Law as Ouroboros

Abstract

Despite law’s many failures, we see it being deployed everywhere both at the domestic and the international level. This thesis approaches that puzzle and attempts to provide a better understanding of the role of law in society through the concept of juridification. I conceive the problem of juridification of Western societies in qualitative rather than quantitative/managerial terms. This conceptual strategy allows me to challenge the literature on de-regulation and alternative dispute resolution mechanisms concluding that, contrary to common wisdom, these counter-movements to juridification actually reinforce it. I argue that the coupling between judicial review and the constitutionalisation of rights produced a qualitative change in the role of law that enabled the legal system to supersede the political one. This leads to a lock-in situation where the legal system has the capacity of deciding its own reach, thereby becoming, with qualifications, autopoietic. This historical narrative also shows that, contrary to autopoietic theory, juridification is not a purely legally endogenous process. The expanded role of law in society is not without problems. I show how European case law extended state liability in domestic legal orders replacing the once predominant public-interest justifications by the one size fits all” rights talk. For the same reason, while often heralded as a sign of progress, I demonstrate how a rights-based social order is plagued by practical problems. In particular, I focus on the way in which three projects advanced to solve conflicts of rights / balancing, specification and trumps / hide its fundamental agonistic nature. Finally, I evaluate recent conceptualizations of international juridification. I focus on: (i) the inadequacy of the evolutionary metaphor; (ii) the complications behind importing systems theory to the international level and; and, (iii) the lack of a political community and a shared meaning of what law is.