What′s Legit? – Critiques of Law and Strategies of Rights (Critical Stances)

299 Pages·2020·1.046 MB·English

by  Liza Mattutat, Roberto Nigro, Nadine Schiel, Heiko Stubenrauch

WHAT’S LEGIT?
CRITIQUES OF LAW AND STRATEGIES OF RIGHTS
EDITED BY
LIZA MATTUTAT, ROBERTO NIGRO, NADINE SCHIEL,
HEIKO STUBENRAUCH

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Contents
7 Liza Mattutat, Roberto Nigro,
Nadine Schiel, Heiko Stubenrauch
What’s Legit? Introduction
Inventing Rights
23 Laurent de Sutter
Against Law:
The 1960s Anti-Juridical Moment in France
47 Susanne Krasmann
On Thinking and Feeling:
The Law of Cultural Heritage
63 Fares Chalabi
Intensive Listening:
Unfolding the Notion of Justice Through Reading
the Work of Lawrence Abu Hamdan
Fighting for Rights
97 Alisa Del Re
Women in Europe:
A Variable Geometry Citizenship
111 Paolo Napoli
Instituting Revisited:
For a Materialistic Conception of the Institution
Overcoming Law
131 Daniel Loick
“...as if it were a thing”:
A Feminist Critique of Consent
157 Franziska Dübgen
Rethinking the Law:
Taking Clues from Ubuntu Philosophy
Deconstructing Law
179 Peter Goodrich
Specters of Critique:
Hauntology and the Ghosts of Law
197 Manuela Klaut
On the Run from the Law:
Alexander Kluge’s Yesterday Girl as Cinematic
Institution of Subsumption
Transforming Law
219 Christoph Menke
Genealogy, Paradox, Transformation:
Basic Elements of a Critique of Rights
245 Benno Zabel
The Anarchy of Rights:
On the Dialectic of Freedom and Authority
263 Jonas Heller
Deforming Rights:
Arendt’s Theory of a Claim to Law
293 Authors
Liza Mattutat, Roberto Nigro,
Nadine Schiel, Heiko Stubenrauch
What’s Legit?

Introduction
Once considered a stepchild of social theory, legal criti-
cism has received a great deal of attention in recent years,
perpetuating what has always been an ambivalent rela-
tionship. On the one hand, law is praised for being a cul-
tural achievement, on the other, it is criticized for being
an instrument of state oppression. While some theoreti-
cians seek to transcend the institution of law altogether,
others advocate a transformation of the form of law or
try to employ counter-hegemonic strategies to change
the content of law, deconstruct its basis or invent rights.
With regard to both their starting point and their the-
oretical background, all of these critical strategies differ
greatly. When examining their starting points, one can
observe that they either target the content or the present
form of law and rights. In his contribution to this vol-
ume, Christoph Menke explains that this distinction is
the distinction between what is presented and how it
is presented.1 While approaches advocating to fight for
rights or to invent new rights seek to either change the
definition or the scope of specific rights (i.e. their con-
tent), approaches aiming at overcoming, deconstruct-
ing or transforming law altogether focus on the way in
which rights entitle and law functions (i.e. its form).
Philosophically, legal criticism refers to a wide range of
theoreticians reaching all the way from Marx to D errida.
1 See p. 223 in the present volume.
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LIZA MATTUTAT, ROBERTO NIGRO, NADINE SCHIEL, HEIKO STUBENRAUCH
It is not by accident that there has been a lot of dis-
pute amongst positions of legal criticism, since at times
their conceptions of law couldn’t be more diverse. On
the one hand, Marx, in a popular yet contested read-
ing of his writings, considers legal criticism focusing on
the content of rights to be utterly naïve. He argues that
“legal relations arise from economic ones.”2 Therefore,
a “[r]ight can never be higher than the economic struc-
ture of society and its cultural development which this
determines.”3 Authors who, on the other hand, fight for
specific rights accuse positions focusing on the form of
law of being abstract. “It’s jurisprudence, ultimately,
that creates law,” analyses Deleuze, “and we mustn’t go
on leaving this to judges.”4
Since these discussions tend to be highly c onflictual,
different approaches to legal criticism are rarely pub-
lished within one and the same volume. Yet it was
exactly these conflicts we found to be highly interesting
and productive when we were planning this volume.
The question we asked ourselves and the c ontributing
authors goes as follows: Which kind of critical practice
and standpoint will emerge from which kind of theo-
retical model of law—and why? We received a variety
of answers, spread out over the whole field of legal criti-
cism. Some of the contributions were the subject of a
controversial discussion amongst the publishers and
between the publishers and the authors—they don’t
necessarily coincide with the publishers’ opinion. On
the following pages, we would like to sketch out five
different concepts of law and rights, which are the foun-
dation of different strategies of legal criticism: inventing
rights, fighting for rights, overcoming law, deconstruct-
ing law and transforming law. These different strategies
2 Karl Marx and Friedrich Engels, Collected Works, vol. 24: Marx and
Engels 1874–1883 (London: Lawrence & Wishart, 2010), p. 84.
3 Ibid., p. 87.
4 Gilles Deleuze, Negotiations, 1972–1990 (New York: Columbia Uni-
versity Press, 1995), p. 170.
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WHAT’S LEGIT?
also serve as titles of the five chapters within this vol-
ume, since the articles specify our sketches and elabo-
rate on them in a number of ways. Some of them think
about the relation of the concept and the critique of law,
while others are exemplary of a certain style of critique.
1. Inventing Rights
Deleuze and Guattari’s philosophy serves as one of the
theoretical foundations of the strategy of inventing new
rights. Responding to the question What is Philosophy?—
the title of the last book they wrote collectively—they
state: “philosophy is the art of forming, inventing, and
fabricating concepts.”5 This claim is far-reaching—and
in need of an explanation. For by inventing new con-
cepts, philosophy not only poses new words, it also (and
above all) poses new ways of experience and existence.
Philosophy has the power of creating new forms of life.
By establishing this idiosyncratic definition of philoso-
phy (as a creative activity of generating new concepts
and new ways of experience and existence), Deleuze
and Guattari turn their backs on a multitude of com-
mon and influential conceptions of philosophy. For a
different kind of function has repeatedly been ascribed
to philosophy, namely that philosophy organizes our
ways of experience and existence on the basis of exist-
ing concepts or that it uses these concepts in order to
compare, hierarchize and hold on to given ways of expe-
rience and existence. Traditional forms of philosophy
tend to regard a concept as an instrument for grasp-
ing that which is universal, permanent or even eternal
within a changing world. With their creative interpre-
tation of philosophical practice, Deleuze and Guattari
5 Gilles Deleuze and Félix Guattari, What is Philosophy? (New York:
Columbia University Press, 2014), p. 2.
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