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COUNTERPRESS | Law and Critique in Central Europe
Book | ISBN: ISBN 978-1-910761-01-4 | Explores the sources and potentialities of critical legal scholarship in a central European setting.
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Law & Critique In Central Europe:

Questioning the Past, Resisting the Present

editors

Rafał Mańko (University of Amsterdam)
Cosmin Sebastian Cercel (University of Nottingham)
Adam Sulikowski (University of Wrocław)

B & W 229 x 152 mm | Perfect Bound on Creme w/Matte Laminate | 242 pages | Paperback ISBN 978-1-910761-01-4 | E-book (PDF) ISBN N/A | 10 August 2016

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description

During the period of actually existing socialism, Central Europe was simultaneously the eastern periphery of the capitalist world-system and the western periphery of the Soviet bloc. Following the transition, it transformed itself into a unique amalgam of postcolonialism (vis-à-vis the former Soviet power) and neocolonialism (vis-à-vis the West). This double peripherality means Central Europe’s geopolitical situation is both problematic and traumatic. It is a space that conveys fantasies of conquest and normalization as well as reluctance and rejection. The present collection of essays brings together both established and emerging legal scholars from Central Europe to explore the sources and potentialities of critical legal scholarship in a central European setting, the heritage of an authoritarian past and its influence over central European law and politics, and the strategies of challenging the present legal status quo.

This book will be of interest to comparative lawyers, critical lawyers and critical theorists, sociologists of law, philosophers of law, specialists in transitional justice, and political scientists.

The volume provides a useful point of departure for rational discussion on post-transformation law as it demonstrates its genealogy and reveals its incoherencies. Such discussion can foster a better understanding of the problems of the transition to democratic society and possible ways of rectifying them. But beyond this particular context, the volume is an important contribution to social theory.

— Prof. Leszek Koczanowicz (Afterword)

Eastern European comrades have suffered a kind of ‘symbolic violence’ in the hands of their Western European counterparts. The invigoration of critique in the East must combine the ‘left-right division with the centre-periphery dichotomy.

— Prof. Costas Douzinas (Foreword)

No English-language monograph has, until now, approached such a broad spectrum of topics concerning the legal life of Central and Eastern Europe at the same time applying a radical and critical methodological perspective.

— Prof. Paweł Chmielnicki (Editorial Review)

We are witnessing the birth of a new strand of critical legal scholarship, drawing on the theoretical legacy of Western ‘crits’ and the unique historical experience of post-communist Central Europe.

— Dr. habil. Przemysław Kaczmarek (Editorial Review)

table of contents

Contributors

Foreword / On a Recent Change of Tone in Politics and Law (Costas Douzinas)

Introduction /  Law and Critique in Central Europe: Laying the Cornerstone (Rafał Mańko, Cosmin Cercel, Adam Sulikowski)

Chartering Central Europe as a LegalSpace
Giving Voice to Europe’s ‘Central’ Periphery
Sources of legal Critique in Central Europe
Challenging the Present
Overview of the Chapters

Ch. 1 / Government of Judges and Neoliberal Ideology: The Polish Case (Adam Sulikowski)

1.1 Introduction
1.2 A Genealogy of the Polish Constitutional Court
1.3 The Affirmative Amnesia of Polish Constitutionalists
1.4 Postmodern Conditions à la Polonaise

Ch. 2 / The Importance of Being a Linguist: Critical Legal Thought in Central Europe (Martin Škop)

2.1 The Confusion of Tongues
2.2 The Importance of Being a Linguist
2.3 The Critical Tradition in Central Europe: Spectres of the Forgotten
2.4 Introduction of Critical Ideas
2.4.1 Preferred Reading
2.4.2 Cultural Hegemony

Ch. 3 / Law out of Bounds: Legal Picnolepsy, Intellectual Austerity, and Romania’s Legal Past (Cosmin Sebastian Cercel)

3.1 Introduction
3.2 Picnolepsy, Experience and Exception:Forgetting in the World of Late Capitalism
3.3 From a History to Forget to the Forgetting of History
3.4 The Material of Forgetting: Law’s Unconscious

Ch. 4 / Demons of the Past? Legal Survivals of the Socialist Legal Tradition in Contemporary Polish Private Law (Rafał Mańko)

4.1 Introduction
4.2 A Blackout only Worth Forgetting: Narratives of the State socialist Past
4.3 Examples of State Socialist Legal Survivals in Polish Private Law
4.3.1 Introduction
4.3.2 Perpetual Usufruct
4.3.3 Cultivation Contract
4.3.4 Prosecutor’s Standing in Civil Proceedings
4.3.5 Preliminary References to the SupremeCourt
4.4 Conclusions: Demons of the Past or Useful Legal Institutions?

Ch. 5 / Feminist Legal Education in Croatia: A Question of Fundamentalism or a Fundamental Question? (Ivana Radačić)

5.1 Introduction
5.2 Feminist Approaches to Law and Legal Education
5.3 Approach to Law and Legal Education in Croatia
5.4 Marginalization of Feminist Perspectives in Croatian Legal Academia
5.5 First Year Introductory Subjects
5.6 Subjects Introducing Legal and Political Orders
5.7 Courses with a Subject Area of a Specific Relevance to Women
5.8 Exclusion of Feminist Perspectives from Scholarly Production
5.9 Conclusion: The Way forward

Ch. 6 / The Social Construction of Femininity in the Discourse of the Polish Constitutional Court (Hanna Dębska & Tomasz Warczok)

6.1 Introduction
6.2 The Social Construction of Reality—Towards Material Anthropology
6.3 Fields and the Production of Meaning
6.4 Social Changes after Political Transformation in 1989
6.5 Femininity as Constructed Judgment in the Case Law of the TK
6.6 Conclusions

Ch. 7 / Structural Violence and its Gender Dimension in PolishLaw (Lidia Rodak)

7.1 Introduction
7.2 Structural violence in law and its gender dimension
7.3 Official/Unofficial Law
7.4 Informal Rules and Gender Violence
7.5 Structural Violence in Polish Law
7.6 (In)formal Rules and Structural Gender Violence
7.7 Conclusions

Ch. 8 / A Technicist Perspective and the Contemporary Perception of the Role of Lawyers in Polish Society (Jacek Srokosz)

8.1 Introduction
8.2 The Technicist Approach in Social Science
8.2.1 The Meaning and Genesis of Technicism
8.2.18.2.2 Factors Reinforcing the Technicist Approach
8.2.18.2.3 The Technicization of University Studies in Poland
8.3 Technicism in Law
8.2.18.3.1 Technicist Law Teaching
8.2.18.3.2 Legal Policy and the Technicist Approach
8.2.18.3.3 Legal Positivism and the Technicist Approach
8.2.18.3.4 The Technicist Approach in Polish Legal Practice
8.2.18.3.5 Advantages and Disadvantges of the Technicist Approach in Legal Practice
8.4 Conclusions

Ch. 9 / From Sublimation to Naturalization: Constructing Ideological Hegemony on the Shoulders of Roman Jurists (Paulina Święcicka)

9.1 Introduction
9.2 Monumental Roman Law and the Ideology of Continuity
9.3 The Dominant Historical Narrative about Roman Law and Roman Legal Tradition: The Sacralization of the Legal Source and the Narrative Concerning the Roman Roots of Institutions of Contemporary Law
9.4 Impacts of the Ideology of Continuity of the Common Legal Traditionon Legal Practice—the Polish Example
9.5 Conclusions

Ch. 10 / The Role of Václav Havel in Czech Critical Legal Thought (Markéta Klusoňová)

10.1 Introduction
10.2 Legal Critique in the Czech Republic
10.3 Critical Legal Thought and the CLS movement
10.4 Václav Havel as the Main Figure of Czech Dissent
10.5 Havel’s texts
10.5.1 Český úděl? (The Czech Lot?)
10.5.2 Plays
10.6 Dissidents
10.7 Living in Truth

Afterword / Law Between the Spectres of the Past and the Impossible Object of Desire (Leszek Koczanowicz)

Index

author bios

Dr. Rafał Mańko received his master’s degree in law from the University of Warsaw (2003) and his Ph.D. in law from the University of Amsterdam (2014). He is external fellow at the Centre for the Study of European Contract Law at the University of Amsterdam and policy analyst at the European Parliamentary Research Service in Brussels. His research focuses on three main areas: the interplay between socio‑economic transformation and law; the theory and practice of legal interpretation; and, within the sphere of doctrinal research, private law (especially consumer contract law) and its Europeanization. He is the author of over 50 scholarly publications in peer-reviewed journals and edited volumes.

Dr. Cosmin Sebastian Cercel is Assistant Professor at the University of Nottingham (United Kingdom). He completed his doctorate in Comparative Legal Studies at the University Panthéon Sorbonne (Paris I) in 2012 with a thesis dedicated to the analysis of the nexus between law, politics, and culture in communist Romania. His main research focuses on genealogies of law and politics with specific reference to 20th century continental legal history. His current research aims to put under a critical scrutiny the dissolution of classical concepts of legality and constitutionalism in the historical context of the rise of authoritarianism during the interwar in Europe. His recent publications include several articles on the relation between law and authoritarianism as well as a psychoanalytical reading of the historiographical intricacies of the authoritarian past. He is now writing a monograph analyzing the jurisprudential aspects of state communism.

Prof. Dr. Adam Sulikowski is full professor of legal theory at the University of Wrocław (Poland) and head of the Legal Theory Department at the University of Opole (Poland). His research focuses on applications of postmodern critical theory within the legal field. His most recent monographs (all in Polish) include Post-humanism and Jurisprudence (2013), Constitutional Discourse: The Triumph and Crisis of Modern Episteme (2011) and The Contemporary Paradigm of Constitutional Justice and the Crisis of Modernity (2008).

Dr. Hanna Dębska is a lawyer and sociologist, specializing in critical sociology of law and constitutionalism. She is Assistant Professor at the Institute of Political Science of the Pedagogical University in Cracow where she teaches law, and a PhD candidate in sociology at the University of Warsaw. She is the author of numerous articles in peer-reviewed Polish journals and a monograph (in Polish) on the symbolic power of the Polish constitutional courts, recently published by the Polish Parliament’s publishing house (Wydawnictwo Sejmowe). She was awarded the First Prize for her PhD in law by the Polish Academy of Sciences (2015) and a ‘START’ Scholarship for Young Scholars by the Foundation for Polish Science (2016). Her current research focuses on a sociology of knowledge approach to Polish legal academia.

Dr. Markéta Klusoňová received her PhD degree in legal theory at the Masaryk University, Brno, Czech Republic in 2016. She currently works as assistant professor at the Department of Legal Theory of the same university. Her research focuses on the use of fiction literature as an argument in judicial decisions. She is also studying towards a bachelor’s degree in theatrology at Masaryk University, focusing, inter alia, on law as a form of ritual theatre, the role of theatre in legal education, as well as legal aspects of street art performances.

Dr Ivana Radačić is a senior research associate at the Ivo Pilar Institute of Social Sciences in Zagreb, and a part-time lecturer at the University of Zagreb and the University of Osijek. She was a visiting lecturer at UCL, European Inter-University Centre for Human Rights and Democratisation, UN University for Peace (Costa Rica), and a research fellow at the University of Kent and the University of Melbourne. Her research interests are feminism and human rights, and gender, sexuality, and the law. She has published widely in these areas. She is a member of the EU COST Action Comparing European Prostitution Polices and a founding co-chair of the ESIL interest group on International Human Rights. She worked at the European Court of Human Rights and is the CoE expert on human rights.

Dr. Lidia Rodak is an assistant professor of legal theory at the University of Silesia Faculty of Law (Katowice, Poland). She holds an LL.M. from the European Academy of Legal Theory in Brussels and a Ph.D. from the University of Ghent. She conducted her post-doctoral research at the University in Palermo working on the topic of objectivity in law. Her current research focuses on objectivity and subjectivity in law, with a focus on feminist jurisprudence and gender studies. Her monograph on Discursive Objectivity is forthcoming with Peter Lang.

Dr. Jacek Srokosz is an associate professor of legal philosophy at the University of Opole, Poland. He holds a master’s degree and a PhD in law from the University of Wrocław. His research interests cover legal education (including critical legal education), the social role of lawyers, solidarism, communitarianism, as well as the legal and political philosophy of the authoritarian regime in Poland in the 1920s and 1930s. He is the author of a monograph W stronę silnego państwa. Koncepcje ustrojowe prawników obozu rządzącego w Polsce 1926–1939 [Towards Strong State. The legal system in thought of the lawyers associated with the governing camp in Poland 1926–1939] and of numerous articles in peer-reviewed Polish academic journals.

Dr. Martin Škop is a lawyer and a sociologist. He is an assistant professor at the department of legal theory at Faculty of Law, Masaryk University, Brno, Czech Republic. His research is concerned with general theoretical problems of law, jurisprudence, legal sociology and legal methodology, with a main focus on law and literature, as well as law and language. He has published four books (in Czech): Law and Violence; Law in Postmodern Situation; Law and Passion; Law, Language and Story. At the time he holds the position of a vice dean at the University of Brno Faculty of Law and is becoming a promising pianist.

Dr. Paulina Święcicka is Assistant Professor in the Chair of Roman Law at the Jagiellonian University in Kraków, Poland. She is the author of over 30 articles in Polish and international peer-reviewed academic journals and collective monographs.  Her research focuses on Roman law and the classical tradition, philosophy of law (with a particular focus on the legal argumentation of Roman jurisprudence), sociology of law, as well as rhetoric in its ancient and modern dimensions.

Dr. Tomasz Warczok is a sociologist, currently Assistant Professor at the Institute of Philosophy and Sociology of the Pedagogical University in Kraków and researcher at the Institute for Social Studies at the University of Warsaw, Poland. He was a visiting scholar at the University of California, Berkeley (2016). He has published a number of articles in peer-reviewed Polish and international journals, including Current Sociology, Polish Sociological Review, Studia Sociologiczne and Kultura i Społeczeństwo. His current research focuses on the sociology of social sciences.

how to cite

Example using Chicago Manual of Style:

Footnote/Endnote:

Rafał Mańko, Cosmin Cercel, and Adam Sulikowski, eds., Law and Critique in Central Europe: Questioning the Past, Resisting the Present (Oxford: Counterpress 2016)

Bibliography:

Mańko, Rafał, Cosmin Cercel, and Adam Sulikowski, eds., Law and Critique in Central Europe: Questioning the Past, Resisting the Present. Oxford: Counterpress, 2016.