{"title":"The Power of Purity: Preliminary Notes for an Archaeology of Modern Jurisprudence","authors":"Francesco Forzani","doi":"10.1007/s10978-024-09394-5","DOIUrl":null,"url":null,"abstract":"<p>In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.</p>","PeriodicalId":44360,"journal":{"name":"LAW AND CRITIQUE","volume":null,"pages":null},"PeriodicalIF":0.8000,"publicationDate":"2024-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"LAW AND CRITIQUE","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1007/s10978-024-09394-5","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0
Abstract
In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.
期刊介绍:
Law and Critique is the prime international critical legal theory journal. It has been published for 20 years and is associated with the Critical Legal Conference. Law and Critique covers all aspects of legal theory, jurisprudence and substantive law that are approached from a critical perspective. Law and Critique has introduced into legal scholarship a variety of schools of thought, such as postmodernism; feminism; queer theory; critical race theory; literary approaches to law; psychoanalysis; law and the humanities; law and aesthetics and post-colonialism. Postmodern jurisprudence, law and aesthetics and law and psychoanalysis were pioneered in Law and Critique which remains the most authoritative international source for these schools of thought. Law and Critique is keen to translate and incorporate non-English critical legal thought. More specifically, Law and Critique encourages the submission of articles in the areas of critical legal theory and history, law and literature, law and psychoanalysis, feminist legal theory, critical race theory, law and post-colonialism; postmodern jurisprudence, law and aesthetics; legal phenomenology; and law and autopoiesis. Past special issues include: ''Critical Legal Education''; ''The Gender of Law''; ''Law and Postmodernism''; ''Law and Literature''; ''Law and Post-colonialism'', ''Law and Theatre''; ''Jean-Luc Nancy and Law''; ''Agamben and Law''. Law and Critique is ranked amongst the top 20 per cent of law journals by the Australian Research Council.