Semantics of European Law

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.

American Journal of International Law, 1986

Comprehensive and accessible, this book offers a concise synthesis of the evolution of the law in Western Europe, from ancient Rome to the beginning of the twentieth century. It situates law in the wider framework of Europe’s political, economic, social and cultural developments. Offering a readily graspable and sound structure, chapters are organized according to the civil law systems and common law systems. Each chapter is built around the evolution of the four sources of the law: legal science, legislation, courts and customary law, set chronologically against the relevant historical context. Throughout this in-depth presentation of the key determinants in European legal history, Bart Wauters and Marco de Benito allow readers to understand how the law arose and evolved in Europe as a shared language, of which its different national laws are but dialectal expressions – with the unique exception, perhaps, of English common law, whose peculiarity is likewise due to accidents of history which are themselves explored. With its elegant comparative approach, this book will appeal to European Law students and scholars looking for a concise, yet academically sound, account of the history of law in Europe.

ina [FS Philip Thomas], 2010

A jog mint kultúra', a reply to András Karácsony's polemical essay in Jogelméleti Szemle 2002/3 <http://jesz.ajk.elte.hu/varga11.html>. 1 As we know, this has never been a fulfilled claim, not even in principle-if not back in the age of exegetic law-application in the first third of the 19 th century, when this ideal was pursued with all efforts in the euphoria of the textuality of the Code civil, with mechanical imple-10 DISCIPLINARY ISSUES mentation guaranteed and the legal clearly separated from the non-legal.The legal profession's smooth acceptance of the regime of National Socialism was due largely to the positivistic formalism inherent in modern formal law-similar to the strikingly easy transition of the German bureaucracy once created by BISMARCK to the post-BISMARCKian era, as described by WEBER. Both Soviet Bolshevism and German National Socialism broke with legal formalism, tracing it back to the liberal tradition, and condemned it as anti-revolutionarily bourgeois. The national socialist conception of law, defined by OTTO KOELREUTTER as he introduced Volksgeist and the Führer-Prinzip, remained faithful to this all along. In contrast, Bolshevism, further reduced to STALINism, returned to the classical bourgeois model simplistically idealised and broken into a dictatorial hierarchy. Cf., by the author, Codification as a Socio-historical Phenomenon (Budapest: Akadémiai Kiadó 1991) viii + 391 pp., especially chs.V-VI. 2 As to the latest development, cf., by the author, 'Meeting Points between the Traditions of English-American Common Law and Continental-French Civil Law (Developments and Experience of Postmodernity in Canada)' Acta Juridica Hungarica 44 (2003) 1-2, pp. 21-44 & <http://www.akademai.com/content/x39m7w4371341671/fulltext.pdf>. Accordingly, for me the genuine question is not when and to what extent legal positivism could become dominant at all-either as a theory or as an allegedly successfully implemented practice-but its underlying ideology. For the whole concept of Civil Law is defined throughout by the reduction of ius (as the core element of juridicity) to lex (as a set of posited texts), that is, by the embodiment of anything legal being posited by legal acts and, thereby, by reducing the complexity of legal processes to the artificial separation between 'law-making' and 'law-applying', or-in brief-by an institutional ideology (no longer separable from the very structure it institutionalises) that has remained up to the present day quite alien, strange and simply incomprehensible in light of the English as well as for the classical Jewish and Islamic understandings of law. 3 It was more than thirty-five years ago that I formulated for the first time as my own realisation just how dual our approach to law and legal conceptualisation is. That is, within a given legal arrangement we cannot but formulate each and every issue in a positivistic way, or, to put it another way, from the perspective of the image and ideology the law offers about itself, while in scholarship we have to provide a (philosophical, sociological or analytical) description and conceptual definition verifiable/justifiable in theoretical reconstruction. 4 And, my studies on LUKÁCS also revealed to me that such a self-image is by no means something randomly attached from the outside to the otherwise automatically well-functioning realm of law after the fact, but is part of the legal arrangement in question as a sine qua non integral component of it. 5 This is the context in which the feasibility of investigations dedicated to equations like "law as…" emerges, with variables such as history, culture, communication, process, linguistic game (etc.)-i n a d d i t i o n t o "law…" as positivation, text, rule (etc.). However, all this is not meant to eliminate the law's positivistic self-description as it defines the self-identity of modern formal law but only to promote theoretical reconstruction with insights not otherwise accessible. And it is to be noted that no such investi-Law as Culture? 11 3 Cf., e.g., Peter G. Sack 'Law & Custom: Reflections on the Relations between English Law and the English Language' Rechtstheorie 18 (1987) 4, pp. 421-436. 4 Cf., by the author, 'Quelques questions méthodologiques de la formation des concepts en sciences juridiques' in

2011

SSRN Electronic Journal, 2008

Acta Universitatis Lodziensis. Folia Iuridica, 2019

The legal predicament of today in Europe and beyond takes the form of a devaluation of the meaning of legality, constitutionality and, of the rule of law. What we are dealing with is yet another crisis of both the tradition of the Rechtsstaat in continental setting and, more broadly, of liberal legality. While this disruption within the sphere of the law seems to mirror the reshuffling in established politics that took place over the last twenty years, it traces back to central jurisprudential questions that have made the substance of crucial debates during the interwar and have fashioned both the field of constitutional theory of the continent and our jurisprudential apparatus for approaching the nexus between law and politics. In this article I argue that the apparent uchronia that the current status of the law opens in relation to past theoretical questions that were seeking to ground legality, is neither a simple by-product of a Zeigeist oversaturated by appeals to procedural de...

Erasmus Law Review, 2011

This paper traces the common history of European legal scholarship from its beginning in the late 12 th century to the development of national codifications which started some six centuries later. During this period, Roman law was of great importance in the universities, and Justinian's Corpus Iuris Civilis was the central text for legal studies. We will look at the different approaches to this body of text that legal scholarship has taken over the years. Still, Roman law did not have a complete monopoly: we will have a look as well at Canon law and Moral Theology, which also developed a system of legal norms, but on an entirely different basis. They paved the way for Natural law, which-in a critical dialogue with Roman law-paved the way for modern codifications.

Towards a European Legal Culture, 2014

All rights are reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permisson of Nomos Verlagsgesellschaft, or as expressly permitted by law under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Nomos Verlagsgesellschaft at the address above.

Forthcoming in: The Law of Political Economy: Transformations in the Function of Law edited by Poul F. Kjær, Cambridge University Press , 2019

2018