Published by De Gruyter

Volume 8 Issue 1 - Critical Modernities: Politics and Law Beyond the Liberal Imagination

January 2007

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Article

December 10, 2006

Introduction

Shai Lavi, Yishai Blank, Roy Kreitner

Page range: 1-7

December 10, 2006

Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization

Martti Koskenniemi

Page range: 9-36

Abstract

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration.

December 10, 2006

Aristotle on Constitutionalism and the Rule of Law

Jill Frank

Page range: 37-50

Abstract

At least since John Locke, writers have pitted power against lawfulness, championing the rule of law for its protection of the political order against both popular and governmental overreaching. Aristotle is often cited as the source of this opposition between power and lawfulness insofar as he takes law to constrain the overreaching characteristic of human nature, the rule of law to exemplify reason’s moderation of desire, and the constitution to be the source of the rule of law. Offering an interpretation of Aristotle which challenges the opposition between reason and desire driving most formulations of the rule of law, this Article argues that Aristotle understands the rule of law as itself a practice of political power, issuing from practical wisdom, which combines reason and desire. Treating the rule of law, in this way, as the rule of men as well raises the possibility that the question of political authority, at the heart of debates about constitutionalism, is at the same time a question of political authorship and accountability — accountability to, and of, both a regime and a people.

December 10, 2006

In the Blind Spot: The Hybridization of Contracting

Gunther Teubner

Page range: 51-71

Abstract

What are the consequences of modernity for the institution of contracting? As the unity of the traditional contract is dissolved into a multiplicity of separate contracting worlds (economic transaction, legal promise, productive agreement), the binding force of contracting needs to be reformulated from an interpersonal to an interdiscursive relation. The central thesis of this Article is that the unity of contracting is hidden in the blind spot of the distinction between contracting worlds. Contracting needs two diametrically contradictory but complementary theories which cannot be integrated into a synthesis. As demonstrated with the example of the expertise contract, the subtle interplay of different contracting worlds depends basically on a fragile symmetry of chances of translation. The normative correlate of contract understood as translation between different worlds of meaning would be an extension of constitutional rights into the context of private governance regimes.

December 10, 2006

The Shuffle of Things: Law and Knowledge in "Modern Society"

Marianne Constable

Page range: 73-90

Abstract

What are modernities? Can they be critical? What could it mean to imagine law beyond liberalism? This Article considers these questions from within the admittedly-limited scope of law and society in the United States. It argues, using an example drawn from a contemporary state law regulating the practice of law, that the "order of things" has changed. The systematicity of knowledge of modern law links it to the conditions of a sociological society whose stability involves both the management of risk (as others have argued) and the prevention of crisis. When interventions such as this Article — in common with modern law—seek to address the critical condition of a modern society and to avert crises in it, such interventions may paradoxically justify and reinforce the very tactics and terms of the expressive environment or system that constitutes modern sociological society.

December 10, 2006

Democratic Legitimacy and the Scientific Foundation of Modern Law

Roger Berkowitz

Page range: 91-115

Abstract

This Article explores the unacknowledged impact of the scientific provenance of modern law. Justice, I argue, is threatened by social scientific thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.

December 10, 2006

The Two-State Solution: Providence and Catastrophe

Adi Ophir

Page range: 117-160

Abstract

One of the most significant, incontestable, and relatively ignored aspects of modernity is the new role states play as generators and facilitators of disasters, on the one hand, and as authors — or at least facilitators, sponsors, and coordinators — of survival and relief operations, on the other hand. The relation of the modern state to disaster has played an important role in the emergence of the state as a "totalizing totality" (of spaces, people, groups, associations, and institutions) and in the constitution of its image as a historical subject. This Article argues that state’s relation to disaster and its unfolding consequences has developed in two opposite directions that should be distinguished carefully. In line with these two opposite relations to disaster, I suggest a theoretical distinction between two state formations: a providential state and a catastrophic state. This distinction is based on Agamben’s concept of "bare life," which a sovereign may forsake by declaring an exception but which it may also save by taking extraordinary measures of protection or relief. The Article examines two aspects of the difference between the two state formations. From a formal point of view, it distinguishes and discusses two different notions of sovereignty, its authority, foundation, and legitimacy, along with two different understandings of the subjectivity of the state. These two conceptions involve and are intimately related to two distinct sets of theological presuppositions and two different conceptions of the political. From a chronological point of view, the Article sketches two diverging genealogies that go back to distinct, even if related, moments in the history of the modern West. Recognizing the fact that in certain historical moments these two genealogies were intertwined and that in our time this intertwinement has yielded a rapid process of hybridization, the Article claims that this process is not dialectical, and that the difference between the two genealogies should be maintained for theoretical and political reasons alike.

December 10, 2006

"What Are the Gods to Us Now?": Secular Theology and the Modernity of Law

Peter Fitzpatrick

Page range: 161-190

Abstract

Integrating responses of Nietzsche to the death of God with classic instances of modernist political theory, a constituent parallel is drawn between monotheistic religion and modern law — a parallel in that each matches the other, but a parallel also in that neither ever meets the other. This relation yet differentiation reveals an ontologically challenging modern law that conforms to, yet completely counters, its positivist and instrumental subordinations in modernity.

December 10, 2006

Transformations of Kinship and the Acceleration of History Thesis

Lior Barshack

Page range: 191-220

Abstract

Departing from Durkheim’s assertion of the primacy of public time, I argue that time is manufactured through the legal organization of society in the form of a corporate body. As a corporation, society enjoys fictive immortality, and it is this legal fiction that allows the flow of historical time. The institution of time, and of the corporate structure in general, is made possible through the political triumph over communal aspirations for timelessness, oneness and death: aspirations for an eternal present, to which I refer as the communal body. The passage from a founding, pre-historical experience of timelessness into historical time is accomplished through the construction of a perpetual corporate body in place of a communal body that lacks a temporal dimension. I will argue that the establishment of historical time and of the corporate organization of society necessitates the normative regulation of sexuality. Thus, the relaxation of the traditional structure of historical time and of sexual morality in contemporary society are closely intertwined.

December 10, 2006

Animal Laws and the Politics of Life: Slaughterhouse Regulation in Germany, 1870-1917

Shai Lavi

Page range: 221-250

Abstract

What makes modern law and politics modern? What makes the question of "modernity" so central to our understanding of contemporary law and politics? To offer one possible answer to these questions this study examines the changing relationship between animals and humans and, more specifically, the new regulation of the slaughterhouse in turn of the century Germany. If humans and animals meet in the modern agora it is neither because animals are now perceived as more human-like, as champions of progress would have it, nor because humans are perceived as more animal-like, as critics of modernity would suggest. Rather, both animals and humans have undergone a radical transformation, which has put them on the same plane. If life is that which humans and animals share in common, and politics is that which sets them apart, the history of animal laws suggests that modernity entails the radical transformation of both life and politics. This Article strives to understand this change through the transformation of both politics and life into processes, i.e., into that which can be scientifically known and thus manipulated. The different strategies of reformers of slaughtering as well as their opponents are analyzed in light of this fundamental transformation.

December 10, 2006

The Critical Modernism of Hannah Arendt

Mark Antaki

Page range: 251-275

Abstract

Hannah Arendt grasps modernity in terms of crisis and political modernity in terms of the crisis of authority. Because she ties the crisis of authority not simply to liberal political thought but to the entire Western philosophical tradition, Arendt responds to the crisis of authority with a critical modernism, i.e., a modernism that seeks to lay bare the gap between past and future that was covered up by the Roman trilogy of tradition, religion, and authority. This modernism is critical because it intensifies rather than shies away from crisis. With this critical modernism, judgment emerges as the successor to authority, opening the door to a possible overcoming of metaphysics and of the estrangement of doing and thinking. Arendt’s reworking of a parable of Kafka’s dealing with the gap between past and future illustrates her turn to judgment and her attempt to overcome metaphysics.

December 10, 2006

Modern Times: Law, Temporality and Happiness in Hobbes, Locke and Bentham

José Brunner

Page range: 277-310

Abstract

This Article shows how three modern English thinkers — Hobbes, Locke and Bentham — construe the law as an intersection of secular eternity on the one one hand and transience in modernity on the other, allowing for immovability and movement at the same time, combining stability with change. It details how these theorists, who undoubtedly have earned themselves places of honor in the canon of modern political thought, tried to solve the problem of self-grounding in three different and yet paradigmatically modern ways, each of them intertwining law and time in a different fashion, and each of them connecting both law and temporality to happiness. Thus this Article shows not only that these three British thinkers claim in one way or another that while natural desires may provide pleasure, only the law can bring happiness, but also emphasizes that, in their view, the transformation of the former into the latter entails a transformation of temporal consciousness. Thereby this Article foregrounds two elements that are crucial to an understanding of how seventeenth and eighteenth century British thinkers envisaged the transformation of pleasure into happiness by means of the law: first, the notion that the law creates or reinforces duration in social life, and second, the idea that the law can harness the immediacy of desires by assuring the legal protection of enduring pleasures, which lead to happiness.

December 10, 2006

Time and Law

Philippe Nonet

Page range: 311-332

Abstract

The seemingly "inextricable" mutual entanglement of history (in the sense of the German word Historie) and the play of power dissolves itself when thinking, under the sway of technique, moves beyond the horizon of metaphysic, and turns to question the unconcealment of being (in the sense of the German das Sein), that is, when man lets time become the law of his essence. Only so would a history (in the sense of the German word Geschichte), i.e. freedom, happen again, and rescue modern man from his otherwise destinyless age.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

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At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.