Law, Politics and Paradox: Orientations in Legal Formalism

The aim of this dissertation is to analyze the significance of the logical phenomenon of paradox for law and its relation to politics. I examine a selection of formal legal and political theories that in different ways understand law as a totality of norms, communications or behaviors, how paradox emerges in these theories, and what implications their understanding of paradox has for the relationship between law and politics. I argue that these legal and political theories can be meaningfully and in a novel way grouped according to their orientation to legal totality and paradox.

To my knowledge, there is no research systematically mapping orientations to paradox in legal theory. It is the objective of this dissertation to fill this lack. Paradox presents challenges for formal thought, i.e. thought that analyzes the logic of totalities. Law, considered as a totality or form, gathers a plurality of entities under a common denominator and into a legal order. It is in reflecting on such formalization that we encounter paradoxes. This work aims to contribute to a growing literature on the implications of formalism for contemporary social and political thought by providing a legal theoretical perspective hitherto missing in these discussions.

I use as a heuristic device a grouping of formal thought presented by the philosopher Paul M. Livingston. According to this grouping, there are three main orientations in contemporary formal thought to totality: the constructivist-criteriological, the paradoxico-critical and the generic orientation. These orientations arise on grounds of the “metalogical choice”: they prefer to view totality (such as law as a system or order) either as complete but inconsistent (the paradoxico-criticism), or as consistent but incomplete (the constructivist-criteriological and the generic orientation). I will apply, and modify when necessary, this categorization in order to analyze the theories of Hans Kelsen, Niklas Luhmann, Giorgio Agamben, Alain Badiou and Hans Lindahl, and to provide a systematic mapping of how the nature of law as a totality is understood in contemporary formal legal-political thought.

Accounts of modern law encounter a paradox, I argue, if they observe law as an autonomous, self-referential totality that claims for itself the right to draw a distinction between itself and non-law. The paradox of autonomous law is that it cannot consistently show that it is itself legal as a totality. The basic problem that this implies is that the legal system or collective is unable to legitimate its existence and identity in response to challenges in any other way than by drawing on its own resources – which precisely is what the challenge targets in the first place. If we think of law as offering a framework within which questions of justice and injustice can be answered, the paradox emerges when we question the justice of this framework itself.

The dissertation defends the paradoxico-critical orientation. It argues that the legal system is a paradoxical totality, which implies that there is no neutral metalanguage, such as natural law, that could solve the problem of law’s self-reference for good. This challenges legal theory to show how the problem of nihilistic relativism, the mere perpetuation of the self-referential legal system, can be mitigated and law’s normative authority in society rethought.

In Chapter 1, I define the notion of paradox, explicate its meaning and role in formal thought and motivate its application to legal theory. In Chapter 2, I show that in his theory of the basic norm, Kelsen can be understood as oscillating between the constructivist-criteriological position and the paradoxico-criticism, between an attempt at guaranteeing legal order’s consistency in a metalanguage, i.e. legal science, and an acknowledgement of law as an inconsistent totality. In Chapter 3, I interpret Luhmann as a paradoxico-evolutionary thinker: he observes the legal system as constitutively inconsistent but emphasizes the ways in which the system seeks to make this inconsistency unproblematic for functional reasons. In Chapter 4, I show that in systems theory, just like in Kelsen’s pure theory, the politics of the paradox remains unarticulated. I also show that, for Agamben, a paradoxico-critical thinker, the paradoxical articulation of law and politics is exposed in the state of exception, which, in his analysis, has become the new normal, requiring “messianic” politics to deactivate the whole nihilistic sovereign-legal apparatus. For Badiou, the representative of the generic orientation, which I discuss in Chapter 5, what can be said within a language, and by implication a legal system, is pre-determined by that language. Politics, the desire to say the unsayable, is thrown fully outside the language and the legal system to a position from which law’s incompleteness, its incapacity to offer space for justice and politics, can only be disclosed. Both Agamben and Badiou, thus, think about politics as “post-juridical.” In Chapter 6, I show that the very inconsistency and paradox at the heart of the legal order is, for Lindahl’s paradoxico-criticism, the site of the politics of its limits. This dissertation, then, concludes that the paradoxical limits of the legal totality can be understood as the site of politics in law. Taking law’s paradox into account allows for a non-nihilistic conception of politically contestable law and legal authority.