Via Legal Theory Blog, the abstract for Professor Penelope Pether's (Villanova University School of Law) new paper: Militant Judgment?: Judicial Ontology, Constitutional Poetics, and 'The Long War' (pdf):
This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou's Being and Event, 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 the criminal law. The Article proposes an ontology and a poetics of judging equal to the demands of the long war, or of post-9/11 constitutionalism on subjects serving on Western Anglophone common law constitutional courts.
Drawing in particular on the anti-terrorism control order jurisprudence of Justice Sullivan of the English High Court and the Chapter III judicial power jurisprudence of the Australian High Court, in particular as the latter deals with what is in the U.S.A. euphemistically called the preventive detention of sexually violent predators, and the indefinite detention of Islamic asylum seekers in the aftermath of 9/11, the article concludes that Australian High Court Justice Michael Kirby's recent jurisprudence of dissent instantiates a militant procedure of common law constitutional judging of others.
The Article suggests that the transformative praxiological potential of Being and Event lies in the radical uncertainty that this philosophy both implies and depends on, its anxiety, obsession and desire, and that the necessary uncertainty of the subject as to the occurrence of an event is at the heart of what might be the virtues of Badiou's account of being and event for a theory of post-9/11 constitutional judicial ontology. Militant judging recognizes both the constitutional judge's - and constitutionalism's - other, and in judging his equals those others on whom he passes judgment, the militant judge inscribes equality, becomes equal to the event.
It's not that this flavor of philosophy (anti-postmodernist, apparently), or this style of prose, exemplifies legal scholarship today. Most legal scholarship isn't technically philosophy. Rather, this, like most of the articles I skim every week, is just . . . irrelevant. Immaterial. Not in the sense of, "Yeah, right, I'll never use that in my practice," but in the sense of, "This isn't really knowledge."
From my view outside the citadel, the problem with legal scholarship is that there are too many theorists and not enough empiricists. There appears to be more empirical work being done today than even 16 years ago when I graduated from law school, but too much legal scholarship can still be boiled down to, "Here is what I think we should do; now let me construct a theory to rationalize it." It needs more data discipline.
Some of those theories are pretty wacky, too. Legal scholars unfortunately can't agree on what's whacky and what's not, and therefore end up letting the modern equivalent of alchemists, astrologers and faith-healers share the bench with people doing useful work.
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