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Political Theology and Contemporary Politics

July 12th, 2011

Review of Political Theology: Four New Chapters on the Concept of Sovereignty by Paul W. Kahn (Columbia University Press, 2011) 207 pages. by Ethan Zadoff The point of departure for Paul Kahn, in his new short treatise titled Political Theology: Four New Chapters on the Concepts of Sovereignty, is the classic 1922 text of the same name, written by the German political theorist Carl Schmitt. Like Schmitt’s Political Theology, Kahn’s book is divided into the same number of chapters with the same chapter titles. This newer work also attempts to reconstruct some of the arguments in the original Political Theology. The aims of Kahn’s Political Theology, however, are not specifically explanatory. To be sure, he offers illuminating points of view concerning Schmitt. But Kahn is primarily interested in utilizing Schmitt's arguments as a foil to develop a theory of political theology that is applicable to contemporary political debates. Kahn acknowledges the evident tension inherit in his project: The extant possibility that political theology serves an irrelevant purpose to contemporary politics for the simple reason that we live in a secular state which refuses to give official recognition to any particular religious doctrine. In response, Kahn argues that the point of political theology is not to turn politics to the beliefs of a religious tradition, but rather to acknowledge that the state is not the product of the enlightenment secularism that many purport it to be. Modern states, which sharply separate politics from religion, still maintain their own sacred space and history. For Kahn, political theology remains relevant even in a modern democratic state (such as the United States) that preaches a sharp divide between church and state. Echoing Schmitt, Kahn believes that the existence of a political community depends largely on a deep seeded motivation by its citizens to sacrifice their lives in the defence of their community. Sacrifice stands as the foundation of modern political experience and the ultimate manifestation of popular sovereignty. Individual and collective sacrifice is implicit in the American understanding of democracy. Revolution is born from a willingness to sacrifice on the part of a people rising up against its oppressors. Sacrifice for the good of the state, Kahn argues, is incompatible with a liberal political theory, grounded in social contract and designed to maximize the contentment of individual interest. For political sacrifice, the individual willingly subordinates her own personal interest for the betterment of the greater community. As a result, liberal political theory fails to offer a complete and adequate understanding of political experience in the modern nation state defined by popular sovereignty. In other words, liberalism mistakenly denies that the act of sacrifice for the state is objectively valuable from a moral point of view. Yet, to his credit, Kahn does not pursue this line of critical argumentation. Instead, he shifts the discussion into a different matter. He claims that his political theology is simply a project of descriptive analysis, its ultimate phenomenological goal is to describe the forms of political experience prevalent in American society. Because his project is one of phenomenological orientation, the issue for Kahn is not whether the beliefs and attitudes described by political theology are true or false, but rather how they figure in the construction of political cognition. For Kahn, the weaknesses of political liberalism is neither a moral failure or a descriptive or explanatory one. Political liberalism, by its very philosophical attitude, cannot argue that sacrifice is necessary for the stability of the state. If the state is constituted by a specific political community as a source of ultimate meaning then one may argue that the liberal – or, by extension, that liberalism itself – cannot be a true member of that political community. To be sure, Kahn does not dwell on this implication for liberal political theory. Instead, he invites people to take part in the system of belief. Kahn attempts to show that some key features of American constitutional practice – such as the institution of judicial review- make better sense if seen in the light of political theology. Two claims emerge in the course of these discussions that are supposed to make attachment to theological apparatus appear attractive. Kahn argues that a political religion is needed to avoid inauthenticity and to achieve collective autonomy. Liberal inauthenticity, according to Kahn, is grounded in the belief that political opponents can be reconciled through rational thoughtfulness. Liberals consequently deny the existence of states of exception or political crises that are essentially beyond legal regulation and that require a sovereign decision beyond the pale of normative law. Kahn argues that liberal points of view overlook the possibility of existential crisis. In a moment of crisis a state derelict of sovereignty will fail to protect its own self-ordering as an existential value. The Schmittian state, as described by Kahn, understands the need to defend itself and to thereby attain a purer form of political existence. Liberalism also excludes the possibility for realization of a form of collective freedom. Kahn models the free act on the exemplars of inventive creation and philosophical dialogue. Creative actions or contributions to philosophical discourse must relate to earlier acts or interventions. But in order to engage in innovation and originality, the act of collective freedom must also distance itself from earlier referential content. The creative act must be surprising in order to be an exercise of freedom. If the act were predictable, it would fail to qualify as an authentic exercise of freedom. Schmitt's sovereign decision on the exception, in Kahn's view, is the paradigm example of an act that is free in this sense. Kahn readily acknowledges that this last notion can collapse into randomness. As such, he argues that the free act must be based on analogical reasoning. In essence, analogical reasoning crosses the divide between a norm and its application that goes beyond mere deduction and introduces an element of creativity. The outcomes of analogical reasoning cannot be predicted, but it forges a meaningful relation between preceding normativity and the free act. To become a participant in the political life of a community, one must participate in the practices of analogical reasoning. By doing so, Kahn claims, the members of a political community realize a form of freedom that is similar to the freedom experienced by an individual with a great mind. Political Theology articulates a science of sacrifice. People living in a sovereign nation are constantly called upon to make decisions, renewing the sacrificial commitment of collective existence to each other. Such is popular sovereignty, and it decides on the exception, which means that this decision of necessity sends people to their ultimate demise. To be sure and to hold fast to Kahn’s term, the collective community sends themselves to their own death, since they constantly act in the sending and the sacrificing. For Kahn, this is how meaning in the political imagination is made and realized in broad dimensions: law and sacrifice, the court and the bomb. At stake in this discourse about political theology is the capacity to realize in and through the communities own lives an ultimate and fundamental meaning. Ethan Zadoff, an alumnus of the CJL Graduate Fellowship, is a PhD candidate at the CUNY Graduate Center, working on a dissertation on comparative medieval Jewish and Christian marriage law and practice.

New Perspectives on Comparative Legal Theory

March 1st, 2011

by Ethan Zadoff (This is the second in a series of articles by Zadoff regarding the connections between Jewish law and legal theory. To read the first article in this series, click here.) It should come as no surprise that numerous scholars have voiced concern and uncertainty about the general purpose of comparative law. William Ewald goes so far as to label this discontent a deep malaise among those who engage in the comparative venture.[i] Alan Watson devotes an entire chapter of his ground-breaking work Legal Transplants to discuss the utility of comparative law.[ii] Others scholars – many of them scholars who engage in various forms of comparative law – point out that the whole venture is currently preoccupied with irrelevant problems and remains an unfulfilled subject of study. Given that the traditional model of comparative law seems to be lacking both in content and theory, where does the field stand in relation to creating a working methodology that moves beyond the study of the black-letter rule of law? What correctives have taken shape to mold comparative law into a field that can validate its utility and usefulness in light of other approaches? Varying perspectives have been offered over the past two decades to try to re-focus the comparative venture into a useful analytical category. Most of these have taken the form of reflections on the internal dynamic of the law. The aforementioned William Ewald offers an innovative methodology.  Ewald argues that comparative law must rest on a philosophical view of law and cannot not be premised simply on the study of rules. Rather, it should be viewed as a conscious mental activity as well as a record of the attempts by jurists to arrive at the correct answer to legal questions.[iii] The questions that should be addressed by comparatists is: How do those who form the law reach their conclusions? What route did they travel? What, if any, problems did they encounter?  insights can we derive from analyzing their footsteps? In essence, in order to fully understand a foreign legal system and be able to compare it to others, Ewald argues one must first understand the intellectual underpinnings, conceptions and systems of thought as well as the context of the legal system. Geoffrey Samuel takes up the issues that Ewald discusses in detail, pointing out that only in rare circumstances has comparative law challenged legal theorists.[iv] Samuel develops a complimentary line of argumentation, positing that comparative law should be concerned less with methodology – with finding and comparing rules of two systems – than with epistemological matters.[v] Comparative law, Samuel argues, should look beyond rules and into the structures that make up the dimensions of legal problem solving.[vi] It should operate on two levels. First it should provide the opportunity to study the literature specifically devoted to the history, aims, functions, methods, and strengths of law. Second comparative law should provide the opportunity to study the internal structures of legal knowledge.[vii] Complex systems can be used to model differences in black letter rules, but, more importantly, they can also be used to identify the differences of mentalities that persist between legal cultures. Comparative legal structures and mentalities are more complex than the any rule-based thesis may imply. Like Ewald, Samuel takes aim against rule-based conceptions and offers an alternative internal conception of comparative law. In addition to the perspectives that Ewald and Samuel offer, additional approaches to comparative law have been suggested related to sociology, anthropology, and comparative culture.  The relationship between comparative law and sociology has for the last century been close. It has also arguably been one of necessity. This relationship has at times, however, come under fire.  Roger Cotterrell explores the relationship between sociology and comparative law, asserting that the two fields are interdependent, each of their goals being to understand law and its development as an aspect of social life.[viii] For Cotterrell, sociology’s most important potential contribution to comparative law is to clarify the nature of the social and the contextual settings of law and legal institutions. He considers various models and applications of the sociological perspective, particularly the work of Alan Watson, the application of autopoiesis theory put forward by Gunther Teubner, and the use by those who compare concepts of legal culture.[ix] Notions of legal culture have been a focus of social scientists, particularly anthropologists and sociologists, and refer to a compendium of matters of social experience, understanding, and practice. Watson uses the term to refer to conditions associated with successful legal transplants.[x] In Watson’s conception, the conditions refer to the outlook, practices, values, and traditions of the legal elite of the recipient legal system.[xi] Pierre Legrand, an ardent critic of Watson, pushes the definition further. For Legrand, “culture concerns frameworks of intangibles within which interpretive communities operate and which have normative force for these communities. It occupies a middle ground between what is common to all human beings and what is unique to each individual.”[xii] Culture in general and its various manifestations in particular – such as legal rules – draws from deep and embedded historical experience. In this light, legal rules represent cultural forms. Just as culture is a source of identity, rules can be seen as sources for identity as well. Rules are the outward realization of an implicit structure of attitude and reference, and as such they are a manifestation of a given legal culture. Legrand contextualizes the traditional comparative law concern for contrasting legal styles of different families of law into broader focus on legal culture as distinctive mentalities – modes of understanding reality – which inform all aspects of the particular civilization where law is embedded in a specific time and place. These mentalities aim to define the frame of perception and understanding of a legal community so as to illuminate the way a community thinks about the law. The role of the comparatist, according to Legrand, is to focus on the cognitive structure – in other words, the mentalities – of a given legal culture and on the epistemological foundations of that cognitive structure. Ewald, Samuel, Cotterell, Legrand and others who are not discussed above offer innovative ways for the field to move beyond the simple comparison of legal rules thus far expressed in most of the leading comparative law casebooks. Methodologies structured around the comparison of legal cultures – of cognitive and conscious structures that are imbedded with historical meaning, elements of social interaction and learned legacies – are welcome correctives that allow the comparatist to explore the deeper and perhaps thicker meaning of legal rules. In my next post I hope to discuss the nexus between comparative law and Jewish studies. Specifically, I will analyze ways in which scholars have treated the comparative legal venture in the past and offer some perspectives of looking at the future uses of comparative law. Ethan Zadoff, a second year fellow at the CJL, is a PhD candidate at the CUNY Graduate Center, working on a dissertation on comparative medieval Jewish and Christian marriage law and practice. Works Cited Cotterrell, Roger. "Comparatists and Sociology." In Comparative Legal Studies: Traditions and Transitions, edited by Roderick Munday, Pierre Legrand. Cambridge: Cambridge University Press, 2003. Ewald, William. "Comparative Jurisprudence (I): What Was It Like to Try a Rat?" University of Pennsylvaia Law Review 143, no. 6 (1995): 1889-2149. Legrand, Pierre. "European Legal Systems Are Not Converging." International and Comparative Law Quarterly 45, (1996). Samuel, Geoffrey. "Comparative Law and Jurisprudence." The International and Comparative Law Quarterly 47, no. 4 (1998): 817-36. Schlesinger, Rudolf B. Comparative Law : Cases, Text, Materials. 5th ed, University Casebook Series. Mineola, N.Y.: Foundation Press, 1988. Teubner, Gunther. Law as an Autopoietic System. Oxford: Blackwell, 1993. ———. "Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences." Modern Law Review 61, no. 11 (1998). Watson, Alan. Legal Transplants: An Approach to Comparative Law. Edinburgh:             Scottish Academic Press, 1974
[i] Ewald, "Comparative Jurisprudence (I): What Was It Like to Try a Rat?," 1961. [ii] Alan Watson, Legal Transplants : An Approach to Comparative Law. (Edinburgh: Scottish Academic Press, 1974) [iii] Ewald, "Comparative Jurisprudence (I): What Was It Like to Try a Rat?" 1948-1949. [iv] Geoffrey Samuel, "Comparative Law and Jurisprudence." [v] Ibid. 827-828. [vi] Ibid. 832. [vii] Ibid. 833-834. [viii] Cotterrell, "Comparatists and Sociology." [ix] Gunther Teubner, Law as an Autopoietic System, ———, "Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences." [x] Watson, Legal Transplants: An Approach to Comparative Law, 6. [xi] Watson’s position is best contrasted with Lawrence Friedman who argues that legal culture is best viewed as the attitude toward, and ideas, beliefs and expectations about law. Friedman’s work is concerned mostly with the external-non lawyers- legal culture that he sees as the crucial determination of laws social meaning and significance. The study of legal culture embraces all kinds of social differentiation without indicating means of definition or relation to their independent significance. Legal culture is hopelessly vague and means both everything and nothing. [xii] Legrand, "European Legal Systems Are Not Converging," 52-81.

Comparative Legal Theory and Jewish Studies

February 15th, 2011

by Ethan Zadoff The query I pose here is a rather simple one – a question, however, which should be explored in a broader context. Namely what, if anything, can contemporary comparative legal theory and comparative law offer to Jewish studies? From its eighteenth century foundations, most noticeably in the works of Montesquieu, comparative law has undergone numerous transformations and altered the intellectual orientation of other fields of inquiry. But the nexus between comparative legal theory (emphasis on theory) and Jewish Studies remains somewhat tenuous. Over the course of a number of posts to this site I hope to probe the theoretical, epistemological and practical convergence of comparative law and Jewish studies, the nature of comparative law as a distinct – and, I will argue, necessary – topic of study, and its past use and future utility for scholars. I. The State of the Field: Comparative Law Many law school students can identify one of the primary American casebooks for studying comparative law - Comparative Law: Cases-Text-Materials, edited by the German born Rudolf Schlesinger. As a way of introducing the nature and meaning of the comparative venture, Schlesinger assigns the primacy of comparative law to its utilitarian and prudent function. Comparative law, it is said, enables one to understand and work with foreign legal materials and also provides fresh perspectives to one’s own legal system.[i] Schlessinger echoes the somewhat prevalent notion of the functional effectiveness of comparative law for real world conventions of legal processes. Some point out that the subject might come in handy when advising clients of potential legal consequences of an international business transaction.[ii] Others add that comparative law may be useful in drafting statutes and interpreting treaties. Perhaps the loftiest perspective regarding comparative law, though, comes through in the works of a whole host of French scholars who argue that comparative law improves understanding among nations, helps with the problems of global underdevelopment, can contribute to the development of World Law, and advances the cause of peace and justice.[iii] But while all of these points of view grant the comparatist a somewhat significant and even prominent role in the real-world workings of law, I would argue that the primary contemporary rationale for comparative endeavors is not for the world of legal practice, but for scholarly benefit. In this sphere of academic cultivation, two basic pedagogical approaches have taken shape.  The first is the casebook model, two prominent examples of which are Schlssingers text and Arthur von Mehren’s The Civil Law System. Both Schlessinger and Von Mehren discuss at length the development of the civil law system and emphasize facts and doctrines. The problems of these casebooks, however – and there are a number of them – are manifest. Neither Schlessinger nor von Mehren presents a cohesive organization in their texts. Facts and figures are inserted haphazardly throughout the latter half of von Mehren’s book without a clear overview for the reader of their progression. The deeper problem, as William Ewald and others point out, is that neither these specific textbooks nor a host of others make a concerted effort to discuss the nature of the judicial institutions that shape the rules and laws discussed in the cases.[iv] Particular theories of adjudication are not examined in any meaningful way, thus leaving the reader to decide for themselves – likely incorrectly – when and which rules may be applied at certain instances and who among the various judicial actors play a role at a specific time. Thus, in both Schlesinger and van Mehren, the context of the law and its institutional nature is almost completely glossed over in favor of the enumeration – often, the haphazard enumeration – of black- letter rules and laws. The second approach, which, like the first, is based on case-law and legal rules, goes one step further in fulfilling the comparative project in more pronounced terms. This approach can best be summed up as works of scholarship, which overtly and in clear terms construct the comparison between legal systems as opposed to simply listing the rules and allowing the reader to come to their own conclusions. Stand alone works by Rene David, Konrad Zweigert and two reference works, The Cornell Project on the Formation of Contracts, spearheaded by Rudolf Schlesinger and The International Encyclopedia of Comparative Law, a project of the Max Plank Institute in Hamburg, are examples of this method of approach. In very general terms, the purpose of the Cornell Project – and this is echoed to some degree in the International Encyclopedia – is to actively engage in the process of comparison, to seek and identify the extent of agreement or disagreement between rules and systems as opposed to simply compiling lists of rules from various countries.[v] This style of scholarship has been widely influential and used in works such as the International Encyclopedia, where each topical chapter has subheadings for the various countries under comparison. Both the academic and casebook approaches represent important pieces in the comparative venture – the casebook model in setting out the basic terms of comparative law and the academic model in actively engaging in the process. But despite this veil of progressive development, a host of pertinent concerns emerge from these perspectives that threatens to derail the usefulness of the comparative process. Both of these traditional models are grounded in and around the project of gathering the black letter rules of law. They do not provide insight into the workings of the various legal systems as institutions, nor do they discuss specific theories of adjudication or precedent in regards to the different systems of law. In essence, the comparative venture revolves around the juxtaposition of rules and details. In order to understand a legal rule one needs to know not just the bare text of the rule, but certain global facts about the legal system: For example, how the rule is interpreted, how it is applied, and how it interacts with other rules. Rules are to be understood, not in isolation, but only as a component of an entire legal system. That is, rules can only be understood in the context of the system to which they are applied. Additionally, both approaches are overly practical for the theoretical scholar. Almost no attempt is made to deal with questions of history or with various theoretical arguments regarding the purpose of specific legal topics. Abstract questions of philosophy and historical development are disregarded in favor of categorization, and, to use a term borrowed from Pierre Legrand’s description of the rule based comparative venture, textism.[vi] An external approach excludes from consideration the internal ideas that lie behind the observable, external phenomena. In other words, it does not address itself to the fundamental question of what is it like to be a participant in a foreign legal system. Indeed, neither model attempts to search for deeper meaning or purpose in the comparative approach.  In this vein Lawrence Friedman’s statement that “traditional comparative law… turns a blind eye to everything but surfaces” is a particularly apt and poignant description of the state of the field.[vii] In this essay, I have discussed some traditional methods of analyzing comparative law. In my next post, I will focus on new perspectives on Comparative Legal Theory and the relevancy of these theories for Jewish Studies. Ethan Zadoff, a second year fellow at the CJL, is a PhD candidate at the CUNY Graduate Center, working on a dissertation on comparative medieval Jewish and Christian marriage law and practice. Works Cited David, Rene and John E.C. Brierley. Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. New York: Simon and Schuster, 1978 Ewald, William. "Comparative Jurisprudence (I): What Was It Like to Try a Rat?" University of Pennsylvaia Law Review 143, no. 6 (1995): 1889-2149. Friedman, Lawrence. "Some Thoughts on Comparative Legal Culture." Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday, ed by David Clark. Berlin: Duncker and Humblot, 1990. Legrand, Pierre. “Comparative Legal Studies and Commitment to Theory,” The Modern Law Review, Vol. 58, No. 2 (March, 1995). Legrand, Pierre. "European Legal Systems Are Not Converging." International and Comparative Law Quarterly 45, (1996). Schlesinger, Rudolf B. Comparative Law : Cases, Text, Materials. 5th ed, University Casebook Series. Mineola: Foundation Press, 1988. Schlessinger, Rudolf B. and others. Formation of Contracts: A Study of the Common Core of Legal Systems Conducted under the Auspices of the General Principles of Law Project of the Cornell Law School. 2 Vols.  London: Stevens and Sons, 1968. Van Mahren, Arthur and James Russel Gordley. The Civil Law System: An Introduction to the Comparative Study of Law. Boston: Little, Brown and Company, 1977. Zweigert, Konrad and Hein Kotz. An Introduction to Comparative Law. 2. vols. Amsterdam: North Holland Publihsing Company, 1997 Zweigert, Konrad and K. Drobnig, eds. Internationl Encyclpedia of Comparative Law. Max-            Planck Institute, 17 vols. Leidin: Brill.
[i] Rudolf B. Schlesinger, Comparative Law : Cases, Text, Materials, 39-43. [ii] William Ewald discusses these issues regarding the state of field at length in his seminal article, William Ewald, "Comparative Jurisprudence (I): What Was It Like to Try a Rat?" The above discussions echo some of the important points that Ewald raises in his article. [iii] See, for example, Ewald. [iv] See Ewald, 1961-1990. [v] One of the principle tasks of the Cornell Project was to identify a common core of doctrines in the area of the formation of contracts, a method which has not found wide acceptance. See Ewald, 1979. [vi] See Pierre Legrand, “Comparative Legal Studies and Commitment to Theory,” The Modern Law Review, Vol. 58, No. 2 (March, 1995), 263. [vii] See Friedman, 52.