Law and Reflexive Politics

by Christodoulidis, Emilios A.

• ISBN13: 9781402002830
• ISBN10: 1402002831
• Format: Paperback
• Copyright: 2002-01-01
• Publisher: Kluwer Academic Print on Demand

Summary

Law and Reflexive Politics argues against the dominant recent 'republican' trend in legal and democratic theory that sees law as the prime vessel of political action, means of empowerment of civil society and guarantor of democratic politics. Against theorists as diverse as Dworkin, Habermas, Unger, Ackerman and others it argues that the law cannot, as these theorists would have it, contain the politics of civil society and exhaust what these politics are about. The first part of the book explores the recent trends in legal and political theory that suggest the internal linking of democracy and law. The second part is a critique of these positions through an application of systems theory, but one that offers an internal critique of systems theory itself as well as a study of the inter-relationships between law, politics and conflict. The final part advances a suggestion for a definition, or re-conceptualisation, of the political as 'reflexive', that will re-politicise law's rendering of conflict, political action and identity. What is 'stilled' by the law here becomes contested terrain again and, as such, political.

Table of Contents

Preface and Acknowledgements	p. xi
Introduction	p. xiii
Republican Constitutionalism
Citizenship, Passive and Active	p. 3
Republicanism and its Legacy	p. 10
Habermas on the 'Interpenetration' of Law and Politics	p. 19
American Civic Republicanism	p. 31
Ackerman and the 'Discovery' of Constitutional Politics	p. 31
Sunstein and Michelman: 'Empathy' in 'Law's Republic'	p. 36
Deliberation, Distance and Empathy	p. 37
Institutional Deliberative Politics	p. 42
Sunstein's Institutional suggestion	p. 43
Michelman's Institutional suggestion	p. 45
The Critique of Elitism and the Retreat from the Institutional Dialogue	p. 48
Dworkin and the Law as Forum of Principle	p. 52
The Interpretive Thesis	p. 53
Integrity: The Right Answer	p. 55
Integrity, Coherence, Narrative	p. 57
Dworkin Republican	p. 59
The Containment Thesis	p. 61
Political Conflict Under Legal Categories: A systems-theoretical critique of Republican Constitutionalism
Excursus: Luhmann's Systems Theory: An Introduction	p. 73
Operations	p. 74
System and Meaning	p. 78
Observation	p. 81
Observation: system-centric and system-specific	p. 81
The Reduction of Complexity	p. 83
Society and Sub-systems	p. 84
Guiding Distinctions	p. 88
Law, Society and Conflict	p. 96
The Juridification of Conflict	p. 97
Law and the Double Contingency of Conflict	p. 102
Thesis [1] against Republicanism	p. 112
Legal Expectations	p. 116
The Function of Law	p. 117
The Generalisation of Expectations as Legal	p. 120
The Temporal dimension	p. 121
The Social Dimension	p. 122
The Material Dimension	p. 124
The Relationship of Conflict and Law	p. 129
Conflicts Conflated	p. 136
Thesis [2] against Republicanism	p. 137
Thesis [3] against Republicanism	p. 141
Thesis [4] against Republicanism	p. 145
Conflict Re-enacted	p. 149
Thesis [5] against Republicanism	p. 157
Thesis [6] against Republicanism	p. 163
Incitement to subvert	p. 168
Contempt of Court	p. 173
Conflict Severed	p. 187
The Material Dimension	p. 187
Thesis [7] against Republicanism	p. 188
The Social Dimension	p. 192
Touraine and Melucci: Identity and Constitutive Conflict	p. 193
Simmel and Coser: Identity and 'Phenomenal' Conflict	p. 197
Thesis [8] against Republicanism	p. 200
Thesis [9] against Republicanism	p. 206
Thesis [10] against Republicanism	p. 209
Conflict Normalised	p. 211
Thesis [11] against Republicanism	p. 220
Reflexive Politics
The Exclusionary and the Reflexive	p. 227
Theories of Political Reflexivity	p. 234
Cover: Reflexivity and Anarchy	p. 235
Lyotard: Reflexivity as the threat of the Differend	p. 237
Unger: Reflexivity as Negative Capability	p. 242
Luhmann on Political Reflexivity	p. 248
On Love, Marriage, Law and Politics	p. 256
The Facilitative Side of Marriage	p. 257
The Incompatibilities of Love and Marriage	p. 259
Exclusionary Reasons and the Community of Marriage	p. 265
Back to Politics	p. 269
Contingency as Eigen-value of Politics	p. 273
[Reflexivity as second-order observation]
Politics 'As Passion'	p. 283
[Reflexivity as Self-Reference]
Conclusion	p. 287
Bibliography	p. 289
Index	p. 305
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