ABSTRACT
This chapter defends the thesis that the notion of alegality, which I will contrast to (il)legality, is the privileged point of access to a theory of the relation between law and political agonism. By introducing this notion, I aim to scrutinize two conceptually distinct but intertwined forms of legal disorder. The first concerns the distinction between legal and illegal acts. This derivative form of legal disorder ensues when human behavior breaches a legal norm. The second, primordial form of legal disorder involves acts that challenge the very distinction between legality and illegality, as drawn by a political community. Such is the case, for example, when a group of individuals actively subverts the legal distinction between a private sphere of religious expression and a sphere of public obligations, as posited in the larger political community of which they are deemed members. It is this second form of legal disorder for which I reserve the term ‘alegality’, and which I describe at some length hereinafter. I propose, in particular, to explore the relation between law and political agonism by examining the interaction between alegal acts that challenge the distinction between legality and illegality, on the one hand, and the legal responses thereto, on the other. Politics, I will argue, is irreducibly agonistic because it involves a double asymmetry between acts that challenge (il)legality and the legal qualification thereof. This double asymmetry is the primordial form of openness. More precisely, it is an opening that precedes and conditions all forms of legal openness – and closure. A theory of the relation between law and political agonism is, at bottom, an attempt to think through how this Opening, as I will call it, conditions the possibility of all political claims to and contestations of legal commonality.
