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Damjan Kukovec

Damjan Kukovec
S.J.D. 2015
dkukovec at sjd.law.harvard.edu

Dissertation

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.

David Kennedy’s project of expertise, mistakenly perceives political incapacity as the central problem of global governance. I argue that his work does not adequately address structural subordination, and misrepresents power, ideology, center-periphery relationship and governance. It also frequently restates the public-private distinction. 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, as David Kennedy suggests. Instead of a pursuit of “the political” or challenging “the economic,” instead of resisting particular claims or theories, 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.

Full Dissertation Summary

Supervisors

  • 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

Education

  • Harvard Law School, S.J.D. 2015
  • Harvard Law School, LL.M. 2002
  • University of Ljubljana Law School LL.B. 2001

Representative Publications

Additional Information

Languages: English, German, French, Slovenian (native)

Last Updated: April 28, 2016