The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial (...) decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

This article reflects on the received view of the rupture which constitutes the beginning of a critical, ethical, political and legal opening, the understanding of which inhabits the cry of, and response to, injustice. It takes the very critique that feeds into, and is distorted by, practical reasoning, as its point of departure. Grasping this rupture as the complementary relation between deconstruction and radical alterity, would entail unreflectively accepting a certain kind of truthfulness—truthfulness as [in]correctness, manifesting in a relationship that (...) involves rootless and controlling movement of making and unmaking of world. In closely reading Wittgenstein and Heidegger on the level of seeing, showing and saying, truthfulness is shown to contain an essential tension between, on the one hand, the Socratic, metaphysically-bound notion of beingness, correctness and meaning-steering and, on the other hand, the pre-Socratic notion of unconcealment (a-lethia), which, pointing even earlier than pre-Socratics into aboriginality, involves attentive letting of gliding in the inexpressible saying of language. While steering is about generating new possibilities of expressibility, gliding is about poetic dwelling, or enduring inexpressibility as a constitutive part of saying. Although aletheia is taken to be the key influence on rootless post-foundational thinking, it is argued that unconcealment involves letting and enduring the presencing inexpressibility of place and home-coming, that is, worlding-rootedness; thus showing Heidegger’s originary politics as the district of the uncanny to be about worlding that attentively lets the presencing inexpressibility of earth be as place. In reading Heidegger’s views on humanism, beginning and language, the argument links inexpressibility—essentially and historically—to the grasping of the belongingness together of world, earth and place, viewing this belongingness as key to both the saying of art and of mortals dwelling together temporally, spatially, materially in a manner always strange to, and nearer than, the steering/controlling of beingness, time, space and place that the very gesture and emergence of critique is captive of and is not capable of attuning to and capturing. Art always estranges the metaphysical cycle of correctness which preserves pain and suffering—a cycle that inhabits a double bind of responding to violence and injustice generated by the violence of metaphysics with metaphysical violence and justice. In showing essential strife within truthfulness itself, Heidegger points to even greater and earlier problematic than the pre-Socratics—to the painful core of inexpressibility between the ontology of steering time, spaces and material—steering places—and the gliding temporality, spatiality and materiality of ontology of place. (shrink)