dkukovec at sjd.law.harvard.edu
HIERARCHIES AS LAW
My dissertation addresses the role of legal thought in social transformation and in reproduction of hierarchies in today’s globalized society. Why do the “haves” keep coming out ahead? Where do we start when thinking about law and social transformation and how do we articulate and address resistance to the reproduction of the concentration of power, wealth, authority, and prestige in the world?
I argue that analytical clarity and vision of social transformation are needed for social change. However, contemporary legal argument still too often relies on theories and on conceptual thinking. Alternatives are presented as anti-neoliberal, anti-capitalist, anti-efficiency, anti-free-movement, anti-autonomy, anti-economics, and anti-law.
I critique the Third World legal scholarship for its lack of an adequate picture of subordination and for misrepresenting power and the center-periphery relationship. I respond to the critics who argued that my proposals are neoliberal or further the interests of capitalism. Economic theories or capitalism are mere signifiers for the (hierarchical) reality that needs to be constantly constructed and reconstructed. “Justice” should not be understood in terms of any theory, but as a constant change of the present unjust reality by our daily work. I further argue that democratic theory is unable to adequately address social change and that both constitutional theory and critical legal thought often misrepresent power relationships.
Reliance on false distinctions is too often a part of scholarly endeavor. Several scholars make the mistake of relying on Karl Polanyi’s distinction between politics and economics, a typical example of conceptualism of contemporary legal thought that distinguishes between protectionist and autonomy claims or theories. Rather than pursuing one or the other type of claim, the question should rather be whose protectionist and whose autonomy claim we are pursuing.
Law is often understood as the problem, and political capacity and contestation as the solution to social problems. David Kennedy’s project of expertise, for example, mistakenly perceives political incapacity as the central problem of global governance. I argue that the claim of political incapacity is analytically incorrect, does not adequately address structural subordination, and misrepresents governance. The problem of today’s globalized society is not “economic interests,” nor is the central problem the lack of the political. Nor can critique be the goal of our work. Instead of a pursuit of “the political” or challenging “the economic,”, instead of resisting particular claims, theories or constructing new theories of justice, we need to resist unjust—hierarchical—reality. How do we construct and reconstruct reality? I argue that law and governance should be understood as a plethora of hierarchies, as a constant hierarchical struggle. There are three elements of the legal structure: hierarchies (constituted by injury and recognition), ideology, and tools. Injury and recognition are the lowest common denominator of the legal structure and of global governance. Social change should be understood as a reversal of the existing global hierarchical structure. Tools need to be constructed that reflect and resist the injuries we have not yet unearthed or those we simply disregard.
The proposed analytical scheme can be used in any area of law and in any social context. However, the main focus and example of my portrayal of the reproduction of hierarchies and structural subordination is the European Union. Doctrines that reflect injuries to the actors of the periphery are not a part of the professional vernacular. As an example of tools to be built to address the hierarchical structure of society and previously invisible injury, I construct a new doctrine of goods dumping on the internal market and challenge several assumptions of trade law, antitrust law, and international business transactions.
- Professor Duncan Kennedy, Harvard Law School, Overall Faculty Supervisor
- Professor Mark Tushnet, Harvard Law School
- Professor Gráinne de Búrca, New York University Law School
Additional Research Interests
- Antitrust law
- Constitutional law
- Government procurement
- Labor law
- Law and Development
- WTO law
- Harvard Law School, S.J.D. 2015
- Harvard Law School, LL.M. 2002
- University of Ljubljana Law School LL.B. 2001
- Damjan Kukovec, Hierarchies as Law, 21.1 COLUM. J. EUR. L. 131 (2014).
- Damjan Kukovec, Law and the Periphery, 21.3 EUROPEAN LAW JOURNAL 46 (2015).
- Damjan Kukovec,Taking Changes Seriously: The Rhetoric of Justice and the Reproduction of the Status Quo in EUROPE’S JUSTICE DEFICIT?, 319 (Kochenov, de Búrca and Williams eds., 2015). Earlier version available here.
- “Whose Social Europe?”, talk delivered at Harvard Law School on April 16, 2010, available at Whose Social Europe? The Laval/Viking Judgments and the Prosperity Gap | Harvard Law School | Institute for Global Law and Policy
- “A Critique of the Rhetoric of Common Interest in the EU Legal Discourse”, talk delivered at Harvard Law School on April 13, 2012, available at Critique of Rhetoric in the European Union Legal Discourse | Harvard Law School | Institute for Global Law and Policy
- Damjan Kukovec, Taking Changes Seriously – The Discourse of Justice and the Reproduction of the Status Quo. A talk given at London School of Economics on September 22, 2012.
Languages: English, German, French, Slovenian (native)
Last Updated: January 11, 2016