One of the fundamental myths of liberal political philosophy and its juridical offspring in the form of legal positivism is the apparent detachment of law from politics, treated either as a fact or at least as a desirable state of affairs. Within the domain of adjudication, this myth translates itself into the purported apolitical character of adjudication which is presented as a mere ‘application of the law’, as opposed to its ‘creation’ in the legislative process. Whilst mainstream positivists and political liberals are ready to concede that ‘making the law’ by parliaments is a political process, they still tend to present adjudication as something neutral, technical and expertise-driven. Courts and judges, especially in Europe, are eager to uphold this belief in an effort to derive their technocratic legitimacy not from democratic mandate (which they often lack, appointed in de facto co-optation procedures), but rather from expert knowledge and allegedly content-neutral and apolitical legal procedures and methodology.
These myths have been under attack from critically minded European jurists at least since the times of Carl Schmitt. In the United States, both legal realists and crits have not only acknowledged that courts make the law, and not only ‘apply’ it, as the classical positivist narrative would have it, but also exposed the political character of adjudication. However, despite these critical approaches, especially in European legal culture the apolitical character of adjudication is still a broadly accepted point of view. In this context, the aim of our Workshop is to bring together critically minded legal scholars in order to explore the potential of a sustained critique of legal ideology exposing the hidden structural links between adjudication and the political.
Our key theoretical vehicle will be the notion of the political (das Politische, le politique) which we understand, by referring to such thinkers as Carl Schmitt, Claude Lefort or Chantal Mouffe, as the fundamental and unalienable social a(nta)gonism which, as a symptom constituting society, simultaneously escapes symbolisation within the hegemonic liberal ideology and, at the same time, is a precondition of the closure of the social field as such. We contend that adjudication as a social practice operates precisely within the gap which separating the neoliberal Symbolic from the Real of late capitalism. At the same time, looking from the perspective of juridical ideology, this gap emerges at the point of breakdown of the symbolic field of legal methodology (allegedly warranting access to the ‘one right answer’), precisely where the abyss of the Real (judicial law-making) emerges.
We invite contributions exploring the Political of adjudication from various methodological perspectives, both purely theoretical and empirical, including theoretically informed case studies. Potential approaches could include, in particular, the following themes for critical reflexion:
- the political as the repressed unconscious of adjudication,
- the concept of the political and various theories of interpretation,
- adjudication, the indeterminacy of legal materials and the political,
- exploring the political character of adjudication through critical discourse analysis of selected judicial decisions,
- adjudication as a social practice at the interstices of the legal and political fields,
- legal argumentation and the political,
- case studies of political decisions made by courts against the backdrop of the legal arguments used to justify them,
- the political dimension of adjudication in a comparative legal culture perspective (e.g. European vs. US legal culture),
- political adjudication is a historical perspective, with particular reference to totalitarian and authoritarian regimes,
- general clauses (e.g. good faith, Rechtstaat) as inroads of the political into adjudication,
- the legitimacy of political adjudication.
Abstracts of 300-500 words should be submitted at: https://easychair.org/conferences/?conf=li2016 by 1 February 2017. We will inform about acceptance of papers by 1 March 2017.
Whilst there is 30 euro conference fee, all potential participants are kindly informed that we are not able to offer any scholarships.
About the International Workshops on Law and Ideology
The International Workshops on Law and Ideology have been organised since 2014 jointly by the Centre for Legal Education and Social Theory (CLEST), University of Wrocław and partner institutions in other countries. The first workshop was held in May 2014 in Wrocław and was devoted to a general exploration of the of theme of ‘law and ideology’, in particular from the perspectives of Marx, Lacan, Foucault and Žižek. The second workshop, held in Sarajevo in May 2015, was co-hosted by CLEST and the Faculty of Political Sciences, University of Sarajevo and was devoted to Memories of Struggles, Struggles of Memories. As selection of papers from the 1st and 2nd Workshop were published in June 2016 in the Wrocław Review of Law, Administration and Economics (volume 5, issue 1). The 3rd Workshop was organised jointly by CLEST and the Faculty of Law, University of Tbilisi and was devoted to Rule of Law and the Politics of Conflict.
Dr. Lucian Bojin (West University of Timişoara), Dr. Rafał Mańko (University of Amsterdam), Mgr. Wojciech Zomerski (University of Wrocław)