Globalization can undermine as well as enable public discourse at the national, international, and supranational levels. A challenge for political theory is to imagine how a global public realm might be constituted. Because the public realm has flourished in states whose citizens are related under the rule of law, one might ask whether this model of civil association can be extended to a broader and potentially universal context. Given the contingent obstacles to a global state, realizing civil association globally implies (...) a universal confederation of rule‐of‐law states. If the public realm means free deliberation on the laws of a civil association, the ‘global public realm’ would include deliberation at all three levels. (shrink)

The contemporary global crisis can be explored in different perspectives. This text focuses on constitutionalism. It asks whether constitutionalism still matters. Responding to this question requires revisiting the basic analytical and normative concepts that shape individual autonomy, polity, law and democracy in the context of globalization. Part I of the article introduces the question of the crisis of constitutionalism. It briefly explores the dispute between proponents of state and post-state constitutionalism, and proceeds with an analysis of societal constitutionalism. The critical (...) reading of this theory prepares the ground for a positive normative argument. Part II of the article argues for the return to the moral core of constitutionalism. It defends the claim that justice at the global stage requires establishing a minimum common denominator that would be composed of universalizable substantive principles. The institutional question follows. Its focus should be on the authoritative identification, protection and advancement of the core values of constitutionalism in the social and legal-political realms of the world society. (shrink)

Democracy is in serious difficulties. Three features of the crisis stand out. First is the dominant culture of disillusionment in democracy, which transpires as the mistrust in constitutionalist institutions and values. Second, political authority, both at domestic and international levels, is largely substituted by the rule of non-transparent and unpredictable social powers. Third, democratic states are deprived of much of their capacity to govern, but they retain a non-negligible capacity to coerce.The article is structured as follows. Section I introduces Karl (...) Polanyi’s concept of embeddedness and juxtaposes it to the theoretical defense of market disembeddedness advanced by the classical political economy. It then points to the challenge that the complexity of the contemporary society poses to the idea of embeddedness and identifies the need for further analytical clarification of the idea. Section II tries to explain why the idea of embeddedness is intuitively suspect. One reason is found in the domi... (shrink)

My 2019 article ‘From Planning to Prototypes: New Ways of Seeing Like a State’ (P2P) drew attention to some shortcomings of the kinds of critical, reformist impulses fostered in law and development work. I sought to show that persistent preoccupations with the destructive hubris of ‘top-down’ planning—especially state planning—bypassed the tendency for great power to be deployed in other stylistic modes: through the release and responsive tweaking of prototypes, for instance. This article engages with later developments—at one of P2P’s main (...) field sites and scholarly literature in dialogue with P2P—to build upon the analysis therein. It elaborates on the kinds of power animated through prototyping, showing how prototyping is often combined with other governance styles and what it makes of the inputs on which law has typically been said to draw and of law’s claims to autonomy. It complicates the provenance of this style by reference to mid-to-late-twentieth century UN sanctions regimes, highlighting that governance prototyping is as much state-made as business-led and not restricted to the development field. With particular attention to the strangeness of the human user presupposed by prototyping, this article also aims to identify some modes of critical engagement to which this governance style might be answerable. (shrink)

This paper examines the changing relationship between the disciplines of international criminal law and international human rights law; I particularly focus on the associations of the former with comfort and the latter with discomfort. It appears that a shift may be taking place in that ICL is being refashioned from a field enforcing human rights law to one which has assumed an entirely independent status. Indeed, ICL appears to be crowding out international human rights law. The inquiry begins with the (...) question whether ICL is becoming the preferred discursive framework for practitioners, academics, and politicians. A contemporary desire for certainty over contention, action over discourse, and simplicity over complexity is revealed; in short, a preference for comfort over discomfort. The second half of the paper is dedicated to highlighting some of the concerns attached to this preference and suggesting possible techniques for addressing these concerns. Employing the idea of ‘discomfort’, I refer to the relevance of Michel Foucault’s Ethics of Discomfort, Judith Butler’s idea of the Language of Discomfort, and draw on Franz Kafka’s literary exploration of the Comfort in Discomfort. The ideas culminate in a call for relearning the comfort in discomfort of contention, discourse and complexity in international law. (shrink)

This essay analyzes the doctrine of “humanitarian intervention” in the frame of international law in the second half of nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal laws of humanity. The analysis emphasizes the transformation of the paradigm of “humanitarian intervention” into the current doctrine of the “responsibility to protect,” which under the rubric of “responsibility” legitimizes limitations on a state's sovereignty in cases where the state fails to guarantee the protection (...) of its own population. This reconstruction of the genealogy of “humanitarian intervention” illustrates the continual exceptions to the principle of nonintervention, which means that the Westphalian principle of sovereignty has always been violated. Both doctrines—humanitarian intervention and the responsibility to protect—can be considered “hegemonic techniques” that use so-called universal concepts in order to legitimize unilateral power interests. (shrink)