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Justice and Legitimacy: Legal Faith in a Time of Political Exception

  • Author(s): Olney, Charles
  • Advisor(s): Meister, Robert
  • et al.
Abstract

This dissertation seeks to develop a viable concept of justice--one limited enough to sustain the conditions of modern pluralism but strong enough to survive the encounter with political emergency. Such justice is necessarily mediated through law, which promises to reconcile the competing obligations of its subject while still producing authoritative decisions. This unifying task founders on political exceptions: expressions of difference that resist incorporation into the conceptual schema of rational order. My point of entry is John Rawls' theory of political liberalism, particularly his concept of `reasonableness.' This term in Rawls is primarily a device for depoliticizing exclusions; by demarcating reasonable and unreasonable doctrines, he permits the deployment of political violence in the name of neutrality. However, a radical possibility of recursive development is embedded in this idea, one unexplored by Rawls or any of his critics.

To situate this argument I turn to the Hart/Dworkin debate in legal philosophy over the nature of law, informed by Carl Schmitt's treatment of exceptionality. My goal is to demonstrate the terminal limits of legal restraint on political order. Law in this sense is nothing but bare formalism, a servant of decisions made in the exceptional space where indeterminacy and emergency meet. But a different concept of law is possible, one that begins from the premise of exceptionality. The rule of law cannot resolve the inherently undecidable problems of justification. But this is unimportant if law is reconceptualized as a technique of legitimacy, a mechanism for binding difference on explicitly political terms. In this account, justice provides the terms through which a political community of reasonableness constitutes itself. In affirming the mutuality of justice and legitimacy, therefore, we affirm a political concept of law--one founded on exceptions rather than norms.

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