¹ The work of William Twining is particularly important in this regard. See Twining, William, Globalization and Legal Theory (Butterworths & Co. 2000) (attempting to define notions of globalism and global constitutionalism); See also Twining, William, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge Univ. Press 2009) (furthering development of the definitions of globalism and global constitutionalism).Google Scholar

² See Walker, Neil, Intimations of Global Law 10 (Cambridge Univ. Press 2014) (stating that the case in favor of employing the concept of global law, despite uncertainties surrounding the idea of globalization, reduces to, “one argument comprising three layers—rhetorical, structural and epistemic.”). Amongst these three reasons, the third, the epistemic reason, appears to be the most telling. Walker describes this as follows: “[The idea of global law] both reflects and encourages an important shift at the margins in the very way that we think about legal authority and strive to refashion law on the basis of that knowledge.” Id. In other words, the most noteworthy aspect of the shift in favor of the use of the category of “the global” is the way in which it marks a change in our fundamental understanding of legal authority. It is precisely this “epistemic” sense of the global that is developed in this Article. In a move that we will discuss later, Walker locates the character of this transformation in the nature of the authority claim made by any given legal system: That it relates in some sense, not so much to a discrete national or local jurisdiction, but to a jurisdiction that is universal in nature. As he puts it, “[W]hat qualifies law as global law, and what all forms of global law have in common, is a practical endorsement of or commitment to the universal or otherwise global-in-general warrant of some laws or some dimensions of law.” Id. at 18.Google Scholar

³ See Marchart, O., Post-Foundational Political Thought: Political Difference in Nancy, Lefort, Badiou and Laclau (Edinburgh Univ. Press 2007) (explaining the distinction between the political and politics itself); see also Breckman, W., Adventures of the Symbolic: Post-Marxism and Radical Democracy (Columbia Univ. Press 2013) (describing the constitutional experience as a theoretical concept, now understood as the distinction between politics and the political).Google Scholar

⁴ This threefold distinction between what might be termed setting, significance, and form is indebted to Claude Lefort's seminal work, which distinguishes between a mise-en-scènce, mise-en-sens, and finally, a mise-en-forme. For Lefort, the term mise-en-scène designates his essential interpretation of the place of the political as the transcendent constitutive moment in social relations as society represents this to itself. Central to Lefort's own conception of the political in this sense is the notion of the transcendent that is understood in terms of Merleau-Ponty's phenomenology of corporeality in which what is visible is always tied to an invisible transcendent ground. The phrase that encapsulates this is that there is “an excess of being over appearance.” On this reading, the political belongs to a fluid and open-ended domain of essentially embodied existential experience which, as such, precedes quotidian political action and theoretical conceptual determination. The political, according to this view, brings a closure to this field of open-ended possibility, and establishes a framework for meaningful action (mise-en-sens), by establishing a central and unifying symbolic point of reference for social interaction. The term mise-en-forme designates this entire set of operations as they are performed within any given society. As we will see, critical to the character of modern democratic society is an unprecedented mise-en-forme that, in its mise-en-scène, represents the key formative dimension of power as essentially open-ended in terms of the persons and ideas legitimately occupying it: This is what he terms the image of the “empty place” of power. We will return to further consider Lefort's work in examining Samuel Moyn's work regarding the “Utopian” consciousness of the human rights movement. See Flynn, Bernard, The Philosophy of Claude Lefort: Interpreting the Political (Northwestern Univ. Press 2005) (outlining Lefort's work in this field); See Lefort, Claude, The Permanence of the Theological-Political, in Democracy and Political Theory (David Macey trans., Polity Press 1988) (delineating the key elements of Lefort's approach to political philosophy and to the analysis of modern constitutionalism).Google Scholar

⁵ See Giddens, Anthony, The Constitution of Society: Outline of the Theory of Structuration (Polity Press 1984) (describing the distinction between the political and politics).Google Scholar

⁶ See id. (distinguishing between “objectivist” and “subjectivist” theories although useful in general does slightly gloss over between different approaches within these models). Within the “objectivist” approach, there is a distinction between functionalist or naturalist accounts of the “objective” determinants of the social field and structuralist accounts that focus on the symbolic character of these objective structures. From within the “subjective” approach, Giddens discusses the Verstehen approach pioneered by Dilthey. Other “subjective” approaches might include, for example, rational choice theory, which would be driven by very different presuppositions. What follows is a summary of the key elements of his approach outlined in chapter one of The Constitution of Society.Google Scholar

⁷ Id. at 6 ff.Google Scholar

⁸ See id. at xvii (understanding “sociology,” by contrast, to be not a generic discipline to do with the study of human societies as a whole, but that branch of social science that focuses particularly upon the “advanced” or “modern societies.”).Google Scholar

⁹ Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 36 (George Schwab trans., MIT Press 1985).Google Scholar

¹⁰ Lefort, supra note 4, at 217–18.Google Scholar

¹¹ Ronald Dworkin, Law's Empire (Hart Publishing 1998); Ronald Dworkin, Justice in Robes (Harvard Univ. Press 2008); Ronald Dworkin, Justice for Hedgehogs (Harvard Univ. Press 2013).Google Scholar

¹² Kai Möller, The Global Model of Human Rights (Oxford Univ. Press 2012); Kai Möller, From Constitutional to Human Rights: On the Moral Structure of International Human Rights, 3 Global Constitutionalism 373 (Cambridge Univ. Press 2014) (concerning the category of “constitutional right,” and overlapping sufficiently with what is defined as a narrower category of human rights. Nevertheless, in terms of the wider focus on the role of rights within constitutionalism at large (the focus of the present Article), this set of distinctions is less important).Google Scholar

¹³ Möller, supra note 12, at 376.Google Scholar

¹⁴ Id. at 376–77.Google Scholar

¹⁵ See id. at 377 (“In judicial practice, the first stage has become less and less important, largely as a consequence of rights inflation, that is, the phenomenon that more and more interests are protected as rights.”).Google Scholar

¹⁶ Samuel Moyn, The Last Utopia: Human Rights in History (Harvard Univ. Press 2010). For a critical discussion of Moyn's work, see Alston, Philip, Does the Past Matter? On the Origins of Human Rights, 126 Harv. L. Rev. 2043 (2013) and Christopher McCrudden, Human Rights Histories, 35 Legal, Oxford J. Stud. 179 (2015). Subsequent discussions of Moyn's book, The Last Utopia, refer to the edition cited here.Google Scholar

¹⁷ See Hunt, Lynn, Inventing Human Rights: A History (W.W. Norton & Co. 2007) (engaging in an examination of the historical context of the emergence of human rights with a view to clarifying and specifying their present role and function, comparable to the work of Samuel Moyn); see also Martinez, Jenny, The Slave Trade and the Origins of International Human Rights Law (Oxford Univ. Press 2012) (examining human rights and clarifying human right's role and function within the context of constitutionalism, also similar to the work of Samuel Moyn).Google Scholar

¹⁸ Moyn, supra note 16, at 8.Google Scholar

The best general explanation for the origins of this social movement and common discourse around rights remains the collapse of other, prior utopias, both state-based and internationalist. These were belief systems that promised a free way of life, but led into bloody morass, or offered emancipation from empire and capital, but suddenly came to seem like dark tragedies rather than bright hopes.Google Scholar

¹⁹ Samuel Moyn, Origins of the Other: Emmanuel Levinas Between Revelation and Ethics (Cornell Univ. Press 2005).Google Scholar

²⁰ See Taylor, Charles, Foreword in Marcel Gauchet, The Disenchantment of the World: A Political History of Religion, at x (Oscar Burge trans., Princeton Univ. Press 1997) (explaining that, according to this approach, religious ideas—including concepts like secularism—provide a symbolic form for “the way we experience or belong to the larger social whole.”).Google Scholar

²¹ See Lilla, Mark, Religion, Politics and the Modern West (Vintage Books 2008) (making a similar stress on the link between twentieth-century utopianism and the political theology and nineteenth-century liberal Protestantism).Google Scholar

²² See Dorrien, Gary, Kantian Reason and Hegelian Spirit: The Idealistic Logic of Modern Theology (Wiley-Blackwell 2012) (thoroughly accounting nineteenth century ideology).Google Scholar

²³ See Douzinas, Costas, The End of Human Rights (Hart Publishing 2000) (seeking an alignment between the human rights movement and the utopian elements of the revolutionary tradition).Google Scholar

²⁴ See Moyn, supra note 19, at 113–64 (tracking the development of ideas from Protestant liberalism, through Barth and also the religious philosopher Rosenzweig to Levinas in more detail).Google Scholar

²⁵ See id. (noting crucially that the claim here does not argue for a causal link between Levinas and the human rights movement as it develops in the 1970s but rather a more basic solidarity in their basic ethical position).Google Scholar

²⁶ See Moyn, supra note 16 (concluding in his prologue that there is a paradox between the ambition of the human rights movement and its minimalistic approach to problems of collective political action). A similar set of skeptical concerns about the indeterminacy and institutional lacunae of the human rights movement have been articulated more directly by the political philosopher and sociologist Marcel Gauchet in two important articles. See Gauchet, Marcel, Les droits de l'homme ne sont pas une politique, La démocratie contre elle-même (Gallimard 2002) (1980), and Marcel Gauchet, Quand les droits de l'homme deviennent une politique, La démocratie contre elle-même (Gallimard 2002) (2000).Google Scholar

²⁷ See Teubner, Gunther, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford Univ. Press 2012) (providing a useful discussion of globalization from a systems-theoretic perspective); see also Borsch, Christian, Niklas Luhmann (Routledge 2011) (providing a useful clarification of the key theoretical underpinnings of the concepts of autopoesis and systems theory).Google Scholar

²⁸ Samuel Moyn, Claude Lefort, Political Anthropology and Symbolic Division, in 19 Constellations 37 (2012); Samuel Moyn, The Politics of Individual Rights: Marcel Gauchet and Claude Lefort, in French Liberalism from Montesquieu to the Present Day (Raf Greenens & Helena Rosenblatt eds., Cambridge Univ. Press, 2012); see also Moyn, Samuel, Of Savagery and Civil Society: Pierre Clastres and the Transformation of French Political Thought, 1 Modern Intellectual History 55 (2004).Google Scholar

²⁹ See generally Flynn, Bernard, The Philosophy of Claude Lefort: Interpreting the Political (NW Univ. Press 2005) (providing an overview of Lefort's work generally): See also Lefort, supra note 4 (discussing in more detail Lefort's work on the issues discussed here).Google Scholar

³⁰ See lefort, supra note 4, at 224–27 (discussing this concept in more detail).Google Scholar

³¹ See Lefort, Claude, Politics and Human Rights, in The Political Forms of Modern Society: Bureaucracy, Democracy and Totalitarianism (John Thomson ed. and trans., MIT Press 1986) (discussing the importance of human rights in the scope of the nation-state to actualize symbolic functions of modern constitutionalism).Google Scholar

³² Gauchet, supra note 20.Google Scholar

³³ Marcel Gauchet, L'Expérience Totalitaire et la Pensée de la Politique, in La Condition Politique at 455 et seq. (Gallimard 2005).Google Scholar

³⁴ Id. at 459–62.Google Scholar