Laclau and Mouffe’s Theory of Discourse and Hegemony: a Possible Approach to Law and its Integrity?

Abstract

The famous Montesquieu's catachresis wherein judges should be no more than the “mouth that pronounces the words of the law” is actually facing a crisis. I.e. Law has lost its unifying principle, its centre wherein its practices could search for foundation and legitimacy. Therefore, as a decentered reality, I believe Law should get a poststructuralist approach, appropriate for a decentered structure. That is why the aim of my research is to link Law to the poststructuralist theoretical reference of the theory of discourse, as developed in the works of Ernesto Laclau and Chantal Mouffe. Anyway, as Laclau and Mouffe's theoretical works are concentrated on the ontological level, I need to link their ontological reflections and Law manifestations on ontic level, the level of judicial practices. For that, I will use the support of the jurisprudence of Ronald Dworkin. However, as dworkinian theory is situated in a very different philosophical background, when compared to Laclau and Mouffe's theory of discourse, it will be necessary to rearrange some features of his jurisprudence to make it fits on a different comprehension of Law and its integrity. Especially considering integrity as hegemonic integrity, understanding the principles of justice as promises of justice and substituting judge Hercules for a new mythological character that, instead of searching one right answer in a seamless web, is herself who seams that web: Judge Penelope.