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Vol 23 No 5 May/June 2018

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Law and Reflexive Politics

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ISBN13: 9780792349549
ISBN: 0792349547
Published: July 2000
Publisher: Kluwer Law International
Format: Hardback
Price: Out of print

This volume argues against the dominant ""republican"" trend in legal and democratic theory that sees law as the prime vessel of political action, means of empowerment of civil society and guarantor of democratic politics. Against theorists as diverse as Dworkin, Habermas, Unger, Ackerman and others it argues that the law cannot, as these theorists would have it, contain the politics of civil society and exhaust what these politics are about. The first part of the book explores the recent trends in legal and political theory that suggest the internal linking of democracy and law. The second part is a critique of these positions through an application of systems theory, but one that offers an internal critique of systems theory itself as well as a study of the inter-relationships between law, politics and conflict. The final part advances a suggestion for a definition, or re-conceptualization, of the political as ""reflexive"", that will re-politicize law's rendering of conflict, political action and identity. What is ""stilled"" by the law here becomes contested terrain again and, as such, political.

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Part I: Republican Constitutionalism.
1. Citizenship, Passive and Active.
2. Republicanism and its Legacy.
3. Habermas on the `Interpenetration' of Law and Politics.
4. American Civic Republicanism.
5. Dworkin and the Law as Forum of Principle.
6. The Containment Thesis. Part II: Political Conflict Under Legal Categories: A Systems-Theoretical Critique of Republican Constitutionalism.
7. Law, Society and Conflict.
8. Law and the Double Contingency of Conflict.
9. Legal Expectations.
10. The Relationship of Conflict and Law.
11. Conflicts Conflated.
12. Conflict Re- Enacted.
13. Conflict Severed.
14. Conflict Normalised. Part III: Reflexive Politics.
15. The Exclusionary and the Reflexive.
16. Theories of Political Reflexivity.
17. Luhmann on Political Reflexivity.
18. On Love, Marriage, Law and Politics.
19. Contingency as Eigen-Value of Politics.
20. Politics `As Passion'.