On political theology: A controversy between Hans Kelsen and Carl Schmitt

This article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitt's analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the state's unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The ‘legal miracle’—in this context meaning the occasional autonomization of the state from law—was for Schmitt the manifestation of sovereign power. However, for Kelsen it represented the negation of the state's essence, whose actions must be determined only by the legal order.     

The historical geography of Scotland since 1707

This article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitt's analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the state's unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The ‘legal miracle’—in this context meaning the occasional autonomization of the state from law—was for Schmitt the manifestation of sovereign power. However, for Kelsen it represented the negation of the state's essence, whose actions must be determined only by the legal order.     

《皇帝编年史》中的帝国与教会——对中世纪盛期方言历史书写的考察

《皇帝编年史》作为12世纪中后期巴伐利亚地区以中古德语撰写的首部方言编年史,具有重要的史学史和文学史价值,也是德意志地区12世纪文艺复兴时期的代表作品。12世纪中期兴盛起来的帝国理念贯穿了《皇帝编年史》的始终,形成了特殊的基督教道德与帝国意识形态教化的结合。《皇帝编年史》通过对教宗—皇帝之间合作的理想化描绘和对重大冲突的选择性忽略,以历史书写的方式建构出一种典范和谐的政教关系。这一调和论倾向既反映了该作品的具体历史语境,也体现了异于拉丁文历史作品的书写动机和书写意图。这部12世纪历史书写中的另类作品体现了强烈世俗化倾向,成为考察中世纪史学在12世纪文艺复兴时期演变的重要切入点。     

Ulama in Islamic Law‐Making and Adjudication in Contemporary Egypt

The article examines the legislative and judicial tasks of Islamic jurists and how they carried it out in constitutional or general legal structure. While the Pakistani experiment was inspired by the Iranian model of jurists' involvement in legislatures, Egypt took a different path by not recognizing any official role for Islamic jurists with ambiguous recognition of Islamic jurisprudence. The legislative role could take the form of incorporating Islamic jurists into the legislature, establishing a committee partially made up of Islamic jurists, or handing over some legislative task to an Islamic jurisprudential institution. Despite the fact that Islamization was intended to respond to the people's requests, it employed autocratic and authoritarian mechanisms. The project attempted to replace the typical class of socially recognized jurists with appointed committees entrusted with Islamic codification. The experiment was challenged for its operation and its Islamicity but never introduced Shari'a courts or Islamic clerical legislation.     

ALGONQUIN NOTIONS OF JURISDICTION: INSERTING INDIGENOUS VOICES INTO LEGAL SPACES

ABSTRACT. Aboriginal and non-Aboriginal notions of geography, nature and space sometimes compete, and these differences can create barriers to joint environmental problem-solving. This paper examines the Ardoch Algonquin First Nation and Allies (AAFNA) and the strategies they used in juridical and legislative settings to make their voices heard. In the Tay River Ontario Environmental Review Tribunal (2000–2002), AAFNA attempted to introduced their knowledge of the environmental deterioration which would be caused by a Permit To Take Water issued to a multinational corporation by the Ontario Ministry of Environment. The paper is divided into two parts: first, it describes the concepts of Algonquin knowledge, jurisdiction and responsibility; second, it explores the strategies used to integrate their perspective into legal proceedings constructed by the Canadian government. This case reveals how some Algonquin people conceive of space and responsibility in deeply ecological, rather than narrowly juridical, terms. It establishes that their broad concepts of knowledge, land and jurisdiction are incompatible with existing Euro-Canadian divisions of legal responsibility and ecological knowledge, but at the same time can serve as the means by which they challenge the current structure of Aboriginal and Canadian relations.     

Punishing the mad bomber: questions of moral responsibility in the trials of French anarchist terrorists, 1886-1897

In late nineteenth-century France, several criminologists maintainedthat the perpetrators of the contemporary wave of anarchistterrorism were victims of mental disorders who deserved judicialleniency. French courts did not accept this theory, but insteaddeclared the principal terrorists sane and fully responsiblefor their crimes and, based on this view, handed down severesentences. Many criminologists accused the jurists of deliberatelyignoring the mental illness of the anarchists because of governmentand public pressures to impose the death penalty, but evidencefrom the anarchist trials fails to support this charge. Thecontroversy highlights the conflicts between the judicial establishmentand the emerging discipline of criminology, whose pathologicalexplanations of anarchist terrorism reflected a positivist attackon the traditional concepts of free will and moral responsibility,concepts the jurists viewed as fundamental to the legal system.     

Conrad Gessner on the spelling of his name

For 250 years, the vernacular spelling of the family name of the polymath Conrad Gessner of Zurich (1516-1565) has been in doubt, owing to an erroneous analogy with the Latin spelling, which does not require a double s. The history of this error is presented, followed by an examination of Gessner's own usage throughout his life, as it appears in autograph documents and works printed under his direction. Posthumous evidence and evidence from other members of the family and the community are also adduced to demonstrate consistency in the vernacular spelling of Gessner's name.     

Cesare Beccaria’s On Crimes and Punishments: the meaning and genesis of a jurispolitical pamphlet

At the heart of the criminal reform proposed in Cesare Beccaria’s 1764 Dei delitti e delle pene (On Crimes and Punishments) are the principles of penal parsimony derived from a precise interpretation of the social contract. Punishment, being no more than a necessary evil devoid of any intrinsic virtue, must serve no more than a preventative function to the smallest possible extent; its application strictly bound by the principle of legality. Beccaria’s criminal philosophy, therefore, attempts to drastically reduce the power of the penal institution. After recounting its principal aspects, this article seeks to propose a new interpretation of Beccaria’s theory from the perspective of its historical context. The Italian Enlightenment philosopher did not so much express indignation against the barbarism of the Milanese penal system, but rather instigate a rebellion against the political dominance of its patriciate, whose power had long been validated by its juridical functions. In this respect, Beccaria sought to combat the political hegemony of the jurists, concluding his treatise by excluding juridical thought from, and thus removing the intellectual foundations of, the practice of criminal law.     

Prisons and incarceration in fourteenth-century Venetian Crete

Though the evolution of prisons and the prison system in medieval Europe is a well-developed field in the history of law, little attention has been paid to prisons and incarceration on the frontiers of Latin Christendom. The present study makes use of archival and literary sources in order to examine how prisons functioned in Venice's most important colony, the island of Crete. As there has been no previous study of prisons and incarceration in medieval Greece, the article's first aim is to establish some basic facts about the prisons of Crete, such as their locations, their organization and their system of administration. More importantly, however, the study investigates the role that incarceration played in the legal system of the Venetian colony and attempts to set this role within the context of the juridical developments of the Late Middle Ages. Of particular interest is the question of how closely the legal system of the Venetian colony followed the judicial practice of the metropolis and whether it was influenced by the pre-existing legal institutions of Byzantium. Finally, the study also examines how the jurisprudence of the colonial regime dealt with offenders of different ethnic background and legal status.     

Taqiyya as Polemic,Law and Knowledge: Following an Islamic Legal Term through the Worlds of Islamic Scholars,Ethnographers, Polemicists and Military Men

Taqiyya is an Islamic juridical term whose shifting meaning relates to when a Muslim is allowed, under Sharia law, to lie. A concept whose meaning has varied significantly among Islamic sects, scholars, countries, and political regimes, it nevertheless is one of the key terms used by recent anti‐Muslim polemicists such as Robert Spencer or Daniel Pipes, and has been used by US Prosecutors to explain terrorist behavior. This paper seeks to summarize the complex uses of the term and show how a specific concept in a legal system can be used and interpreted by both adherents of that system and enemies in a wide variety of ways, taking on different meanings while referring to effectively the same set of practices. The term is debated in a scholarly way in the scholarly literature, as an ethnographic term, and finally, as an operational concept used as a tactic in a war and demanding countertactics tailored to it. The paper will discuss the social purpose of having such ambiguous concepts available within one's society, and the idea that making the ambiguous specific can be a valuable weapon in polemical attack.     

Historical Vernacular Gardens Beyond Norway's Arctic Circle

Abstract

This study examines the historical vernacular gardens of North Norway, and is mainly based on a survey done in the county of Troms in the 1980s. The study shows that traditions for the design of gardens and the use of garden plants reflect climatic conditions, geographical location and current fashions. It is a general feature that main trends in the gardens of the affluent work as models for more simple vernacular gardens, and this is also the case with the surveyed gardens of Troms. We find here the proto-garden, a simple garden with beds and plantings controlled by a straight line. This is influenced hardly at all by style, trends or availability on the market. It may have been established during the last century or it could be older. Yet we also find the vernacular cottage garden influenced by a style developed from the Renaissance gardens of southern Europe. In the most carefully made gardens the proto-garden and the impulses from the Renaissance garden are fused together – it makes a type of garden which is genuinely northern. The fenced garden located by the wall of the dwelling house was most common. With the house situated on sloping ground, a stone-built retaining wall was constructed and the ground filled up in order to make the garden as level as possible and to create a terrace. It was mainly native trees fetched from the woods, as well as old “exchange and give away perennials” and flowers and vegetable annuals, all locally available, which characterized the plant material of the historic farm and cottage gardens of the north.     

The Life of the Law in the Islamic Republic of Iran

Beyond the esoteric deliberations of Islamic jurists and their exegesis of criminal and private law doctrines, Iranian law lives a life of its own. It is a life of routine practices of judges, court clerks, lawyers and clients, each of whom is striving to turn the law to their own advantage. It is also a life of contested legality, a relentless struggle over the right to determine the law in a juridical field which is infused with strife and hostility. These conflicts are reproduced daily as two competing conceptions of law, and their corresponding perceptions of legality clash in pursuit of justice. The Iranian judiciary’s concept of law, its reconstruction of Islamic jurisprudence and methods of dispensing justice, which on the surface are reminiscent of Max Weber’s “qādi-justice,” collide with the legal profession’s formal rational understanding thereof. However, Iranian judges are not Weberian qādis, and the legal profession is not a homogenous group of attorneys driven by a collective commitment to the rule of law. To understand their conflict, we need to explore the mundane workings of the legal system in the context of the transformation of Iranian society and the unresolved disputes over the direction of its modernity.     

France,Patrie, Nation: figures de lutte et discours national (XVIème–XIXème siècles)

This article explores the conceptual changes and semantic shifts of ‘patrie’ and of nation from the Renaissance up to the French Revolution and the First Empire. It emphasises the causes and consequences of both concepts' occurrence and tries to discover their fundamental differences synchronically and diachronically. A brief comparison with other European countries allows us to understand that both concepts are not typically French and highlights the very fact that they are interactive, discontinuous, and at the same time evolutionary, since they are successively inserted in a specific historical context. Above all, ‘patrie’ and nation turn out to be used more often during national and international political conflicts, even though they did not have the same connotation and register. It is therefore interesting to consider precisely what characterises both concepts, and to reflect upon the origins of the modern meaning of nation.     

The body speaks Italian: Giuseppe Liceti and the conflict of philosophy and medicine in the Renaissance

Giuseppe Liceti (d. 1599) has been entirely forgotten in the history of philosophy. This article seeks to demonstrate that Liceti’s two vernacular dialogues are crucial sources for understanding the Renaissance debate on the conflict between medicine and philosophy. Liceti’s main dialogue, La nobiltà (1590), stages a contest about the nobility of the main bodily organs, which I discuss by placing it in its medical and literary context. I then proceed to expounding Liceti’s interpretation of the conflict between Galenism and Aristotelianism, and trace the specific topic of the seat of rationality in the body. In the conclusion I claim that the outcome of the contest in La nobiltà is not as obvious as it might seem, and that Liceti implies an alternative conclusion to the “official” one. This opens up a different scenario with regard to the interpretation of human uniqueness from medical and philosophical points of view.     

A REGIME OF UNTRANSLATABLES: TEMPORALITIES OF TRANSLATION AND CONCEPTUAL HISTORY

This essay focuses on untranslatability to discuss the diachronic temporality of the history of concepts. Defining untranslatables as the paradoxical origin and product of translating, it explores their role in mediating the long‐term history of concepts by disrupting the historical boundaries of a period and challenging the contexts through which past meaning is confined to the moyenne durée. Addressing first the critical appraisal of the history of ideas by Quentin Skinner and J. G. A. Pocock, it discusses their alternative suggestion of a history of discourses, rather than concepts or ideas, to move to Pocock's formulation of the category of “diachronic translation” as a shift from the moyenne to the longue durée. It then turns to Begriffsgeschichte to explore the interrelation of untranslatables, Koselleck's consideration of translation, and his theory of historical times. It suggests that Koselleck not only states that translation mediates the history of concepts, but also envisions a distinct temporality associated with the aporetic condition of translating what is untranslatable. The aporia of translations underlies both the historical depth of concepts as a conceptual reserve and an act of silencing past meaning. The ensuing conjunction of surplus and erasure qualifies Koselleck's category of multiple times by designating the time of translation as “obscure time.” It is a time that displaces us from the apparent meaning of concepts in a certain period by receding toward the otherness of the past and suspending meaning that is already in the future. These two characteristics of obscure time, its receding and suspending nature, not only stand against the continuity of periodizing; they also make visible a politics of translation as an act of disruption of the present wherein the past becomes a reserve of meanings resisting appropriative interpretation.     

5. WHAT DO MEDIEVAL BUILDINGS MEAN?

The aim of this article is to review and reconsider what scholars, including historians, archaeologists, and those in other disciplines, are trying to get at when they attempt a “social interpretation” of English late medieval domestic buildings. I focus on the definition and interpretation of “meaning,” and I examine critically a series of concepts routinely deployed in social interpretations in the past, including my own work, such as type, zeitgeist, and intention. I argue that some of these concepts and interpretive moves are problematic and rather than aiding in our understanding, raise further questions in their turn about how buildings were lived in and understood by their medieval inhabitants. I argue for a shift in language and jargon away from “planning” and “meaning” to that of “lived experience”. I explore such a possible shift with reference to different understandings of and debates over the late medieval castle of Bodiam in southeastern England. Such a shift from meaning to lived experience raises fresh challenges for the development and empirical evaluation of interdisciplinary research on medieval buildings, but it also raises fresh possibilities and insights.     

Contested Spaces? The Use of Place Concepts to Communicate Visions for Peri-Urban Areas

In Dutch planning, there has always been an important role for spatial concepts. Their role has arguably changed with the recent decentralization of planning to the regional and local level. At the national level, guiding concepts of a more procedural nature have replaced the more substantive and place-based spatial concepts, leaving more room for regional and local interpretation. At the regional and local level, spatial concepts are still in use, but this seems to be in a more communicative, negotiating and developing role than before. In this paper, we analyse how place concepts are used to exercise power, mobilize recourses and frame meaning over the use of the peri-urban areas, in the changing Dutch planning context. This paper focuses on two competing place concepts for overlapping green urban fringe areas in The Hague Region, which have been promoted by different actor constellations and which represent different visions about the meaning of these peri-urban areas. The case study allows conclusions about the changing role of spatial concepts in Dutch spatial planning.     

Ancestral neologisms in Richard fitz Nigel's Dialogue of the Exchequer

Although Richard fitz Nigel's Dialogus de scaccario (Dialogue of the Exchequer) has received extensive critical attention as a source for fiscal and governmental history, its importance in relation to twelfth-century perceptions of vernacularity has been largely overlooked. Richard's work incorporates a novel and sophisticated treatment of the interaction between Latin and the vernacular languages which is integral to the success of his historical project. The source of Richard's linguistic innovation is paradoxically located in a valorisation of patrimonial heritage: in using language history to trace, shape and reify the distinguished past achievements of his own family, Richard constructs Latin etymologies which simultaneously explore the development of the vernaculars, particularly French. This presentation of etymology as genealogy enables the supple and subjective qualities of philology to be exploited both as a witness to the past and to the glory of the Norman present.     

Der kundige Laie und das naturkundliche illustrierte Flugblatt der frühen Neuzeit

The aim of this paper is to demonstrate how German and Latin illustrated broadsheets of the sixteenth and seventeenth centuries can serve as documents of the history of sciences and the dissemination of scientific knowledge. It shows how broadsheets were used as a means of conveying scientific observations and conclusions not only among scholars versed in Latin but, through the medium of the vernacular, between scholars and laymen, too. In the fields of medicine, astronomy, zoology and botany in particular, the illustrated broadsheet facilitated the rapid circulation of case histories and accounts of various scientific phenomena. Furthermore, it played an important role in breaking down the barriers that separated the scholar from the layman, who was otherwise far removed from the world of books.     

Leibniz,Locke, and the Early Modern Controversy over Legal Maxims

This article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions.