Book of panels and abstracts
Democracy in an inhospitable world: On Kant and the moral law
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- The Crisis of Democracy in an Antipolitical Age
- Panel 2
- Is the largest democracy of the world becoming the largest dictatorship – India Position.
- Brazillian Judiciary in The Focus For Democratic Demands
- 5. A CRISIS OF THE LIBERAL VISION OF THE RULE OF LAW AND FUNDAMENTAL RIGHTS TURNING POINTS IN THE EAST AND WEST
- Panel 1
- The Constitutional Tribunal in Poland – From the Greatest Judiciary Authority to the Guardian of Political Interests (Polish Democracy at the Crossroads)
- The Constitutionalisation of Austerity and the Economy of Sacrifice in the Colombian jurisprudence on Social and Economic Rights
- Discovering the role of performativity within the right making and right taking processes
- Poststructuralist Critique of the Liberal Concepts of Legal Interpretation. Between Interpretive Communities and the Political
- Panel 3
Democracy in an inhospitable world: On Kant and the moral law Anél Marais, Aberystwyth University, Wales - nab@aber.ac.uk Under current fractious conditions, describing the populace of a democracy (the demos) as a ‘political unit’ is difficult. Our disparities seem to far outweigh our similarities. Contra Aristotle we do not seem to have a rational nature in common, nor do we have shared sympathies. This paper will address the question whether the law, as a symbolic order, can compensate for these deficiencies? In a highly optimistic frame of mind one can argue, with Kant, that the law, as a neutral arbitrator, may be able to ensure that we are at least on an equal footing. Eagleton points out that because law, reason and the symbolic order transcend ‘individual interests and appetites’, it is possible for them to keep a critical distance, a cool head, an even keel. Kant, like Hegel, is scornful of the reliance on ‘feeling, enthusiasm, the heart and the breast’. This is an issue for the symbolic order, rather than for the imaginary. Following this Kant argues that in a fractured society, which may very well include almost all societies, the duty of the law is to abstract from the legal subject everything specific, peculiar and personal. It is only in abstraction that we can be equal. This resonates with much of the parlance of modern international human rights law as well as certain strands of cosmopolitan theory. Against this background the idea will be presented that Kant, despite his protestations of austerity, is not impervious to the pull of the imaginary. Within the sphere of the aesthetic we may have an opportunity, not necessarily to ‘understand’, but to experience the world as something that we can, in principle, understand. The Kantian sublime, however, cuts in two directions: the world may appear hospitable to us, but it may also, in equal measure, frighten and intimidate us. The Crisis of Democracy in an Antipolitical Age Albena Azmanova, Brussels School of International Studies, University of Kent, Brussels - A.Azmanova@kent.ac.uk Steven L. Winter, Wayne State University Law School, USA - swinter@wayne.edu
Chair: Steven Winter The Problems and Perils of ‘Global Constitutionalism’ Tarik Kochi, Sussex Law School, University of Sussex - T.Kochi@sussex.ac.uk This paper follows the question of whether we can properly think of International Law, or Global Law, in terms of a ‘constitutional order’, or at least as a set of overlapping legal regimes and orders which can be attributed some degree of constitutional significance. The paper asks what is at stake in trying to conceptualise International Law or Global Law in this way. The paper takes its cue from a number of prominent attempts within legal theory and the sociology of law to think about the emergence of a global constitutional order such as that presented in the work of Gunther Teubner and Neil Walker. Critically responding to these accounts the paper asks what might a language of ‘global constitutionalism’ offer to an understanding of International Law/Global Law? Particularly, in what ways might such accounts attempt to legitimate the historical and ongoing violence of various regimes of capital and power, while masking and deflecting more radical forms of contestation and antagonism which challenge these orders? Is the largest democracy of the world becoming the largest dictatorship? – India Position. Parva Dubey, Hidayatullah National Law University, Raipur, Chhattisgarh India - parvadubey@gmail.com India is known as the world’s largest democracy of the world (1.25 billion people). Recent circumstances raise the question whether the country is heading towards autocracy. Although elections are held every five years at the national and state levels, voters are not electing local representatives who then select the Prime Minister or Chief Minister. Rather, each party puts forward a prime ministerial or chief ministerial candidate before the elections and, then, all of the elections are contested in the declared candidates’ names. The Prime Minister or Chief Minister becomes larger than the contesting party; as a consequence, his views and decisions dictate the actions of individual legislators. Instead of being a festival of democracy, election practices in India are contributing to a more autocratic form of governance. This paper will discuss these developments and the electoral reforms necessary to counteract them. Brazillian Judiciary in The Focus For Democratic Demands Rafael da Silva Menezes, Federal University of Minas Gerais (Brazil) and Federal University of Amazonas (Brazil) - rafaelsmenezes@gmail.com Democracy, in the representative and deliberative aspects, directed to the legislature has lost credibility space in Brazilian society, either because the current system of proportional elections does not allow a clear identification between elector and elected, either because people do not realize their demands being satisfied by the body of parliamentarians, commonly identified as managers of own corporate interests, leading a legislative inaction about discussions involving major political and moral differences. This frame loss of citizens' trust in their representatives, made demands for solutions on political and moral differences displaced, including public support, for the judiciary, especially to the Brazilian Supreme Court that once triggered, it began to define political and moral contours to initially legal issues and, in this way, analyzed and defined, for example, questions about the apparent conflict between environmental protection and economic development; campaign finance; biographies of unauthorized disclosure; samesex unions; interruption of pregnancy in the case of anencephalic fetuses; affirmative action for access to higher education and; research on embryonic cells. With the shift of the focus of democratic demands, the Judiciary must, to the same extent, be open to new forms of procedural intervention, which enable citizens, substantially, to participate in the debates before the judiciary, with serious, responsible and responsive analysis of their arguments, which can be achieved with the improvement of the intervention procedure of amicus curiae before the supreme court, which often has limited the performance of that democratic character. 5. A CRISIS OF THE LIBERAL VISION OF THE RULE OF LAW AND FUNDAMENTAL RIGHTS? TURNING POINTS IN THE EAST AND WEST Stream organisers: Adam Sulikowski, Rafał Mańko, Jakub Łakomy and Konrad Kobyliński The political events of recent years, both in Central-Eastern and Western Europe, some of which can certainly be described as ‘turning points’, provide an impulse to analyse the crisis of the liberal visions of ‘rule of law’ and ‘fundamental rights’. What we consider of particular importance, is the growth of the political significance of parties and groups described sometimes as ‘populist’, and the challenges which follow therefrom for well-grounded conceptions of the rule of law. We also consider it necessary to analyse the role (neo-)liberal ideology, including its legal variant, in the process of marginsalisation of the social classes and groups which have made attempts at regaining political subjectivity and empowerment by supporting political parties described as populist. We would like invite efforts to apply the concept of the political (as opposed to the concepts of 'politics' and 'policies') to the activity of constitutional courts which, whilst officially perceiving themselves as the exclusive guardians of the constitution, often conceal the influence of political views on their decision-making process. We think that adequate tools, allowing to diagnose the crisis of the liberal vision of rule of law and fundamental rights, can be provided by critical legal theory, inspired by the classical school of CLS, as well as its contemporary continuations in the UK and on the Continent, including in Central Europe. Of particular importance is the combination of critical legal studies with an agonistic philosophy of politics (C. Mouffe). Liberal visions of law as a neutral forum for conflict resolution and of constitutional courts as apolitical arbitrators can be opposed to an agonistic vision of society, which underlines the unalienable dimension of conflict, which is at the root of the social bond (C. Mouffe, E. Laclau, S. Žižek). Another area which papers submitted to the stream are invited to explore is the impact of a neoliberal understanding of politics as post-political governance upon the narrowing down of the spectrum of ideas accepted by the mainstream, which, after a certain time, leads to an inevitable eruption of the so-called populist moves (C. Mouffe, E. Laclau) which can rightly be described as turning points in the on-going crisis of the liberal vision. We assume that certain choices on the level of political theory (regarding the understanding of the concept of the political) have their consequences in the sphere of political practice, and therefore pre-determine the scope of actual choice. Not only law is entangled in the political, but also politics impact upon legal theory and practice, as evidenced by the phenomenon of ‘rightist crits’ in Central Europe. Panel 1 Chair: Rafał Mańko Polish Constitutional Court and the Political: On the Consequences of the Fall of a Certain Myth Adam Sulikowski, University of Wrocław - Adam.sulikowski@uwr.edu.pl The topic of the allegedly apolitical character of the Polish Constitutional Court is crucial not only from the perspective of contemporary social and legal thought, but has also attracted broad public interest in Poland and abroad. On the one hand, the official legal discourse is dominated by the myth of the apolitical character of constitutional judiciary. On the other hand, the ruling Law and Justice partty which is engaged in a conflict with the Court bases its arguments on the Court’s political involvments. The main purpose of the paper will be to analyse this dispute (its causes, course and consequences) by resorting to theoretical tools developed by Carl Schmitt, Chantal Mouffe and Ernesto Laclau. The Constitutional Tribunal in Poland – From the Greatest Judiciary Authority to the Guardian of Political Interests? (Polish Democracy at the Crossroads) Grzegorz Pastuszko, University of Rzeszów - Grzegorz.pastuszko@op.pl The paper aims at depicting the legal position and the political role of the Constitutional Tribunal in Poland. The main questions the author asks are what was the Tribunal in the beginning, by the time of communist regime, and what it is now, after almost 30 years of democratic transformation. The author’s intention is to put emphasize on the changing role of this institution over last couple of decades concerning the current context of the constitutional crisis. The scope of the research involves two aspects of the problem - the aspect of legal regulations (including reforms) and the aspect of “political conditions”. Examination of these two factors enables important conclusions to be drawn on how the process of forming the Tribunal has been being developed, especially what reasons have importantly influenced the changing perception of the Tribunal – primary as “a reactive and antisocialist instrument”, next as “a great judiciary authority in democratic state” and finally as “a political body supporting or struggling government”. The paper as a whole is divided into three parts covering the significant periods of the evolution of the Tribunal. The first period is the time when the Tribunal gained the reputation as “a nail in the coffin” of communist regime (1981-1989), the second when it enjoyed a high rank position in the system of the state powers (1989 – 2015), and the third when it - nolens volens - lost its authority and became an element of political plays (2015 until now). All these remarks are shown against the background of the models of constitutional judiciary in contemporary Europe and its theoretical origins. The Constitutionalisation of Austerity and the Economy of Sacrifice in the Colombian jurisprudence on Social and Economic Rights Johanna del Pilar Cortes Nieto, University of Warwick - J.d-P.Cortes-Nieto@warwick.ac.uk It has been claimed that by relying on the minimum core of social and economic rights (SER) and targeting people in poverty, the Constitutional Court of Colombia (CCC)has found the right balance between the enforcement of SER and the austerity reforms necessary to overcome economic crisis and (Landau, 2014).In contrast, based on the most famous rulings of the CCC,I argue that by relying on a particular understanding of poverty, the Colombian jurisprudence has facilitated the constitutionalisation of austerity and the reconfiguration of SER according to neoliberal lines. For the CCC, poverty is a problem of material deprivation which produces individual suffering. It is caused by lack of growth and individual failure. Consequently, the Court should uphold fiscal decisions that foster growth – e.g. austerity reforms, even if they sacrifice SER, and focus on how poverty can be alleviated on an individual basis. Besides these solutions, there is not much to be done; poverty is conceived as a quasi-natural phenomenon whose effects can only be ameliorated. This narrative is linked to a particular interpretation of the Constitution. For the CCC, it foresees an enabling state aimed a fostering growth, and only condemns extreme forms of inequality in the face of which the state has to engage in a limited distributive role aimed at guaranteeing the physical survival of the poor. SER are the manifestation of this role. This interpretation normalises inequality as the precondition of competition and growth. It reinforces the idea that the state should only correct the most adverse effects of market failure by engaging in poverty alleviation, which is also an opportunity to rehabilitate the poor. It drives attention away from the root causes of poverty, naturalising its existence. Finally, the interpretation of SER as the rights of the poor to the means necessary for survival limits their political aspirations and helps to control social uprising. Panel 2 Chair: Konrad Kobyliński Rule of Law or Rule of Lawyers? Critical Reflections Inspired by a Symptomatic Reading of Artur Kozak Rafał Mańko, University of Amsterdam - r.t.mano@uva.nl Artur Kozak was undoubtedly the most original legal theorist in Poland in his time. His period of academic activity (from his first publication in 1988 until his premature death in 2009) spans over the period of Poland’s political transition from actually existing socialism to capitalism, parliamentary democracy and the ‘rule of law’. Kozak combined an impressive philosophical erudition with a talent for insightful sociological observation. Precisely because his academic activity spanned over the period of transformation combined with the implementation of the Western (mainly German) ‘Rule of Law’ ideology (Rechtstaat), it is worth exploring his work from the point of view of how he conceptualised the notion of the rule of law. In fact, Kozak was fully aware that the systemic transformation of 1989 created new challenges for legal theory. He stipulated, however, that the theoretical underpinnings for broadened powers of lawyers in the post-socialist system were inadequate. He was particularly concerned about the social prestige of law and the adverse effect thereupon of the increasingly popular hermeneutic current in Polish legal theory. Instead, he proposed a juriscentrist philosophy of law. He claimed that lawyers exercising their interpretive discretion are not arbitrary because they are limited by the constraints imposed them by the institution of law (in the sense used by Berger and Luckmann), but not by legal texts of positive law. This had direct implications for the legitimacy of law in society, which – in Kozak’s view – should be sought by legitimising the legal institutions. The paper will engage critically with Kozak’s juriscentrist philosophy of law. Whilst Kozak’s aim was to legitimise the power of lawyers in society, I will offer a symptomatic reading of Kozak’s texts, revealing the Real hidden behind the screeon of the ‘Rule of Law’ ideology. Discovering the role of performativity within the right making and right taking processes Elif Ceylan, University of Exeter - Eco202@exeter.ac.uk Law/right production by means of legal transplants has been analysed through a number of different theories. This way of right making has been criticised for its accomplice to imperialism and colonialism due to consolidating the law-maker West and the law-taker non-West binary relationship. This paper will re-evaluate this law-making method by putting “imitation” at the heart of its analyses. Doing this will allow me to address the imitation embedded within legal transplantation in conjunction with that theorised by Judith Butler in her performativity theory. Examining legal transplantation and human rights making through performativity will expose the role of imitation in the formation and diffusion of human rights. This will enable us to reconsider the right-making and right-taking processes through a different perspective in which they both occur to be performative. Given that the performative is a speech act that is capable of reproducing subjects and norms by repetition, can we conclude that human rights produce the human subject through repetition of norms. Discovering the performative reproduction circle within the formation and diffusion of rights, this paper will examine the way in which the subject is humanised through repetition of pre-existing human rights structures, as well as gendered through the repetition of pre-existed gender conventions. It will canvass these norm-making processes exampling the formation of the LGBTI rights concept and its diffusion to non-West, in particular to Turkey, whose law-making method historically relies on legal transplantation. In the light of these analyses, it will aim to provide an alternative reading pertaining the cultural values versus universality dichotomy that the LGBTI rights concept triggers in the less/non-Western countries. Poststructuralist Critique of the Liberal Concepts of Legal Interpretation. Between Interpretive Communities and the Political Jakub Łakomy, University of Wrocław - jakub.lakomy@gmail.com From the vantage point of hermeneutic universalism [Shusterman] - one of the epistemological stances in the philosophy of interpretation, from the perspective of which I'm carrying out the analysis in this paper - the political [Mouffe] inevitably determines the interpretation of texts, including legal texts. Each interpreter, and each interpretive community [Fish], occupies a specific place in the structure of social conflicts that constitute the political. The role of the classical, positivistic theory of interpretation of texts is - on the other hand - reduced to providing the tools for the interpreter to find objective, universal meaning of the text, and thereby eliminating the influence of "subjective" cognitive categories, eg. the impact of the political on this process. The main purpose of the paper is to show the influence of poststructuralist revolution on the thinking about the relation between internal (legal) arguments and political arguments in the process of establishing the meaning of legal texts. More precisely: it is about disclosing the consequences of introducing the poststructuralist approaches to politics and the political to the problems of legal interpretation. I will analyze two streams of philosophy of legal interpretation: neopragmatism and cls. In my paper I'm arguing from the perspective of hermeneutic universalism (paninterpretationism), according to which every cognition is relativized to the perspective of the subject, which is to say that all cognition is interpretation, so there is no such thing as knowledge not relativized to any perspective. There is no cognition, which, using the words of Thomas Nagel, provides "view from nowhere". These thesis, present in philosophy of interpretation of many representatives of neopragmatism and cls, will serve me for a critical analysis of the basic assumptions of the positivistic philosophy of legal interpretation inherent in the liberal concepts of politics. In my paper I will refer in particular to the work of Duncan Kennedy and Stanley Fish. Panel 3 Chair: Adam Sulikowski Nomos Basileus - “the Reign of Law” According to Giorgio Agamben. A Critique Commentary on Using the Ancients Paulina Święcicka, Jagiellonian University, Kraków - Paulina.swiecicka@uj.edu.pl ‘Popolo di Pekino, la legge e’ questa!’ - “People of Beijing, that is the law!” These are the first words of the opera ‘Turandot’ by Giacomo Puccini. “La legge” - in Greek “nomos” - “law” as “a custom” or “a statute” - seems to be one of the oldest words in the world, of great importance, on which humanity has deliberated for ages, since the appearance of the positive law enacted by the political authority. In particular, the problems of political authority and the rights and obligations of citizens were a major concern in the thought of the leading Greek Sophists of the late 5th and early 4th centuries BC. They distinguished between nature and convention, and placed laws in the latter category (e.g. Pl. Prt. 337c-d). Law - nomos - generally was thought to be a human invention arrived at by consensus (a custom) or by an order (a statute, a decree) for the purpose of restricting natural freedoms for the sake of expediency and self-interest (e.g. Herod. Hist., 7.104; comp. Pl. Grg. 483b-d; Pl. Plt. 339a). However, this view of law as arbitrary and coercive was not conducive to social stability and thus was amended by Plato, Aristotle and other philosophers, who asserted that nomos was, or at least could be, based upon a process of reasoning. By means of this reasoning immutable standards of moral conduct could be discovered and then expressed in specific laws (e.g. Pl. Ep. 7, 354e). In fact, this dichotomy between the negative and positive views of law has been never actually resolved.Pindar (6th / 5th century BC) was the first one who wrote about “nomos basileus” in his famous passage on “nomos as a king” (Frg. 169a Maehler, 1-8).The conceptual apparatus of Pindar and the object of his interest belonged to the sphere of pre-sophistic reflection on the essence of things, of the pre-principle of the world - arche and the eternal, immutable law governing the world, and thus determining the fate and human actions. As mentioned above, there were the Sophists who introduced the antithesis: nomos - physis - for the Sophists this was in fact a variant of the ancient opposition: true - false (Pl. Ptg. 337c; Diels-Kranz 87 fr. A, B). Nomoi as rules resulting from human culture and setting a certain pattern of behavior might only become a false, illusory convention covering the proper essence of things, the truth, which came only from the nature. Since then the opposition of truth and the verisimilitude has been a leit-motif in philosophy. Poet Pindar, wishing to walk the path of truth, on the one hand wanted to protect himself from all lies and pretences, and on the other hand was a first worshiper of the nomos. To this particular concept: “nomos basileus” – because, as it was said above, not only Pindar used this syntagma “a combination of words” to describe his thoughts about law - appealed Giorgio Agamben in his famous work Homo sacer: il potere sovrano e la vita nuda, 1995, trans. Homo sacer. Sovereign Power and Bare Life (part. I, par. 2). The paper will examine the understanding and use of the idea of law as the sovereign rule of law - nomos basileus - by the ancient authors and modern philosophers of political sciences, such as Carl Schmitt, Michel Foucault, and in particular Giorgio Agamben. Agamben used the term “nomos basileus” in his book in a certain way, in order to describe “the paradox of sovereignty” namely “a justification of violence and justice”: “the sovereign nomos is the principle that, joining law and violence, threatens them with indistinction” (Homo sacer, p. 25). The ancient Greeks employed this term in a different way - “nomos basileus” meant for them “law as a sovereign” (comp. Ps.-Archytas’ definition of the “basileus” as “sovereign” and “living law” -). However, the questions asked by the ancients and by modern philosophers such as Agamben are the same: does law need any keepers to keep it according to the way of keeping the law - but: Who are the law’s keepers - the legislature or the lawyers in their discretion to decide which part of the law could be overturned and under what conditions? What is law? And who or what is external to law? These questions are more important as for millennia man has remained what he was for Aristotle - an animal equipped with a life, in addition capable of political existence (Arist. Polit. A 2 1252 b 27- 1253 a 29); the modern man is an animal in politics, in which the question of his life as a living being is asked (M. Foucault, Histoire de la sexualité, ref. after Polish trans. Historia seksualności, Warsaw 1995, p. 125). Directory: law law -> Law in American Society Black History Month Essay Contest law -> A brand New Image? Should Personality Rights be law -> Jurisdiction of the Courts law -> Luther V. Borden: a taney Court Mystery Solved law -> ‘Intellectual Property Rights in Sport’ law -> The law of tort introduction a. What is a Tort? law -> Law of Delict Chapter 1: General Introduction law -> Appendix C: Federal and Minnesota Case Law Summaries Download 0.92 Mb. Share with your friends:
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