Liviu Damsa (University of Warwick – School of Law) has posted The Five Logics of Contemporary Fractured State on SSRN. Here is the abstract:
Legal doctrine is pervasively indeterminate, but the dominant explanations locate the source in the wrong place, whether in the semantic open texture of rules, the contestability of principles, or the incompleteness of institutional plans. This Article argues that a deeper source of indeterminacy is structural. The modern liberal-administrative state is organized not around a single rationality but around five historically layered and mutually incompatible logics of rule, liberal-juridical, capitalist, bureaucratic, biopolitical, and sovereign. Each logic has a distinct carrier, success criterion, and moment of historical crystallization. Because law is the register in which these logics are articulated and contested, and because no doctrine or institutional design can reconcile imperatives that are individually indispensable yet mutually irreducible, legal doctrine is structurally indeterminate. Courts are therefore not failing to find the right answer; they are asked to satisfy incompatible success criteria that admit no joint solution. This paper develops an individuation test that distinguishes the five logics and excludes other candidate logics (democracy, technocracy, the administrative); a detection method that reads the logics off statutes, budgets, and lines of cases; and a falsification standard applied to the doctrinal record of major jurisdictions across both common-law and civil-law traditions. Recast as a structural rather than a semantic or interpretive phenomenon, legal indeterminacy reorients the analysis of judicial review, executive overload, and the recurrent oscillation of public-law doctrine, and counsels a jurisprudence of candor, naming, in each case, which logic is being sacrificed, and why.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum