Taking Change Seriously - The Discourse of Justice and the Reproduction of the Status Quo

Damjan Kukovec 

Harvard Law School
September 22, 2012

Abstract:      
I argue that the danger of the discourse of justice is the reproduction of existing distribution of material and spiritual values. The discourse of justice, as the general legal discourse, tends to reinforce the existing, already powerful claims and preferences. I argue that companies, workers of the periphery are in a different structural situation than those of the center and that the reasoning which does not take this different structural situation of various actors into account and revolves around the universalized social or universalized autonomy/free movement claims represents the “Conceptualism of Contemporary legal thought”. I argue that the constitutional discourse also does not take the structural disparity into account. I further argue that we should not see the legal system as an interplay of social and free movement considerations, but as a set of specific legal entitlements. I argue that the emphasis on the social and other value-laden components of legal thinking is misguided and that it contributes to the reproduction of the status quo. I conclude that the conceptualism of Contemporary legal thought should be discarded and that the center-periphery relationship should be adopted as a mode of legal thought and that the existing entitlements should be rearranged if change is to be taken seriously.

Number of Pages in PDF File: 12

Keywords: justice, social, periphery, mode of legal thought, free movement, autonomy, constitutional law, constitutionalism, entitlements, conceptualism, conceptualism of Contemporary legal thought, center-periphery, foreclosed, social Europe, whose social europe, neoliberal, externality

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302389