The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom (the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon of communicative exchange.
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‘On ne peut pas régner inocemment’, says Saint-Just (Vergès 1968, p. 98).
‘Quel rapport de justice y-a-t’il entre l’humanité et les rois?’ … ‘Je ne vois pas de milieu: cet homme doit règner ou mourir.’
Vergès gives the example of the double massacre of El-halid where 35 Europeans and 700 Algerians died, but where the legal inquiry was only opened in respect of the former deaths. The legal strategy of derailment here took the form of an insistent claim to perform autopsies on the corpses of all 700 Algerians.
Included as ‘Preface’ to the second edition, also 1968.
‘La rupture bouleverse toute la structure du procès. Les faits passent au deuxieme plan ainsi que les circumstances de l’action; au premier plan apparait soudain la contestation brutale de l’ordre publique.’ Vergès 1968, pp. 86–87.
Izieu is a small farming town east of Lyon from which 44 children were deported in 1944 by Barbie from a children’s home to the extermination camps.
All quotes in Koskenniemi (2002).
Niklas Luhmann’s is the most sophisticated theory to ground the creation of legal meaning and the reproduction of legal operations to the functional use of normativity. See Luhmann (2004).
Jürgen Habermas. ‘Wahrheitstheorien’, at p. 239, quoted in Alexy (1989, p. 111).
Under Art. 139, management and labour may inform the Commission that they wish to initiate the procedure known as ‘social dialogue’ which allows them to remove the issue from the Commission for a period of nine months and seek to reach consensus on the content of the proposal.
Alarmingly in the light of recent landmark ECJ decisions in Laval and Viking, national protective legislation for workers and their freedom to associate has also effectively been displaced onto the plateau of ‘soft’ law, through the judicial entrenchment of freedom of establishment as overriding in all cases.
On this distinction see Polanyi (1944).
See also Clarkson’s excellent ‘A time of address’ (Clarkson 2007).
I refer here to the title of the wonderful colloquium in the context of which we were first invited to discuss these issues at Birkbeck College in November 2006.
The emergence of the possibility of chance within the legal system marks an opportunity that is a condition of its own reproduction. ‘What the experience of contingency achieves is the opening up of chance for conditioning functions within the system, thus the transformation of chance into structural probabilities’ (Luhmann 1995, p. 120).
As we explored it first in section II and then immediately above, with Luhmann.
Under the Bachelet Government ‘Royalty 2’ was passed by Parliament finally in 2004 establishing a 5% surtax on mining profits where in 2006 these companies’ transfers were equivalent to 75% of the total budget of the Chilean State (See Riesco 2007, p. 5).
I borrow the term from James Tully. Tully renews the warning that, in the context of the new imperial logic of homogenisation and assimilation, it is meta-level struggles that matter: because only at that level can politics resist and redress the multiple forms of its co-option. For Tully these are struggles against assimilative injustices of the policies of recognition and governance, against the injustice of an assimilative idiom of a representational order that underlies and underwrites inclusion, of hegemonic languages and corresponding practices of governance that provide the horizons of the mode of disclosure of the present (See Tully 2008).
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Many thanks to the organisers of the Critical Legal Conference in London in 2007 for inviting the plenary presentation; to Peter Fitzpatrick and Richard Joyce for the excellent ‘Law of Law’ colloquia at Birkbeck where some of these thoughts were first aired; and to Valerie Kerruish and the Altonaer Stiftung (ASFG) for the invitation to discuss the paper. Special thanks to Scott Veitch, Alessandra Asteriti, Stewart Motha, Costas Douzinas, Ruth Dukes, Johan van der Walt and China Mieville.
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Christodoulidis, E. Strategies of Rupture. Law Critique 20, 3–26 (2009). https://doi.org/10.1007/s10978-008-9042-x
- Critical legal theory
- Immanent critique
- Political intervention