Klaus Günther’s discourse theory of law links the concept of criminal responsibility with the legitimacy of democratic law. Because attributions of criminal responsibility are always aimed at a person, they contain an implicit conception of the person. In a democracy under the rule of law, Günther argues, this conception of a person must be understood, as a “deliberative person”, a free and autonomous person capable of being both the addressee and the author of legal norms. The “deliberative person” is the (...) conceptual core of criminal responsibility, yet Günther develops it using a concept of “communicative accountability” modeled on the concept of criminal responsibility that it is designed to explicate. My aim is to bring this circular grounding of criminal responsibility into view and argue that Günther’s discourse theory of law is based on a legalized picture of discourse. (shrink)

Hegel is one of the few philosophers to devote systematic attention to phenomena that can be called pathologies of juridicism. Hegel claims that the law fundamentally contaminates the way in which we relate to ourselves, to others and to the world so that our (inter-) subjectivity becomes ethically deformed, distorted, or deficient. I outline this notion and reconstruct its development in the work of the young Hegel. I reconstruct Hegel’s critique of juridical forms of normativity as developed in his (...) Spirit of Christianity with reference to the example of Judaism and sketch his idea of a non-juridical intersubjectivity. I will make apparent the considerable problems lurking in Hegel’s account of love, which turns out to be a form of social integration potentially just as violent as the law. I argue that Hegel himself became aware of this problem and modified his original model by assigning to both love and law a legitimate place within an overarching system of Sittlichkeit, as I demonstrate with reference to Hegel’s Jena article ‘Natural Law ’. In the end I briefly explain why I still find this strategy unsatisfactory. (shrink)

In “On a Supposed Right to Lie from Philanthropy,” Kant holds the seemingly untenable position that lying is always prohibited, even if the lie is addressed to a murderer in an attempt to save the life of an innocent man. This article argues that Kant's position on lying should be placed back in its original context, namely a response to Benjamin Constant about the responsibility of individual agents toward political principles in post-revolutionary times. I show that Constant's theory of political (...) responsibility, which sanctions the lie, is not based on expediency, but on principled realism, whereas Kant endorses a position that I describe as ‘political juridicism.’ This analysis enables us to uncover two plausible Republican theories of political responsibility in post-revolutionary times behind an apparently strictly ethical debate. (shrink)

This work aims to show the relevance of the question of law in Michel Foucault’s political philosophy. Arguing against the so-called ‘anti-juridicism’ of the author, we seek to determine the place that juridical forms occupy in his analysis of power based on the relationship between the history of law and the history of truth. To this end, we discuss the distinction proposed by François Ewald between the juridical and legal and we raise the need to complement the perspectives of (...) Foucault's books with some texts edited posthumously, particularly his courses at the Collège de France. Este trabajo se ocupa de mostrar la relevancia de la cuestión del derecho en la filosofía política de Michel Foucault. Argumentando contra el denominado “antijuridicismo” del autor, busca determinar el lugar que ocupan las formas jurídicas en su analítica del poder a partir de la relación entre la historia del derecho y la historia de la verdad. A tal fin, discute la distinción propuesta por François Ewald entre lo jurídico y lo legal y plantea la necesidad de complementar las perspectivas de los libros de Foucault con los textos editados póstumamente, en particular sus cursos en el Collège de France. (shrink)

This volume, entitled "Collectanea Augustiniana," commemorates the celebration at Villanova University of the sixteenth centenary of the conversion and baptism of St. Augustine. Subtitled "Augustine: -Second Founder of the Faith-," the volume is divided into six sections. In the first, 'Conversion in the "Confessiones"', five authors discuss aspects of Augustine's conversion. The second section, 'Literary Structure in the "Confessiones"', is devoted to six analyses of the arrangement of Augustine's spiritual autobiography. The third section, "The City of God," contains four essays (...) on Augustine's theology of history. The fourth section, 'Augustinian Biblical Exegesis', presents six studies of Augustine's interpretation of Holy Writ. The fifth section, 'Influences on Augustine', is given over to four examinations of Augustine's philosophical background. Finally, in the sixth section, "Augustinian Themes," three essays deal respectively with the Augustinian concepts of body and soul, evil, and juridicism.". (shrink)

Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...) own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism—namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)—this train of reflection diagnoses briefly a sequence of complementary main difficulties (as «obstacles» to recognising Law’s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law’s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality). (shrink)

The Kantian theme of ‘cosmopolitan right” has often been used in 20th century’s scholarship to water down the juridicism affecting Kant’s doctrine of private and public law. It would in this sense be the point where law is re-introduced into an ethical, or at least meta-juridical, perspective. On the contrary, we would like to emphasize that Kantian cosmopolitan right has a properly juridical dimension. Far from questioning the sharp separation between law and ethics, the cosmopolitan right is the necessary (...) accomplishment of Kantian concept of law. (shrink)

In this paper, I argue for the existence of pathologies of juridicism. I attempt to show that the Western regime of right tends to colonize our intersubjective relations, resulting in the formation of affective and habitual dispositions that actually hinder participation in social life. Speaking of pathologies of juridicism is to claim that the legal form fundamentally contaminates the way in which we relate to ourselves, to others, and to the world, resulting in an ethically deformed, distorted or (...) deficient form of subjectivity. To support my thesis I consult a philosopher, whose work still provides a powerful analysis and critique of juridicism, namely, Hegel. Hegel provides an historic and a systematic theory of the pathologies of juridicism. His historical theory locates the origin of the abstract subjectivity of right in Roman antiquity. His systematic theory understands the negative effects of an absolutization of the legal domain as a persistent threat to social integration and an individual’s pursuit of the good life. I clarify these argumentative dimensions in two steps, beginning with Hegel’s historical analysis of right in his Lectures on the Philosophy of History. I then reconstruct Hegel’s critique of the subjectivity of right in the short chapter on the ‘Condition of Right’ in his Phenomenology of Spirit. In conclusion, I argue that, although Hegel’s diagnosis is correct, his prescribed therapy must fail: instead of radically altering abstract right in terms of content and form, it only recommends its complementation through other ethical spheres. (shrink)