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The comment expands the logic of the critique of the ‘judicialisation’ in the global era and suggests that arguments in support of this development often engage in confirmatory research which weighs the ‘evidence’ in light of our wishes and political projects. The talk about ‘learning’ and ‘dialogue’ cannot sustain this form of judicial paternalism (at best) as an instantiation of emancipation or celebrate it as a victory for law by dispensing with politics. It is just a politics by other means. But in this politics some traditional remedies for insuring the accountability of the ‘rulers’ (or rule-handlers) have been weakened. The comment adds several critical observations about the practices of discourse, law, politics and judging which cannot camouflage the problem of power and its legitimisation. Thus we had better consider also a political alternative which relies on a variety of different institutional solutions where courts have to compete with other institutions without fixed hierarchies and where different sources of legitimacy stand in tension with each other.
The problem of ‘distance and engagement’ highlights the Weberian paradox that objectivity in the social sciences cannot be based on demonstrative proof; it has to take into account values as the constituents of our ‘interests’. Values should be explicit even if this ‘perspectivity’ cannot satisfy the criteria of necessity and universality. Allegedly, my skeptical approach to ‘social theory’ leaves researchers with insufficient ‘hope’, but one also learns from understanding that something is impossible or conceptually flawed. Moreover, deeper issues of analyzing social action, with existential and moral dimensions, should be considered. These involve our cognitive capacities, experiences, and emotions.