Oikeus käy aikaa tilassa: retki Euroopan oikeuden legitimiteettiin

Abstrakti

Kaarlo Tuorin juhlaseminaari 23.10.2019

Justice in time and space: A journey into the legitimacy of European law

Why law, instead of no law, asks German legal philosopher Werner Maihofer. The answer is given already in the question. Law is a normative and symbolic order that creates us as social beings. But what is the difference between legitimate power based on law and pure power based on violence, fear, and totalitarian rules? Since there is no eternal and universal natural law, modern law, related to time and space, cannot run away of its political and legal responsibility to answer to this. Thus, legal thinking has a responsibility to consider – and reconsider – what constitutes the legality and legitimacy of European law. The European legal space is based on the values of human rights, equality, rule of law and democracy. However, these values have been challenged by, on one hand, neo-nationalist ideology and, on the other hand, by biopolitical techno-governance. The author attempts to answer the question of the legitimacy of European law through the concept of constitutionalism, which brings together not merely constituent and constituted power but also disruptive power, the third element of “legal” power. The text is an aporetic answer to the legitimacy of European law, and a comment to Kaarlo Tuori’s critical legal positivism.