Courts as forums for criticism

Dr. Tatjana Sheplyakova

Duration of the research project: 02/2018 – 04/2021

Judging something against a standard has been at the semantic core of criticism since antiquity. In this sense, the activity of the courts can be described as genuinely critical. However, it needs to be clarified whether this is a form of criticism that immunizes the legal system against change – a criticism without “effect” (Nietzsche), whose function is to maintain and stabilize the system. Or whether the courts, and if so, under what conditions, can be understood as places of criticism that has an emancipatory effect and releases social change through progress in the law.

The first step is to discuss this question against the background of the skepticism towards the courts that is widespread in radical democratic and sovereignty-centered approaches in political philosophy and theory. The second step is to follow Hegel’s remarks on the administration of justice: In the basic lines of his Philosophy of Right (1821, §§ 209-229), Hegel gives space to the idea that the judicial process is not, at least not only to be thought of as redressing the violation of rights by affirming the norm. Rather, it opens up a space in which the injustice of “bourgeois society” itself can be made cognitively accessible, i.e. basically a space for reflection on the natural character of its laws. This connection needs to be explained in more detail. In a third step, the aim is to outline a critical typology of grievances and to identify criteria that make it possible to distinguish emancipatory from purely privatizing or politically motivated grievances.

Selected publications on the project:

Sheplyakova, Tatjana (2018): Klagen als Ausübung der “Gegenrechte”, in: Andreas Fischer-Lescano/Hannah Franzki/Johan Horst (eds.), Gegenrechte. Rechte jenseits des Subjekts, Mohr Siebeck: Tübingen, pp. 205-226.
Sheplyakova, Tatjana (2016):Das Klagerecht oder Individuen als Rechtserzeuger, in: Sabrina Zucca-Soest (ed.), Akteure im Recht, Nomos: Baden-Baden, pp. 31-46.
Sheplyakova, Tatjana (2016): Das Recht der Klage aus demokratietheoretischer Perspektive, in: German Journal of Philosophy 64 (1), pp. 45-67.