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See detailBreaking Up the Unity of the World: Peter Fitzpatrick’s Conception of Responsive Law
van der Walt, Johan Willem Gous UL

in Law, Culture and the Humanities (2020)

This short article on Peter Fitzpatrick’s conception of “responsive law” analyzes the ambiguous temporality that Fitzpatrick discerned in modern law. On the one hand, law makes the claim of being fully ... [more ▼]

This short article on Peter Fitzpatrick’s conception of “responsive law” analyzes the ambiguous temporality that Fitzpatrick discerned in modern law. On the one hand, law makes the claim of being fully present and therefore already and completely contained in itself. This aspect of law reflects the law’s claim to “immanence,” that is, its claim of always being able to rely strictly on its own operational terms without having to take recourse to any consideration not already contained within itself. It is this aspect of law that renders the ideal of the “rule of law” feasible. On the other hand, the law’s claim to doing justice to every unique and therefore every new case also demands that it takes leave of that which is already settled within it. This aspect of law can be called its “imminence.” The imminence of the law concerns the reality that law always finds itself on the threshold of that which has not yet been said and must still be said. The article shows how Fitzpatrick relied on Freud’s concept of the totem to explain the “wondrous” unity of its immanence and imminence. [less ▲]

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See detailThe Romantic Allure of Old Europe: Pertinent Questions and Non-Responses
van der Walt, Johan Willem Gous UL

in Modern Law Review (2020), 83(5), 1086-1100

This is a review article of a collection of essays on Martin Loughlin's Foundations of Public Law published as M. Wilkinson and M. Dowdle, Questioning the Foundations of Public Law, Oxford, Hart ... [more ▼]

This is a review article of a collection of essays on Martin Loughlin's Foundations of Public Law published as M. Wilkinson and M. Dowdle, Questioning the Foundations of Public Law, Oxford, Hart Publishing, 2017. [less ▲]

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See detailDireito, Utopia, Evento: Uma constelação de duas trajetórias
van der Walt, Johan Willem Gous UL

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 ▲]

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See detailThe Gift of Time and the Hour of Sacrifice: A Philosophical-Anthropological Analysis of the Deep Difference between Political Liberal and Populist Politics
Van Der Walt, Johan Willem Gous UL

in Nail, Brian (Ed.) Law's Sacrifice: Approaching the Problem of Sacrifice in Law, Literature and Philosophy (2019)

George Orwell wrote a review of Adolf Hitler’s Mein Kampf in which he made the following observation: “[H]uman beings don’t only want comfort, safety, short working hours, hygiene, birth control and, in ... [more ▼]

George Orwell wrote a review of Adolf Hitler’s Mein Kampf in which he made the following observation: “[H]uman beings don’t only want comfort, safety, short working hours, hygiene, birth control and, in general, common sense; they also, at least intermittently, want struggle and self-sacrifice, not to mention drums, flags and loyalty-parades.” Philip Stephens brought this observation of Orwell’s to my attention in a Financial Times article that sought to make sense of the rise of populist politics in Europe and the United States in our time; a development that came startlingly to a head with the British referendum that triggered Brexit and the election of Donald Trump as President of the United States in October 2016. My paper presented at the January Workshop in Luxembourg engaged with this passage from Orwell’s discussion of Hitler’s Mein Kampf and Stephens’ reading of it in the Financial Times. It described or explained the difference between liberal and populist/fascist responses to times of crisis in terms of the difference between the liberal economy of the gift and the illiberal economy of sacrifice, and scrutinised the possibility of a stable distinction between these two economies with reference to especially Marcel Mauss and Jacques Derrida. [less ▲]

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See detailThe Concept of Liberal Democratic Law
Van Der Walt, Johan Willem Gous UL

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 ▲]

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See detailLaw and Deconstruction
Van Der Walt, Johan Willem Gous UL

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 ▲]

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See detailWhen Time Breaks: The Hiatus of Refugee Status
Van Der Walt, Johan Willem Gous UL

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 ▲]

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See detailCritical Legal Studies Europe
Van Der Walt, Johan Willem Gous UL; Christodoulidis, Emilios

in Dubber, Markus; Tomlins, Christopher (Eds.) The Oxford Handbook of Legal History (Oxford Handbooks) (2018)

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See detailDeconstruction
Van Der Walt, Johan Willem Gous UL

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

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See detailThe Origins of Legal Obligations. Towards a fundamental phenomenology of moral and legal obligation
Van Der Walt, Johan Willem Gous UL

in Matthews, Daniel; Veitch, Scott (Eds.) Law, Obligation, Community (2018)

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See detailIrresponsible Ordoliberalism and the Imperialistic Fantasy That We All Might Become Good Germans One Day
Van Der Walt, Johan Willem Gous UL

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 ▲]

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See detailAbdications of Sovereignty in State Action and Horizontal Effect Jurisprudence
Van Der Walt, Johan Willem Gous UL

in Kahana, Tsvi; Scolnicov, Anat (Eds.) Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations (2016)

This article argues that different regimes of horizontal effect adjudication invariably turn on different attitudes to state sovereignty. Aversions to horizontal effect are usually a reflection of an ... [more ▼]

This article argues that different regimes of horizontal effect adjudication invariably turn on different attitudes to state sovereignty. Aversions to horizontal effect are usually a reflection of an apprehension regarding state sovereignty (understood as a threat to liberty) whereas endorsements of horizonal effect usually reflect a positive regard for state sovereingty (as a condition for liberty). [less ▲]

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See detailThe ombre spirituel of Statehood in the European Union: Reflections on Nikos Scandamis’ Essay L’Etat dans l'Union européenne: Passion d’un grand acteur
Van Der Walt, Johan Willem Gous UL

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 ▲]

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See detailWhen One Religious Extremism Unmasks Another: Reflections on Europe’s States of Emergency as a Legacy of Ordo-Liberal De-hermeneuticisation
Van Der Walt, Johan Willem Gous UL

in New Perspectives: Interdisciplinary Journal of Central and East European Politics and International Relations (2016), 24(1), 79-101

This intervention explores the extent to which the technocratic de-hermeneutisation of European political economical thinking, of which the ordoliberal economic principles of the Freiburg school in ... [more ▼]

This intervention explores the extent to which the technocratic de-hermeneutisation of European political economical thinking, of which the ordoliberal economic principles of the Freiburg school in Economics are a key ingredient - may be contributing to the social conditions under which religious radicalisation typically takes place, or may at least be failing to provide significant responses on the basis of which religious radicalisation can be countered. [less ▲]

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See detailDELEGITIMATION BY CONSTITION? LIBERAL DEMOCRATIC EXPERIMENTALISM AND THE QUESTION OF SOCIO-ECONOMIC RIGHTS
Van Der Walt, Johan Willem Gous UL

in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft = Critical Quarterly for Legislation and Law = Revue Critique Trimestrielle de Jurisprudence et de Législation (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 ▲]

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See detailCRITICAL QUARTERLY ON LEGISLATION AND LAW 3/2015, SPECIAL ISSUE ON FRANK MICHELMAN, JUDICIAL REVIEW AND SOCIOECONOMIC RIGHTS: EDITORIAL INTRODUCTION
Van Der Walt, Johan Willem Gous UL

in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft = Critical Quarterly for Legislation and Law = Revue Critique Trimestrielle de Jurisprudence et de Législation (2015), 2015/3

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See detailThe Literary Exception: Reflections on Agamben’s “Liberal Democratic” Political Theology and the Religious Destabilisation of the Political in Our Time
Van Der Walt, Johan Willem Gous UL

in New Perspectives: Interdisciplinary Journal of Central & East European Politics and International Relations (2015), 23(1), 15-44

The concern with stabilising the political and avoiding the excessive deployments of coercive force by totalitarian political imaginations is usually associated with political liberalismand liberal ... [more ▼]

The concern with stabilising the political and avoiding the excessive deployments of coercive force by totalitarian political imaginations is usually associated with political liberalismand liberal political theory. It is rarely associated with political theology and conceptions of sovereignty that are based on political theology. The unique contribution of the Italian philosopher Giorgio Agamben to contemporary political theory is the opportunity it offers to contemplate the stabilisation of the political in terms of political theology and not in terms of typical rule of law arguments that one would associate with political liberalism. The aim of this article is to trace and question some of the essential thoughts on the basis of which Agamben puts forward the idea of the called existence of the Christian community. It does so in order to put forward, in response, an argument for a literary community that has much in common with Agamben’s conception of the Christian ekklesia, but ultimately also differs fromit in certain important respects. The argument for a literary community that is developed ultimately has more in common with Nancy’s conception of an “inoperative community”. The article also offers a close scrutiny of Agamben’s engagement with the work of Carl Schmitt. This scrutiny of Agamben’s engagement with Schmitt is crucial for the argument that the article forwards, considering the way in which Schmitt’s work is with good reason historically linked to exactly the kind of political theology that destabilises rather than stabilises the political. [less ▲]

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See detailWhen Time Gives. Reflections on Two Rivonia Renegades
Van Der Walt, Johan Willem Gous UL

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

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See detailTimeo Danais dona ferre and the Constitution that Europeans may one day have given themselves
Van Der Walt, Johan Willem Gous UL

in Van Der Walt, Johan Willem Gous (Ed.) Constitutional Sovereignty and Social Solidarity in Europe (2015)

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