Foucault’s Perhaps: Madness, Suffering and the Interruption of Legal Personality in Foucault, Supiot and Hegel

in Mailey, Richard; Sarat, Austin; Pavlich, George (Eds.) Interrupting the Legal Person (2022)

In his work Homo Juridicus, Alain Supiot considers the construction of legal personality by force and virtue of law as a precondition for human liberty. Michel Foucault views this same construction of ... [more ▼]

In his work Homo Juridicus, Alain Supiot considers the construction of legal personality by force and virtue of law as a precondition for human liberty. Michel Foucault views this same construction of legal personality – the construction of the subject through strategies of power, he calls it – as a ‘construction’ of liberty that is considerably less free than it is made out to be by the Enlightenment law reform projects proposed by Cesare Beccaria and other prominent eighteenth century law reformers. Foucault’s scepticism vis-á-vis Beccaria and others evidently also implies a critical stance vis-á-vis contemporary humanist understandings of law such as Supiot’s. This chapter will endeavour to explain what is at stake in the difference between these very different conceptions of legal personality by relating it to the problematics of subjectivity that came to the fore in the thinking of Hegel and the German Idealists. [less ▲]

LIBERAL DEMOCRACY AND THE EVENT OF EXISTENCE, SEEN FROM A NOT-SO-RICKETY BRIDGE BETWEEN RAWLS AND MERLEAU-PONTY REPLY TO MY CRITICS

in Etica e Politica (2021), 23(2), 521-576

Direito, Utopia, Evento: Uma constelação de duas trajetórias

in Revista Direito e Práxis (2020), 11(4), 2802-2848

This paper will scrutinize the relationship between law and utopian thinking and the different trajectories that they must maintain should they seek to sustain some significant relationship between them ... [more ▼]

This paper will scrutinize the relationship between law and utopian thinking and the different trajectories that they must maintain should they seek to sustain some significant relationship between them. It will proceed to do so as follows. After the discussion of the transformation of European thinking in Section II, Section III will explain what is meant by the notion of the primordial event from which law and utopian thinking emerge and commence with their divergent trajectories. Sections IV and V will look at the respective trajectories of utopian thinking, on the one hand, and legal thinking, on the other. Section VI thereafter explores the way in which the two trajectories of law and the utopian imagination can be considered to relate to one another. It does so by invoking the notion of a Stoic difference regarding the different trajectories of law and utopian thinking. Stoic difference concerns the way the different and divergent trajectories of law and the utopian imagination can be understood as a differential relationship that results from two different responses to significant events. The different trajectories of law and utopian thinking need not render them indifferent to one another. But the return of renewed wrist-locked continuity between legal and utopian discourses is no longer to be hoped for. The time for that kind of utopian thinking is over, at least in modern and postmodern societies that may wish to lay claim to the acrobatic act called liberal democracy. This act turns on the sustenance of an essential distance and difference between law and the utopian imagination. [less ▲]

The Concept of Liberal Democratic Law

Book published by Routledge (2019)

This book rereads seven pivotal 20th century jurisprudential and political philosophical positions represented in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, John Rawls, Rudolf Smend, Hans ... [more ▼]

This book rereads seven pivotal 20th century jurisprudential and political philosophical positions represented in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, John Rawls, Rudolf Smend, Hans Kelsen and Carl Schmitt from the perspective of a concept of liberal democracy that pivots on a stable distinction between the symbolic and real realms of politics envisaged by Claude Lefort. It also articulates this founding distinction of liberal democracy in terms of the instruction to stabilise the relation between potentiality and actuality that can be drawn from the work of Giorgio Agamben, and from Ernst-Wolfgang Böckenförde’s seminal dictum that liberal democracy lives from principles it cannot guarantee. The book assesses the seven jurisprudential and philosophical positions of Hart, Dworkin, Kennedy, Rawls, Smend, Kelsen and Schmitt with regard to their capacity to sustain Lefort’s and Agamben’s respective distinctions between the symbolic and the real, and between potentiality and actuality. It scrutinises the extent to which they heed the instruction that liberal democracy must refrain from realising its founding principles. For purpose of doing so, it also portrays these seven jurisprudential/philosophical endeavours as twentieth century responses to a long history of political theoretical and political institutional endeavours that commenced in fifth century Athens, marked the transition from the republican to imperial Rome, fuelled the conflicts between secular and clerical power during the Middle Ages, and persisted to burden the attempts of the French Revolutionaries to stabilize the unity of the “People” in the years after the revolution. [less ▲]

Law and Deconstruction

in Goldoni, Marco; Christodoulidis, Emilios; Dukes, Ruth (Eds.) Research Handbook on Critical Legal Theory (2019)

The explication of "deconstruction" put forward in this short essay seeks to recover the radicality of the idea of deconstruction that Jacques Derrida developed in his writings. It does so by uncoupling ... [more ▼]

The explication of "deconstruction" put forward in this short essay seeks to recover the radicality of the idea of deconstruction that Jacques Derrida developed in his writings. It does so by uncoupling “deconstruction” from the law and from any attempt to employ it in the service of better or "more just" law. Although Derrida was undoubtedly committed to any political or epistemological strategy that could lead to improvements of law that would render it "more just" from a by and large social democratic point of view, it would be a mistake to believe that he considered strategies of deconstruction employable or necessary for such purposes. Notwithstanding the fact that he sometimes produced phrases or passages that seem to call for an employment of deconstruction for purposes of making the law more just, he evidently considered the aim of deconstruction, more rigorously understood, an endeavour to precipitate an experience with “an outside” which dominant social and textual discourses programmatically expel from experience. Derrida insisted that it is impossible to know whether this “soliciting” of an experience with the “outside” would be beneficial or useful. The moment that benefit or utility enters any calculation, one can be sure that the “outside” that he contemplated with recourse to key concepts in his work such as “justice”, “event”, “gift” and “hospitality”, has already again disappeared from one’s scope of scrutiny. What legal theory gains from Derrida’s contemplation of deconstruction is therefore not a method with which one can endeavour to make the law more just, more hospitable, readier to take a chance with the event, more orientated to the gift, etc., but a profound and rigorous understanding of how the suppression of justice, hospitality, the event and the gift is constitutive of law. [less ▲]

When Time Breaks: The Hiatus of Refugee Status

E-print/Working paper (2018)

“In the first place, we don’t like to be called ‘refugees.’ We ourselves call one another ‘newcomers’ or ‘immigrants.’” Already here, in the first sentence of Arendt’s essay “We Refugees,” does the hiatus ... [more ▼]

“In the first place, we don’t like to be called ‘refugees.’ We ourselves call one another ‘newcomers’ or ‘immigrants.’” Already here, in the first sentence of Arendt’s essay “We Refugees,” does the hiatus of refugee status become manifest. A divide already opens up between different habits of reference. Refugees refer to themselves in one way, non-refugees refer to them in another, and so does the projected or desired possibility of one world in which both refugees and non-refugees might find accommodation, split into two very different realities. Consciousness of the split is of course solely that of the refugees, at first. Initially, the hiatus is theirs only. Others – non-refugees – remain soundly oblivious to this fundamental split until such time as it brutally breaks into their world too, for instance, when the corpse of a four-year old child washes up on a beach, and washes up on every doorstep in a succession of media waves. And then the hiatus is suddenly everywhere and no one remains exempted. As the last sentence of Arendt’s essay contends forcefully, the split begins with the refugee status of some, but it ends with the bigger split of a world that begins to falter and fall apart: “The comity of European peoples went to pieces when, and because, it allowed its weakest member to be excluded and persecuted.” The comity of European peoples show all signs of going to pieces again today. When the comity of peoples goes to pieces, it is not only common space that cracks up, but also common time, the common time that warrants common space according to Kant’s Schematismuslehre. It is ultimately this breaking of time – the hiatus of time – that Arendt thematises elsewhere with reference to “the desolate aimless wanderings of Israeli tribes in the wilderness and the dangers which befell Aeneas before he reached the Italian shore.” “[T]his hiatus,” she continues, obviously creeps into all time speculations which deviate from the currently accepted notion of time as a continuous flow.” (Arendt On Revolution, 205). This text is also a supplementary discussion of my reviews of two recent monographs on Arendt. See: RECENT ARENDT SCHOLARSHIP: Review of The Wandering Thought of Hannah Arendt by Hans Jörg Sigwart, Palgrave MacMillan, 2016, ISBN: 978-1-137-48214-3, 147 pages (abbreviated as WT below), and Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants by Ayten Gündoğdu, New York: Oxford University Press: 2015, 298 pages, forthcoming in Constellations. [less ▲]

Deconstruction

in Sellers, Mortimer; Kirste, Stephan (Eds.) Encyclopedia of the Philosophy of Law and Social Philosophy (2018)

Irresponsible Ordoliberalism and the Imperialistic Fantasy That We All Might Become Good Germans One Day

in New Perspectives: Interdisciplinary Journal of Central and East European Politics and International Relations (2017), 25(2), 145-182

What follows is a reply to the critical responses of Malte Dold and Tim Krieger, Josef Hien, Charlotte Heath-Kelly, Emmanuel Pierre Guittet, Filipe dos Reis and Ben Kamis to my 2016 New Perspectives ... [more ▼]

What follows is a reply to the critical responses of Malte Dold and Tim Krieger, Josef Hien, Charlotte Heath-Kelly, Emmanuel Pierre Guittet, Filipe dos Reis and Ben Kamis to my 2016 New Perspectives intervention ‘When One Religious Extremism Unmasks Another: Reflections on Europe’s States of Emergency as a Legacy of Ordo-liberal De-hermeneuticisation’ (hereafter ODH – for “Ordoliberal Dehermeneutisation”). My reply will be divided into two main parts. The first part will focus on what I will call ‘a disciplinary instruction not to think.’ The second will focus on what I will call ‘constructive invitations to think further.’ The first part focuses on Dold and Krieger’s arguments. The second focuses predominantly on those of the rest of the interlocutors listed above. What ultimately emerges out of this second section is a reflection on the need to consider both order and disorder as constitutive elements of human freedom, and to sustain the tension between them. Of concern, here, I argue, is a freedom that refuses to be subjected conclusively to any “order of liberty” that a liberal government in general and an ordoliberal government in particular may wish to establish. [less ▲]

The ombre spirituel of Statehood in the European Union: Reflections on Nikos Scandamis’ Essay L’Etat dans l'Union européenne: Passion d’un grand acteur

in European Politeia (2016), (1), 145-185

Nikos Scandamis’ essay L’Etat dans l'Union européenne: Passion d’un grand acteur suggests the EU has flayed the Westphalian Leviathan. It has laid its dark insides bare to relentless scrutiny. But perhaps ... [more ▼]

Nikos Scandamis’ essay L’Etat dans l'Union européenne: Passion d’un grand acteur suggests the EU has flayed the Westphalian Leviathan. It has laid its dark insides bare to relentless scrutiny. But perhaps it could only do so by appropriating these dark insides for itself. The ombre spirituel that Schmitt associated with sovereign statehood does not seem to have disappeared like the rest of nationalistic mists before the rising sun of European integration. It has simply shifted along with the pretentions of this rising sun. The market place has in broad daylight become the source of a new shadow. This response to Scandamis argues that the CJEU, the principal agent of EU integration since its decisions in Costa v ENEL and Van Gend & Loos, has simply taken over the many ombres spirituels of the Member States in the form of one cloudy jurisprudence that allows for little democratic transparency. True, the EU does not claim to be a sovereign state as yet and it is often said that its goal is also not to become one. In the meantime, however, it pursues its governmental goals in the manner of a sovereign state under the ombre spirituel offered by the obscure jurisprudence of its highest judiciary. [less ▲]

DELEGITIMATION BY CONSTITION? LIBERAL DEMOCRATIC EXPERIMENTALISM AND THE QUESTION OF SOCIO-ECONOMIC RIGHTS

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

This response to Frank Michelman’s exploration of a weak form of judicial review in the case of socioeconomic rights (See Michelman “Legitimacy, the Social Turn, and Constitutional Review: What Political ... [more ▼]

This response to Frank Michelman’s exploration of a weak form of judicial review in the case of socioeconomic rights (See Michelman “Legitimacy, the Social Turn, and Constitutional Review: What Political Liberalism Suggests,” CritQ 3/2015, 183-205) takes its cue from the Laval and Viking series of judgements passed by the Court of Justice of the European Union (CJEU) in 2007 and 2008. The essay describes these judgements as a veritable Lochnerisation of EU law. This Lochnerisation of EU law that became evident in CJEU’s Laval and Viking jurisprudence, continues the argument, casts serious doubts over the wisdom of allowing judiciaries to decide the fate of SER protections. This response to Michelman accordingly attaches much importance to his cautionary footnote regarding the expectations one might have from the judicialisation of SER protections in today’s “neoliberal climates” and basically accepts with resignation that it is not the task of judges to develop the utopian potential that constitutional rights may seem to promise. It argues in this regard for a negative version of the liberal political project that Michelman explores. Instead of a legitimation of SER with reference to substantive constitutional values (with its attendant risks of Lochnerisation), judiciaries should be constrained to de-legitimations (constitutional proscriptions) of actual parliamentary and executive actions that fall foul of constitutional norms with reference to criteria of self-evidence (in cases of gross non-compliance) or compelling empirical evidence presented in court (in cases of less evident non-compliance). These criteria of self-evidence and empirical cogency, continues the argument, used to be well represented in classical (three-prong) proportionality tests, but have fallen by the way side in the exuberant balancing procedures to which many judiciaries have fallen prey in the wake of the horizontal effect revolution of the 20th century. Laval and Viking, concludes the argument, are the results of this development. [less ▲]