Democracy, Legal Education and the Political

Introduction

The texts included in this volume are linked to the 9^th Central and Eastern European Forum of Young Legal, Political and Social Theorists (CEE Forum) which was organised in 2017 in Wroclaw under the title “Democracy, Academia and the Political.” The aim this volume is to examine the role of legal education in democracy, with particular regard to the political (das Politische, le politique) which we understand as the inalienable antagonism which is at the basis of every society.

The presented texts are based on the premise that mutual relation between the democracy and legal education are complex and overlapping. Democracy is a type of political regime with distinct institutions which helps to articulate and tame antagonisms. In this perspective, the legal education is a forum for this articulation and an area for discursive search for the solutions. On the one hand, democracy is a continuous object of research for the legal academia; legal theorists and constitutionalists engage in debates on the juridical foundations of modern constitutionalism, democracy and the rule of law. On the other hand, legal academics – in their capacity as university teachers – contribute to shaping future lawyers-citizens by instilling in them a certain vision of civic virtues and democratic values. More broadly, world of democratic politics has a tangible influence on how the academia functions, not least through laying down the legal framework on the organisation of universities, conferral of academic degrees, requirements regarding academic education, as well as by a conscious grant policy. These broad phenomena, which academics are perfectly aware of and experience in everyday professional life, have not, however, been hitherto sufficiently theorised, especially in and with regard to region of Central and Eastern Europe, especially within the context of the crisis of legal authority and democratic representation, the rise of populism, emerging questions regarding the application of the “rule of law” principle in practice, the role of the legal education and academia in the social and political transformations. The authors of each chapter hope to contribute to those discussions.

Experience and Community of Sense in Legal Education: A Pragmatic Approach

Abstract: Anti-foundationalism rejects philosophy’s traditional striving for the certitude of our cognition which used to be based on durable, unquestioned foundations. Accepting the thesis that such foundations are neither available nor necessary for human knowledge and social practices, this does not necessarily imply that we are abandoning the hope of obtaining a universal validity of claims that are made. Therefore, that there is a need to seek a new source of validation which allows reconciling the fact of plurality of views and values, on the one hand, and the normative claims to universality, on the other hand. The philosophy of pragmatism is perfect for this task in legal education. For pragmatists, the experience is habit formation, and habit formation is a mode of cognition. The article aims to show that using examples of hard cases in legal education we train more than just legal reasoning skills. We create a community of sense (sensus communis), an intersubjective community which is the source of validation of potential judgments. In order to communicate our judgments and solutions, we need to respect different ways of perceiving the world and inscribe our judgments into different perspectives, communicating them in a way that is comprehensible to others. The faculty of judgment can be reduced to the requirement of raising oneself above the ‘subjective conditions of an individual judgment’ by the capacity of taking note of other perspectives and making an attempt at situating oneself within those perspectives.

Keywords: legal education, hard cases, aesthetic of law, anti-foundationalism, the political

Introduction

In contemporary philosophy of law we can observe increasingly more visible anti-foundationalist tendencies, which creates a need to find a new basis for the validation of judgments. Anti-foundationalism rejects philosophy’s traditional striving for certitude of our cognition which used to be based on durable, unquestioned foundations.

In other words, they gain a historical consciousness of themselves and their own actions. This consciousness allows them to understand their own times and coordinate their actions directed at the future, thereby rejecting an uncritical acceptance of directives following from tradition. The sense of responsibility depends, therefore, on historically perceived freedom. The ‘novelty of modernity,’ this originality of times in which we live, rests upon the self-consciousness of our own historicity, our moral choices and our institutional solutions. It is an epoch in which we must accept responsibility for the normative systems which we have created ourselves. The irreversibility of changes brought about by modernity can be illustrated by the principle of modern subjectivity. Substantially understood reason is replaced by reason whose unity has a merely formal character. The Kantian separation of the reason into formally connected moments gives birth to three autonomous spheres of judgment, typical for modernity: truth, ←10 | 11→morality and aesthetics. Nonetheless, such judgments can no longer be guaranteed by a metaphysical vision of the world, nor can they be legitimised by a tradition which should be protected and cherished. From now on, the questions put forward by Kant: “What can I know?,” “What should I do?,” and “What can I hope?” (Kant 2009: 677 A805/B833), have a strictly anthropological grounding. These questions reflect the ontological instability of the ‘modern’ individual, whose subjectivity is torn between, on the one hand, the subject’s autonomy, and, on the other hand, the subject’s need for recognition by others. The irreversibility of changes leads to an inescapable tension between ‘what is’ and ‘what ought to be.’ For the supporters of the idea of modernity, this internal tension is an experience constitutive for our times, liberating in individuals the force constantly to transcend beyond visions of the world they have been born into, to create ever more perfect solutions and institutions. Conversely, for the critics of modernity, this constant tension resembles a situation of neurosis, in which commands originating from childhood prove to be outdated, dust-covered schemata, the destruction of which leads to a longing for an irreversibly lost security. The models of justification present in the philosophy of law, in order to support the generality and universality of adopted solutions, are based on a dichotomous opposition between “what is” (legal positivism, legal realism) and “what ought to be” (natural law). The few theories which make a programmatic attempt at eliminating this dichotomy also continuously stumble upon accusations of foundationalism, which they are unable to rebut (J. Habermas’s discursive theory of law, R. Dworkin’s philosophy of law as integrity), whilst theories which programmatically reject any form of foundationalism are accused of relativism and interpretive anarchism. According to Alessandro Ferrara, today, following the linguistic turn which has come to dominate contemporary philosophy, we feel even more the pressing need of securing a universal form of justification of proposals and institutional solutions which would not be based on discredited discourses: that of legal positivism or natural law (Ferrara 2008). This need, although it is broadly discussed both in political and legal discourse, should also be clearly put forward within the discourse of legal philosophy. For Ferrara and other philosophers who treat the linguistic turn seriously, it is clear that we do not have a direct access to reality and what is the object of our cognition are exclusively discourses which tell us more about ourselves. We have to become conscious of the fact that understanding or interpretation does not consist in the need to apply theory, but is always a question of a specific practice. Of course, practice does not consist exclusively of practical actions but also encompasses what William James refers to as the whole of human life, including everything that such life is composed of: emotions, intellectual passions, as well as moral needs (James 1907: 92). The ←11 | 12→language of law and the language of lawyers are also built around one rule which could be described and explained only by theory, and the relation between language and the world has no logical mapping.

The idea of a sensus communis in which all people participate is, according to Kant, a community of imagination which precedes any conceptual descriptions. The confrontation of an individual’s own judgments with the judgments of other individuals becomes the condition of the intersubjective comprehensibility of ←12 | 13→our enunciations. Should this possibility of confrontation not be available, our enunciations would become incomprehensible, they would cease to be judgments which are pronounced with regard to things available to others. In the case of an aesthetic judgment, we proceed from the singular towards the universal, and not from the universal towards the singular. The freedom of imagination reveals itself in a non-hierarchical game, a game free from any theoretical or practical determination by some specific conceptual content. It is characterised, above all, by the impossibility of using any concepts available a priori in the objective sense. In order to communicate our judgments and solutions, we need to respect different ways of perceiving the world and inscribe our judgments into different perspectives, communicating them in a way that is comprehensible to others. The faculty of judgment can be reduced to the requirement of raising oneself above the ‘subjective conditions of an individual judgment’ by the capacity of taking note of other perspectives and making an attempt at situating oneself within those perspectives.