Law, Space and The Political: an East-West Perspective

Introduction The development of critical legal thinking in Central and Eastern Europe is a relatively recent phenomenon. As Adam Sulikowski – the most prominent critical legal scholar of the region – has rightly pointed out, despite the fact that Polish legal theorists and dogmaticians criticised capitalist law during the period of actually existing socialism, once the system changed they simply underwent a so-called ‘affirmative amnesia’, and embraced the new, capitalist law without any reservations. The period after 1989 was marked by an unprecedented influx of legal transfers from the West, especially in the area of public law where entire building blocks of constitutionalism were simply transplanted, without much reflection as to how they would function in their new environment. Only later on problems began to appear, indicating that legal institutions – contrary to Alan Watson’s famous claim – cannot just be moved around, without sufficient regard for the historical, social, political and even cultural context. Traditions, sometimes authoritarian, prove to be stronger than enthusiastic reformers, amongst them, lawyers would have imagined at the turn of the 1980s and 1990s when history was allegedly coming to an end and the demoliberal hegemony was to take over forever. Today, in hindsight, almost three decades after the transformation, we are only gradually learning how to take a step back and look at the legal developments from a certain distance. This book is an attempt at doing this. It brings together authors from various countries, not only of Central and Eastern Europe, but also from other regions. The common theme around which the papers revolve, is the relationship between law, space and the political. Whereas law and space do not require a definition (even if law is a disputed concept), the notion of the political should, perhaps, be introduced. Following Chantal Mouffe (who, in turn, drew on Carl Schmitt), we undersand the political – in opposition to politics and policies – as the dimension of antagonism or conflict which at the same time divides a society but is inevitable for it to exist in its current form. By referring to Slavoj Žižek we could definte the political as a symptom of society, i.e. something which disturbs its foundations, but at the same 10 Rafał Mańko, Paulina Bieś-Srokosz, Jacek Srokosz time cannot be removed without destroying it. The antagonisms can have a very different nature – economic, social, cultural, ethnic, religious, etc. – but what unites them is their intensity and their fundamental character. The various papers brought together in this volume engage with this theme in different manners. In the first chapter, Rafał Mańko presents a critical account of comparative law’s taxonomy, pointing to the fact that the way in which comparatists-at-law build their legal geography by grouping legal systems together in so-called ‘families’ is not a neutral exercise, but has strong political connotations. The second chapter, by Sergey Korolev looks upon the antagonism between traditional political ideologies (nationalism, liberalism, socialism) in the context of the antagonisms typical for federal states (central power vs. regional entities). Drawing on political philosophy (Plato), sociology (Bauman) and legal theory (Kelsen), Korolev argues that the traditional ideological state, as established in the course of 18th and 19th centuries in Western Europe, is no longrer capable of addressing the current social problems. Believing that ideologies have been subject to the introduction of alien content, Korolev argues that Kelsen’s ‘purity’ approach can be adapted to the analysis of national ideologies, which can be divided into two classes, namely substantive political ideologies and formal political ideologies. The latter are used as a basis for developing a hypothetical four-party state beyond the notorious unitarist – federalist dilemma. Although framed on a high level of abstraction, Korolev’s paper can be treated as a theoretical basis for the study of existing political systems and ideologies, and his critical approach can be applied as a yardstick for evaluating concrete ideological blueprints. The third chapter by Ekaterina Yahyaoui Krivenko interprets the overall topic of the book by referring to the relationship between public international law and space. This approach is not surprising, as the classical object of public international law – the state, its territory, its borders – has been somewhat obsessively focused on space. It could even be said that public international law is exclusively about space. Krivenko invites us, however, to reconsider the way in which public international law views space. She argues that the current way in which this is done is Cartesian, and that there is a need to overcome it. Referring to the works of the famous critical geographer, David Harvey, Krivenko offers us a critical re-examination of the law’s spatiality. Her proposals have a direct impact upon the third subject-matter of the book, i.e. the political which, in public international law, has traditionally referred to the antagonisms between sovereign states. Krivenko introduces, however, new subjects – nomads and migrants – whose perspective on space differs from the traditional one. Through examples of disrupting public international law’s traditional perception of space, Krivenko invites us to critically rethink its approach with a view to pursuing new imaginaria of ius gentium. Introduction 11 Two subsequent chapters address selected case studies from two different countries. Thus, in the fourth chapter Berke Özenç addresses issues of Rechtstaat in contemporary Turkey, drawing analogies with later the late period of the Weimar Republic. Özenç points to such phenomena as the weakening of legal security in the name of achieving justice and moves towards a personalisation of political power. Hence, metaphorically speaking, the constitutional space of Turkish public law is modified, and Özenç attempts to grasp those changes by referring to the theoretical framework developed by Carl Schmitt. The most important features he points to are the judicialization of politics, the normalization of the state of emergency and the introduction of the concept of the nation (‘being national’) into legal discourse. The fifth chapter, written by Paulina Bieś-Srokosz analyses, from a critical perspective, legal transfers from Western law within Polish administrative law. Further case studies move us away from Europe, allowing us to gain a broader perspective on law, space and the political. Thus, in the sixth chapter, Shuichi Takahashi, addresses the Japanese law reforms from a sociological perspective and in the seventh chapter Kirsten Pavlovic presents, from a theoretical perspective, the so-called ‘sovereign dictatorship’ of President Iloilo in Fiji. Following that, the book moves onto more theoretical grounds. The eighth chapter by Jakub Łakomy interprets the topic of law and space in the political by referring to the ‘space of the political’ in legal interpretation. Łakomy discusses the well-known Dworkin-Fish debate and on this basis concludes that the space of legal interpretation belongs entirely to the space of the political, being merely a ‘patch’ on the much larger domain of the political. In Łakomy’s view, whenever a legal interpreter undertakes the activity of ‘reading the law’, they inevitably enter into the space of the political, and each and every intellectual move they make is, in line with what was said above, inherently political. The concept of the political remains a point of reference for Paweł Snopek, author of the ninth chapter, who discusses the relations between neoliberalism, ideology, social (in)justice and post- -politics. In chapter ten, Jernej Letnar Černič dwells upon corporations and socio-economic rights, in chapter eleven Ulrike Kistner introduces the not so well known concept of ‘polycracy’ and in the twelfth chapter Su Bian shares her views on contemporary constitution-making, broadly referring to the theories of Carl Schmitt and Gunter Teubner. Finally, in the last chapter Jacek Srokosz discusses the narrative put forward by lawyers in order to justify their special status in contemporary systems of liberal democarcy. Rafał Mańko, Paulina Bieś-Srokosz, Jacek Srokosz