Law and resistance: toward a performative epistemology of law

Wroclaw Review of Law, Administration and Economics , 2015

The aim of this paper is to show the symbolic dimension of power developed by Pierre Bourdieu which is simultaneously an insightful break with the well-known Marxist conception of ideology. Bourdieu’s theory is concerned with a profound reflection on relations of power, and particularly the unmasking of those relations that might be deemed as “misrecognised” (ergo, hidden and socially accepted). This is a concept of symbolic power that can be understood as misrecognised and perceived as legitimate authority, or paradoxically denied power. It is a capacity to construct the social reality on the terms of dominant social groups and powerful social institutions, including the institution of law and lawyers. The distinction between “sociodicy” (justification of the social word) and “ideology” is a key element for Bourdieu. Agents of the legal field cannot be simply perceived as a cynical. It is not a “false consciousness” that brings them to impose their symbolic power upon society. The operation of symbolic power is not an instrumental power whereby lawyers intentionally try to impose some propaganda. This power is inscribed both in their dispositions (habitus) and social structure (legal field).

Although Foucault can be rightly seen as one of the most influential thinkers of our times, his ideas have hardly been straightforwardly accepted. His vision of law in the modern era, in particular, has drawn some severe criticism. Scholar as diverse as Habermas and Poulantzas have expressed strong doubts with regards to Foucault's approach to law, accusing him of downplaying the role of the legal phenomenon in modern society to an unacceptable extent and with a distorting result. Such attacks are far from unwarranted. Foucault's argument appears almost counterfactual: How is it possible to claim that in the modern "age of rights" the individual, formally protected by a sphere of legal autonomy, is, in fact, subject to the continuous gaze of biopolitical forms of power? The present article is a contribution to the debate concerning this question. Focusing on the concept of the Rule of Law I will try to demonstrate that the basic tenets of the modern legal system are not incompatible with Foucault's reconstructions of the dynamics of modern power. My claim is that the problematic relationship between biopolitics and law within Foucault's theory is to be understood as the problem of the contemporary gendering of freedom. Building on Foucault's suggestion that freedom and power should be seen as an almost co-extensive couplet (and not as oppositional poles) I suggest that modern law does indeed foster individual liberty but it does so in a way that also allows a deeper penetration of power within the social body. In this perspective, I argue that the Rule of Law, shifting the legal paradigm from that of Hobbesian commands to that of the norm, proved instrumental for the flourishing of normalising dynamics that rely on the freedom of the individual for their establishment and propagation. Law, analysed through a biopolitical prism, appears as a normalising apparatus both in the sense that it translates the person into the discrete entity of the legal subject and in the sense that it provides the structuring rules framing the general landscape and environment of social life.

The article starts with the observation of an ambivalence inherent to the politics of juridification. On the one hand, some spheres of the life-world such as the family and the school are often places of exploitation, degradation and humiliation and therefore seem to require the implementation of legal protection for their members. At the same time, the demand for rights seems somehow to grasp too little, would be inadequate or even counterproductive. How can this ambivalence be politically dealt with? I first briefly reconstruct Jürgen Habermas’ concept of juridification. I believe that Habermas works with an image of the family and the school as communicatively constituted and juristically uncompromised milieux, which proves to be highly questionable. In a second step I consider Axel Honneth’s theory of the absolutization of legal freedom as offered in his recent work Freedom’s Right. Honneth sidesteps several problematic implications of the Habermasian thesis of colonization, but still tends to underestimate the dominant patriarchal power relations in the spheres of the family and the school. Finally, I pursue Honneth’s own suggestion that a new notion of politics is required for understanding contemporary struggles for recognition, which overcomes the statist tendencies of liberalism. I therefore propose to shift the perspective on the phenomenon of juridification, viewing it instead from the standpoint of the agents themselves, by turning to Wendy Brown’s feminist theory on the paradoxes of rights.

International Journal of Criminology and Sociology, 2012

This paper is concerned with the dialectical relationship of law and culture. Recent academic work in the sociology of law positions such a relationship within a concept of power, specifically the power of law/culture to render the world meaningful not only in reciprocally constitutive ways but also in mutually deconstructive ways. While this kind of scholarship moves us some way beyond accounts which insist on law and culture as autonomous realms of human experience, it has created a context of consensus which is largely uncritical of their relationalities. Whilst not denying moments of creative synergy which emerge in productive and positive relations of mutuality, this discussion reopens old antagonisms, and revisits law/culture as an ongoing contest and a dichotomous struggle over meaning, interpretation and judgement. I make use of a (familiar) Foucauldian vocabulary to delineate three modalities of power-sovereign, disciplinary and discursive-and use this as a framework for critically interrogating how law/culture stages different kinds of politics, which have varying effects in the broader political field of 'justice'. The paper concludes by arguing for both a modified and an intensified approach to power which builds on the conceptual insights of an eclectic body of contemporary political theoretical work.

Law and critique, 2024

In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.

Vol. 26(2) 208–229

This article critically engages with a particular reading of Jacques Derrida’s deconstructive legal theory which argues that his methodology marginalizes engagements with the ‘socio-historical’ of law at best or is incapable of such engagements at worst. After explaining this meta-ethical reading, the piece offers a retort via a broader and more in-depth reading of Derrida’s legal theory. Here the article problematizes the distinction at the core of the meta-ethical reading; this being that Derrida’s work established a mutually exclusive separation between a ‘sociolegal’ critique of law and one considered of ‘critical legal theory’. This separation will be shown to be misleading by firstly referring to Derrida’s essay ‘Force of Law’ and arguing that therein the sociolegal and ‘critical legal’ theories are in fact mutually dependant and that Derrida’s concept of surenchère illustrates this. Secondly, a wider reading of Derrida’s work will then illustrate that such a conceptual binary is incompatible with his deconstructive metaphysical critique. This will be evidenced with reference to what is argued to be the central point of the meta-ethical reading, something which is itself born from Derrida’s work; this being the distinction between la and le politique, ‘politics’ and ‘the political’. With due regard for the history of this important and complicated deconstructive distinction, it will be argued that the reductive reading in the meta-ethical critique does not do justice to the inherent paradox in maintaining a separation between sociolegal theory, la politique, and critical legal theory, le politique.

Once considered a stepchild of social theory, legal criticism has received a great deal of attention in recent years, perpetuating what has always been an ambivalent relationship. On the one hand, law is praised for being a cultural achievement, on the other, it is criticised for being an instrument of state oppression. Legal criticism’s strategies to deal with this ambivalence differ greatly: while some theoreticians seek to transcend the institution of law altogether, others advocate a transformation of the form of law or try to employ counter-hegemonic strategies to change the content of law, deconstruct its basis or invent rights. By presenting a variety of heterogeneous approaches to legal criticism, this volume points out transitions and exhibits irreconcilable differences of these approaches. Without denying the diversity of different forms of critique, they are related to one another with the aim of broadening the debates which all too often are conducted only within the boundaries of the separate theoretical currents.

La Colonie, 2018

How many trials for justice to be indeed just? What remnants of justice can one unsheathe from the bureaucratic, rigid and often impenetrable formats of white, western judicial systems perpetuated and replicated the world over? How to look into the historical injustice of modernity against the Other? Or the environmental injustices of neoliberal state governance committed under the name of progress? This exhibition aims to look into an archetypal state and supra-state procedure, that of the trial, using it as a paradigm for an enquiry into the notion of the judicial and other relative and adjacent forms of the administration of justice. Aiming to depart from the self-aggrandising position of art as an agent that can fix, reinstate or correct injustices and resisting to claim that the ethics of art surpass the law, this exhibition wants to look at the form of the trial as one that can be appropriated, re-purposed, re-scripted through artistic practices to bring attention to the strenuous judicial realities put to the test and disintegrated by bureaucracy, exclusionary policies and antiquated judiciary notions.

In a 2006 article, Duncan Kennedy identifies politics as the central dilemma of contemporary legal thought, but affirms that law is non-reducible to politics, which could be read as a partial retraction from the known coda “law is politics.” This article suggests an interpretation of his refusal to conflate law and politics not in terms of disavowal, or a way of distancing politics from law, but as an attempt to carve out a space from where to think of the relational aspect between law and politics. This becomes necessary due to a current phenomenon which Pierre Schlag calls “dedifferentiation,” where no distinction – and hence no relation – seems to be possible between law and other spheres of life. Opposing that conclusion, this article contends that engendering relations allows us to keep the terms connected in relative motion. The article then moves to describe four distinct modes of framing the relation between law and politics, which gives rise to very different disciplinary projects: law as politics, dating back to the legal realist movement; law as political science, which finds its current expression in empirical and quantitative research; law as political philosophy, generated by a renewed interest in “the political”; and law as political contingent, growing out of a similar interest but challenging the boundary-setting ambitions of philosophy. While the latter has not yet been adequately translated into law, I suggest as an alternative the work of Jacques Rancière, which declines to grant an aura of invincible ubiquity to any totalizing description, including neoliberalism’s attempt to present itself as a world system.

2017

This dissertation consists of five previously published articles and an introduction that presents the theoretical framework, methodology, main arguments and the common themes of the articles. The overall contribution of the research is that it shows how, on one hand, the legal practices reproduce the unified citizen subject, and how the human subject is fragmented in legal practices on the other hand. In other words, this dissertation focuses in producing 'us' and 'the other' in law. The first two articles discuss the ways in which 'us', the citizen subject, is produced in law by observing how the European Court of Human Rights deflects disobedience and political protests. In the first article, Disobedient Subjects-Constructing the Subject, the State and Religion in the European Court of Human Rights, I argue that in the so called headscarf cases, the logic of the legal argumentation can be traced back to the subjectivation of the citizen, as the Court reproduces the way in which the relationship between religion and the state is entangled with the citizen subjectivity. Moreover, my analysis shows that the Court's approach to religion depends on whether religion is conceptualized as a personal belief system, cultural tradition, or as political. The second article, Rebels without a Cause? Civil disobedience, Conscientious objection and the Art of Argumentation in the Case law of the European Court of Human Rights continues the analysis on the Court's approach to disobedience. I argue that the political challenge posed to society by the conscientious objector is transformed in legal proceedings into a question of one's personal right to freedom of religion and belief. It is interesting that the Court's argumentation strategy in the Islamic headscarf cases is completely opposite to the argumentation used in the cases of conscientious objection to military service. In the headscarf cases, the Court chooses to emphasise the headscarf as a political symbol, whereas it treats conscientious objection as a manifestation of personal belief. It would be perfectly plausible to reverse the two strategies, and regard the headscarf primarily as a manifestation of personal belief, and conscientious objection as a political statement. ACKNOWLEDGMENTS This thesis is the result of several years of research at the Faculty of Law at the University of Helsinki. I have been very fortunate to receive the trust and support of many people. Although I cannot mention everybody here, I warmly thank everybody with whom I have had the pleasure of working together. First and foremost, I would like to thank my supervisors, Assistant Professor Sakari Melander and University Lecturer Samuli Hurri. The most important support a doctoral candidate can have is the feeling that their supervisors believe in them. Sakari Melander has offered his invaluable support consistently throughout the years, and always believed that my work is worthwhile. Samuli Hurri has been the single most influential person for my work, both as a supervisor and as an amazing, inspiring thinker. I am immensely grateful to the two pre-examiners, Professor Scott Veitch and University Lecturer Susanna Lindroos-Hovinheimo, who have been so generous to take the time to closely read my manuscript and help me to improve it. I am honoured that Professor Veitch accepted the faculty's invitation to act as an opponent during the public examination of this thesis. His fascinating scholarly work has had a significant impact on my own thinking. As a brilliant teacher and scholar Susanna Lindroos-Hovinheimo has inspired my work throughout the years. My past and present teachers and mentors are especially important to me in my development as a researcher. Thank you,