Basic and Essential Flashcards
Dialectical materialism
Dialectical materialism is a philosophy of science and nature, based on the writings of Karl Marx and Friedrich Engels, and developed largely in Russia and the Soviet Union. The main idea of dialectical materialism lies in the concept of the evolution of the natural world and the emergence of new qualities of being at new stages of evolution. As Z. A. Jordan notes, “Engels made constant use of the metaphysical insight that the higher level of existence emerges from and has its roots in the lower; that the higher level constitutes a new order of being with its irreducible laws; and that this process of evolutionary advance is governed by laws of development which reflect basic properties of ‘matter in motion as a whole’.”
A Soviet philosophical encyclopedia of the 1960s speaks of the evolution of complexity in nature as follows: “This whole series of forms (mechanical, physical, chemical, biological and social) is distributed according to complexity from lower to higher. This seriation expresses their mutual bonds in terms of structure and in terms of history. The general laws of the lower forms of the motion of matter keep their validity for all the higher forms but they are subject to the higher laws and do not have a prominent role. They change their activity because of changed circumstances. Laws can be general or specific, depending on their range of applicability. The specific laws fall under the special sciences and the general laws are the province of diamat.” Each level of matter exists as a type of organization, in which the elements that make up a whole, or system, are marked by a specific type of interconnection.
Paidea
In the culture of ancient Greece, the term paideia referred to the rearing and education of the ideal member of the polis. It incorporated both practical, subject-based schooling and a focus upon the socialization of individuals within the aristocratic order of the polis. The practical aspects of this education included subjects subsumed under the modern designation of the liberal arts (rhetoric, grammar and philosophy are examples), as well as scientific disciplines like arithmetic and medicine. An ideal and successful member of the polis would possess intellectual, moral and physical refinement, so training in gymnastics and wrestling was valued for its effect on the body alongside the moral education which the Greeks believed was imparted by the study of music, poetry and philosophy. This approach to the rearing of a well-rounded Greek male was common to the Greek-speaking world, with the exception of Sparta where a rigid and militaristic form of education known as the agoge was practiced.
The Greeks considered paideia to be carried out by the aristocratic class, who were said to have intellectualized their culture and their ideas; the culture and the youth are then “moulded” to the ideal of kalos kagathos, “beautiful and good.” This idea is similar to that of the medieval knights, their culture, and the English concept of the gentleman.
Greek paideia is the idea of perfection, of excellence. The Greek mentality was “to always be pre-eminent”; Homer records this charge of King Peleus to his son Achilles. This idea is called arete. “Arete was the central ideal of all Greek culture.”
In the Iliad, Homer portrays the excellence of the physicality and courage of the Greeks and Trojans. In The Odyssey, Homer accentuates the excellence of the mind, or wit, that was also necessary for winning. Arete is a concomitant of what it meant to be a hero and a component of warfare that was necessary in order to succeed. It is the ability to “make his hands keep his head against enemies, monsters, and dangers of all kinds, and to come out victorious.”
This mentality can also be seen in the Greeks’ tendency to reproduce and copy only literature that was deemed the “best”, in the Olympic games, and in literature, with competitions in poetry, tragedy, and comedy. “Arete” was infused in everything the Greeks did. The mentality of arete can be stretched even further to the competing paideias of the Greek philosophers Isocrates and Plato, who both created highly influential schools in Greece. Although both rejected the current polis education, their rivalry of rhetoric and science for leadership in the realm of education and culture became one that they could not overcome. In Antidosis, Isocrates was compelled to defend himself against accusations that education makes people depraved, a charge that Socrates and Plato openly discuss in Republic. In Isocrates introductory speech Against the Sophists, it is clear that he has Plato’s ‘prospectuses’ Gorgias and Protagoras, before him, and is deliberately trying to set up his own ideal of paideia in contrast to theirs.
In modern discourse, the German-American classicist Werner Jaeger, in his influential magnum opus Paideia (3 vols. from 1934; see below), uses the concept of paideia to trace the development of Greek thought and education from Homer to Demosthenes. The concept of paideia was also used by Mortimer Adler in his criticism of contemporary Western educational systems, and Lawrence A. Cremin in his histories of American education
Secondary rules
One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as “primary rules,” and the rules of contract law as “secondary rules.” This post is an introduction to the Hart’s distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
The Distinction Between Primary and Secondary Rules
Hart’s basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. The category of secondary rules includes legal rules that allow for the creation, extinction, and alteration of primary rules; these secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.
More precisely, primary rules are rules that govern primary conduct, and secondary rules are rules that govern primary or secondary rules. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.
Some more examples may help:
Examples of Primary Rules
- Criminal prohibitions.
- Tort rules.
- The individual right to freedom of speech.
- The provisions of contracts that define the primary obligations of the parties.
- The environmental law rule that forbids discharge of toxic substances in rivers and streams.
Examples of Secondary Rules
- Contract law rules that enable parties to form contracts.
- The rules that allow testators to create a will.
- The constitutional rules that confer legislative powers on Congress.
- The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.
- The Practical Importance of Secondary Rules
One of the really nifty things about Hart’s introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.
Conclusion
The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist’s toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differences between them, but you don’t necessarily need to use the distinction when you construct normative legal arguments.
One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart’s magnificent book, The Concept of Law–in my opinion, the most important work of legal theory in the twentieth century.
Biopower
“Biopower” is a term coined by French scholar, historian, and social theorist Michel Foucault. It relates to the practice of modern nation states and their regulation of their subjects through “an explosion of numerous and diverse techniques for achieving the subjugations of bodies and the control of populations”. Foucault first used the term in his lecture courses at the Collège de France, but the term first appeared in print in The Will To Knowledge, Foucault’s first volume of The History of Sexuality. In Foucault’s work, it has been used to refer to practices of public health, regulation of heredity, and risk regulation, among many other regulatory mechanisms often linked less directly with literal physical health. It is closely related to a term he uses much less frequently, but which subsequent thinkers have taken up independently, biopolitics.
For Foucault, biopower is a technology of power, which is a way of managing people as a group. The distinctive quality of this political technology is that it allows for the control of entire populations. It is thus an integral feature and essential to the workings of—and makes possible—the emergence of the modern nation state and capitalism, etc. Biopower is literally having power over bodies; “an explosion of numerous and diverse techniques for achieving the subjugations of bodies and the control of populations”. Foucault elaborates further in his lecture courses on Biopower entitled Security, Territory, Population delivered at the Collège de France between January and April 1978
“ …“By this I mean a number of phenomena that seem to me to be quite significant, namely, the set of mechanisms through which the basic biological features of the human species became the object of a political strategy, of a general strategy of power, or, in other words, how, starting from the 18th century, modern Western societies took on board the fundamental biological fact that human beings are a species. This is what I have called biopower”…. ”
Insurrection of subjugated knowledge
“…For the last ten or fifteen years, the immense and proliferating criticizability of things, institutions, practices, and discourses; a sort of general feeling that the ground was crumbling beneath our feet, especially in places where it seemed most familiar, most solid, and closest to us, to our bodies, to our everyday gestures. But alongside this crumbling and the astonishing efficacy of discontinuous, particular, and local critiques, the facts were also revealing something… beneath this whole thematic, through it and even within it, we have seen what might be called the insurrection of subjugated knowledges.”
— Foucault, Society Must be Defended, 7th January 1976, tr. David Macey
Common law/civil law system
Civil law (or civilian law) is a legal system originating in Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent). Historically, civil law is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Napoleonic, Germanic, canonical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legal positivism.
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law to be secondary and subordinate to statutory law. When discussing civil law, one should keep in mind the conceptual difference between a statute and a codal article. The marked feature of civilian systems is that they use codes with brief text that tend to avoid factually specific scenarios. Code articles deal in generalities and thus, stand at odds with statutory schemes which are often very long and very detailed.
Social contract theory
In moral and political philosophy, the social contract or political contract is a theory or model, originating during the Age of Enlightenment, that typically addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual. Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights. The question of the relation between natural and legal rights, therefore, is often an aspect of social contract theory. The Social Contract (Du contrat social ou Principes du droit politique) is also the title of a 1762 book by Jean-Jacques Rousseau on this topic. Although the antecedents of social contract theory are found in antiquity, in Greek and Stoic philosophy and Roman and Canon Law, as well as in the Biblical idea of the covenant, the heyday of the social contract was the mid-17th to early 19th centuries, when it emerged as the leading doctrine of political legitimacy. The starting point for most social contract theories is a heuristic examination of the human condition absent from any political order that Thomas Hobbes termed the “state of nature”. In this condition, individuals' actions are bound only by their personal power and conscience. From this shared starting point, social contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order. Hugo Grotius (1625), Thomas Hobbes (1651), Samuel Pufendorf (1673), John Locke (1689), Jean-Jacques Rousseau (1762), and Immanuel Kant (1797) are among the most prominent of 17th- and 18th-century theorists of social contract and natural rights. Each solved the problem of political authority in a different way. Grotius posited that individual human beings had natural rights; Hobbes asserted that humans consent to abdicate their rights in favor of the absolute authority of government (whether monarchial or parliamentary); Pufendorf disputed Hobbes's equation of a state of nature with war. Locke believed that natural rights were inalienable, and that the rule of God therefore superseded government authority; and Rousseau believed that democracy (self-rule) was the best way of ensuring the general welfare while maintaining individual freedom under the rule of law. The Lockean concept of the social contract was invoked in the United States Declaration of Independence. Social contract theories were eclipsed in the 19th century in favor of utilitarianism, Hegelianism, and Marxism, and were revived in the 20th century, notably in the form of a thought experiment by John Rawls.
Natural law theory
Natural law, or the law of nature (Latin: lex naturalis), is a system of law that is determined by nature, and so is universal. Classically, natural law refers to the use of reason to analyze human nature — both social and personal — and deduce binding rules of moral behavior from it. Natural law is often compared with the positive law of a given political community, society, or state. In legal theory, on the other hand, the interpretation of positive law requires some reference to natural law. On this understanding of natural law, natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself. Some scholars use natural law synonymously with natural justice or natural right (Latin ius naturale), while others distinguish between natural law and natural right.
Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation. Natural law theories have, however, exercised a profound influence on the development of English common law,[full citation needed] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen. Declarationism states that the founding of the United States is based on Natural law.
Metaphysics of presence
The concept of the metaphysics of presence is an important consideration within the area of deconstruction. The deconstructive interpretation holds that the entire history of Western philosophy and its language and traditions has emphasized the desire for immediate access to meaning, and thus built a metaphysics or ontotheology around the privileging of presence over absence.
In Being and Time, Martin Heidegger argues that the concept of time prevalent in all Western thought has largely remained unchanged since the definition offered by Aristotle in the Physics. He says “Aristotle’s essay on time is the first detailed Interpretation of this phenomenon [time] which has come down to us. Every subsequent account of time, including Bergson’s, has been essentially determined by it.” Aristotle defined time as “the number of movement in respect of before and after”. By defining time in this way Aristotle is privileging what is present-at-hand, namely the ‘presence’ of time. Heidegger argues in response that “Entities are grasped in their Being as ‘presence’; this means that they are understood with regard to a definite mode of time - the ‘Present’”. Central to Heidegger’s own philosophical project is the attempt to gain a more authentic understanding of time. Heidegger considers time to be the unity of three ecstases, the past, the present and the future.
Deconstructive thinkers, like Jacques Derrida, describe their task as the questioning or deconstruction of this metaphysical tendency in philosophy. Derrida writes, “Without a doubt, Aristotle thinks time on the basis of ousia as parousia, on the basis of the now, the point, etc. And yet an entire reading could be organized that would repeat in Aristotle’s text both this limitation and its opposite.” This argument is largely based on the earlier work of Martin Heidegger, who in Being and Time claimed the parasitic nature of the theoretical attitude of pure presence upon a more originary involvement with the world in concepts such as the ready-to-hand and being-with. Friedrich Nietzsche is a more distant, but clear, influence as well.
The presence to which Heidegger refers is both a presence as in a “now” and also a presence as in an eternal, always present, as one might associate with god or the “eternal” laws of science. This hypostatized (underlying) belief in presence is undermined by novel phenomenological ideas — such that presence itself does not subsist, but comes about primordially through the action of our futural projection, our realization of finitude and the reception or rejection of the traditions of our time.
Difference
Difference is a key concept of philosophy, denoting the process or set of properties by which one entity is distinguished from another within a relational field or a given conceptual system. In the Western philosophical system, difference is traditionally viewed as being opposed to identity, following the Principles of Leibniz, and in particular his Law of the Identity of indiscernibles. In structuralist and poststructuralist accounts, however, difference is understood to be constitutive of both meaning and identity. In other words, because identity (particularly, but not limited to, personal identity) is viewed in non-essentialist terms as a construct, and because constructs only produce meaning through the interplay of differences (see below), it is the case that for both structuralism and poststructuralism, identity cannot be said to exist without difference.
Positivism
Positivism is a philosophy of science based on the view that information derived from logical and mathematical treatments and reports of sensory experience is the exclusive source of all authoritative knowledge, and that there is valid knowledge (truth) only in scientific knowledge. Verified data received from the senses are known as empirical evidence. This view holds that society, like the physical world, operates according to general laws. Introspective and intuitive knowledge is rejected. Although the positivist approach has been a recurrent theme in the history of Western thought, the modern sense of the approach was developed by the philosopher and founding sociologist Auguste Comte in the early 19th century. Comte argued that, much as the physical world operates according to gravity and other absolute laws, so also does society.
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early 20th century attack on the orthodox claims of late 19th century classical legal thought in the United States—American legal realism. American Legal Realism is often remembered for its challenge to the classical legal claim that orthodox legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics. Unlike classical legal thought, American Legal Realism worked vigorously to depict the institution of law without denying or distorting a picture of sharp moral, political, and social conflict. The most important legacy of American Legal Realism is its challenge to the classical legal claim that legal reasoning was separate and autonomous from moral and political discourse.
Oakes test
The primary test to determine if the purpose is demonstrably justifiable in a free and democratic society is known as the Oakes test, which takes its name from the essential case R. v. Oakes [1986] 1 S.C.R. 103 which was written by Chief Justice Dickson. The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown to pass the Oakes test.
In R. v. Big M Drug Mart Ltd. (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the limit must be as small as possible. In Oakes (1986), Dickson elaborated on the standard when one David Oakes was accused of selling narcotics. Dickson for a unanimous Court found that David Oakes’ rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the two step process:
- There must be a pressing and substantial objective
- The means must be proportional
- The means must be rationally connected to the objective
- There must be minimal impairment of rights
- There must be proportionality between the infringement and objective
The test is heavily founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law passes the Oakes test and remains valid.
Since Oakes, the test has been modified slightly.
Critical legal studies
Critical legal studies was a movement in legal thought in the 1970s and 80s committed to shaping society based on a vision of human personality devoid of the hidden interests and class domination that was perceived to be behind existing legal institutions. Adherents of the movement sought to destabilize traditional conceptions of law, and to unravel and challenge existing legal institutions. The more constructive members, such as Roberto Mangabeira Unger, sought to rebuild these institutions as an expression of human coexistence and not just a provisional truce in a brutal struggle, and were seen as the most powerful voices and the only way forward for the movement. Unger is one of the last standing members of the movement to continue to try to develop it in new directions—namely, to make legal analysis the basis of developing institutional alternatives.
Normalizing judgment
Normalizing judgment. First, at the heart of all disciplinary mechanisms, a small penal system, with a micro-penality of time, behavior and speech, existed. Slight departures from correct behavior were punished. Second, discipline’s method of punishment is like that of the court, but non-observance is also important. Whatever does not meet the rule departs from it. Third, disciplinary punishment has to be corrective. It favors punishment that is exercise. Fourth, punishment is an element of a double system of gratification-punishment, which defines behavior on the basis of good-evil. Fifth, the distribution according to acts and grades has a double role. It creates gaps and arranges qualities into hierarchies, but also punishes and rewards. Discipline rewards and punishes by awarding ranks.
This art of punishing refers individual actions to a whole, and differentiates individuals from each other by means of a rule that is the minimum of behavior. It measures individuals and places them in a hierarchical system; it also traces the abnormal. The perpetual penalty essentially normalizes. This is opposed to the juridical penalty that defines the individual according to a corpus of laws, texts and general categories. Disciplinary mechanisms create a “penality of the norm”. The normal, which exists in medicine, factories and schools, is one of the great instruments of power at the end of the classical period. Marks of status were replaced by ideas of belonging to a “normal” group. Normalization makes people homogeneous, but it also makes it possible to measure differences between individuals.
Examination. Examination represents the techniques of an observing hierarchy and those of a normalizing judgment, a gaze that makes it possible to qualify, classify and punish. It is a ritualized innovation of the classical age; the organization of the hospital as an examining machine is one of the features of the eighteenth century. A similar process is evident in the development of examination in schools. Examination introduced certain new features: first, it transformed the economy of visibility into the exercise of power. The subject, and not the sovereign, becomes seen. Second, examination introduces individuality into the field of documentation; a mass of writing fixes the individual. Third, each individual becomes a “case” that can be analyzed and described.
The carceral
Foucault dates the completion of the carceral system to February 22, 1840: the date of the opening of Mettray prison colony. This colony is the disciplinary form at its most extreme. The chiefs and deputies at Mettray were technicians of behavior. Their task was to produce bodies that were docile and capable. Historians of the human sciences also date the birth of scientific psychology to this time. Mettray represented the birth of a new kind of supervision.
Why choose this moment as the beginning of the modern art of punishment? Mettray was the most famous of a series of carceral institutions. If the great classical form of confinement was dismantled, it still existed albeit in a different way. A carceral continuum was constructed that included confinement, judicial punishment and institutions of discipline. The breadth and precocity of this phenomenon was striking. Prison turned the punitive procedure into a penitentiary technique, with several important results: One) a slow continuous gradation was established that made it possible to move from order to offense and back to the “norm”. Two) the carceral network allows the recruitment of major delinquents—the nineteenth century created channels within the system that created docility and delinquency together. Three) most importantly, the carceral succeeds in making the power to punish legitimate and accepted. The theory of the contract only partly explains the rise of a new power to punish; another answer comes from the idea of a carceral continuum that was the technical counterpart to granting a right to punish. Four) the carceral allowed the emergence of a new form of law: the norm. Now, the judges of normality were everywhere; a reign of the normative exists, to which everyone subjects his body. Five) the carceral texture of society allows the body to be captured and observed. Six) because the prison was rooted in the mechanisms and strategies of power, it could resist attempts to abolish it. This does not mean that it cannot be altered: processes that affect its utility, and the growth of other supervisory networks, such as medicine, psychiatry and social work, will alter the prison. The overall political issue of prisons is whether we should have them, or something else. Now the problem lies in the increasing use of mechanisms of normalization and the powers attached to them. The carceral city is very different to the theater of punishment. Laws and courts do not control the prison, but vice versa. The prison is linked to a carceral network that normalizes. Ultimately only the rules of strategy control these mechanisms. Foucault sees this book as a historical background to various studies of power, normalization and the formation of knowledge in society.
State of Exception
In this book, Giorgio Agamben traces the concept of ‘state of exception’ (Ausnahmezustand) used by Carl Schmitt to Roman justitium and auctoritas. This leads him to a response to Carl Schmitt’s definition of sovereignty as the power to proclaim the exception.
Agamben’s text State of Exception investigates the increase of power structures governments employ in supposed times of crisis. Within these times of crisis, Agamben refers to increased extension of power as states of exception, where questions of citizenship and individual rights can be diminished, superseded and rejected in the process of claiming this extension of power by a government.
The state of exception invests one person or government with the power and voice of authority over others extended well beyond where the law has existed in the past. “In every case, the state of exception marks a threshold at which logic and praxis blur with each other and a pure violence without logos claims to realize an enunciation without any real reference” (Agamben, pg 40). Agamben refers a continued state of exception to the Nazi state of Germany under Hitler’s rule. “The entire Third Reich can be considered a state of exception that lasted twelve years. In this sense, modern totalitarianism can be defined as the establishment, by means of the state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system” (Agamben, pg 2).
The political power over others acquired through the state of exception, places one government — or one form or branch of government — as all powerful, operating outside of the laws. During such times of extension of power, certain forms of knowledge shall be privileged and accepted as true and certain voices shall be heard as valued, while of course, many others are not. This oppressive distinction holds great importance in relation to the production of knowledge. The process of both acquiring knowledge, and suppressing certain knowledge, is a violent act within a time of crisis.
Agamben’s State of Exception investigates how the suspension of laws within a state of emergency or crisis can become a prolonged state of being. More specifically, Agamben addresses how this prolonged state of exception operates to deprive individuals of their citizenship. When speaking about the military order issued by President George W. Bush on 13 November 2001, Agamben writes, “What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnameable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POW’s as defined by the Geneva Convention, they do not even have the status of people charged with a crime according to American laws” (Agamben, pg 3). Many of the individuals captured in Afghanistan were taken to be held at Guantánamo Bay without trial. These individuals were termed as “enemy combatants.” Until 7 July 2006, these individuals had been treated outside of the Geneva Conventions by the United States administration.
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Proletariat
The proletariat is a term used to describe the class of wage-earners (especially industrial workers) in a capitalist society whose only possession of significant material value is their labour-power (their ability to work); a member of such a class is a proletarian.
The term proletariat is used in Marxist theory to name the social class that does not have ownership of the means of production and whose only means of subsistence is to sell their labour power for a wage or salary. Proletarians are wage-workers, while some refer to those who receive salaries as the salariat. For Marx, however, wage labor may involve getting a salary rather than a wage per se. Marxism sees the proletariat and bourgeoisie (capitalist class) as occupying conflicting positions, since workers automatically wish their wages to be as high as possible, while owners and their proxies wish for wages (costs) to be as low as possible.
A 1911 Industrial Worker publication advocating industrial unionism based on a critique of capitalism. The proletariat “work for all” and “feed all”.
In Marxist theory, the borders between the proletariat and some layers of the petite bourgeoisie, who rely primarily but not exclusively on self-employment at an income no different from an ordinary wage or below it – and the lumpen proletariat, who are not in legal employment – are not necessarily well defined. Intermediate positions are possible, where some wage-labour for an employer combines with self-employment. While the class to which each individual person belongs is often hard to determine, from the standpoint of society as a whole, taken in its movement (i.e. history), the class divisions are incontestable; the easiest proof of their existence is the class struggle – strikes, for instance. While an employee may be subjectively unsure of his class belonging, when his workmates come out on strike he is objectively forced to follow one class (his workmates, i.e. the proletariat) over the other (management, i.e. the bourgeoisie). Marx makes a clear distinction between proletariat as salaried workers, which he sees as a progressive class, and Lumpenproletariat, “rag-proletariat”, the poorest and outcasts of the society, such as beggars, tricksters, entertainers, buskers, criminals and prostitutes, which he considers a retrograde class. Socialist parties have often struggled over the question of whether they should seek to organize and represent all the lower classes, or just the wage-earning proletariat.
According to Marxism, capitalism is a system based on the exploitation of the proletariat by the bourgeoisie. This exploitation takes place as follows: the workers, who own no means of production of their own, must use the means of production that are property of others in order to produce, and, consequently, earn their living. Instead of hiring those means of production, they themselves get hired by capitalists and work for them, producing goods or services. These goods or services become the property of the capitalist, who sells them at the market.
One part of the wealth produced is used to pay the workers’ wages (variable costs), another part to renew the means of production (constant costs) while the third part, surplus value is split between the capitalist’s private takings (profit), and the money used to pay rents, taxes, interests, etc. Surplus value is the difference between the wealth that the proletariat produces through its work, and the wealth it consumes to survive and to provide labor to the capitalist companies. A part of the surplus value is used to renew or increase the means of production, either in quantity or quality (i.e., it is turned into capital), and is called capitalised surplus value. What remains is consumed by the capitalist class.
The commodities that proletarians produce and capitalists sell are valued for the amount of labor embodied in them. The same goes for the workers’ labor power itself: it is valued, not for the amount of wealth it produces, but for the amount of labor necessary to produce and reproduce it. Thus the capitalists earn wealth from the labor of their employees, not as a function of their personal contribution to the productive process, which may even be null, but as a function of the juridical relation of property to the means of production. Marxists argue that new wealth is created through labor applied to natural resources.
Marx argued that it was the goal of the proletariat to displace the capitalist system with the dictatorship of the proletariat, abolishing the social relationships underpinning the class system and then developing into a communist society in which “the free development of each is the condition for the free development of all”.
Rational-legal authority
Rational-legal authority (also known as rational authority, legal authority, rational domination, legal domination, or bureaucratic authority) is a form of leadership in which the authority of an organization or a ruling regime is largely tied to legal rationality, legal legitimacy and bureaucracy. The majority of the modern states of the twentieth century are rational-legal authorities, according to those who use this form of classification.
Rational-legal authority
In sociology, the concept of rational-legal domination comes from Max Weber’s tripartite classification of authority (one of several classifications of government used by sociologists); the other two forms being traditional authority and charismatic authority. All of those three domination types represent an example of his ideal type concept. Weber noted that in history those ideal types of domination are always found in combinations.
In traditional authority, the legitimacy of the authority comes from tradition. Charismatic authority is legitimized by the personality and leadership qualities of the ruling individual. Finally, rational-legal authority derives its powers from the system of bureaucracy and legality.
Legal rationality and legitimacy
Under rational-legal authority, legitimacy is seen as coming from a legal order and the laws that have been enacted in it (see also natural law and legal positivism).
Weber defined legal order as a system where the rules are enacted and obeyed as legitimate because they are in line with other laws on how they can be enacted and how they should be obeyed. Further, they are enforced by a government that monopolizes their enactment and the legitimate use of physical force.
Emergence of the modern state
Weber wrote that the modern state based on rational-legal authority emerged from the patrimonial and feudal struggle for power (see traditional authority) uniquely in the Occidental civilization. The prerequisites for the modern Western state are:
monopolization by central authority of the means of administration and control based on a centralized and stable system of taxation and use of physical force
monopolization of legislative
organisation of an officialdom, dependent upon the central authority
Weber argued that some of those attributes have existed in various time or places, but together they existed only in Occidental civilization. The conditions that favoured this were
emergence of rational-legal rationality (various status groups in the Occident promoted that emergence)
emergence of modern officialdom (bureaucracy), which required
development of the money economy, where officials are compensated in money instead of kind (usually land grants)
quantitative and qualitative expansion of administrative tasks
centralisation and increased efficiency of administration.
Weber’s belief that rational-legal authority did not exist in Imperial China has been heavily criticized, and does not have many supporters in the early 21st century.
Modern state
According to Max Weber, a modern state exists where a political community has:
an administrative and legal order that has been created and can be changed by legislation that also determines its role
binding authority over citizens and actions in its jurisdiction
the right to legitimately use the physical force in its jurisdiction
An important attribute of Weber’s definition of a modern state was that it is a bureaucracy.
The vast majority of the modern states from the 20th century onward fall under the rational-legal authority category.
Rational-legal leaders
The majority of modern bureaucratic officials and political leaders represent this type of authority.
Officials:
are personally free.
serve a higher authority.
are appointed on the basis of conduct and their technical qualifications.
are responsible for the impartial execution of assigned tasks.
Their work is a full-time occupation.
Their work is rewarded by a salary and prospects of career advancement.
Politicians:
are solely responsible for independent action.
must recognize that public actions that conflict with their basic policy must be rejected.
should have charismatic appeal to win elections under conditions of universal suffrage.
Rule of obligation
The law of obligations is one branch of private law under the civil law legal system. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights and duties are referred to as obligations, and this area of law deals with their creation, effects, and extinction. An obligation is a legal bond (vinculum iuris) by which one or more parties (obligants) are bound to act or refrain from acting. An obligation thus imposes on the obligor a duty to perform, and simultaneously creates a corresponding right to demand performance by the obligee to whom performance is to be tendered. Obligations may be civil, which are enforceable by action in a court of law, or natural, which imply moral duties but are unenforceable unless the obligor consents.
Justinian first defines an obligation (obligatio) in his Institutiones, Book 3, section 13 as “a legal bond, with which we are bound by necessity of performing some act according to the laws of our State.” He further separates the law of obligations into contracts, delicts, quasi-contracts, and quasi-delicts.
Nowadays, obligation, as applied under civilian law, means a legal tie (vinculum iuris) by which one or more parties (obligants) are bound to perform or refrain from performing specified conduct (prestation). Thus an obligation encompasses both sides of the equation, both the obligor’s duty to render prestation and the obligee’s right to receive prestation. It differs from the common-law concept of obligation which only encompasses the duty aspect.
Every obligation has four essential requisites otherwise known as the elements of obligation.
They are:
the obligor: obligant duty-bound to fulfill the obligation; he who has a duty.
the obligee: obligant entitled to demand the fulfillment of the obligation; he who has a right.
the subject matter, the prestation: the performance to be tendered.
a legal bond, the vinculum juris: the cause that binds or connects the obligants to the prestation.
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black’s Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.” Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies).
Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters.
Case law is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.
Socratic method
Socratic method (also known as method of elenchus, elenctic method, or Socratic debate), named after the classical Greek philosopher Socrates, is a form of inquiry and discussion between individuals, based on asking and answering questions to stimulate critical thinking and to illuminate ideas. It is a dialectical method, often involving a discussion in which the defense of one point of view is questioned; one participant may lead another to contradict himself in some way, thus strengthening the inquirer’s own point.
The Socratic method is a negative method of hypothesis elimination, in that better hypotheses are found by steadily identifying and eliminating those that lead to contradictions. The Socratic method searches for general, commonly held truths that shape opinion, and scrutinizes them to determine their consistency with other beliefs.
The basic form is a series of questions formulated as tests of logic and fact intended to help a person or group discover their beliefs about some topic, exploring the definitions or logoi (singular logos), seeking to characterize the general characteristics shared by various particular instances. The extent to which this method is employed to bring out definitions implicit in the interlocutors’ beliefs, or to help them further their understanding, is called the method of maieutics. Aristotle attributed to Socrates the discovery of the method of definition and induction, which he regarded as the essence of the scientific method.
In the second half of the 5th century BC, sophists were teachers who specialized in using the tools of philosophy and rhetoric to entertain or impress or persuade an audience to accept the speaker’s point of view. Socrates promoted an alternative method of teaching which came to be called the Socratic method.
Socrates began to engage in such discussions with his fellow Athenians after his friend from youth, Chaerephon, visited the Oracle of Delphi, which confirmed that no man in Greece was wiser than Socrates. Socrates saw this as a paradox, and began using the Socratic method to answer his conundrum. Diogenes Laërtius, however, wrote that Protagoras invented the “Socratic” method.
Plato famously formalized the Socratic elenctic style in prose—presenting Socrates as the curious questioner of some prominent Athenian interlocutor—in some of his early dialogues, such as Euthyphro and Ion, and the method is most commonly found within the so-called “Socratic dialogues”, which generally portray Socrates engaging in the method and questioning his fellow citizens about moral and epistemological issues. But in his later dialogues, such as Theaetetus or Sophist Plato had a different method to Philosophical discussions, namely Dialectic.
The phrase Socratic questioning is used to describe a kind of questioning in which an original question is responded to as though it were an answer. This in turn forces the first questioner to reformulate a new question in light of the progress of the discourse.
Organic solidarity / Mechanical solidarity
In sociology, Mechanical Solidarity and Organic Solidarity refer to the concepts of solidarity as developed by Émile Durkheim. They are used in the context of differentiating between mechanical and organic societies.
According to Durkheim, the types of social solidarity correlate with types of society. Durkheim introduced the terms “mechanical” and “organic solidarity” as part of his theory of the development of societies in The Division of Labour in Society (1893). In a society exhibiting mechanical solidarity, its cohesion and integration comes from the homogeneity of individuals—people feel connected through similar work, educational and religious training, and lifestyle. Mechanical solidarity normally operates in “traditional” and small scale societies. In simpler societies (e.g., tribal), solidarity is usually based on kinship ties of familial networks. Organic solidarity comes from the interdependence that arises from specialization of work and the complementarities between people—a development which occurs in “modern” and “industrial” societies. Definition: it is social cohesion based upon the dependence individuals have on each other in more advanced societies. Although individuals perform different tasks and often have different values and interests, the order and very solidarity of society depends on their reliance on each other to perform their specified tasks.
Organic here is referring to the interdependence of the component parts. Thus, social solidarity is maintained in more complex societies through the interdependence of its component parts (e.g., farmers produce the food to feed the factory workers who produce the tractors that allow the farmer to produce the food).
The two types of solidarity can be distinguished by morphological and demographic features, type of norms in existence, and the intensity and content of the conscience collective.
Fact-value debate
The fact-value distinction is a distinction between what is (can be discovered by science, philosophy, or reason) and what ought to be (a judgment agreed to by consensus, or believed to be objectively morally binding). The terms positive and normative represent another way to express this, as do the terms descriptive and prescriptive, respectively. Positive statements make the implicit claim to facts (e.g., water molecules are made of two hydrogen atoms and one oxygen atom), whereas normative statements make a claim based on values or norms (e.g., water ought to be protected from pollution).
Governmentality
Governmentality is a concept first developed by the French philosopher Michel Foucault in the later years of his life, roughly between 1977 and his death in 1984, particularly in his lectures at the Collège de France during this time.
The concept has been elaborated further from an “Anglo-Neo Foucauldian” perspective in the social sciences, especially by authors such as Peter Miller, Nikolas Rose, and Mitchell Dean. Governmentality can be understood as:
- the way governments try to produce the citizen best suited to fulfill those governments’ policies
- the organized practices (mentalities, rationalities, and techniques) through which subjects are governed
Governmentality may also be understood as:
- the “art of government”
- the “how” of governing (that is, the calculated means of directing how we behave and act)
- “governmental rationality”
- “a ‘guideline’ for the analysis that Michel Foucault offers by way of historical reconstructions embracing a period starting from Ancient Greece right through to modernity and neo-liberalism”
- “the techniques and strategies by which a society is rendered governable”
Genealogy
Genealogy, also known as family history, is the study of families and the tracing of their lineages and history. Genealogists use oral interviews, historical records, genetic analysis, and other records to obtain information about a family and to demonstrate kinship and pedigrees of its members. The results are often displayed in charts or written as narratives.
The pursuit of family history and origins tends to be shaped by several motivations, including the desire to carve out a place for one’s family in the larger historical picture, a sense of responsibility to preserve the past for future generations, and a sense of self-satisfaction in accurate storytelling.
