Emilios Christodoulidis

Bio: Emilios Christodoulidis is an academic researcher from University of Glasgow. The author has contributed to research in topics: Politics & Philosophy of law. The author has an hindex of 13, co-authored 80 publications receiving 770 citations. Previous affiliations of Emilios Christodoulidis include University of Edinburgh.

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 myth of democratic governance

Abstract: This chapter explores the democratic promise of “democratic governance” and finds it to be a lie. With a particular emphasis on how the economic system has cut itself adrift from legal regulation and, in the process, re-configured its relationship to the law under the sign of “governance”, we explore the logic of a key substitution: the market principle that was understood as the principle subtending the transactional nature of private law as distinct from public law, gradually becomes the arbiter of the separation itself and guarantor of the circulation (“balancing” in the preferred idiom) of public goods. Governance is imported to lend a vocabulary to these significant shifts, celebrated by its exponents as signifier for plasticity and “experimentalism”. The chapter explores the suggestion that governance might be thought of as an “empty signifier”, in that it performs a function that is typically “hegemonic”: it immunises itself by absorbing and re-defining (across its semantic range) any opposition to it. Through a series of substitutions, it performs a self-referential operation that has internalised all its criteria in order that governance be able to define for itself what is democratic about it.

American Civic Republicanism

Abstract: It is at the constitutional junction of law and politics, that a number of prominent American public lawyers have located their ‘civic republicanism’ as a theory about the empowerment of civil society. Civic republicanism is a theory that draws on a number of disciplines and integrates the insights into constitutional theory to suggest a thorough rethinking of the premises of constitutionalism. While the republicans all share the basic premise of the interrelationship I described between self, community, politics and law, they diverge in their accounts of the precise institutional vessel of the political dialogue. They disagree about where to locate the constitutional ‘home’ of the deliberative practice. One of them designates the Supreme Court as the most appropriate forum of the deliberative practice, another the Congress, while a third seeks to locate his republican politics in the ‘constitutional’ mobilisation of the citizenry at large. The initial disparity between the theorists, between elite and populist institutional solutions, has given way, more recently, to some convergence. But the problem of designating the appropriate constitutional realm of the political dialogue still remains the issue that most sharply divides civic republicans. The following sections will explore the answers they give to the problem independently. I will in each case, rehearse the basic premise only briefly and focus more extensively on the various suggested constitutional outlets of the political dialogue to explore how it is that they perform the function of ‘carrying’ the political dialogue onto legal-institutional ground.

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.

The open method as a new mode of governance: the case of soft economic policy co-ordination

Abstract: Taking economic co-ordination in EMU as a starting point, this article explores the development of the open method of co-ordination, addressing whether it is a new form of governance from two related perspectives. First, to what extent can the method be effectively applied outside the scope of economic policy? Second, will it lead to policy transfer to the EU and hence act only as a transitional mode of governance? Identified at the Lisbon European Council, the method codified practices such as benchmarking, target-setting and peer review developed in the Luxembourg, Cardiff and Cologne processes. The method offers a new approach to governance of the EU as a heterarchical, decentred and dynamic process. It supports and radicalizes the principle of subsidiarity; offers an alternative to the treaty rules on enhanced co-operation; and addresses some of the legitimacy issues inherent in the EU. In EMU, the method arose out of a specific policy framework with a common monetary policy complemented by the coordination of national economic policies. The recent recommendation issued against Ireland is the first example of the operation of the method in EMU and shows how debate can be stimulated and how different and arguably equally valid perspectives defended. The particular experience of EMU with a sound money, sound finance paradigm, a long history of project-building by key elites and the central role of the European Council suggest similar conditions are required for the effective application of the method in other policy spheres. The context within which the method has operated to date is contingent and could change either over time or between policy fields. If so, the very openness of the method may serve to reconfigure the boundaries of competence between the Member States and the Union, after all.

Restorative justice The real story

Abstract: Advocates’ claims about restorative justice contain four myths: (1) restorative justice is the opposite of retributive justice; (2) restorative justice uses indigenous justice practices and was the...