Alexander Somek

Alexander Somek (born in Vienna, 7 April 1961) is an Austrian legal scholar.

He is currently professor of legal philosophy in the Faculty of Law, University of Vienna.Prior to the present appointment, he held the Charles E. Floete Chair in the College of Law, University of Iowa, and he has held visiting professorships at Princeton University and at the London School of Economics. He was a Law and Public Affairs fellow at Princeton in the academic year 2012-3 and a fellow in the Institute for Advanced Study in Berlin during 2007-8. Somek, who spent nearly 14 years in the US, was born and raised in Vienna.

Somek's scholarship addresses core questions of legal philosophy, legal theory, constitutional law, European Union law and public international law.

Early Work

In his early work, influenced to some degree by the critical legal scholarship of Duncan Kennedy and Roberto Mangabeira Unger, Somek explored the political significance of systematic legal thought. He attempted to recover and defend its creative and constructive promise, this by contrast to the familiar conceptions of legal doctrine that emphasize fidelity to law qua stable abstract entity that purports to be amenable to description in value-neutral terms. Sceptical of this idea, Somek even went so far as to debunk the idea that ontological import might be granted to the “objective meaning” of norms.

His work in this area grew – in particular with regard to the critique of the reification of the meaning of norms – into an approach to legal theory that he and his colleague Nikolaus Forgo later presented as “post-positivist legal theory”.

Equality

Somek then turned to an exploration of the idea of equality, an exploration stemming from the dual perspective of social justice and constitutional adjudication. In his view, equality is best understood as imposing limits on rational behaviour that reflect the principle of anti-discrimination. Ultimately, this principle protects people against having to deny who they are.

In spite of his vigorous defence of equality as a moral ideal, Somek does not view protection against discrimination as panacea against social ills. First, there are various inherent predicaments that it cannot overcome. For example, the principle is applied after systemic forms of discrimination have already done their work. Second, it would be a mistake to view protection from discrimination as central to the realization of social justice. Somek's controversial critique of the ascendancy of European anti-discrimination law examines its various shortcomings and deficiencies. This part of his work also reflects his critical attitude towards the neo-liberal drift of European integration (a matter on which he is in close agreement with Wolfgang Streeck, Fritz Scharpf, Martin Höpner and Michael Wilkinson).

The writings on equality are based on a claim that Somek defends in later writings devoted to the cosmopolitan constitution, namely that public law is not a bundle of norms but rather a way of thinking about the normative questions that arise in connection with the exercise of state authority.

Capitalism’s Effect on Politics

After moving in 2003 to the United States, Somek became increasingly interested in how the self-understandings of human beings are affected by modern capitalism and how this gives rise to the potential demise of political citizenship. He tried to account for the relevant development on the basis of a reconstruction of various alternative forms of collective self-determination. This, at any rate was one of the foci of his work on the authority of the European Union and the emergence of a more cosmopolitan type of constitution, where he tried to identify apolitical forms of self-determination that reflect the spirit and the pathologies of modern individualism.

Somek, as he himself puts it, is a “professing ancient political philosopher”, by which he means that, first, the psychologically and sociologically rich constitutional theory of ancient authors such as Plato or Aristotle is intellectually superior to the modern liberal understanding of the constitution as legal norm. And, second, he is convinced that the project of modern constitutional law has intellectually “run its course” and that legal scholars would be better off if they took leave of the case law and turned to the study of Machiavelli.

His theory of Legal Relation

More recently, in the course of relocating from the United States back to Vienna in 2015, he has begun to elaborate his theory of the legal relation. Viewed from a certain angle, his work inherits from the legal positivism of the Vienna School of Law Theory the idea that a theory of law ought to restrict its subject to an utmost minimum of normative idealization.At the same time, however, Somek sharply distinguishes his project from Kelsen's Pure Theory of Law.

Somek advocates a “relational” approach to law and suggests that other approaches fail to account for the fact that the law represents first and foremost a type of relation among people. The legal relation is to be understood as a construct that people use in order to deal with substantive disagreements on moral questions.

Somek's theory of law has strong affinities to the legal philosophy of German idealism, Romanticism and Marxism. He attempts, however, to reformulate the relevant themes in an idiom that is not entirely alien to contemporary Anglophone legal philosophy.His most recent work on sources of law combines insights stemming from the historical school of jurisprudence and from Hegel's Phenomenology.

• Wissen des Rechts (with commentaries by Andreas Funke and Thomas Vesting, Tübingen: Mohr, 2018) [Knowledge of the Law]
• Rechtsphilosophie zur Einführung [An Introduction to Legal Philosophy] (Hamburg: Junius Verlag, 2018)
• The Legal Relation: Legal Theory after Legal Positivism (Cambridge: Cambridge University Press, 2017)
• Rechtstheorie zur Einführung [An Introduction to Legal Theory] (Hamburg: Junius Verlag, 2017)
• The Cosmopolitan Constitution (Oxford: Oxford University Press, 2014)
• Engineering Equality: An Essay on European Antidiscrimination Law (Oxford: Oxford University Press, 2011)
• Individualism: An Essay on the Authority of the European Union (Oxford: Oxford University Press, 2008)
• Rechtliches Wissen [Legal Knowledge] (Frankfurt/Main: Suhrkamp, 2006)
• Soziale Demokratie: Jean-Jacques Rousseau, Max Adler, Hans Kelsen und die Legitimität demokratischer Herrschaft [Social Democracy: Max Adler, Hans Kelsen, and the Legitimacy of Democratic Government] (Vienna: Verlag Austria, 2001)
• Rationalität und Diskriminierung. Zur Bindung der Gesetzgebung an das Gleichheitsrecht [Rationality and Discrimination: A Theory of Equal Pro-tection Review] (Vienna & New York: Springer, 2001)
• Der Gegenstand der Rechtserkenntnis. Epitaph eines juristischen Problems [The Referent of Legal Discourse. Epitaph of a legal Problem] (Baden – Baden: Nomos, 1996)
• Nachpositivistisches Rechtsdenken: Form und Gehalt des positiven Rechts (with Nikolaus Forgó) [Post-Positivist Legal Thought: Form and Con-tent of Positive Law] (Vienna: WUV-Universitätsverlag, 1996)
• Rechtssystem und Republik: Über die politische Funktion des systematischen Rechtsdenkens [Legal System and Republicanism: On the Political Purpose of Systematic Legal Thought] (Vienna & New York, 1992)