The indigenous subject in law: at the intersection of the Cartesian subjectivity and the rule

• Authors: Jakub Babuśka

Abstracts

EN

This paper addresses a key question raised by the tension between the subject of normative law and indigenous, collective systems. Within the framework of the Lacanian psychoanalysis, the author explores Cartesian specificity of a legal subject. He argues that structural nature of that legal construct not only affects an individual ontologically but also reorients the dialectics inherent in legal dogmatism. Following Baudrillardian thought, it is assumed in the paper that the total opposition to normative law is not the absence of law but rather the Rule. The Rule is a concept engaging the individual into dialectics of a game and at the same time ruling out any sense of inherently legal transgression. However, the context of indigenous systems based on the Rule, besides amplifying an alienating effect of the individualization of responsibility, also explains the incongruity of normative law in some cultural contexts. The failure to integrate indigenous, traditional and local legal systems into the post-colonial normative discourse is just one of many illustrations of this. As an exemplary case, the author evokes injustice (in the Lyotardian sense) resulting from litigation simultaneously based both on Brahmanical marriage rules and the Hindu Code Bill. In its final part, the text summarises the impasses of the legal dialogue with indigenous rules and the ways of emancipation for an individual imbedded in the Cartesian subjectivity, which are inspired by transcultural encounters.

Keywords

EN

indigenous law; Rule; différend; Lacanian psychoanalysis; discourse; body

• Publisher: Wydawnictwa Uniwersytetu Warszawskiego
• Journal: Studia Iuridica
• Year: 2023
• Volume: 96
• Pages: 7-20

Dates

published

2023

Contributors

author

Jakub Babuśka

Identifiers

DOI

10.31338/2544-3135.si.2023-96.1

Biblioteka Nauki

48899394