The following essay was awarded the Nine Dots Prize and served as the basis for the author’s recently published book Radically Legal: Berlin Constitutes the Future, available in open access and audio formats.
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“You won, .”
I can hear the comma after ‘won.’
I hope I can hold out. I tense the back of my throat and silently count to ten. I count in German, to stay prepared.
He wants to finish but he’s resisting the conclusion.
“, . But it could be dangerous for the rule of law.”
I agree with him. Which is why I disagree with him. I wonder how I can pack this into a punchline. Dry air teases my tonsils. It’s a quarter past ten, the Berlin night shift. I stare at the bookshelf and notice my shadow falling across my legal literature.
“Gabor,” I want say to him, as if we were friends, drinking pálinka in a bar in Budapest. Or vodka, in Warsaw.
“Herr Steiner,” I say instead, in formal German. “The rule of law is having a midlife crisis. The rule of law must embrace its own contradictions.”
I put down the phone and cough my eyeballs out.
***
On the morning of the day Mr. Steiner interviews me for his news podcast, I am the first patient at my doctor’s surgery.
“What’s the strongest cough suppressant available in Germany? Could I get that? In big quantities, please.”
The previous day, September 26, 2021, 59.6% of Berliners voted to expropriate more than 250,000 apartments owned by corporate landlords. In a nutshell, one million people decided to take 36 billion euros’ worth of housing away from big finance. They did so because stock-listed landlords, responsible to shareholders and not tenants, had been getting their legal departments to exploit every available loophole in tenant protection laws. As a result, over the past decade, rents in Berlin have more than doubled.
Berliners do not find it fair. They want to turn corporate-owned housing into public property. The referendum was organised by a grassroots campaign, Deutsche Wohnen & Co. enteignen (DWE). I am one of DWE’s spokeswomen. I have been sick for two weeks, and I have been ignoring my sickness. I went to bed at 3am. I cannot speak. I must speak.
The doctor shakes my hand as he hands me the prescription. “I voted yes.” He smiles. “Can’t you take sick leave, the day after the revolution?”
No one has stormed the Reichstag. DWE’s project is broadly consensual — the million Yes votes came from across the political spectrum — and it is radically legal. Etymologically, ‘radical’ means ‘proceeding from roots,’ and DWE challenges global financial capital by returning to the roots of Germany’s legal system: the Constitution, das Grundgesetz.
Here, among the fundamental rights (Grundrechte), lies a secret weapon: Article 15. This forgotten clause allows land, natural resources and means of production to be made public property for the purpose of ‘socialisation’ (Vergesellschaftung). Socialisation prioritises the common good by withdrawing an entire sector, or a significant portion of it, from the market. It derives from the constitutional principle of ‘economic neutrality’: the rule of law must protect fundamental rights over the demands of any economic system, including capitalism.
Suddenly, to some people the Constitution appears more dangerous than storming the Reichstag.
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My book postulates radically legal politics as a path to deepen our democracies and renew the rule of law. Grounded in action research — a methodology that seeks progressive transformation by analysing a system while also intervening in it — it integrates my decade-long experience as a scholar-activist in Warsaw and Berlin with my theoretical work in philosophy and legal sociology. Prototyping radically legal politics not just as a defensive tactic but also as a long-term strategy for deepening democracy, I argue that such politics would also protect the structural fragility of the rule of law from being exploited by authoritarian populism.
Why has the rule of law become so fragile? I don’t think the rule of law has become fragile. I think the rule of law has always been fragile. This fragility comes from the rule of law’s foundational paradox, which binds together law and politics. It’s a marvellous paradox, which is to say that scholars are constantly uncovering new layers of it. It has to do with legitimation.
According to systems theory, this paradox is in fact a structural coupling of two paradoxes. First: while law operates through a binary code of legal/illegal, law cannot legitimise itself simply by declaring itself legal. Unlike the fabled Baron Munchhausen, we cannot pull ourselves out of a mire by our own hair. Politics, however, finds itself in a similar predicament. If the sovereign — whether this be a king or a people — truly is sovereign, what forces them to observe their own rules? To save each other from these crises of legitimation, law and politics externalise their paradoxes, projecting them onto each other. The result is state constitution: politics legitimates law, while law legitimates politics.
Because of its paradoxical origins, the rule of law is premised on holding conflicting truths together. The first contradiction of law relates to violence. Law is the opposite of violence, because it replaces the ‘wild’ and potentially endless violence of retribution with a rules-based order. Yet law can only do this by becoming, in the words of Walter Benjamin, the ultimate ‘mythical’ violence.
Secondly, law’s claim to political neutrality is also contradictory. The supposed neutrality of judicial proceedings is only made possible by establishing political relations of equality (between the parties) and authority (of the judge as a non-party). And, ultimately, ‘any version of what it means for courts to be non-political must come from politics.’
Thirdly, law’s foundational idea of a ‘free and equal subject’ is a legal fiction that masks material inequalities, between capital and labour, for example, thereby structurally entangling law with capitalism. However, because maintaining this fiction is necessary for the law to legitimise itself, law also becomes a tool of social emancipation. Thus the Marxist E.P. Thomson (not uncontroversially) called the rule of law ‘an unqualified, universal good.’
What makes the rule of law universal is indeed its paradoxical nature. A paradox is a tension field in which it becomes possible to transgress the limitations of each opposing pole. Thus, while they disagree about form and tactics, all positions on the political spectrum claim to support the rule of law.
Yet the explosive charge of holding conflicting truths together is real. Thus, throughout history, the rule of law has repeatedly fallen into crisis. And these crises are genuinely dangerous. What is at stake is not even the rule of law — which may persist under authoritarianism — but something more important, and delicate. It is something absolutely indispensable that, according to the legal sociologist Gunther Teubner, ‘legal sociology has no idea of’ — justice.
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Nothing can guarantee that the rule of law will provide justice. Justice is ‘the legal system’s memento mori, a reminder of its own limitations.’ And because society is a dynamic process, there will never be an ultimate definition of justice. Yet if a political community doesn’t feel that the legal system works towards justice, the rule of law loses legitimacy.
I’m not even forty, but within my lifetime Poland has already run through the whole cycle of the birth and demise of the democratic rule of law. When Poland’s ‘Law and Justice’ government first started dismantling the Constitutional Tribunal in 2015, I was not surprised. I was working with activists at the time, and writing up my analysis of what became known as ‘Reprivatisationgate,’ Poland’s most spectacular case of legal corruption. It concerned the restitution of property.
Formally speaking, property restitution was never legislated by the Polish parliament. The complicated history of the destruction and rebuilding of Warsaw had resulted in too many social, moral and budgetary controversies. Amid intense political conflict — more than twenty restitution bills were rejected by parliament, one after the other — the judiciary bypassed the democratic process and engineered a discreet path for restitution. Then, under the pretext of ‘historical justice,’ a small clique of businessmen (many of whom were lawyers) started buying up apparently ‘worthless’ property claims and taking over Warsaw’s prime real estate. The result was thousands of evicted tenants, a looming budgetary crisis, and the bitterness of the actual historical heirs, who tended to be less successful in court than ‘reprivatisation professionals.’
Also: public disillusionment with the judicial system as dispenser of justice.
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How much discretional power should we give judges to interpret the law? This eternal legal scholarship debate reignites with every high-stakes litigation. Sociologists Philippe Nonet and Philipp Selznick regard the different positions in this debate as stages in the developmental model of the law. The first stage is called ‘repressive law,’ because it relies on power politics to establish the rule of law amid social chaos. Once the threat of chaos diminishes, the law requires a new source of legitimation. Thus, if conditions permit, it evolves into ‘autonomous law’: the judiciary gains full procedural autonomy and, in return, withdraws from policymaking.
However, the ‘government of law, not men’ is more complicated than it sounds. Laws are many, and they do not always cohere. To refute accusations of arbitrariness, legal practitioners develop metarules of interpretation, turning law into a highly technical domain. Autonomous law easily degenerates into blind formalism, and alienates people by disregarding the real consequences of legal decisions.
The legitimacy crisis of ‘autonomous law’ might be in turn alleviated by evolution towards ‘responsive law.’ According to Nonet and Selznick, this is law’s most advanced stage, because it strives towards substantial justice. Rules are still of central importance, but they are now interpreted and qualified with regard to their higher purpose, such as fairness or democracy. This approach brings to law the promise of civility – ‘the principle that no member of a genuine polity may remain unprotected.’ However, this model is also the riskiest, as a flexible interpretation of rules may diminish their authority. Worse — judicial power may be turned against civil principles as part of a political backlash.
While their insights into the legitimacy crises facing the law are valid, Nonet and Selznick’s division of it into developmental stages implodes when applied to the Polish case. On the face of it, ‘Reprivatisationgate’ could be read as a cautionary tale, a warning against ‘responsive law.’ Indeed, some of the judicial architects of reprivatisation have subsequently (also in order to refute allegations of corruption) described themselves as activists responding to the ineptitude of state politics by liberating property rights from socialist oppression. But the story is more complicated than this, because the unlegislated reprivatisation was deliberately concealed through technical legal engineering. It exploited the ambiguity of written laws while blatantly disregarding their purpose. For example, a multi-apartment tenement was defined by the court as a ‘single-family house’ and ‘returned’ to a businessman who bought up property claims, on the basis of a socialist law that permitted non-commercial ownership.
Yet regardless of whether one considers reprivatisation an instance of judicial activism or legal corruption, it was only possible because the Polish courts enjoyed a high degree of independence. This came about as a result of the contingencies of power in the ‘repressive’ stage, when the new system was established at the 1989 Round Table Talks. Because Solidarność assumed that executive power would remain with the Communist Party until at least 1993, they insisted on maximal separation of the courts from state politics. A side effect of this was to create a highly elitist system, in which judges were appointed exclusively by judges and given ‘a humongous level of autonomy.’ So, paradoxically, it was the rule of law’s excessive autonomy from state politics that allowed the Polish judiciary to misuse the responsiveness of law and bypass democratic procedures, provoking an authoritarian backlash.
Responsive law is not an aspiration or a threat; it is the reality of every legal system. Because the application of rules is based on interpretation, and because judges are people, immersed in culture and ideology, judicial interpretations are always responsive to some politics, understood here in Foucauldian sense as ‘power acting on power.’
State power is just one form of politics to which the law responds — one that openly defines itself as politics, making it obvious that boundaries must be set. But there are many other forms of politics, such as capital interests, group loyalties, or overreliance on expertise. And unless we acknowledge these influences, the law will primarily respond to the hidden algorithm of power. In the Polish ‘Reprivatisationgate,’ this algorithm was so-called ‘political capitalism’: a form of primitive accumulation that exploits privileged access to information and influence.
While the power mixture that discreetly influences law is slightly different in each country, it usually includes capitalism, as this is the only form of power politics that has become truly global. And capitalist globalisation — the expansion of economic power across national boundaries — has predominantly been a project of legal engineering. Capital ‘rules by law.’
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The right to socialisation enshrined in Article 15 is an expression of the constitutional commitment to restrain any kind of power that infringes on basic rights. This includes ‘the misuse of economic power against society.’ Written after World War Two, with the aim of rescuing German democracy from Nazism, the Grundgesetz tries to outsmart the paradoxical dependence of law and politics with a range of formal tricks. First, it puts basic rights ‘rhetorically and legally before the actual existence of the Federal Republic as a political entity.’ This is to give all basic rights, including Article 15, a ‘pre-political’ and ‘supra-legal’ status. Secondly, an ‘eternity clause’ forbids any changes to Article 1, which acknowledges human rights as the basis of political community, or to Article 20, which declares Germany ‘a democratic and social rule of law.’
Alas, no trick can outsmart the rule of law’s foundational paradox. Nor does the Grundgesetz conjure justice. The idea of constitutionally guaranteed rights may, as suggested by Eric Voegelin, be nothing more than a superstitious belief in the power of law. Indeed, while law opens up the possibility of human and constitutional rights, these rights remain meaningless unless they are given substance. And only politics can give rights substance.
In postulating politics that is ‘radically legal,’ this book responds to the law’s foundational paradox with a practical paradox of political and legal empowerment. I discerned this paradox while working with Deutsche Wohnen & Co. enteignen. It is also a structural coupling of two paradoxes. On the one hand, only politics can empower the rule of law to enact substantive justice. On the other hand, the political charge of the paradox of the rule of law — the same charge that makes the rule of law so inherently fragile — can uniquely empower democratic mobilisation.
The double nature of this paradox has become manifestly visible since the success of the DWE referendum. Despite the ‘basic right’ status of Article 15, and despite this strong democratic endorsement, the socialisation of Berlin’s housing has since stalled. I moderated Berlin’s electoral debate on housing in September 2021, during which I questioned the then mayoral candidate Franziska Giffey about socialisation. She was openly against it. As mayor, she opposes socialisation covertly, claiming to respect the results of the referendum while trying to avoid its implementation.
Yet never before in German history has the constitutional right to socialisation been so alive. Previously a mere artefact of legal jargon, Vergesellschaftung (socialisation) is now a household word. Its political counterpart, Enteignung — the call to expropriate those who speculate with our homes — has been sprayed on thousands of walls, reposted on social media, and discussed at length on prime-time television. In addition to reclaiming 250,000 apartments, Berliners have reclaimed ownership of the Constitution.
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When I tell the journalist that the rule of law is undergoing a ‘midlife crisis,’ it is, of course, a metaphor. And yet I find this metaphor clinically useful. Because the nature of law is similar to the way Jungian psychology describes human nature: a paradoxical whole driven by opposing tendencies. And while the rule of law is not a person, able to transform themselves out of crisis, we who can transform the rule of law are nothing less than people.
According to Jung, midlife crisis results from the excess tension that arises from repressing some of our qualities into our ‘shadow’ in order to preserve our ‘persona,’ an ego-ideal we choose to display in public. Within the liberal ideal of the rule of law, the politics of law is being repressed into the shadow. If law’s political nature is denied, judges become invested in hiding their political considerations rather than openly discussing conflicted political interests. Consequently, excluded political groups come to mistrust the legal system. And once working on the system becomes the shadow of radical politics, storming the Reichstag appears to be the only solution.
The paradoxical nature of the rule of law is not a ‘problem’ to be ‘solved.’ It is a tension field that needs to be managed. Jung calls the task of managing such tension ‘shadow work,’ and radically legal politics is a form of ‘shadow work.’ The rule of law’s paradoxical integrity is not a peaceful union of opposites — it demands ongoing, dangerous, indeed ‘monstrous’ labour at the boundary between law and politics.
Being a scholar-activist, you might wonder whether I am neutral in this. Let me assure you that I am not. I care about democracy, and the ability of humans to thrive. This has never been a neutral position. And I believe that constantly moving between theory and practice has made me a better scholar. In the words of Kurt Lewin, who first coined the term ‘action research’: ‘You cannot understand the system until you try to change it.’
