Taking Legal Action: A Philosophical Perspective

• Applicant: Dr. Tatjana Sheplyakova
• Subject Area: Practical Philosophy
• Term: from 2013 to 2016
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 234981549

The project opposes the tendency to trivialize the right of action which can be observed in contemporary legal philosophy. The possibility of action is usually regarded to be implicated in the claim right and is therefore hardly ever examined on its own terms. In reaction to this desideratum the project turns to the 19th century reception of the Roman Law in German jurisprudence, especially to the writings of Bernhard Windscheid on the transformation of the Roman actio. The objective is to provide a philosophical clarification of the relation between action and entitlement. The issue at stake is, however, to analyze in what ways the specifically modern structure of subjective rights enhances the political participation of legal subjects in the democratic decision-making processes. While being marginalized in the philosophical debates, the right of legal action is of central interest with regard to this question. Based on some elements of the 19th century legal theory as well as philosophical conceptions of action, agency and speech acts, the research project aims to develop a theory of legal action with specific focus on its political quality. Bringing in an action is an expression and exercise of political - and not merely private interest-oriented - subjectivity. Therefore the suability of rights can be regarded as essential mode of democratic representation of individuals. The individual capacity to legal action is one of the basic elements of the private law order. Hans Kelsen has even called it "the specific technique of the capitalist legal order" which entails potential for the subject's emancipation in a broad sense. By way of tracing the connection between the right of action and realization of democratic participation the project seeks to introduce some necessary revisions to the patterns of argumentation that have been employed by the Critical Legal Studies movement drawing on the Marxist or communitarian traditions in recent decades.

• DFG Programme: Research Grants