Alain Supiot’s ‘dogmatism’

As part of our attempt to ‘reboot’ the research culture of the law school with the help of a more socio-legal approach, we set out to go through Alain Supiot’s book Homo Juridicus (Supiot 2007) in a reading group. Originally I could see three different motives for doing so.

First, the book itself is a ‘law in context’ type of theory that should cover all the different sub-disciplines that we, as colleagues in a relatively large Faculty, are divided into. So it shouldn’t really matter whether your interests are primarily in company law or in constitutional law because the focus of the book is general enough. Although some colleagues find Supiot’s ‘Gallic grandeur’ slightly off-putting, I think that this first point worked out well. Supiot was by no means an obvious choice. But it was one possibility among others at the time that this idea of reading groups was put forward. We had to start with something, and I trust that people will work through their own reading interests as we go along.

The second motive had more to do with a certain work ethos that reading groups can provide. The Achilles’s heel in contemporary academia is that we feel so pressured to produce measurable outputs that we forget the importance of reading. Many of my younger colleagues seem to equate ‘research’ with ‘writing’. And taking into account the pressures that they work under, I don’t blame them for doing so. But hopefully regularly functioning reading groups will eventually alleviate the situation somewhat. So a notion of reading broadly and regularly will hopefully become a natural (and pleasant!) routine for thoughts to develop into more tangible outcomes such as publications and research proposals.

The third and final motive behind this initiative is interrelated to the second. It was an attempt to address the concern of many colleagues who complained about the lack of community at the workplace. We don’t know each other very well, and we aren’t very aware of each other’s work. Not that Supiot could bring any such sense of community. But, once again, what was important was not so much the individual text that we were reading, but the way in which we were supposed to read it. Over thirty colleagues expressed an interest in taking part in these reading groups which, I think, was primarily a response to this final motive. So instead of having one huge group that could not possibly function as an intimate reading group, we now have three groups all going about their Supiots in slightly different ways.

And what about Supiot’s Homo Juridicus, then?

One development was telling. Nearly all ten or so members of my group showed up for the first session (chapters 1-3), but in the second session (chapters 4-6) there were only four of us. The book starts off from interesting premises. But as soon as Supiot focuses on particular ‘sectoral’ phenomena, one tends to loose interest. In addition to the ‘Gallic grandeur’ mentioned above, I think there are a number of reasons for this loss of interest.

First, the analyses skim through their subject matter with much too much haste. In addition to the premises outlined in the first sector, any single subsequent chapter – be it on technology, statism, or human rights – could and should have been expanded into a full book in its own right. Instead the text now makes rather sweeping claims from a very small amount of research, claims that would have required much more elaboration. The bold arguments seem to be ‘decorated’ with footnotes referring to disparate sources that have been added after the text has been written because the full argument is difficult to put together by interconnecting those sources.

Second, although the original French edition of the book was apparently published in 2005, one can’t help but feel that some of the ‘theorizing’ has hopelessly passed its best-by date. Personally I got this impression especially as I was reading the technology chapter where Supiot talks about html coding, ‘hypertexts’, and ‘networks’ as if they had just been invented.

But as said, I found the premises of the book intriguing. The title of Part 1 (chapters 1-3) refers to legal ‘dogma’. One should pause here for a moment. When used in association with law, my compatriots will associate the word ‘dogma’ with the German tradition of ‘Rechtsdogmatik‘, i.e. doctrinal legal studies, with its French equivalent of ‘la dogmatique juridique’. Supiot’s use of the word ‘dogma’ has, however, a completely different origin. He is here referring to the French historian of law and psychoanalyst Pierre Legendre (Legendre 1997) whose work has been made known by legal scholars like Peter Goodrich (Goodrich 1996) and the late Cornelia Vismann (Vismann 2008, which, by the way, is a much more convincing analysis about the interconnections between law and technology). For Legendre, and by extension for Supiot, dogma refers to belief systems that are generally considered to be in opposition to reason and knowledge. And yet, reason and knowledge would be impossible without such belief systems. Supiot’s interest here lies specifically in a philosophical anthropology of law, i.e., the human being as it is constituted in and by law. He writes:

‘The concepts of subject and object, person and thing, mind and matter are defined by mutual opposition, each conceived in relation to the other. Positive science is entirely reliant on these concepts, and its own activity would be impossible without the postulate of a human being capable of rational thought. This postulate is precisely not the result of scientific demonstration, it is a dogmatic affirmation, developed in the history of law and not the history of science.’ (Supiot 2007: 11)

As we discussed in our group, there is something reminiscent here of Donald Kelley’s The Human Measure (Kelley 1990). The idea of having to recourse to postulates in knowledge is, of course, at least as old as Kant. But Supiot’s proposition that these postulates are specifically legal is interesting. So no knowledge at all without the dogma of the homo juridicus that law institutes.

From there Supiot outlines this dogma as the ‘Holy Trinity’ of the individual, the subject, and the person, each reflecting the godlike qualities of man as Her image. So just like God, man as individual is unique, man as subject is sovereign and autonomous, and man as person is a spiritual entity. But all these godlike traits in man are tainted with their opposites. As an individual, man may very well be unique, but so is every other individual. So unique and identical. As a subject, man may be sovereign and autonomous, but she is, at the same time, literally ‘subjected’ to the very same laws that she has autonomously legislated. So sovereign and yet subjected. Finally, as a person, man is both spirit and matter:

‘The notion of person is what allows us to think matter and spirit in their unity and not as two radically distinct universes. … Personality is therefore not a biological given like genetic makeup or blood group, it is a dogmatic construction which would collapse if people could treat it simply as they pleased.’ (Supiot 2007: 27)

Most of us like me who dabble in matters metaphysical mysteriously always find explanatory force in such ‘Trinities’, three being some kind of magical number. Here too the taxonomy of man as individual, subject and person is a bit too clean cut to be entirely plausible. Nevertheless it does work as a working hypothesis for a philosophical anthropology where the tainted nature of these specular reflections of God – man is but ‘godlike’ – gives us a fragile dogma over which anything we can possibly ‘know’ about the human world has to be built.

***

Goodrich, Peter (1996) Law in the Courts of Love. Literature and other Minor Jurisprudences. London/New York: Routledge.

Kelley, Donald R. (1990) The Human Measure. Social Thought in the Western Legal Tradition. Cambridge, MA: Harvard University Press.

Legendre, Pierre (1997) Law and the Unconscious. A Legendre Reader. Trans. Peter Goodrich, Alain Pottage and Anton Schütz. London: Macmillan.

Supiot, Alain (2007) Homo juridicus. On the Anthropological Function of the Law. Trans. Saskia Brown. London: Verso.

Vismann, Cornelia (2008) Files. Law and Media Technology. Trans. Geoffrey Winthrop-Young. Stanford, CA: Stanford University Press.

Constitutional spaces

Constitutions have a multifaceted relationship with spatiality. In addition to an overabundant use of spatial metaphors (e.g. ‘constitutional architecture’ or ‘constitutional design’ as depicting horizontal and vertical power relations), I can imagine at least three perspectives worth investigating.

Territorial space. Constitutional theory will normally adopt its spatial starting points with reference to the territoriality of the state (Minkkinen 2016). It will first identify a state from surrounding spaces as a territory and then more or less equate the constitution with the state so understood as the traditions of legal positivism will require. Different transnational arrangements including the European Union have, of course, set the premises of this initial positivist starting point into play. But this is, I would argue, still what we find in most accounts: a constitution represents the foundation of a legal system that is identifiable with a territorially delimited state.

Schematic space. Another spatial starting-point may include the analysis of the ‘body politic’, state branches and organs, and public administrative units as a schematic where, to simplify things for the sake of illustration, these branches and units are layered hierarchically together with the norms of competence regulating their interrelations in a way that resembles the Kelsenian Stufenbau: the legislature/elected branches at the summit, the judiciary and state bureaucracy somewhere in between, local entities such as councils and municipalities at the bottom. This type of hierarchical schematic, representing an organizational diagram, but perhaps most memorably illustrated in Abraham Bosse’s frontispiece for Hobbes’s Leviathan, is, in Michel Foucault’s terms, also the kind of sovereignty-based juridical representation that we must break away from by ‘beheading the king’ if we wish to understand how power operates in contemporary societies (e.g. Foucault 1990: 90). This ‘beheading’ applies to vertically schematized constitutions, as well.

Modal space. Finally, recognizing the limitations of traditional territorial and schematic approaches, the spatiality of constitutions can be analyzed as a multidimensional set of modalities that are all present at once. In a forthcoming paper that I’ll be working on for ICON-S 2018, I’ll try to draw on Henri Lefebvre’s well-known ‘conceptual triad’ of space (Lefebvre 1991: 33, 38-39) to account for the different ways in which constitutional spaces interact both with one another and with political life. Lefebvre’s triad has three dimensions: a mental one, a physical one, and a social one (presented here in an order slightly different to Lefebvre’s).

  1. Representations of space, or ‘conceived’ space, refers to how space is mentally constructed with the help of codifications and symbols and with the knowledge (savoir) that reinforces these. In terms of constitutional theory, this dimension would contain, among other things, constitutional norms and established constitutional practices as well as standard accounts of ‘constitutionalism’ the aim of which is to bring further cohesion to the whole. These are the charts and buoys that direct and regulate the flow of political life within a constitutional framework.
  2. Spatial practices, or ‘perceived’ space, refers to the aesthetically sensible and physically identifiable space in which political life takes place. Physical space may refer to any ‘palaces of justice’ or ‘corridors of power’, usually already mentally constructed in the above-mentioned codifications and symbols, that, e.g., funnel political challenges to the existing order into innocuous routines. In the triad as applied to constitutional theory, representations of space and spatial practices together provide the constrictive framework of capitalism that funnels political interventions into the stream of everyday government.
  3. Spaces of representation, or ‘lived’ space, represents, finally, the social aspect of space in which the constrictive framework, first both mentally conceived and physically perceived, is now lived as experience. It is, however, also modified over time as it is invested with new meanings and symbolism (connaissance) that those who ‘live’ that space carry with them as social and political actors. So ‘lived’ space accounts for the factual dynamism in a seemingly mechanical constitutional framework, and it is the locus where, for Lefebvre, ‘ephemeral’ democratic politics can take place.

There is still a lot to unpack here, and even more so because I wish to look into how Lefebvre’s triadic account of space might possibly resonate with Rancière’s notion of aesthetics (Rancière 2004). I’m still not even sure how the triad would be able to explain phenomena like constitutions that do not have a self-evident physical dimension, so there is a danger of reducing everything to the metaphorical level of ‘constitutional architecture’ and the like. Moreover, distinguished interpreters of Lefebvre like Stuart Elden (Elden 2004) would regard such a use of the triad as resolutely non-Lefebvrian because it omits his Marxist understanding of history in the overall analysis. So, for Elden, Lefebvre as both space and history will have to be taken on board kit and caboodle or not at all.

Two counterarguments.

First, as even Elden will readily admit, it is extremely difficult to boil Lefebvre down to any unitary interpretation. His texts are extremely rich, cryptic and even contradictory. Even if one remains true to his Marxist undertow, they will still allow for numerous avenues of exploration. Second, the type of interpretation that Elden advocates bears with it the danger of shifting emphasis from an object of study – like constitutional phenomena – to the theorist framing the analysis. So in this case, instead of shedding light on constitutional phenomena and their study, the analysis will become an exposition of – and a justification for – Lefebvre’s work. I feel that any such ‘dogmatism’ would even go against the explicit political underpinnings of the triad. It is a mirror image of the way in which the analytical value of the work of Carl Schmitt the theorist is annulled with reference to the political escapades of Carl Schmitt the individual, a debate that even Elden himself has participated in (Elden 2010).

So without wanting to deny the possible merits of a more comprehensive ‘spatio-historical’ study, in this case the conceptual triad functions more like Weberian ideal types or heuristic tools with which one can illustrate the complexities of the spatial dimensions of constitutional phenomena.

***

PS. Just as I’m finishing these words, I hear that Kaius Tuori has received his second consecutive ERC grant (now Consolidator) for a project called ‘Law, Governance, and Space (SpaceLaw)’. Sounds familiar. I mean not only the spatial bit. Didn’t he once apply for a job at the Faculty of Law?

***

Elden, Stuart (2004) Understanding Henri Lefebvre. Theory and the Possible. London: Continuum.

Elden, Stuart (2010) ‘Reading Schmitt Geopolitically: Nomos, Territory and Großraum’, Radical Philosophy, No. 161: 18-26.

Foucault, Michel (1990) The History of Sexuality. Volume I: An Introduction [1976]. Trans. Robert Hurley. New York, NY: Vintage Books.

Lefebvre, Henri (1991) The Production of Space [1974]. Trans. Donald Nicholson-Smith. Oxford: Basil Blackwell.

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.

Rancière, Jacques (2004) The Politics of Aesthetics. The Distribution of the Sensible. Trans. Gabriel Rockhill. London: Continuum.

For a socio-legal agenda

During the course of this calendar year, I have, together with a few colleagues, been pushing for a socio-legal agenda at the Faculty. I have no mandate to do so other than my personal concern for our future as a quality research unit. But I have personal experience from which to draw ‘inspiration’, if you will.

In the spring of 2007, a small delegation of Leicester colleagues approached me to ask me if I was available for Head of School beginning the next academic session. I had apparently been mentioned by many as a good candidate. This was the Leicester way. All members of staff were first consulted in person after which the results of the consultation were reported to the appointing Vice-Chancellor. I was genuinely surprised that my name had come up. But as I had just brought one research project to conclusion, and perhaps also feeling somewhat flattered to be asked, I was happy to respond affirmatively.

I took on headship a little belatedly at the beginning of 2008 after a semester’s research leave in New York. It was all supposed to be a smooth ride. My predecessor had taken care of the School’s submission for the Research Assessment Exercise (RAE) 2008 a year before, and we were expecting the results to be in line with the previous exercise in 2001. So I was looking forward to a comfortable three years.

When the results came in a bit later in January, it was a shock for us all. After a 5A rating in the RAE 2001 results, Leicester could fairly confidently claim to be in the top 20 law schools in the country. In RAE 2008, the ranking was closer to 35th. With this fall, I had inherited a headship that I certainly hadn’t signed up for.

The catchword for the work that began soon after the results had come in was ‘modernisation’. According to the analysis I made together with my team (particularly Mark Bell as Deputy Head for Research who I have a lot to thank for), our poor results were due mainly to our predecessors’ ill-conceived submission strategy (i.e. overestimating the quality of the outputs submitted). But partially the results were also a reflection of the type of research that the school prioritised. If we compared our work to that of equivalent law schools who had done better, we came across as an old-fashioned ‘doctrinal’ law school with too many senior members of staff focusing their research efforts on authoring textbooks. There was much less socio-legal work done which was also evident in the very modest amount of external funding that we had been able to generate over the assessment years. ‘Modernisation’, then, meant abandoning doctrinal textbook authoring and a decisive turn towards more socio-legal approaches.

Over the next few years, recruitment took on a much more socio-legal flavour. In addition, we consulted experts in the field like Professor Dame Hazel Genn and Professor Sally Wheeler about ways in which we could improve our performance. Improvement was intended to cover both the quality of publications and the amount of research income that we generated. This work continued even after I left Leicester in 2011.

And yes, there was improvement in the Research Excellence Framework (REF) 2014 results: 20th in terms of outputs, 23rd in terms of overall results. So not exactly a bonanza, but hopefully a new leaf had been turned over.

Helsinki is very much like the Leicester I knew. It’s an old-fashioned doctrinal law school where textbooks are called ‘research monographs’ and where staff are reluctant to let go of traditions that they deem valuable. But unlike Leicester that was more than ready to acknowledge its shortcomings, the research culture here is too smug to realise what needs to be done. In terms of standard metrics like the amount of quality international publications or research income, Helsinki is not doing particularly well in relation to its size (about 120 FTE), and a relatively small group of individuals carry most of the burden for the successes. It banks too much on its status as a capital city university. It adopts a few ‘buzz words’ like ‘globalisation’ and ‘digitalisation’ for recruitment purposes, but it lacks a clear vision for turning those ‘buzz words’ into results.

Hence this socio-legal agenda ‘in the broadest possible sense’. None of us involved have the institutional authority to steer the Faculty into this direction or that. We’re just opening up this avenue to anyone who feels that whatever it is that’s now on offer is not providing them with the best chances for professional development and career advancement.

Universities and managerialism

After the events at the University of Helsinki in 2015/16, one new role that I took on was shop steward (well, deputy) for my union. Like a few other professorial colleagues from other Faculties that I’ve met, I cut down on other ‘useless’ administrative work to devote time to union activities because I was shocked by how crudely the redundancies, as necessary as they may have been, were put into practice. The activities that this role involves have given me a vantage point from which to observe labour relations at the University. In addition, membership in the University’s Equality Committee complements these observations.

One such observation is telling and an indication of how far we still are from any ideal situation. Despite the rather damming review that Professor Sue Scott wrote on those events based mainly on interviews conducted with members of staff, and despite the first reaction of university management acknowledging the criticism, the most striking thing is the employer’s current tone: a lack of humility, and an insistence on going forward, even when those affected wish to look closer at what specifically went wrong and what we could learn from mistakes made. Further, the University’s decision to not make the review public ( a supposedly exclusively ‘internal’ matter) reinforces that tone.

Finns tend to think that British universities represent the worst bits of managerialism in the sector. But in my experience, things in the UK were organised in clearer, more transparent and more equitable ways, despite delimiting democracy to the deliberative kind and the possible micro-managing excesses of individual university managers. In Finland — or at least in Helsinki — we have the worst of two worlds: a Czarist tradition of heavy and inefficient administration coupled with an overzealous and amateurish adaption of management practices from the private sector.

We Finns have a lot to learn. And a little bit of humility wouldn’t hurt either.

Bits and bobs in a framework

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.

2.1 Territory/Land

  • 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).

2.2 Nation/People

  • 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.

2.3 Sovereignty/Power

  • 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.

An early attempt at consolidation

A month has passed, and my intentions of blogging on work have, perhaps, not borne all the fruit that I originally hoped for. I could bullet-point a long list of valid excuses but won’t.

The project that I mainly wish to get some structure into has a name: ‘political constitutional theory’. It is the same name that we gave (probably on my insistence) to a network of researchers from Finland and Sweden that has been together since 2013. The name of the network, and of my own research project that accompanies the network, dates back to an article published that same year (Minkkinen 2013). In the article I tried to make my previous engagements with Carl Schmitt (mainly in Minkkinen 2009) as ‘mainstream’ as I could in the hope of creating an interface connecting the type of critical work I was doing with the work of colleagues in other traditions of constitutional theory. The main idea behind the name ‘political constitutional theory’ was to differentiate my position from the ‘political constitutionalism’ that was dominating the discussions. My slightly hyperbolic argument was that there wasn’t anything particularly ‘political’ about political constitutionalism, and that Schmittian arguments could be used to both demonstrate this and to develop a more plausible position.

At this time I also submitted a few unsuccessful applications for funding (“Yes, it’s all very good, but this Nazi fella …”) that attempted to frame my ideas into a coherent project. The applications all invited to rethink the statist paradigm that informed constitutional theory, and they were designed around what is known as the ‘three elements doctrine’ of the state, commonly attributed to 19th century German constitutional lawyer and theorist Georg Jellinek (Jellinek 1919): the three constitutive elements of the state are territory, nation (that slippery German word Volk), and sovereignty. So if one wished to rethink state and to ‘free’ constitutional theory from the traditional statism that had restricted scholarship for over a century (if not longer), then one should or could begin by rethinking the three elements that are thought to be constitutive of it.

This is all very nice and proper, but it was still testimony of my ‘disquieting fascination for dead German men’, as Peter Goodrich kindly commented my work in the public defense of my doctoral thesis. There was a certain way out, I thought, even if 19th century German public law was the starting point. Jellinek was, namely, an early representative of what we might today call socio-legal scholarship, or even ‘sociological constitutionalism’. In Jellinek’s scheme, all three elements had both a factual dimension and a legal dimension. Constitutional theory incorporated both. The three named constitutive elements of the state, i.e. territory, nation, and sovereignty, belonged to the latter. Their factual counterparts were land, people, and power (see Minkkinen 2016). It was unclear to me whether Jellinek’s ‘doctrine’ represented an evolutionary position in which constitutional development was seen as an historical transition from the factual (‘society’) to the legal (‘state’). But the general identification of both a factual and a legal dimension resonated well with my Schmittian starting points: no territory without land, no nation without people, and no sovereignty without power.

But rather than falling back on a reductionist conception of any ‘primacy of the factual’, I proposed that political constitutional theory could work its way forward from the pressure points where the legal and the factual collide. So schematically (with a few amendments to the original):

If the factual and the legal are not part of a naive historical scheme where the latter (‘state’) is qualified as a ‘developed’ form of the former (‘society’), and if the two dimensions are present contemporaneously, then there would always be a tension between the two: a geopolitical tension between state territory and land, a democratic tension between a constituted nation and a constituent people, and some amorphous political tension between sovereignty and power that I haven’t found a good name for yet.

In terms of consolidating the already published bits and bobs, as well as introducing the manuscripts still waiting on my hard drive to be dragged out into the daylight, I need to decide whether this is still a plausible framework for presenting the whole.

***

Jellinek, Georg (1919) Allgemeine Staatslehre [1900]. 3rd ed. Berlin: Julius Springer.

Minkkinen, Panu (2009) Sovereignty, Knowledge, Law. Abingdon: Routledge.

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 (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.

The photo

Too many questions about the default header image of this particular WordPress theme (the cactus-like plant). So I quickly found something presentable from my archives. The photo that’s there in place now was taken on the island of Atløy in Norway some two hours on a fast boat north of Bergen.

Note to self: find something more appropriate.

Update, 11 May 2019

This was the original photo referred to above.

Postscript on equality

In between fiddling with the settings of this blog and completing the first entry, I attended the meeting of the University’s Equality Committee where we discussed the action plan for the Equality and Diversity Plan 2017–2018 (unfortunately not available in English yet) that the Rector had approved over the summer months. One thing that I brought up as something worth developing are the University’s recruitment practices.

The background is this. The Finnish Universities Act 2009 changed the status of higher education institutions. Universities were formerly public institutions (and University employees civil servants), but they now belong to the private sector. At least for the most part. Formerly the recruitment of University staff was regulated by the rather formal and stringent rules that apply to civil servants. Now apparently the understanding is that these rules of administrative law no longer apply (although some public law experts claim otherwise).

Be what may, Universities have rather abruptly shifted from one world of recruitment practices to another. And all is not well.

First, the selection criteria according to which research and teaching staff are shortlisted and recruited are not as clear as they could be. Instead of having a tick-box set of qualifications that the recruiter has to go through and address one by one, we have more general descriptions about research and teaching qualifications that leave too much room for interpretation. The criteria in the calls that I have seen are, in fact, so rounded that I find it very difficult to imagine how a potential candidate can frame her application to match the required qualifications in the call.

Second, there do not seem to be uniform instructions for the committees that prepare the appointments both in terms of shortlisting and making a recommendation to the Rector. Because of the lack of such instructions, the committees have been known to move the goalposts during the selection process emphasizing one criterion here and another there. This makes it even harder for the applicant to frame her application. The lack of such instructions also allows for different interpretations of the selection criteria in different cases.

So far what I have said is based on anecdotal evidence. But the amount of dissatisfaction with recruitment decisions points to a lack of clarity. An applicant should be entitled to know in advance the criteria against which her application is measured and to what extent her application did not satisfy those criteria. Rejected applicants have no recourse to appeal, and the University’s ‘culture’ does not require responses to requests for feedback.

So plenty to be done.

Sort of a newbie

I can’t really claim to be a newbie to blogging. In addition to this personal site, I manage several others, as well. One is dedicated to my teaching, another to the research project that I co-direct with colleagues from Sweden. During the course of this year, I’ve opened two further WordPress sites. One marks the 60th anniversary of the publication of Roland Barthes’s Mythologies that I translated into Finnish quite some time ago, and the most recent one, still under construction, is an attempt to initiate a socio-legal agenda at the Faculty. In addition, I am webmaster for the site of the Finnish national section of the IVR. So plenty of sites, all on the WordPress platform (and a few dormant Tumblr sites, as well).

But I think that that is the issue: they are all sites, not blogs, even though I use a platform which is usually associated with blogging. This realisation came to me yesterday when I read Jo Shaw’s entry on her future research agenda and had a look at her blog more generally.

Three observations.

First, Jo uses the self-reflective style of a blog entry to bring structure to her own work. As much as it’s a message to the rest of us following her, a blog entry also provides an opportunity for its writer to bring ideas and observations within the confines of a framework. The lovely thing about a blog is, of course, that you can always revisit that framework. You can always change your mind about priorities, emphases and relations. I guess the ideal is that the framework is ‘alive’ and develops in pace with the actual research that one does.

Second, Jo strikes an ideal balance between, for want of better terms, the ‘public’ and the ‘private’. Usually in academic writing I tend to distance anything taking place in relation to work from my private life. Someone once noted that my social media entries (I have a Twitter account) are ‘made from a distance’, so to speak. Even though I may have strong opinions about one thing or another, my person is usually a bit further away. Or at least this is the impression some people get. Jo, on the other hand, inserts observations of a more personal nature into her blog entries because, I guess, they matter. This is something I need to learn. And this is why my sites have been just that: sites rather than blogs.

Third, Jo is an excellent photographer. She visualises her blog entries and other social media messages with photographs that she has taken about the environment in which she happens to be at the time of writing. Some entries are even specifically about the visual aspects of a photograph. Now I wasted a whole youth in dark rooms printing from 35 mm black and white film. But after photography became digital, I sort of lost interest. Apart from the snapshots taken with smart phones and mediocre compact cameras, I didn’t really feel the need to capture my environment with pixels. But my wife gave me such an expensive camera body as a birthday present that I have to change course. So I’ve started an introductory course in digital photography at community college hoping that by the end of it I’ll master my camera rather than the other way around. Film and digital are two very different beasts. With this in mind, I’ve even chosen a WordPress theme for this blog that works best with a wealth of imagery. The first thing on my to-do list is to shoot a new header image for this site. But for now I’ll stick with the default.