Ein Gespenst geht um Europa – das Gespenst des Populismus, one could say, paraphrasing Marx. But what is populism and what stance should critical legal scholars take towards it? On the one hand, we – critical legal scholars – share with the populists our scepticism about liberal narratives on ‘rule of law’ or ‘fundamental rights’, pointing out that these ideological devices serve mainly as smokescreens, concealing the Real of class power. On the other hand, contemporary populist regimes are generally inspired by a vulgarised version of neoconservative ideology, encompassing raging ethno-nationalism, primitive sovereigntism, confessional obscurantism and brutal anti-environmentalism. One of the targets of populist ideology and populist political action has been, from the very beginning, the judiciary and its independence, accused of elitism, detachment from the people and tendencies towards creating a ‘gouvernment des juges’. But do the populist critique and its ensuing action really address the issue? Should critical scholars become tacit accomplices in the populist work of destruction of the liber order, or should they rather defend the demoliberal status quo ante?
The aim of the Symposium will be to try to find answers to these questions. We propose three key concepts to be discussed and deconstructed from a critical legal perspective: adjudication, legitimacy and the political. The traditional vision of adjudication as a mere ‘application of laws’ made elsewhere no longer holds, and, in its place, liberal legal theorists, such as notably Ronald Dworkin, have come up with the idea of a judge-Hercules who is to discover and apply the underlying principles and societal values. Within the continental tradition, such thinkers as Jürgen Habermas and Robert Alexy have come up with functionally comparable theories, claiming it is possible to effectively balance conflicting principles (Alexy) and engage in a meaningful legal debate leading to a commonly acceptable solution (Habermas). This kind of thinking is the cornerstone of the contemporary liberal rule of law ideology. The current populist discontent, at least in its right-wing faction, seems to target not only the liberal principles, but also the very idea of an activist and independent judge, preferring to revert to the 19th century model of a judge ‘bouche de la loi’, not interfering in the affairs of the state. In the critical legal tradition, Duncan Kennedy has opted for the judge activist, promoting progressive values through law which serves as a ‘medium’ for his value-oriented legal work. Costas Douzinas and Adam Gearey, in a Levinasian spirit, have drawn attention to the ethical dimension of adjudication, proposing to see the act of adjudication as an outcome of a dialectic opposing law and justice in a concrete case, where the judge has to face the other. It seems that the populists have unmasked the activist side of adjudication, www.ceenels.org just to mask it again once they have taken over the institutions. What strategy should critical legal scholars adopt in that regard?
The second question is that of legitimacy. The notion was introduced into contemporary public discourse by Max Weber, who used it in an empirical way, and later also by Carl Schmitt, who referred to four types of legitimacy of state power (legislative, jurisdictional, governmental and administrative) and drew a sharp line between legality and legitimacy. The concept of legitimacy is broadly used in today’s discourse about populism in order to suggest that certain institutions set up by populists or subject to their hostile takeover have become ‘illegitimate’. During our Symposium we aim to reflect whether the concept of legitimacy can be useful for critical legal theory and, if so, how it should be defined and used. Specifically, we wish to discuss the question of the legitimacy of adjudication, especially by paying attention to output legitimacy defined by reference to social justice and progressive policies in general.
The third question is that of the political in adjudication. At least since the end of the 19th century, it has become evident to lawyers and legal theorists that judges enjoy a large degree of discretion when deciding cases. Neither the legal interpretation nor the appreciation of facts creates a situation of closure, in other words of full constraint on the interpreter’s mind. Of course, some cases are ‘easy’, and others are ‘hard’, yet as Duncan Kennedy has persuasively shown, any easy case can be made into a hard one with a sufficient amount of ‘legal work’, i.e. interpretive effort. In the continental tradition, this can be done by shifting the levels – from the detailed and technical rule of the code to a general clause, general principle or even beyond, to the constitution or to the legal values of a supranational legal order. Enjoying considerable discretion, the judge faces, at the end of the day, a number of possible legal solutions all of which are backed by solid juristic arguments. The choice between them is a political one. This is the Real which the liberals fear and the populists disclose (only to forget it once they take over the judiciary). How should we, critical legal scholars, define the political in adjudication? Should we resort to Schmitt and Chantal Mouffe, for instance, or draw inspiration from other thinkers, such as Hannah Arendt, Giorgio Agamben or Jürgen Habermas? How do we delineate between liberal, populist and critical conceptualisations of the political? If possible, should judicial discretion be limited at any cost, or should it rather be expanded, but then kept in check by extralegal factors? Is it possible to make judges take socially progressive political decisions in times of populism? Assuming we find good enough reasons to justify judges’ interventions in the political, the question of their capacity to intervene in public life arises. Indeed, their legitimacy notwithstanding, are judges, given their actual educational background, well placed to adjudicate on complex social issues? Can we think of strategies for improving their ability to act politically in judicial contexts? Is is it possible to develop, in the long run, a judiciary sensitive to social justice and equality? www.ceenels.org
We will consider papers discussing the lead theme, but also other papers on contemporary questions of critical legal theory. Please submit your abstracts of up to 300 words through the EasyChair facility: https://easychair.org/conferences/?conf=3cjstimisoara
It is also possible to apply to participate as discussant (without a paper). In that case please put in EasyChair, instead of the title of the paper, the word “discussant.
Deadline for submissions: 1 February 2020
Notification of acceptance: 1 March 2020
If you need to make travel arrangements earlier, please submit your abstract as soon as possible and we will try to confirm acceptance without delay. The conference fee of EUR 30 will be collected on the spot (in cash). Invoices will be issued. The conference fee covers coffee breaks and lunches on both days of Symposium. The informal dinner and pre-conference drinks are at the participants’ own expense.
Organising team Alexandra Mercescu (West University of Timişoara, convenor), Sorina Doroga (West University of Timitoara, convenor), Przemysław Tacik (Jagiellonian University in Kraków), Rafał Mańko (University of Amsterdam), Piotr Eckhardt (CLEST, Jagiellonian University in Kraków, secretary of CEENELS).
Please do not hesitate to contact us if you have any questions: firstname.lastname@example.org
About Critico-Juridical Symposia
The annual Critico-Juridical Symposia were inaugurated in 2018 at the University of Opole under the auspices of the Central and Eastern European Network of Legal Scholars (CEENELS). The symposia are intended as intensive workshops of critical legal scholars. Each symposium has its lead theme, but participants are free to submit papers relating to research questions they are currently working on. There are no keynote speakers, plenary sessions or PhD workshops, but we all sit around one table and have ample time for discussion. Therefore, the capacity of the Symposium is limited to 20-25 participants maximum. It is also possible to participate without a paper (as active discussant). The 1st Critico-Juridical Symposium was devoted to critical legal methodology in Central and Eastern Europe. The papers from 1st Symposium are forthcoming in Folia Iuridica vol. 89 (2019). The 2nd Critico-Juridical Symposium was hosted by the Institute of European Studies, Jagiellonian University and was entitled ‚Twilight’s Long Shadows‛, focusing on the challenges posed by populism and neoauthoritarianism to critical legal theory and progressive political thinking.