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Franz Kafka on the (im)possibility of Law’s self-reflection

This chapter offers a novel interpretation of Franz Kafka’s celebrated parable ‘Before the Law’, inspired by developments in European legal theory, particularly the work of Jacques Derrida, Niklas Luhmann and Giorgio Agamben. It suggests a dual role-change in the confrontation of the parable’s protagonists – the ‘man from the country’ and the ‘law’. According to this interpretation it is not a specific individual who stands before the law’ but the legal discourse itself that is in desperate search of its law. The parable’s ‘law’ for its part is not a generalised and distant authority (power, morality, religion, etc.), but the valid and positive law of our times. The chapter asks the question: What happens within the mysterious relationship between ‘Law AND law’ which has always preoccupied legal theory when that relationship is subjected to the nightmarish logic in Kafka’s universe?’

in Critical theory and legal autopoiesis
Irritating nation-state constitutionalism

Trends of constitutionalisation can be identified beyond the nation state. They follow two different directions, as this chapter shows. Outside the limits of the nation state, constitutions emerge in the institutions of international politics, and they emerge simultaneously outside the limits of politics in the ‘private’ sectors of global society. Transnationalisation confronts constitutional sociology with three different challenges: (1) to analyse empirically ongoing constitutionalisation processes beyond the nation state, (2) to develop a theory of transnational societal constitutionalism and (3) to formulate sociological preconditions for normative perspectives in politics and law.

in Critical theory and legal autopoiesis
Abstract only
The vain search for legal unity in the fragmentation of global law

Global legal pluralism is not simply a result of political pluralism, but is instead the expression of deep contradictions between colliding sectors of a global society. It has its origins in contradictions between society-wide institutionalised rationalities, which law cannot solve, but which demand a new legal approach to colliding norms. This chapter develops the thesis with three arguments. (1) The fragmentation of global law is more radical than any single reductionist perspective can comprehend. (2) Any aspirations to a normative unity of global law are thus doomed from the outset. A meta-level at which conflicts might be solved is wholly elusive both in global law and in global society. (3) Legal fragmentation cannot itself be combated. At best, a weak normative compatibility of the fragments might be achieved. However, this is dependent upon the ability of conflict law to establish a specific network logic, which can effect a loose coupling of colliding units.

in Critical theory and legal autopoiesis
Contingency or transcendence formula of law?

Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). This chapter contrasts them with a third position, a sociological theory in which justice appears as the ‘contingency formula’ of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate affinities of varieties of justice with changing social structures.

in Critical theory and legal autopoiesis
Some questions for Rainer Bauböck

In this chapter, the author describes Rainer Bauböck's virtues and limitations of three different principles of democratic inclusion. The principles include all affected interests (AAI), all subject to coercion (ASC), and all citizenship stakeholders (ACS). Bauböck argues that the three principles complement one another, with each providing legitimation for a different set of democratic institutions and practices. He has many illuminating things to say about these three principles, including the ways in which they are derived from different but compatible conceptions of democracy. Bauböck also explores fundamental questions about what a just global political order would require from a democratic perspective. The primary purpose of democracy is to provide legitimacy to coercive political rule through popular self-government. Lots of people would argue that one can be committed to equality of rights and democratic inclusion without embracing the view of the legal rights of irregular migrants.

in Democratic inclusion
Open Access (free)
A pluralist theory of citizenship

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book argues that there is not a single principle of democratic inclusion but several principles, and that it is important to distinguish their different roles in relation to democratic boundaries. It considers the general "circumstances of democracy" that consist in normative background assumptions and general empirical conditions under which democratic self-government is both necessary and possible. The book discusses the principles of including all affected interests (AAI), all subject to coercion (ASC) and all citizenship stakeholders (ACS). It contextualizes the principle of stakeholder inclusion, which provides the best answer to the question of democratic boundaries of membership, by applying it to polities of different types. The book distinguishes state, local and regional polities and also argues that they differ in their membership character.

in Democratic inclusion
Open Access (free)
Rainer Bauböck in dialogue
Series: Critical Powers
Editor: Rainer Bauböck

This book addresses the major theoretical and practical issues of the forms of citizenship and access to citizenship in different types of polity, and the specification and justification of rights of non-citizen immigrants as well as non-resident citizens. It also addresses the conditions under which norms governing citizenship can legitimately vary. The book discusses the principles of including all affected interests (AAI), all subject to coercion (ASC) and all citizenship stakeholders (ACS). They complement each other because they serve distinct purposes of democratic inclusion. The book proposes that democratic inclusion principles specify a relation between an individual or group that has an inclusion claim and a political community that aims to achieve democratic legitimacy for its political decisions and institutions. It contextualizes the principle of stakeholder inclusion, which provides the best answer to the question of democratic boundaries of membership, by applying it to polities of different types. The book distinguishes state, local and regional polities and argues that they differ in their membership character. It examines how a principle of stakeholder inclusion applies to polities of different types. The book illustrates the difference between consensual and automatic modes of inclusion by considering the contrast between birthright acquisition of citizenship, which is generally automatic, and naturalization, which requires an application.

Debates in political philosophy on democratic inclusion arose initially in response to the problem of what Michael Walzer called "metics". The case of the metics shows that citizenship is not ultimately about being affected by particular decisions or being subject to particular laws, but about membership in a self-governing society. In this chapter, the authors argue that these cases raise a fundamental challenge to the theories of democratic inclusion, not just about who is included, but also about what it means to be a citizen and how to characterize the underlying moral purposes of citizenship. They also argue that these cases reveal a deep tension within democratic theory between two models of citizenship: membership model and capacity contract. The membership model defines citizenship in terms of social membership and the capacity contract defines citizenship in terms of capacities for particular kinds of political agency.

in Democratic inclusion

Rainer Bauböck's work on popular sovereignty, citizenship and the demos problem is an important touchstone for contemporary political, and especially democratic, theory. In this chapter, the author aims to put some pressure on the relationship between populus and demos in Bauböck's account. It is an important strength of Bauböck's argument that his account articulates complementary relations of the all affected interests (AAI) principle, the all subjection to coercion (ASC) principle and the all citizenship stakeholders (ACS) principle. The author focuses on the authorial membership of the demos. He endorses Bauböck's proposal of ASC as the best principle, under contemporary political conditions, for determining access to national citizenship. The author also explains his incorporation of AAI, ASC and ACS into an account of democratic legitimacy.

in Democratic inclusion

In this chapter, the author explains how the all subjected principle is seen in terms of a purely protective neo-republicanism, which is distinguished from the democratic republican self-government of citizenship stakeholding. She re-examines the interpretation of the neo-republican non-domination account that Rainer Bauböck associates with the all subjected principle. The connection between non-domination and autonomy leads beyond domination to the kind of self-government among related individuals that Bauböck associates with his citizenship stakeholder account. The author argues that a modified version of the all subjected principle escapes a number of the criticisms levelled at it, and provides a clear basis for membership of the demos. Finally, she offers future continuing subjection as a more defensible basis for birthright citizenship while ensuring the continuity of the democratic political community.

in Democratic inclusion