title page etc

380 Pages·2014·16.87 MB·English

by  Charles Olney

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
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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