This article will be published in 29 Cardozo L. Rev. 2279 (2008)


This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to the demands of “the long war,” or of “post-9/11 constitutionalism” on subjects serving on Western Anglophone common law constitutional courts.

Drawing in particular on the anti-terrorism “control order” jurisprudence of Justice Sullivan of the English High Court and the Chapter III judicial power jurisprudence of the Australian High Court, in particular as the latter deals with what is in the U.S.A. euphemistically called the “preventive detention” of “sexually violent predators,” and the indefinite detention of “Islamic” asylum seekers in the aftermath of 9/11, the article concludes that Australian High Court Justice Michael Kirby’s recent jurisprudence of dissent instantiates a militant procedure of common law constitutional judging of others.

Such a practice of judging is heteroglossic in Mikhail Bakhtin’s terms, like the accounts of an English constitutionalism that renders evidence obtained by torture inadmissible in the House of Lords’ seriatim opinions in A. [No. 2]. It is at once egalitarian and relational, situating the judge in a relationship of equals with those others on whom she passes judgment, rather than (following Oliver Feltham’s reading of Badiou) positing a judicial “identity-in-itself.” Robust accounts of Chapter III judicial power are examples of such an egalitarian and relational praxis. Militant constitutional judging resists what Feltham calls canalization, or capturing by the ordinary institutions of government: in the context of developing a theory of judging this might involve resisting claims like those made by Justice Scalia about the antidemocratic nature of the common law, or claims for finding judicially-recognizable norms in the actions of legislatures.

Applying Badiou’s account of generic truth procedures, the Article concludes that jurisprudential truth procedures ought properly be located in the realms of love and of poetry. Badiou identifies the radical alterity within the loving subject that the encounter with the other in love produces. A practice of judging that is a generic truth procedure in the domain of love requires a radical precommitment to justice, the equality of judge and other, a “[belief] without knowing why,” or, as Peter Hallward glosses it “[f]idelity to love implies attestation before justification.” Poetry, paradigm of the literary genre, forcefully asserts the uncertainty of interpretation as the methodology of truth.

The Article suggests that the transformative praxiological potential of Being and Event lies in the radical uncertainty that this philosophy both implies and depends on, its “anxiety, obsession and desire,” and that the necessary uncertainty of the subject as to the occurrence of an event is at the heart of what might be the virtues of Badiou’s account of being and event for a theory of post-9/11 constitutional judicial ontology and militant judging, given the manifest inadequacy of existing legal subjects and theories of judging and of constitutional law to deal with the exigencies of judging the other in post-9/11 constitutionalism.

It concludes that texts suggesting what such an anxious, obsessed, desiring judicial subject, engaging in a principled way with “particular praxes which may be generic,” “slowly transform[ing] and supplement[ing] a historical situation” in which the common law constitutional judiciary finds itself, guided only by the “immanent imperatives” deriving from “the actual inquiries” made by “the operator of fidelity,” might be found in the increasingly anguished, and increasingly militant, jurisprudence of Michael Kirby, recognizing both the constitutional judge’s—and constitutionalism’s—other, and in judging those on whom he passes judgment his equals, inscribing equality, becoming equal to the event.


Comparative and Foreign Law | Constitutional Law | Immigration Law | International Law | Judges | Law and Society | Legal History | Sexuality and the Law

Date of this Version

June 2008