Serdar Tekin, Between Modesty and Ambition: Remarks on The Concept of Liberal Democratic Law
Alain Supiot, Homo Juridicus, (London/New York: Verso, 2007), p. 32.
Ricardo Spindola Diniz, “Rational Necessities: On the Silence of Liberal Democratic Theory in front of the Unreassonable Other,” this volume.
Johan van der Walt, The Concept of Liberal Democratic Law, (Abingdon/New York: Routledge, 2020), p. 11.
Johan van der Walt, Horizontal Effect and the Question of Sovereignty, (Berlin/Boston, Walter de Gruyter, 2014), p. 189.
Spindola Diniz, this volume.
John Rawls, Political Liberalism, (New York: Columbia University Press, 1995), p. 197
Spindola Diniz, this volume.
Johan van der Walt, “Rawls and Derrida on the Historicity of Constitutional Democracy and International Justice,” Constellations, 2009, 16 (1), p. 23 - 43, 2009, p. 30, 40, note 16.
Consider the narrative that unfolds in Ayten Gündoğdu, Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants, (New York: Oxford University Press, 2015).
Professor Christodoulidis sometimes switches to a first-name mode of address in his comments on CLDL. That is of course in keeping with our long friendship that, I wish to add, has over twenty years become a very definite source of inspiration and learning without which my life and scholarship would have been considerably poorer. I shall nevertheless retain the formal mode of address (only taking the liberty to omit his professorial title from now on) until close to the end of this response to his comments for the sake of sustaining the same form and tone in my response to all my interlocutors in this exchange. When I finally change the mode of address towards the end of my response to his comments, the depth of my indebtedness to his friendship should have become abundantly clear.
Emilios Christodoulidis, “Kosmos, Nomos, Physis and ‘the Concept of Liberal Democratic Law,” in this volume.
The English transcription of χώρα should be chôra. I thank Christodoulidis for pointing this out.
See Davison, “Protagoras, Democritus, and Anaxagoras,” The Classical Quarterly, 1953, 3 (1), pp. 43 - 53, at 37.
It is interesting to note that Foucault considered “the sophist […] the little representative, the continuation, and the historical end … of the figure of the tyrant” of the sixth and seventh centuries. See Foucault, Essential works 1954 - 1984, Penguin Books 1994, p. 31.
See Ibid: “In the seventh and sixth centuries, the tyrant was the man of power and knowledge, the one who ruled both by the power he exercised and by the knowledge he possessed. [The tyrant] was the great historical personage that actually existed, though he had been absorbed into a legendary context - the famous Assyrian king. … What occurred … at the origin of the Greek age of the fifth century, at the origin of our civilization, was the dismantling of that great unity of a political power that was at the same time, a knowledge - the dismantling of that unity of a magico-religious power which existed in the great Assyrian empires.”
I rely mostly on Böckenförde, Geshichte der Recths- und Staatsphilosophie (Tübingen, Mohr Siebeck, 2002) pp. 26 - 38, for the points that I am making here, and my understanding of this history is certainly not steeped in extensive reading. And the specific point about social realism is more mine than Böckenförde’s. I nevertheless consider it an important point that should inform one’s understanding of the ancient world as much as it informs one’s understanding of modernity and our own age.
See Thanos Zartaloudis, The Birth of Nomos (Edinburgh: Edinburgh University Press, 2019).
I will presently point out that the tightrope metaphor is misleading because it suggests a “passage” that I did not want to suggest. One can perhaps avoid the misleading aspect of the metaphor by referring to a “never-ending” tightrope, thus invoking a mode of existence defined by an interminable traversal.
I had a weaker example here. I am indebted to Christodoulidis for this one.
See Christodoulidis, “The Objection that Cannot Be Heard: Communication and Legitimacy in the Courtroom,” in Duff, A., et al (eds.), The Trial on Trial Volume 1: Truth and Due Process, (Oxford: Hart, 2004) pp. 179-202.
Heinrich Böll “Will Ulrike Gnade oder freies Geleit?,” Der Spiegel 3/1972. See https://www.spiegel.de/politik/will-ulrike-gnade-oder-freies-geleit-a-f5d05401-0002-0001-0000-000043019376?context=issue
See Christodoulidis, “Social Rights Constitutionalism: An antagonistic Endorsement” Journal of Law and Society, 2017, 44 (1), p. 145, referring to Maurice Glasman.
Nothing justifies using this modest epistemology as a “liberal democratic” excuse. It should, instead, be considered the liberal democratic imperative always “to discern in the situation the antinomy that might acquire hermeneutic traction, be signified as injustice, and acted on as such, as Christodoulidis puts it (see ibid). And he continues: “It is here that the constitutional contradictory iteration of social rights constitutionalism against market thinking, and the former’s unwavering insistence on solidarity, may provide the leverage.”
I will address Professor Michelman in formal academic style and terms until close to the end of my response, only taking the liberty of omitting his professorial title from now on. As already mentioned in my response to Prof. Christodoulidis, I decided to do this in order to keep the style and tone of my responses to all five my interlocutors in this exchange relatively similar. I of course feel a strong inclination to respond in kind to the endearing informality of Professor Michelman’s address, since I have exactly the same reasons that he has for doing so. The twenty-five years of friendship that Professor Michelman mentions in his footnote 2 also constitute the background and context of this response to him, with one not so small difference. When we met more than twenty-five years ago, Professor Michelman was already well recognized across the world for ground-breaking scholarship in constitutional and general legal theory, while I was writing my PhD thesis. That necessarily meant that in the “sometimes quite intense intellectual exchange” (mentioned in his footnote 2) that was to follow quite frequently in the twenty-five years to come, I not only benefited from a fellow scholar and friend, but also from an experienced and most generous mentor. For his friendship, but also for his mentorship, I will never be able to thank him enough. His profound influence on the thoughts developed in CLDL cannot be overstated.
See Van der Walt, “The Gift of Time and the Hour of Sacrifice: A Philosophical-Anthropological Analysis of the Deep Difference between Political Liberal and Populist Politics,” in Brian W. Nail and Jeffrey A. Ellsworth (eds), Law’s Sacrifice, Approaching the Problem of Sacrifice in Law, Literature, and Philosophy, (New York, Abingdon: Routledge, 2019), pp. 113 - 149.
See Michelman, “Civility to Graciousness: Van der Walt and Rawls”, in this volume.
Michelman “Civility and Graciousness,”.
Michelman “Civility and Graciousness,”, pp. 4 - 5.
Political theorists often use the term “utopia” rather loosely and Rawls also appeared to have done so in The Law of Peoples. As regards the importance of a more rigorous use of the concept of “utopia,” and a proper distinction between utopia and eutopia
see Van der Walt “Law, Utopia, Event. A Constellation of Two Trajectories” in A. Sarat et al (eds), Law and the Utopian Imagination (Stanford, Stanford University Press, 2014), pp. 60 - 101
Van der Walt, The Literary Exception and the Rule of Law (forthcoming Routledge 2022), chapters 2 & 7.
See Michelman’s description of Rawls’s position in “Civility to Graciousness” pp. 11 - 12 and Rawls Political Liberalism New York, Columbia University Press, 1996, 253: “Certain reasonable comprehensive views fail to do this in some cases but we must hope that none that endure overtime in a well-ordered society is likely to fail in all or even in many cases.” This statement appears to marginalize quite drastically the “central place of the duty of civility as an ideal of democracy” that Rawls emphasizes in the very next sentence, referring to the § 2 of the chapter on “The Idea of Public Reason.” It suggests prevalence of adequate conformities most of the time, thus marginalizing the need for a “gap of concession that this reasonability cannot cover,” as Michelman puts it with precision (at 12). The word “hope” in the first line of the quote does bring some ambivalence into the statement, but I do not think the message here is that one must hope for something that generally does not prevail. The purport of the statement is that one must (and can) hope that that which generally prevails in a well-ordered society will continue to prevail.
See Hans Kelsen, Reine Rechtslehre, 2nd edition, (Tübingen, Mohr Siebeck, 1960, Studienausgabe of 2017), pp. 472 - 490. Kelsen’s understanding of legal interpretation found firm support in the work of Michel Troper in France in recent years. See Troper, La théorie du droit, le Droit, l’État, (Paris: PUF, 2001), pp. 173 - 193; Troper “Une théorie réaliste de l’interprétation” in Olivier Jouanjan (ed) Dossier Théorie Réalistes de droit constitutionnel, Dalloz, Paris, 2000, pp. 51 - 64.
This transposition has a clear connection with the “de-legitimation” argument with which I responded to Michelman in an earlier article, but it also brings about a much-needed simplification and refinement of that argument. See Van der Walt “Delegitimation by Constitution? - Liberal Democratic Experimentalism and the Question of Socio-economic Rights,” Critical Quarterly for Legislation and Law, 98 (3) 2015, 303 - 333.
See note 16 above.
Michelman, Brennan and Democracy, (Princeton, Princeton University Press, 1999), pp. 71 - 89.
Kelsen, Reine Rechtslehre, 1st edition, (Aalen: Scientia Verlag, 1934, second print of 1994), pp. 12 - 18; 2nd edition (fn. 37 above), pp. 137, 595, 609.
Frank Michelman, “Constitutional Legitimation for Political Acts,” The Modern Law Review 2003, 66 (1), pp. 1 - 15.
Professor Van Roermund is also an old friend. As in the case of Professors Christodoulidis and Michelman, and for the same reasons, I will nevertheless continue to address him in formal scholarly terms, omitting only his professorial title. I will, however, extend a more personal note of thanks to him close to the end of my reply to his comments on CLDL.
Van Roermund, “The Case for Embodied Democratic Law-Making”, in this volume.
Maurice Merleau-Ponty, Phénoménologie de la perception, (Paris: Gallimard, 1945), p. 133
Van Roermund, “The Case for Embodied Democratic Law-Making” in this volume.
See Van Roermund, ibid.
Merleau-Ponty, Phénoménologie de la perception, p. 22.
Van der Walt “Law, Utopia, Event,” (fn. 35 above).
Rawls, Political Liberalism, (fn. 4 above) p. 242.
A fuller account can be found in Van der Walt “Law, Utopia, Event,” (fn. 35) above.
