The work of Foucault on liberal government, and that of his followers, is subject to two dangers. The first is to regard the critical character of liberalism (as governing through freedom) as providing safeguards against the despotic potentials of biopower and sovereignty. The second is to regard these heterogenous powers of life and death as somehow simply relocated or reinscribed within the field of liberal governmentality. The latter point is a major methodological error; the former closes the gap between the (...) analytics of government and the normativity of liberalism itself. By working through these dangers, our understanding of the ethos of liberal government is transformed. That ethos today requires us to link governing through freedom to the powers of life and death, the exercise of choice to the sovereign decision, the contract to violence, economic citizenship to moral discipline and obligation, and rights and liberties to enforcement. (shrink)

This article aims to challenge the idea of a ‘balance’ between security and liberty. Set against the background of ever greater demands for security, the article argues that the idea of balance is an essentially liberal myth, a myth that in turn masks the fact that liberalism's key category is not liberty, but security. This fact, it is suggested, undermines any possibility of liberalism challenging current demands for greater security, as witnessed by the thoroughly authoritarian ‘concessions’ to security by some (...) contemporary liberals. More ambitiously, the article also suggests that attempts to develop a ‘radical’ politics of security are misplaced, and that what is needed is more a political critique of the concept. (shrink)

Adam Smith's lectures present a bleak theory of history in which the innate human results in the perpetuation of increasingly repressive slave societies. This theory challenges common conceptions about the philosophical and historical foundations of Smith's thought, and accounting for it requires moving beyond traditional dichotomies between an sphere grounded on asocial wants and a sphere grounded on sociability. For Smith, under the influence of earlier thinkers like La Rochefoucauld, Mandeville, and Rousseau, all human behavior is rooted in our esteem-seeking (...) social nature, and the dominant form of esteem-seeking is a one based on external superiority. Understanding these foundations explains why Smith views both European commercial society and its central motive of economic self-interest as historically contingent, the product of a long series of unintended historical consequences. (shrink)

Motivated by a deep sense that injustice and inequality are wrong, liberals and reformers in the Western political tradition have focused their energies on policies and programs which seek inclusion: extending the suffrage to those without property; seeking to treat women the same as men, and blacks the same as whites; trying to ensure that as few as possible are excluded from economic opportunity due to lack of resources. Under current conditions, such demands for inclusion take two primary forms, especially (...) in the United States. One is a commitment to using the state to equalize the life chances of individuals. The other is a call for treating groups which have experienced discrimination with full respect. The former leads to the welfare state, while the latter is produced by, and in turn produces, what is commonly called identity politics, the politics of recognition, or the politics of presence. (shrink)

Freedom of association holds an uneasy place in the pantheon of liberal freedoms. Whereas freedom of association and the abundant plurality of groups that accompany it have been embraced by modern and contemporary liberals, this was not always the case. Unlike more canonical freedoms of speech, press, property, petition, assembly, and religious conscience, the freedom of association was rarely extolled by classical liberal thinkers in the seventeenth and eighteenth centuries. Indeed Thomas Hobbes, David Hume, Adam Smith, and others seem to (...) have regarded freedom of association with some trepidation because of the violent, irrational, and factional behavior of groups. This chapter illuminates these anti-associational assumptions in the writings of James Madison. Although Madison famously deplored political associations as sources of faction and civil dissension, he differed from other members of the Founding generation in his willingness to defend associational freedom. Madison's writings also shed light on the unenumerated status of the freedom of association in American constitutional law. (shrink)

Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning of the constitution (...) is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism. (shrink)

Resumen: Se trazan las líneas definitorias del derecho humano fundamental al desarrollo sostenible (DHFDS), desde una visión normativa del desarrollo y el constitucionalismo humanista, teniendo en cuenta la dignidad humana, la plena efectividad de los derechos humanos, el Enfoque Basado en los Derechos Humanos y la seguridad humana como pilares normativos de la Agenda 2030 para el Desarrollo Sostenible, entendiendo que la plena efectividad de los derechos humanos da lugar al Derecho Humano Fundamental al Nuevo Orden Mundial (DHFNOM) consagrado en (...) el artículo 28 de la Declaración Universal de los Derechos Humanos (DUDH, 1948), aprobada por la Organización de las Naciones Unidas (ONU). Se analiza el entendimiento común para la práctica de las normas y principios de derechos humanos en materia de programación del desarrollo, concibiendo el desarrollo sostenible como un derecho humano fundamental cuyo núcleo esencial son los derechos fundamentales integrados en los 17 Objetivos de Desarrollo Sostenible de la Agenda 2030. Se resalta el deber del Estado de respetar y proteger los derechos humanos de los que las personas y los pueblos son titulares para materializar tangiblemente sus derechos fundamentales inalienables priorizando, en consecuencia, la atención y participación los grupos humanos en situación de debilidad manifiesta, expuestos a mayor vulnerabilidad, marginación, exclusión y discriminación destacando en aras del florecimiento humano, el bien común, el desarrollo sostenible y el desarrollo humano integral de todos. (shrink)

What would it mean to have a suitably ‘realistic’ account of political liberty? On the one hand, I don’t think we can properly understand liberty without an underlying account of personhood or agency.2 In making sense of liberty, we need to ask: What kind of agency does it presuppose or promote? What kind of independence do we care most about? What does it mean to exercise control, or to be self-guiding, in the kind of world we live in today? At (...) the same time, a conception of moral and political personhood needs to be appropriately ‘realistic’: It shouldn’t be over-idealized (or over-simplified), nor demand more than can be reasonably expected, given the kind of creatures we are. (shrink)

This dissertation addresses a debate about the proper relationship between democratic theory and institutions. The debate has been waged between two rival approaches: on the one side is an aggregative and economic theory of democracy, known as constitutional economics, and on the other side is deliberative democracy. The two sides endorse starkly different positions on the issue of what makes a democracy legitimate and stable within an institutional setting. Constitutional economists model political agents in the same way that neoclassical economists (...) model economic agents, that is, as self-regarding, rational maximizers; so that evaluations of democratic legitimacy and stability depend on the extent to which the design of institutional rules and practices maximize individual utility by promoting efficient schemes of collective choice. Deliberative democrats, on the other hand, understand political agents as communicative reason-giving subjects who justify their preferences and positions on issues that jointly affect them in a process of consensus-directed discourse, or deliberation; so that evaluations of democratic legitimacy and order depend on the degree to which institutional norms and practices promote deliberation and draw upon deliberated public judgment. I argue that despite the numerous incompatibilities between constitutional economics and deliberative democracy—which amount to a 'deep divide'—an opportunity to produce a genuine synthesis of the two approaches arises inasmuch as it is possible to overcome several points of opposition in their separate research programmes. The central thesis of the dissertation is that it is possible to construct a bridge spanning the divide between constitutional economists and deliberative democrats, and that Dewey and Bentley's transactional view can facilitate this bridge-building project. Pursuant to this end, the points of opposition between the v research programmes are mediated by way of five concepts which, on balance, favor deliberative democracy and its feasible institutionalization. (shrink)

This article traces the emergence of the term welfare state in British political discourse and describes competing efforts to define its meaning. It presents a genealogy of the concept's emergence and its subsequent integration into various political scripts, tracing the struggles that sought to name, define, and narrate what welfare state would be taken to mean. It shows that the concept emerged only after the core programmes to which it referred had already been enacted into law and that the referents (...) and meaning of the concept were never generally agreed upon – not even at the moment of its formation in the late 1940s. During the 1950s, the welfare state concept was being framed in three distinct senses: the welfare state as a set of social security programmes; the welfare state as a socio-economic system; and the welfare state as a new kind of state. Each of these usages was deployed by opposing political actors – though with different scope, meaning, value, and implication. The article argues that the welfare state concept did not operate as a representation reflecting a separate, already-constituted reality. Rather, the use of the concept in the political and economic arguments of the period – and in later disputes about the nature of the Labour government's post-war achievements – was always thoroughly rhetorical and constitutive, its users aiming to shape the transformations and outcomes that they claimed merely to describe. (shrink)

Si partimos de la idea que un régimen democrático debe entenderse como un sistema de autogobierno, la Constitución, en tanto está, por decirlo de algún modo, en manos de unos cuantos, presenta una aparente contradicción con el ideal democrático. El constitucionalismo popular surge precisamente con el propósito de atenuar la contradicción inserta en la mayoría de las democracias constitucionales: ¿por qué un puñado de ciudadanos deben poder interpretar una Constitución que ata y vincula a todos los miembros de la comunidad (...) por igual? Interpretar el significado de la Constitución, reclaman los populistas, debe ser una empresa compartida y deliberativa entre la ciudadanía, sus representantes y los miembros del poder judicial. Este artículo analiza algunos aspectos del argumento popular. En vez de deliberar sobre el significado de la Constitución, sugiere, es la contestación—una forma específica de deliberación que ocurre después de que la Suprema Corte de Justicia ha emitido una sentencia— la que debe guiar los esfuerzos de interpretación popular. (shrink)

ABSTRACTOne of the recurrent motifs in political thought is the idea of the social contract, according to which a society, a government, or moral principles depend for their existence on agreements...

The aim of this article is neither to challenge nor to defend Isaiah Berlin’s thought but rather to identify the main influences on his concept of liberalism. Berlin’s justification for liberalism is distinctive in that it reflects influences of Romanticism and Augustinianism. Unlike some liberals, his liberalism does not reflect unambiguous confidence in the products of the Enlightenment. Berlin valued the freedom of expression and identity, yet he feared that these freedoms faced potential threats from both left and right. These (...) considerations led Berlin to found his liberalism on the notion of limited government, as is reflected in his bias towards negative, rather than positive, liberty. Negative liberty implies restraint on the part of the state in order to limit anything that might act as an impediment to individual freedom. In contrast, positive liberty implies that the state may have to be active even to the point of imposing restrictions on individual freedom in order to ameliorate effective limits on liberty imposed as a consequence of societal inequities. Berlin is justly deemed to have been one of the great political theorists of the twentieth century. Few, even among his critics, would deny this, and even those who disagree with Berlin’s conclusions would acknowledge that his framing of the questions and his references to history have elevated and enriched the debate on liberalism. (shrink)

For all the recent discoveries of behavioral psychology and experimental economics, the spirit of homo economicus still dominates the contemporary disciplines of economics, political science, and sociology. Turning back to the earliest chapters of political economy, however, reveals that pioneering figures such as Francis Bacon, Thomas Hobbes, and Adam Smith were hardly apostles of economic rationality as they are often portrayed in influential narratives of the development of the social sciences. As we will see, while all three of these thinkers (...) can plausibly be read as endorsing “rationality,” they were also well aware of the systematic irrationality of human conduct, including a remarkable number of the cognitive biases later “discovered” by contemporary behavioral economists. Building on these insights I offer modest suggestions for how these thinkers, properly understood, might carry the behavioral revolution in different directions than those heretofore suggested. (shrink)

ABSTRACTContrary to what some critics of epistemic democracy claim, the association between democracy and truth does not necessarily make the former inhospitable to conflict, contestation, and pluralism. With the help of John Stuart Mill and William James, truth can be interpreted so as to make it compatible with a democratic politics that appreciates conflict and dissent. In some circumstances, truth claims are politically relevant and should become the object of democratic deliberation.

Contrary to the many accounts of the destructive effects of strong emotions, this article argues that the most serious problems facing the world are caused by a deficiency rather than an excess of emotions. It then shows how an evolutionary account of emotion can explain when and why such deficiencies occur.

The purpose of this paper is to analyse the limits of constitutional reform. Some constitutions, for example, the German (art. 79, sec. 3), the Italian (art. 139), the Portuguese (art. 288), the French (art. 89, sec. 5), and the Brazilian (art. 60, sec. 4), contain an “essential core” of rights, which is usually understood as being immune to change. The initial focus in the paper is on the discussion on whether and to what extent these “essential cores” are indeed immune (...) to change. A second focus is on Ross's paradox. Here I analyse and reject Ross's own solution to the paradox and I show, too, that the paradox admits no solution that does not imply a discontinuity in the legal system. (shrink)

Constellations, Volume 28, Issue 3, Page 379-402, September 2021.

This article examines the public significance of emotions, most specifically their role in constituting identity and community in the wake of political violence and trauma. It offers a conceptual engagement with processes of healing and reconciliation, showing that emotions are central to how societies experience and work through the legacy of catastrophe. In many instances, political actors deal with the legacy of trauma in restorative ways, by re-imposing the order that has been violated. Emotions can in this way be directed (...) by elites who are concerned with reinstating political stability and social control. Healing often becomes more about retribution and revenge, rather than a long-term project begetting peace, collaboration and emotional catharsis. The emotions triggered by trauma thus tend to perpetuate existing antagonisms, further entrenching the disingenuous perceptions of identity that may have created violence in the first place. Surveying this process, this article suggests that scholars of politics and reconciliation need to be more attentive to the role emotion plays in shaping particular forms of community. Doing so requires a systematic understanding not only of the feelings associated with first-hand experiences of trauma, but also of the manner in which these affective reactions can spread and generate collective emotions, thus producing new forms of antagonism. Addressing this challenge, the authors explore how a more conscious and active appreciation of the whole spectrum of emotions — not only anger and fear, for instance, but also empathy, compassion and wonder — may facilitate more lasting and ingenuous forms of social healing and reconciliation. (shrink)

Scholars loosely affiliated with the "Cambridge School" (e.g., Pocock, Skinner, Viroli, and Pettit) accentuate rule of law, common good, class equilibrium, and non-domination in Machiavelli's political thought and republicanism generally but underestimate the Florentine's preference for class conflict and ignore his insistence on elite accountability. The author argues that they obscure the extent to which Machiavelli is an anti-elitist critic of the republican tradition, which they fail to disclose was predominantly oligarchic. The prescriptive lessons these scholars draw from republicanism for (...) contemporary politics reinforce rather than reform the "senatorial," electorally based, and socioeconomically agnostic republican model (devised by Machiavelli's aristocratic interlocutor, Guicciardini, and refined by Montesquieu and Madison) that permits common citizens to acclaim but not determine government policies. Cambridge School textual interpretations and practical proposals have little connection with Machiavelli's "tribunate," class-specific model of popular government elaborated in The Discourses, one that relies on extra-electoral accountability techniques and embraces deliberative popular assemblies. (shrink)

In this article we investigate the value and utility of Machiavelli’s work for Community-Based Natural Resource Management. We made a selection of five topics derived from literature on NRM and CBNRM: Law and Policy, Justice, Participation, Transparency, and Leadership and management. We use Machiavelli’s work to analyze these topics and embed the results in a narrative intended to lead into the final conclusions, where the overarching theme of natural resource management for the common good is considered. Machiavelli’s focus on practical (...) realities produces new, sometimes unsettling, insights. We conclude that this focus helps to understand the development and performance of management regimes and their consequences and that institutional design should be seen as an ongoing process, which requires a constant adaptation of these institutions. (shrink)

I elicit some of Foucault’s insights to provide a more realistic picture than is the norm in social and political theory of how best to identify and overcome domination. Foucault’s vision is realized best, I argue, by combining his account with two related conceptions of domination based on human needs and realistic accounts of politics that focus on agency, power and interests. I defend a genealogical, inter-subjective account of how the determination of needs and interests forms the basis of ascertaining, (...) on a continuum, the extent to which relations of power generate states of domination. To that end I propose institutional changes that would empower citizens in positive and negative ways: power over legislation in district assemblies and via veto and repeal; real control over representatives through various means; and decennial constitutional plebiscites. (shrink)

This article argues that, contrary to conventional wisdom, Xunzi’s and Hobbes’s understandings of human nature are qualitatively different, which is responsible for the difference in their respective normative political theory of a civil polity. This article has two main theses: first, where Hobbes’s deepest concern was with human beings’ unsocial passions, Xunzi was most concerned with human beings’ appetitive desires ( yu 欲), material self-interest, and resulting social strife; second, as a result, where Hobbes strove to transform the pathological (anti-)politics (...) of resentment into the politics of recognition by creating rational egalitarian citizenship under the all-encompassing constitutional sovereign power, Xunzi attempted to nourish human beings’ basic appetitive desires ( yu 欲) by instituting a li 禮 ordered civil entity. This article concludes by showing how Confucian civility that Xunzi reconstructed by means of the li 禮 can effectively deal with unsocial passions. (shrink)

Positive arguments on behalf of passion are scarce in liberal political theory. Rather, liberal theorists tend to push passion to the margins of their theories of politics, either by ignoring it or by explicitly arguing that passion poses a danger to politics and is best kept out of the public realm. The purpose of this essay is to criticize these marginalizations and to illustrate their roots in impoverished conceptions of passion. Using a richer conception of passion as the desire for (...) an envisioned good, I argue that it is neither possible nor desirable to eliminate passion from politics. Passion should therefore be established as a central category of analysis in political theory alongside other key concerns. Key Words: passion • reason • politics • liberalism • eros. (shrink)

The doctrine of “sovereign immunity” holds that the U.S. government cannot be sued without its consent. This is not found in the Constitution’s text; it is justified on philosophical grounds as inherent to being a sovereign state: a sovereign must be able to issue commands free from constraint. The sources of this understanding of sovereignty—Hobbes, Bodin, and others—are, in turn, condemned by opponents of sovereign immunity as absolutists whose doctrines are incompatible with limited, constitutional government. This debate, and thus the (...) usual conception of sovereign immunity, rests on a fundamental mistake. Hobbes and his peers were careful to avoid the conflation of government with sovereignty. “Sovereign” immunity, then, is an imposter doctrine that protects government officials by falsely draping them in the sovereign’s cloak. The only sovereign actor, in the American polity, is the people in the act of making or amending the Constitution. Our true, Hobbesian sovereign immunity is nothing more than our unbounded freedom to enact constitutional law. (shrink)

This article aims to challenge the idea of a ‘balance’ between security and liberty. Set against the background of ever greater demands for security, the article argues that the idea of balance is an essentially liberal myth, a myth that in turn masks the fact that liberalism's key category is not liberty, but security. This fact, it is suggested, undermines any possibility of liberalism challenging current demands for greater security, as witnessed by the thoroughly authoritarian ‘concessions’ to security by some (...) contemporary liberals. More ambitiously, the article also suggests that attempts to develop a ‘radical’ politics of security are misplaced, and that what is needed is more a political critique of the concept. (shrink)

Apart from examining the use of the Secession Reference in three post-Yugoslav, Southeastern European countries, this article also suggests that there is a different, more general reading of the Secession Reference that could have been deployed in Southeastern Europe. Before discussing what I call the ‘spirit of the Secession Reference’, I examine an important preliminary question: what could justify the migration of such a general constitutional idea? I argue that existing justifications for the use of comparative jurisprudence are either inadequate (...) or need to be qualified before we can make an argument that the spirit of the Reference can indeed migrate. I then turn to outlining the components of the Secession Reference’s spirit. My argument is that the Secession Reference should be approached not only as a set of particular arguments and interpretive strategies, but also as embodying a distinct way of dealing with deep national diversity. To me, the spirit of the Secession Reference comprises four components: First, it embraces radical political projects as legitimate. Second, it establishes that all contentious political issues are subject to principled negotiations. Third, in doing so, it downplays the dominant contemporary vocabulary of popular sovereignty and self-determination. Fourth, as a result of the previous three components, the spirit of the Secession Reference simultaneouslyrespects and deflatesradical nationalist mobilization. (shrink)

The purpose of this paper is to analyse the limits of constitutional reform. Some constitutions, for example, the German (art. 79, sec. 3), the Italian (art. 139), the Portuguese (art. 288), the French (art. 89, sec. 5), and the Brazilian (art. 60, sec. 4), contain an “essential core” of rights, which is usually understood as being immune to change. The initial focus in the paper is on the discussion on whether and to what extent these “essential cores” are indeed immune (...) to change. A second focus is on Ross's paradox. Here I analyse and reject Ross's own solution to the paradox and I show, too, that the paradox admits no solution that does not imply a discontinuity in the legal system. (shrink)

This article is about the Indian Evidence Act. It explains how evidence is the script that carries law's unconscious. One one hand, evidence is the site of reason, and on the other hand it is the performative site of the unconscious. The operation of the Evidence Act requires a court, arguments, ways of producing evidence, counter-arguments, scrutiny of the nature of the evidence submitted, and finally the disputation around what constitutes an evidence – and then the judgement. This article argues, (...) through a brief presentation of the history of the Act, how law in this way combines the normative and the performative – science of inquiry and the unpredictable script of the outcome, procedure and the spectacle built around elements such as live deposition and the hermeneutic power of the image, rational considerations and emotion, virtuality and the event, serious business in the court and the element of drama. The article suggests (with a bit of irony) the injunction that to see what law is and how it functions we can go to the cinema, and to see what cinema is we can go to the court. (shrink)

While Weber’s distinction between ‘ideal’ and ‘material’ interests is one of the most enduring aspects of his theoretical legacy, it has been subjected to little critical commentary. In this article, we revisit the theoretical legacy of interest-based explanation in social theory, with an eye to clarifying Weber’s place in this tradition. We then reconsider extant critical commentary on the ideal/material interest distinction, noting the primarily Parsonian rendering of Weber and the unproductive allegiance to ‘generic need’ readings of Weber’s action theory. (...) We reconstruct the basis of the ideal/material interest distinction in the work of Rudolph von Ihering and provide a sounder basis for its analytic role in Weber’s ‘grand’ project. (shrink)

Ratio Juris, Volume 34, Issue 2, Page 161-179, June 2021.

For liberal political philosophers the notion of ?reasonableness? has provided a moral and legal standard for judging the acceptability and, by extension, legitimacy of government behaviour. In order for a government directive to constitute a legitimate obligation on citizens, it must be compatible with the dictates of reason and treat all citizens in a reasonable manner. Arguably, such an approach achieves its most powerful presentation (to date, at least) in the theories of ?political? liberals, who typically assert that reasonableness must (...) be the ?final court of appeal? in relation to decisions concerning matters of public import ? i.e., those that place demands upon all citizens of the polity. According to political liberals, only by adopting and maintaining a governance framework that assigns primacy to reasonableness is it possible to obtain and preserve the desired protection against the abuse of political power. The purpose of this essay is to offer a brief review of the ?reasonableness? paradigm promoted by political liberals (in particular), and in the course of doing so, identify and assess a number of difficulties that would seem to undermine its ability to achieve its stated goal. (shrink)

Philip Pettit ,Aude Bandini | : La démocratie signifie d’abord et avant toute chose l’idée d’un contrôle populaire, et ce par l’ensemble des moyens possibles. Ces moyens donnent lieu à la légitimité. Mais ces contrôles populaires, du moins tels qu’ils sont entendus dans de nombreuses discussions, ne donnent pas lieu à la légitimité espérée. Les théories de la démocratie ne partagent pas une même conception des choses à ce sujet, ce qui donne lieu à une pluralité d’approches. Dans cet article, (...) l’auteur soutient que la réponse la plus intéressante à cette question implique une réinterprétation de la notion de contrôle populaire. | : Democracy means popular control, by almost all accounts. And by almost all accounts democracy entails legitimacy. But popular control, at least as that is understood in many discussions, does not entail legitimacy. So something has got to give. Democratic theories divide on what this is, so that the question prompts a taxonomy of approaches. The most appealing answer, so the paper suggests, involves a reinterpretation of the notion of popular control. (shrink)