'Between Freedom and Law: Hannah Arendt on the Promise of
Modern Revolution and the Burden of "the Tradition"' in Hannah
Arendt and the Law, edited by Marco Goldoni and Christopher McCorkindale
(Hart, 2012); working paper published in LSE Law Society and
Economy Working Paper Series, 05-2011 August 2011
What are the juridical implications of Hannah Arendt’s conception of
freedom as political rather than personal, based on action in the
circumstances of plurality rather than an absence of interference in
the context of isolated contemplation? This is not a question of
mere philosophical speculation. According to Arendt, the experience
of modern revolution, beginning in America and France at the end of
the 18th century, marks the appearance of freedom as a worldly,
political phenomenon with the potential to change our understanding
of the constitutional foundations of authority. And yet this
potential is betrayed due to the inability of our juridical
imagination to escape two conceptual dead-ends: the image of law as
command and the model of constitutionalism as a process of
fabrication, both of which, in different ways, suppress our sense of
political freedom by expressing constitutional foundations in terms
of sovereign ‘absolutes’. In so doing the modern juridical
imagination neglects the significance of two older conceptions of
law, the Greek nomos and the Roman lex, neither of which depend upon
such absolutist foundations. The Roman lex might suggest a way out
of this conceptual impasse, by conceiving law as relational,
dynamic, and intertwined with the political at its root, but in a
manner captured by the metaphor of constitutionalism as ‘political
grammar’ or ‘syntax’.
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Review of Public Law and Politics: The Scope and Limits of
Constitutionalism, edited by Emilios Christodoulidis and Stephen Tierney.
(Aldershot: Ashgate, 2008)' (2010) 16 European Public Law pp. 475–479
'Is Law Morally Risky? Alienation, Acceptance and Hart’s
Concept of Law' Oxford Journal of Legal Studies (2010) Issue Number 3
According to Hart’s concept of law one of the distinctive
characteristics of a legal order is that it is sustainable on the basis of
official acceptance alone. Can we go further and say that law is morally
risky in the sense that it is endemically liable to become alienated from
its subjects? On the basis of Hart’s weak formulation of acceptance there
is nothing to suppose that acceptance and (an absence of) alienation are
connected. However, on closer inspection, this weak formulation is defective,
failing to account for the normative and collective aspect of the law qua social
norm. Pursuing a stronger notion of acceptance as a critical reflective attitude
does establish a link between acceptance and (an absence of) alienation, but it
fails to establish that the legal regime is, by its nature, endemically
alienating in a way that a pre-legal regime is not. It does, however, help to
explain why any official-centred picture of the legal regime is problematic in
terms of accounting for law’s normativity. Whether alienation materializes, it
is concluded, depends on the social and political factors that condition our
attitude towards the law rather than on the nature of law as such.
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'Three Conceptions of Law: Towards a Jurisprudence of
Democratic Experimentalism' Wisconsin Law Review (2010) Issue
Number 2
The article takes as its starting point the recent transformation in our legal, political, and social relations that is suggested in the literature on “new governance.” It asks, what are the implications of this transformation for our conception of law and legality, and, specifically, what is the relationship between law and new governance? The existing responses to this question are presented as generally falling into two groups: those that argue that law is transformed in the move to new governance, and those that argue that there is an irreducible conceptual and normative gap between law and new governance. At the back of each of these accounts of the relationship between law and new governance is a more fundamental conception of legality: in the former case, a functionalist, and in the latter case, a liberal-legalist conception of legality. Arguing that neither of these approaches is satisfactory, I propose a third account of the relationship between law and new governance, the contingency thesis, which is supported by a democratic conception of legality.
Review of Coyle 'From Positivism to Idealism: A Study of the
Moral Dimensions of Legality' (2009) 72:4 Modern Law Review 677 - 683
'Between Constitutionalism and
Democratic Experimentalism? Law and New Governance in the EU and the
US' (2007) 4 Modern Law Review 680 – 700
This piece focuses on the
new scholarship associated with ‘democratic
experimentalism’ (also called ‘directly deliberative
polyarchy’) as it has been developed by Charles Sabel et
al. and applied in various different legal contexts in
the EU and the US. The thrust of my investigation is
examining how democratic experimentalism relates to the
practice and idea of constitutionalism and in particular
the difficulty in reconciling the tensions between law,
democracy and the constitution of the polity.
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'Who’s afraid of a European
Constitution?' (2005) Vol. 30 No.2 European Law Review 297 –
314
'Civil Society and the Re-imagination
of European Constitutionalism' (2003) 9:4 European Law Journal
451 – 472
This piece, which was
written as a contribution to a special issue of the ELJ
on Civil Society, attempts to chart a middle way between
the ‘national demos’ and ‘European market’ approaches to
European constitutionalism, rejecting the two poles as a
‘false dichotomy’. It explores the potential of a
Habermasian framework in which republican ethos might
transcend the nation-state and concludes with an
examination of the ‘agonistic’ and ‘experimentalist’
alternatives to his ‘post-national constellation’.
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'Postnationalism, (Dis)organised Civil
Society and Democracy in the European Union: Is Constitutionalism
Part of the Solution or Part of the Problem?” (2002) 3:9 German
Law Journal
The focus of this article
is the difference between what might be termed a
‘bottom-up’ and a ‘top-down’ approach to the
construction of a constitutional polity in the
postnational context of the EU. Criticising several of
the dominant models in the Habermasian vein as being
overly ‘top-down’ and state-centric, it examines whether
constitutionalism can be rethought in more
pluralistically democratic terms.
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'Constituting Europe: Flexibility or
Finality?' (2002) 1 Oxford Journal of Legal Studies 177 – 187
Michael
Wilkinson