On Legal Positivism’s Word and our ‘Form-of-(non-)Living’

This paper is about two stories. The more reassuring one states that byestablishing that a norm is valid because of its source, not its merit, legal positivism is, in its various forms, perhaps one of the greatest achievements in Western legal theory and practice. From constitutionalism to human rights policies, from criminal to international law and free trade agreements, from contracts to torts and e-commerce, legal validity, predictability, and coherence have found their most powerful ally in positivist thought. This contribution argues that it is time for a different, neorealist story: the metaphysical, ontological and biopolitical essence of its language demonstrates that legal positivism has in fact played a fundamental role in the substitution of action with behaviour, and consequently, in the normalisation of humankind’s self-annihilating animality as post-historical and post-political ‘form-of-(non-)living.&rsquo

Legal Systemology and the Geopolitics of Roman Law:A Response to Stuart Elden’s Critique of Carl Schmitt’s Spatial Ontology

This paper explores the production, destruction, and reproduction of the geopolitical spaces of Roman law in order to offer an analysis of Schmitt’s (selective) notion of Jus Publicum Europaeum and its relevance to the current “depoliticization” and “dejuridification” of the world. By adopting a historical and geopolitical approach that reaches the boundaries of legal systemology and political theology, the present contribution investigates the manipulative and instrumentalist use of the material object of Rome’s (universalist) competence, namely the “territory” as dominium of its political intervention, which was ultimately (and idealistically) aimed at avoiding the natural destiny of any living being: birth, maturity, and death. Attention is therefore paid to the Roman strategy of (ontological?) contamination of its mythical identity through the legal and sociopolitical administration and regulation of its geographical spaces in terms of (non-)cultural signification. Through the analysis of such concepts as “nomos,” “Großraum,” “Ortung,” and “Ordnung,” it is claimed that Schmitt voluntarily chose to identify the Jus Publicum Europaeum with the geopolitical order produced during the Age of Discovery and not with the “comprehensive” Roman spatial order. The reason for this choice may be identified in the distortive use of Rome’s social relations and political allegiances that lay at the core of its genealogical expansionism (and subsequent inevitable dissolution) since the conquest of Veius in 396 BC and the historical compromise between patrician nobility and plebeians in 367 BC

Reflections on the Pactum in the Public and Private Spheres

This chapter delves into the nature of the pactum as both substantial and functional bond, as well as mythical canon of any contractual-constituting initiative in the public and private spheres. The aim is to show that the movement toward the conceptualisation of good faith as an organising principle and implied term in the Common law tradition is due to the need to counterbalance our inhuman condition as made manifest by the humanitarian fac¸ade of the modern constitutional project. This claim is supported by an unconventional method of investigation that will promote the comparison between the role of political action at the public level and the increasing utilisation of the doctrine of good faith in Contract law theory and practice

Hayek the Schmittian:Contextualising Cristi’s Account of Hayek’s Decisionism in the Age of Global Wealth Inequality

That capitalism, in all its variants, produces material inequality is beyond dispute.What is less clear, however, is not only whether Hayek’s ‘equality of opportunities’is immune to the inegalitarian trend, but also whether liberalism itself is the occultsource of this outcome. This paper delves into this by offering a post-nationalcontextualisation and partial critique of Renato Cristi’s 1984 and 1998scholarship on Hayek’s decisionism. The aim is to investigate the relationshipbetween liberal thought and wealth inequality in light of the global-order projectand crisis in democratic decision-making procedures. This will uncover a clearzone of interaction between Hayek’s notion of legal liberty and Schmitt’ssovereignty that was not spotted by Cristi and that will shed new light on thedehumanising and inegalitarian essence of the universalisation of liberalism andits notion of ‘civilised economy’

The Age of ‘Depoliticization’ and ‘Dejuridification’ and its ‘Logic of Assembling’:An Essay Against the Instrumentalist Use of Comparative Law’s Geopolitics

While comparative law has become a key discipline, its instrumentalist use has turned out to be a powerful weapon: it is the ‘pen’ by which the identity of and differences in law’s geopolitics are continually written and rewritten. Given its attractive functionalist essence, comparative law is gaining increasing international credit as a way of developing newer theories of sovereignty and governance in a framework in which law is conceived of less as a set of rules and more as a symbolic vestimentum of global soft power. The present contribution critically investigates the relationship between distortive views of comparative law’s geopolitics and the intimate essence of the doctrine aimed at creating the ‘aspatial’, unbounded, illimitable (and hence intangible) liberal global order whose governance appears to transcend the idea and form(s) of law through which the ‘politicization’ and ‘juridification’ of modernity have been achieved in the last century. In doing so, it also addresses why such an alliance has made it easier to ‘discover’ and ‘sell’ the smooth and rectilinear land of the figuratively unspoken and unwritten as the terra incognita that lies over what is created by the constructivist political intervention(s) of the modern nation-stat