Philosophy & Social Criticism, Volume 47, Issue 9, Page 1025-1042, November 2021. In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Against this view, I argue that this trend – which some scholars call ‘juridification’ – can be key to giving life to new forms of politics. First, I show why juridification is a political more than (...) a legal process. Second, I illustrate recent critiques of the dangers inherent in the particular type of juridification that involves the growing use of rights. Third, while concurring with these critiques, I make the case that other facets of juridification are often underrated that can ignite a novel kind of politics. On this account, I go on by elaborating on the idea of self-organization of social groups vis-à-vis the state that is entailed in this notion of politics. Finally, I discuss the recognition of non-conventional family networks to exemplify how a politics of juridification could work. The conclusion is that, while juridification calls for a thorough revision of the tasks of politics, it does not thwart it. Rather, traditional representative politics could and should take stock of how it involves social actors in the creation of new bodies of regulation. (shrink)

This article takes the interlinkages between law and politics as its starting point. It analyzes recent changes in the legislative style of education governance in Sweden as not only a species of crisis management, but also a long-term response to a series of tensions arising out of the push toward what has been identified as ‘juridification’ in many Western nations—the reliance on law and judicial means for addressing core moral predicaments, public policy questions, and political controversies. The article outlines (...) the notion of juridification at a theoretical level and highlights juridification processes and their possible ramifications on education. It argues that recent changes in the legislative style of education governance in Sweden not only reveal much about the commitments and implicit assumptions of modern regulatory and evaluative regimes, but also reflect the general impact of the rationalization of social and political life on the organization of government. The article provides a case with which to examine some of the theoretical underpinnings and implicit conceptual assumptions of modern regulatory and evaluative regimes as well as educational institutions’ relationships with the State. It shows that regulatory frameworks define the conceptualizations of what educational institutions do and thus of what actually gets done. (shrink)

The article starts with the observation of an ambivalence inherent to the politics of juridification. On the one hand, some spheres of the life-world such as the family and the school are often places of exploitation, degradation and humiliation and therefore seem to require the implementation of legal protection for their members. At the same time, the demand for rights seems somehow to grasp too little, would be inadequate or even counterproductive. How can this ambivalence be politically dealt with? (...) I first briefly reconstruct Jürgen Habermas' concept of juridification. I believe that Habermas works with an image of the family and the school as communicatively constituted and juristically uncompromised milieux, which proves to be highly questionable. In a second step I consider Axel Honneth's theory of the absolutization of legal freedom as offered in his recent work Freedom's Right. Honneth sidesteps several problematic implications of the Habermasian thesis of colonization, but still tends to underestimate the dominant patriarchal power relations in the spheres of the family and the school. Finally, I pursue Honneth's own suggestion that a new notion of politics is required for understanding contemporary struggles for recognition, which overcomes the statist tendencies of liberalism. I therefore propose to shift the perspective on the phenomenon of juridification, viewing it instead from the standpoint of the agents themselves, by turning to Wendy Brown's feminist theory on the paradoxes of rights. (shrink)

In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Aga...

What is 'legal' about bioethics? What are the ideas and artefacts that bioethics encompasses, and how are they related to law? What is the role of law in bioethics? In this work, Calvin Ho attempts to address these questions in the context of the governance of human pluripotent stem cell research. In essence, he argues that the hybridization of law, through processes, devices and techniques of juridification, has helped to constitute bioethics as a public sphere and an emergent civic (...) epistemology. Drawing on his multi-sited ethnographic fieldwork and on Actor-Network-Theory, Ho explains how the law has, through bioethics, contributed to the scientific and public understanding of human pluripotent stem cell research and its artefacts, particularly the embryo and human-animal combinations. Although the focus of his work is on bioethical developments in Singapore over a period of more than 15 years, parallel developments in key jurisdictions (especially the United States of America and the United Kingdom) and in international science policy are also evaluated. It is through appreciating how it has progressed that bioethics will be better able to engage with future challenges presented by advances in human embryo research and gene editing techniques, among others. (shrink)

This book provides a theory of the juridification of business ethics. Ethical codes pop up everywhere in the business world and increasingly resemble the code of law. A focus on compliance rather than reflection becomes the norm. Legal perspectives replace ethical perspectives, turning ethicists into lawyers without a law degree. This juridification of business ethics conceals a diminishing trust in ethics, as legal reasoning substitutes philosophical thinking. By appealing to the critical study of law, Bart Jansen advocates for (...) a renewed focus on the ethical side of business. This book shows the importance of a good balance between law and ethics in business and is of great interest to both academics and professionals. (shrink)

This article takes the interlinkages between law and politics as its starting point. It analyzes recent changes in the legislative style of education governance in Sweden as not only a spec...

What is the distinctive trait of the Latin American pattern of modernization? In contrast to western societies, where the debate on modernization has been dominated by the Weberian thematic of bureaucratiz-ation, the most salient feature of the Latin American developmental path is the chronic frailty of legal-constitutional arrangements. In Latin America, the process of modernization and social differentiation has not been followed by the legal stabilization of social complexity but is characterized by a low degree of juridification and institutional (...) precariousness. Drawing on insights from both Luhmann's and Habermas' theories, the article provides a critical theoretical framework for the study of the peculiarities of the Latin American modernizing path. (shrink)

The paper argues that the current global market is organized by a system of transnational law whose development is best characterized as ambivalent. On the one side, legal juridification can lead to a hegemonic system of international law that lacks legitimacy, paradoxically creates extralegal spheres, promotes the ‘privatization’ of political areas, and, thereby, reduces the competences of states. On the other side, legal codification can also function as an engine of transnational democratization and as a barrier to an unhampered (...) growth of transnational administrative and executive power. Scholarship on the idea of legitimacy in law and transnational governance in political and legal theory has to reflect these aspects of juridification on a world scale. Most approaches to the issue, however, have serious flaws: they neither offer an adequate empirical diagnosis of the de-embedding of international economic and legal processes, nor do they provide convincing proposals as to how such processes could be domesticated. Against this background, the paper lays out a critical analysis of legal codification processes as well as proposing an account of democratic governance, based on a realistic conception of deliberative democracy. (shrink)

The social licence to operate concept is little developed in the academic literature so far. Deployment of the term was made by the United National Guiding Principles on Business and Human Rights and the UN ‘Protect, Respect and Remedy’ Framework, which apply SLO as an argument for responsible business conduct, connecting to social expectations and bridging to public regulation. This UN guidance has had a significant bearing on how public regulators seek to influence business conduct beyond Human Rights to broader (...) Corporate Social Responsibility concerns. Drawing on examples of such public regulatory governance, this article explores and explains developments towards a juridification of CSR entailing efforts by public regulators to reach beyond jurisdictional and territorial limitations of conventional public law to address adverse effects of transnational economic activity. Through analysis of an expansion of law into the normative framing of what constitutes responsible business conduct, we demonstrate a process of juridification entailing a legal framing of social expectations of companies, a proliferation of law into the field of business ethics, and an increased regulation by law of social actors or processes. (shrink)

Volume 10, Issue 3, September 2019, Page 452-456.

BackgroundConcerns about decision making related to resuscitation have led to two important challenges in the courts resulting in new legal precedents for decision-making practice. Systematic research investigating the experiences of doctors involved in decisions about resuscitation in light of the recent changes in law remains lacking.AimTo analyse the practice of resuscitation decision making on hospital wards from the perspectives of doctors.DesignThe data presented in this paper were collected as part of a wider research study of end-of-life care in an acute (...) hospital setting. Data collection comprised ethnographic non-participant observation on two acute hospital wards and individual interviews with patients, relatives and healthcare professionals caring for patients thought to be approaching the end of life. Data were analysed using a constructivist grounded theory approach.ResultsDiscussions and decision making about resuscitation present many challenges for those involved on acute medical wards. The data highlight the potential for multiple interpretations of legal precedents, creating misunderstandings that may impact patient care in less positive ways.ConclusionsThis paper provides unique insights into how doctors respond to the changing medico-legal culture and the subsequent effects on patient care. It demonstrates how the juridification of medical practice can occur. It highlights the potential benefit of a structure to support clinicians, patients and relatives in discussing and navigating decisions around care at the end of life in line with the patient’s wishes and preferences. Recommendations for future research are made and legal ramifications are discussed. (shrink)

Legal studies and consequently legal history focus on constitutional documents, believing in a nominalist autonomy of constitutional semantics.Reconsidering Constitutional Formation in the late 18th and 19th century, kept historic constitutions from being simply log-books for political experts through a functional approach to the interdependencies between constitution and public discourse. Sovereignty had to be 'believed' by the subjects and the political élites. Such a communicative orientation of constitutional processesbecame palpable in the 'religious' affinities of the constitutional preambles. They were held as (...) 'creeds' of a new order, not only due to their occasional recourse to divine authority, but rather due to the claim for eternal validity contexts of constitutional guarantees. The communication dependency of constitutions was of less concern in terms of the preamble than the constituents' big worries about government organisation. Their indecisiveness between monarchical and popular sovereignty was established through the discrediting of the Republic in the Jacobean reign of terror and the 'renaissance' of the monarchy in the military resistance against the French revolutionary and later Napoleonic campaigns. The constitutional formation as a legal act of constituting could therefore defend the monarchy from the threat of the people (Albertine Statute 1848), could be a legal decision of a national constituent assembly (Belgian Constitution 1831), could borrow from the old liberties (Polish May Constitution 1791) or try to remain in between by referring to the Nation as sovereign (French September Constitution 1791, Cádiz Constitution 1812). Common to all contexts is the use of national sovereignty as a legal starting point. The consequent differentiation between constituent and constituted power manages to justify the self-commitment of political power in legal terms. National sovereignty is the synonym for the juridification of sovereignty by means of the constitution. The novelty of the constitutions of the late 18th and 19th century is the normativity, the positivity of the constitutional law as one unified law, to be the measure for the legality of all other law. Therefore ReConFort will continue with the precedence of constitution. (www.reconfort.eu). (shrink)

Volume 10, Issue 3, September 2019, Page 452-456.

This essay describes the ambitious claim of modern constitutionalism and distinguishes it from mere juridification of public power. It shows the challenges of constitutionalism that follow from the loss of identity between state power and public power. The essay asserts that the necessity to regulate public power persists, regardless of whether it is exercised by state authorities or international organizations. However, it raises doubts that the fragmented public power on the international level can be regulated in a way that (...) would satisfy the demands of constitutionalism. What can be observed is an ongoing juridification which, however, lacks basic features of constitutionalism. How a full compensation could look like is an open question. Translation by Matteo Bozzon – Università di Padova – [email protected]. (shrink)

This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion (...) of petty officials, who are therefore not sufficiently constrained by law. But the paper looks beyond the discretion of petty officials and argues that, in a way, the biggest threat to legality of our age comes from the proliferation of contractual norms, and the increasing diversion of contractual dispute-resolution into arbitration (and other ADR processes). The paper argues that those who rely on the law to recognise contracts should be subjected to an non-excludable jurisdiction of the courts in respect of all questions of law arising under those contracts, including their proper legal meaning. A compulsory arbitration clause, in other words, should be valid only subject to extensive judicial review of the arbitrator’s decisions. It is argued that contractual arbitration (and other ADR) that does not meet this condition is free-riding on the work of courts and professional lawyers, and should be regarded as antisocial – and that this is true even when it does more perfect justice between the parties. (shrink)

The European Union stands before a constitutional moment. While some deny the need for a constitution and others want a familiar federal form, I argue that one of the main goals of the constitutional convention ought to be to make the European Union more democratic. The central question is: what sort of democracy is suggested by some of the more novel aspects of European integration? This question demands a normative standard by which to evaluate the realization of democracy in transnational (...) polities. Along republican lines, the proper standard is nondomination. With this normative framework in mind, the problem that the constitution has to solve is juridification, or the possibility of legal domination where there is no unified sovereignty. The solution to this problem of legal domination requires that the constitution institute a reflexive legal order best realized in a deliberative federalism appropriate to a polycentric and diverse polity. Finally, the institutions of this federalism ought also to be characterized through their distinctive form of inquiry, which, borrowing from Gerald Ruggie, I call ‘multiperspectival’. In a transnational polity with multiple demoi, such a democracy is best realized through dispersed and plural forms of authority and in a differentiated institutional structure anchored in a reflexive constitution. (shrink)

Abstract According to Habermas' colonization thesis, reification is a social pathology that arises when the communicative infrastructure of the lifeworld is 'colonized' by money and power. In this paper I argue that, thirty years after the publication of the Theory of Communicative Action, this thesis remains compelling. However, while Habermas offers a functionalist explanation of reification, his normative criticism of it remains largely implicit: he never explains what is wrong with reification from the perspective of the people whose social relations (...) are reified. As a result, Habermas cannot explain why only some forms of colonization lead to reification effects. In particular, he suggests that reification effects result from the juridification of communicatively structured domains of action but not from the commodification of labour power. I criticize this argument and suggest that if the normative dimension of the colonization thesis is made explicit, a more nuanced explanation of reification becomes possible. (shrink)

This paper explores the relation of Foucault’s notion of counter-conduct to the Stoic notion of oikeiosis. Initially, oikeisosis is set against Platonic homoiosis, specifically as discussed in the Alcibiades, which provides what Foucault calls the “Platonic model” of conduct. The paper examines what Foucault means by “care of the self” and points to its difference from the Delphic maxim “know yourself” that centered on a principle of homoiosis, or ethical transcendence. Noting how the problematic of care of the self leads (...) to what Foucault calls “the government of conduct,” the paper considers the possibility of “counter-conduct.” Given that Foucault has argued that the autonomy of conduct has been rendered invisible through its “juridification,” this paper proceeds with a genealogy of the codification of morals in natural law theory. This culminates with the sixteenth century return to Stoicism in the person of Grotius. Showing that a certain conception of counter-conduct present in Gerson is transformed in natural law theory into a juridical grounding of the government of conduct, this paper draws out the immanent relation of conduct and counter-conduct in the notion of appropriation. Arguing that Grotius has fundamentally misunderstood the concept of oikeiosis, which he takes from Cicero and which subtends his theory of appropriation, this paper suggests that a return to the early Stoic formulation of oikeiosis allows for a rethinking of the problem of the government of conduct. A certain moralization of action, irreducible to codification that is present in early Stoic thought provides a model of “counter-conduct.” Ultimately, “care of the self,” as it is given in Stoic philosophy, relates the subject of action to the principle of ethical immanence that grounds Foucault’s critique of the subject. (shrink)

This essay draws upon Gramsci’s understandings of law and of the philosophy of praxis to develop a critical analysis of international law in the constitution and potential revolutionary transformation of the contemporary global political economy. The analysis illustrates the analytical utility of Gramscian conceptions of historical bloc and hegemony in capturing the significance of international law as an effective historical force. It also extends these conceptions, theoretically, by arguing that the global political economy is undergoing a process of juridification (...) in which a commodified legal form provides the template for economic and political regulation. The commodity form theory of law is presented as the key to understanding the significance of international law under the culture of global capitalism. (shrink)

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure ‘brute facts’ do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on ‘applicability rules’. The problem of ‘mixed terms’ is partly a matter of (...) judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)

In this editorial Soeharno takes a critical stand on the juridification of ethical principles within banking law. He argues that the legal incorporation of ethical principles, such as ‘integrity’ or ‘prudence’, is counter-productive. Within a legal context, these principles acquire a strictly legal significance and will be deprived of their essentially ethical character.

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights (health, education, work and housing – all of them guided by the idea of human dignity). If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be juridical or factual. Juridical liberty has no (...) value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. In fact, they are subjective rights, but special ones: they are prima facie subjective rights, so that their rules present exceeding content and the determination of the definitive right is only possible in the concrete case. There is only one subjective right that is a priori considered definitive: the right to Existenzminimum. Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. So Existenzminimum represents what is essential to assure human dignity. It is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, besides the arguments referred above, the following ones have also arisen: (a) Juridification of politics; (b) Legal permission of administrative discretion; (c) Possible reserve clause. These are the counter-arguments: (a) Legislative and Executive Powers have the original competence, but Judiciary has the exceptional one; (b) It is not enough to state economical incapability of the State. It is necessary to prove it objectively; (c) Powers have discretion, but State’s will is not allowed; (d) Public administration is under the principles of legality and of non-obviation of Judiciary jurisdiction; (e) The Existenzminimun guarantee is untouchable, prevailing over any opposite allegation. (shrink)

This article examines three episodes from the Life of Gregory of Agrigento, drafted in Greek in the 9th century, in which juridical material and procedure inform the hagiographical narrative, and vice versa. It argues that both spheres depend on, and contribute to, a common ‘nomos’, an idea of the righteous, lawful and cooperative coexistence of imperial and papal power in the church of Sicily. While this coexistence is anachronistic in the hagiographer’s own times, he constructs it through the narrativization of (...) law and the juridification of narrative. (shrink)

After a brief explanation of my approach, this paper questions the foundations of a phenomenological theory of law, deploying the argument in three steps.In a first step I reconstruct the connection between Anspruchand Anrecht as developed in Waldenfels’ paradigm of responsiveness. Can law be characterised as an order that is able to ‘respond’ in this specific sense?The second step confronts the radical perspective of a phenomenology of the alien with the question of order. Can a theory of order characterise law (...) as ‘just,’ given that modern positive law is explicitly contained in and founded on itself? In a third step I review the boundaries of law. Would a phenomenology of law acknowledge law as a dimension that – inside the boundaries of law as order – is structurally able to react to the alien and to respond to alien appeals? The overall answer to these questions will be negative.A phenomenology of the alien will not surmount the boundaries inherent to the legal order as order – which push- es the question of justice to the outer limits of the law. The question of the alien, then, does not refer to questions within law; rather, it refers to the problem of juridification or to the sacrifices to be made to obtain access to rights. Decisive is the step into the realm of law, not a certain rule or a decision within thatrealm.If one is to pursue the phenomenological viewpoint of the alien and the dual theme of Anspruch and Antwort, legal phenomena should be considered from the problem of order – in a critical vein to be sure. (shrink)

The article calls into question the role assigned to human rights in the defense of the supposedly legitimate process of globalization, particularly for the juridification of freedom, insofar as natural law and liberal traditions render human beings into rightsbearing persons. It seeks thus to unmask the universalization of moral principles, which ultimately pays lip service to a logic of economic, geopolitical, and cultural domination.

The Argumentwhile reconizing that public sector research has long been managed by a wide variety of practices and techniques, this paper concentrates on the increasingly important role that patents are playing in the management and regulation of public sector research. It argues that as a specific form of technology, patents play a significant and growing role in facilitating the management of the scientific object and can also be seen as a particular instance of governmentality. More specifically, it argues that patents (...) have had an important impact on the culture and political ecomomy of science. In this sence patents can be seen not only as a legal regime that provides limited property rights over technical information but also as a sophisticated tool of discipline and control that is used to regulate and manage public sector research. The paper suggests that with the increasing use of patents as a means of governing science, we are witnessing the growing juridification of science, the intervention of the law into an arena it hitherto largely ignored. (shrink)

In this article, the authors explore how technology has helped erode society’s conceptions of justice. Law, via juridification, has replaced the concept of justice with one of efficiency. The authors argue that this has been largely a result of the destruction of society’s common story or vision and the introduction of the computer and the Internet as tools enabling technique to replace that story. They offer a perspective on how justice operated in traditional societies, using the Judeo-Christian religious tradition. (...) Finally, the authors ask what might be done to recover the best features of what has been lost and create a new common story to help guide society’s conception of justice. (shrink)

The three texts addressed in this review essay challenge us to question and creatively re-imagine the representation of material spaces at the centre of the colonial project: oceans, islands, ships and archives. Elizabeth McMahon deconstructs the island and its metaphorics, charting the relationship of geography, politics and literature through the changing status of islands, as imagined by colonists, beginning in the Caribbean and ending in Australia. Renisa Mawani destabilises colonial geography by re-animating the ocean and presents, amongst others, the ship (...) and the ocean, as both method and juridical form. Writing against the ‘free sea’, Mawani addresses the imperial reliance on control of the ocean and the intensive juridification of the sea. Stewart Motha re-imagines law’s aggressive acts of adjudication, and challenges its originary fictions by exploring the logic, aesthetics and violence of legal processes that preserve and disavow the past at the same time. Each monograph considers the imaginaries, fictions and material geographies of colonialism, alongside how these imaginaries have been used as sites of counter-claim and resistance by those subjected to their technologies. (shrink)

Vi står overfor en planetær miljø- og klimakrise, med alvorlige, gjennomgripende, langvarige og irreversible konsekvenser for både menneske og natur. Det skyldes særlig at politiske, rettslige og økonomiske systemer som har vokst frem i løpet av de siste 250 år – slik som det liberale demokratiet og den globale kapitalismen – behandler naturen antroposentrisk, materialistisk og instrumentelt. For bedre å håndtere dagens miljø- og klimakrise, bør disse utdaterte systemene reformeres ut fra tanken om et økologisk demokrati, herunder en grønn konstitusjonalisme (...) og naturens moralske trumf. Norges første klimasøksmål illustrerer viktigheten av en slik systemisk grønning. Rettsaken fant sted i 2017 og kom opp igjen for rettsapparatet i 2019, hvor staten hevdes å bryte miljøparagrafen i sin egen grunnlov. Søksmålets grønning innebærer en positiv rettsliggjøring, hvis natursynet i Grunnlovens miljøparagraf forstås økosentrisk fremfor antroposentrisk. Da styrker klimasøksmålet økologiske medborgeres konstitusjonelle rettssikkerhet og demokratiske deltagelseslikhet. Viktigst er imidlertid at planetens eksistensielle tålegrense og naturens moralske trumf anerkjennes. Nøkkelord: Miljøkrise, klimasøksmål, økologisk demokrati, økologisk medborgerskap, grønn konstitusjonalisme, naturens moralske trumf, positiv rettsliggjøring English Summary: Ecological democracy and the inherent value of nature: Climate litigation in the age of the environmental crisis We are facing a planetary environmental and climate crisis, with severe, pervasive, long-lasting, and irreversible impacts for both humans and nature. This is due to political, legal, and economic systems having emerged during the last 250 years – especially liberal democracy and global capitalism – treat nature anthropocentrically, materialistically, and instrumentally. To better handle today’s environmental and climate crisis, these outdated systems should be reformed in light of the idea of ecological democracy, hereunder green constitutionalism and nature’s moral trump. Norway’s first climate lawsuit illustrates the importance of such a systemic greening. This trial took place in 2017 and reappeared for the court in 2019, in which the state is accused for having broken the environmental paragraph in its own constitution. This lawsuit’s greening implies a positive juridification, if the perception of nature in the Constitution’s environmental paragraph is ecocentric rather than anthropocentric. Then, the climate lawsuit strengthens ecological co-citizens’ constitutionally rule of law and democratic participation equality. Most importantly, it recognizes the planet’s existential limits and nature’s moral trump. Keywords: Environmental crisis, climate lawsuit, ecological democracy, ecological citizenship, green constitutionalism, nature’s moral trump, positive legalization. (shrink)

In this paper I examine Lukács’ claim that the overcoming of reification amounts to the realization of the identity philosophies of Fichte and Hegel. I suggest that Lukács does indeed contrast reification with a Hegelian conception of social freedom that remains plausible today. Reification occurs when the preconditions of freedom and social participation are eroded through practices such as commodification and juridification. I conclude with the claim that reification diminishes freedom, and that criticism of reification is itself a form (...) of freedom. (shrink)

While constitutionalism is generally reduced to the idea of limited government, little has been said to its contribution to the juridification of the social sphere. The article shows the significance of constitutionalism for the institutionalization of modern civil societies. Modern civil societies, it is argued, can only flourish in a form of modern state that has undergone a process of internal differentiation in the direction of a separation of powers. Through the analysis of the process of self‐constitution of Argentine (...) civil society, I show how the erosion of the constitutional components of the state by populist democratizing movements resulted in the disintegration of civil society. (shrink)

Följande artikel under temat “Etikbølgen i yrkesutdanning og praksis” beskriver och diskuterar etik och juridik i läraryrket med utgångspunkt i det dilemma som lärare själva anser vara ett av de svåraste enligt två svenska empiriska studier – att ingripa mot en kollega som handlar etiskt klandervärt mot elever. Artikeln diskuterar vidare den dygdetiska kritik mot regeletik som förekom vid tillkomsten av de etiska principerna. Vidare pekar den på de problem som följer av att lärarna är föremål för en tilltagande juridifiering. (...) En våg, en bølge, kan beröra endast ytan som en krusning eller vara en djupgående och energirik rörelse. För att använda den aktuella metaforen på mitt studieobjekt skulle jag vilja påstå att diskussionen av lärares yrkesetik och medvetenheten om svenska lärares etiska riktlinjer utvecklades till en våg av endast blygsam storlek. I dagsläget har den ersatts av en juridisk våg med stor kraft.Nyckelord: etik i läraryrket, etiska dilemman, juridifiering av lärarpraktikenEnglish summary: Teachers’ ethical dilemmas and the juridification of the Swedish schoolIn this article, ethics and law in the teaching profession are described and discussed, starting with the ethical dilemma that teachers point to as the most difficult, according to referred empirical studies – intervention when a colleague acts in an ethically incorrect way towards students. Furthermore the author discusses the critique coming from virtue ethics in relation to ethical principles and shows that even Aristotle suggests ethical principles under certain circumstances. Swedish teachers’ ethical principles had very little time to be achieved before an increasing juridification of teaching took place. This phenomenon is discussed in terms of professional autonomy and professional judgement. (shrink)

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure `brute facts' do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on `applicability rules'. The problem of `mixed terms' is partly a matter of (...) judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)

This second volume of ReConFort, published open access, addresses the decisive role of constitutional normativity, and focuses on discourses concerning the legal role of constitutional norms. Taken together with ReConFort I (National Sovereignty), it calls for an innovative reassessment of constitutional history drawing on key categories to convey the legal nature of the constitution itself (national sovereignty, precedence, justiciability of power, judiciary as constituted power). In the late 18th and early 19th centuries, constitutional normativity began to complete the legal fixation (...) of the entire political order. This juridification in one constitutional text resulted in a conceptual differentiation from ordinary law, which extends to alterability and justiciability. The early expressions of this 'new order of the ages' suggest an unprecedented and irremediable break with European legal tradition, be it with British colonial governance or the French ancien régime. In fact, while the shift to constitutions as a hierarchically 'higher' form of positive law was a revolutionary change, it also drew upon old liberties. The American constitutional discourse, which was itself heavily influenced by British common law, in turn served as an inspiration for a variety of constitutional experiments - from the French Revolution to Napoleon's downfall, in the halls of the Frankfurt Assembly, on the road to a unified Italy, and in the later theoretical discourse of twentieth-century Austria. If the constitution states the legal rules for the law-making process, then its Kelsian primacy is mandatory. Also included in this volume are the French originals and English translations of two vital documents. The first - Emmanuel Joseph Sieyès' Du Jury Constitutionnaire (1795) - highlights an early attempt to reconcile the democratic values of the French Revolution with the pragmatic need to legally protect the Revolution. The second - the 1812 draft of the Constitution of the Kingdom of Poland - presents the 'constitutional propaganda' of the Russian Tsar Alexander I to bargain for the support of the Lithuanian and Polish nobility. These documents open new avenues of research into Europe's constitutional history: one replete with diverse contexts and national experiences, but above all an overarching motif of constitutional decisiveness that served to complete the juridification of sovereignty. (www.reconfort.eu). (shrink)

The first segment starts with a definition of two dimensions of the concept of rule of law; related to the notion of sovereignty and as a concept to control arbitrariness on the part of the ruler. The segment proceeds to give a historical account of the notion and the different stages of its epistemological configuration, from the ancient Greek notion of Eunomia and its incompatibility with the popular rule to the current notion, where the rule of law has become fused (...) with democracy and human rights. The first segment also focuses on the relation between the concept of the rule of law and other principles, such as proportionality, neutrality, and effectiveness. The second segment of the paper analyses the phenomenon of juridification of the rule of law in international treaties and domestic constitutions. It pays particular attention to the role that constitutional accommodation plays in the process of rationalization of the rule of law as a prerequisite to its idealization and mystification. It analyses the reason why this principle is an essential feature of the constitutionalism despite the inner plurality of legal systems. The next aspect, analysed in the third segment of this paper, is the messianic use of the concept of the rule of law. The paper performs a critical definition of messianic, covering a theological perspective and the different theories and concepts that go hand in hand with the idea of the Messiah, such as the “coming”, prophetical and apocalyptical messianism, the phenomena of eschatology, expiation and redemption pictured in Judaism. The segment also covers the secular transplantation of the messianic thought. The last segment is a conclusion returning to the themes identified in the paper and summarises how the messianic thought is applied in the realm of the rule of law. (shrink)

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner's The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they call ‘Rechtsverfassungsrecht’. Departing from (...) the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner's argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner's book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering. (shrink)

In the 1970s, both Denmark and Norway passed abortion legislation that is still the basis for the regulation of abortion in these countries. The legislation was fairly liberal with abortion on demand until 12 weeks of gestation and a permission system for later abortions. This article provides a brief history of the developments leading up to these political compromises and an analysis of the reasons why they have proved remarkably stable. It ends by looking at some factors that may now (...) destabilize 50 years of stable compromise about abortion. (shrink)

The approach to AIDS as a disease and a threat for social discrimination is used as an example to illustrate a conceptual thesis. This thesis is a claim that concerns what we call a medical issue or not, what is medicalised or needs to be demedicalised. In the friction between medicalisation and demedicalisation as discursive strategies the latter approach can only be effected through the employment of discourses or discursive strategies other than medicine, such as those of the law and (...) of economics. These discourses each realise different values, promote a different subject, and have a different concept of man. The concept of discourse is briefly outlined against concepts such as the linear growth concept of science and the growth model of science as changes in paradigm. The issue of testing for AIDS shows a conflict between the medical and the legal discourse and illustrates the title of our contribution: the human body as field of conflict between discourses. (shrink)

The three texts addressed in this review essay challenge us to question and creatively re-imagine the representation of material spaces at the centre of the colonial project: oceans, islands, ships and archives. Elizabeth McMahon deconstructs the island and its metaphorics, charting the relationship of geography, politics and literature through the changing status of islands, as imagined by colonists, beginning in the Caribbean and ending in Australia. Renisa Mawani destabilises colonial geography by re-animating the ocean and presents, amongst others, the ship (...) and the ocean, as both method and juridical form. Writing against the ‘free sea’, Mawani addresses the imperial reliance on control of the ocean and the intensive juridification of the sea. Stewart Motha re-imagines law’s aggressive acts of adjudication, and challenges its originary fictions by exploring the logic, aesthetics and violence of legal processes that preserve and disavow the past at the same time. Each monograph considers the imaginaries, fictions and material geographies of colonialism, alongside how these imaginaries have been used as sites of counter-claim and resistance by those subjected to their technologies. (shrink)

Latin American countries have slowly enacted laws decriminalizing abortion in three circumstances: Life‐threatening risk for the pregnant woman, extra‐uterine non‐viability of malformed foetus, and pregnancy due to rape or incest. Chile is one of the last countries to adopt such a law, formulated in an increasingly restrictive format. Conservative politicians and Church‐related healthcare institutions promptly announced individual and institutional conscientious objection based on the right of private facilities to obey their ideology and personal moral integrity. Juridical consultations and Constitutional Court (...) rulings allowed private hospitals to uphold their objection even if contracted to provide some public health services. Under these conditions, only a few hundred women requested and obtained a legal abortion, while an estimated 100,000 continued to depend on unsafe procedures. Bioethical debate was silenced by the unfettered drive for conscientious objection that continues to limit women’s autonomy, and fails to ease the public health scourge of massive unsafe clandestine abortions. (shrink)