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UC Santa Cruz UC Santa Cruz Electronic Theses and Dissertations Title Justice and Legitimacy: Legal Faith in a Time of Political Exception Permalink https://escholarship.org/uc/item/22d075hw Author Olney, Charles Publication Date 2014 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California UNIVERSITY OF CALIFORNIA SANTA CRUZ JUSTICE AND LEGITIMACY: LEGAL FAITH IN A TIME OF POLITICAL EXCEPTION A dissertation submitted in partial satisfaction of the requirements for the degree of DOCTOR OF PHILOSOPHY in POLITICS by Charles Olney December 2014 The Dissertation of Charles Olney is approved: _________________________________ Professor Robert Meister, Chair _________________________________ Professor Mark Fathi Massoud _________________________________ Professor Gopal Balakrishnan ________________________________ Tyrus Miller Vice Provost and Dean of Graduate Studies Copyright © by Charles E. Olney 2014 Table of Contents Abstract ........................................................................................................................ iv Acknowledgements ...................................................................................................... vi Introduction ....................................................................................................................1 Chapter 1 – Rawls and the Reasonable ........................................................................33 Chapter 2 – The Hart/Dworkin Debate and the Indeterminacy of Law .......................98 Chapter 3 – Law’s Exceptions: Positivism and Political Theology ...........................152 Chapter 4 – The Differend of Justice .........................................................................220 Chapter 5 – A Political Concept of Justice ................................................................282 Conclusion – Justice and Legitimacy ........................................................................344 Bibliography ..............................................................................................................361 iii Justice and Legitimacy: Legal Faith in a Time of Political Exception By: Charles Olney 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 iv 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. v Acknowledgments This project has been the work of almost six years. It began in a seminar with Robert Meister, who has traveled with me every step along the way, first as instructor, later as adviser, always as a collaborator. Every important component of this dissertation owes something to his influence. I am also deeply indebted to the other members of my committee. I owe the thematic clarity of the argument to Mark Fathi Massoud, who has read countless drafts and helped me extract and clarify the key terms of my argument. Gopal Balakrishnan has lent a skeptical and incisive edge to the work, pressing me to venture out from the world of abstract theory where my inclinations naturally lead. I would also like to thank Vanita Seth, who served on my qualifying committee. In particular, her comments forced me to radically reconsider my faith in persuasion as a technique for political engagement. I presented an early formulation of this argument at the Princeton Graduate Conference in Political Theory, where I received excellent feedback, and which convinced me that this argument was worth pursuing. A revised version of that paper was eventually submitted to the journal Law, Culture and the Humanities where I received helpful comments from the editors and anonymous reviewers. Portions of that article appear in this dissertation. While my ideas have moved forward, that early work provided the backbone for the eventual structure of the argument. There are too many other people who have provided feedback to list everyone individually, but I would like to extend specific thanks to Jessica Clarke, Dan Wirls, Douglas Dow, Christopher Kutz, Rob Hunter, and Andrew Dilts for their contributions. I should also vi note that my interest in Rawls goes extends back to my time as an undergraduate at Whitman College. In particular, to a class I took with Jeanne Morefield on liberalism and its discontents. As a ‘discontent’ herself, I do not imagine that she will be enthusiastic about having set another Rawlsian loose on the world, but I hope that my arguments are iconoclastic enough to offer some hope of redemption in her eyes. On a more personal note, I want say thank you to my family. My father: the best parent a child could ask for, endlessly supportive and caring. My mother: an inspiration—from her I have learned that fulfillment is there to be found if you care to search for it. My grandfather: the kindest and gentlest and most quietly brilliant man I have ever known. I miss him greatly, but never more than now. I wish I could have shared this moment with him. And my grandmother: who raised me, who guided me through life, who has loved me completely. There are not words to express how deeply you have influenced my life. I just know that I could not be here today if not for you. Finally, I want to thank Caroline Brandt, who has been here for every step along the way. Nothing in the world has ever inspired me more than the simple desire to make you proud of me. I hope that I have succeeded. vii Introduction – Justice and Difference We live in an age of discontinuity, of fractured identities, financial crisis, and economic dislocation. And yet, at the same time, we are also in an era of unification and conservation. Despite the proliferation of political conflict, the institutions of liberal democracy have held remarkably stable. Why? What binds them together, and does this connection come at an unacceptable cost? To answer these questions requires attending to the political structure of justice. This is a theoretical undertaking, but one grounded in the concrete practices of political life. We experience justice through encounters with discontinuity, as a lingering but irresolvable burden, manifested through the necessity of producing authoritative decisions within a world of indelible difference. While this is a particularly acute issue for modern liberal democracy, where collective existence remains obligatory even as shared modes of valuation and justification are increasingly splintered, the underlying problem exceeds the historical convergence of liberalism and democracy. The search for a framework through which dueling obligations may become joined is a recurring theme in political philosophy, perhaps the recurring theme. It is a meta-political repetition in the structure of modernity, one that has been characterized by the slow but inexorable growth of doubt about the possibility for metaphysical truths. The Hobbesian sovereign is replaced by Rousseau’s general will, which is further abstracted in Kant’s appeal to practical reason and Hegel’s historical dialectic, and threatened with extinction via 1 the Marxist critique of ideology.1 At each step, complexity grows and the goal of unifying a fractured world becomes less plausible. Justice today is enframed by these historical patterns. It enunciates the possibility of durable order, even in a world that has been denuded of its theological enchantments.2 To affirm the value of justice is to accept that toleration is the limit condition of political existence. Everyone is permitted a safe internal life world, in which he or she may build whatever communities are desired, based on values of one’s own choosing. Such radical freedom, however, is only possible if everyone agrees to share a limited set of regulative techniques and acknowledges the collective authority of the results that they produce.3 In an important sense, justice is the measurement of this necessity. It is the mediating term through which mutually incompatible obligations may be translated—on one hand, the inalienable freedom of self-creation; on the other, the compulsory force of collective obligation. Justice is not located within either of these worlds; it exists interstitially, as the connective tissue that binds them together. However, to describe justice as the conceptual binding force of political life immediately provokes the question of recursion. If justice is the means by which norm and fact are balanced, from where does it arise? Is justice a lingering 1 See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1998), pp. 1-3 2 See Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (London: Routledge, 1996). 3 See John Locke, Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 2008), “Chapter 6 – Of Paternal Power.” Locke’s treatment of freedom and law is notable for its emphasis on mutual support. Law is not seen as a restraint, but is instead a device that permits freedom to become actualized. In ceding certain liberties to a higher authority, each individual obtains a fuller experience of freedom. 2

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His concepts—the original position, the veil of ignorance, the difference principle—are. 1 Kenneth Arrow, “A Difficulty in the Concept of Social Welfare,” Journal of Political Economy 58, no. 4 (August 1950). 2 Amartya Sen, The Idea of Justice (Cambridge: Belknap Press of Harvard University
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