The Brexit referendum result has given focus to and amplified a series of anxieties: the successful campaign gave visibility to anxiety about immigration and loss of sovereignty, while also creating anxiety about illiberal populism. This anxiety about national identity, current and prospective, about Brexit, as caused by anxiety and cause of anxiety, has provoked a debate even about the merits of democracy, if ‘the voice and will of the people’ disrupts the traditional constitutional assumptions regarding checks and balances and becomes (...) despotic. Reference to the tradition of anxiety about democracy, exemplified by Kierkegaard and Kant, establishes a context here for a discussion of the Brexit political debate in terms derived from Lyotard’s investigation of, on the one hand, an appeal to mythic narrative to stabilise a claim of identity, and, on the other hand, narratives of emancipation embodied in a future-oriented deliberative process, which can be analysed in terms of seven different types of language game at play. Particular reference to the image of ‘triggering’ used in the Supreme Court’s judgments in the v Secretary of State for Exiting the European Union [2017] UKSC 5) case in relation to Article 50 and the UK’s exit from the EU is made to illustrate the significance of figures of speech within discourse. The conclusion draws on Lyotard’s distinction between a litigation and a differend in order to better understand the politics of Brexit. (shrink)

The ‘reasonable person standard’ is often called on in difficult legal cases as the last resource to be appealed to when other solutions run out. Its complexity derives from the controversial tasks that people place on it. Two dialectics require some clarification: the objective/subjective interpretation of the standard and the ideal/ordinary person controversy. I shall move through these dialectics from the standpoint of an EV approach, assuming that on this interpretation the RPS can perform most persuasively its tasks. The all-round (...) model of phronetic agent that I present not only works better than competing models—such as the utilitarian–economic and the Rawlsian—in the law of tort but shows its best potentialities in other kinds of cases. In criminal law and matrimonial law cases the recourse to the EV approach offers through the virtues rich and substantial resources to evaluate conflictual cases. This approach makes the threshold of evaluation much closer to real life than competitors. (shrink)

We are still unable to correctly identify the true crisis in Europe: whether it is a question of a lack of a demos or cratos; whether it is the democracy, legitimacy, or justice that is inadequate; whether we are facing a problem of intelligibility or of too little politicization. The article begin the analysis with three hypotheses: (1) none of the attempts to explain the crisis that focus on a single deficit or weakness seems satisfactory, so the discussion should focus (...) on the way these types of deficiencies are expressed and the extent to which each one of them is involved. For this very reason, it makes no sense to entrust the entire solution to the strengthening of one single criterion (participation, effectiveness, or communication, for example). (2) Polarizing the legitimacy framework around two possibilities (input and output) seems to be a simplification that does not do justice to the intricate way in which the results and the procedures, effectiveness and consent are related in a democracy. (3) The resulting description cannot be less complex than that which it is attempting to describe, so the task of repairing EU legitimacy should be carried out through a sophisticated division of labor (between institutions, criteria, and values). The process of European integration may be one of the most interesting manifestations of a general problem in today’s societies: how to reconstruct political authority to confront the new challenges of communal life. (shrink)

ABSTRACT This paper offers an account of institutional testimonial justice and describes one way that it breaks down, which we call institutional opacity. An institution is opaque when it becomes resistant to epistemic evaluation and understanding by its agents and users. When one cannot understand the inner workings of an institution, it becomes difficult to know how to comport oneself testimonially. We offer an account of an institutional ethos to explain what it means for an institution to be testimonially just; (...) we then describe how an ethos of institutional testimonial justice can break down when the institution becomes opaque. An opaque institution is especially problematic for individuals and groups already rendered epistemically vulnerable during their interactions with that institution, which we call epistemically vulnerabilised individuals. We articulate the features of an encounter between an epistemically vulnerabilised individual and an opaque institution. We end by tracing ameliorative strategies that could help repair a deteriorated institutional ethos of testimonial justice. (shrink)

Popper's critique of the philosophical doctrines underlying totalitarian ideology is powerful. Yet, having the regimes of Hitler and Stalin in full view before him, he did not give full and balanced consideration to the range of effects these doctrines can have within actually existing ideologies and regimes. The ideas he correlates with totalitarianism can and do exist in benign forms or tempered by other ideas and by institutions. Moreover, the struggle with totalitarianism is only partly a struggle of philosophical ideas. (...) Political argument and rhetoric appeal to feeling as well as intellect. This tends to be a blindspot of liberalism that often weakens it in the competition with its adversaries. (shrink)

In British and continental constitutional theory, the sovereign provides a mouthpiece for the law, helping present a unified body politic. For Hegel too the sovereign is a function for the unity of the people. But it is the subject’s desire, which brings the sovereign into existence as guarantor of the law’s coherence and closure. The spontaneous insurrection of December 2008 in Greece weakened the hold of the sovereign on the subject. The post-political condition was challenged by the unplanned actions of (...) resistance and performance by people who have been excluded from political visibility. (shrink)

The nineteenth century saw the rise of Darwinism as a new paradigm for the study of nature and man mans an integral part thereof. Many scholars were intent on removing the abstract principles and universal truths of early modern philosophy in favour of understanding man's nature through more scientifically-based methods. Walter Bagehot (1826?1877) was one of the leading exponents of this view. Our focus is on one of Bagehot's famous books, Physics and Politics, or thoughts on the application of the (...) principles of `natural selection' and `inheritance' to political society. Physics and Politics can be seen as one of the most remarkable attempts to think the intertwining of politics and Darwinism. In our paper, we want to examine Bagehot's efforts to apply natural sciences to politics and philosophy and his focus on progress and the idea that such progress is inherited over generations. We want to examine in what way a Darwinian framework of thinking is actually used in Physics and Politics. Our conclusion is that perhaps Physics and Politics established a framework for the application of biological principles to political society, but it definitely did not do so for the application of Darwin's principle of natural selection. (shrink)

The claim that media ‘simulate’ political transparency is misleading. It suggests that the ‘simulated’ exists in opposition to the ‘real’ or ‘true’ and, in turn, that transparency should give access to a political reality or ‘truth’ otherwise distorted. This truth or reality is, however, illusory. Transparency should be seen as a process of requiring persons in relations of community with others to account for their actions, understandings and commitments as regards matters directly relevant to those relations. Such an approach denies (...) any simple public‐private divide, emphasises breach of trust in relations of community as the justification for publicising personal conduct and circumstances, and treats scandal as the public revelation of these breaches of trust. (shrink)

This paper seeks to develop the rhetorical approach to the study of social psychology, by looking at the rhetorical aspects of British attitudes towards the monarchy. The rhetorical approach stresses that attitudes are stances in public controversy and, as such, must be understood in their wider historical and argumentative context. Changes in this context can lead to changes in attitudinal expression, such as the phenomenon of Taking the Side of the Other, which should be distinguished from the sort of attitudinal (...) changes normally described by social psychological theories of attitudes. One needs to assume that attitudinal stances contain both explicit and implicit aspects, and also that these may be contrary to each other. The change in James Gillray's cartoons from anti-monarchical themes in 1792 to pro-monarchical themes in 1793 is discussed as an example of Taking the Side of the Other in response to changing historical contexts. Contemporary monarchical attitudes are also examined to show the rhetorical nature of implicit criticisms and justifications, as well as the rhetorical complexity of these attitudes. General implications for the rhetorical study of implicit and explicit aspects of attitudes are discussed. (shrink)