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September 14, 2003
Things are a bit hectic at home this weekend as I need to write a speech on renewable energy and mandatory targets over the next few days.
I am not a big fan of the capacity of the spontaneous free market to make the shift to renewable energy in Australia, as it has made a right mess of the national electricity market, and it prefers to stick by the old coal fired generators. Embracing ecological modernisation is not a strength of the free market. The state is required to intervene.
I've been mulling over hermeneutic, legal reason and legal positivism these last few days. I was going to post on an old paper by Lawrence Solum on hermeneutics, free speech and democracy that Lawrence linked to in response to reading philosophical conversations a week or so ago. That paper may be in Lawrence's deep dark past (his Frankfurt School days?) but I can relate to it more than H.L.A. Hart's The Concept of Law. That strikes me to be all about consensual binding and agreement in which the judge places his/her seal upon the consensual norms.
My interest develops out of the previous post on Gadamer and public reason where I used hermeneutics to fire a few arrows at legal positivism. In the background to this sits Carl Schmitt and his critique of legal positivism (in the form of Hans Kelsen) as a governing technology. Why Schmitt? Because my gut feeling that the effect of conservative Australian politicians criticising judicial activism (and their intense dislike for the republican separation of political power) is to demote judges to vending machines that mechanically dispense the law without intellectual reflection or active contribution.
I flick into Nietzschean mode at that and start thinking about judges as legislators and creators of the law. And what is more, my Hegelian suspicions are aroused. I smell the metaphysics of society as clockwork mechanism lurking in positivist jurisprudence. I reckon that this 'mechanization' of law enables the legal system to operate like a technically rational machine. What our neo-liberals are after is what Schmitt outlined in Political Theology: a legal system subsumed by, or incorporated into, the free market in such a way that the legal system is strictly "orientated towards calculability and governed by the ideal of frictionless functioning" for the sake of utility.
Yep that's Max Weber (of Economy and Society). And it's Frankfurt School. It's the thesis of the hegemony of instrumental rationality of technological reason that is common to Nietzsche, Heidegger, Schmitt, Adorno and Habermas. So hermeneutics is a way of opening the legal-economic machine up. Hence my interest in Lawrence's paper on free speech. That is a good place to get one's fingernails into the cracks in the machine; prise things----a law without gaps?---open a bit; and disclose different conceptions of public reason.
What Lawrence Solum is doing with his weekend offerings of classic works of (analytic) legal theory is to provide a little bridge for people like me to make contact with, and pick up on, the analytic understandings of legal reason as a public reason.
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Gary,
"I smell the metaphysics of society as clockwork mechanism lurking in positivist jurisprudence"
My nose has been reporting similar things, albeit within contractualist political philosophy.
Legal positivism: "auctoritas non veritas facit legem" - freely, "not the truth but the legislative authority of the state decides what is right and wrong."
Remember above quote from somewhere in connection with Hobbes (Hobbes himself?). Added to this was a note claiming Hobbes to be the first legal positivist - I suppose that his legal positivism too was instrumental to the rationality of his contractualist state.
In any case, this synergy is a bit crude and beside the point of your post, however, thought it might be interesting to take a look at aspects of "rechtspositivismus" in the contractualist tradition until Kant in light of said hegemony of instrumental reason (categorical imperative essentially positivist, in the sense of Hegel's critique (thrashing rather, or that's how I smilingly received it...) of Kant's moral philosophy?). What would you make of this?
ps. Am very pleased about 'Philosophical Conversations'. Educational value is 150% - will try and follow through all your material. Don't think I've ever seen anything more exciting on the web and feel inspired to start a new project myself, especially since the blog I run with a few friends has come to a bit of a halt. Mind you, it was never meant to be more than an information-sharing platform and a springboard for something new, so I suppose it fulfilled its purpose quite well. In any case, many thanks for this offering.