Working Paper Series Villanova University Charles Widger School of Law Year 2008 \Militant Judgement?: Judicial Ontology, Constitutional Poetics, and `The Long War"' Penelope J. Pether 1567,
[email protected] This paper is posted at Villanova University Charles Widger School of Law Digital Repository. http://digitalcommons.law.villanova.edu/wps/art120 PETHER.FINAL.VERSION 5/1/2008 12:15:59 AM MILITANT JUDGMENT?: JUDICIAL ONTOLOGY, CONSTITUTIONAL POETICS, AND “THE LONG WAR” Penelope Pether* Law is the oNe . To-morrow, yesterday, to-day.1 [T]he truth is always produced by someoNe. .2 I would like this book to be read, appreciated, staked out, aNd coNtested as much by the iNheritors of the formal aNd experimeNtal graNdeur of . the law, as it is by the aesthetes of coNtemporary Nihilism, the refiNed amateurs of literary decoNstructioN, the wild militaNts of a de-alieNated world, aNd by those who are deliciously isolated by amorous coNstructioNs. FiNally, that they say to themselves, makiNg the difficult effort to read me: that maN, iN the seNse that he iNveNts, is all of us at oNce.3 This Article uses Badiou’s theoriziNg of the eveNt aNd of the militaNt iN Being and Event as a basis for aN exploratioN of problems of judicial oNtology aNd coNstitutioNal hermeNeutics raised iN receNt decisioNs by commoN law courts dealiNg with the legislative aNd executive coNfiNemeNt of “Islamic” asylum seekers, “eNemy combatants” and “terrorism suspects,” and certain classes of criminal offeNders iN spaces beyoNd the doctriNes, paradigms, aNd iNstitutioNs of * Professor of Law, VillaNova UNiversity School of Law. ThaNks are due to JoNathaN CharNitski, VillaNova UNiversity School of Law J.D.