Social rights constitutionalism: an antagonistic endorsement

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 in ‘exploiting’ the contradiction between capitalist interests and social rights

Lindahl’s Phenomenology of Legality

This contribution looks at the phenomenological thread that holds together Lindahl’s argument and traces its origin back to Husserl. It asks whether the reliance on the structures of collective intentionality is a necessary component to legal phenomenology and whether it puts Lindahl at odds with other phenomenological approaches such as Marion’s. It also asks whether the notion of ‘a-legality’ can sustain its position as a third value vis-à-vis the code difference of the legal system, in other words whether it can play the role of a ‘rejection value’, or whether it is in-stead committed sooner or later to collapse into the negative pole of the legal/illegal coding of the law

Crise et jugement: Le Conseil d’État grec face à l’austérité

No abstract available

Negri’s journey: a roadmap

No abstract available

The undiminished constituent: Afterword to the Foreword by Sergio Verdugo

This Afterword is a response to Sergio Verdugo’s Foreword. It provides a defense of the notion of constituent power as a necessary element of the constitutional imaginary and ineradicable dimension of any credible account of democratic constitutionalism. It takes issue with what Verdugo identifies as the ‘conventional’ approach to constituent power, and argues that the collapse of constituent power into constituted power comes, philosophically and politically, at a significant cost. It concludes with a discussion of the recent irruption of constituent power in the constitutional situation in Chile

Law of denial

Law’s claim of mastery over past political violence is frequently undermined by reversals of that relationship of mastery, so that the violence of the law, and especially its symbolic violence, becomes easily incorporated into longues durées of political violence, rather than mastering them, settling them, or providing closure. Doing justice to the past, therefore, requires a political and theoretical attunement to the ways in which law, in purportedly attempting to address past political violence, inscribes itself into contemporary contexts of violence. While this may be limited to an analysis of how law is an effect of and affects the political, theoretically this attunement can be further refined by means of a critique of dynamics that are internal to law itself and that have to do with how law understands its own historicity, as well as its relationship to history and historiography. This article aims to pursue such a critique, taking as its immediate focus the ECHR case of Perinçek v Switzerland, with occasional forays into debates around the criminalisation of Armenian genocide denialism in France. The Perinçek case concerned Switzerland's criminalisation of the denial of the Armenian genocide, and concluded in 2015 after producing two judgments, first by the Second Chamber, and then by the Grand Chamber of the ECHR. However, although they both found for the applicant, the two benches had very different lines of reasoning, and notably different conceptions regarding the relationship between law and history. I proceed by tracing the shifting status of 'history' and 'historians' in these two judgments, and paying attention to the deferrals, disclaimers and ellipses that structure law's relation to history. This close reading offers the opportunity for a critical reappraisal of the relationship between law, denial and violence: I propose that the symbolic violence of the law operative in memory laws is a product of that which remains unresolved in law's understanding of historicity (including its own), its self-understanding vis-à-vis the task of historiography, and its inability to respond to historical violence without inscribing itself into a history of violence, a process regarding which it remains in denial