Showing papers by "Emilios Christodoulidis published in 2019"

Critical theory and the law: reflections on origins, trajectories and conjunctures

Abstract: The tradition of critical theory has its roots in Hegelian Marxism. While its organising insight can be clearly traced back to Marx, its systematic development, if ‘systematic’ does not overstate the development of this dispersed and diasporic tradition, does not begin until the end of the First World War. We will look sequentially first at the origins – Marx’s profound debt to Hegel and to Feuerbach as expressed in the 1844 Manuscripts and the Theses on Feuerbach respectively – then at a brief history of some of the postwar trajectories of its diaspora. Second, we will identify key moments of the critical–theoretical enterprise, the basic premises of critical theory construction, by providing an inventory of terms and a (necessarily brief) explanation of them: the constitutive relationship of theory to practice or praxis; the dialectic and in particular the moment of negation; the idea of theory’s task of mediation as it is situated and embedded in history and the materiality of social reproduction; the genealogical viewpoint; and finally the specific reflexivity that develops and is expressed in and as immanent critique. Third, we will visit these concepts and the ways they interrelate by way of a close reading of Max Horkheimer’s essay on ‘traditional and critical theory’, a text that, despite certain limitations, allows the differentia specifica of critical theory to emerge. Finally we apply these insights to law, to look at whether and how legal method might carry the organising premises of critical thinking into the organisation of law’s semiotic field, into legal discourse and legal practice. The analysis here is somewhat skeletal; it falls to the rest of the volume to develop the themes of critical theory along a rich variety of legal trajectories. Already one is likely to encounter the objection that the critical project was inaugurated by Kant rather than Hegel, because it was Kant who famously answered his own question ‘what is Enlightenment’ with the injunction ‘dare to inquire’ (‘sapere aude’), which releases ‘man from his self-inflicted immaturity’ by placing knowledge on a critical footing. Hegel objects that Kant’s conception of critique is self-defeating. For him, Kant’s categorical severance of what is (Sein) from what ought to be (Sollen) undercuts the critical project by withdrawing from it the comprehension it requires to figure as critique. Hegel introduces the dialectic to remedy the devastating disjunction that we might call, with Johan van der Walt,1 Kant’s incurable hermeneutic deficit, and what from the point of view of critique is an incorrigible incomprehension. We will say

The ILO and the new ‘common sense’: reflections on a centenary

Abstract: Taking the cue from Alain Supiot’s important defence of the ‘spirit of Philadelphia’ the paper argues that the Philadelphia Declaration of 1944 renewed and deepened the commitments on which the ILO was set up in 1919, and seeks a firm theoretical footing in Supiot’s defence of the law’s ‘dogmatic’ foundations. It then goes on to track a double mutation, firstly away from political-constitutionalist protection of work toward a form of human rights protection, and secondly away from ‘hard’ institutional processes to ‘soft’ aspirational standards. This gradual migration allows a certain decisive separation to install itself and organise the field, a break between a pragmatic common sense on the one hand, and on the other an aspirational, if not utopian, discourse. This separation misreads and undercuts the integrity of international labour law that depends on holding together its organising principles and their instantiations.