Academic

Viljanen on the Ontological Politics of Law

By Lawrence Solum

Mika Viljanen (Faculty of Law, University of Turku) has posted Law and Ontological Politics (NoFo: Journal of Extreme Legal Positivism, No. 6, pp. 5-18, 2009) on SSRN. Here is the abstract:

The article discusses the ontological politics of law.

And from the paper:

In this sense, the notion of ontology bears an affinity to that of ideology, but it adds important connotations lost if we just resort to talk about mere ide- ologies. Critical legal studies scholars were vehement in pointing out that legal doctrines and rule interpretations often involved ideological choices. Law con- tained ideologies, they argued. In order to formulate a norm, one had to pick an ideology, or a tacit social theory. The goal of the ontology speech is largely the same. What the talk about ontologies that I propose may add to the ?ideology speech? is a heightened awareness of the gravity of legal speech acts. An ontology is not an ideology. An ontology is a world, not some technical blueprint that stays aloof and disconnected from the real. Law not only reflects a false consciousness, it enacts them, makes them real. A legal concept with its concomitant ontology does not ? as an ideology might do ? mask the real reality, it is a reality that is enacted. The legal world matters, if more than it would do, because it enacts and performs a real world.

Second, the idea that even legal concepts are enacted and performed in networks of complex associations, theories, convictions, things, intermediaries, actors and actants, accentuates, I think, the fragility of the legal world. The net- works are long, winding and intricate, that is indisputable. Concepts may have impetus invested in them by the institutional support of legal sources, doctrine, or general acceptance. But the network structure may call in question the signifi- cance of all institutional support. The network may prove to be ballast instead of an asset. Once the focus shifts from the brute fact of institutional support to the networks of ontologies, decisions, and intermediaries that build the things that give institutional support to other things, a new plane for analysis and criti- cism appears.

Full post as published by Legal Theory Blog on February 21, 2011 (boomark / email).