Review Essay - Homo Juridicus: On the Anthropological Function of the Law

Legalism: Anthropology and history, edited by P Dresch and H Skoda , 2012

Décalages, 2020

Studia Erasmiana Wratislaviensia

Technocratic law inflicts symbolic violence on human subjects by imposing upon them a reductionist vision of their existence, limited to the aspect of homo oeconomicus passivus. At the same time, this symbolic violence serves to achieve the main technocratic goal of the depoliticisation of decision-making. Law is perceived through the optic of instrumental rationality, while juridification has nothing to do with justice, but merely serves to insulate technocratic decision-making from the political sphere. This paper enquires whether, in the process of its judicial interpretation, the humanization of technocratic law can lead to its repoliticisation. On the basis of case studies of three well-known judgments of the European Court of Justice (Leitner, Omega and Aziz), the article makes the assertion that indeed, humanization can be instrumental to repoliticisation. However, by referring to the judgment in Alemo-Herron, the author draws the final conclusion that politicisation is only the first step, and a further one is to ask specifically about the subject of interests protected by the law.

Law and Critique, 2022

The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected to establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law.

Russian Law Journal, 2021

The time in which we live is not easy. On the one hand, the latest technological advances create an illusion of unprecedented progress. On the other hand, it appears that millions of people in the world are deprived from the opportunity to use these advances in their everyday lives. Moreover, it appears that these technological advances can cause more problems than they help to solve. This situation also applies to the legal sphere where the law is gradually turning into a neutral, depersonalized technique. Mostly restrictive, repressive and estranged from the will of individual social associations, such law (law as a mere technique) generates rather radical responses in the form of different "shadow" (unofficial) norms, institutions and practices. In this paper the problem of a possible clash of the official positive law with shadow social orders is analyzed. Trying to find the way out of the false dichotomy between the technologized official law and fundamentalist rules of some narrow communities, the author discusses the origins and weak spots of the contemporary legal order.

In her analysis of the vexed question of the legal person, in the book Law's Meaning of Life, Ngaire Naffine systematizes the spectrum of the many different interpretations of what counts as person before the law into two broad categories: the legalists and the metaphysical realists. For the legalists, the person in law is a 'formal and neutral legal device' which permits the acquisition of the 'ability to bear rights and duty' (Naffine 2009, 22). In this perspective, everything could ultimately be a person for legal purposes. Legal personality could be recognized for a river, or a piece of land, towards their protection; and in a similar fashion, though admittedly with distinct ethical and practical consequences, a foetus can be regarded as a person for specific legal purposes. The person, in the legalist perspective, is an abstract technical artefact devised and implemented to fulfil determinate juridical operations. From a quite different angle, the metaphysical realists see the person as mirroring (within the sphere of law) certain essential characteristics of human nature. Legal personality is understood as an expression of certain constitutive attributes of human beings; it corresponds to the affirmation and transposition, in law, of presupposed assumptions over the essence or the nature of human beings. Hence, only subjects adhering to a given image of the 'human' (usually an adult with fully developed and functioning intellectual capacities and capable of moral agency) are legally recognized as persons. For the realists, it is necessary to go beyond the abstract and empty categorization of law, and to look, instead, at human nature -and from within different viewpoints (such as philosophy, religion and science) -in order to capture its supposed primary constitutive ground, and build upon it the structure of the person (ibid., 22-24). The bi-partition between legalists and realists, while remaining unambiguous at a theoretical level, when confronted with the actual operations of

In this article, the author encourages the modern scientific community to draw attention to the fact that law being a unique institution of society, appears also a peculiar element of its culture. Thus, it is defended the opinion on the necessity of attraction of highly valuable data and progress of sociocultural anthropology (especially its legal and political directions) in investigation of state-legal problems, appearing objects of jurisprudence and other related social sciences. In turn, such formulation of the problem requires to use a new approach to law and state, the approach of their natural and inseparable connection with culture (in the broadest interpretation of this concept) of particular society. It gives reason to believe, that law and state undoubtedly bear the imprint of concrete culture. This thought is also continued by the following thesis that research (more profound than we have in traditional textbooks on jurisprudence) of the nature of law and state, their mechanisms and specificities as social institutions in fact becomes impossible without the reference to culture (as the system of values, ideas and practices) of society. In addition to the idea of law and state’s sociocultural conditionality in the article it is also explored to what useful consequences entails application of the aforesaid anthropological method in jurisprudence, useful both in theoretical and practical aspect. So, it is noted that the anthropological approach, requiring the comprehensive immersion in historical-cultural material, has its advantage, for example, that it is really impossible without using of data and methods of practically all humanitarian sciences (sciences about human, sciences of anthropocentristic nature), such as history, sociology, political science, psychology, cultural studies and even philology. Thus, the anthropological approach enriches our understanding of law and state, making it more stereoscopic.

In his book Anthropology and Law: A Critical Introduction, Mark Goodale gives a concise overview on the contemporary anthropology of law. In Goodale’s narrative, the recent history of legal anthropology emerged with the end of the Cold War, “at a historical moment—fleeting as it turned out to be—when the Kantian ‘sweet dream’ of perpetual peace was being grounded in a cosmopolitan legal imaginary to an extraordinary degree” (200). This liminal moment started developments such as “the juridification of politics, identity (such as indigenous rights), and social organization, at the same time in which global inequality was growing steadily” (211). From this time on, anthropologists began to be interested, much more than before, in international legal orders and transnational legal pluralism. Goodale aims at presenting many of the fruits of over 25 years of such investigations.