Philosophy and Critical Theory
This chapter examines the idea of ‘living law’ proposed by the legal scholar Eugen Ehrlich, contrasting it with the Pax Americana of Bill Clinton. It argues that while Ehrlich’s idea proved to be wrong as regards the national law of Austria, it will yet turn out to be right, both empirically and normatively, as regards the newly emerging global law.
The term ‘publication bias’ describes the statistical distortion of data when pharmaceutical groups suppress or manipulate research data. This chapter uses publication bias as a paradigmatic case in order to examine four aspects of the third-party effects of constitutional rights, and to develop alternatives. (1) The third-party effect has so far been configured in an individualist perspective only, but in order to deal with structural conflicts within society constitutional rights in private relations have to be reformulated in their collective-institutional dimension. (2) Instead of being limited to the protection against state-equivalent power in society, the third-party effect must be widened and directed against all communication media with expansive tendencies. (3) Contextualising constitutional rights ought not to be limited to adapting these rights to the particularities of private law. (4) Instead of imposing duties to protect exclusively on state actors, third-party effects must address private actors who violate constitutional rights and at the same time activate counter-forces within society.
This chapter takes as its starting point the transformation of the contract in modern times – in other words, its hybridisation. As the binding force of the contract disappears in the ‘in-between’ of the contextures, what are the consequences of this fragmentation? Can we still discern some operational, structural or systemic ‘unity’ of the contract that can be a suitable substitute for the exchange between two people? Social differentiation splits the formerly unitary contract into three autonomous concatenations of events in the respective legal, economic and production contexts. This difference is always reproduced as an insurmountable hermeneutic dissonance.
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?’
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.
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.
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.
Economically, the liberalism follows classical accounts of human nature undergirded by notions of utility-maximization, rational choice theory, and methodological individualism. In the electoral realm, the managerial liberalism culminated in the phenomenon of 'triangulation', a strategy of appearing bi-partisan in the hope of appealing to a broader range of the electorate. The seismic political events betoken the dominant form of centrist liberalism that has accompanied most post-war capitalist economies. The intrusion of the 'post-truth' storm into the liberal idyll is really just the return of the repressed. The affective underpinning to political theory and praxis has always been there; it has just been overlooked or suppressed for the sake of securing certain ends. Political economy too has always been augmented by affect: hope and fear, pleasure and pain, love and hatred, happiness and discontent.
This book offers a unique and timely reading of the early Frankfurt School in response to the recent 'affective turn' within the arts and humanities. It revisits some of the founding tenets of critical theory in the context of the establishment of the Institute for Social Research in the early twentieth century. The book focuses on the work of Walter Benjamin, whose varied engagements with the subject of melancholia prove to be far more mobile and complex than traditional accounts. It also looks at how an affective politics underpins critical theory's engagement with the world of objects, exploring the affective politics of hope. Situating the affective turn and the new materialisms within a wider context of the 'post-critical', it explains how critical theory, in its originary form, is primarily associated with the work of the Frankfurt School. The book presents an analysis of Theodor Adorno's form of social critique and 'conscious unhappiness', that is, a wilful rejection of any privatized or individualized notion of happiness in favour of a militant and political discontent. A note on the timely reconstruction of early critical theory's own engagements with the object world via aesthetics and mimesis follows. The post-Cold War triumphalism of many on the right, accompanied by claims of the 'end of history', created a sense of fearlessness, righteousness, and unfettered optimism. The book notes how political realism has become the dominant paradigm, banishing utopian impulses and diminishing political hopes to the most myopic of visions.