The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edition (original) (raw)
Related papers
Law as Politics: Four Relations
In a 2006 article, Duncan Kennedy identifies politics as the central dilemma of contemporary legal thought, but affirms that law is non-reducible to politics, which could be read as a partial retraction from the known coda “law is politics.” This article suggests an interpretation of his refusal to conflate law and politics not in terms of disavowal, or a way of distancing politics from law, but as an attempt to carve out a space from where to think of the relational aspect between law and politics. This becomes necessary due to a current phenomenon which Pierre Schlag calls “dedifferentiation,” where no distinction – and hence no relation – seems to be possible between law and other spheres of life. Opposing that conclusion, this article contends that engendering relations allows us to keep the terms connected in relative motion. The article then moves to describe four distinct modes of framing the relation between law and politics, which gives rise to very different disciplinary projects: law as politics, dating back to the legal realist movement; law as political science, which finds its current expression in empirical and quantitative research; law as political philosophy, generated by a renewed interest in “the political”; and law as political contingent, growing out of a similar interest but challenging the boundary-setting ambitions of philosophy. While the latter has not yet been adequately translated into law, I suggest as an alternative the work of Jacques Rancière, which declines to grant an aura of invincible ubiquity to any totalizing description, including neoliberalism’s attempt to present itself as a world system.
Legal Form, Ideology and the Political
Legal Form, Ideology and the Political, 2020
In this chapter, I aim at exploring the question of the ideology of the legal form with an eye to the concept of the political. For this purpose, I first define the concept of legal form and identify the juridical as a separate field from the political, underlining the prevalence of the latter over the former. In ideological terms, I consider that the juridical serves to reproduce and propagate two distinct ideologies – the currently hegemonic political ideology (the current ideology of the political) on the one hand, and the residual ideology of the juridical (the juridical ideology), which is in fact the ideology of the legal form as such, on the other hand. The juridical ideology combines both elements of an ideology of external legal form (legal form in general) with elements of ideology of the internal legal form (the way that a particular legal form is internally arranged, e.g. valuing coherence and systematisation, or rather fact- orientedness and predictability).
Political and Constitutional Imaginaries
Social Imaginaries: Critical Interventions in a Paradigm-in-the-Making, 2019
In current times, established or taken-for-granted notions of the political, most evidently so regarding representative democracy, the rule of law, and constitutionalism, are being put to an existential test. The longue durée of modern democracy – as deeply tied up with the nation-state, distinctive understandings of liberal and representative politics, and legal-constitutional arrangements - seems to have arrived at a turning point. This turning point calls for a profound analysis, which is able to identify fields of tensions and important shifts in meaning with regard to constitutional democracy as a political regime. It is suggested and elaborated in this chapter that such an in-depth analysis ought to be based on a historical perspective grounded in the idea of social imaginaries, and more specifically, political imaginaries. The latter could be clarified through, inter alia, Claude Lefort’s distinction between le politique and la politique, where the latter could be related to the predominant mode of instituted politics in society, whereas the former relates to the imaginary, that is, the constituting, symbolic, and meaning-providing background to the identification and understandings of politics in society and, therefore, to ‘visible’, formal politics as such. Strictly tied up with the emergence of the political imaginary of modern democracy are constitutional imaginaries, in particular a dual imaginary of order and self-government, central to the political edifice of constitutional democracy. It will be argued that the modern constitutional imaginary is grounded in contradictory representations of what constitutes society. Whereas the ‘formatting’ of society by means of an emphasis on the orderly function, as exemplified by liberal constitutionalism, has been historically predominant, its insistence on the autonomous, hierarchical, and technocratic nature of the legal-constitutional is in some ways in strong tension with the political imaginary of autonomy. The latter informs a range of competing constitutional imaginaries, including populist but equally radical-democratic ones. The populist imaginary has resurged strongly in democratic politics in recent times, and an analysis of its main components allows for a deeper understanding of the tensions and paradoxes afflicting liberal, constitutional democracy as an idea as well as practice of government. The chapter will, in a first step, elaborate the notion of political imaginaries. Second, it will explore in an in-depth manner the idea of constitutional imaginaries, in particular by elaborating the dual nature of such imaginaries, related to both the ideas of order and stability and to the ideas of autonomy and self-government. In a third step, the chapter will discuss contemporary shifts in (the hold of) political and constitutional imaginaries, engaging in particular with what could be identified as a ‘populist imaginary’ of constitutionalism.
Synesthetic Legalities: Sensory Dimensions of Law and Jurisprudence, ed. Sarah Marusek (Routledge, 2016).
This chapter tentatively investigates an original and potentially significant link between Jacques Derrida's metaphysical critique, deconstruction, and Michel Foucault's politics of life, bio-politics. Drawing on works by Catherine Malabou, Kalpana Rahita Seshadri, and Kevin Attell, the chapter seeks to break new ground in connecting Derrida's deconstruction to Foucault's bio-politics, beyond previous connections which had usually concentrated on the link between Derrida's thought and the bio-political thought of Giorgio Agamben. This tentative connection will be argued to exist in the theorists' uncannily similar uses of asymmetrical visuality to frame their theories of power within both the bio-political administration of life and deconstructive legal theory. Firstly Foucault's adaptation of Jeremy Bentham's Panopticon into panopticism illustrates the strange account of visuality in which the subject of bio-politics 'is seen, but he does not see'. And secondly Derrida's utilisation of William Shakespeare's Hamlet, and the ghost of King Hamlet therein, makes the same point whereby 'the visor effect' ensures that 'we do not see who looks at us' in the operation of law. However the chapter posits that more is required than merely a superficial connection between these two concepts. Accordingly it then offers an account of how asymmetrical visuality connects the functioning of deconstruction and bio-politics. Here reference will be made to Gilles Deleuze's work on Foucault which identifies the significance of the 'diagram' concept and the spatio-temporal arrangements within bio-political administration. To conclude it will then be suggested that the spatio-temporal configurations explicated by Derrida's neologism of différance may then underpin, or at least be related to, the spatio-temporal organisation of human multiplicities required for the bio-political administration of life.
The Political Content of Legal Theory
Philosophy of the Social Sciences, 1987
Reading Hans Kelsen in the light of modem social and political theory, one is struck by how strange some of his ambitions seem. There is an unworldly air about his quest for a pure theory of law, one which 'describes the law and attempts to eliminate from the objects of this description everything that is not strictly law' and which aims 'to free the science of law from alien elements' .1 He wants to end the 'adulteration' of legal science by the contaminants of ethics, psychology, sociology and political theory. Of course, it is the desire of many to elaborate a legal theory which has among its criteria for identifying law only social facts and no moral arguments; that much is common ground among all legal positivists and some others as well. The oddity lies not in this but in Kelsen's restricted notion of what sort of facts may count. Purged of all sociology, psychology and political theory we end up with the mysteries of the Grundnorm and the absurd denial that there can be any sociological concept of law or the state.
Articulating the Body Politic: Intersections in Law, Culture, and Society
2018
The article introduces a collection of articles on the manifold intersections between political power and the body politic within legal and societal contexts. Indeed, intersections take different forms within different contexts. To this extent, the above-mentioned intersections contribute in forging the same scenario within which law, culture, and society interact. However, societal contexts have dramatically changed, thus overturning the traditional social order. Hence, \u201carticulation\u201d refers to how political power and body politic interrelate and therefore forge each other
Encyclopedia of Modern Political Thought, 2013
In the modern period, the most original and influential theories about law and politics were developed in connection with a set of far-reaching, interrelated questions about the definition of law, the purpose of law, the relationship between law and morality, and the existence of natural law and natural rights. In this entry I summarize the contributions of Charles-Louis de Secondat, Baron de La Brède et de Montesquieu; William Blackstone; Jeremy Bentham; and Immanuel Kant as exemplars of the history of modern thought on law and politics.
International Journal of Law in Context
Within legal debate, the state and the body are discourses at once apparent and buried. Amongst international legal scholars, the state is all-consuming while the body is unimportant whereas, in the domestic sphere, state ascendency precludes the study of its existence, while the body as the liberal autonomous rational agent of consent is the principal preoccupation. Neither of those constructs bears much analysis. Trends within global, comparative and transnational legal debate endeavour to deconstruct the state and the body, but often do so in ways that cannot challenge, subvert or disrupt the character of either body or state, or to consider their intimacy in patterns of historic conditioning. In particular, we are so inured to ideas now considered common sense that tracing how perceptions of law, legitimacy and authority were naturalised via the body and state is very difficult. Within the canon, the male White body, as Epstein argues, remains the core and the naturalised state the subject of the modern world (p. 261). From this premise, Epstein undertakes a fascinating journey through security, liberty and property, making plain the processes of naturalisation so dominant that they now go unremarked. Epstein makes visible the concerns of the state and the body at the centre of law and politics. While this is not a traditional book review, I begin by noting the quality of scholarship and writing in the Birth of the State. Do we need another deep dive into Locke and Hobbes? Epstein's answer is an emphatic 'yes', and the book amply shows what may be achieved in doing so. Moving from security to liberty and finally to property, the book deftly sets out how ideas that were not obvious or natural, and indeed were in some incidences alien to the medieval ideas that preceded them, were articulated so as to become naturalised. It does so by embracing the work of Foucault, Butler, Skinner and others, but not uncritically. The book shows the limitations in embracing one theoretical view and how a pluralism of critical approaches unbeholden to one methodology, particularly when examining the history of ideas, often achieves more than the sum of its parts. Naturalisation is at the core of book, namely how ideas become naturalised so that we no longer see them for what they are, constructs, but regard them as a priori matters of objective fact. Reading Birth of the State from another disciplinea process that requires care and attention to disciplinary, linguistic and methodological contextstwo of the book's features come to the fore: first, the methodological choices and, second, the substantive arguments and where they are amenable to disrupting legal debate. Foucault, Agamben, Haraway and others are usefully and thoughtfully embraced amongst some legal scholars. Epstein fruitfully puts such scholarship to work in combination with her close textual analysis of Hobbes, Locke, Grotius, Suarez, Pufendorf, Bacon and others, bringing to the fore the processes of naturalisation of key concepts related to the state and the individual that ensued. In particular, it draws attention to the processes of Othering that underscored these naturalisations, where the non-White body, the women's body, the body of the criminal, the
Deconstructing the Law: The Politics of Law
1982
In recent years progressive critique of the legal enterprise has derived from two principle sources: the legal realist and Marxian traditions.1 Succinctly expressed, these traditions have rejected the law's claim to objectivity. The legal realists have argued that legal decision-making involves not formal, deductive logic but subjective choice; any legal choice made is never logically compelled.2 In the Marxian tradition the objection has been not so much that the law is imbued with values, but that the distribution of legal outcomes is skewed to particular values, particular interests; the law reflects dominant economic interests.3 Stated this simply, the views of the two critical legal traditions may be subject to as much rhetorical denunciation as affirmation. In contrast, one of the key merits of the articles collected in The Politics of Law* is that discussion is moved to a fundamentally different plane. In consonance with a growing movement in the social sciences, these es...