy-nilly = the only justifiable satire. Against the abstract universalism of the market (“globalism”): concrete disgust, a positive way of saying “No.” Moreover, disgust is a specifically total attitude, which ultimately concerns the world as a whole. I hate this or that, but I am disgusted by EVERYTHING (when I am disgusted), and so it appears that satire is in fact related to the epic, in so far as it concerns society, the cosmos, history. Maybe it is no coincidence that the Dutch literary canon knows no great poet of disgust; what could be more fearful to us than society, the cosmos, and history? The T-tendency (T from Tollens 9 ) clearly points into the direction of the small, friendly, ironic, melancholic, acquiescent, wondrous, and so on. The anti-political, anti-cosmic, anti-historical. (Why am I so philosophical? To scare away the Dutchies.) And most of all: the “poetical” (the pseudo-mysticism from the backyard). Yes, the N in N30 also stands for the Netherlands (just like 30 indicates the number of chapters). I was not in Seattle, I do not live in Iraq. But is not the whole world bleeding to death on Dutch paving stones? Let’s hope that we mowed away something with this total satire, also “in myself.” The arrogant stupidity that definitely thinks to know the essence of freedom (the free development of esthetic needs inside the void), that cannot take anything serious, only believes in the disciplined bestiality of the individual (“norms and values”) and the mere functioning of a social factory which finds no justification whatsoever outside its functioning (“get to work”)… Who knows. A certain aimed destruction leaves grooves and craters, mapping out a next adventure. Pound’s periplum : sailing while mapping the coasts. Immanent orientation. The terrain changes with the map, history changes with the poem. Maps never merely organize the chaos, transcendent schemes imposed on a formless Ding-an-sich . They organize from within, surfing. But they are most of all routes back into the chaos or forward to paradise (final identity of chaos and paradise; Schlegel: “ Nur diejenige Verworrenheit ist ein Chaos aus der eine Welt entspringen kann ”10). A poem is not only a piece of history, it is also a flight from history. Maps give chaos to the form of reality , open escape routes, break through representations, make us shivery and dazed. Paradise is immanent to a fleeting desire. History is the history of labor—this is Adam’s curse—and the poet works too: For to articulate sweet sounds together Is to work harder than all these, and yet Be thought an idler by the noisy set Of bankers, school masters, and clergymen The martyrs call the world 11 But: the poet works in paradise. The paradox of the artwork, the work that is no work, the piece of history that cannot be reduced to History—this is explained by The Space of Literature , a virtual space, an autonomous rhythm, not outside, but in the midst of the noise, a piece of paradise in hell, a postcard from the vale of tears addressed to paradise, to X. Political poetry means: a poetry that dares to think about itself, about its language and about its world and about the problematic relation between both, which is this relation as problem. A poetry that thinks at all, articulates its problem. It has nothing to do with journalism or morality or debate, let alone the law or the state. It has nothing to do with “criticism” if this means the replacement of incorrect representations by other, more correct representations. It has something to do with ethics in the sense of learning to live. It has something to do with the community and the language of the community (whichever that may be) and the role of the poet regarding the community. It concerns justice without judgement or measure. In the end the just word is just a word , to paraphrase Godard: it is from a future that is unimaginable. It Is no rational engagement, but an aversion against everything that obstructs life, and love for everything what is worthy of having been loved. The world is engaged with me, not the other way round. First Exodus, then Sinai. A desire does not start with an agenda. To answer the question whether I am really so naive as to want to change the world: “We only want the world.” Justice is the world appealing to us to liberate it from all possible chains, from each organization and inequality, to be it, smooth, equal, under a clear sky—a desert and a people in a desert. That moment between Egypt and the Law. It is not a revolution, but the sky above the revolution. Poetry = the science of escape. There is no art that we already know. The weakness of modernistic epic poetry seems to me to be the unwillingness to completely abandon narrative as a structural principle, in favor of a composition “around” or from an event. The China Cantos and Adams Cantos are the low point, and the Pisan Cantos the high point of Pound’s poetry. Two types of research: archival representation of the past vs. ontology of the present (which virtually presupposes the entire history). Presupposing an event means that it is impossible for the poet to stage his own absence, but in no way makes the work personal. An event is the unknown, the new invading into the business as usual, so also the personal. The question heading this research is not: “Who am I?” but “What is happening?” The book is as little illegible as Mondrian’s work is invisible. Form is of interest only to the extent that it empowers liberation. Ron Silliman So no formalism, but what it means to live in this world and to have a future in it. I want something that holds together that’s not smooth. Bruce Andrews The past above, the future below and the present pouring down: the roar, the roar of the present, a speech— William Carlos Williams If my confreres wanted to write a work with all history in its maw, I wished, from the beginning to start all over again, attempting to know nothing but a will to create, and matter at hand. Ronald Johnson NOTES 1) “The easy thing/ that is difficult to make.” Bertold Brecht, Lob des Kommunismus . (All footnotes are the translator’s) 2) Maurice Blanchot, The Space of Literature , trans. Ann Smock. Lincoln/London: University of Nebraska Press (1989), 75. 3) Mettes uses the word “Neerlandicus,” which refers to scholars of Dutch language and literature. 4) Dutch poet. 5) Gertrude Stein. “Composition as Explanation.” A Stein Reader . Ed. Ulla E. Dydo. Evanston, IL: Northwestern University Press (1993), 495-503. 6) Ezra Pound. 7) Flemish poet. 8) “Resounding an original sound in the language of the despondent.” A. Roland Holst, De afspraak . 9) Dutch poet. 10) “Only such a confusion is a chaos which can give rise to a world.” 11) W.B. Yeats, “Adam’s Curse.&rdquo. (shrink)

Discussions of the all‐affected principle as a solution to the boundary problem – how do we specify the group making democratic decisions? – have focused extensively on future people. We have yet to focus on dead people, however. This article tries to bridge this gap by arguing that the all‐affected principle – i.e. the all actually affected interests principle – entails inclusion of dead people. This is true because dead people can be harmed or legally affected, (...) and this is sufficient for having a claim to democratic inclusion. The last part of the article discusses where this leaves the all‐affected principle in the quest for the proper boundary principle, including a discussion of possible institutional solutions to the enfranchisement of dead people. (shrink)

The two grand theories of judging – legal realism and legal formalism - have their differences set around the importance of legal rules. For formalists, judging is a rule-bound activity. In its more extreme versions, a judge is seen as an operator of a giant syllogism machine. Legal realists, in contrast, argue that legal rules, at least formal legal rules, do not determine outcomes of cases. Legal realism has been misunderstood almost (...) everywhere outside its birthplace – the United States. Continental legal theory, for one, views legal realism as practical, down-to-earth, hard-nosed school of thought which is opposed to the more “scientific” theories. The purpose of this article is two-fold. First, to show what legal realists really stood for - that contrary to the popular myth, they did not maintain that formal legal rules do not matter at all; that most of them considered legal rules to be important, only many of those rules are informal rules. Second, contrary to the popular understanding in Continental legal theory, legal realism by its nature was not an antiscientific theory of judging - in fact, it was either a first scientific theory of judging or at least its prototype. (shrink)

The “dead-donor rule” states that, in any case of vital organ donation, the potential donor should be determined to be dead before transplantation occurs. In many countries around the world, neurological criteria can be used to legally determine death (also referred to as brain death). Nevertheless, there is considerable controversy in the bioethics literature over whether brain death is the equivalent of biological death. This international legal review demonstrates that there is considerable variability in how (...) different jurisdictions have evolved to justify the legal status of brain death and its relationship to the dead-donor rule.In this article, we chose to review approaches that are representative of many different jurisdictions—the United States takes an approach similar to that of many European countries; the United Kingdom’s approach is followed by Canada, India, and influences many other Commonwealth countries; Islamic jurisprudence is applicable to several different national laws; the Israeli approach is similar to many Western countries, but incorporates noteworthy modifications; and Japan’s relatively idiosyncratic approach has received some attention in the literature. Illuminating these different justifications may help develop respectful policies regarding organ donation within countries with diverse populations and allow for more informed debate about brain death and the deaddonor rule. (shrink)

: The "dead donor rule" is increasingly under attack for several reasons. First, there has long been disagreement about whether there is a correct or coherent definition of "death." Second, it has long been clear that the concept and ascertainment of "brain death" is medically flawed. Third, the requirement stands in the way of improving organ supply by prohibiting organ removal from patients who have little to lose—e.g., infants with anencephaly—and from patients who ardently want to donate while (...) still alive—e.g., patients in a permanent vegetative state. One argument against abandoning the dead donor rule has been that the rule is important to the general public. There is now data suggesting that this assumption also may be flawed. These findings add additional weight to proposals to abandon the dead donor rule so that organ supply can be expanded in a way that is consistent with traditional notions of ethics, law, public policy, and public opinion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:DEAD MAN WALKING: ON THE CINEMATIC TREATMENT OF LICENSED PUBLIC KILLING Edmund Arens University ofLucerne I regret that so many people do not understand, but I know that they have not watched the state imitate the violence they so abhor. (Sister Helen Prejean) ~T\eadMan Walking, thehighlyacclaimed second film directed by Tim -Z-^Robbins, seems appropriate for discussion in the symposium's context oíFilm andModernity: Violence, Sacrifice andReligion. This (...) film on the one hand thematizes different forms ofviolence and victimization; on the other hand it presents divergent forms ofreligion. And it does so in a way which not only demonstrates the interplay of violence and religion but also opens up the chance of transcending various kinds of sacrificial structures inhabiting that interplay. We can approach DeadMan Walking in five steps. After some general remarks about this film as a work of art, I will briefly review the story line. In the part called Themes and Topics, I will outline some of the predominant topics addressed in this movie. The fourth step is devoted to the interrelation of Violence, Victimization and Redemption. Finally, the religious or theological question comes into view under the heading of Proximity and Testimony, an aspect which at the same time has a definite link to law and the legal system. I. DeadMan Walking as a Work of Art According to Susan Sontag, film "currently is the most vivid, the most stimulating, and the most important of all genres of art" (Sontag 13). But Edmund Arens15 whether a particular film really can be considered as a work of art depends on a number of presuppositions, a few of which I shall mention here. Without going too deeply into the debate on the nature and purpose of aesthetic production, there are at least some requirements which point to a work ofart. Roughly speaking, it is defined by putting matter and form into a certain relation, by creating or producing a certain structure, by adopting a certain style and by organizing the material by means ofgenres (all ofwhich relates to the classical notion of poesis). Secondly, a work of art deals with perception in a double way: while it implies a certain perception ofreality, it also invites the audience to participate in this perception and thus to deepen, alter, or correct the perception that they experienced (something which relates to aisthesis). Thirdly, art aims at having certain emotional effects on the public that are either purifying or edifying (something which since Aristotle has been discussed as katharsis). Ifthese three dimensions (cf. Jauss; Siller) are always involved in works ofart, we can ask how in DeadMan Walking the interplay ofpoesis, aisthesis, and katharsis is at work. Under certain conditions a film is a creative work ofart. In this case, the motion picture, whether documentary or fictitious, includes an aesthetic creation of an imagined reality. It does not simply mirror reality but always reconstructs or reshapes it. In fictional film narrative, everyday reality is disrupted and rearranged by means of a variety of formal and material techniques. The treatment of reality necessarily involves the question of representation. What Paul Ricoeur considered as decisive for narrative fiction, applies to narrative fiction films as well: they make use of "calculated dissonance" which disrupts everyday reality and thereby points to a "redescription ofreality" (Ricoeur 1975; 1976; 1986). We shall see later on how this process, attributed especially to certain metaphors, works in the case ofDeadMan Walking. Besides the topic ofrepresentation, any kind of art raises the question of perception. Art implies a certain perception and at the same time it offers or invites—in the case of visual art—the audience to perceive reality in a different or deeper manner. In amovie the audience, whether by a manipulative "aesthetics of overwhelming"1 or by an aesthetics of disclosing, is moved emotionally and imaginatively, the aim being to direct their attention to the secret ofthe things shown and thus to direct or redirect their view ofreality. From the point of view of a pragmatic theory of action (cf. Arens 1994; 1997b) which additionally takes up Ricoeur's most important insights, I would 'The term has been coined by Heiner Müller; quoted from Kirsner... (shrink)

Parkinson, Joseph Can a dead person conceive a child? Even if it is technically possible, should it be permitted? The legal system seems to have reached a position on this matter without obvious ethical reflection. Noting that a child should be able to know and relate to his or her parents, this article argues that a person's capacity to contribute to the conception of new life should cease with that person's death.

On the premise that ‘morality’ refers to a system of rules governed by a material categorical imperative, I argue that the sources thesis of legal positivism (and, consequently, its separation thesis) is untenable. This is because it portrays legal obligations as hypothetical imperatives, which they cannot be if a material categorical imperative exists. Legal systems lay down obligation-asserting rules; but any rules are necessarily invalid if they require behaviour contrary to a material categorical imperative. Because (...) the sources thesis attests otherwise, legal positivism presupposes, minimally, that a material categorical imperative cannot be known to exist. I argue, however, that human agents cannot coherently question that a material categorical imperative exists. By definition, they necessarily adopt hypothetical imperatives. But understanding the concept of a hypothetical imperative requires the concept of a categorical imperative to be understood, and understanding having the concept of a categorical imperative postulates that there can be only one categorical imperative, that it exists, and that it is Alan Gewirth’s Principle of Generic Consistency (PGC). This argument only fails if the concept of a categorical imperative is incoherent. In all of this, I follow Kant, except about the material content of the categorical imperative and the nature of free will. (shrink)

This essay describes modern American legal pragmatism. Its origins in pragmatist philosophy are traced, and it is compared with the law and economics movement in American law and the formalist style of Continental legal theory. The essay argues that the inevitability of legal pragmatism in America, and its dispensability in Europe, reflect fundamental institutional and cultural differences rather than mere accidents of history or legal thought.

Several writers have argued recently that optimal rules of law authorize morally suboptimal decisions in certain cases.1 Larry Alexander calls these “gap cases.”2 Should judges in gap cases defer to legal rules or deviate from them? Philosophers known as “formalists” favor deference, “particularists” favor deviation.

This article challenges the tendency exhibited in arguments by Michael Ignatieff, Jeremy Waldron, and others to treat the Law of Armed Conflict as the only valid moral frame of reference for guiding armed rebels with just cause. To succeed, normative language and principles must reflect not only the wrongs of ‘terrorism’ and war crimes, but also the rights of legitimate rebels. However, these do not always correspond to the legal privileges of combatants. Rebels are often unlikely to gain belligerent (...) recognition and might sometimes have strong moral reasons to exceed the rights of regular combatants. Where this gives rise to tensions between morality and the LOAC, a decision is needed to determine which to follow. Setting aside the idea of suppressing just war theory altogether in favour of a more purely regulatory approach to war and reforming law in the direct light of moral theory, I question the attempt by Waldron to argue that moral weight of the legal conventions at the heart of the LOAC trump any moral reasons there might be for breaching them. Even if non-combatant immunity is, as Waldron suggests, a deadly serious convention, I argue that war is justified only if pursued for the sake of deadly serious causes which may even be serious enough to oblige agents to break the law. A political theory of the ethics of war is needed to mediate between the moral and legal in such cases where they cannot be reconciled directly. (shrink)

Robert Nozick's experience machine thought experiment (Nozick's scenario) is widely used as the basis for a ?knockdown? argument against all internalist mental state theories of well-being. Recently, however, it has been convincingly argued that Nozick's scenario should not be used in this way because it elicits judgments marred by status quo bias and other irrelevant factors. These arguments all include alternate experience machine thought experiments, but these scenarios also elicit judgments marred by status quo bias and other irrelevant factors. (...) In this paper, several experiments are conducted in order to create and test a relatively bias-free experience machine scenario. It is argued that if an experience machine thought experiment is used to evaluate internalist mental state theories of well-being, then this relatively bias-free scenario should be used over any of the existing scenarios. Unlike the existing experience machine scenarios, when this new scenario is used to assess internalist mental state theories of well-being, it does not provide strong evidence to refute or endorse them. (shrink)

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures (...) and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order. (shrink)

How did we end up here, masters of scientific insight, purveyors of ever more powerful technologies, astride the burning planet that created us, and now responsible for cleaning up the mess and determining the future direction of all of life? And what do we do about it? Technology is Dead attempts to answer both of those questions. It is a book of both challenge and hope, written for those who are able or willing to lead us out of (...) our global predicament. It is for the politicians, CEOs, community leaders, everyday parents and young people who understand that we must change our ways to ensure a sustainable future for all living things and the planet we rely on. The book's premise is that technology (like capitalism) has been an unprecedented force for prosperity, while at the same time bringing unrelenting, and unplanned downsides. Technology has insinuated itself into every nook and cranny of modern society, ignoring many of our human truths while preying on our vulnerabilities. It has resulted in both profound economic progress and a multitude of troubling unintended consequences, from deepening divides and loss of collective responsibility to a growing list of existential threats. The only viable response is to reconnect with our collaborative roots and undertake what the authors call a humanist revolution, a global effort to redefine human progress, rebuild our core systems to contribute to that progress, and reset our all too human behaviors and aspirations, while becoming the active, careful human-first stewards of technology itself. The revolution, guided by what the authors call a 21st Century Humanist Code asks all of us to work towards the world we want to live in - for each and every human to become the center and source of change in their lives, in their communities and the world beyond. The future of humankind and our planet depends on it. (shrink)

Definitions of death are often referred to as legal fictions since brain death was conceived in the mid-twentieth century. Reference to legal fiction is generally paired with bioethicists’ concern that it facilitates post-mortem tissue donation and the health system generally, by determining death earlier on the continuum of dying and availing more viable tissue and therapeutic resources for others. The author argues that spatio-legal theory, drawing from legal geography, can account for the heterogeneity of (...) effects that the fiction has in spatially managing bodies (e.g., physicians, patient, family) at the bedside. The legal fiction is produced in physicians’ socio-legal practices, coordinating decision-making according to geographies of scarcity and severable, self-contained live- and dead-bodies. The determination liminally exists between private and public, enacting a sterile, affectless ordering of bodies but administered in the spectacle of sovereign death-making, conveying authority whilst managing patient’s and family’s consents. Spatialising traces of anatamo-politics and biopolitics thereby congeal and are enacted heterogeneously in and through the legal form of the fiction, securing preferred constructions of the body in the management of mortality. These spatio-legal features of the legal fiction are described from their collision with case law and literature that document competing nomoi produced from or secreted by antinomian bodies. (shrink)

This article examines the role which the concept of fault has played historically and may still play in modern family law. In the light of recent attempts in the United States to revive fault in the context of divorce, the article considers the relevance of fault in England across a range of issues including divorce, domestic violence, property and financial matters and the various kinds of disputes which can arise in relation to children. The argument is presented that fault (...) continues to play a more important, albeit declining, part in the determination of family disputes than is commonly supposed. The article concludes with an assessment of the future role of fault in family law and seeks to distinguish between ‘backward‐looking’ and ‘forward‐looking’ species of fault. While the former is rapidly becoming irrelevant, the latter has an important connection with the concept of welfare which is central to many of the concerns of family law. (shrink)

Discussion of the “dead donor rule” is challenging because it implicates views about a wide range of issues, including whether and when patients are appropriately declared dead, the validity of the doctrine of double effect, and the moral difference between or equivalence of active euthanasia and withdrawal of life‐sustaining treatment. The DDR will be defined here as the prohibition against removal of organs necessary for the life of the patient—that is, the prohibition of intentionally ending the life (...) of a patient through organ removal. At a minimum, it is difficult not to see the DDR as grounded in a set of laws, norms, values, and practices that are firmly entrenched and have a great deal of philosophical, religious, and legal support. Obviously, the primary argument against the DDR is that it is highly desirable that we continue to procure organs for transplantation, combined with the belief that those from whom we often and possibly typically procure organs are not “really” dead. If donors are not really dead, then we are left with a dilemma: either we abandon organ procurement, or we abandon the DDR. Such a move should be taken only if the way we currently delineate the dead (those from whom it is acceptable to remove organs) cannot be maintained or defended. I will suggest that this is not the case. (shrink)

The gap between the number of organs available for transplant and the number of individuals who need transplanted organs continues to increase. At the same time, thousands of transplantable organs are needlessly overlooked every year for the single reason that they come from individuals who were declared dead according to cardio pulmonary criteria. Expanding the donor population to individuals who die uncontrolled cardiac deaths will reduce this disparity, but only if organ preservation efforts are utilized. Concern about potential (...) legal liability for temporary preservation of organs pending a search for family members appears to be one of the impediments to wider use of donation in cases of uncontrolled cardiac death in states without statutes explicitly authorizing such action. However, we think that the risk of liability for organ preservation under these circumstances is de minimis, and that concerns about legal impediments to preservation should yield to the ethical imperative of undertaking it. (shrink)

The established view regarding ‘brain death’ in medicine and medical ethics is that patients determined to be dead by neurological criteria are dead in terms of a biological conception of death, not a philosophical conception of personhood, a social construction or a legal fiction. Although such individuals show apparent signs of being alive, in reality they are dead, though this reality is masked by the intervention of medical technology. In this article, we argue that (...) an appeal to the distinction between appearance and reality fails in defending the view that the ‘brain dead’ are dead. Specifically, this view relies on an inaccurate and overly simplistic account of the role of medical technology in the physiology of a ‘brain dead’ patient. We conclude by offering an explanation of why the conventional view on ‘brain death’, though mistaken, continues to be endorsed in light of its connection to organ transplantation and the dead donor rule. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 30.1 (2006) 289-298 [Access article in PDF] Theory Is Dead— Like a Zombie Brian Boyd University of Auckland Theory's Empire: An Anthology of Dissent, edited by Daphne Patai and Will H. Corral; ix & 725 pp. New York: Columbia University Press, 2005. $72.50 cloth, $29.50 paper. Looking for an Argument: Critical Encounters with the New Approaches to the Criticism of Shakespeare and His Contemporaries, by (...) Richard Levin; 309 pp. Teaneck, N.J.: Fairleigh Dickinson University Press, 2003. $49.50. Are we "after Theory"? And if so, then where are we? Seven years after Post-Theory (1996) came Reading After Theory (2002) and then After Theory (2003).1 Students inducted into the mysteries of Theory by an aging professoriate can no longer feel the zeal their teachers themselves have mostly long since lost. Theory's own leaders point out its failings.2 Like Queen Anne, Theory is surely dead. Or is it?In 1982 Jonathan Culler argued that post-structuralist literary theory should be called just Theory and that Theorists should play the "central role" in intellectual life (TE, pp. 26, 215). What now sounds hubristic seemed heady in the expansionist days of Theory's empire. But less than two decades later it could be pointed out in print that "everyone knows that if you want to locate the laughingstock on your local campus these days, your best bet is to stop by the English department" (TE, p. 315).So was theory dead by this point, five years after the start of the Bad Writing Contest and three years after the Sokal hoax? Not at all. The year of the "laughingstock" remark, David Scott Kastan's Shakespeare After [End Page 289] Theory (1999) claimed that we are "after theory" "not because theory's claims have been shown to be intellectually bankrupt but because its claims have been accepted as both useful and productive." A reviewer could demur: "As formulated the claim may be overstated—it sometimes seems that Shakespeare studies is insufficiently theorized."3But that was seven years ago. Surely things are different now, ten years after the Sokal hoax? Yes and no. After Reading After Theory and After Theory, a literature professor at the top of his field, Louis Menand, can (1) bemoan the sickness of the humanities and (2) deplore the culture of conformity in their Theorized students, and at the same time still (3) offer thanks that Theory "rescued" literature departments from "the literary" and (4) urge that despite their unhealthy state the Theorized humanities should resolve not "to retrench" but "to colonize."4So again, are we after Theory or not, and where are we, if we are? Are reports of the death of Theory exaggerated? Or is Theory dead in a special way, one of the Undead, a zombie or a vampire?There have been many blows driven through the heart of Theory in the last thirty years, but if Theory is at least dying now it is not because of blows from outside but only from its own terminal internal tedium. It has "always already" been immune to criticism because it refused to listen to critical arguments, treating them as so much unfriendly fire, proof of the enemy's perfidy, all the more reason to close ranks.I described Menand as at the top of his field because he belongs to the Harvard English Department, is a star essayist for the New Yorker and a Pulitzer Prize winner, and was speaking to the 2004 MLA convention. There he wished some young Turks would stand up to challenge his generation, and tell them "You got it all wrong." But critics have been doing this cogently for decades. His generation has paid only enough heed to dismiss such criticism as proof that reactionary forces needed to be resolutely resisted.And the potential young Turks are simply too scared to speak up. Among all the many indictments of Theory collected in Theory's Empire, one of the most chilling indices of the betrayal of intellectual freedom and honesty in the Theorized humanities comes from a junior faculty... (shrink)

This paper presents a four layer model for working with legal knowledge in expert systems. It distinguishes five sources of knowledge. Four contain basic legal knowledge found in published and unpublished sources. The fifth consists of legal metaknowledge. In the model the four basic legal knowledge sources are placed at the lowest level. The metaknowledge is placed at levels above the other four knowledge sources. The assumption is that the knowledge is represented only once. The (...) use of metaknowledge at various levels should make it possible to use the appropriate knowledge for the problem presented to the system. The knowledge has to be represented as closely to the original format as possible for this purpose. Suitable representation formalisms for the various types of knowledge in the five knowledge sources are discussed. It is not possible to indicate a best representation formalism for each knowledge source. (shrink)

In this paper I argue that Joel Feinberg was wrong to suppose that liberals must oppose any criminalization of “harmless immorality”. The problem with a theory that permits criminalization only on the basis of his harm and offense principles is that it is underinclusive, ruling out laws that most liberals believe are justified. One objection (Arthur Ripstein’s) is that Feinberg’s theory is unable to account for the criminalization of harmless personal grievances. Another (Larry Alexander’s (...) and Robert George’s) is that it cannot account for public decency laws. I shall reject both of these underinclusiveness objections in favor of one that focuses on the “free floating evil” of corpse desecration. Liberals need “pure” legal moralism (PLM) to explain their support for a criminal ban on mistreatment of the dead. I also argue that while deterrence is plausibly regarded as the primary rationale for criminalizing and punishing wrongs like murder or rape, it is not plausibly regarded as any part of the rationale for criminalizing free floating evils. The point of punishing corpse desecrators has to be either retribution or the promotion of virtue/discouraging of vice. Finally, I consider Feinberg’s reason for rejecting all PLM, namely, that competent adults have a right to personal sovereignty or autonomy, and the state’s duty to respect that right trumps the desirability of punishing or reducing the vice associated with harmless immorality. I argue that Feinberg’s argument here fails because it exaggerates the right’s strength and scope. (shrink)

: Research by Siminoff and colleagues reveals that many lay people in Ohio classify legally living persons in irreversible coma or persistent vegetative state (PVS) as dead and that additional respondents, although classifying such patients as living, would be willing to procure organs from them. This paper analyzes possible implications of these findings for public policy. A majority would procure organs from those in irreversible coma or in PVS. Two strategies for legitimizing such procurement are suggested. One (...) strategy would be to make exceptions to the dead donor rule permitting procurement from those in PVS or at least those who are in irreversible coma while continuing to classify them as living. Another strategy would be to further amend the definition of death to classify one or both groups as deceased, thus permitting procurement without violation of the dead donor rule. Permitting exceptions to the dead donor rule would require substantial changes in law—such as authorizing procuring surgeons to end the lives of patients by means of organ procurement—and would weaken societal prohibitions on killing. The paper suggests that it would be easier and less controversial to further amend the definition of death to classify those in irreversible coma and PVS as dead. Incorporation of a conscience clause to permit those whose religious or philosophical convictions support whole-brain or cardiac-based death pronouncement would avoid violating their beliefs while causing no more than minimal social problems. The paper questions whether those who would support an exception to the dead donor rule in these cases and those would support a further amendment to the definition of death could reach agreement to adopt a public policy permitting organ procurement of those in irreversible coma or PVS when proper consent is obtained. (shrink)

Pietroski successfully dismantles the idea of a formal semantic theory based on direct truth conditions and offers new and formally constrained alternatives. In this paper, I summarize the arguments but also provide a number of test cases to show that refusing to accept Pietroski's conclusions condemns the field to constantly restating and technically evading its own self‐created paradoxes. In the final section, I offer some positive proposals in the spirit of the Pietroskian enterprise with respect to thematic roles.

American legal theorists frequently ask whether and how theorists, citizens, lawmakers, judges, and other public officials can attain truth, correctness, or certainty in their legal and moral views. This essay discusses the views of contemporary liberal legal theorists who have attempted to answer these questions in a way that is neither objectivist nor formalist, on the one hand, nor subjectivist or relativist, on the other, referring to authors that make up this group as theorists of (...) the "middle way." The essay suggests areas in which such legal thinkers might profit from studying Aristotle's writings about ethics and politics. Two approaches of contemporary liberal legal theory of the middle way are discussed. The first is characterized by a reluctance to have recourse to substantive moral and political principles that exist independently of a particular legal order. Because of their reluctance to import substantive standards external to a nation?s legal system into legal reasoning, this approach advocates to a much greater degree than the second approach reliance on communal deliberation and various structural, procedural, and related devices to constrain deliberations about human values and conduct. This study outlines some of the central beliefs of this process-oriented approach to practical knowledge and then analyzes how Aristotle might react to them. The beliefs discussed are the place and method of communal reasoning about practical matters; self governance and consent; self-governance and transformative political participation; and the emphasis on ideal speech conditions to legitimate the products of communal deliberation. The second approach of contemporary liberal legal theory of the middle way discussed in the essay is characterized by a belief that moral or political philosophy can arrive at some measure of truth about principles and values having to do with the lives of individuals and the conduct of communities. With one exception, the theorists discussed in this part of the essay are willing to recognize and incorporate such principles and values into practical reasoning that takes place within the confines of a particular legal system such as our own. These thinkers disagree about the degree to which and the occasions on which recourse to values external to a political community should occur. This essay discusses how Aristotle might react to the major ideas common to these thinkers. The ideas discussed in this part are the sources of external substantive values that legal reasoning might incorporate; the relative roles of consent and habit in securing obedience to the law; and the connection between deliberation and character. (shrink)

The subject of this study are the argumentation strategies applied by the Polish and German apex courts competent in criminal matters, namely the Supreme Court and the Federal Court of Justice, respectively. The investigation encompasses a total of 200 rulings issued by the criminal panels of these bodies. Particular focus was put on examining which arguments both courts apply to solve interpretation problems, and secondly, how these courts systematize the interpretation process. Methodologically, the examination utilizes, inter alia, the principles of (...) qualitative research, without neglecting the legal dogmatic perspective. A crucial theoretical foundation underlying this study is the distinction between formalistic and substantive legal cultures. The examination reveals that neither the Polish nor the German legal culture is purely formalistic or value-oriented. Nevertheless, the Supreme Court of Poland shows greater affinity for formalistic arguments, whereas the substantive interpretation methods are more widespread in the judicature of the German Federal Court of Justice. In particular, the Polish Court prefers the linguistic interpretation, whereas the German Court favours the purposive approach. (shrink)