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postgraduate thesis: The dialectic of the cave : self-determination, constitution and the phenomenology of deprivation

TitleThe dialectic of the cave : self-determination, constitution and the phenomenology of deprivation
Authors
Issue Date2016
PublisherThe University of Hong Kong (Pokfulam, Hong Kong)
Citation
Baka, A. E.. (2016). The dialectic of the cave : self-determination, constitution and the phenomenology of deprivation. (Thesis). University of Hong Kong, Pokfulam, Hong Kong SAR. Retrieved from http://dx.doi.org/10.5353/th_b5731083
AbstractThe thesis challenges the legal positivist exclusion of morality and essential meaning from international legal doctrine due to the formers’ alleged mysticism, and systematizes a method of dialectical reasoning that makes a broad use of logic and continental philosophy. It is an intellectual exercise that starts off from the narrow positivist examination of the relation between self-determination and constitutional law and gradually opens up to a broader logical and philosophical query about the essence of self-determination and legal rights. The thesis exposes various rationality and legitimation deficits in the mainstream treatment of the relation. This is because the doctrinal problem cannot be answered from the legal positivist perspective alone but one must necessarily appeal to rules of syllogistic logic and particularly Aristotelian induction and eidetic phenomenology in order to conceive what is that that connects the two normative sources. In terms of methodology, the thesis adopts the revelation process of the Socratic allegory of the Cave, which is a dialectic towards essential disclosure. False semantic presumptions such as the incorporation in legal theory of the Wittgensteinian premise that meaning is produced and asserted in social use are bracketed and suspended. The Wittgensteinian presumption has prompted among jurists the use of the concept of ‘social contract’ as syllogistic connector between self-determination and constitutional law (middle term). Social contract is unsound from the scope of logic for it is a political metaphor that induces in legal syllogisms the fallacy of the ambiguous middle. For the unraveling of a sound middle term the thesis employs Aristotelian induction, which consists of an insightful and an empirical facet. The insightful demonstrates that legal rights are dormant potentialities that can become actualities once an act or event, which acts as mobilizer, produces disturbance. The empirical combines a wide range of psychological and hermeneutic theories on collective identity, which it applies to five case-studies: the history of the Cherokee Nation, Nauru, Palestine, Cyprus and Kosovo. It takes note of two forms of collective disturbance: relative deprivation as the product of liberal comparisons and objective deprivation as the amalgam of actual removal, or separation, and loss. Between these two forms, only objective deprivation galvanizes psychological mechanisms that can traumatize collective identity. The thesis concludes that it is therefore an act of objective constitutional deprivation that affects the collective identity of peoples and ‘resurrects’ self-determination from the mode of potentiality to that of actuality. The reconstructed legal syllogism is a small fraction of the wider morality of corrective justice, which provides justifications for the moral demerit of deprivation and the moral necessity of rectification. The synergy between logical synthesis and corrective justice demonstrates that the rationalization of international legal reasoning cannot be effectuated without a theory on morality and ethics. To this effect, the thesis suggests a legal paradigm shift towards the incorporation in international law and legal reasoning of both syllogistic logic and Aristotelian ethics, which will enable international jurists to become intellectually conscious of the irrational and morally aware of the unjust.
DegreeDoctor of Philosophy
SubjectLaw - Methodology
Self-determination, National
Constitutional law
Dept/ProgramLaw
Persistent Identifierhttp://hdl.handle.net/10722/224665

 

DC FieldValueLanguage
dc.contributor.authorBaka, Anna Eirini-
dc.date.accessioned2016-04-11T23:15:22Z-
dc.date.available2016-04-11T23:15:22Z-
dc.date.issued2016-
dc.identifier.citationBaka, A. E.. (2016). The dialectic of the cave : self-determination, constitution and the phenomenology of deprivation. (Thesis). University of Hong Kong, Pokfulam, Hong Kong SAR. Retrieved from http://dx.doi.org/10.5353/th_b5731083-
dc.identifier.urihttp://hdl.handle.net/10722/224665-
dc.description.abstractThe thesis challenges the legal positivist exclusion of morality and essential meaning from international legal doctrine due to the formers’ alleged mysticism, and systematizes a method of dialectical reasoning that makes a broad use of logic and continental philosophy. It is an intellectual exercise that starts off from the narrow positivist examination of the relation between self-determination and constitutional law and gradually opens up to a broader logical and philosophical query about the essence of self-determination and legal rights. The thesis exposes various rationality and legitimation deficits in the mainstream treatment of the relation. This is because the doctrinal problem cannot be answered from the legal positivist perspective alone but one must necessarily appeal to rules of syllogistic logic and particularly Aristotelian induction and eidetic phenomenology in order to conceive what is that that connects the two normative sources. In terms of methodology, the thesis adopts the revelation process of the Socratic allegory of the Cave, which is a dialectic towards essential disclosure. False semantic presumptions such as the incorporation in legal theory of the Wittgensteinian premise that meaning is produced and asserted in social use are bracketed and suspended. The Wittgensteinian presumption has prompted among jurists the use of the concept of ‘social contract’ as syllogistic connector between self-determination and constitutional law (middle term). Social contract is unsound from the scope of logic for it is a political metaphor that induces in legal syllogisms the fallacy of the ambiguous middle. For the unraveling of a sound middle term the thesis employs Aristotelian induction, which consists of an insightful and an empirical facet. The insightful demonstrates that legal rights are dormant potentialities that can become actualities once an act or event, which acts as mobilizer, produces disturbance. The empirical combines a wide range of psychological and hermeneutic theories on collective identity, which it applies to five case-studies: the history of the Cherokee Nation, Nauru, Palestine, Cyprus and Kosovo. It takes note of two forms of collective disturbance: relative deprivation as the product of liberal comparisons and objective deprivation as the amalgam of actual removal, or separation, and loss. Between these two forms, only objective deprivation galvanizes psychological mechanisms that can traumatize collective identity. The thesis concludes that it is therefore an act of objective constitutional deprivation that affects the collective identity of peoples and ‘resurrects’ self-determination from the mode of potentiality to that of actuality. The reconstructed legal syllogism is a small fraction of the wider morality of corrective justice, which provides justifications for the moral demerit of deprivation and the moral necessity of rectification. The synergy between logical synthesis and corrective justice demonstrates that the rationalization of international legal reasoning cannot be effectuated without a theory on morality and ethics. To this effect, the thesis suggests a legal paradigm shift towards the incorporation in international law and legal reasoning of both syllogistic logic and Aristotelian ethics, which will enable international jurists to become intellectually conscious of the irrational and morally aware of the unjust.-
dc.languageeng-
dc.publisherThe University of Hong Kong (Pokfulam, Hong Kong)-
dc.relation.ispartofHKU Theses Online (HKUTO)-
dc.rightsCreative Commons: Attribution 3.0 Hong Kong License-
dc.rightsThe author retains all proprietary rights, (such as patent rights) and the right to use in future works.-
dc.subject.lcshLaw - Methodology-
dc.subject.lcshSelf-determination, National-
dc.subject.lcshConstitutional law-
dc.titleThe dialectic of the cave : self-determination, constitution and the phenomenology of deprivation-
dc.typePG_Thesis-
dc.identifier.hkulb5731083-
dc.description.thesisnameDoctor of Philosophy-
dc.description.thesislevelDoctoral-
dc.description.thesisdisciplineLaw-
dc.description.naturepublished_or_final_version-

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