Abstract
The meta-narratives of law refer to a modern conception of law and society, as expressed in the various theories on the allocation of legal rights and duties among the legal subjects, on allocation of legal power to the officials, and the allocation of scarce resources in society. Radical decisionism rejects all feasible meta-contexts or meta-narratives of the law, opting for a purely contextual notion of legal or, rather, political decision-making. As examples of radical decisionism, attention is given to two theories here: Thomas Wilhelmsson’s idea of the small-scale, good narratives of legal responsibility and Martti Koskenniemi’s idea of the lawyer’s radically situationist ethics. According to Wilhelmsson, the post-modern condition of law has left us (almost) empty-handed, with just a bunch of fragmented legal doctrines and a profound disbelief in the validity of any wide-ranging theories of law. Therefore, “small-scale, good narratives of legal responsibility” is all we may legitimately hope for. However, the grip of modernity is not no easy to evade: what gives such small-scale narratives the quality of “good” is their linkage to the social values and objectives cherished the Nordic welfare state, bringing us back to square one. In Koskenniemi’s CLS-inspired methodological deconstruction of the argumentation patterns of international law, the structure of international legal argument is proven inherently volatile when faced with the competing, mutually exclusive claims made by the parties to a legal dispute. In a hard case, traditional legal arguments may equally well – and equally poorly – be employed by both of the parties to a legal dispute. The only way out of the deadlock is promised by having recourse to radically situationist ethics. But why would such a model be any less vulnerable to the shattering touch of Koskenniemi’s methodological deconstruction? Radical decisionism, it seems, is not an easy stance to maintain in legal analysis.
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- 1.
Weber, Economy and Society, p. 976.
- 2.
Larenz, Methodenlehre der Rechtswissenschaft, pp. 59–62; Wieacker, Privatrechtsgeschichte der Neuzeit, pp. 579–581; Lind, “Free Law Movement”, pp. 314–318. – In the essay, Lind gives a good and concise introduction in English of the main thoughts by Ernst Fuchs, Johann Georg Gmelin, Eugen Ehrlich, and François Gény, with Oskar Bülow (1837–1907) presented as a forerunner of the movement at the end of the nineteenth century.
- 3.
On François Gény as a legal thinker, Bouckaert, “Gény, François (1861–1959)”; Bergel, Méthodologie juridique, pp. 249–253.
- 4.
Aristotle, Nicomachean Ethics, p. 1796 (Book V, lines 20–32).
- 5.
Lind, “Free Law Movement”, p. 315.
- 6.
Cf.: “What is not right and equitable cannot be the law either; it is due to its equitableness that the law is acknowledged” (# 9); “All laws need to be applied with good reason, since the greatest [i.e. most severe] justice is the greatest injustice, and there must be an element of charity in law, as well.” (# 10); “The benefit of the common people is the best law; and therefore, what proves to be for common benefit shall be law even, if written law would seem to order otherwise” (# 13). (Translations by the present author.) – Olaus Petri (1493–1552), a Swedish scholar and clergyman, drafted the Rules for the Judge (Domarregler) in the early sixteenth century. Even today, Olaus Petri’s rules for the judge are printed at the beginning of the law book in Finland. Of course, they do not have the force of law but only denote the moral and social context of judging.
- 7.
Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens, pp. 20–24; Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty; Medina, “Decisionist Philosophy of Law”. – The best commentary in English to Schmitt’s legal and social thinking is David Dyzenhaus’ Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, where the three legal philosophers are concisely compared.
- 8.
Schmitt, Der Hüter der Verfassung; Kelsen, “Wer Soll der Hüter der Verfassung Sein?”. Cf. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar.
- 9.
Schmitt, Political Theology, p. 5. Cf. also: “All law is ‘situational law’. The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the essence of the state’s sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide. The exception reveals most clearly the essence of the state’s authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law.” Schmitt, Political Theology, p. 15.
- 10.
According to article 48 of the Weimar constitution, the President of the Republic was bestowed the right to proclaim the state of emergency to restore general order and security if the state had fallen into social unrest. The state of emergency was proclaimed twice during the Weimar republic, i.e. in 1919–1924 and 1930–1932, and then again after the fire of the Reichstag building in Berlin in February 1933. Tuori, “Carl Schmitt ja vastavallankumouksen teoria”, pp. 15–16; Medina, “Decisionist Philosophy of Law”, p. 185.
- 11.
After 1936, Schmitt fell from grace within the National Socialist movement, but thanks to his connections he retained his chair as a law professor in Berlin.
- 12.
Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens, pp. 22–24; Medina, “Decisionist Philosophy of Law”, p. 184.
- 13.
Medina, “Decisionist Philosophy of Law”, p. 184.
- 14.
Wilhelmsson, Social civilrätt; Wilhelmsson, “Sosiaalisen siviilioikeuden metodiset lähtökohdat”; Wilhelmsson, “Sosiaalinen siviilioikeus”; Wilhelmsson, “Sosiaalinen suorituseste”; Wilhelmsson, Social Contra ct Law and European Integration.
- 15.
Wilhelmsson, Social civilrätt, p. 139; Pöyhönen, Sopimusoikeuden järjestelmä ja sopimusten sovittelu, p. 274. – Article 11 of the Finnish Interest Act makes it possible to alleviate the legal interest of an overdue payment, if grave economic difficulties have fallen upon the debtor because of illness, unemployment, or similar reason, said state of affairs has not been induced mainly by fault of the debtor himself, and there are weighty reasons present for alleviating the interest.
- 16.
In Finland, the Marxist ideology of the l’uso alternativo del diritto gained popularity among radical legal academics and scholars in the political turmoil of the 1970s, with Lars D. Eriksson as one of the intellectual pathfinders of the leftist movement in the academic world.
- 17.
Wilhelmsson, “Jack-in-the-Box Theory of European Community Law”.
- 18.
Wilhelmsson, Senmodern ansvarsrätt, p. 193 et seq.
- 19.
Wilhelmsson, “The Ethical Pluralism of Late Modern Europe and Codification of European Contract Law”, pp. 141–146.
- 20.
The apt phrase of the “ruins and ashes” of international law was coined by Jarna Petman, who so depicted the outcome of Koskenniemi’s methodological deconstruction in the post-graduate seminar conducted by me on September 28th, 1998. Prof. Koskenniemi was present at the seminar as well.
- 21.
Derrida, “Letter to a Japanese Friend”, p. 3.
- 22.
Koskenniemi, From Apology to Utopia, pp. 208–209 (Right of Passage Case (1960) between India and Portugal), pp. 212–213 (Nuclear Tests Case (1974) between Australia & New Zealand and France).
- 23.
Here, I refer to the end of the first edition of the book, and not to the Epilogue in its second printing.
- 24.
Koskenniemi, From Apology to Utopia, pp. 458–501.
- 25.
“Rather than be normative in the whole (and be vulnerable to the objections of apologism-utopianism) he [i.e. the international lawyer] should be normative in the small. He can attempt, to the best of his capability, to isolate the issues which are significant in conflict, assess them with an impartial mind and offer a solution which seems best to fulfil the demands of the critical programme, as outlined in the previous section. In this way, he can fulfil his authentic commitment, his integrity as a lawyer.” Koskenniemi, From Apology to Utopia, pp. 496–497. (Italics added.)
- 26.
“For issues of ad hoc justice are both difficult to solve and can never be solved with the kind of certainty lawyers once hoped to attain. Their solution in a justifiable way requires entering intellectual realms formerly held prohibited from the lawyer. (…) this involves venturing into history, economics and sociology, on the one hand, and politics on the other. It involves the isolation and appreciation of what is significant in the particular case – in other words, realizing whatever authentic commitment there might exist for the parties in conflict. This is a task of practical reason. If my formulation of it seems question-begging and leaves open the ‘method’ whereby it should be conducted, this is only because no such given ‘method’ can be outlined in the abstract which would fulfil what is reasonable in some particular circumstance.” Koskenniemi, From Apology to Utopia, p. 497. (Italics added.)
- 27.
“Engaging in practical reasoning, the lawyer shall have to recognize that solving normative problems in a justifiable way requires, besides impartiality and commitment, also wide knowledge of social causality and of political value and, above all, capacity to imagine alternative forms of social organization to cope with conflict. It shall lead him to overstep the boundaries between practice and doctrine, doctrine and theory. The construction of contextual justice will demand an imaginative effort to rethink the contexts in which traditional roles have been formulated and in which their social effects have remained so unsatisfactory. The rethinking of contexts, again, makes it possible to imagine alternative social routines both for the lawyer and his “clients” while the very dynamism of the process excludes claims of objectivity and universal normative truth.” Koskenniemi, From Apology to Utopia, p. 498. (Italics added.)
- 28.
Koskenniemi, “Epilogue”, pp. 562–617.
- 29.
Koskenniemi, “Epilogue”, p. 596: “There is no space in international law that would be “free” from decisionism, no aspect of the legal craft that would not involve a “choice” – that would not be, in this sense, a politics of international law.” Cf.: “False Necessity (…) carries to extremes the thesis that everything in society is politics, mere politics, and then draws out of this seemingly negativistic and paradoxical idea a detailed understanding of social life.” Unger, False Necessity, p. 1.
- 30.
Koskenniemi, “Epilogue”, p. 616.
- 31.
Koskenniemi, The Gentle Civilizer of Nations, pp. 494–509, and 503–504, 508–509 in specific. – Koskenniemi was the visiting lecturer at my seminar for post-graduate students on 6th November 2002, answering to a set of questions prepared in advance by three (then) post-graduate students of international law, Päivi Leino, Anja Lindroos, and Jarna Petman. The question posited by Petman – and Koskenniemi’s answer – as to the relation between cultural formalism and Kelsen’s formal theory of law were brought up in that context.
- 32.
If the (meta)narrative of international law is read chronologically, with The Gentle Civilizer of Nations providing for the “rise and fall” of international law in 1870–1960 and From Apology to Utopia providing for the end of the story ever after, the question still remains: why should the (meta)narrative of international law remain immune to the touch of deconstruction in its heyday 1870–1960?
- 33.
Recourse to situationality is repeated in Koskenniemi, “Epilogue”, p. 616.
- 34.
“Rättskällorna är dessutom relaterade till begreppet ‘juridisk argumentation’. Det går inte att på en och samma gång förkasta alla eller nästan alla av dem och ändå argumentera juridiskt.” Peczenik, Vad är rätt?, p. 226. (Italics in original; translation by the present author.)
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Siltala, R. (2011). Radical Decisionism: Social Justice on a Strictly Contextualist Basis. In: Law, Truth, and Reason. Law and Philosophy Library, vol 97. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1872-2_11
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