Law, Politics and Paradox Orientations in Legal Formalism

Faculty of Law University of Helsinki Law, Politics and Paradox Orientations in Legal Formalism Hanna Lukkari Doctoral dissertation To be presented for public discussion with the permission of the Faculty of Law of the University of Helsinki, in Lecture Hall P674, Porthania, on the 25th of September 2020 at 12 o’clock. Helsinki 2020 ISBN 978-951-51-6349-3 (paperback) ISBN 978-951-51-6350-9 (PDF) Unigrafia Helsinki 2020 2 In memory of Sari 3 Abstract The aim of this dissertation is to analyze the significance of the logical phenomenon of paradox for law and its relation to politics. I examine a selection of formal legal and political theories that in different ways understand law as a totality of norms, communications or behaviors, how paradox emerges in these theories, and what implications their understanding of paradox has for the relationship between law and politics. I argue that these legal and political theories can be meaningfully and in a novel way grouped according to their orientation to legal totality and paradox. To my knowledge, there is no research systematically mapping orientations to paradox in legal theory. It is the objective of this dissertation to fill this lack. Paradox presents challenges for formal thought, i.e. thought that analyzes the logic of totalities. Law, considered as a totality or form, gathers a plurality of entities under a common denominator and into a legal order. It is in reflecting on such formalization that we encounter paradoxes. This work aims to contribute to a growing literature on the implications of formalism for contemporary social and political thought by providing a legal theoretical perspective hitherto missing in these discussions. I use as a heuristic device a grouping of formal thought presented by the philosopher Paul M. Livingston. According to this grouping, there are three main orientations in contemporary formal thought to totality: the constructivist- criteriological, the paradoxico-critical and the generic orientation. These orientations arise on grounds of the “metalogical choice”: they prefer to view totality (such as law as a system or order) either as complete but inconsistent (the paradoxico-criticism), or as consistent but incomplete (the constructivist-criteriological and the generic orientation). I will apply, and modify when necessary, this categorization in order to analyze the theories of Hans Kelsen, Niklas Luhmann, Giorgio Agamben, Alain Badiou and Hans Lindahl, and to provide a systematic mapping of how the nature of law as a totality is understood in contemporary formal legal-political thought. Accounts of modern law encounter a paradox, I argue, if they observe law as an autonomous, self-referential totality that claims for itself the right to draw a distinction between itself and non-law. The paradox of autonomous law is that it cannot consistently show that it is itself legal as a totality. The basic problem that this implies is that the legal system or collective is unable to legitimate its existence and identity in response to challenges in any other way than by drawing on its own resources – which precisely is what the challenge targets in the first place. If we think of law as offering a framework within which questions of justice and injustice can be answered, the paradox emerges when we question the justice of this framework itself. The dissertation defends the paradoxico-critical orientation. It argues that the legal system is a paradoxical totality, which implies that there is no neutral metalanguage, such as natural law, that could solve the problem of law’s self- reference for good. This challenges legal theory to show how the problem of nihilistic 4 relativism, the mere perpetuation of the self-referential legal system, can be mitigated and law’s normative authority in society rethought. In Chapter 1, I define the notion of paradox, explicate its meaning and role in formal thought and motivate its application to legal theory. In Chapter 2, I show that in his theory of the basic norm, Kelsen can be understood as oscillating between the constructivist-criteriological position and the paradoxico-criticism, between an attempt at guaranteeing legal order’s consistency in a metalanguage, i.e. legal science, and an acknowledgement of law as an inconsistent totality. In Chapter 3, I interpret Luhmann as a paradoxico-evolutionary thinker: he observes the legal system as constitutively inconsistent but emphasizes the ways in which the system seeks to make this inconsistency unproblematic for functional reasons. In Chapter 4, I show that in systems theory, just like in Kelsen’s pure theory, the politics of the paradox remains unarticulated. I also show that, for Agamben, a paradoxico-critical thinker, the paradoxical articulation of law and politics is exposed in the state of exception, which, in his analysis, has become the new normal, requiring “messianic” politics to deactivate the whole nihilistic sovereign-legal apparatus. For Badiou, the representative of the generic orientation, which I discuss in Chapter 5, what can be said within a language, and by implication a legal system, is pre-determined by that language. Politics, the desire to say the unsayable, is thrown fully outside the language and the legal system to a position from which law’s incompleteness, its incapacity to offer space for justice and politics, can only be disclosed. Both Agamben and Badiou, thus, think about politics as “post-juridical.” In Chapter 6, I show that the very inconsistency and paradox at the heart of the legal order is, for Lindahl’s paradoxico-criticism, the site of the politics of its limits. This dissertation, then, concludes that the paradoxical limits of the legal totality can be understood as the site of politics in law. Taking law’s paradox into account allows for a non-nihilistic conception of politically contestable law and legal authority. 5 Acknowledgements It is quite common, I am sure, that the outcome of a research project looks different from how it was originally conceived. At the beginning of my doctoral research, I intended to write on the phenomenology of human rights. That project underwent a metamorphosis, perhaps greater than usual, after I encountered what could be called the paradox of human rights. Human rights can be said, on the one hand, to articulate a central purpose of modern positive law, namely, safeguarding human dignity, and in this sense, they are irreducible to law. On the other hand, they are legal rights and only accessible through the mediation of the law. By implication, there is an element in the legal order that is both inside the order as one of its norms and outside the order as the source of justification of all its norms. I, then, decided to explore in my dissertation this paradoxical structure more generally, explicate how it can be found in the work of several legal and political theorists, and analyze its significance for the relationship of law and politics. It is a somewhat unforgiving task to write a doctoral dissertation on paradox – that is, on a phenomenon that, by definition, makes little sense, at least little common sense. In this endeavor of excavating the sense of non-sense, I have profited from the help, generosity and friendship of many people. Finally realizing what I want to say in my dissertation would not have been possible without all the encounters that I had the privilege to experience nor without the gradual institutional move from philosophy to law. I began my doctoral studies at the Department of Practical Philosophy in the Faculty of Social Sciences. I want to thank my first supervisor, University Lecturer Kristian Klockars, for generously helping me to take the very first steps of my postgraduate studies. Early in my doctoral research, I was also greatly inspired by the fabulous research community that has, during the past ten years or so, emerged around the philosophy research seminar lead by Professor Sara Heinämaa. I want to thank Timo Miettinen, Sanna Tirkkonen, Anniina Leiviskä, Simo Pulkkinen, Joona Taipale, Juho Hotanen, Julius Telivuo, Hermanni Yli-Tepsa, Malin Grahn-Wider, Saara Hacklin, Virpi Lehtinen, Marko Gylén, Fredrik Westerlund, and all others who participated in the seminar at the time. Special thanks to Docent Jussi Backman for generously reading and commenting on the chapter on Badiou and helping me to improve it. Special thanks also to Ari-Elmeri Hyvönen for our discussions on Arendt. Iina Koskinen, Irina Poleshchuk and Erika Ruonakoski have been dear friends and colleagues during the past years, and I wish to thank them wholeheartedly for their friendship and support. Professor Sara Heinämaa introduced me to the branch of contemporary philosophy called phenomenology. Thank you for guiding me through the bachelor’s and master’s studies in philosophy and for helping me, early in the doctoral project, to formulate my research ideas. I have continued to draw on your teaching and impeccable sense for linguistic expression throughout this project. 6 In 2012, I was accepted as a member of the nationwide Law in the Changing World Doctoral Program. I had the great privilege to work at the Faculty of Law until 2016, when I moved to Switzerland with my family. I want to thank, in particular, Professor and the former Dean of the Faculty of Law, Kimmo Nuotio, and the current Dean, Professor Pia Letto-Vanamo, for having taken me, a philosopher, as a full- fledged member of the Law Faculty. My heartfelt thanks to Professor Panu Minkkinen, my supervisor at the Faculty of Law, for his untiring support and help. I have always been able to count on his advice and encouragement, even when I have myself doubted the feasibility of the project. There is no problem, big or small, for which Panu could not find a solution in the shortest amount of time.

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