Plausible retributivist justifications for punishment assert that the commission of a moral wrong creates a pro tanto reason to punish the person who committed it. Yet there are good case-based and theoretical reasons to believe that not all moral wrongs are the proper subjects of criminal law or that they are within the proper domain of the state. This article provides these reasons, which suggest that a plausible retributivist justification for punishment must make distinctions between state-relevant and non-state-relevant moral wrongs (...) and state-relevant and non-state-relevant desert. The article makes the case for Rawlsian public reason as a plausible method for making these distinctions. (shrink)

This paper highlights the complex and fractured nature of EU governance, before examining various ways of introducing more light into the various dark recesses of current governance structures. The debate on transparency at the EU level is viewed through the prism of deliberative democracy and enabling more effective citizen participation in the governing processes. This model of democracy considers political participation by citizens in a broad sense which is not limited to participation in strictly political institutions (voting). From this perspective (...) the ability of citizens to effectively participate in social dialogue, in the broad sense of the term, is a definite attribute of democracy. The ability to participate in social dialogue depends to a large extent on accessibility of information and accessibility of the dialogue itself. The role of advanced information technology is obvious. It not only facilitates access to relevant information crucial for will formation processes but also facilitates social dialogue among citizens. Some form of organized and networked ‘active’ citizenry is moreover required‐ aware, committed and potent. This paper will thus further argue that ‘civil society’ (defined as in any event embracing the not for profit, public interest sector) at the EU level has a special role to play in this regard and will explore in outline some possible means of institutionalising this role in the highly specific EU context. (shrink)

This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. (...) L. A. Hart, that propose a systematic distinction between legal and moral species of obligation. (shrink)

ABSTRACT Diana Mutz's individual-level data show that participation and deliberation are often inversely related. This, according to Mutz, undermines many claims made by deliberative-democratic theory. However, a systemic approach to deliberative democracy challenges the significance of this finding. Although it is true that some citizens are political activists not open to hearing the other side and other citizens are less active but more open minded, both types of citizens make equally important and positive contributions to deliberative politics when it is (...) viewed as a system that deploys a division of labor. (shrink)

Argument teachers and scholars have frequently invoked external justification-impressing one's viewpoint upon another-as the primary social function of argument. Pluralism and fundamental disagreement in contemporary democratic societies raise questions regarding the status of argument, including the functions argument should serve. In this essay, I suggest alternatives of agenda expansion, responsibility attribution, and identity formation as important functions of argument in diverse societies. Thesealternative functions are especially important under conditions of social inequality, since they allow less powerful individuals and groups to (...) confront more powerful actors in situations where decision making is not open to all. (shrink)

The theory of rights is crucial as a means of relieving the tension between basic rights and democracy, and as a means of resolving the problem of allocating competence between the constitutional court and the legislature. To some theorists, no tension between basic rights and democracy exists, for the latter presupposes the former. To others, among whom I include myself, tension does exist, for basic rights, in lending protection to certain persons and groups, limit the possibilities of political decision. In (...) this connection it is important to take up the problem of the necessary conditions for realizing basic rights. One of these conditions concerns the delimiting of the scope of institutional action that is found, so to speak, in the space between the constitutional justices and the legislature, the latter as representative of the popular will. (shrink)

Political action is unpredictable because it unfolds among a plurality of independent actors. This unpredictability generates a fundamental puzzle: If an actor cannot know where her initiative will lead, what motivates and guides her in her doings? The aim of this paper is to develop and defend the solution to the puzzle that we can find in the thought of Hannah Arendt, namely the idea that political action is – or should be – motivated and guided by principles, principles like (...) justice, equality, or honour. Such principles must be distinguished from goals because they do not designate a specific state of affairs, but are general ideas that allow for diverse implementations. I show that this distinction is of great practical importance for the actors involved, since their outlook and their attitude towards others will differ depending on whether they see their activity as aimed at a goal or as guided by a principle. (shrink)

Abstract Bentham favored a free press as an instrument of public control of the state, in the interest of the general happiness. Kant favored free public discussion as an instrument for the development and expression of autonomous rationality. But a free press embodied in the property rights of the owners of the press may well fail to achieve either Benthamite or Kantian goals. Such goals lead to a personal right to communicate rather than to a corporate right to press freedom.

Advocates of ?deliberative democracy? want citizens to actively participate in serious dialogue over political issues, not merely go to the polls every few years. Unfortunately, these ideals don't take into account widespread political ignorance and irrationality. Most voters neither attain the level of knowledge needed to make deliberative democracy work, nor do they rationally evaluate the political information they do possess. The vast size and complexity of modern government make it unlikely that most citizens can ever reach the levels of (...) knowledge and rationality required by deliberative democracy, even if they were better informed than they are at present. (shrink)

This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and will (...) formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy. (shrink)

Habermas endorses democracy as a way to rescue modern life from the economic and bureaucratic compulsion that Weber saw as an inescapable condition of modernity. This rescue mission requires that Habermas subordinate democracy to people's true interests, by liberating their political deliberations from incursions of money or power that could interfere with the formation of policy preferences that clearly reflect those interests. But Habermas overlooks the opaque nature of our interests under complex modern conditions, and the difficulty of even knowing (...) what the modern state is doing—let alone judging whether what it is doing serves our interests well. These overlooked sources of public ignorance buttress Weber's more pessimistic understanding of democracy, and like the theatrics surrounding popular sovereignty, public ignorance both enables and masks the autonomy that allows state officials and non‐state opinion leaders to shape public policy undemocratically. (shrink)

An analysis of the epistemological structure of democratic deliberation as a procedure in which legal norms are constructed reveals that deliberation combines procedural and substantive aspects in a unique and inextricable manner. The co-original recognition of the private and public autonomy of all citizens provides the substantive critical standard against which the justice of norms is measured. At the same time, such recognition requires that the particular needs and values of all people concerned be taken into account. Given the privileged (...) epistemic access people have to their own particular perspective, this requirement implies the ineliminability of actual deliberative procedures. The open-ended nature of these constructive procedures is partly due to the fact that the rules of the procedure are counterfactual and themselves subject to interpretation. More importantly, it also reflects the historical nature of our human world and the freedom of moral persons to shape and reshape their preferences. (shrink)

Much of the interest of critical realists in the hermeneutic character of social inquiry has been shaped by debates with critics. Critical realists insist that the meaningful character of societies does not exclude the possibility of treating them as objects that have causal powers and that these objects are more than the sum-total of their meanings. In what follows, I want to go beyond this debate. Working within critical realist ontology, the question I want to ask is what kind of (...) hermeneutics is required for the study of the causal powers of meaningful objects. If hypotheses about the causal powers of such objects can be confirmed only in dialogues, then what kind of dialogues and with whom are necessary for the understanding of causal powers? The question of the interpretation of causal objects is not merely a methodological one. Social structures are ontologically different from natural ones, and the nature of our understanding of meaningful objects is in part dependent on the way we come to apprehend them in thought. I argue that the approach to the understanding of the causal power of meaningful objects that has emerged in the debate between critical realists and their critics tends to view the study of causal powers as a dialogue between experts in the service of a more democratic society. Against this view, I suggest an understanding of the study of causal powers as a dialogue between critical social science and the public, a dialogue that takes place in the public sphere. (shrink)

. The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent (...) developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international legal systems, pointing out the challenge coming from the development of "super partes" international law and jus cogens. The question concerning the appeal to the rule of law will be made: Can our attitude to the rule of international law be exempted from consistency with the rule of law that we claim for our domestic system? In order to answer this question (in the negative), an appropriate theoretical perspective is eventually proposed and displayed. (shrink)

One way of providing a focus for critical theory today is to articulate those substantive and robust norms of egalitarian justice that would appear to be presupposed by the idea of a republican and democratic constitutional order. It is suggested here that democratic justice requires the equalisation of effective communicative freedom among all structurally constituted social groups (SCSGs) and that this will have far-reaching implications that entail the deconstruction of all social hierarchies in both domestic and global orders. This argument (...) is presented in three sections. The first defends the focus on groups rather than individuals in theorising democratic justice. The second intervenes critically in contemporary debates surrounding the theoretical relation between various aspects of justice including the demands of redistribution, recognition and political empowerment. The third turns to the challenges for critical theory presented by a complex and multifaceted process of globalisation and it defends a qualified form of cosmopolitanism and highlights the need for a radical democratisation of the international order. (shrink)

ABSTRACT Laurel Gleason contends that deliberative polling constrains the autonomy of participants and substitutes the ideas and agendas of ?experts? for those of the deliberators. However, the format and informational constraints faced by participants in deliberative forums are no worse, and are in many ways better, than those faced by ordinary citizens. The real problem with deliberative polls is that if they were to become popular, it would be tempting for interest groups and partisan elites to create polls in which (...) the constraints and briefing materials subtly tilted the participants in a desired direction. Public criticism of biased deliberative polls would, in turn, invite biased criticism of unbiased polls. In short, ?policing? the quality of deliberative polls could recreate the very pathologies of real-world democratic discourse that the polls are designed to rectify. However, this problem is not insurmountable, because the participants themselves can police the proceedings by questioning the veracity and balance of the briefing materials. (shrink)

This article analyses the reception of John Rawls's thought by Otfried Höffe, Jürgen Habermas and other political theorists on the German liberal left. It argues that, ironically, as Rawls's theory has become more historically self-conscious and sociologically oriented since A Theory of Justice, Habermas, while denying any fundamental difference between him and Rawls in this `neo-Kantian family quarrel', has moved in the opposite direction. One might even say that there has been some mid-Atlantic convergence in political theory. Nevertheless, there remain (...) peculiarities of German political thought, in particular its more sociological bent, a (positive or negative) fixation on the state, and the persistently felt need finally to reconcile a perceived conflict between liberalism and democracy. (shrink)

American democracy is not unconstrained or autonomous, but instead achieves what could be termed value representation. Rather than affording representation on policy issues, elections transmit priorities among competing normative ends, while elite politics address the more complex matching of ends and means within the value boundaries established by voters. This results in neither policy representation nor state autonomy, but instead in a specific and limited form of democratic representation.

A distinction between nature and culture is usually thought to be a condition of possibility of criticism. The idea is that, in comparison to natural laws, norms and conventions are merely relative and, therefore, susceptible to criticism and change. This paper contests this view and argues that critical practice is still possible, and even more productive, when nature and culture are seen to be continuous with one another. A general contrast is developed between 'dogmatic' and 'sceptical' modes of criticism. The (...) suggestion is that theorists as diverse as Jürgen Habermas and Judith Butler adopt the dogmatic approach. An alternative, sceptical critical mode is elaborated in connection with Nietzsche and the ancient sceptics.This sceptical approach is based upon an identity between nature and culture, and has affinities with the aesthetic emphasis of some contemporary political theory. (shrink)

ABSTRACTThe normative ideals and feasibility of deliberative democracy have come under attack from several directions, as exemplified by a recent book version of a special issue of this journal. Critics have pointed out that the complexity of the modern world, voter ignorance, partisanship, apathy, and the esoteric nature of political communications make it unlikely that deliberation will be successful at creating good outcomes, and that it may in fact be counterproductive since it can polarize opinions. However, these criticisms were aimed (...) at “micro” theories of deliberative democracy. The new “systemic” turn in deliberative democracy avoids these problems by positing a system-wide division of labor in a nation-state: experts and ordinary citizens “check” each other's opinions; partisanship and even ignorance can spur deliberation among citizens; and citizens may remain apathetic about some issues but deliberate about others. So long as the overall level of systemic deliberation increases, instead of decreases, the ideal of deliberation is still relevant in a society as complex as ours. (shrink)

Pragmatism has affected American historical writing since the early twentieth century. Such contemporaries and students of Peirce, James, and Dewey as Frederick Jackson Turner, W. E. B. Du Bois, James Harvey Robinson, Charles Beard, Mary Beard, and Carl Becker drew on pragmatism when they fashioned what was called the “new history.” They wanted to topple inherited assumptions about the past and replace positivist historical methods with the pragmatists' model of a community of inquiry. Such widely read mid-twentieth-century historians as Merle (...) Curti, Henry Steele Commager, and Richard Hofstadter embraced the perspectivalism, fallibilism, and instrumentalism of the pragmatists, thereby helping to sustain the tradition during its nadir in American philosophy departments. Many historians have been drawn to the study of pragmatism during its recent renaissance; others have advanced pragmatist-inspired philosophies of history. Through such prominent contemporary historians as Thomas Haskell, David Hollinger, and Joyce Appleby, the ideas of Pierce, James, and Dewey continue to influence the historical profession. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Rhetoric, Reflection, and Emancipation: Farrell and Habermas on the Critical Studies of CommunicationG. Thomas GoodnightThere are moments in history that appear to be alive with emancipatory possibilities. Such were the years moving toward the end of the long twentieth century. In spring 1989, students protested the communist regime in China; the Tiananmen Square massacre initiated an episode of opposition and commenced China’s modern journey toward global reengagement. Revolutions in (...) Europe that autumn were more peaceful. On August 23 two million Estonian, Latvian, and Lithuanian citizens held hands and announced the Baltic Way as a departure from Soviet rule. Transitions rapidly followed in Hungary, Bulgaria, and East Germany, culminating in the Velvet Revolution where on November 17 student protests were beaten back by police in Prague only to be followed three days later by an assembly of 200,000 demanding the transfer of power from the Communist Party. On December 3, George Bush and Mikhail Gorbachev jointly announced an imminent end to the fifty-year-old Cold War. During this time of hopeful transition, two scholars were at work refiguring the philosophical mission of the Frankfurt school, transforming critique from its early totalizing posture into the critical study of communication.Thomas B. Farrell and Jürgen Habermas were trained in different traditions but adjacent disciplines, communication and sociology. Their works [End Page 421] share a commitment to philosophical inquiry directed toward critique and understanding the cultural, social, and linguistic constitution of communication. As a rhetorician and as a philosopher, these scholars share an evident passion for scholarly argument and for engagement with the controversies of public culture. In different ways, both were at work during the portentous years of transition from the Cold War to new democracies and incipient globalization. Each constructed a guarded program of hope in the possibilities of communicative reflection and reasoning. In the post-World War II era, such a broad, positive vision took long to develop. After the brutal realities of the Holocaust became publicly known in the late 1940s, “the generous faith in rationality and the possibilities of human progress which underlay much of earlier historical thought seems discredited today” (Katznelson 2003, 2). The Enlightenment possibilities for reason had been invested in the technical efficiency of modern institutions that produced the capacity to kill systematically without constraints. Ira Katznelson points to a generation of scholars—including individuals at Chicago, Columbia, the New School, and others—who began in the 1950s to engage in a project that would “shade the Enlightenment’s philosophical anthropology, thicken its defenses against evil, deepen its capacity to reason, and restore” an Enlightenment more critical and less susceptible to co-optation by the excesses of nationalism, ideology, and evil (2003, 2). The work of Farrell and Habermas belongs to the extended post-Holocaust moment, where the possibilities of reflective reason in ethical and moral deliberations were set carefully on a road to personal and collective emancipation.Max Horkheimer saw in the modern, postwar welfare state little reason for optimism. Writing in 1946 at the beginning of the Cold War, he concluded: “Language has been reduced to just another tool in the gigantic apparatus of production in modern society” (1974, 22). “Salestalk” by “the surrogates of culture” creates an “illusory triumph of democratic progress that consumes the intellectual substance on which democracy has lived” (Horkheimer 1974, 31). Scientifically engineered propaganda renders public opinion as “a substitute for reason.” With such tools, the forces of barbarism are always waiting in the wings to seize power. Early on, Habermas shared these views. His thesis, in The Structural Transformation of the Public Sphere (1989a), tracks the opening possibilities of communicative reasoning in the liminal spaces of eighteenth-century coffeehouses where frank talk replaced hierarchically driven politeness, the development of these talks into the practices of deliberative democracy, and the decline of deliberative democracy with the union of the state and mass media in producing spectacles in [End Page 422] support of rituals of legitimation. Habermas broke with Horkheimer over the dissertation, however. A thesis of decline, by itself, leaves open only the route of totalizing critique. While never far from critique of institutional practices, Habermas spent his career in opening a positive... (shrink)

On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Although the article is sympathetic to this ‘human rights approach’, it defends the (...) thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) that is, of people determining their own lives and ruling over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman’s nor Goodhart’s accounts fulfills these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (for example, institutions, laws and norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart’s work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman’s work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. Although this article develops both a conceptual and a normative argument against their proposals, the aim is not to find fault with them but to point to questions that are in need of further elaboration to make them more convincing. (shrink)