Showing papers by "Emilios Christodoulidis published in 2018"

Dogma, or the deep rootedness of obligation

Abstract: This chapter seeks to make sense of the 'break' in terms of the primacy of obligation as rooted in the 'dogmatic', in the way that Alain Supiot has developed it; and shows that argument alongside the ideal of rootedness, more accurately that of 'taking root', in the work of Simone Weil. The main argument of this chapter is that any assumed correlation between rights and obligation misses the asymmetry that installs the former in a domain of reductive institutional thinking and the latter in the field of the inexhaustible dogmatic resources of legal reason. The emphasis on 'critique' here may appear incongruous if critique, as is customarily assumed, begins with reasons one gives oneself. Interdiction is a wonderful term for the equivocation it carries, as that which on the one hand resists, stems and interrupts and on the other mediates: inter-dicts. The dogmatic provides the institution of contract with its constitutive orientation gives us a platform to thematise the pathological.

Critical legal studies

Abstract: This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.

Law and globalisation

Abstract: This chapter discusses three important ways in which globalisation undermines some deep-rooted assumptions of modern legal thought. First, it makes it increasingly diffi-cult for legal study to be contained within the territorial boundaries of national legal systems. Second, while traditional jurisprudence focused exclusively on municipal and public international law, globalisation requires notice of other forms of legal ordering, such as the sui generis legal order of the European Union (EU). A third challenge addresses how globalisation may be undermining the cultural specificity of law, and asks whether in response, construct a theory of law that reaches across legal cultures. The context for Neil Walker's analysis is the growth of non-state entities, such as the EU, as rivals to states in claiming sovereignty. Walker argues that constitutionalism – which he sees as the vocabulary for the mutual articulation of law and politics – is intrinsic to the polity understood as the setting for the conduct of politics.

Transitional jurisprudence and historic injustices

Abstract: This chapter considers some of the jurisprudential implications of how countries have faced up to histories of extensive suffering, discrimination, human rights violations and other large-scale injustices. It discusses a number of such problems in the context of political transitions, typically from authoritarian to democratic forms of government. When atrocities have occurred on massive scale, for example, in the commission of genocide or crimes against humanity, establishing accountability and responsibility requires analysing complex causes, which together facilitated the commission of the harms, and for which conventional criminal law categories may not be adequate. The problem of unequal or uneven treatment is another element of the rule of law dilemma – whether and whom to prosecute and for what – and it plays out particularly in the context of criminal law. The chapter considers the issue of how democratic societies address a past, and an ongoing legacy, of colonialism by looking at a case study of Australia.

Trials, facts and narratives

Abstract: Jerome Frank focuses primarily on the adversarial process, which he likened to a trial by combat with each side's champions trying to do down the others – a 'fight' method of proof. Frank's inquisitorial system would include better training of legal officials, impartial government officials to dig up all the facts, specialisation of judges and State administrators to deal with the complex facts of modern society and increasing use of expert witnesses. The incorporation of facts in narratives, the possible limitations of legal procedures, the intelligibility of legal language, and the aspiration that the courtroom may function as the forum for the establishment of the truth and of genuine communicative exchange are all deeply contested issues in legal theory. The law of evidence provides the structure within which facts may be 'found' and established as legally relevant. There is of course much that is filtered out in the process.

Displacing the juridical : Foucault on power and discipline

Abstract: Michel Foucault argues that new techniques of government that developed in the modern period were distinct from the traditional juridical forms of sovereignty. This chapter examines the key terms of discipline and biopower, and their place in the complex of techniques that Foucault called 'governmentality'. It looks at the concept of power in Foucault's work before addressing the question of how his work can contribute to understanding of law in modern society. Foucault sets out two models of political power: the pre-modern, or classical, model of juridical power, and the modern normalising power. Where discipline works on the individual, 'biopower' is aimed at the administration and production of life. Foucault is making two claims about the law. First, that with the development of governmentality the law is transformed by normalising power. Second, that the basis of sovereignty, which before the modern period was constituted in juridical terms, requires to be rethought.