Abstract
Republican theory claims nothing less than that the constitution provides the possibility of politics and the substantiation of community. The legal-institutional connection is the significant one: what characterises the republican thesis is the centrality of law both to politics and to the moulding of community.
The more consistently the legal systems are worked out the greater their capacity to absorb whatever essentially defies absorption. (Adorno)
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Notes
The allusion is to Rilke: ‘… daß wir nicht sehr verlaschlich zu Haus sind in der gedeuteten Welt’ (Duineser Elegien, 1)
Michelman, 1988, 1503
Minow, 1987, 88-89
Michelman, 1988, 1529
ibid., 1528-1529 We noted above that Michelman sees this process as unproblematical. Michelman collapses law into politics, into the ‘people’s on-going normative contention’, and makes law synonymous with dialogue in spontaneous contexts and unofficial fora. In his argument the legal discourse is likened to people’s ongoing normative speaking.
Cf. Postema here: ‘The principled politics of constitutional rights makes possible the continual re-articulation of a community’s public conception of morality. The indeterminacy and lack of closure of this form of public justification is, in this instance, not a defect, but a virtue.’ (1989, 127)
Michelman alludes to this when he claims that ‘an order or practice may retain its identity while undergoing transformation through a process of reflexive criticism.’ (1988, footnote2)
But this does not mean, as the republicans would have it, that law can accommodate political plurality as such. It merely means that law is not immune to its political environment. It is open to political challenge that feeds into it as indeterminacy. But this CLS ‘law-as-politics’ formula is not interchangeable with the republican ‘politics-as-law’. For more on this see chapter fourteen.
This kind of interplay between formal processes and informal networks of public deliberation is also characteristic of Habermas’s account of the Public Sphere, and is specifically elaborated in (1992). In that article, Habermas stresses the necessity for a political process to be open to and sensitive to the influx of issues and value orientations from its informal environment of public debate at large. Only such an interplay ensures communicative pluralism. In other writings he sees some potential in the role of the New Social Movements and their involvement in ‘Grenzenkonflikten’ (boundary conflicts) (1987a, pp390ff, and for an overview White, 1988, 123-7) that in this case could be conceived, without much distortion I think, as the boundary between official and unofficial process.
See Rosenblum, 1994, 73. Neither can the republicans guarantee at the outset that this involvement will be identity-generating.
Dworkin, 1986, 199-200
Ackerman, 1984, 1039
In an interview in the Tageszeitung of 7/4/90, quoted in Scott and Caygill (1995) 13 A parallel argument forms the main thrust of Alan Scott’s and Howard Caygill’s analysis of the draft of the new German Constitution. (1995) Their analysis suggests elements of the strategy of containment. According to them, the draft constitution, amongst its major innovations, proposes (I quote selectively): (i) “… constituting associations of civil society which at the same time have participatory rights, (ii) offers and guarantees a space for free societal formation for social movements, that carry cultural and value innovation and (quoting Melucci 1989) function as a social laboratory, (iii) “an attempt to constitute responsible, republican and social citizens…”
Michelman, 1988, 1514
What begins as a false necessity turns into a falsity. The false necessity of assuming that a group’s self-understanding is informed by the law becomes a falsity, when that self-understanding is assumed for the citizenry, that, as a matter of fact, includes groups whose self-understanding is not informed by the law. In any case the disjunction falsity and false necessity is an important one and gives my own position a more moderate tone. I am not claiming, that is, that law can never be a vehicle to political action or give expression to social conflict in a way that mediates the assumption of political identity in community. That would be manifestly an exaggeration. But law can perform this function, that republicans attribute to it anyway, only so long as political actors find it an adequate description of their conflicts and their own self-understandings. The weakness of the republican claim is in assuming-the false necessity-that it always does.
My descriptive argument against the republicans is that this claim is founded on arbitrary assumptions. My prescriptive argument in favour of reflexive politics is to resist viewing this claim as a meta-political question.
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© 1998 Springer Science+Business Media Dordrecht
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Christodoulidis, E.A. (1998). The Containment Thesis. In: Law and Reflexive Politics. Law and Philosophy Library, vol 35. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-3967-0_6
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