It should have become clear by now that the following discussion will be theoretical in perspective. Historical studies, like any other form of science, cannot be conducted without a theoretical framework. Sometimes, we are unaware of the distinctions we draw before we search for material, select and interpret it; some even think that we should just let the sources speak for themselves. Nevertheless, no material can speak for itself: it can only answer to questions we ask. And these questions we (...) ask are dependent on our present preconceptions of bygone societies and their historical development; as every hermeneutic endeavour, historical studies begins with a Vorurteil (prejudice). Many studies of the eighteenth-century public sphere have started out from those conceptions outlined by Habermas; as mentioned above, most of these studies found fault in Habermas's description of the eighteenth century and revealed his preconception as a prejudice. However, by exposing Habermas's approach as ideological, it seemed easy to claim a common-sense, bias-free position for oneself. I do not think such a position is possible: the hermeneutic Vorurteil can never be overcome entirely; it can only be adequately reflected and adjusted. Rather than claiming to work without all preconceptions, one should, I think, try to explicate one's theoretical framework as precisely as possible. If there really are too many findings that cannot be integrated into Habermas's model, one should look for a new model that might be better suited to give meaning to new historical evidence. It is such a new theoretical framework that I want to propose here. In order to do so, a meticulously detailed examination of Habermas's framework is necessary to find out which theoretical decisions led to the shortcomings of his approach. Following this re-examination, I will try to construct a new framework that avoids Habermas's shortcomings. Of course, this new theoretical framework will only be as good as the extent to which it is able to integrate historical evidence and extricate meaningful answers from these sources. Unfortunately, however, there is not enough space here to put the new framework to the test - that will have to be done elsewhere. (shrink)

This chapter presents the striking similarities between the cases of Mr Kadi and Josef K., and indeed their contrasting conclusions, to delve into the insights of Franz Kafkas fictional depictions of the law. These focused heavily, among other themes, on the experience of law for those who are subject to the legal systems demands but who do not have, at that moment at least, privileged access to its inner workings. Rather, therefore, than contributing to the literature on Kadi which focuses (...) on intra- and inter-systemic normative conundra, this chapter seeks to understand law as it is experienced as a social artefact which primarily serves and seeks to regulate the actions of people who are not lawyers. Finally, this chapter draws further on the Kadi saga to demonstrate that, beyond these conceptual concerns, certain empirically observable contemporary trends within the law are contributing additional complexity to this problem. (shrink)