Search

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.

There is an evocative line in Bernard Williams’ Shame and Necessity, his superb treatise of Ancient Greek literature and philosophy, where he discusses “omens” in the archaic world. “The first ambi...

The introduction looks at the constitutional situation in Chile since the demand for a new Constitution erupted in demonstrations all across the country, and argues that the notion of ‘constitutional moment’ is inadequate to capture the radicality of the popular mobilisation that is sweeping the country as a pure expression of constituent power.

The chapter aims to assess the impact of the work of transitional justice concepts and mechanisms in allowing societies torn apart by conflict to emerge as ‘reconciled.’ It places these questions as key to the dynamics of transitional justice and looks at 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. The chapter identifies a number of such problems in the context of political transitions, typically from authoritarian to democratic forms of government. In recent decades a theme has come to prominence in legal studies concerning the role of law and legal institutions in political transitions. The politics of memory are at once also the politics of forgetting, and it is to the latter in particular that the forging of a collective memory through legal means should always remain most attentive.

From a legal-philosophical point of view, The Redress of Law presents a critical analysis of a number of related doctrinal fields: constitutional, labour and EU Law. Focusing on the organisation and protection of work, this book asks what it means to protect work as an essential aspect of human (individual and collective) flourishing. This is an ambitious and highly sophisticated intervention in contemporary academic and political debates around a set of critically important questions connected to processes of globalisation and market integration. The author redefines the nature of legal and political thought in an age in which market rationality has exceeded its classic domain and has come to pervade the organization of social and political life. This restatement of critical legal theory is intended to defend the concept of constitutionalism and suggest new ways to deploy the law strategically.

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.

At its core, Ruth Dukes’ important defence of ‘the labour constitution’ is an invitation to restore a constitutional register as proper to the protection of labour, against its market dependency an...

The chapter selectively reconstructs the prevalent views on Marxism and the political economy of law with the aim of showing that, despite a number of shortcomings, the Marxist tradition still represents an important contribution to critical thinking. Indeed, the main concern of the chapter is to show that a Marxian approach to the critique of the political economy does not need to collapse law into a deterministic relation with its economic base. In light of this concern, the chapter first tries to vindicate Marxian legal thought against some of the main critiques put forward by legal theorists (especially Kelsen and Schmitt) and then highlights the most important developments in Marxian scholarship during the second half of the twentieth century. The conclusion states the importance of an analysis driven by a core element of a materialist approach to the political economy of law, that is, class struggle, without reducing the latter to its economic determination.

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.

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.

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.

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.

This chapter outlines some of the changes and the transformations that Emile Durkheim, Karl Marx and Max Weber brought about to the legal form and the function of law in modern society, notably with the emergence of the welfare state. Most writers identify welfare state law with the growth of large state bureaucracies, which are viewed as increasingly expensive and inefficient – more likely to preserve themselves or apply rules in formal and mechanical ways than be sensitive to the needs of individuals. Bureaucracies provided a social and administrative guarantee of formal justice and control of the judiciary. Weber suggested that the features of law that dominated its liberal era – formality and neutrality – would pervade future development. The materialisation of law marks the tendency towards particularised legislation: the movement towards breaking up the general categories into sub-categories towards which law applies differentially.