CRITICAL QUARTERLY ON LEGISLATION AND LAW 3/2015, SPECIAL ISSUE ON FRANK MICHELMAN, JUDICIAL REVIEW AND SOCIOECONOMIC RIGHTS: EDITORIAL INTRODUCTION

in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft (2015), 2015/3

When Time Gives. Reflections on Two Rivonia Renegades

in Allo, Awol (Ed.) The Court Room as a Space of Resistance. Reflections on the Legacy of the Rivonia Trial (2015)

Constitutional Sovereignty and Social Solidarity in Europe

Book published by Nomos/Bloomsbury (2015)

The essays in this book respond in different ways to questions regarding sovereignty, constitutionality and social solidarity in the European Union. Some of the essays perceive a threefold deficit in this ... [more ▼]

The essays in this book respond in different ways to questions regarding sovereignty, constitutionality and social solidarity in the European Union. Some of the essays perceive a threefold deficit in this regard – a constitutionality, sovereignty and solidarity deficit. The common view that can be distilled from them relates to a perception that the people and peoples of the European Union have drifted into a quagmire of political paralysis within which essential features of the paralysis – lack of constitutionality, lack of sovereignty and lack of social solidarity – feed off one another. Lack of solidarity, not only between European citizens, but also between Member States of the European Union, derails all possibilities of common political initiative, fervour and purpose. And absence of such common initiative, fervour and purpose quite evidently explains the faltering of Europe’s constitutional project and the reduction of this project to that which Jürgen Habermas has come to call Europe’s “mindless incrementalism.” Unable to arrive at the constitutionality that would allow for the emergence of European sovereignty, the faltering constitutional process has only managed to dismantle essential elements of sovereignty and social solidarity within the Member States of the European Union. This has led to the double edged lack of sovereignty (lack of sovereignty at EU level and lack of sovereignty in the Member States) that has lead Dieter Grimm to observe (also in his contribution to this book) that there may well be no true sovereign left in Europe today. Against this background, it is perhaps no surprise that a non-sovereign body would step in to take over the responsibilities of sovereign government, and do so on the basis of the only principle that appears prima facie legitimate under circumstances of political paralysis, namely, the ordo-liberal principle of reducing politics to guardianship of free competition between individuals that replaces constitutional law with competition law; hence the crucial role that the market-liberalisation jurisprudence of the European Court of Justice have come to play in the non-sovereign or surreptiously-sovereign way Europe is governed today. To be sure, not all the essays in this book share this grim view. A number of them discern an emergence of new forms of democracy or even new forms of political legitimacy in the complex structures of multi-level governance in the European Union. Between them, however, the spectrum of essays that make up this book undoubtedly provides the reader with a comprehensive study of the key issues of European politics and law today. [less ▲]

LAW, UTOPIA, EVENT A Constellation of Two Trajectories

in Sarat, Austin; Douglas, Lawrence; Umphrey, Martha (Eds.) Law and the Utopian Imagination (2014)

This paper concerns the fundamental transformation of the utopian imagination in the course of the twentieth century. This transformation became abundantly evident in certain prominent trends in twentieth ... [more ▼]

This paper concerns the fundamental transformation of the utopian imagination in the course of the twentieth century. This transformation became abundantly evident in certain prominent trends in twentieth century philosophical thinking. Philosophy’s role in this transformation was probably as performative as it was constative. Philosophy or at least some philosophy reflected or registered this transformation clearly but in doing so also contributed to it. The transformation of the utopian imagination was, however, not just the work of philosophers. It was also reflected in and effected by artistic and literary intuitions. Paul Celan’s poetry was surely an eminent case in point. The trend of philosophical, artistic and literary thinking at issue here can be described, very broadly, in terms of a resistance to the way language and the exigencies of clear communication reduce the utterly incomparable uniqueness of singular entities or persons or events to repeatable and generic instances of fixed identity and stable meaning. At issue in this trend is what one might call, following Theodor Adorno, a negative-linguistic quest for the non-identity of singular existence that transcends or exceeds the identity-forging thrust of conceptual language. This negative-linguistic quest is utopian because of the way it contemplates the possibility of the impossible, as Jacques Derrida put it when he received the Adorno prize in 2001. It contemplates completely non-instrumental relations between individuals that would not subject anyone to the systematic instrumentalisation at work in all generalising conceptual schemes. What is the transformation of the utopian imagination in the philosophical, artistic and literary movements at stake here? What was the utopian imagination like before twentieth century philosophy and poetry and art changed it? The utopian imagination began with Plato and endured for many centuries – in the thoughts of thinkers such as St. Francis, More, Rousseau and Marx – as a very topical and typical denunciation of private property. It typically viewed private property as the source of all social injustice and all forms of societal alienation. The utopian imagination thus became a very predictable and generic socialist resistance against the institution of private property before it turned, already to some extent in the work of Marx and then very evidently in the work of Adorno and other neo-Marxists, into a much more radical questioning of linguistic or conceptual propriety as such. This radical questioning of linguistic propriety – what Celan describes as the wish of language itself to turn away from its regular quest for meaning so as to reach back into the absurd – was, however, surely not just a Marxist or neo-Marxist development. It reflected a broader movement in twentieth century thinking that was also clearly evident in the strands of twentieth century philosophical thinking that became known as phenomenology, post-structuralism and deconstruction. [less ▲]

Totemic Immimanence

in Motha, Stewart (Ed.) Reading Modern Law (2012)

The Murmur of Being and the Chatter of Law (review article)

in Social and Legal Studies (2011)

Rawls and Derrida on the historicity of constitutional democracy and international justice

in Constellations (2009), 16(1), 23-41