Protracted and bitter resistance by alter- and anti-globalisation movements shows that the globalisation of law transpires as the globalisation of inclusion and exclusion. Humanity is inside and outside global law in all its possible manifestations. But how is this possible? How must legal orders be structured, such that, even if we can now speak of law beyond state borders, no emergent global legal order is possible that does not include without excluding? Is an authoritative politics of boundaries possible that neither (...) postulates the possibility of realising an all-inclusive global legal order nor accepts resignation or political paralysis in the face of the globalisation of inclusion and exclusion? These pressing questions guide this book, opening up a vast field of enquiry that demands integrating sociological, doctrinal and philosophical perspectives and insights. (shrink)

Appealing to the original meaning of the Greek term nomos, Hannah Arendt claims that a bounded legal space is constitutive for political community. Can this seemingly anachronistic claim be substantiated in the conceptually strong sense that every polity - the Greek city-state as much as a hypothetical world state - must constitute itself as a nomos? It is argued that whereas Arendt falls short of justifying this claim, a reflexive reading of nomos can do the trick: the space of political (...) community is necessarily bounded because no polity is imaginable that does not raise a claim to an inside as the community’s own space. A world state, were it ever to be founded, would globalize nomos, not suppress it. Whence the political problem: how does a polity deal with its outside? This problem is particularly pressing because Carl Schmitt’s defense of nomos radically challenges Arendt’s position. A reinterpretation of her analyses of the foundation of a political community suggests how the representational structure of a politics of boundaries parries Schmitt’s challenge. (shrink)

What happens to the concept of security if legal disorder manifests itself not only as illegal behavior but also as alegal behavior—acts that challenge the very distinction between legality and illegality, as drawn by a political community? Focusing on European immigration policy, this paper examines how the distinction between illegal and alegal acts critically illuminates the relation between collective (in)security and the concept of legal (dis)order. It concludes by arguing that this distinction sheds new light on the systematic relation—and tension—between (...) security, freedom, and justice. (shrink)

How is distributive justice possible with respect to immigration if political decisions about entry and membership cannot be grounded in the symmetry of a prior commonality, human or otherwise, that could guarantee reciprocal relations between members and nonmembers? This paper deals with both aspects of this question. Initially, it engages critically with Seyla Benhabib's plea for ‘dialogical universalism,’ showing why the strong discontinuity between political and moral reciprocity precludes understanding distributive justice as the process of mediating between political particularity and (...) moral universality. Subsequently, it suggests that a way out of this conceptual and normative impasse can be found in the fact that boundaries create a double asymmetry. This double asymmetry is constitutive for the ‘dia’ of the political dialogue that separates and joins members and nonmembers. This ‘in between,’ which eludes control by the parties to a dialogue, is the realm of distributive justice. (shrink)

How is distributive justice possible with respect to immigration if political decisions about entry and membership cannot be grounded in the symmetry of a prior commonality, human or otherwise, that could guarantee reciprocal relations between members and nonmembers? This paper deals with both aspects of this question. Initially, it engages critically with Seyla Benhabib's plea for ‘dialogical universalism,’ showing why the strong discontinuity between political and moral reciprocity precludes understanding distributive justice as the process of mediating between political particularity and (...) moral universality. Subsequently, it suggests that a way out of this conceptual and normative impasse can be found in the fact that boundaries create a double asymmetry. This double asymmetry is constitutive for the ‘dia’ of the political dialogue that separates and joins members and nonmembers. This ‘in between,’ which eludes control by the parties to a dialogue, is the realm of distributive justice. (shrink)

Polities appeal to the principle of distributive justice when justifying the right to inclusion and exclusion they claim for themselves with respect to immigrants: to each their own place. This paper attempts, in a first stage, to explain the nature of the link between distributive justice and an alleged right to inclusion and exclusion, as manifested in the political use of indexicals such as ‘we’, ‘here’, and ‘now’. Drawing on an analysis of the European Union, it subsequently shows why the (...) use of political indexicals, when officials exercise the EU’s putative jus includendi et excludendi, is only possible by invoking the utterance of a first ‘we-here-now’ that has no referent. The relation between distributive justice and an alleged right to inclusion and exclusion*a polity as a nomos, as I will call it*is rendered both possible and continuously undermined by an anomos*the invocation of a polity and a world that are not and cannot be in empirical space and time. Keywords: borders; political reflexivity; European Union; inclusion/exclusion (Publication online: 7 November 2008) Citation: Ethics & Global Politics. Vol. 1, No. 4, 2008, pp. 193-212. DOI: 10.3402/egp.v1i4.1893. (shrink)

This paper argues that no legal order is possible unless it is bounded in space, time, membership and content, ie that boundaries are an intrinsic feature of the concept of law. In particular, while the organisation of the inside/outside distinction in terms of domestic and foreign state orders is certainly contingent, not so the distinction between inside/outside in terms of the contrast between a space deemed to be a collective's own space and strange places, which is constitutive for any possible (...) legal order. The constitutive role of boundaries for legal order becomes apparent in the face of a-legal behaviour, ie behaviour that contests the distinction between legality and illegality as drawn in the spatial, temporal, subjective and material boundaries of the legal. (shrink)

Heidegger’s critique of European nihilism seeks to expose self-legislation as the governing principle of central manifestations of modernity such as science, technology, and the interpretation of art as aesthetics. Need we accept the conclusion that modern constitutional democracies are intrinsically nihilistic, insofar as they give political and legal form to the principle of collective self-legislation? An answer to this question turns on the concept of power implied in constituent and constituted power. A confrontation of the genealogies of modern subjectivity proposed (...) by Heidegger and Blumenberg suggests that there is indeed a metaphysical core to the concept of constituent power developed by various political theorists, including Schmitt and Habermas. By contrast, closer consideration of the paradoxical relation between constituent and constituted power illuminates the ambiguity of collective self-legislation, which means both enactment of a legal order by a collective self and the enactment of a collective self by a legal order. To the extent that constitutional democracies are a way of preserving rather than dissolving this ambiguity, they imply an interpretation of power and human finitude that parries the charge of nihilism. (shrink)

The act of 'setting the law' enjoys a central position in Kelsen's theory of authority. His analysis of this act criticizes, amongst others, the assumption of natural-law doctrines that norms are objective when they duplicate a content given directly to cognition and independently of the act whereby the norm is enacted. Correctly, Kelsen attacks the concept of representation underlying this assumption as an example of metaphysical dualism and a copy theory of knowledge. Does, then, an alternative understanding of authority require (...) scrapping representation from a theory of positive law? Or does it require interpreting representation differently? Following the second path, this paper reconstructs the act of setting the law in terms of the critical concept of representation developed by Ernst Cassirer and suggests how, thus reconstructed, the structure of this act can account for the law's authority and its contingency. (shrink)

The act of `setting the law' enjoys a central position in Kelsen's theory of authority. His analysis of this act criticizes, amongst others, the assumption of natural-law doctrines that norms are objective when they duplicate a content given directly to cognition and independently of the act whereby the norm is enacted. Correctly, Kelsen attacks the concept of representation underlying this assumption as an example of metaphysical dualism and a copy theory of knowledge. Does, then, an alternative understanding of authority require (...) scrapping representation from a theory of positive law? Or does it require interpreting representation differently? Following the second path, this paper reconstructs the act of setting the law in terms of the critical concept of representation developed by Ernst Cassirer and suggests how, thus reconstructed, the structure of this act can account for the law's authority and its contingency. (shrink)

I would like to use this seminar to have your views on the first draft of Part I of the monograph I am currently writing about the relation between boundaries and legal order. Part I falls into four chapters. Chapter 1 contextualizes the discussion by drawing on the findings of Saskia Sassen's empirically informed contribution to the sociology of globalisation to undermine the widely shared assumption that the uncoupling of law and state exposes the inside/outside distinction as a merely contingent (...) feature of legal order. Chapter 2 is the conceptual heart of Part I: it unveils a preliminary model of legal orders, national and post-national, that explains why they are necessarily bounded in space, time, subjectivity and content. It runs through three concrete scenarios that illustrate how behaviour can deploy at least three different relations to boundaries, namely legality, illegality and a-legality. The third of these relations captures the nature of the distinction between familiar and strange worlds; it is decisive for explaining why all imaginable legal orders are perforce bounded in each of the abovementioned dimensions. Chapter 3 tests and validates this model, scrutinising its explanatory power with respect to a wide range of possible counter-examples. It discusses, amongst others, the hypothetical example of a world state; the European Union and its relation to the law of its members states; the law of a nomadic people, the Roma; the law of an indige-nous people, the U’we in Colombia; lex mercatoria; multinationals; and the law of the internet. Chapter 4 draws, finally, on these empirical results to revisit and refine the model of bounded legal order sketched out in Chapter 2. The core of this chapter is the problem of the individuation and deindividuation of legal orders. This problem had been introduced at the end of Chapter 1 as a more promising way of illuminating the relation between boundaries and legal order than the traditional theoretical approach to the concept of law, which focuses on the criteria that distinguish law from.... (shrink)

The current debate about the borders of the European Union, hence about its spatial unity, is also a debate about its historical unity. How, then, are we to understand the possible interconnection between space and time with respect to the Community’s legal order and, more generally, with respect to an order of positive law? Initially, this paper explains why received legal theory is incapable of understanding the European Community as a legal time- space.Subsequently, an analysis of Van Gend & Loos, (...) a famous ruling of the Court of Justice of the European Communities, reveals that law-setting temporalises and spatialises, in the strong sense that to posit a legal norm is also always to posit a legal order as a temporal and spatial unity. As becomes clear in the course of the inquiry, the ambiguity governing the genesis of a legal order manifests itself in what Bernhard Waldenfels calls the chiasm of strangeness and familiarity: the institution of the European Community as a Heimwelt also makes of Europe a Fremdwelt, thereby precluding that Europe can altogether be the Community’s “own” place. (shrink)