The article attempts to contribute to the project of a political, or constitutional, theology con... more The article attempts to contribute to the project of a political, or constitutional, theology conceived by Carl Schmitt, while criticizing Schmitt's own accounts of sovereignty and constituent power. It is argued that Schmitt consistently advocated an immanent view of constituent power, namely, a view of constituent power as permanently present within and exercised by the community. The article proposes socio-theoretical, historical and normative arguments against immanent models of sovereignty, which are found to be inconsistent with individual autonomy and rights. An alternative model according to which constituent power vests in the absent, corporate body of the group is developed. Constitutional moments such as declarations of independence, revolutions, constitutional reforms, elections, impeachments, general strikes, amnesties, referenda and states of emergency are analyzed and construed as episodes of incarnation of an otherwise absent authority. The article ends with a critical assessment of Ackerman's and Negri's constitutional theories.
The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements ... more The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements of Western society with the delineation of the sacred and the secular. The reform was propelled by a group of churchmen who strove to entrench the separation between the sacred and the secular spheres—between ecclesiastical and lay society—and give the sacred realm a solid institutional structure. However, the reform spurred processes of institutionalization not only within the Church but generally in lay society as well. It was followed by a large-scale development of temporal legal and administrative institutions. Lawyers, social theorists, and historians often refer to the Gregorian Reform as a crucial phase in the history, or rather prehistory, of the state. By virtue of its historical consequences, the reform is clearly suggestive of the broad social implications of different lines of demarcation between the sacred and the secular. The present essay is not written by a historian; its origin lies rather in an attempt by a legal and social theorist to comprehend, through various historical examples, alternative social strategies of deploying the sacred. The Gregorian Reform is adduced as a tentative illustration of general claims concerning the demarcation of the sacred and secular spheres, an illustration whose complexity incessantly opens up novel theoretical possibilities, almost to the point of defying the theoretical effort itself.
The Article brings together anthropological and legal approaches to the concept of descent. Since... more The Article brings together anthropological and legal approaches to the concept of descent. Since Henry Maine, legal theorists have been interested in descent as a link between the generations that assembles the generations into a corporate body, a single collective personality. The Article proposes a view of intergenerational corporate continuity and defends an interpretation of the rights to family lifethe rights to marriage and parenthoodas constitutional safeguards of the institution of descent. It argues that descent is the foundation of human dignity, and that the rights to family life should therefore be considered key constituents of human dignity. This notion of dignity is pre-modern but, as a number of authors have argued, our idea of dignity remains partly continuous with pre-modern notions. Our ideas about human dignity conflate in fact two diametrically opposed bases of dignity: the distinctly human capacity for intergenerational continuity and the contrary capacity to break free of the past. The rights to parenthood and marriage are rooted primarily in the notion of dignity-as-descent and not, as several authors have argued, in the inherent value of the intimacy that exists between family members. The Article comments briefly on the current round in the perennial debate on the foundation of kinship between the respective advocates of culture and biology.
It is argued that ideals emerge in the course of the individuation-separation process, preserving... more It is argued that ideals emerge in the course of the individuation-separation process, preserving the narcissism of primary Thingness. Ideals form an essential part of social structure, as opposed to communitas, where individuation is suspended. The anthropological distinction between social structure and communitas is reformulated in psychoanalytic terms. Structure and communitas are shown to correspond to two alternative organizations of narcissism. Ideals and myths figure among the manifestations of the narcissism of structure. In the last section, certain explanations of the discourse of ideals are drawn from the preceding account. While the premises of the following reflections are broadly Kleinian, Lacanian concepts are supplemented, not on the basis of any definite synthesis but towards a piecemeal reconciliation. The concept of ideals plays a minor role in analytical moral philosophy. This neglect is indicative of some general shortcomings of this school of thought. While analytical philosophy lacks historical consciousness, ideals force us to reflect upon concrete historical processes and changing human aspirations. Ideals bridge the artificial boundaries-taken for granted by analytical philosophy-between 'popular' and philosophical morality and between politics and morality. Ideals also bridge the gap between the normative and the descriptive, since they permeate human self-conceptions. Such conceptions always involve idealization; the historical horizon, within which society's self-image is embedded, is suffused with idealizations. The concept of ideals is fundamental for anthropology, as every culture has its own 'ideals of the noble'. It is fundamental for psychoanalysis because ideals provide a key to understanding the structure of the human subject. As Charles Taylor argues (1985), the self can articulate itself only in relation to what he calls 'strong evaluations', that is, goals 'outside' the self that are taken to be categorically superior. In his essay 'On the Necessity of Ideals' Harry Frankfurt argues that true autonomy and individuality, as opposed to abstract freedom, assume volitional necessity, the necessity of ideals. Ideals are at once forms of
The Canadian Journal of Law and Jurisprudence, Jan 30, 2023
The essay proposes that children should not participate in custody proceedings because they lack ... more The essay proposes that children should not participate in custody proceedings because they lack a place in the public world, a concept which was developed by Arendt and which I elaborate on the basis of her writings. Arendt's concepts of place in the world and of childhood are correlated, polar ethical concepts. 'Place in the world' as described by Arendt combines commitment to worldbuilding as a collaborative enterprise, relations of mutual-recognition among equal co-builders of the public world, an inviolable place in public and private realms, and self-disclosure through the staging of public appearances. We should recognize children as rightful participants in divorce proceedings when we are ready to treat them as occupants of place in the world, split between public and private realms and corresponding public and private voices. Recent practices of children's participation undermine the intimate realm of childhood as well as the public world.
The claim that law is grounded in representations of authority hardly requires justification. The... more The claim that law is grounded in representations of authority hardly requires justification. The article outlines one view of the power of representations of authority to subject society to the law, and attempts to shed light on the social significance of architecture as a medium of such representation. I will argue that representation sets apart the realms of the living and the dead while sustaining a complex relationship between the two realms. It houses the dead in a separate realm where they exercise authority over the living. Monumental architecture founds the authority of law, and the entire realm inhabited by the living, by relegating the dead to a separate sphere where they assume the position of ancestral lawgivers. Architecture can separate the living from the dead and anchor the rule of law by virtue of its claims to perpetuity and aesthetic form.
Abstract In a fragment on Mozart, Adorno suggested that under the old regime the humanity and sov... more Abstract In a fragment on Mozart, Adorno suggested that under the old regime the humanity and sovereignty of the aristocracy were bound up with aristocratic libertinism. In Mozart’s time, Adorno noted, the bourgeoisie acquired sovereignty and humanity through the imitation of aristocratic libertinism. The view of sexuality as a source of humanity and freedom is implicit in Mozart’s works themselves, particularly in the operas written in collaboration with Da Ponte. However, Mozart was a libertine in a very mild and qualified sense. For him, humanity does not consist in the quest for pleasure but in the permanent confrontation with the contradictory claims of the enduring and the ephemeral, the inward and the outward. Humanity and freedom depend on enduring relations much as they are fostered by the pursuit of pleasure. Both poles of human desire seem to enhance individual autonomy vis-à-vis the social body. This essay sketches a view of the individuating and humanizing power of sexuality which finds an illustration in the radiant individuality of Mozart’s characters.
International Journal of Law, Policy and The Family, Aug 1, 2004
Wherever the sacred appears it claims dispensation from the law. The exemption of domestic relati... more Wherever the sacred appears it claims dispensation from the law. The exemption of domestic relations from legal regulation has often been associated by the courts with the sanctity of the family. Domestic sacredness can be construed in light of two alternative models of the family. According to the first model, the family constitutes a communal body: a sacred, formless fusion of individuals, a texture of interaction that would be impaired and violated by legal mediation. According to the second model, the family constitutes a quasi-sovereign corporate body: a thoroughly legal structure in which each individual organ plays a determined role, dictated by the family's own sacred, ancestral law. Both the corporate and communal models call for a certain degree of exemption of domestic relations from state regulation on account of their sanctity. The article revisits and develops the classical anthropological theory of the family as corporation-the theory of Maine, Maitland, Fortes and Kantorowicz.
Nietzsche's account of the clergy, passionate and acrimonious, densely ramifying through the diff... more Nietzsche's account of the clergy, passionate and acrimonious, densely ramifying through the different layers of his oeuvre, ever shifting in context and angle, remains the quintessential reference for any modern theory of the clerical. Its relative neglect by Nietzsche scholars and social thinkers, with the exception of Weber, is curious. Tracing the constitution of civilization and the social order to a clerical distortion of the powers of life, Nietzsche intuited the decisive, though convoluted and often covert, relationship between the clergy and power, the contrast between the clerical mode of being and productive lifeassertion and the clerical embodiment of Truth and Law. Following these threads, I will try to characterize the place of the clerical function in social structure, its scope and components, and the division of labor between temporal and clerical authorities. The clerical body will be defined in relation to other sacred bodies: immortal ones-the communal body and the corporate body-and mortal bodies such as the divine king and, at the other end of the social order, the popular saint. Embodying the law, the priest and the judge are more successfully integrated into social structure than the often anarchical divine king and popular saint, though less so than ordinary mortals. As we shall see, it is by projecting much of its sacredness onto the renouncer, the monk, that the clerical body can occupy an office in social structure and assume human traits to a certain degree. While the following account of the clerical body illuminates the nature of judicial power, anthropological interpretations of executive and legislative powers will be proposed en route. 1 For a more elaborate discussion of structure and communitas, see L. Barshack, "The Subject of Ideals" 4(1) Cultural Values 2000, 77-100. The present exposition does not follow Turner's version of the distinction. 2 Structure and communitas. Victor Turner's classical distinction between social structure and communitas provides a useful starting point for an exposition of the clerical function. The clergy counts among the building blocks of social structure while remaining in itself in a condition of permanent sacred communitas. The clergy exemplifies institutionalized, normative forms of the Sacred that can be found at the heart of social structure, allowing secular spheres of life to evolve around them and thereby making structure possible. A comprehensive account of social structure and communitas is not necessary in order to consider the clerical function. A few of their contrasting features provide sufficient background to our discussion. 1 Structure and communitas are two opposite, dialectically interrelated, modes of interaction. Social structures are marked by a high degree of interpersonal separation. Interaction within social structures takes place between firmly individuated members and is mediated by their concrete, differentiated, normative social roles. Structures embed their members in a network of normative categories and boundaries through which individual identities are defined. These categories and boundaries comprise social strata, different spheres of life (e.g., family-civil society-state), classificatory kinship categories, a clear distinction between structure's inside and outside and a distinction between transcendence and immanence, the Sacred and the human. Structures are articulate, divided. Clash of interests, institutionalized competition over economic and political power, struggle over hege mony, oscillation between mutual recognition and self-assertion-these are inherent to social structure, whose greatest enemy is uniformity, and maintain a high level of individual autonomy within structure. The categories that divide and subdivide structure and institute interpersonal separation are juridical. The medium of structural separation is invariably the law. The law enjoins individual autonomy through harsh standards of responsibility and the recognition of individual rights. More gene rally, structure's juridical categories entrench individuation by defining individual identity-components such as name, gender, kin and status. The juridical distinction between private and public spheres of interaction is another condition for individual autonomy. By virtue of occupying positions in several spheres simultaneo usly,
The article attempts to contribute to the project of a political, or constitutional, theology con... more The article attempts to contribute to the project of a political, or constitutional, theology conceived by Carl Schmitt, while criticizing Schmitt's own accounts of sovereignty and constituent power. It is argued that Schmitt consistently advocated an immanent view of constituent power, namely, a view of constituent power as permanently present within and exercised by the community. The article proposes socio-theoretical, historical and normative arguments against immanent models of sovereignty, which are found to be inconsistent with individual autonomy and rights. An alternative model according to which constituent power vests in the absent, corporate body of the group is developed. Constitutional moments such as declarations of independence, revolutions, constitutional reforms, elections, impeachments, general strikes, amnesties, referenda and states of emergency are analyzed and construed as episodes of incarnation of an otherwise absent authority. The article ends with a critical assessment of Ackerman's and Negri's constitutional theories.
Icon-international Journal of Constitutional Law, Oct 1, 2009
The idea that sovereignty can be characterized in terms of the opposition between immanence and t... more The idea that sovereignty can be characterized in terms of the opposition between immanence and transcendence has gained increasing currency in constitutional theory. Roughly characterized, immanent sovereignty belongs to the living-to a Hobbesian monarch, for example, or to a group of individuals-while transcendent sovereignty belongs, at least partly, to the dead. The essay puts forward one argument in support of transcendent conceptions of sovereignty, namely, that only such conceptions can account for the temporal organization of social life. The relegation of sovereignty to ancestors and offspring and the distinction between constitutional moments and constitutional routine open up society to the temporal horizons of past and future. By affirming temporality, theories of sovereignty as transcending social and legal systems affirm the burdens of human, temporal existence. The sovereign power over life and death, like other attributes of sovereignty, is relegated by such theories to ancestral authority in order to safeguard life. The proposed account of sovereignty and time is contrasted with the theories of Arendt, Marcuse, Negri, and Maurice Bloch.
Departing from Durkheim's assertion of the primacy of public time, I argue that time is manufactu... more Departing from Durkheim's assertion of the primacy of public time, I argue that time is manufactured through the legal organization of society in the form of a corporate body. As a corporation, society enjoys fictive immortality, and it is this legal fiction that allows the flow of historical time. The institution of time, and of the corporate structure in general, is made possible through the political triumph over communal aspirations for timelessness, oneness and death: aspirations for an eternal present, to which I refer as the communal body. The passage from a founding, pre-historical experience of timelessness into historical time is accomplished through the construction of a perpetual corporate body in place of a communal body that lacks a temporal dimension. I will argue that the establishment of historical time and of the corporate organization of society necessitates the normative regulation of sexuality. Thus, the relaxation of the traditional structure of historical time and of sexual morality in contemporary society are closely intertwined. I. TIME, SEXUALITY AND SOCIAL STRUCTURE: INTRODUCING THE THEORETICAL PERSPECTIVE In the opening shot of Fellini's Satyricon, a hesitant, embarrassed camera reveals a wall covered in lewd graffiti of Roman times. The camera silently
Sacred and Secular in Medieval and Early Modern Cultures, 2006
The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements ... more The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements of Western society with the delineation of the sacred and the secular. The reform was propelled by a group of churchmen who strove to entrench the separation between the sacred and the secular spheres—between ecclesiastical and lay society—and give the sacred realm a solid institutional structure. However, the reform spurred processes of institutionalization not only within the Church but generally in lay society as well. It was followed by a large-scale development of temporal legal and administrative institutions. Lawyers, social theorists, and historians often refer to the Gregorian Reform as a crucial phase in the history, or rather prehistory, of the state. By virtue of its historical consequences, the reform is clearly suggestive of the broad social implications of different lines of demarcation between the sacred and the secular. The present essay is not written by a historian; its origin lies rather in an attempt by a legal and social theorist to comprehend, through various historical examples, alternative social strategies of deploying the sacred. The Gregorian Reform is adduced as a tentative illustration of general claims concerning the demarcation of the sacred and secular spheres, an illustration whose complexity incessantly opens up novel theoretical possibilities, almost to the point of defying the theoretical effort itself.
The Canadian Journal of Law and Jurisprudence, Jan 30, 2023
The essay proposes that children should not participate in custody proceedings because they lack ... more The essay proposes that children should not participate in custody proceedings because they lack a place in the public world, a concept which was developed by Arendt and which I elaborate on the basis of her writings. Arendt's concepts of place in the world and of childhood are correlated, polar ethical concepts. 'Place in the world' as described by Arendt combines commitment to worldbuilding as a collaborative enterprise, relations of mutual-recognition among equal co-builders of the public world, an inviolable place in public and private realms, and self-disclosure through the staging of public appearances. We should recognize children as rightful participants in divorce proceedings when we are ready to treat them as occupants of place in the world, split between public and private realms and corresponding public and private voices. Recent practices of children's participation undermine the intimate realm of childhood as well as the public world.
The article attempts to contribute to the project of a political, or constitutional, theology con... more The article attempts to contribute to the project of a political, or constitutional, theology conceived by Carl Schmitt, while criticizing Schmitt's own accounts of sovereignty and constituent power. It is argued that Schmitt consistently advocated an immanent view of constituent power, namely, a view of constituent power as permanently present within and exercised by the community. The article proposes socio-theoretical, historical and normative arguments against immanent models of sovereignty, which are found to be inconsistent with individual autonomy and rights. An alternative model according to which constituent power vests in the absent, corporate body of the group is developed. Constitutional moments such as declarations of independence, revolutions, constitutional reforms, elections, impeachments, general strikes, amnesties, referenda and states of emergency are analyzed and construed as episodes of incarnation of an otherwise absent authority. The article ends with a critical assessment of Ackerman's and Negri's constitutional theories.
The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements ... more The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements of Western society with the delineation of the sacred and the secular. The reform was propelled by a group of churchmen who strove to entrench the separation between the sacred and the secular spheres—between ecclesiastical and lay society—and give the sacred realm a solid institutional structure. However, the reform spurred processes of institutionalization not only within the Church but generally in lay society as well. It was followed by a large-scale development of temporal legal and administrative institutions. Lawyers, social theorists, and historians often refer to the Gregorian Reform as a crucial phase in the history, or rather prehistory, of the state. By virtue of its historical consequences, the reform is clearly suggestive of the broad social implications of different lines of demarcation between the sacred and the secular. The present essay is not written by a historian; its origin lies rather in an attempt by a legal and social theorist to comprehend, through various historical examples, alternative social strategies of deploying the sacred. The Gregorian Reform is adduced as a tentative illustration of general claims concerning the demarcation of the sacred and secular spheres, an illustration whose complexity incessantly opens up novel theoretical possibilities, almost to the point of defying the theoretical effort itself.
The Article brings together anthropological and legal approaches to the concept of descent. Since... more The Article brings together anthropological and legal approaches to the concept of descent. Since Henry Maine, legal theorists have been interested in descent as a link between the generations that assembles the generations into a corporate body, a single collective personality. The Article proposes a view of intergenerational corporate continuity and defends an interpretation of the rights to family lifethe rights to marriage and parenthoodas constitutional safeguards of the institution of descent. It argues that descent is the foundation of human dignity, and that the rights to family life should therefore be considered key constituents of human dignity. This notion of dignity is pre-modern but, as a number of authors have argued, our idea of dignity remains partly continuous with pre-modern notions. Our ideas about human dignity conflate in fact two diametrically opposed bases of dignity: the distinctly human capacity for intergenerational continuity and the contrary capacity to break free of the past. The rights to parenthood and marriage are rooted primarily in the notion of dignity-as-descent and not, as several authors have argued, in the inherent value of the intimacy that exists between family members. The Article comments briefly on the current round in the perennial debate on the foundation of kinship between the respective advocates of culture and biology.
It is argued that ideals emerge in the course of the individuation-separation process, preserving... more It is argued that ideals emerge in the course of the individuation-separation process, preserving the narcissism of primary Thingness. Ideals form an essential part of social structure, as opposed to communitas, where individuation is suspended. The anthropological distinction between social structure and communitas is reformulated in psychoanalytic terms. Structure and communitas are shown to correspond to two alternative organizations of narcissism. Ideals and myths figure among the manifestations of the narcissism of structure. In the last section, certain explanations of the discourse of ideals are drawn from the preceding account. While the premises of the following reflections are broadly Kleinian, Lacanian concepts are supplemented, not on the basis of any definite synthesis but towards a piecemeal reconciliation. The concept of ideals plays a minor role in analytical moral philosophy. This neglect is indicative of some general shortcomings of this school of thought. While analytical philosophy lacks historical consciousness, ideals force us to reflect upon concrete historical processes and changing human aspirations. Ideals bridge the artificial boundaries-taken for granted by analytical philosophy-between 'popular' and philosophical morality and between politics and morality. Ideals also bridge the gap between the normative and the descriptive, since they permeate human self-conceptions. Such conceptions always involve idealization; the historical horizon, within which society's self-image is embedded, is suffused with idealizations. The concept of ideals is fundamental for anthropology, as every culture has its own 'ideals of the noble'. It is fundamental for psychoanalysis because ideals provide a key to understanding the structure of the human subject. As Charles Taylor argues (1985), the self can articulate itself only in relation to what he calls 'strong evaluations', that is, goals 'outside' the self that are taken to be categorically superior. In his essay 'On the Necessity of Ideals' Harry Frankfurt argues that true autonomy and individuality, as opposed to abstract freedom, assume volitional necessity, the necessity of ideals. Ideals are at once forms of
The Canadian Journal of Law and Jurisprudence, Jan 30, 2023
The essay proposes that children should not participate in custody proceedings because they lack ... more The essay proposes that children should not participate in custody proceedings because they lack a place in the public world, a concept which was developed by Arendt and which I elaborate on the basis of her writings. Arendt's concepts of place in the world and of childhood are correlated, polar ethical concepts. 'Place in the world' as described by Arendt combines commitment to worldbuilding as a collaborative enterprise, relations of mutual-recognition among equal co-builders of the public world, an inviolable place in public and private realms, and self-disclosure through the staging of public appearances. We should recognize children as rightful participants in divorce proceedings when we are ready to treat them as occupants of place in the world, split between public and private realms and corresponding public and private voices. Recent practices of children's participation undermine the intimate realm of childhood as well as the public world.
The claim that law is grounded in representations of authority hardly requires justification. The... more The claim that law is grounded in representations of authority hardly requires justification. The article outlines one view of the power of representations of authority to subject society to the law, and attempts to shed light on the social significance of architecture as a medium of such representation. I will argue that representation sets apart the realms of the living and the dead while sustaining a complex relationship between the two realms. It houses the dead in a separate realm where they exercise authority over the living. Monumental architecture founds the authority of law, and the entire realm inhabited by the living, by relegating the dead to a separate sphere where they assume the position of ancestral lawgivers. Architecture can separate the living from the dead and anchor the rule of law by virtue of its claims to perpetuity and aesthetic form.
Abstract In a fragment on Mozart, Adorno suggested that under the old regime the humanity and sov... more Abstract In a fragment on Mozart, Adorno suggested that under the old regime the humanity and sovereignty of the aristocracy were bound up with aristocratic libertinism. In Mozart’s time, Adorno noted, the bourgeoisie acquired sovereignty and humanity through the imitation of aristocratic libertinism. The view of sexuality as a source of humanity and freedom is implicit in Mozart’s works themselves, particularly in the operas written in collaboration with Da Ponte. However, Mozart was a libertine in a very mild and qualified sense. For him, humanity does not consist in the quest for pleasure but in the permanent confrontation with the contradictory claims of the enduring and the ephemeral, the inward and the outward. Humanity and freedom depend on enduring relations much as they are fostered by the pursuit of pleasure. Both poles of human desire seem to enhance individual autonomy vis-à-vis the social body. This essay sketches a view of the individuating and humanizing power of sexuality which finds an illustration in the radiant individuality of Mozart’s characters.
International Journal of Law, Policy and The Family, Aug 1, 2004
Wherever the sacred appears it claims dispensation from the law. The exemption of domestic relati... more Wherever the sacred appears it claims dispensation from the law. The exemption of domestic relations from legal regulation has often been associated by the courts with the sanctity of the family. Domestic sacredness can be construed in light of two alternative models of the family. According to the first model, the family constitutes a communal body: a sacred, formless fusion of individuals, a texture of interaction that would be impaired and violated by legal mediation. According to the second model, the family constitutes a quasi-sovereign corporate body: a thoroughly legal structure in which each individual organ plays a determined role, dictated by the family's own sacred, ancestral law. Both the corporate and communal models call for a certain degree of exemption of domestic relations from state regulation on account of their sanctity. The article revisits and develops the classical anthropological theory of the family as corporation-the theory of Maine, Maitland, Fortes and Kantorowicz.
Nietzsche's account of the clergy, passionate and acrimonious, densely ramifying through the diff... more Nietzsche's account of the clergy, passionate and acrimonious, densely ramifying through the different layers of his oeuvre, ever shifting in context and angle, remains the quintessential reference for any modern theory of the clerical. Its relative neglect by Nietzsche scholars and social thinkers, with the exception of Weber, is curious. Tracing the constitution of civilization and the social order to a clerical distortion of the powers of life, Nietzsche intuited the decisive, though convoluted and often covert, relationship between the clergy and power, the contrast between the clerical mode of being and productive lifeassertion and the clerical embodiment of Truth and Law. Following these threads, I will try to characterize the place of the clerical function in social structure, its scope and components, and the division of labor between temporal and clerical authorities. The clerical body will be defined in relation to other sacred bodies: immortal ones-the communal body and the corporate body-and mortal bodies such as the divine king and, at the other end of the social order, the popular saint. Embodying the law, the priest and the judge are more successfully integrated into social structure than the often anarchical divine king and popular saint, though less so than ordinary mortals. As we shall see, it is by projecting much of its sacredness onto the renouncer, the monk, that the clerical body can occupy an office in social structure and assume human traits to a certain degree. While the following account of the clerical body illuminates the nature of judicial power, anthropological interpretations of executive and legislative powers will be proposed en route. 1 For a more elaborate discussion of structure and communitas, see L. Barshack, "The Subject of Ideals" 4(1) Cultural Values 2000, 77-100. The present exposition does not follow Turner's version of the distinction. 2 Structure and communitas. Victor Turner's classical distinction between social structure and communitas provides a useful starting point for an exposition of the clerical function. The clergy counts among the building blocks of social structure while remaining in itself in a condition of permanent sacred communitas. The clergy exemplifies institutionalized, normative forms of the Sacred that can be found at the heart of social structure, allowing secular spheres of life to evolve around them and thereby making structure possible. A comprehensive account of social structure and communitas is not necessary in order to consider the clerical function. A few of their contrasting features provide sufficient background to our discussion. 1 Structure and communitas are two opposite, dialectically interrelated, modes of interaction. Social structures are marked by a high degree of interpersonal separation. Interaction within social structures takes place between firmly individuated members and is mediated by their concrete, differentiated, normative social roles. Structures embed their members in a network of normative categories and boundaries through which individual identities are defined. These categories and boundaries comprise social strata, different spheres of life (e.g., family-civil society-state), classificatory kinship categories, a clear distinction between structure's inside and outside and a distinction between transcendence and immanence, the Sacred and the human. Structures are articulate, divided. Clash of interests, institutionalized competition over economic and political power, struggle over hege mony, oscillation between mutual recognition and self-assertion-these are inherent to social structure, whose greatest enemy is uniformity, and maintain a high level of individual autonomy within structure. The categories that divide and subdivide structure and institute interpersonal separation are juridical. The medium of structural separation is invariably the law. The law enjoins individual autonomy through harsh standards of responsibility and the recognition of individual rights. More gene rally, structure's juridical categories entrench individuation by defining individual identity-components such as name, gender, kin and status. The juridical distinction between private and public spheres of interaction is another condition for individual autonomy. By virtue of occupying positions in several spheres simultaneo usly,
The article attempts to contribute to the project of a political, or constitutional, theology con... more The article attempts to contribute to the project of a political, or constitutional, theology conceived by Carl Schmitt, while criticizing Schmitt's own accounts of sovereignty and constituent power. It is argued that Schmitt consistently advocated an immanent view of constituent power, namely, a view of constituent power as permanently present within and exercised by the community. The article proposes socio-theoretical, historical and normative arguments against immanent models of sovereignty, which are found to be inconsistent with individual autonomy and rights. An alternative model according to which constituent power vests in the absent, corporate body of the group is developed. Constitutional moments such as declarations of independence, revolutions, constitutional reforms, elections, impeachments, general strikes, amnesties, referenda and states of emergency are analyzed and construed as episodes of incarnation of an otherwise absent authority. The article ends with a critical assessment of Ackerman's and Negri's constitutional theories.
Icon-international Journal of Constitutional Law, Oct 1, 2009
The idea that sovereignty can be characterized in terms of the opposition between immanence and t... more The idea that sovereignty can be characterized in terms of the opposition between immanence and transcendence has gained increasing currency in constitutional theory. Roughly characterized, immanent sovereignty belongs to the living-to a Hobbesian monarch, for example, or to a group of individuals-while transcendent sovereignty belongs, at least partly, to the dead. The essay puts forward one argument in support of transcendent conceptions of sovereignty, namely, that only such conceptions can account for the temporal organization of social life. The relegation of sovereignty to ancestors and offspring and the distinction between constitutional moments and constitutional routine open up society to the temporal horizons of past and future. By affirming temporality, theories of sovereignty as transcending social and legal systems affirm the burdens of human, temporal existence. The sovereign power over life and death, like other attributes of sovereignty, is relegated by such theories to ancestral authority in order to safeguard life. The proposed account of sovereignty and time is contrasted with the theories of Arendt, Marcuse, Negri, and Maurice Bloch.
Departing from Durkheim's assertion of the primacy of public time, I argue that time is manufactu... more Departing from Durkheim's assertion of the primacy of public time, I argue that time is manufactured through the legal organization of society in the form of a corporate body. As a corporation, society enjoys fictive immortality, and it is this legal fiction that allows the flow of historical time. The institution of time, and of the corporate structure in general, is made possible through the political triumph over communal aspirations for timelessness, oneness and death: aspirations for an eternal present, to which I refer as the communal body. The passage from a founding, pre-historical experience of timelessness into historical time is accomplished through the construction of a perpetual corporate body in place of a communal body that lacks a temporal dimension. I will argue that the establishment of historical time and of the corporate organization of society necessitates the normative regulation of sexuality. Thus, the relaxation of the traditional structure of historical time and of sexual morality in contemporary society are closely intertwined. I. TIME, SEXUALITY AND SOCIAL STRUCTURE: INTRODUCING THE THEORETICAL PERSPECTIVE In the opening shot of Fellini's Satyricon, a hesitant, embarrassed camera reveals a wall covered in lewd graffiti of Roman times. The camera silently
Sacred and Secular in Medieval and Early Modern Cultures, 2006
The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements ... more The Gregorian Reform was the culmination of one of the most thorough and impassioned engagements of Western society with the delineation of the sacred and the secular. The reform was propelled by a group of churchmen who strove to entrench the separation between the sacred and the secular spheres—between ecclesiastical and lay society—and give the sacred realm a solid institutional structure. However, the reform spurred processes of institutionalization not only within the Church but generally in lay society as well. It was followed by a large-scale development of temporal legal and administrative institutions. Lawyers, social theorists, and historians often refer to the Gregorian Reform as a crucial phase in the history, or rather prehistory, of the state. By virtue of its historical consequences, the reform is clearly suggestive of the broad social implications of different lines of demarcation between the sacred and the secular. The present essay is not written by a historian; its origin lies rather in an attempt by a legal and social theorist to comprehend, through various historical examples, alternative social strategies of deploying the sacred. The Gregorian Reform is adduced as a tentative illustration of general claims concerning the demarcation of the sacred and secular spheres, an illustration whose complexity incessantly opens up novel theoretical possibilities, almost to the point of defying the theoretical effort itself.
The Canadian Journal of Law and Jurisprudence, Jan 30, 2023
The essay proposes that children should not participate in custody proceedings because they lack ... more The essay proposes that children should not participate in custody proceedings because they lack a place in the public world, a concept which was developed by Arendt and which I elaborate on the basis of her writings. Arendt's concepts of place in the world and of childhood are correlated, polar ethical concepts. 'Place in the world' as described by Arendt combines commitment to worldbuilding as a collaborative enterprise, relations of mutual-recognition among equal co-builders of the public world, an inviolable place in public and private realms, and self-disclosure through the staging of public appearances. We should recognize children as rightful participants in divorce proceedings when we are ready to treat them as occupants of place in the world, split between public and private realms and corresponding public and private voices. Recent practices of children's participation undermine the intimate realm of childhood as well as the public world.
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