Emilios Christodoulidis

Written in 1940, after the outbreak of the war, Simone Weil's essay on the Iliad is an exercise of extraordinary dignity not least because the disclosure of a human world it gifts us is offered from an existential position increasingly ill at home in the world. The essay offers us a strained phenomenology. I suggest that what attracted Weil to the Greek epic was that the phenomenological disclosure was asserted there on a register of necessity, only exceptionally with success. This underlies and explains her appeal to courage and is what fundamentally draws her to the Iliad: in her reading of the epic poem Weil gives us the most complete and uncompromising account of what it means to act with courage in the face of necessity in a way that yields, and makes appear, humanity in its vulnerability. Weil begins her essay on the Iliad with a statement about force that 'reduces to object': 'Le vrai héros, le vrai sujet, le centre de L'Iliade, c'est la force. La force qui est maniée par les hommes, la force qui soumet les hommes, la force devant quoi la chair des hommes se rétracte. … La force, c'est ce qui fait de quiconque lui est soumis une chose.'

This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.

This paper explores the democratic promise of 'democratic governance' and finds it to be a lie. With a particular emphasis on how the economic system has cut itself adrift from legal regulation and, in the process, re-configured its relationship to the law under the sign of "governance", we explore the logic of a key substitution: the market principle that was understood as the principle subtending the transactional nature of private law as distinct from public law, gradually becomes the arbiter of the separation itself and guarantor of the circulation ("balancing" in the preferred idiom) of public goods. Governance is imported to lend a vocabulary to these significant shifts, celebrated by its exponents as signifier for plasticity and 'experimentalism'. The paper explores the suggestion that governance might be thought of as an 'empty signifier', in that it performs a function that is typically 'hegemonic': it immunises itself by absorbing and redefining (across its semantic range) any opposition to it. Through a series of substitutions it performs a self-referential operation that has internalised all its criteria in order that governance be able to define for itself what is democratic about it.

The article discusses how we might understand solidarity as the organizing concept behind the institutionalization of social rights. I argue that writing solidarity into social rights constitutionalism carries productive tension into constitutional thinking because it disturbs the smooth passage from civil to political and finally to social rights. Marshall's influential argument that social rights are continuous to civil and political rights has become both the grounding assumption in constitutional theory and at the same time the most obvious lie in the constitutional practice of advanced capitalist democracies, clearly belied in EU constitutional practice under austerity. I explore the various attempts to accommodate the continuity of civil, political, and social rights in the face of the contradictory articulation of social democracy and capitalism before undertaking something of a defence of the antinomic significance of social rights constitutionalism, and probing what mileage might be left inèxploiting' the contradiction between capitalist interests and social rights.

The paper looks at the work and the findings of the Truth and Reconciliation Commission in South Africa and explores the reasons why it failed in certain respects. It identifies a tension between the Commission’s dual nature as legal institution and public confessional and explains why the Commission found it particularly difficult to accommodate and reconcile this tension, by exploring  factual, social and temporal incompatibilities between the meanings of law and the meaning of reconciliation.

The paper was written in 2014, in the midst of the Greek crisis and a few months before the government of Syriza won the elections in January 2015. Part legal analysis, part travelogue, it comprises five loosely articulated parts. The first traces the origin and the effect of crisis; the second looks at the jurisprudence of the Greek Council of State in its decision over the constitutionalisation of austerity; the third engages in a conceptual analysis of 'gift', 'hospitality' and 'debt' in the work of Johan van der Walt; the fourth explores the asset-stripping of Greece as orchestrated by the troika, and in particular the handing over of the operation of the port of Piraeus to Chinese capital; the final part is about Greek tragedy, 'donors and supplicants'

The paper is a critique of 'constitutional pluralism', as increasingly called upon to compensate for the social and democratic deficits of the European project, and of 'constitutionalisation' as compensating for the absence of any semblance of 'constituent power' at the European level. The substitution has been largely successful in redefining the terms of the debate. My interest in this paper, more specifically, is with constitutionalisation as a process of 'becoming-constitutional', the conditions of that process, and the criteria of ascription of constitutionality. My argument is that it involves a constitutive coupling with constitutional pluralism, such that allows even the current crisis to be portrayed as an 'opportunity' for Europe's alleged 'social market economy for the 21st century' to 'come out stronger', its progress at no point obstructed or derailed by the peoples' of Europe resistance to it. CONSTITUTIONALISATION AND PLURALISM

The paper is an internal critique of the theory of societal constitutionalism as developed by Gunther Teubner, with a specific emphasis on the 'constitutional' and the 'political' dimensions of the theory. 'Critique' because it focuses on what is argued are often unacknowledged dangers of co-option: the danger that constitutionalisation, as ongoing process, undercuts what we typically associate with the constitutional which is its framing function; that this problem is accentuated when it comes to the transnational; and that its reflexivity runs the danger of market capture in which case it remains only nominally political. The danger of market capture for societal constitutionalism is that the market becomes the means of calling forth the 'societal', by submitting it to functional imperatives and, in the final instance, harnessing it to market allocations. The paper is, however, also an 'internal' critique, because it, too, relies on the key concept of 'reflexive' self-definition, aspiring to think it on an uncompromisingly political register.

Post-apartheid South Africa stands at the crossroads of the 'political' and the 'social' in a way that calls us to put to question conventional conceptions of the two, and of their separateness. The contradistinction between the social and the political is of course Hannah Arendt's and the paper asks whether Arendt's dogged anti-Marxism does not in fact deplete her profound phenomenological endeavour and in fact efface the space of appearance that she draws insightfully from the tradition of phenomenology in relation to the key questions of exploitation and deprivation – the question explored with relation to and a special focus on post-apartheid South Africa. Particular emphasis is placed in the last section on South African constitutional jurisprudence and the recent controversial decision over the provision of water to the residents of the Soweto.

Against a celebratory of constitutional pluralism and its recasting of the 'constitutional' across plural axes, I suggest that a disquieting suspicion arises about which reduction is operative in gathering together Europe's 'many Constitutions', and the variety it permits. The paper asks whether the proliferation of constitutions does not in fact confront us with a form of constitution-shopping, in the way we have become accustomed to talking of law-or forum-shopping? The 'shopping' component of this formulation, in marked opposition to the varieties of its object ('constitutions'), is the term for what remains entrenched. What remains entrenched is the logic of the market. Through a series of slippages it elevates itself to epistemological premise of constitutional thinking: the market – as discovery process-invites cognitive adjustments, social learning as a self-correcting process. And with this it introduces a default constitutionalism whereby the drawing of distinctions that pluralism requires and celebrates become exercises of internal differentiation, in a way that leaves intact the market meta-structure as providing the pivot and the leverage, constitutionally unchallengeable, politically non-negotiable, and socially devastating. CONSTITUTION-SHOPPING? The title itself of this collection, and of the colloquium from which it emerged, confronts us straight away with a problem: how to think plurality when it comes to the unitary constitutional order of a single entity – Europe? We may of course bypass the problem through a certain – temporary – 'unfolding' of either of the key terms: constitutional order or Europe. 'Pluralising' either of these comes with the promise that the initial unpacking will allow a later convergence, more fruitful for having taken us through the attendant complexities. If one opts for pluralising the first term, constitutional order, one might talk for example of the proliferation of economic, social, political, and other constitutions, or identify constitutionalism across the split of national and supra-national, as the form of their distinction. Alternatively to pluralise the other term, Europe, is to see it as under-determined, whatever form that under-determination might take: whether as a system of 1 With many thanks for their valuable comments to Ruth Dukes, Suvi Sankari, and Scott Veitch.

The paper draws on Alain Badiou's theoretical framework to discuss political trials as 'events'; for Badiou events acquire their meaning by introducing a logic of rupture within what he calls a 'situation', the latter predetermining and over-determining what may be understood as contestation. The trials discussed are those of Louis XI in revolutionary France, of the Algerian Liberation Movement (FLN) in France and of the Milosevic trial in the Hague, with special focus on the strategy of defence employed by Jacques Vergès. After the revolutionary overthrow of the monarchy in France, the question of the fate of Louis XVI is posed before the Convention. The 'sublime' revolutionary Saint-Just dismisses in the following terms the Girondins' suggestion to 'appeal to the People' over the question of whether the deposed King should stand trial: 'Those who attach importance to the just punishment of a king will never establish a democracy.' Two weeks later, in his address to the Convention, Robespierre will seal the fate of Louis XVI: '… People doubt whether he is guilty, whether it is permitted to treat him like the enemy. The Constitution is invoked in his favour. I do not intend to repeat here all the unanswerable arguments developed by those who deign to answer objections of that sort. On this matter I will say a word for the benefit of those whom they have not convinced. The constitution forbade everything that you have done. … You have no right at all to hold him in prison. He has the right to ask you for his release and for damages and interest. The constitution condemns you: fall at Louis XVI's feet and ask for his clemency! … Personally I should blush to discuss these constitutional quibbles any more seriously than that; they belong on school or palace benches, or rather in the cabinets of London, Vienna and Berlin. I cannot argue at length when I am convinced that deliberation is a scandal. … Proposing to put Louis on trial … is a counter-revolutionary idea, for it means putting the revolution itself in contention…. …Louis cannot be judged; either he is already condemned or the Republic is not acquitted.' (Robespierre, [1791], this translation, 2007: 62, 58) This famous incident in modern history confronts us with the perplexing link between

Against the constitutional optimism that pervades our political rationality, I will argue the case for a disorganised civil society, genuinely plural, resistant to dominant representations that call it into line and thus undercut its radical potential. I will explore some of the more adventurous and persuasive such attempts to argue for an inclusive constitutionalism, one that supposedly reaches out to civil society and in order to do so relaxes the rigidity of its own terms, to harbour and host the diversity it aspires to represent. I will argue that these attempts at inclusion create constitutional irresolutions either forcing impossible demands on constitutionalism or dispelling the disorganisation it is meant to give expression to. I will then argue that in spite of the inability to capture them as constitutional moments, politics of 'pure presence' and real self-determination are possible, and against constitutional mystifications, resistance might find its opportunity in praxis, understood in the language of praxis philosophy (more specifically the work of Antonio Negri.)

... 220 Page 5. (Jus est ars boni et aequi), and justice 'the constant and perpetual will to attribute to everyone their due' (Justitia est constans et perpetua voluntas ius suum cuique tri-buendi), their practice requires that that which is returned to each be measured. ...

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

This article attempts an internal critique of N. Luhmann's account of the political system. Internal because it takes up the principal tense of system epistemology. Critical because it attempts to situate the potential for utopian politics within that framework which, according to Luhmann, precludes it. The article briefly explores this epistemology, its specific application to the political system and the negative conclusions that are drawn from this account for utopian politics. In order to confront these conclusions, the strategy of the argument is to extract from Luhmann's notion of political theory, as the meta-level of the political system, the possibility to problematize the terms in which the political system casts political questions. In political theory, this article argues, inheres the potential to turn politics reflexive. This in turn both suggusts opportunities for action carrying utopian vision but also leads to a better understanding of what shifts are involved in the social problematic of alternative politics that have shifted away from the framework in which Luhmann sees political possibility circumscribed.

the paper explores first the origins of Critical theory,  Marx’s profound debt to Hegel and to Feuerbach  as expressed in the 1844 Manuscripts and the Theses on Feuerbach respectively, then at a brief history of some of the post-war trajectories of its diaspora. Second it identifies key moments of the critical-theoretical enterprise, the basic premises of critical-theory-construction, by providing an inventory of terms and a (necessarily brief) explanation of them: the constitutive relationship of theory to practice or praxis; the dialectic and in particular the moment of  negation; the idea of theory’s task of mediation as it is situated and embedded in history and the materiality of social reproduction; the genealogical viewpoint; and finally the specific reflexivity that develops and is expressed in and as immanent critique. In the third section it visits these concepts and the ways they interrelate by way of a close reading of Max Horkheimer’s essay ‘traditional and critical theory’, a text that despite certain limitations allows the differentia specifica of critical theory to emerge. The final part applies these insights to law, to look at whether and how legal method might carry the organising premises of critical thinking into the organisation of law’s semiotic field, into legal discourse and legal practice.

las voces más audaces de la teoría crítica del derecho contemporánea. Lo que une a estos trabajos es, por un lado, el tratamiento de la dimensión política del derecho y, por otro lado, un compromiso con la teoría crítica del derecho que busca comprender, describir, pero fundamentalmente sospechar acerca de la función del derecho en la sociedad. La idea que es defendida por Christodoulidis y discutida por el resto de los autores es la de la irreductibilidad de lo político a lo jurídico, dado que lo jurídico es excluyente y lo político es reflexivo. Por esto, lo jurídico supone una preconfiguración que necesariamente deja afuera posibilidades. Contraria al dogma del constitucionalismo liberal, esta idea implica que una política genuinamente emancipatoria no puede ser juridificada. Los trabajos que componen este volumen abarcan diferentes áreas de interés: los juicios políticos, la justicia transicional, el constitucionalismo republicano, la idea de soberanía popular y los derechos sociales. Cada uno de ellos es seguido por trabajos de académicos latinoamericanos que discuten, ponen en relación o expanden las ideas presentadas por Christodoulidis.

Focusing on the organisation and protection of work, this book asks what it means to protect work as an essential aspect of human (individual and collective) flourishing. It is an intervention in contemporary academic and political debates around a set of critically important questions connected to processes of globalisation and market integration. This restatement of critical legal theory is intended to defend the concept of constitutionalism.