Hans Lindahl

Give and take Arendt and the nomos of political community

Appealing to the original meaning of the Greek term nomos, Hannah Arendt claims that a bounded legal space is constitutive for political community. Can this seemingly anachronistic claim be substantiated in the conceptually strong sense that every polity - the Greek city-state as much as a hypothetical world state - must constitute itself as a nomos? It is argued that whereas Arendt falls short of justifying this claim, a reflexive reading of nomos can do the trick: the space of political community is necessarily bounded because no polity is imaginable that does not raise a claim to an inside as the community’s own space. A world state, were it ever to be founded, would globalize nomos, not suppress it. Whence the political problem: how does a polity deal with its outside? This problem is particularly pressing because Carl Schmitt’s defense of nomos radically challenges Arendt’s position. A reinterpretation of her analyses of the foundation of a political community suggests how the representational structure of a politics of boundaries parries Schmitt’s challenge.

Fault lines of globalization : Legal order and the politics of a-legality

Introduction PART I: LEGAL ORDER 1. Legality, Illegality, A-Legality: A Preliminary Analysis 2. A Topology of Legal Orders in a Global Setting 3. The Identity of Legal Collectives PART II: LEGAL ORDERING 4. A Genealogy of Legal Ordering 5. A-Legality 6. Setting Legal Boundaries 7. A Politics of A-Legality

Boundaries and the concept of legal order

My aim in this paper is to explore the relation between boundaries and the concept of legal order. More precisely, I will be asking whether we can make any sense at all of law as a normative order unless it is bounded. The immediate context of the question is the crisis of the assumption that contemporary social relations can be adequately described and explained as taking place exclusively within—and to some extent between—sovereign states with mutually exclusive territories, populations and governments. Indeed, we witness the emergence of a host of trans-border legal orders, such as codes of professional self-regulation, lex mercatoria, technical standardisation, ICANN (the Internet Corporation for Assigned Names and Numbers) and multinationals, which, on the face of it, are no longer spatially organised in terms of an inside vis-à-vis an outside. There is broad consensus that the inside/outside distinction is, as one might put it, the specific difference that defines a legal order as state law; it does not capture the specificity of any of the other legal orders mentioned above, nor, for that matter, of international law. These developments have profoundly influenced how contemporary legal theory approaches the concept of law. If the spatial boundaries of nation-states had been largely taken for granted as constituent features of legal order during the acme of the municipal/international law paradigm, the emergence of cross-border legal orders retrospectively exposes those boundaries as a contingent feature of law. Building on this insight, political and legal theories have sought to articulate a general concept of legal order that need not rely on spatial boundaries as one of its constituent features, and to think through the normative implications of this epochal transformation for law and politics. Even though this conceptual and normative reorientation understands itself as introducing a drastic shift away from the paradigm that has dominated Western legal and political theory during the past centuries, one may wonder whether it does not (2011) 2(1) Jurisprudence 73–97

The anomos of the earth: political indexicality, immigration, and distributive justice

Polities appeal to the principle of distributive justice when justifying the right to inclusion and exclusion they claim for themselves with respect to immigrants: to each their own place. This paper attempts, in a first stage, to explain the nature of the link between distributive justice and an alleged right to inclusion and exclusion, as manifested in the political use of indexicals such as ‘we’, ‘here’, and ‘now’. Drawing on an analysis of the European Union, it subsequently shows why the use of political indexicals, when officials exercise the EUs putative jus includendi et excludendi, is only possible by invoking the utterance of a first ‘we-here-now’ that has no referent. The relation between distributive justice and an alleged right to inclusion and exclusion—a polity as a nomos, as I will call it—is rendered both possible and continuously undermined by an anomos—the invocation of a polity and a world that are not and cannot be in empirical space and time.

Breaking Promises to Keep Them: Immigration and the Boundaries of Distributive Justice

Theories of distributive justice have great difficulties in conceptualizing immigration as a political rather than a moral problem. Exploring the reasons for this reductive move, and explaining why it is self-defeating, this paper argues that immigration poses a thoroughly political problem because spatial boundaries are posited from the first-person plural perspective of a ‘we.’ Yet the politics of boundaries deployed in immigration policy are also necessarily problematic: while polities claim a right to include and exclude aliens because a territory is held to be the own place of their citizens, an act of inclusion and exclusion gives rise to a ‘we.’ This circularity disrupts—without effacing—the inside/outside and right/fact distinctions that underpin the right to closure polities claim for themselves. The stake of this disruption is temporal no less than spatial: as polities close themselves into a legal space through a mutual promise to which there is no direct access, distributive justice requires that authorities decide what promises had been made in the light of boundary crossings that determine what promises can be kept.

To Each Their Own Place? Immigration, Justice, and Political Reflexivity

Any attempt to think through the possibility and justification of a right to migration in a global perspective must begin by coming to terms with the right to inclusion and exclusion (supranational) polities claim for themselves. The aim of the paper is to scrutinize this alleged right, both conceptually and normatively. Conceptually, I aim to link the possibility of a right to inclusion and exclusion to a feature of Ulpian’s formula that has gone largely unnoticed in discussions of distributive justice: the reflexivity of suum cuique. This conceptual analysis prepares the way for the normative question to be addressed in this paper: even if no polity is imaginable that is not spatially bounded, under what conditions, if any, can it lay claim to a right to inclusion and exclusion? This indirect approach will allow us to establish what sense can be made of a “right” to migration in a global perspective.