纯洁的力量现代法理学考古学初步笔记

IF 0.8 Q2 LAW
Francesco Forzani
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引用次数: 0

摘要

在本文中,我将尝试把卡尔-施米特(Carl Schmitt)所说的三种法学思想--实证主义、决定论和制度论--归入同一个 "权力特征 "之下。我这里所说的 "权力特征 "指的是一种普遍的阐释功能,这种功能贯穿于(法律)思想之中,迫使其对(法律的形式)和(生活的力量)进行(特殊的)阐述。因此,我的建议是,可以用一种方式来解释现代法理学的两位奠基人--汉斯-凯尔森(实证主义)和卡尔-施米特(决定者-制度主义)--对法律问题的不同态度,这种方式在坚持他们的理论之间确实存在差异的同时,也指向一种更根本的合作关系,这种合作关系涉及到他们提出问题的形式本身(即前概念性)。因此,本文的目的是要说明,如果在更广泛的权力问题背景下重新考虑这两种方法,那么它们之间的根本差异就会变得难以区分。按照乔治-阿甘本(Giorgio Agamben)对福柯的生物政治学著作的重新诠释,权力在这里可以被定义为一种治理意识形态,根据这种意识形态,简单地说,社会性可以被简化为一种双面的运作:通过对法律形式的决定来实现政府/自治,并在包括思想在内的不同层面上实施。在这方面,凯尔森和施米特所实践的法律理论是政府的或生物政治的,因为它在法律(形式)和生活(力量)之间建立了一个虚构的冷漠门槛,而通过进一步的(例外)阐述(即包容-排除)来维护这一门槛,则成为法学家的基本任务。此外,鉴于凯尔森的实证主义和施密特的决定论制度主义在现代法律理论中的核心作用,对作为权力行为的(法律)理论化行为进行批判性反思成为可能。因此,现代法律理论传统尽管日趋复杂和支离破碎(这在上世纪初就已体现为法律理论被分割为实证主义、制度主义和决定主义立场),但仍可被解释为保留了思想将法律与生活联系起来的力量。我认为,权力理论(即属于权力的理论)的一个可能替代方案是对理论权力进行批判性观察(研究)的实践。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Power of Purity: Preliminary Notes for an Archaeology of Modern Jurisprudence

In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.

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来源期刊
CiteScore
2.30
自引率
25.00%
发文量
19
期刊介绍: Law and Critique is the prime international critical legal theory journal. It has been published for 20 years and is associated with the Critical Legal Conference. Law and Critique covers all aspects of legal theory, jurisprudence and substantive law that are approached from a critical perspective. Law and Critique has introduced into legal scholarship a variety of schools of thought, such as postmodernism; feminism; queer theory; critical race theory; literary approaches to law; psychoanalysis; law and the humanities; law and aesthetics and post-colonialism. Postmodern jurisprudence, law and aesthetics and law and psychoanalysis were pioneered in Law and Critique which remains the most authoritative international source for these schools of thought. Law and Critique is keen to translate and incorporate non-English critical legal thought. More specifically, Law and Critique encourages the submission of articles in the areas of critical legal theory and history, law and literature, law and psychoanalysis, feminist legal theory, critical race theory, law and post-colonialism; postmodern jurisprudence, law and aesthetics; legal phenomenology; and law and autopoiesis. Past special issues include: ''Critical Legal Education''; ''The Gender of Law''; ''Law and Postmodernism''; ''Law and Literature''; ''Law and Post-colonialism'', ''Law and Theatre''; ''Jean-Luc Nancy and Law''; ''Agamben and Law''. Law and Critique is ranked amongst the top 20 per cent of law journals by the Australian Research Council.
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