From Kafka’s Courts to AI Tribunals: Bureaucratic Alienation and the Future of Justice

Critical legal theory emerged in the United States in the 1970s, at a time when Central and Eastern Europe belonged to the Soviet bloc and was subject to the system of actually existing socialism. Therefore, the arrival of critical jurisprudence into the region was delayed. In Poland, the first texts on critical and postmodern legal theory began to appear at the end of the 1990s and the beginning of the 2000s. Lech Morawski’s monograph, characteristically entitled What Legal Scholarship Has to Gain from Postmodernism?, published in 2001, officially inaugurated a broader interest in postmodern legal theory. Adam Sulikowski has been the main representative of critical legal theory in Poland, developing a postmodern theory of constitutionalism. Other sub-fields of postmodern and critical legal theory, gradually developing in Central European jurisprudence, include such areas as law and literature, law and ideology, law and neocolonial theory, as well as feminist jurisprudence. There is a noticeably growing influence of critical sociology and critical discourse analysis which seem to be a promising paradigm for invigorating critical legal theory from an empirical perspective. The concept of “the political”, in the sense used by Chantal Mouffe, has been evoked to propose a “political theory of law” conceived as an analysis of the juridical phenomenon through the lens of the political. Recently, it has found its concrete applications in the political theory of judicial decision-making.

This book addresses the relevance of the state of exception for the analysis of law; whilst reflecting on the deeper symbolic and jurisprudential significance of the coalescence between law and force. The concept of the state of exception has become a central topos in political and legal philosophy as well as in critical theory. The theoretical apparatus of the state of exception sharply captures the uneasy relationship between law, life and politics in the contemporary global setting, while also challenging the comforting narratives that uncritically connect democracy with the tradition of the rule of law. Drawing on critical legal theory, continental jurisprudence, political philosophy and history, this book explores the genealogy of the concept of the state of exception and reflects on its legal embodiment in past and present contexts – including Weimar and Nazi Germany, contemporary Europe and Turkey. In doing so, it explores the disruptive force of the exception for legal and political thought, as it recuperates its contemporary critical potential. The book will be of interest to students and scholars in the field of jurisprudence, philosophy and critical legal theory.

Book synopsis: This book addresses the relevance of the state of exception for the analysis of law, while reflecting on the deeper symbolic and jurisprudential significance of the coalescence between law and force. The concept of the state of exception has become a central topos in political and legal philosophy as well as in critical theory. The theoretical apparatus of the state of exception sharply captures the uneasy relationship between law, life and politics in the contemporary global setting, while also challenging the comforting narratives that uncritically connect democracy with the tradition of the rule of law. Drawing on critical legal theory, continental jurisprudence, political philosophy and history, this book explores the genealogy of the concept of the state of exception and reflects on its legal embodiment in past and present contexts – including Weimar and Nazi Germany, contemporary Europe and Turkey. In doing so, it explores the disruptive force of the exception for legal and political thought, as it recuperates its contemporary critical potential. The book will be of interest to students and scholars in the field of jurisprudence, philosophy and critical legal theory.

This book addresses the relevance of the state of exception for the analysis of law; whilst reflecting on the deeper symbolic and jurisprudential significance of the coalescence between law and force. The concept of the state of exception has become a central topos in political and legal philosophy as well as in critical theory. The theoretical apparatus of the state of exception sharply captures the uneasy relationship between law, life and politics in the contemporary global setting, while also challenging the comforting narratives that uncritically connect democracy with the tradition of the rule of law. Drawing on critical legal theory, continental jurisprudence, political philosophy and history, this book explores the genealogy of the concept of the state of exception and reflects on its legal embodiment in past and present contexts – including Weimar and Nazi Germany, contemporary Europe and Turkey. In doing so, it explores the disruptive force of the exception for legal and political thought, as it recuperates its contemporary critical potential. The book will be of interest to students and scholars in the field of jurisprudence, philosophy and critical legal theory.

This article reflects upon critical theory, focusing especially on critical legal theory, particularly in relation to human rights. Positing that much critical theory is in fact uncritical, the article argues that critical theory is frequently deployed in such a way as to contradict its supposed purposes of challenging the prevailing order, orthodoxy and injustice, and guiding radical change. It is argued that in deploying critical (legal) theory there is a danger of producing bullshit, which scholars should be mindful of and should seek to avoid. Finally, the article suggests moving towards postdisciplinarity and to greater integration of critique with theory and practice as possible resolutions to the dilemmas and contradictions exposed by drawing attention to bullshit and uncritical critical (legal) theory.

This article critically engages with a particular reading of Jacques Derrida’s deconstructive legal theory which argues that his methodology marginalizes engagements with the ‘socio-historical’ of law at best or is incapable of such engagements at worst. After explaining this meta-ethical reading, the piece offers a retort via a broader and more in-depth reading of Derrida’s legal theory. Here the article problematizes the distinction at the core of the meta-ethical reading; this being that Derrida’s work established a mutually exclusive separation between a ‘sociolegal’ critique of law and one considered of ‘critical legal theory’. This separation will be shown to be misleading by firstly referring to Derrida’s essay ‘Force of Law’ and arguing that therein the sociolegal and ‘critical legal’ theories are in fact mutually dependant and that Derrida’s concept of surenchère illustrates this. Secondly, a wider reading of Derrida’s work will then illustrate that such a conceptual binary is incompatible with his deconstructive metaphysical critique. This will be evidenced with reference to what is argued to be the central point of the meta-ethical reading, something which is itself born from Derrida’s work; this being the distinction between la and le politique, ‘politics’ and ‘the political’. With due regard for the history of this important and complicated deconstructive distinction, it will be argued that the reductive reading in the meta-ethical critique does not do justice to the inherent paradox in maintaining a separation between sociolegal theory, la politique, and critical legal theory, le politique.

The American Critical Legal Studies Movement stands as the most influential critical movement in law since Legal Realism, already exerting a subtle yet pervasive influence on the direction of scholarship in the Anglo-American legal tradition. Yet alongside the emergence of Critical Legal Studies, there is a proliferation of European Critical Theory of law which has its origins in the writings of the contemporary German social theorists Jurgen Habermas and Niklas Luhmann.' The notable characteristic of these modem critical legal theories is their aim to move beyond criticism to the construction of novel conceptions of law which demonstrate the capacity of law both to effect and regulate significant social change. Unlike their predecessors, these modem theorists attempt to show that programmes of social change may be engineered by developing the potential for such change that lies within existing legal rules and doctrines, and not by other non-legal means. Accordingly, this paper does not endeavour to describe the critical element of contemporary critical legal theory but rather to evaluate its success in moving beyond criticism to the required conceptions of law. I shall attempt to show that this reconstructive aim may be accomplished only if two intricate hurdles are overcome. For want of less awkward terms, I call these hurdles 'legal nihilism' and 'circularity'. I shall further contend that the principal solution to these two obstacles is to establish that law has what I shall call 'transformative potential'. The problem of legal nihilism takes two forms.2 Firstly, it manifests itself in a loss of hope in the possibility of moving beyond criticism of law to the creation of a new conception of law. Secondly, it is represented by scepticism of the law's

Critical legal theory is the enfant terrible of contemporary legal studies. It delights in shocking what it takes to be the legal establishment.' Its roots lie in a deep sense of dissatisfaction with the existing state of legal scholarship. These dissatisfactions and grievances are many and varied; some are more concerned with the state of legal education, others with the political conservatism of legal education, whilst others experience frustration at the failure of orthodoxy to grapple with what they see as the real problems of the role of law in the contemporary world. Advocates of critical legal studies may not all share the same rank ordering of dissatisfactions but are all reacting against features of the prevailing orthodoxies in legal scholarship, against the conservatism of the law schools and against many features of the role played by law and legal institutions in modern society. These reactive roots explain why the development of critical legal theory has taken the forms of 'movements', albeit loose and unstructured in character (Conference on Critical Legal Studies in the United States of America, Critique du Droit in France and Critical Legal Conference in Britain) which pre-date the emergence of any clearly formulated and generally agreed theoretical position. The situation of the critical legal studies movement is not too dangerously distorted if one puts the point polemically; it is a movement in search of a theory, but at the same time it is a movement which has not agreed that such a theory is either possible or desirable. This paper explores the question: does critical legal studies have the potential to go beyond its reactive origins and develop a viable alternative theorisation that is capable of providing a new direction for legal scholarship? I will offer an account of the distinguishing characteristics of the critical movement and then make some suggestions about the possible direction of its development.

‘Critical legal theory’ examines how critical thought repudiates what is taken to be the natural order of things, be it patriarchy (in the case of feminist jurisprudence), the conception of ‘race’ (critical race theory), the free market (critical legal studies), or ‘metanarratives’ (postmodernism). The myth of determinacy is a significant component of the critical assault on law. Far from being a determinate, coherent body of rules and doctrine, the law is depicted as uncertain, ambiguous, and unstable. And instead of expressing rationality, the law reproduces political and economic power. In the view of critical legal studies, social justice is a hollow promise.

So much has been written about liberal rights and critical legal theory that many of us begin to find the topic boring. It is with some trepidation that I impose yet one more discussion of rights analysis upon the waiting - but satiated - world.

Legal theorists have become increasingly interested in whether or to what extent the later writings of Wittgenstein support scepticism about the possibility of rational objectivity or determinacy in legal reasoning and discourse. Some critical legal theorists have explicitly relied upon Wittgensteinian arguments to support arguments for radical scepticism. More recently, anti-sceptical theorists have argued that reliance by critical theorists upon Wittgensteinian arguments involves a serious misinterpretation. I shall in this essay add my voice to those already making this argument.

These were the ideas that resonated in the struggles which took place in Europe and America in the eighteenth and nineteenth centuries against absolutist governments, and which elevated the legal control of government to a constitutional principle, though one since frequently honoured in the breach. In Britain, with no written constitution, the judiciary used the common law and the prerogative writs to resist nineteenth-century state corporatism,2 and their enterprise has been renewed in recent years by an inventive and interventionist judiciary and developed into a modern system of public law.3 The political Left has traditionally had little time for the law. The labour movement's historical experience of the law has been of a hostile judiciary enforcing restrictive laws, largely made by the judges themselves. Much critical legal theory, like much traditional theoretical writing on the Left,4 has adopted a correspondingly defensive and negative attitude. Historically this has ample justification. Ideologically, however, it has become one of a series of time-warps in which contemporary developments have trapped oppositional politics a socialist conservatism confronting a radical toryism. For this reason any formal dialogue between critical theorists and radical legal practitioners about law as a limit on authoritarian state power has a barometric character. Not so long ago neither of these groups would have thought the topic worth discussing. Both critical theory and left politics certainly had room for the occasional bloody nose delivered to the executive by the courts, but if they were prepared to give serious consideration to the

An emerging genre of scholarship puts distributional analysis at the center of the study of law and critical theory. Distributional analysis refers not just to an overall cost-benefit accounting but to an analysis of where the consequences fall and along what social, economic, and cultural fault lines. In tracing the history of feminist distributional analysis in legal scholarship, the chapter begins by describing the key analytic and theoretical frames that critical legal theory has contributed to the understanding of law and distribution. The chapter then considers the way feminist, gender, and queer legal scholarship, coming out of the critical theory tradition, has taken on questions of distribution. In doing so, the chapter offers several accounts of how a distributional analysis can shape how we understand the consequences of feminist legal reform projects.

Agency theory as ideology: A comparative analysis based on critical legal theory and radical accounting

While the presence of monsters in popular culture is ever-increasing, their use as an explicit or implicit category to frame, stigmatise, and demonise the other is seemingly on the rise. At the same time, academic interest for monsters is ever-growing. Usually, monstrosity is understood as a category that emerges to signal a transgression to a given order; this approach has led to the demystification of the insidious characterisations of the (racial, sexual, physical) other as monstrous. While this effort has been necessary, its collateral effects have reduced the monstrous to a mere (socio-cultural) construction of the other: a dialectical framing that de facto deprives monstrosity from any reality. 'Monstrous Ontologies: Politics, Ethics, Materiality' proffers the necessity of challenging these monstrous otherings and their perverse socio-political effects, whilst also asserting that the monstrous is not simply an epistemological construct, but that it has an ontological reality. There is a profound difference between monsters and monstrosity. While the former is an often sterile political and social simplification, the end-product of rhetorical and biopolitical apparatuses; the latter may be understood as a dimension that nurtures the un-definable, that is, that shows the limits of these apparatuses by embodying their material excess: not a 'cultural frame', but the limit to the very mechanism of 'framing'. The monstrous expresses the combining, hybridising, becoming, and creative potential of socio-natural life, albeit colouring this powerful vitalism with the dark hue of a fearful, disgusting, and ultimately indigestible reality that cannot simply be embraced with multicultural naivety. As such, it forces us towards radically changing not the categories, but the very mechanisms of categorisation through which reality is framed and acted upon. Here lies the profound ethical dimension that monstrosity forces us to acknowledge; here lies its profoundly political potential, one that cannot be unfolded by merely deconstructing monstrosity, and rather requires to engage with its uncomfortable, appalling, and revealing materiality. This book will appeal to postgraduate students, PostDocs, and academics alike in the fields of philosophy, critical theory, humanities, sociology and social theory, criminology, human geography, and critical legal theory.