What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.

This is the first comprehensive volume to offer a state of the art investigation both of the nature of political ideologies and of their main manifestations. The diversity of ideology studies is represented by a mixture of the range of theories that illuminate the field, combined with an appreciation of the changing complexity of concrete ideologies and the emergence of new ones. Ideologies, however, are always with us.

From the theory of ‘deliberative democracy’ to the politics of the ‘third way’, the present Zeitgeist is characterized by attempts to deny what Chantal Mouffe contends is the inherently conflictual nature of democratic politics. Far from being signs of progress, such ideas constitute a serious threat to democratic institutions. Taking issue with John Rawls and Jürgen Habermas on one side, and the political tenets of Blair, Clinton and Schröder on the other, Mouffe brings to the fore the paradoxical nature of (...) modern liberal democracy in which the category of the ‘adversary’ plays a central role. She draws on the work of Wittgenstein, Derrida, and the provocative theses of Carl Schmitt, to propose a new understanding of democracy which acknowledges the ineradicability of antagonism in its workings. (shrink)

Written in the intense political and intellectual tumult of the early years of the Weimar Republic, Political Theology develops the distinctive theory of sovereignty that made Carl Schmitt one of the most significant and controversial ...

The shared nature of language -- Derrida on language and meaning -- Reading the law : hermeneutics and deconstruction -- The ethics of language -- Uncertain justice.

In this hugely influential book, Laclau and Mouffe examine the workings of hegemony and contemporary social struggles, and their significance for democratic theory. With the emergence of new social and political identities, and the frequent attacks on Left theory for its essentialist underpinnings, Hegemony and Socialist Strategy remains as relevant as ever, positing a much-needed antidote against ‘Third Way’ attempts to overcome the antagonism between Left and Right.

It is Chantal Mouffe’s contention that the central weakness of consensus-driven forms of liberalism, such as John Rawls’ political liberalism and Jurgen Habermas’ deliberative democracy, is that they refuse to acknowledge conflict and pluralism, especially at the level of the ontological. Their defence for doing so is that conflict and pluralism are the result of attempts to incorporate unreasonable and irrational claims into the public political sphere. In this context, unreasonable and irrational claims are those that cannot be translated into (...) universalizable terms. However, for Mouffe, it is this intentional exclusionary act itself that is detrimental to a well- functioning democratic polity. It is only through the inclusion of a diverse body of subject positions that a democratic polity can be said to be truly representative of the polity, and therefore constitute a functioning and inclusive democracy. -/- This paper will examine Mouffe’s account of agonistic pluralism. In doing so, it will demonstrate that instead of being a source of instability within the democratic discourse and therefore relegated into the private non-political sphere, passions and values that are constitutive of these subject positions ought to be incorporated into the public political sphere. Mouffe’s rationale for doing so is that it is precisely through their incorporation that citizens will retain their allegiance to the democratic polity. However, as part of this examination, this paper will also draw attention to an under-developed aspect of Mouffe’s account of agonistic democracy, specifically problems regarding both participation and exclusion. Whilst Mouffe does provide a robust counterpoint to both Rawls’ political liberalism and Habermas’ deliberative democracy, it is my contention that she fails to explain adequately what it is that persuades participants to act democratically and adhere to the requirements of agonal respect, nor what should happen when the ethico- political principles of liberty and equality are not accepted. (shrink)

The work of Giorgio Agamben, one of Italy's most important and original philosophers, has been based on an uncommon erudition in classical traditions of philosophy and rhetoric, the grammarians of late antiquity, Christian theology, and modern philosophy. Recently, Agamben has begun to direct his thinking to the constitution of the social and to some concrete, ethico-political conclusions concerning the state of society today, and the place of the individual within it. In Homo Sacer, Agamben aims to connect the problem of (...) pure possibility, potentiality, and power with the problem of political and social ethics in a context where the latter has lost its previous religious, metaphysical, and cultural grounding. Taking his cue from Foucault's fragmentary analysis of biopolitics, Agamben probes with great breadth, intensity, and acuteness the covert or implicit presence of an idea of biopolitics in the history of traditional political theory. He argues that from the earliest treatises of political theory, notably in Aristotle's notion of man as a political animal, and throughout the history of Western thinking about sovereignty, a notion of sovereignty as power over "life" is implicit. The reason it remains merely implicit has to do, according to Agamben, with the way the sacred, or the idea of sacrality, becomes indissociable from the idea of sovereignty. Drawing upon Carl Schmitt's idea of the sovereign's status as the exception to the rules he safeguards, and on anthropological research that reveals the close interlinking of the sacred and the taboo, Agamben defines the sacred person as one who can be killed and yet not sacrificed—a paradox he sees as operative in the status of the modern individual living in a system that exerts control over the collective "naked life" of all individuals. (shrink)

This Oxford Handbook will be the definitive study of political ideologies for years to come. The diversity of ideology studies is represented by a mixture of the range of theories that illuminate the field, combined with an appreciation of the changing complexity of concrete ideologies and the emergence of new ones.

One of the main reasons that liberal democratic societies are not ill-prepared to confront the present challenge presented by disaffection with democratic institutions, is that the type of political theory currently in vogue is dominated by an individualistic, universalistic, and rationalistic framework. This erases the dimension of the political and impedes envisaging in an adequate manner the nature of a pluralistic democratic public sphere. This paper examines the most recent paradigm of liberal democracy: 'deliberative democracy', in order to bring to (...) the fore its shortcomings. Then, the authos puts forward some element for the elaboration of an alternative model that she proposes to call 'agonistic pluralism'. (shrink)

Agonism is a political theory that places contestation at the heart of politics. Agonistic theorists charge liberal theory with a depoliticization of pluralism through an excessive focus on consensus. This paper examines the agonistic critiques of liberalism from a normative perspective. I argue that by itself the argument from pluralism is not sufficient to support an agonistic account of politics, but points to further normative commitments. Analyzing the work of Mouffe, Honig, Connolly, and Owen, I identify two normative currents of (...) agonistic theory: emancipatory agonism, aimed at challenging violence and exclusion, and perfectionist agonism, aimed at the cultivation of nobility. From a normative perspective the former presents an internal challenge to liberalism, while the latter constitutes an external challenge to liberalism by providing a competing account of the ends of politics. Recognition of the distinction between emancipatory and perfectionist agonism is crucial in assessing the purchase of agonistic critiques of liberalism. Furthermore, this analysis draws us beyond the simple opposition between contestation and consensus. It is not simply a question of valuing genuine pluralism and therefore criticizing consensus; rather the question comes to be: what are the ends of politics? (shrink)

Jurisprudence is the prudence of jus, law's consciousness and conscience. Throughout history, when thinkers wanted to contemplate the organisation of society or the relationship between authority and the subject, they turned to law. All great philosophers, from Plato to Hobbes, Kant, Hegel, Marx and Weber had either studied the law or had a deep understanding of legal operations. But jurisprudence is also the conscience of law, the exploration of law's justice and of an ideal law or equity at the bar (...) of which state law is always judged. Jurisprudence brings together 'is' and 'ought', the positive and the normative, law and justice. But after a long process of decay, legal theory is today characterised by cognitive and moral poverty. Jurisprudence has become restricted and academically peripheral, a guidebook to technocratic legalism and a legitimation of the existent. Critical jurisprudence returns to the classical tradition of a general philosophy of law and adopts a much wider concept of legality. It is concerned both with posited law and with the law of the law. All legal aspects of the economic, political, emotional and physical modes of production and reproduction of society are part of critical jurisprudence. This widening of scope allows a radical rethinking of the nature of rights, justice, sovereignty and judgement. A political philosophy of justice today must examine the political economy of law; transitions from Empire to nation; ideological and imaginary constructions through which we understand ourselves and relate to others; ways in which gender, race or sexuality create forms of identity that both discipline bodies and offer sites of resistance. Law's complicity with political oppression, violence and racism has to be faced before it is possible to speak of a new beginning for legal thought, which in turn is the necessary precondition for a theory of justice. Critical Jurisprudence offers an ethics of law against the nihilism of power and an aesthetics of existence for the melancholic lawyer. (shrink)

A milestone in the development of post-war Marxist thought.

Human rights have become an important ideal in current times, yet our age has witnessed more violations of human rights than any previous less enlightened one. This book explores the historical and theoretical dimensions of this paradox. Divided into two parts, the first section offers an alternative history of natural law, in which natural rights are represented as the eternal human struggle to resist opression and to fight for a society in which people are no longer degraded or despised. At (...) the time of their birth in the 18th Century and again in the popular uprisings of the last decade, human rights became the dominant critique of law and society. The radical rhetoric of rights and its apparently endless expansive potential has led to its adoption by governments and individuals alike seeking to justify their actions on moral grounds and has undermined its radical edge. Part Two examines the philosophical logic of rights. The classical critiques of Kant, Burke, Hegel and Marx illuminate traditional aproaches to the concept of human rights. The work of Heidegger, Sartre and psychoanalysis is used to deconstruct the metaphisical essentialism of bothe universalists and cultural relativists. Finally, through a consideration of the ethics of otherness, and with reference to recent human rights violations, it is argued that the end of human rights is to judge law and politics from a moral stand point which both transcends the present and is historically relevant. (shrink)

This book reformulates the sociological subdiscipline known as the sociology of knowledge. Knowledge is presented as more than ideology, including as well false consciousness, propaganda, science and art.

The article offers a brief history of the Critical Legal Conference and the emergence of general jurisprudence as a main theoretical school in legal scholarship. It charts the aesthetic, ethical and the current political phase of the school. In the current situation of economic and political crisis, the intellectual and the critic is called to abandon the facile position of neutrality and assume the responsibility of resistance and radical change.

In light of the recent revival of the debate on radical democracy, this paper seeks to show how a critical reappropriation of Chantal Mouffe’s theory of agonistic politics can explain the structure of a conflict-based understanding of democratic orders. In explicit convergence with Mouffe, I argue that a radical democratic project by no means needs to abandon—as many absolute democracy and multitude theorists claim—the modern political paradigm. I also show, diverging from her account, that Mouffe’s defence of a radical democratic (...) project based on pluralism and agonism would have been better served by a critical reception of Arendt’s thinking rather than that of Schmitt. The relevance of this alternative strategy—so I will argue—lies in the fact that it delivers an apt design for a politico-legal order which permits true and proper conflicts, on the one hand, while simultaneously allowing that they be dealt with democratically, on the other. (shrink)

In this highly topical book, Agamben ultimately arrives at original ideas about the future of democracy and casts a new light on the hidden relationship that ties law to violence.

I agree with the critique of rationalism proposed by Spinosa, Flores, and Dreyfus in ?Disclosing New Worlds?. Today the defence of democracy requires us to understand that allegiance to democratic institutions can only rest on identification with the practices, the language?games, and the discourses which are constitutive of the democratic ?form of life?, and that it is not a question of providing them with a rational justification. My comments are developed in two directions. First, as a development of their thesis (...) concerning the centrality of practices, I suggest that in order to grasp the present crisis of democratic forms of individuality we can learn a lot from Nietzsche's analysis of ?nihilism?. Second, I point to a dimension which I consider to be missing in the perspective put forward in the article. It fails to take account of the fact that the constitution of a ?we? always requires the determination of a ?them?. This, in my view, has important consequences for the relation between solidarity and politics. I conclude by arguing for the need to introduce an agonistic element in the view of solidarity, and for the crucial role of the category of the adversary in a pluralist democracy whose aim is to transform antagonism into agonism. (shrink)

This study focuses on current jurisprudential debate between the "positivist" views of Herbert Hart and the "rights thesis" of Ronald Dworkin. MacCormick provides a critical analysis of the Dworkin position while also modifying Hart's. It stands firmly on its own as a contribution to an extensive literature.

Since September 11, we frequently hear that the struggle is between good and evil and that politics is at an end. Should we welcome or fear a 'Third Way' beyond left and right? In this timely and thought provoking book, Chantal Mouffe argues that third way thinking ignores fundamental, conflictual aspects of human nature and that far from expanding democracy, globalization is undermining the combative and radical heart of democratic life. Going back first to Aristotle, she identifies the historical origins (...) of the political. She also reflects on the Enlightenment and the social contract, arguing that in spite of its good intentions, it fatally suppressed the radical core of political life. She uses many contemporary examples, including the Iraq war, racism and the rise of the far right, to argue that far from ending dangerous extremism, the political void created by the search for consensus inflames it. (shrink)

U clanku?Agonizam kao deliberacija? predlozio sam pomirenje izmedju agonisticke verzije demokratije Mufove, uz odredjene korekcije kako bi se ocuvala konzistentnost, i deliberacije. Ovde nudim odgovor na dve kritike ovog projekta koje su usledile: G?rs?zl? i Fives. Iako oba autora smatraju da nije moguce pomiriti agonizam i deliberaciju, oni to cine sa suprotnih pozicija. Gursozlu brani agonizam Mufove kao poseban i koherentan projekat na osnovu onoga sto smatra ispravnim razumevanjem njenog pojma hegemonije. Fajvs tvrdi da je njen pristup poseban ali nekoherentan, (...) i da zato treba da bude odbacen. Nasuprot ove dve suprotstavljene pozicije, nastojacu da pokazem ne samo da je moguca integracija agonizma i deliberacije, vec i da je veoma korisna kako za agonizam, tako i za deliberativnu teoriju. Oslobodjen kontradiktorne tvrdnje da je univerzalni racionalni konsenzus u principu nemoguce postici, agonizam se moze interpretirati kao teorija momenta razlike unutar sire deliberativne dijalektike koja pokusava da od parcijalnog, dodje do sireg konsenzusa. Ako ih posmatramo na taj nacin, mozemo da uvidimo kako se ova dva pristupa dopunjuju u traganju za zajednickim ciljevima, pre nego sto predstavljaju staticnu i nuznu opoziciju kako to smatraju kriticari kojima se u ovom clanku bavim. (shrink)

This book aims to reinvigorate normative legal scholarship that both criticizes positive law and suggests reforms for it, on the basis of stated moral values and legalistic ideals.

This article explores the ‘hermeneutic of suspicion’ that seems to drive contemporary American jurists to interpret their opponents’ arguments to be ideologically motivated wrong answers to legal questions. The first part situates the hermeneutic in the history of the critique of legal reasoning, in public and private law, particularly the critique that claims that ‘no right answer is possible’ to many high-stakes questions of legal interpretation. The second part locates the hermeneutic in the long running processes of juridification, judicialization and (...) constitutionalization that characterize law in modern society. The last part interprets the hermeneutic as ‘projective identification’, in the sense of Freud’s analysis of jealousy, with the jurist solving the problem of role conflict by firmly externalizing the inevitable ideological element in doing justice onto his opponent while preserving the legalist element in doing justice for himself. (shrink)

The paper attempts to construct a theoretical account of what melancholy—in a psychoanalytical and cultural sense—may mean for jurisprudence. It argues that the map of relations and displacements between the object and the subject that is associated with melancholy in different psychoanalytical approaches can be fruitfully adopted for understanding of normativity. Based on a thorough re-reading of Freud’s Trauer und Melancholie, it suggests that there is an irremovable component of melancholy contained in the primordial act of separation of normativity from (...) non-normative reality. This interpretation is confronted with Kelsen’s Theory of Pure Law in order to analyse in which respect the momentum of self-sufficiency within normativity entails structures of melancholy. Kelsen’s concept of ‘effectiveness’ is proposed as a key link which explains how melancholic withdrawal allows the law to interact with reality. Then the paper discusses Agamben’s theory of applicability and of the state of exception to demonstrate the law’s melancholic trap. Finally, the paper draws on Lacanian and post-Lacanian approaches to melancholy in order to investigate how melancholic momentum is inherent in the very structure of the law’s validity. (shrink)

The article looks critically at the Schmitt revival among radical leftists, how they try to insulate his work from his political conviction and make a problematic distinction between liberalism and democracy, which undercuts the specificity of modern democracy and plays into reactionary identity politics. I then turn to how Schmitt conceptualizes the political and argue that the structure of his argument is antithetic to modern democracy. Against those who hold that it is possible to use Schmitt against himself, I argue (...) that to adopt Schmitt for the purpose of strengthening liberal democracy runs into serious difficulties, because the whole set-up is geared to combat this regime form. Finally, I show that the political undermines right/left orientation because it is structured in terms of other orientational metaphors, which sustain a restrictive view on membership (in/out), unconditional loyalty to the state (up/down) and a strong sense of belonging and destiny (front/back). (shrink)

Belief in the rule of law characterizes our society, our political order, and even our identity as citizens. The Cultural Study of Law is the first full examination of what it means to conduct a modern intellectual inquiry into the culture of law. Paul Kahn outlines the tools necessary for such an inquiry by analyzing the concepts of time, space, citizen, judge, sovereignty, and theory within the culture of law's rule. Charting the way for the development of a new intellectual (...) discipline, Paul Kahn advocates an approach that stands outside law's normative framework and looks at law as a way of life rather than as a set of rules. "Professor Kahn's perspective is neat and alluring: We need a form of legal scholarship released from the project of reform so that we can better understand who and what we are. The new discipline should study 'not legal rules, but the imagination as it constructs a world of legal meaning.'... [C]oncise, good reading, and recommended." —New York Law Journal. (shrink)

'A Critique of Adjudication' explores the aspects and implications of adjudication as few books have in this century. With an eye to the current state of theory, legal or otherwise, the author includes a provocative discussion of postmodernism.

This book applied the insights of the Marxist tradition in social theory and politics to the law. It is written in straight-forward non-technical language which is easily accessible to those not acquainted with Marxism or the law.