Emmanuel Melissaris

The More the Merrier? A New Take on Legal Pluralism

Legal pluralism provides an alternative and very useful way of thinking about the legal as well as about discourses about the legal, as it sets itself the multiple task of looking at the law and theory both from an internal and an external point of view. This article distinguishes between two main theoretical strands of legal pluralism. Empiricism-positivism includes early sociological endeavours that trace selfregulating social groups and point out that the formal law of the state is not and cannot be responsive enough to those legal orders. Anthropological legal pluralism, which studies the ways peoples living within a congruent State regulate themselves despite the existence of a central law, also belongs here. Empiricism-positivism commits the fallacy of trying to define the law criterially, thus importing in that pluralistic law the knowledge of a dominant legality. This is what the ‘other’ legal pluralism is anxious to avoid. It turns to new ways of understanding the legal and seeks to make sense of and also facilitate the interpenetration of dispersed legalities. In particular, I refer to the work of three theorists. Günther Teubner and his systemstheoretical legal pluralism, Boaventura de Sousa Santos and his suggestion that new subjectivities emerge, and Robert Cover and his account of jurisgenerative commitments and the violence committed by state law. I argue that, although they too suffer from various shortcomings, these three approaches to legal pluralism can be fruitfully combined. From that combination a new understanding of legal pluralism will emerge as the radicalization of the way we think about the legal, an understanding that collapses observation into participation and thus leaves it up to regulatory discourses themselves to organize their communication. Finally, I argue that this legal pluralistic knowledge cannot be achieved by an already established and institutionalized legal order. At a first stage it is academic legal studies that must provide a forum, in which the dispersed legal discourses and theories can reveal themselves and communicate with each other.

From Legal Pluralism to Public Justification

The paper offers an argument for a conception of legal pluralism, which has some substantive upshots and at least partly alleviates that legal pluralism may regress to rampant relativism. In particular, I will argue that law in its pluralist conception is inextricably linked to the requirement of public justification. This is not by way of appealing to any transcendental normative ideals but as a matter of entailment of the very practice of law. But, perhaps to the disappointment of many, this procedural requirement is the only practical consequence of the concept of law. For thicker, substantive limits to what law can do and for ways in which legal pluralism may be reduced in real contexts one will have to turn to the actual circumstances furnishing the law with content and a different kind of thinking about the law.

Law and the possibility of discourse: introduction

AT A TIME when the economic and political mainstream invents disagreements of principle in order to disguise strategic imperatives, and then goes on to resolve them with violence, intersubjective understanding and the dialogical resolution of conflict are the only possible alternatives and salvaging or, indeed, reinventing politics seems to rest on the possibility of discourse. In law, too, there appears to be a shift from antagonism to co-operation. The proliferation of alternative dispute resolution mechanisms domestically and internationally as well as of truth and reconciliation commissions in post-conflict situations, the re-evaluation of the role of victims in criminal procedure and the transformation of judges into more proactive parties in judicial procedure are only a few developments that seem to be driven not only by the pragmatic concerns of reducing cost and increasing ‘customer satisfaction’ (in fact it is doubtful that either aim is fully achieved) but also, and more importantly, by the intuition that justice (or an approximation of it) can only be achieved through participation of all the parties in a process of dialogue. Discourse theory as formulated by Jürgen Habermas aims at establishing an immanent link between discourse on the one hand and truth and moral correctness on the other. On a philosophical level it is located between traditional metaphysics and linguistic philosophy shifting the focus from the grammar of language to the transcendental, universal conditions of communication and the possibility of consensus as the yardstick for the soundness of

Non-Citizens as Subjects of the Criminal Law

The article has a dual aim. The first is to contribute to the study of criminalisation at the border in Europe by outlining some ways in which Greek law organises the normative exclusion of at least one class of immigrants. Secondly, it tackles the theoretical question of whether such practices are justifiable. No sooner is a non-citizen involved in the criminal law that a web of duties and rights is activated marking the gradual inclusion of the non-citizen in the political community as its proper subject. This renders the differential treatment of non-citizens incoherent. The article also argues that it is both permissible and necessary for a state to treat non-citizens as the proper subject of the criminal law. The former because of the implicit consent provided by non-citizens; the latter out of the respect owed to citizens, whose normative position is impacted upon by their criminal law related interactions with non-citizens.

From Public Law to State Punishment

In The Ends of Harm Victor Tadros turns his attention to the justification of punishment. He develops a duty-based, instrumentalist justification of the practice of state punishment, hoping to straddle the boundary between retributivism and consequentialism. The book is rife with intriguing insights, original ideas but also new twists on old ones, and important and far-reaching arguments. Despite this wealth of content, however, Tadros keeps his eyes on the prize and the basic argument is precise, concise and admirably clearly developed. The monograph begins with a methodological note. Tadros distances himself from contractualism, arguing that agreement is not fundamental and that it also overcomplicates things, not least in terms of the cohort of those whose agreement is morally salient for the grounding of a principle. He appeals instead to the intuitive force of principles and their consequences for those affected by their application. Should the consequences of a principle sit comfortably with our intuitions, Tadros believes, then there are good reasons to endorse the principle. And examples of candidate principles at work—sometimes bizarre examples, he unapologetically admits—help us to test principles against our intuitions. It is not at all clear to me why intuitions are as fundamental as Tadros thinks they are. In fact, it is not at all clear what intuitions are in the first place. They seem to be a vague amalgamation of reasoned judgments and other kinds of reactions to external stimuli. Now, it does not seem to me that Tadros regards intuitions as an access point to the real moral fabric of nature. The appeal seems to be to shared intuitions. But to share an intuition with others means not to be in a position to reject it. It is therefore difficult to see how this philosophical method cannot be described as some sort of contractualism.