Beatrice Brunhöber: Recht als Potenz. Agambens „Homo Sacer“ und eine (postmoderne) Rechtsgeltungstheorie des potentiellen Rechts

The article explores postmodern contributions to normativity of legal rules. Since Kant jurisprudence attributes binding force to legal norms which can formally be universalized. Giorgio Agamben’s works, which are qualified here as postmodern, demonstrate that the far criticized – most prominently by Hegel – deficiency of substance of Kantian law might mean total submission to this insubstantiality and that generalisations always result in exclusion. Coincidently, as Agamben shows on the basis of a re-interpretation of Aristotle’s concept of dýnamis and enérgeia, there is a widely neglected chance in the potentiality of law without given content. Amplifying Agamben’s considerations the article shows that legitimate law might require reflexivity with regard to its structural exclusion as well as its reduction to minimize marginalization. Binding law might further necessitate enactment recognising its fundamental potentiality which can only be guaranteed by – hence normative – plurality and which inevitably leads to variability of the grounds for its acceptance.

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