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Damjan Kukovec

This chapter argues that Brexit is a collective failure of the legal profession. The existing legal narrative of the European Union implies that power relationships reflect the division of institutional and sovereign competences. This misrepresentation was passed onto the general public who framed their personal frustration in this conventional narrative and demanded ‘taking back control’. The vote for Brexit resulted from a combination of four key features of this narrative – the ethos of interdependence, the promise of inclusion of the other, the claim of people’s political incapacity and the policymaking in terms of the extent of national sovereignty. This framework does not offer an explanation of the United Kingdom’s true position in the Union and in the world as well as gives false hope to those belittled and excluded. This chapter suggest an alternative account of the Union and calls for a new research agenda needed for the future of Europe - inquiring into the role of lawyers in the deconstruction of the European Union.

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Damjan Kukovec

This chapter will explore the intellectual history of thinking about subject-object dialectics in social and political theory that can assist us in seizing the transformative possibilities of society today. What does the subject-object dialectic teach us about the construction of legal subjects and how does it help us address and resist the existing global hierarchical structure? This chapter will explore how some understandings of the subject-object distinction in legal and social theory lead to misrepresentation of the phenomena of law and governance which results in analytically deficient proposals for social change in favour of hierarchically subordinate subjects. In particular, it will address the idea of political incapacity of weaker subjects and challenge the idea of the political as a goal of progressive social change. Furthermore, it will address the notion of law as background rules to bargaining and the importance of change in the background rules affecting the legal position of ‘weaker parties’. It is generally assumed in legal consciousness that the identity of the weaker party can be generalised and predetermined. However, it will be argued that the empty abstraction of the ‘weaker party’ often appears as an eternal entity for the sake of which we need to enforce social considerations or act paternalistically. It will be argued that the notion of ‘weaker party’ is subject to constant reinterpretation and that a regulatory regime, for example competition law or private law regime, in favour of the weaker party is bound to struggle with over- and under-inclusion. The chapter will conclude that, rather than devising normative regimes in favour of general classes of ‘weaker parties’, new tools need to be developed for the reconstruction of (hierarchically) constituted subjects. Keywords: subject-object dialectic, hierarchical structure