So neither norm nor fact, neither law nor politics, but the tension between the two in an in-between zone.
My predecessor (Tuori 2011) argued something along these lines as an internal legal tension between the rationality or reason (ratio) of law and law as the expression of a political will (voluntas). But because the perspective here was intra-legal, it felt to me that the arguments often emphasised – and, at the same time, normatively validated – the constraining functions of legal rationality. So the actual description and assessment of the tension took a backseat.
This project aspires to look at the whole from a slightly different angle. The democratic position of the judiciary, to take one example from my current work in progress, can’t be set on a binary scale between, say, ‘restraint’ (i.e. judicial decision making as an extension of the legislature’s political will) and ‘activism’ (i.e. judicial decision making as defining the legal limits of the legislature’s political will). Political constitutional theory would claim that this is a false dichotomy, and as such, it does not accurately describe the ways in which the judiciary works. Any ‘restrained’ decision that seems to conform with the legislature’s will can also be viewed as an ‘activist’ affirmation of the political values and principles that underlie that will. Conversely, a seemingly ‘activist’ definition of the legal limits of the legislature’s political will can also be seen as not much more than a legitimisation of government policies.
Assuming that this overall framework is plausible, here is a sketch of how the individual pieces written so far might fit together.
1. Starting points
- Minkkinen, Panu (2009) Sovereignty, Knowledge, Law. Abingdon: Routledge. ☛
Many funding schemes begin by asking how the proposed project fits into the earlier work of the applicant. This monograph would be my reply. It wasn’t necessarily ‘constitutional theory’ in any conventional sense of the term but, rather, an exploration into the many uses and abuses of the word (I’m not comfortable calling it a ‘concept’) ‘sovereignty’. I identified three ‘streams’ for the exploration. The first was jurisprudential, if you will, where the main protagonists were Kant and neo-Kantian legal thinking. The second ‘stream’ was extracted from international law and international relations, and Schmitt and Foucault provided the starting points for my ‘contrapuntal reading’. The third ‘stream’ investigated the way in which the term ‘sovereignty’ had been understood in modern French theory, and the chapters dealt mainly with Kojève, Bataille and Lacan.
My whole idea was that even though these ‘streams’ seemed to be detached from each other, they included common themes and could be brought together in a single reading. I don’t know whether I succeeded (my reviewers probably thought I didn’t), but the idea still makes sense to me today. As said, this was not exactly ‘constitutional theory’, but the individual close-readings opened up a space for developing something along those lines.
2. The Elements
So from there it might be worth while to see how the individual pieces fall into place.
- Minkkinen, Panu (2016) ‘The Container and the Septic Tank: Statism, Life, and the Geopolitics of Territoriality’, p. 389-409, in Jarna Petman (ed.), Finnish Yearbook of International Law. Vol. 23, 2012-2013. Oxford: Hart. ☛
This is the only text on territory and space that I’ve published so far. I hope to be continuing along these lines by looking especially into the work of Henri Lefebvre and working together with colleagues in geography (e.g. Anssi Paasi and his project The Relational and Territorial Politics of Bordering, Identities and Transnationalization RELATE from Oulu).
- Minkkinen, Panu (2016) ‘”Electoral Shenanigans”: The Constituted Electorate, the Constituent People, and the Porous State’, p. 72-83, in Anne Griffiths, Sanna Mustasaari and Anna Mäki-Petäjä-Leinonen (eds), Subjectivity, Citizenship and Belonging in Law. Identities and Intersections. Abingdon: Routledge. ☛
Once again, only one published work so far in which I try to depict the ‘constituent’ quality of casting blank votes in an election through a reading of José Saramago’s novel Seeing. One piece, still under work, is called ‘”Enemies of the People”? The Judiciary in Claude Lefort’s “Savage Democracy”‘. This piece examines the democratic pedigree of the judiciary through Claude Lefort’s notion of human rights.
- Minkkinen, Panu (2013) ‘Political Constitutionalism versus Political Constitutional Theory: Law, Power and Politics’, International Journal of Constitutional Law, Vol. 11, No. 3: 585-610. ☛
- Minkkinen, Panu (2015) ‘Valta, sen jakaminen, ja parlamentarismi – PL 3 §:stä Walter Bagehotin valossa’ [on shared and separated powers], Lakimies, No. 1/2015: 3-27. ☛
- Arvidsson, Matilda, Leila Brännström and Panu Minkkinen (eds) (2016) The Contemporary Relevance of Carl Schmitt. Law, Politics, Theology. Abingdon: Routledge. ☛
- Minkkinen, Panu (2016) ‘The Juridical Romanticism of Friedrich Dürrenmatt’s The Execution of Justice’, p. 78-90, in Matilda Arvidsson, Leila Brännström and Panu Minkkinen (eds), The Contemporary Relevance of Carl Schmitt. Law, Politics, Theology. Abingdon: Routledge. ☛
- Minkkinen, Panu (2016) ‘”Vähiten vaarallinen valtioelin”?: Tuomiovalta, vallanjako ja demokratia’ [on judicial activism], Politiikka: Valtiotieteellisen yhdistyksen julkaisu, Vol. 58, No. 3: 224-237. ☛
- Minkkinen, Panu (2017) ‘Mikä on poliittinen valtiosääntö?’ [on Schmitt’s ‘metapolitics’], Tiede & edistys No. 3/2017: 140-147 (in print). ☛
- Minkkinen, Panu (2018) ‘Rancière and Schmitt: Sons of Ares?’, p. 129-149, in Monica Lopez Lerma and Julen Etxabe (eds), Rancière and Law. Abingdon: Routledge (in print). ☛
- Minkkinen, Panu (2018) ‘Martin Loughlin and the Tragic Politics of Public Law’, in Michael Dowdle and Michael Wilkinson (eds) Questioning the Foundations of Public Law. Oxford: Hart Publishing (in print). ☛
Perhaps not surprisingly, most of the already published texts fall under the ‘element’ that was closest to the starting point, as well. Although there are overlaps and common themes, the individual pieces haven’t been written in a way that would make it easy to rewrite them into a single narrative. Perhaps some of the texts that are still in the making can provide the blueprint of that narrative. Two unfinished manuscripts are provisionally entitled ‘”The Coldest of All Cold Monsters”: Nietzsche as a Constitutional Theorist’ and ‘Cephalous vs. Ganglionic Constitutionalism’ (on Herbert Spencer and vitalism) suggesting some common denominators.
- Minkkinen, Panu (2010) ‘The Legal Academic of Max Weber’s Tragic Modernity’, Social & Legal Studies, Vol. 19, No. 2: 165-182. ☛
- Minkkinen, Panu (2013) ‘”Here I Stand, I Can Do No Other”: Politics, Violence, and Ends in Themselves’, Law and Literature, Vol. 25, No. 2: 226-243. ☛
Finally, this last ‘elemental’ section includes an excursus of sorts into Max Weber. And although I know that it fits in theoretically quite nicely with the other bits, I’m not sure how to use it in the overall scheme of things.
Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate. ☛