Emilios Christodoulidis

‘Truth and Reconciliation’ as Risks

This article aims to situate the fascinating and deeply controversial work of the Truth and Reconciliation Commission in South Africa within a theoretical context that may explain how its attempt to overcome the tensions between truth seeking and amnesty giving stumbled on its use of law to bring about reconciliation. It locates the root of the problem in the dual nature of the TRC as public confessional and legal tribunal, and underlying it the incongruent logic of law on the one hand and reconciliation on the other, the former requiring the reductions of risks, the latter requiring risk to be embraced.

Constitutional Irresolution: Law and the Framing of Civil Society

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).

The Irrationality of Merciful Legal Judgement: Exclusionary Reasoning and the Question of the Particular

In this paper I attempt to bring together (at least) two very different debates: one on justice, mercy and particularity, the other on the play of exclusionary reasons. My aim is to show how the discussion of the uneasy co-existence of justice and mercy pivots on the question of particularity. And, secondly, that the debate on exclusionary reasons can show us why law may fail to do justice in this context.

Citizenship Bound and Citizenship Unbound

An important reason why the notion of citizenship has generated such theoretical interest and debate in recent years is because it rests on the precarious junction of ‘membership’ and ‘participation’. The difficulties with which the concept is fraught bear witness to this tension. For a long time ‘citizenship’, ‘citoyennete’ or ‘Staatsbiirgerschaft’ meant political membership as understood in the language of the law. Membership was conferred from above and citizenship was the legal link with a state that exercised effective power over a given territory. Membership was established through a network of duties and rights that connected citizen and state. While the element of membership did not change, as a result of the dramatic events of the late eighteenth century sovereignty was transferred from the king to the people. The transferral enriched the liberal moment of civil liberties with rights of participation in the formation of the people’s sovereign will. There was a shift of emphasis from membership to participation. The shift is so decisive as to alter the understanding of the status of citizen and establish the participatory element as the decisive one.

A ‘minefield of misreckonings’: Europe’s constitutional pluralism

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.

Labour constitutionalism in a genealogical key

At its core, Ruth Dukes’ important defence of ‘the labour constitution’ is an invitation to restore a constitutional register as proper to the protection of labour, against its market dependency and the forms of undercutting it underwrites. She confronts what for some time now has been an increasingly influential approach in the field: the theorisation of labour law as labour market regulation and as ‘economic governance’. The argument she opposes is the new pervading functionalism, described here concisely by Simon Deakin in acclamatory mood: ‘Labour law rules should be thought of not as external interferences with the market, but as endogenous responses to market failures, triggered by self-regulatory mechanisms and, in turn, supporting their operation.’ This comprehensive internalisation measures failure and success of labour regulation on a register of market efficiency suggesting, as Dukes puts it, ‘that those rules and institutions which evolve and persist do so because they are “efficient”, because they are conducive to “optimal” market functioning’. In this double attribution where the value of labour protection is harnessed to efficiency and efficiency to market optimisation, we discern the deep commodification of labour. Deakin concedes the commodification lightly:

Information and democracy: reflections on a complex relationship

The article explores the triangular relationship between democracy, information and the law. More specifically it looks at how we might understand the relationship between democracy and information and the way in which the law sustains and informs that relationship. With the help of discourse theory it explores first the congruence of the democracy and information as facilitated through law; then it moves on to re-conceive that relationship as more complex, at times even as antithetical, by contrast the win-win discursive account with situations where the protection of democracy appears to require the curbing of the free flow of information. In order to make sense of the complexity involved it finally takes a step back into the field of methodology and theory construction and to explore barriers in terms of the path-dependency of information.

New Bearings in the Sociology of Law

Conventionally, normative and analytical philosophical approaches (i.e., those of Rawls, Dworkin, Alexy, etc) occupied an unshakably dominant position in constitutional theory. Theories of constitutional rule typically isolated the aspect of constitutionalism concerned with fundamental rights from other constitutional functions, and they usually revolved around the attempt to explain constitutions as documents expressing rationally defensible norms to govern the distinctively public exchanges of society. This dominance of analytical theory in constitutional inquiry was flanked and reinforced by the fact that ‘sociolegal’ analysis – with its own particular methodologies and emphases – had retreated from, or in fact had never really taken occupancy of, the sphere of constitutional debate, and it tended to concern itself with questions located in the sphere of private law, in regulation, or in criminology; the primary overlap of sociolegal analysis with a particular subdiscipline of law is clearly still now with criminology. In the rare cases in which more conventional sociological reflection placed a focus on constitutional law, for instance, in the works of Gunther Teubner and other theorists influenced by him, it usually located constitutional law on a continuum with private law. Indeed, the connection between constitutional law and private law was already anticipated by the very earliest sociotheoretical reflections on constitutional law – for instance, in the writings of theorists as diverse as Savigny and Marx. In contemporary debate, the indifference of legal sociology toward constitutional law (construed categorically as public law) is no doubt in part attributable to the fact that the field of sociolegal studies evolved in tandem with the development of research on legal pluralism and with the growth of attendant theoretical and explanatory models. In the spirit of Eugen Ehrlich, analysis of legal pluralism was historically associated with the sphere of private–legal relations, which meant that sociolegal inquiry into constitutional norms was also directed toward the domain of

The quest for a constitutional perspective

The Quest for a Constitutional Perspective: A review of Poul F Kjaer, Gunther Teubner and Alberto Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation.

Dialogue & Debate: Labour, Constitution and A Sense of Measure: A Debate with Alain Supiot

The paper ‘A sense of measure’ that we publish in this section was Alain Supiot’s contribution to a series of workshops organised at the School of Law of the University of Glasgow, in autumn 2009, on the general theme of ‘constitutionalising employment relations’. The underlying idea for the seminars was to ask the question of labour law as a question of constitutional law; to cut across the categorical distinctions that are taken, increasingly, as given between the public sphere and the workplace. The entrenchment of this distinction between public sphere and workplace obscures the fact that significantly similar forms of powerlessness and vulnerability affect both citizens and workers. The emphasis on constitutionalisation marked the attempt to recover an earlier vocabulary of labour law; one that did not undercut the expression in anything but market terms of the creation of value and the stakes of the employment relation. The original impetus for our project was a shared concern that much of what has been written about labour law over the past 10 years or so emphasised a move away from traditional conceptions of its function of redressing asymmetries in the respective positions of employers and workers through protective measures, towards a full-blown market paradigm focused on maximizing flexibility. Together with this development, there seemed to be a growing perception that ‘old ways’ of regulating employment relations had become inappropriate. Instead, there was discussion of the benefits of minimal or ‘light’