The form and content of public law : from political theology to political economy

Kivotidis, Dimitrios (2017) The form and content of public law : from political theology to political economy. Doctoral thesis, Birkbeck, University of London.

Abstract

This thesis is a contribution to the critique of constitutional theory. It contributes to this critique from a Marxist standpoint, by constructing a theoretical argument while drawing from and applying this on concrete historical cases. More specifically, it examines the public legal form and the change in the form of exercise of public power as corresponding to the level of intensification of social and economic contradictions. Under this prism, public legal concepts are analysed in their unity as a systematic whole, in their historical development, as well as in their social function. The case-reference for this theoretical argument is the interaction of constitutional and socio-economic processes in post-2008 crisis Greece. The observation of the exceptional form of the Memoranda of Understanding and its impact on the Greek legal order made necessary a sustained analysis of the public legal form and the changes it sustains during periods of intensified political and socio-economic contradictions. The major contribution of the thesis consists in the move from Political Theology to Political Economy, and the identification of a need to look into historical cases and socio-economic processes so as to make sense of developments in public law and the role and function of public law concepts and processes in a social formation. Consequently, the thesis combines an internal element, which focuses on the internal unity of public law concepts in their historical origin, and an external element, which looks at their mutual inter-development with socio-economic and political processes. It begins by examining fundamental public legal concepts (such as popular sovereignty, social contract, general will) and dualisms (such as objective and subjective law, norm and decision, constituent and constituted power) as forming a unified whole, in their historical origin and social function. These concepts are discussed as fictions, but are not dismissed as mere illusions; they are rather examined as fictions with concrete functions in the social formation, as evidenced in the analysis of the concrete case of the 2015 Greek referendum and the role played by concepts such as general will and popular sovereignty in its process. Finally, the analysis of the form of public law turns to the examination of the change in the form of exercise of public power in concrete situations of crisis. In this context, the concepts of exception, emergency, and necessity are discussed before moving to concrete historical cases. The intensified contradictions in mid-war Germany, the change from the Weimar to the Nazi state form, and the effect of these developments on Carl Schmitt’s theoretical framework are examined as a necessary complement to the analysis of constitutional processes at work in the current predicament. As far as the latter is concerned, the Greek crisis legislation is analysed as a unity of form and content. It is argued that the exceptional form of exercise of public power, manifested in the Memoranda of Understanding, has to be seen as accompanying a necessary content, i.e. prescribed economic and monetary policies found in European Union legal and political documents which corresponding to specific politico-economic views. The focus on labour reforms, as the socio-economic content of the Greek crisis legislation, combined with a comparative analysis of such reforms in countries without Memoranda, reveals the general and class oriented nature of the measures, which is explained through the Marxist concepts of capitalist uneven development and competition. The move from Political Theology to Political Economy is concluded with a note on the relation between the concepts of democracy and dictatorship, a dualism which underlies the whole thesis and points towards the necessary connection between questions of sovereignty and questions of actual power

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