The susceptibility of Habermas' socio-political theory (and notion of constitutional patriotism) to the charge of motivational impotence can be traced to a problem in the way in which he conceives of discursive practical reason. By implicitly constructing the notion of discursive rationality in contrast to, and in abstraction from, the rhetorical and affective components of language use, Habermas' notion of discursive practical reason ends up reiterating the same binaries — between reason and passion, abstract and concrete, universal and particular — (...) that provide the tacit parameters used by his critics to motivate the charge of impotence. Habermas' project of reconciling social integration and political rule with freedom can succeed only by rebuilding his discourse-ethical theory of politics upon a notion of discursive practical reason that overcomes these philosophy/rhetoric binaries common to both camps. (shrink)

The article deals with `The Symbolic Force of Human Rights'. First, it restricts the meaning of the term `symbolic' and of the expression `symbolic force'. Second, it discusses the concept of human rights. Having established the conceptual framework, the author goes to the core of his argument, characterizing the symbolic force of human rights as ambivalent: on one hand, it serves for their generalized affirmation and accomplishment; on the other hand, it acts as a manner of political manipulation. In this (...) regard, the article focuses, first, on the symbolic force of human rights at the level of national states, and then within the international and worldwide context, on criticizing finally the rhetorical use of human rights by nowadays' only superpower, the USA. Key Words: human rights • interventionism • supranational and national • legal orders • symbolic force. (shrink)

The subject of this book is the social and political meaning of constitutional texts to the detriment of their legal concretization. Focusing on the discrepancy between the hypertrophically symbolic function of constitutions and their insufficient legal concretization, it offers a critical counterpoint to constitutional theory that treats constitutional texts as a panacea to solving political, legal, and social problems. In contrast to the premises of Niklas Luhmann's systems theory regarding law and constitution in world's society, symbolic constitutionalization is approached here (...) in both a comprehensive and far-reaching perspective. Chapter 1 sets out the debate about symbolic legislation. Chapter 2 explains the notion of symbolic constitutionalization as a problem embracing the whole legal system. Chapter 3 approaches the issue in terms of allopoiesis of law, characterizing it primarily as a problem in peripheral modernity and referring to the Brazilian experience. The final chapter discusses the tendency to a symbolic constitutionalization of world society in the scope of a paradoxical peripheralization of the centre. (shrink)

The article deals with „The Symbolic Force of Human Rights“. Firstly, it restricts the meaning of the term „symbolic“ and of the expression „symbolic force“. Secondly, it discusses two matters: (1) a semantic matter, concerning the meaning of human rights; and (2) a pragmatic matter, related to utterance of human rights’ holders. The article emphasizes that it is not about „eternal“ rights, but rather a legal-political construction and conquest of modernity. Based on such assumptions, the author goes to the core (...) of his argument, characterizing the symbolic force of human rights as ambivalent: on one hand, it serves for the generalized affirmation and accomplishment of rights related to legal inclusion in conditions of structural dissension; on the other hand, it acts as a manner of political manipulation, whether to conceal circumstances involving lack of rights or, more abruptly, to give cause to political oppression. In this regard, the article focuses, firstly, on the symbolic force of human rights at the level of National States, and then within the international and worldwide context. Finally, the author states a brief critique concerning the rhetorical use of human rights by the nowadays’ unique superpower, the United States of America. (shrink)

This article sets out to move from questioning the autonomy of law from the external standpoint of sociology to problematizing it from the internal legal standpoint. The first step is an analysis of the Kelsenian theoretical model of the hierarchically structured self-production of law, taking into consideration the concept of reason for the validity of a norm and of a legal order, as well as the role of efficacy as a condition for validity. The second is a presentation of Luhmann’s (...) conception of autopoiesis of the legal system, and in particular the function of the Constitution in the operative closure of law. Based on this exposition, the discussion then focuses on the limits of both conceptions, but in reverse order: first questioning the possibility of transporting the concept of autopoiesis to the different conditions for reproduction of law in contemporary world society, and then raising objections to the adequacy of the concept of hierarchically structured self-production of law to the many different legal orders in today’s world. The conclusion drawn from these critical observations is the argument that the Luhmannian sociological theory of the operative self-reference of the legal system and the Kelsenian legal theory of the self-produced step-structure of law are applicable only to legal systems minimally grounded in the rule of law. (shrink)