Intellection and Indiscipline

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.

HUMANA.MENTE Journal of Philosophical Studies, 2022, 41, 1-23 ISSN: 1972-1293, 2022

This article explores the concept of institution as the legal performance par excellence. It starts by giving an account of the perspective that Merleau-Ponty opens on the notion of institution and aims to show the connection with the concept of passivity. The central focus is on the dynamics of instituting: in order to deal with this concept and to see its implications in the field of philosophy, it will proceed by making Merleau-Ponty's speculations dialogue with the research conducted in the same year (1955) by Deleuze: Instincts et institutions. In passing, it will be necessary to...

The broad dissemination of digital communication technologies is raising disturbing questions about the nature of truth as representation. This epistemological crisis shares an uncanny affinity with the crisis of representation that lay at the heart of the baroque era during the 17th century in Europe. The resolution of that crisis, through the work of Descartes and others, came on the heels of a philosophical shift from the image to the sign. Not incidentally, that move was accompanied by significant political and juridical developments, including: the origin of legal positivism, the rise of conventionalism (or nominalism), the disenchantment of nature and the decline of natural law, and the emergence of the modern nation-state. The semiotic model today, however, is strained to the breaking point. Infinitely mutable digital signs proliferate as copies of copies; signifiers have been shorn of the signified. The ensuing mutation of the Cartesian sign into the digital image has been a...

The paper is to answer the question what jurisprudence is. Is it still “the science of things divine and human”, as it was wonderfully stated in the Code of Justinian in 534, following Roman law (Roman jurisprudence) and great Roman jurists like Ulpian? Is jurisprudence still “the science of the just and the unjust”, as we read in the Code? I propose to go to Justinian’s Compilation, Book I. Of Persons, I. Justice and Law: Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. The paper will also examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century. The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe. My thesis is that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was essentially redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Now axiological consistency of Western law is full of … inconsistency. Something is broken in jurisprudence. Nowadays, in the beginning of the 21st century, for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy. However, there are good exceptions (Finnis, Witte, Bankowski). There is an axiological struggle in this science indeed. What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state. Its practical importance in legal education and political science is remarkable. I analyse relations between law and religion (and morality) in jurisprudence while talking about the condition of the today Western jurisprudence. Furthermore, while going back to the origins of law in Europe, I focus on three roots: Greek philosophy (Aristotle and Plato), Roman law (Ulpian, Cicero, Gaius etc.) and Medieval jurisprudence and theology (St. Thomas Aquinas, Medieval jurists like Accursius, Iacobus, Bartolus, Baldus, and the Salamanca school of natural law in the persons of Suarez, Molina, Lessius etc.). Western law conceptually was rooted in Christianity. Sadly, while answering the question from the paper sub-title, it seems to me that nowadays jurisprudence is more about human things, but almost not about divine things; God does not exist for the legislator and most of the legal scholars. God died, as Nietzsche said. Nowadays also the great idea Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) is a slogan, since moral philosophy as “a mother of law” (Baldus Commentaria to D. I.I.I.2) seems dubious. The necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Colosseum, and Golgotha, is becoming so obvious. This was and is Justinian’s heritage.

Shimla Law Review, 2019

Justice has been a desired ideal for every civilisation. Even much before the invention of printing press, justice attracted all too discursive idealisations. In every epoch, justice is discursively crafted and understood. In that sense, theories of justice are produced within the limitations and conditions of episteme, accepted in the particular society, under a few sets of discursive rules. From Greek pre-determinism to the spirit of European enlightenment, the industrial age to the digital age, theories and common understandings of the discourse were formulated and rationalized around a few epistemic principles. In Greco-Roman cultures, for example, pre-determinism and teleological ‘rationality’ were the preconditions for the discourse of justice. In Scholastic tradition, teleology remains in the form of theology. During the course of Renaissance and afterwards, the spirit of scepticism and inductive reasoning turned out to be the defining features in the establishment of new science as authority; in that epoch, power and knowledge were embraced and celebrated as the episteme to rewrite the relationship between human and nature. In the process of Industrial revolution, instrumental reasoning produced a widespread culture of ‘consumer society’, and a bureaucratized and rationalized art of government. To address the growing demands for the security of the businesses and the predictability of the outcome, the rationalized systems of law were developed across the Europe. In a post human trajectory, technological rationality has become a source of truth and justice.

Jacques Cujas apparaît comme l’un des principaux représentants de l’humanisme juridique, courant qui introduit l’idée d’évolution dans la construction du droit et des institutions. Au fil de ses professorats, Cujas poursuit la critique humaniste en portant à son apogée la méthode historique. Il cherche à rétablir les textes dans leur version d’origine par la recherche des interpolations, tout en intégrant les dispositions commentées dans la longue durée. Il s’appuie tant sur sa maîtrise de la doctrine juridique, que sur sa vaste culture littéraire et philosophique. Ses travaux de philologue et d’éditeur restent d’utiles références, sans même évoquer ses reconstitutions commentées des ouvrages des juristes romains ou son analyse critique du corpus juris civilis. L’érudition ne tient cependant pas Cujas trop éloigné de la pratique, comme le prouvent ses consultations ou son étude de la féodalité. Soumis à l’épreuve de l’humanisme cujacien, le droit ressort transformé de la confrontati...

Ratio Juris, 2020

Persona Y Derecho, 2018

The article revisits and seeks to clarify and provide with new perspectives the debate between the theoretical approaches of four authors - Michel Villey, Brian Tierney, John Finnis and Javier Hervada - in their accounts of the contemporary formulation of the concept of «ius». Although all authors analyzed in the paper share common thomistic roots in their respective argumentations on the essential meaning and content of the concept of «right», they still differ in their accounts with regard to the understanding of Aquinas's classical juridical realism, the relation between «law» and «right» and the role of subjective rights in history and in today's juridical discourse. The paper seeks to highlight how such comparative perspective reveals not only the contrasts in the theoretical accounts of these authors with regard to the structural «locus» of the focal point of juridicity, but also renders manifest certain perspectives of integration of each approach with contributions achieved by the other interlocutors of the debate. Resumen: El artículo revisa y busca aclarar y proporcionar con nuevas perspectivas el debate entre los enfoques teó-ricos de cuatro autores - Michel Villey, Brian Tierney, John Finnis y Javier Hervada - en sus relatos de la formulación contemporánea del concepto de «ius». Aunque todos los autores analizados en el documento comparten raíces tómisticas comunes en sus respectivas argumentaciones sobre el significado y contenido esencial del concepto de «derecho», todavía difieren en sus relatos con respecto a la comprensión del realismo jurídico clásico de Tomás de Aquino. El artículo busca destacar cómo esta perspectiva comparativa revela no sólo los contrastes en los relatos teóricos de estos autores con respecto al «locus» estructural del punto focal de la juridicidad, sino que también pone de manifiesto ciertas perspectivas de integración de cada enfoque con las contribuciones alcanzadas por los otros interlocutores del debate.

Iustum Aequum Salutare XVI. 2020. 1. • 53–64, 2020

This is the published version of the speech delivered on the occasion of the awarding of the honorific title of ‘Distinguished Scholar of Natural Law’ in Pázmany Péter Catholic University, Budapest, May 31st, 2019. It provides some insights on the developments of my studies in the field of philosophy of law and legal logic. In the first three sections I stress the crucial role played by some Italian authors very critical of Kelsen’s normativism, as well as the philosophy and logic conceived by St. Augustine of Hippo and Francis Petrarch (my first two objects of research). In these sections I focus mainly on the relationship between rhetoric and truth. In the 5th section I discuss the origins of modern thought as far as they would be rooted in Neoplatonic philosophy. In the last three sections I extend my gaze to contemporary legal argumentative theories and to the dramatic loss of the sense of reality which characterizes many accounts on judicial logic.