PARADOXES

AND INCONSISTENCIES IN THE

LAW

Is law paradoxical? This book seeks to unravel the riddle of legal paradoxes. It focuses on two main questions: the nature of legal paradoxes, and their social ramifications. In exploring the structure of legal paradoxes, the book focuses both on generic paradoxes, such as those associated with the selfreferential character of legal validity and the endemic incoherence of legal discourse, and on paradoxes that permeate more restricted fields of law, such as contract law, euthanasia, and human rights (the prohibition of torture). The discussion of the social effects of legal paradoxes focuses on the role of paradoxes as drivers of legal change, and explores the institutional mechanisms that ensure the stability of the law, in spite of its paradoxical makeup. The essays in the book discuss these questions from various perspectives, invoking insights from philosophy, systems theory, deconstruction and economics.

Paradoxes and Inconsistencies in the Law

Edited by

OREN PEREZ and GUNTHER TEUBNER

HART PUBLISHING OXFORD AND PORTLAND, OREGON 2006

Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA

The editors and contributors jointly and severally 2006

The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work.

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ISBN-13: 978-1-84113-541-0 (hardback) ISBN-10: 1-84113-541-0 (hardback)

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Contents
List of Contributers .................................................................................vii Introduction .............................................................................................xi Part I Introduction..................................................................................1 1. Law in the Air: A Prologue to the World of Legal Paradoxes OREN PEREZ ....................................................................................3

Part II Generic Paradoxes .....................................................................39 2. 3. 4. Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethlter GUNTHER TEUBNER.....................................................................41 Just-ifications of a Law of Society RUDOLF WIETHLTER .................................................................65 The Reference of Paradox: Missing Paradoxity as Real Perplexity in Both Systems Theory and Deconstruction JEAN CLAM ....................................................................................77 The Political Origins of the Modern Legal Paradoxes NIR KEDAR ...................................................................................101 The Institutionalisation of Inconsistency: From Fluid Concepts to Random Walk OREN PEREZ ................................................................................119

5. 6.

7. Between Ritual and Theatre: Judicial Performance as Paradox LIOR BARSHACK .........................................................................145 8. The Paradoxes of Justice: The Ultimate Difference Between a Philosophical and a Sociological Observation of Law FATIMA KASTNER .......................................................................167

vi

Contents

Part III Local Paradoxes .....................................................................181 9. Expectations and Legal Doctrine ERIC TALLEY ................................................................................183

10. Equality as a Paradoxical Ideal or Respectful Treatment versus Equal Treatment YITZHAK BENBAJI.......................................................................205 11. Mediating Paradoxically: Complementing the Paradox of Relational Autonomy with the Paradox of Rights in Thinking Mediation MICHAL ALBERSTEIN .................................................................225 12. Autopoiesis, Nihilism and Technique: On Death and the Origins of Legal Paradoxes SHAI LAVI......................................................................................247 13. The Paradox of the Law: Between Generality and ParticularityProhibiting Torture and Practising it in Israel ROEI AMIT....................................................................................275 Index

List of Contributers
Michal Alberstein Michal Alberstein, is a lecturer in jurisprudence and conflict resolution in the faculty of law at Bar-Ilan University, where she also supervises a community mediation clinic and takes part in an interdisciplinary graduate program for conflict management and negotiation. She wrote her doctoral dissertation at Harvard law school (1996-2000) and won the Byes fellowship for excellent doctoral candidates. Her current research deals with theories of law and conflict resolution and their intellectual roots; multiculturalism and its relation to negotiation and mediation; and representations of conflict resolution in literature and film. Dr. Albersteins book, Pragmatism and Law: From Philosophy to Disputes Resolution (UK 2002), deals with the intellectual roots of Alternative Dispute Resolution (ADR). In 2001, Dr. Alberstein was awarded the prestigious three-year Yigal Alon Scholarship, considered the most competitive scholarship for young outstanding Israeli academics. Roei Amit Roei Amit, received his doctorate from the Ecole des Hautes en Sciences Sociales in Paris, for his dissertation on Constitutional Paradoxes, in 2002. He holds an LLB from the Tel-Aviv University, BA in comparative literature, and MA in poetics and semiotics from the TAU Humans Science Faculty, he collaborated with UNESCO in the domains of Human Rights and Law. He is currently teaching at the Paris Center for Critical Studies. Lior Barshack Lior Barshack is an associate professor at the Radzyner School of Law, The Interdisciplinary Center, Herzliya, Israel. His work focuses on laws relations to art, religion and kinship. The article in this volume forms part of a series of articles devoted to laws place in civil religion. Other articles in this series include Notes on the Clerical Body of the Law 24 (3) Cardozo Law Review (2003), and Constituent Power as Body: Outline of a Constitutional Theology Forthcoming in the University of Toronto Law Journal.

viii

List of Contributers

Yitzhak Benbaji Yitzhak Benbaji is a lecturer in ethics, philosophy of criminal law and philosophy of language in the law faculty and in the philosophy department at Bar-Ilan University. He currently explores the moral basis of the right of self-defense and its relation to the just war theory (see his Culpable Bystanders, Innocent Threats and the Ethics of Self-Defense, forthcoming in The Canadian Journal of Philosophy). In addition, he studies the political ideal of equality and its place in an adequate theory of political justice see his The Doctrine of Sufficiency: a Defense forthcoming in Utilitas and his paper in the present volume. His 2001 Hebrew University dissertation won the Bernard Bloomfield Memorial Endowment prize for an outstanding dissertation and he was a fellow in the Institute for Advanced Study, Princeton in 2000-2002. Jean Clam Jean Clam is a CNRS (Centre National de la Recherche Scientifique) senior research fellow working in Berlin and Strasbourg. His main publications are: Droit et socit chez Niklas Luhmann. La contingence des normes, Paris, Presses Universitaires de France 1997; (with Jean-Luc Gaffard), Norme, fait, fluctuation. Contributions une analyse des choix normatifs, Genve, Droz 2001; Was heit: Sich an Differenz statt an Identitt orientieren? Zur Deontologisierung in Philosophie und Sozialwissenschaft, Konstanz, UVK, 2002; Trajectoires de limmatriel. Contributions une thorie de la valeur et de sa dmatrialisation, Paris, CNRS Editions 2004; Kontingenz, Paradox, NurVollzug. Grundprobleme einer Theorie der Gesellschaft, Konstanz, UVK 2004. Fatima Kastner Dr. Fatima Kastner studies philosophy, sociology and law at the universities of Frankfurt, London and Paris. Fatima Kastner is a senior research fellow at the Hamburg Institute for Social Research and a lecturer at the institute for social sciences at the University of Hamburg. Main research fields: contemporary continental philosophy and social theory, especially systems theory and legal theory. Publications (a.o.): Ohnmachtssemantiken: Systemtheorie und Dekonstruktion. Zum Primat der Paradoxie von Luhmanns Systemtheorie und Derridas Dekonstruktion am Beispiel ihrer autologischen Rechtskonstruktionen. Frankfurt/Main 2002. Luhmanns Souvernittssparadox. Zum generativen Mechanismus des politischen Systems der Weltgesellschaft, Hamburg 2005. Co-Editor of: Niklas Luhmann, Law as A Social System. London 2004. Nir Kedar Dr. Kedar teaches law and legal history at the Bar-Ilan University Faculty of Law, and is a fellow at the Ben-Gurion Research Center, at the Ben-Gurion

List of Contributers

ix

University of the Negev. Dr. Kedar has an LL.B. and a BA in history from Tel-Aviv University and an LL.M. and S.J. D. from Harvard University. His main fields of interest are Israeli, North-American and modern European legal history, Israeli history, comparative law, the study of legal systems and traditions and legal theory. Dr. Kedars book on Israeli Statism and the Rule of Law will appear next year. Shai Lavi Shai Lavi teaches sociology of law, jurisprudence and criminal law at TelAviv University. He received his Ph.D. from the Jurisprudence and Social Policy Program, University of California Berkeley. His book, The Modern Art of Dying: The History of Euthanasia in the United States (Princeton University Press, 2005) is a cultural history of dying and the rise of regulation in nineteenth- and early twentieth-century America. His more recent work is dedicated to the role of revenge in modern politics and in the formation of a national Jewish identity. He recently received the Zeltner prize for young scholars and is currently a member of the junior faculty group of the Israeli Academy for Science and the Humanities. Oren Perez Oren Perez is a senior lecturer at the faculty of law, Bar-Ilan University, Israel. He wrote his doctoral dissertation at the London School of Economics and Political Science (1997-2000) and won the Marie Curie Fellowship. His main fields of interest are environmental law, international economic law and legal theory. Two of his recent publications are Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (HART Publishing, 2004) and Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law, 10(2) Indiana Journal of Global Legal Studies, (2003) 25-64. Eric Talley Professor of Law; Director of the Center for Law, Economics, and Organization; Director for the Olin Program in Law and Rational Choice, University of Southern California Law School. b. 1966. B.A., magna cum laude, University of California, San Diego, 1988; J.D., Stanford Law School, 1995; Ph.D., Stanford University, 1995. Articles Editor, Stanford Law Review. Lecturer in Economics, Stanford University, 1993; Assistant Professor, USC Law School, 1995-1997; Associate Professor, 1997-2000; Professor of Law since 2000; Alfred P. Sloan Fellow and Visiting Professor of Law, Georgetown University Law Center, 2000; Visiting Professor of Law, California Institute of Technology, 2001.Subjects: Contracts; Corporations; Law and Economics; Commercial Law; Law and Strategic Behavior; Quantitative Methods in the Law. Member: Phi Beta Kappa.

List of Contributers

Recent publication: Disclosure Norms. 149 University of Pennsylvania Law Review 1955 (2001). Gunther Teubner Professor of private law and legal sociology, University Frankfurt. Centennial Visiting Professor, London School of Economics. Research fields: social theory of law; comparative private law. Author: Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, Michigan Journal of International Law 25:4, 2004, S. 999-1045 (with Andreas Fischer-Lescano), Costituzionalismo societario 2005, Netzwerk als Vertragsverbund 2003, Il diritto policontesturale 1999, Droit et rflexivit 1994, Law as an Autopoietic System 1993. Editor/author:Constitutionalism and Transnational Governance 2004, Global Law Without A State, 1998, Environmental Law and Ecological Responsibility 1995. Rudolf Wiethlter Professor (em.) of Private, Commercial and Business Law, University Frankfurt. Research fields: private law and legal theory. Author: Rechtswissenschaft 1968. Interessen und Organisation der Aktiengesellschaft im amerikanischen und deutschen Recht 1961. Materialization and Proceduralization in Modern Law, in Teubner (ed), Dilemmas of Law in the Welfare State (Berlin, Walter de Gruyter, 1985); Social Science Models in Economic Law, in Daintith and Teubner (eds), Contract and Organization (Berlin, Walter de Gruyter, 1986); Proceduralization of the Category of Law, in Joerges and Trubek (eds), Critical Legal Thought (Baden-Baden, Nomos 1989).

Introduction
This book reflects our long-lasting fascination with paradoxes and their place in legal theory and practice. It emerged from a conference on Paradoxes and Self-reference in Law, which took place in Frankfurt on 16-17 December 2002. The conference was a joint-project of Frankfurt University and Bar Ilan Faculty of Law. The essays in the book provide a multifaceted deliberation on the theme of legal paradoxicality. We believe that this book, by taking the idea of paradox as the focal point for thinking about law, and by invoking insights from various disciplines - from philosophy to systems theory, deconstruction and economics - fills a considerable gap in the contemporary legal literature. We would like to thank several people and organizsations whose help was crucial to the production of this book. The Florence Unger and Samuel Goldenstein, M.D. Interdisciplinary Program for Law, Rationality, Ethics and Social Justice provided financial support for the whole project. Mr Josef Buchmann, Frankfurt, provided financial support for the conference in Frankfurt. The law faculties of Bar Ilan University and Frankfurt (Goethe) University assisted in organising the joint-conference. Cordula Heldt, Clarissa Weilbcher and Peer Zumbansen provided significant help in organising the conference at Frankfurt. Yoram Egosi helped in the editing process. Robyn Frandsen provided invaluable help in the final editing of the book. Finally we would also like to thank those conference participants whose contributions did not find their way into the book, for various reasons, but who nonetheless made a significant contribution to this intellectual endeavor: Bruce Chapman, Emilios A. Christodoulidis, Heidi Li Feldman, Shachar Lifshitz and Yair Lorberbaum. Oren Perez & Gunther Teubner.