jusrisprudence-2.png
Episode 18: Jurisprudence Part 2 / February 12, 2021

With Dr Emilios Christodoulidis

Hosted by Jasmine Hunt Keir Aitken

Edited by Constantinos Stylianou

Posted in Main feed Philosophy of Law

In this second episode of two, we are joined by the Chair of Jurisprudence at the University of Glasgow, Dr. Emilios Christodoulidis, who shares his thoughts with us on the philosophy of law.

We discuss the function of law in our society and where our legal system is misaligned with our political and economic systems. We hear about when Coca Cola took on the Bolivian government, and won. Finally, Emilios gives us a brief history of our rights and we take a moment to think about what our rights may look like in the 22nd Century.


TIMESTAMPS:

00:44 - How critical theory relates to legal philosophy

02:44 - What the function of law is critically and practically

04:14 - How law relates to political and economic systems: the difficulty with having a national political system
and an international economy and how to equalise the playing field with regard to the problems which
arise with this misalignment

08:06 - How the law works internationally

10:10 - International arbitration and a dissection of rights: property/social/personal/political rights

15:20 - What are the next set of rights for the future? Will there be progress?

17:00 - Why it is hugely important to be able to think of alternatives and contest ‘givens’, identify sources
which push us down particular channels and the need to question these sources.


Transcript:

Dr. Emilios Christodoulidis: I could give you other examples that would really make you nauseous but…

-----

Jasmine Hunt: Welcome to another episode of Thoughts. I’m Jasmine.

Keir Aitken: And I’m Keir!

JH: And today’s episode will be the second of two episodes discussing the philosophy of law with Dr. Emilios Christodoulidis.

KA: Today, we will be discussing where the critical theory that we talked about last time meets the real world.

JH: So, here are some thoughts on law and its practical relation to politics, society, and the economy.

[another music swell]

JH: Thank you very much for joining us again on this episode of Thoughts. We left the last episode talking about the importance of understanding the nature of law and how critical theory applies to law in practice. So to dive right in, what is critical theory and how does it relate to legal philosophy?

EC: Yeah, that’s a difficult question to dive right in wit, but thank you. I suppose critical theory is usually associated with the idea that theory and philosophy needs to have some practical or even political significance. But the reason we engage in philosophical thought is because we want to change something about the world, to better it.

Okay, and if you like the, the most concise definition of critical philosophy comes from Marxand the eleventh thesis on foiba where he says ‘philosophers have for too long tried to understand the world, the point is to change it.’

Okay and this has of course been very often ridiculed but Marx is not saying that we should stop trying to understand the world — that would be a crazy thing to say — he is saying we need to try and understand the world in a way that also changes it because it submits what we think about the world to what we might call a ‘tribunal of reason,’ yeah? We try to make sense of it. And in trying to make sense of it, to rationalise it, we’re improving it. Okay so that’s what he takes from Hegel; the idea that the real and the rational are coincident, that something is real because it is rational, because we can make sense of it, and we are not just the hostages to to accidents, that we just assume we have to live with. We try and make sense of our institutions and we make sense make sense of what we have before us. So that’s critical theory, the idea that the theory is an — involves an engagement in the world with a very clear dimension, very clear emphasis to improve it.

JH: So, critically and practically then, what is the function of law in society, if there is one clear function?

EC: There isn’t one clear function; at least, people contest it. And of course if you and also politically speaking, depending on where you’re coming from, you will read different functions. I think there’s one that we can agree on, I think that most of us would say that the law is there to order society, to reproduce stable expectations about where we stand, what our rights are, yeah? So there’s a kind of sense in which you create in law protected expectations. Protected expectations because if someone violates them, the courts will step in and correct the violation — yeah? — So there is that kind of sense that, at least one level, the function of law in society has to do with protecting our expectations and usually we identify the rule of law as part of that.

But of course, in order for law to have that function, it has to relate to the other systems in society, yeah? Political systems, our economic systems, our systems of industrial relations, yeah? So that in all respects, the law is actually all the time linking its way of doing things with these other fields.

JH: So could you go into more detail on how law relates to political and economic systems?

EC: Yes, um, in terms of the connection to politics, I suppose the most obvious area is in terms of how the law organises our political processes, yeah? So the right to vote, for example, is a legal right, it’s also a political right, okay its understood also from the political side, but it is also sanctioned in law. So the process of legislation are legal processes. The constitution in fact that we have is a document that straddles law and politics. It gives a legal expression, if you like, to the exercise of political power. It allows our politicians to do certain things, it bans others. These are all legal devices, yeah? These are all to do with legal needs [means]. Because on one level, it is very obvious; every time you buy a bus ticket, you engage in a legal transaction with the bus company, and an economic transaction at the same time. So we can see how law and the economy at that level are linked very tightly.

But one of the problems we have is that it has become increasingly difficult to use law to control economic life. And that’s because economic life has gone global, whereas the law has remained very much, not completely but predominantly, national. And here we have an asymmetry that is created between an economy that has gone global and a political and legal system that is largely national. Do you see the problem that we have? At the national level, economic, political, and legal systems were aligned; this misalignment between the economy and the law has created a situation where we are forced, okay, into what is usually called ‘the race to the bottom.’ To withdraw protection, to withdraw rights, to withdraw the conditions of dignified work.

KA: So at one point in time, political system, economic system, legal system, all at a national level, all running in tune with each other; the economic system has run away, it’s globalised. Where do we go from there? Do we have a global legal system? Is that the only way to equalise the playing field?

EC: That would be a solution. We don’t have mechanisms for political will to express itself at global level. Even at federal level, you have problems. Look at the huge problems of democratic deficit in Europe. In any case, it’s very difficult to have political, legal processes at the global level for all sorts of reasons, many of them historical. We are all exposed to the way in which nationalism has completed weakened the field of international solidarities; the idea that there is something like an International solivatriy, like association at a global level, today sounds completely fanciful. No one thinks in these terms. People did think in these terms after the war, much more, yeah? So the whole idea of joining other nations was very much about bringing about those conditions at supranational level. But today, it’s very difficult to think of that. Difficult but not impossible I should say, huh? We should certainly not give up.

KA: I appreciate that.

JH: So how does the law work, internationally then?

EC: Well, it certainly works but it doesn’t work in the way in which, as I explained, a political will might take effect internationally. The way it works is through treaties, through agreement, through international arbitration. In situations where investors take on countries in processes that outside any particular jurisdiction and where you might have, for example, a giant corporate giant like Coca Cola taking action against Bolivia for protecting its national resources; in this case, it involved water, the protection of water. What had happened in this situation was that Bolivia had nationalised its natural resources to the detriment of the investor, which was the corporate company, the corporation that had invested in Bolivia. So there are millions of examples like that, and what is completely arbitrary in these situations, what escapes jurisdictions, the guarantees that we usually associated with law — the question of who has standing in law, who has jurisdiction, under what conditions might someone intervene, what counts as the common interest. All these questions that organise the legal process are up for grabs. As a results, this is as shallow a legality as you can get, if you allow me that expression, these are surface expressions of a law that has to be understood as an institution that is a great deal more robust than that.

KA: It’s insane to hear of cases like coke versus Bolivia. It’s just — it’s just mind-blowing and I was wondering whose rights are even being represented here?

EC: [slight chuckle] yes, my problem with the Bolivia example, and that’s why I’d much rather go into, um, is that strictly speaking no one cares about rights in a situation of international arbitration. They don’t give a damn. These people are just saying ‘look you’ve signed a treaty that protects our investment here and suddenly you’ve gone back on it just because you have a crazy leftist in power.’ And its just a situation of blackmail, basically, so you don’t really have — it’s not as if there is a reasonable rights claim versus a reasonable counterclaim. This is just… it’s horrific but, eh, [wee chuckle]… it is, you see, it’s kind of — it’s no longer about law really. It’s just this game that’s played in the name of law, but it’s actually called international arbitration. But it’s… it’s disgusting.

Perhaps we shouldn’t rush to look at that as paradigmatic of what’s going on today in law, even on the condition of globalisation, through you’re right to call it mind-blowing and you’re right to be particularly worried about these developments. There is something about rights that still resonates, that still matters to people, and we are today at the point in history where there has been a development, a development that has lasted actually centuries, where various generations of rights succeeded each other to bring us to a point, at least in the 20th century — typically after the second world war — where societies decided to protect the dignity of their people and resorted to rights to amen our societies humanely functional, because they would protect people’s education, they would protect people’s health, to give people a home. Now these were grand achievements. They come with a generation of rights that we call ‘social rights.’ And they come on the back of other types of rights. So if I can just give you a very brief account:

The first individual rights that we have are property rights, and what came to be known as civil rights to habeas corpus, right? That is the right to one’s person, okay. The idea that you couldn’t be imprisoned without a reason, that you couldn’t be tortured, that you had a right to your person. And this came hand in hand with the protection of property rights, typically from the absolute reign of the monarchs. So the first generation of rights, civil and property rights, come together, 17th-18th century. 19th century is a century where a new generation of rights, political rights, become central. This is the right to political participation, the broadening of the vote, the right to belong to a political party, to stand for office, and of the rights of political speech. And the whole idea of these generations of rights is that one would complement the other, that by the time we come to the third generation of rights, social rights, these would be seen in tandem, would complement each other, give us the kind of status that we deserve as citizens in a society that protects its members.

Now, is that where we are now? The answer has to be: no. Because there have been a number of steps back: the social rights has clearly been compromised. They were always a fragile achievement, but they have been compromised. They are compromised today when they clash with property rights. You have situations, that we had a series of cases before the European courts a decade ago that signalled a clear defeat of social rights before the right of entrepreneurs to move their capital around. So the final generation of rights, the rights that we call social rights, typically the right to work, the protection of work — that of course includes also the right to strike because the right to strike is their to protect workers — the right to assembly and association, that is the right to form, to belong to trade unions; that’s a typical social right. As is the right to housing, the right to education, the right to healthcare. Now these are rights that became institutionalised after the second world war, and they are as close as we came to making our, the post-war societies humanly functional by recognising that we need to protect the dignity of everyone.

KA: I think an important thing to aspire to! So you’ve given us property and personal rights, leading into political rights, then into our social rights. What’s the next set in 22nd century world — what’s our next set of rights?

EC: Well, I note in your narrative that the real sense that there has to be progress. I don’t think we can take that for granted at all. I think the last thing we face today is progress. In fact, we have had a regression in terms of a clear violation of social rights; the idea that they have become unaffordable. Or political rights: we have, we are faced with an extraordinary degeneration of, of the political, with the rise of populism and the rise of neofascism all across the world. So I think the key question for us and for critical theory, with which we began our discussion today, is how we might defend the achievements we already have. Let us not move forward, let us move back, and try and rescue something of that vocation that accompanied the institutionalisation of solidarity in the forms of social rights.

JH: Wow… we’ve covered such a plethora of information in such a short space of time and it’s been really wonderful to hear you talk about your specific interests, so thank you. But we do still have one last thing left to ask you, one juicy question, which is: what grinds your gears?

EC: Well, thank you too for this opportunity, I should say and so this kind of initiative is absolutely great, and thank you for all your attention.

I suppose I’ve sort of answered it in terms of what I’ve said particularly during today’s session, which is that, I think that it’s hugely important to be able to think of alternatives, to be able to think of alternatives, to be able to contest the sorts of things that are parcelled out as givens to us, and I think that philosophy places us in a particular position to do that, because it allows us, if you like, to — clearly not just philosophy — but from a philosophical point of view, to abstract, to be able to reconfigure, to be able to identify the sources that push thought down to particular channels, and where we can to disrupt this channelling of thought.

JH: Fantastic, thank you so much for giving us all of this new knowledge; it’s been really, really fantastic hearing about it and so thank you very very much for coming on to Thoughts.

KA: That was right on at the end there, thank you very much.

EC: Okay guys, well thanks very much you too, huh? It’s been really nice. I would suggest a drink at some point, but maybe once all this madness is over.

JH: Absolutely!

KA: [in unison] oh, absolutely

[chuckling as the theme music swells]

JH: Thank you for joining us on today’s episode; we hope you enjoyed it.

KA: And don’t forget to follow us on all of our social medias. Until next time, thanks for joining.

Transcript written by Adam Nicholson