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Recent social and political developments, including the presidential elections in the United States, antidemocratic state policies in Hungary and Poland, and the political climate in the rest of Europe have brought questions relating to the position and composition of ‘the people’ in constitutional democracies to the forefront. This book confronts these questions head on as leading scholars across the fields of law, legal theory, political theory and history explore the contemporary problems facing constitutional democracies. With a strong focus on constitutional law, this book examines the legal as well as the political power of ‘the people’ in constitutional democracies. Bringing together an international range of contributors from the USA, Latin America, the UK and continental Europe, it explores the complex relationship between constitutional democracy and ‘the people’ from the angles of constitutional law, legal theory, political theory, and history. Contributors explore this relationship through the lens of radical democracy, engaging with the work of key figures such as Hannah Arendt, Carl Schmitt, Claude Lefort, and Jacques Rancière.

Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is it possible to analyse law through Foucauldian lenses if Foucault himself claimed (albeit cursorily) that law, in modernity, has been colonised by other disciplines and ousted from the locus of power? Building on Foucault’s ideas about power, freedom, and subjectivity, the present book tackles this problem through a critical genealogy of the philosophico-political ideas at the basis of modern law, delineating the historical emergence of the implicit regulative conditions of our legal present. The book proposes that modern law and modern forms of power – which Foucault termed biopolitical because they sort, train, and tame persons and populations with the aim of normalizing society – developed symbiotically and that, to the extent that modern law establishes the existence of a universal legal subject, law’s functioning is made possible by the homogenization of society through normalising practices. We are however fast moving towards the absolute limit of this normalizing complex. As normalising strategies are progressively unable to homogenise a social body which is increasingly composed by “fluid” subjects, modern law faces two interconnected challenges – a normative one (how can normalizing laws properly reflect the wills of a mass of differentiated fluid individuals?) and a functional one (how can normalizing laws effectively regulate such new protean social body?) – which put into question the very foundations of our legal discourse.

Judging from Experience forms part of Law and Literature and/or, more broadly, Law and Humanities, the interdisciplinary movement in legal theory that focuses on the various bonds of law, language and literature. The book presents a view on law as a humanistic discipline. It demonstrates the importance for academic legal theory and legal practice of a iuris prudentia as insighful knowledge of law that helps develop the practitioner’s practical wisdom. In doing so it builds on insights from philosophical hermeneutics ranging from Aristotle to Ricoeur. The building blocks it proposes for law as praxis are indicative of a methodological reflection on interdisciplinary studies in law and the humanities and of the development of legal narratology.The book engages with literary works such as Flaubert’s Bouvard and Pécuchet, Musil’s The Man without Qualities, and McEwan’s The Children Act to illuminate its arguments and offer a specific European perspective on the topics discussed. The author combines her understanding of legal theory and judicial practice in a continental-European civil-law system, and, within it, in the field of criminal law, to propose a perspective on law as part of the humanities that can inspire both legal professionals and advanced students of law. Thus the book is also a reflection of the author’s combined passions of judicial practice and Law and Literature.

Thirteen essays exploring Bruno Latour's legal theory from a variety of disciplinary perspectives – including a chapter by Bruno Latour responding to the arguments and critiques offered in each chapter. This book develops an exciting new vision for legal theory combining analytical tools drawn from Latour's actor-network theory developed in works like Science in Action, Reassembling the Social and The Making of Law with the philosophical anthropology of the Moderns in An Inquiry into Modes of Existence to blaze an entirely new trail in legal epistemology. Bruno Latour's writings in science and technology studies, anthropology, sociology and philosophy are well-known, but only rarely has his work in law been appreciated as a core element, and still less as an obligatory passage point for students and scholars of law. This collection demonstrates the urgency with which both of those omissions must be reconsidered.

Successive transformations have resulted in the emergence of a total technological world where old separations about ‘nature’ and ‘culture’ have declined. With this, the tendency towards technicity within modern law has flourished. There has often been identified a mechanistic essence to modern law in its domination of human life. Usually this has been considered an ‘end’ and a loss, the human swallowed by the machine. However, this innovative book sets out to re-address this tendency By examining science fiction as the culture of our total technological world, Living in Technical Legality journeys with the partially consumed human into the belly of the machine. What it finds is unexpected: rather than a cold uniformity of exchangeable productive units, there is warmth, diversity and ‘life’ for the nodes in the networks. Through its science fiction focus, it argues that this life generates a very different law of responsibility that can guide living well in technical legality.

Does there exist a Logos capable of limiting the very power of God? This question closely relates an inquiry arising in classical Greek philosophy to the theological knowledge originating in Jewish biblical exegesis. Two thoroughly unrelated worlds, one would say, yet a historical nexus between them existed, that created by Christianity, which has marked the destiny of our West. As Leo Strauss has masterfully shown, Christianity has been for two thousand years, despite its many inner contradictions, something like an interface between two hitherto unrelated worlds: Greek philosophy and biblical revelation. By reformulating them and turning them on their heads, it has shaped an entire civilization: our Western civilization, which is now drawing to a close. Thus, never has it been as appropriate as the present moment to come to grips with our opening question about the “limits of God”, or about the original laws of logic and ontology that somehow “limit” God’s very actions, since it arises from the profound need – prior to St. Paul unthinkable in concrete terms – to form a link between these two radically different worlds. Our West, with its devastating philosophical rationalism, its systematic Christian-Enlightenment repudiation of the Spinozist-Nietzschean concept of potency, from its very inception hinged on this question of knowledge of a law before God and above God. Today we must acknowledge that – precisely because of what this question, taken to its extreme consequences, implies – it was destined from its origins to end.

Outlawry and espionage would seem to be quite different phenomena, rarely discussed together. This book argues that they have something in common - that both involve exclusion from law. Challenging previous readings that view outlawry as a now-superseded historical phenomenon, and outlaws as figures of popular resistance, this book argues that legal exclusion is a longstanding and enduring means of supporting state power. Through close analysis of the literatures of outlawry and espionage, this book reads legal exclusion as a key theme in writing about outlaws and spies from the Middle Ages to the present day, arguing that literature plays an important role in representing and critiquing exclusion from law. The discussion draws on the work of Giorgio Agamben, Michel Foucault, Jacques Derrida and Eric Hobsbawm, and engages with a range of primary legal texts from the Middle Ages to the present day. Literary works discussed range from the medieval Robin Hood ballads, Shakespeare’s history plays, and versions of the Ned Kelly story, to contemporary writing by John le Carré, Don DeLillo, Ciaran Carson and William Gibson.

Ridding modernity of Christian political theology — and thus of the sort of false universalisms theology makes possible — requires a recognition that although this theology lies in ruins it is precisely our love of these ruins that makes us err by seeking a glorious sense of responsibility from within and for our contingent history. Modernity is thus mystified as consisting of a rupture with the medieval/traditional — even a rupture that gives rise to a parthenogenesis of a new human being and history. In this book we set aside the imaginary overcoming of tradition by modernity and, rather, suggest that tradition-in-ruins is where we find the contingent encounters of what has come to pass and what not, of the actual and the potential. Further, we argue that any attempt to ‘overcome’ our present situation through sovereign decision and action is to succumb to the temptation to take up the traditional western game of a ‘see-saw’, an never-ending oscillation between glorious but impotent sovereignty and mundane but actual implementation. Much of our book was written before the Greek anti-austerity referendum (July 2015), most of it before the Brexit referendum (June 2016), all of it before the Trump-election and the referendum on the Catalonian independence (January and October 2017). "Populism", the catchword associated often with one, some, or all of these events, was thus mostly absent from the reality that we had the occasion to observe at work in establishing the claims of our book. However, by December 2017, the situation has undergone a dramatic change that will let appear our general point, and even some of the associated, mostly historical points, in a changed and far sharper light.

Legal humanism has become deeply entrenched in most modern works on European legal history from the seventeenth century onwards and has been accepted with such blind faith by many modern scholars that few have challenged it. The consequence is that scholars who have accepted the traditional view have used it to substantiate larger claims about the death of Roman law, the separation between the golden age of a pan-European medieval ius commune and the fragmented reception of Roman law into the nation states of Europe, and the relevance of ‘dogmatic’ Roman law as opposed to ‘antiquarian’ Roman law.