Governance, Proceduralisation and Justice: Some Challenges to the Legal Paradigm
Title: Governance, Proceduralisation and Justice: Some Challenges to the Legal Paradigm
Author: HENDRY, Jennifer
Citation: Law and Critique : Special Issue on Governance, Civil Society & Social Movements, 2008, 19, 3, 345-361
External link: http://0-www.springerlink.com.biblio.eui.eu/content/l1u6l7363262uh0g/?p=76ccff9b0db5473d96bc19a3158b9887&pi=8
In 1989, Rudolf Wiethöltner alleged that we are witnessing a ‘failure of law’ in terms of its obligation to achieve ‘just law’. This paradox at the very heart of law – in essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease trying to attain this goal – has been accommodated to a degree by the utilisation of a proceduralist paradigm that relies upon the contingency of governance, but this is now coming under renewed scrutiny. This article will put forward three arguments in this respect. The first section will argue that the turn to governance and the resultant procedural paradigm are both consequences of the ‘failure of law'; the second will point to the inherent weaknesses of the procedural paradigm that can be said to stem from this very failure; while the third will discuss some of the challenges issued to those still reliant upon the legal paradigm.
Subject: the ‘common’; contingency; failure of law; governance; justice; legitimacy; potentia; proceduralisation
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