Chapter 28. The Justice of the Discontinuum and the Short-Circuit of Immanent Rights
Abstract: Applying the “Theory of the Three Domains” to the legal architecture of the State, this chapter unveils the short-circuit that has destroyed the efficacy of the Western judicial system. Historically, laws were born to operate in the Social Domain: their exclusive purpose was to protect the ecosystem, sanction the pathogen, and extinguish the thermodynamic fire of the community. Today, however, the legal system has been forcibly rewritten to operate in the Immanent Domain of abstract rights. Through the analysis of the historical collision between old codes oriented towards the Nation and new Constitutions oriented towards the individual (a phenomenon diagnosed by scholars such as M. Villey and R. Hirschl), the text exposes two emblematic clinical cases: border management and abusive squatting. It thus analyzes the figure of the contemporary judge, victim of a profound functional schizophrenia: called upon to defend the community, he finds his rulings turned into “scrap paper” because procedural codes protect the aggressor. Justice, uprooted from its organic nature, transforms from an instrument of healing into the bureaucratic arm of entropy.