Browsing by Subject "legal realism"

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  • Etxabe , Julen (2020)
    In a 2006 article, Duncan Kennedy identifies politics as the central dilemma of contemporary legal thought, but affirms that law is non-reducible to politics, which could be read as a partial retraction from the known coda “law is politics.” This essay suggests an interpretation of his refusal to conflate law and politics not in terms of disavowal, or a way of distancing politics from law, but as an attempt to carve out a space from where to think of the relational aspect between law and politics. This becomes necessary due to a current phenomenon which Pierre Schlag calls “dedifferentiation,” where no distinction—and hence no relation—seems to be possible between law and other spheres of life. Opposing that conclusion, this article contends that engendering relations allows us to keep the terms connected in relative motion. The essay then moves to describe four distinct modes of framing the relation between law and politics, which gives rise to very different disciplinary projects: law as politics, dating back to the legal realist movement; law as political science, which finds its current expression in empirical and quantitative research; law as political philosophy, generated by a renewed interest in “the political”; and law as political contingent, growing out of a similar interest but challenging the boundary-setting ambitions of philosophy. While the latter has not yet been adequately translated into law, I suggest as an alternative the work of Jacques Rancière, which declines to grant an aura of invincible ubiquity to any totalizing description, including neoliberalism’s attempt to present itself as a world system.
  • Strang, Johan (2019)
    It is often argued that the Scandinavian post-war period was marked by a democratic optimism that contrasts with the deep concerns for the inherent dangers of popular sovereignty and the thorough moral reconsideration that took place on the European continent in the wake of World War II. This article seeks to balance this view by exploring what Scandinavian intellectuals believed had caused the collapse of democracy in Europe in the 1930s and what they saw as the main threats to democracy in the emerging post-war societies. Focusing on the fears of socialist planning, concerns about the position of individual rights and freedoms in modern societies, and the anxieties concerning the secular total state, the article suggests that the Scandinavian post-war democratic settlement was indeed built around a different set of ideas from those evident in many other places in Europe, but that it was no less informed by recent historical experiences or concerns for the fragility of democracy.