Browsing Law Research Articles by Title
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Now showing items 26-33 of 33
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De Ville, Jacques (Springer, 2011)[more][less]
Abstract: Michel Foucault provides a radical challenge to the liberal approach to power and law, which is echoed by Jacques Derrida. Important differences exist between the analyses of Foucault and Derrida which should not be overlooked. This essay proceeds on the basis of an awareness of these differences, yet it at the same time attempts to bring these thinkers closer together, with reference specifically to the thinking of Freud. It is often said that Foucault does not offer an alternative to that which he criticises or that his analyses do not provide for a way in which to escape from the effects of power. By specifically focusing on Foucault’s reliance on the notion of ‘play’ in Society Must Be Defended, it is submitted that an ‘escape’ is in fact provided for. The deconstructive reading of Foucault which is presented here attempts to ensure that Foucault does not remain trapped within metaphysics. URI: http://hdl.handle.net/10566/286 Files in this item: 1
DeVilleRethinkingPower-andLaw2011.pdf (584.0Kb) -
De Ville, Jacques (Springer, 2009)[more][less]
Abstract: The Anaximander fragment, in the readings of both Heidegger and Derrida, speaks of that which exceeds positive law. In this article, the author provides a detailed reading of Heidegger’s Der Spruch des Anaximander, showing how Heidegger relates this fragment to his thinking of Being, the latter having been ‘forgotten’ by metaphysics. Heidegger’s reading at the same time involves a contemplation of technology and of the ontological relation of beings to each other. Derrida’s reading of Heidegger’s Der Spruch highlights specifically those parts of Heidegger’s text where that which precedes Being’s gathering, Being’s disjoining or dissemination, is pointed to. This disjoining, Derrida contends, speaks of the gift of a day more ancient than memory itself and ties in closely with certain aspects of the thinking of Marx. Derrida’s focus on that which precedes Being is in turn related to his contemplation of the law or condition of possibility of technology and also of that which makes possible a relation to the other as other. This condition of possibility, or the gift of Being, which Heidegger’s text also speaks of, involves a ‘higher law’ which can serve as a ‘measure’ for the evaluation, interpretation and transformation of positive law. URI: http://hdl.handle.net/10566/301 Files in this item: 1
DeVilleAnaximanderFragment2009.pdf (258.1Kb) -
De Ville, Jacques (Springer, 2010)[more][less]
Abstract: In this essay, one of Derrida’s early texts, Plato’s pharmacy, is analysed in detail, more specifically in relation to its reflections on writing and its relation to law. This analysis takes place with reference to a number of Derrida’s other texts, in particular those on Freud. It is especially Freud’s texts on dream interpretation and on the dream-work which are of assistance in understanding the background to Derrida’s analysis of writing in Plato’s pharmacy. The essay shows the close relation between Derrida’s analysis of Plato’s texts and Freud’s study of the dream-work. The forces at work in dreams, it appears, are at play in all texts, which in turn explains Derrida’s contentions in relation to the pharmakon as providing the condition of possibility of Plato’s texts. The essay furthermore points to the continuity between this ‘early’ text of Derrida and his ‘later’, seemingly more politico-legal texts of the 1990s. A close reading of Plato’s pharmacy, with its investigation via ‘writing’ of the foundations of metaphysics, and thus also of the Western concept of law, is obligatory should one wish to comprehend how Derrida attempts to exceed the restricted economy of metaphysics through his analysis of concepts such as justice and hospitality. URI: http://hdl.handle.net/10566/287 Files in this item: 1
DeVilleRevisitingPlatoPharmacy2010.pdf (318.7Kb) -
Powell, Derek (Oxford University Press, 2010)[more][less]
Abstract: The international community accepts that peace, justice and development are indivisible properties of human freedom and thus wants a more coordinated approach to post conflict recovery. Today, transitions to democracy are typically launched through constitutional negotiations and anchored in efforts to fix broken state institutions or create new ones. These are settled strategies for addressing the social and economic causes of conflict in troubled societies. Transitional justice (TJ) has been slow to appreciate or capitalize on the inherent potential of these political processes to further justice and peace. By not taking a wider view of the opportunities for change that are presented by the transitional moment, TJ limits its capacity to construct the institutions that must work if a return to conflict is to be prevented. With this in mind, prominent practitioners have begun to look at how to extend TJ’s brief to include a wider set of issues linked to social justice. They are also looking for concepts and tools to bridge the divide between the field and related disciplines. This article presents South Africa’s transition as a case study of this wider view and is written from the perspective of a practitioner who was involved in building the post-apartheid democratic state. It aims to contribute to the current debate about TJ’s stake in post conflict transitions. URI: http://hdl.handle.net/10566/610 Files in this item: 1
PowellTransitionalJustice2010.pdf (275.6Kb) -
Murungi, Nkatha L.; Gallinetti, Jacqui (Conectas Human Rights, 2010)[more][less]
Abstract: The development of sub-regional communities in Africa is not a new phenomenon, but the incorporation of human rights into their agenda is relatively new. In effect, REC courts have introduced a new layer of supra national protection of human rights in Africa. The development is welcomed because it is likely to advance the cause for the promotion and protection of human rights. However, considering that the primary focus of the RECs is economic development, their ability to effectively embrace the role of human rights protection is questionable. The development of this mandate for the sub-regional courts is necessitated by the emerging prominence of human rights in the business of RECs. But, its interpretation and implementation has extensive ramifications for the advancement of human rights in Africa; the harmonisation of human rights standard in the region and for the unity and effectiveness of the African human rights system. URI: http://hdl.handle.net/10566/262 Files in this item: 1
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De Ville, Jacques (Springer, 2008)[more][less]
Abstract: This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation, speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s thinking in the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications for constitutional interpretation. URI: http://hdl.handle.net/10566/360 Files in this item: 1
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De Ville, Jacques (Springer Verlag, 2007)[more][less]
Abstract: Sir Edward Coke is known for having played a central role in establishing the power of the common law courts to exercise a supervisory jurisdiction over the executive/administration. Coke is usually praised in the literature for his boldness in doing this, whilst he is at the same time censured for having dared to suggest that this jurisdiction should be a very wide one. This essay questions the inheritance of judicial supervision and enquires whether there may be a secret to uncover in Coke’s texts. Referring to Coke’s Institutes, it is suggested that the wide jurisdiction of the common law courts that Coke advanced, is linked to and should be understood in light of Coke’s pronouncements in the epigrams on law and justice. Judicial supervision, according to this reading of Coke, involves not only a necessarily limited jurisdiction in accordance with law, but also the desire for an unlimited jurisdiction, which corresponds with Derrida’s analysis of justice and law. This reading of Coke, it is suggested, calls on us to view judicial supervision as revolutionary in nature which requires of the courts to fundamentally rethink the way in which they exercise their supervisory function. URI: http://hdl.handle.net/10566/371 Files in this item: 1
DeVilleJudicialSupervision2007.pdf (273.1Kb) -
du Toit, Francois (Oxford University Press, 2013)[more][less]
Abstract: In this article, I assess the constitutive status accorded to trust deeds in Potgieter v Potgieter and Pascoal v Wurdeman, two recent South African judgments on trust variation. In particular, I analyse judicial condemnation of invoking reasonableness or fairness as free-standing norms to refashion the terms of trust deeds outside established common law or statutory norms; and I illustrate the place and role that equitable considerations play in South Africa as components of existing aggregated legal rules on trust variation. I also test the judicial approach taken to the foundational nature of trust deeds in the aforementioned judgments against the status accorded to trust instruments and documents by the Trust Property Control Act—a statute that regulates aspects of trust law in South Africa. URI: http://hdl.handle.net/10566/624 Files in this item: 2
DutoitTrustdeeds2013.pdf (148.0Kb)DutoitTrustdeedsPublished2013.pdf (81.19Kb)
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Now showing items 26-33 of 33