The chapters in this book deal with different, though related, topics concerning the tense relationship between democracy and diversity. On the one hand, social diversity represents an opportunity, widening the horizon of social options and perspectives of innovation, but, on the other hand, it creates problems for the social cohesion and peaceful coexistence of many groups, be they majority or minority. The chapters depart from the intrinsic connection between democracy and diversity – and the unavoidable challenges that pluralism poses to (...) decision-making procedures – investigating, from different perspectives, how the normative requirement of fully respecting agents’ reflexive agency impacts the revision of democratic decision-making procedures and the way in which institutions react to citizens’ justice-based claims. (shrink)

This paper analyses the possibility of granting legitimacy to democratic decisionmaking procedures in a context of deep pluralism. We defend a multidimensional account according to which a legitimate system needs to grant, on the one hand, that citizens should be included on an equal footing and acknowledged as reflexive political agents rather than mere beneficiaries of policies, and, on the other hand, that their decisions have an epistemic quality. While Estlund’s account of imperfect epistemic proceduralism might seem to embody a (...) dualistic conception of democratic legitimacy, we point out that it is not able to recognize citizens as reflexive political agents and is grounded in an idealized model of the circumstances of deliberation. To overcome these ambiguities, we develop an account of democratic legitimacy according to which disagreement is the proper expression of citizens’ reflexive agency and the attribution of epistemic authority does not stem from a major expertise or specific ability, but it comes through the public confrontation among disagreeing agents. Consequently, the epistemic value of deliberation should be derived from the reasons-giving process rather than from the reference to the alleged quality of its outcomes. In this way, we demonstrate the validity of the multidimensional perspective of legitimacy, yet abstain from introducing any outcome-oriented criterion. Finally, we argue that this account of legitimacy is well suited for modeling deliberative democracy as a decision-making procedure that respects the agency of every citizen and grants her opportunity to influence public choices. (shrink)

This paper uses discourse analysis to examine the free/libre and open source movements. It analyses how they fix elements within the order of discourse of computer code production. It attempts to uncover the key signifiers in their discourses and trace linkages between the sedimented discourses of wider society. Using discourse theory and critical discourse analysis, the theoretical foundations underpinning each of the movements are critically examined and the effect on the wider developer and Internet community is discussed. Additionally, this paper (...) seeks to recommend discursive strategies that could be employed to avoid the threat of colonization by neoliberal discourse and the consequent challenge this has for the ideas of freedom, liberty and community within the developer communities' own discourses. (shrink)

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialec-tical notion of rationality this alternative account espouses an ambitious (...) approach to rea-soning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their recip-rocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive. (shrink)

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialectical notion of rationality this alternative account espouses an ambitious (...) approach to reasoning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their reciprocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive. (shrink)

This article defends deliberative democracy against the problem of tacit knowledge. It has been argued that deliberative democracy gives a privileged position to linguistic communication and therefore excludes tacit forms of knowledge which cannot be expressed propositionally. This article shows how the exclusion of such knowledge presents important challenges to both proceduralist and epistemic conceptions of deliberative democracy, and how it has been taken by some to favour markets over democratic institutions. After pointing to the limitations of market alternatives, deliberative (...) democracy is defended by arguing that tacit knowledge can be brought into deliberation through the mechanism of trust in testimony. By trusting the testimony of a speaker, deliberators are able to act on knowledge even without it being explicitly expressed. The article then goes on to discuss the implications of this defence for deliberative theory, and particularly, the forms of reason which deliberative democrats must see as legitimate. (shrink)

(2001). The rule of law and the rule of persons. Critical Review of International Social and Political Philosophy: Vol. 4, Trusting in Reason: Martin Hollis and the Philosophy of Social Action, pp. 221-251.

The article elaborates an original intertwined reading of republican theory, deliberative democracy and political equality. It argues that republicans, deliberative democrats and egalitarian scholars have not paid sufficient attention to a number of features present in these bodies of scholarships that relate them in mutually beneficial ways. It shows that republicanism and deliberative democracy are related in mutually beneficial ways, it makes those relations explicit, and it deals with potential objections against them. Additionally, it elaborates an egalitarian principle underpinning the (...) resulting model that I label Equality of Access and Deliberation. The upshot of these considerations is a novel and mutually reinforcing interrelated three-tiered theoretical and institutional proposal. (shrink)

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described (...) by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society. (shrink)

IN the last decade deliberative democracy has developed rapidly from a “theoretical statement” into a “working theory.”1 Scholars and practitioners have launched numerous initiatives designed to put deliberative democracy into practice, ranging from deliberative polling to citizen summits.2 Some even advocate deliberation as a new “revolutionary now.”3 Deliberative democracy has also experienced the beginning of an empirical turn, making significant gains as an empirical (or positive) political science. This includes a small, but growing body of literature tackling the connection between (...) the normative standards of deliberation, how well they are met, and the empirical consequences of meeting them.4 This trend has, for instance, included the use of methods and frameworks borrowed from other fields, such as political and social psychology. Such studies suggest that cases approaching ideal deliberation are rare, but that group interaction sometimes works surprisingly well according to such ideals.5. (shrink)

In Modernism as a Philosophical Problem Robert Pippin offers an interpretation of post-Kantian continental philosophy that locates the project of autonomy or self-determination at the center of the modernity/postmodernity debate and presents Hegel as a kind of radical, post-Kantian modernist, whose philosophical "experiment" is preferable to more recent attempts to overcome or deconstruct metaphysics. I raise some questions about the adequacy of Pippin's interpretation of Hegel's notion of a rational justification, at least as it bears on his argument in the (...) Philosophy of Right, and I express some reservations about Pippin's own attempt to view modernity in terms of the project of autonomy. I conclude with some reasons for preferring Habermas's account of modernity which, without abandoning the project of autonomy, relinquishes the idea of a self-grounding of reason and proposes a more modest role for philosophy within the current division of intellectual labor. (shrink)

ABSTRACT:Partnerships between companies and NGOs have received considerable attention in CSR in the past years. However, the role of NGO legitimacy in such partnerships has thus far been neglected. We argue that NGOs assume a status as special stakeholders of corporations which act on behalf of the common good. This role requires a particular focus on their moral legitimacy. We introduce a conceptual framework for analysing the moral legitimacy of NGOs along three dimensions, building on the theory of deliberative democracy. (...) Against this background we outline three procedural characteristics which are essential for judging the legitimacy of NGOs as potential or actual partners of corporations. (shrink)

In order to take ethical considerations of patenting biological material into account, the so-called “ordre public or morality clause” was implemented as Article 6 in the EC directive on the legal protection of biotechnological inventions, 98/44/EC. At first glance, this seems to provide a significant advantage to the European patent system with respect to ethics. The thesis of this paper argues that the ordre public or morality clause does not provide sufficient protection against ethically problematic uses of the patent system (...) within the area of life. On the contrary, there are worrisome obstacles to any effective and comprehensive critical analysis of the ethical aspects of bio-patenting, especially in the field of agriculture. These obstacles can be seen as indirect consequences of the implementation of ethical considerations in form of the ordre public and morality clause in the EC Directive. Therefore, Article 6 of the EC Directive on the legal protection of biotechnological inventions seems to ultimately weaken the position of ethics in the debate concerning bio-patenting because the ordre public and morality clause is usually interpreted in an exclusively bio-ethical way in the sense of an “intrinsic ethics,” which is primarily interested in questions regarding the moral status of particular entities. It is argued that an important cause of this phenomenon is that the decisive reasons against bio-patenting are concerns of social ethics, and not bio-ethics. (shrink)

Deliberative democracy is often celebrated and endorsed because of its promise to include, empower, and emancipate otherwise oppressed and excluded social groups through securing their voice and granting them impact in reasoned public deliberation. This article explores the ability of Habermas’ theory of deliberative democracy to accommodate the demands of historically excluded social groups in democratic plural societies. It argues that the inclusive, transformative, and empowering potential of Habermas’ theory of deliberative democracy falters when confronted with particular types of historical (...) injustices. It falters because it pays little attention to the historical dimension of injustices and the demands to which it gives rise. The historical dimension of longstanding injustices, it is argued, gives rise to a set of distinctive demands, such as collective memory of exclusion, acknowledgement of historical injustices, taking responsibility, and offering apology and reparations for causing these injustices, which go beyond the type of democratic inclusion that is often offered by deliberative democracy. Yet, the solution is not to abandon the model of deliberative democracy. Quite the contrary, it remains a valuable basis for forward-looking political decision making. The article concludes that in order to achieve inclusive, empowering and transformative deliberation in consolidated democracies that have experienced historical injustices, the politics of reconciliation is indispensable. (shrink)

This article approaches the recent Wonder Woman film as a presentation of the tensions traditionally associated with the paradox of democratic foundations. Steeped in classical mythology, Wonder Woman adapts two origin myths from the Athenian polis: the myth of Pandora and the myth of the heroic colonizing demigod. Through its adaptation of these myths I argue that Wonder Woman offers two competing responses to the democratic paradox of founding. One is exceptionalist, where sovereign interventions by extraordinary ‘super-agents’ like Wonder Woman (...) are justified by their unique origins and identities. The second response subverts this narrative, however, offering a tragic depiction of democratic agency. Through the relationships formed with Diana’s human companions, I argue that Wonder Woman shows the insufficiency of a politics of heroic origins, suggesting agents must continually struggle to establish communities which do not ignore their historical failures or their powers to address these. Wonder Woman therefore provides important imaginative resources for resisting the kinds of seductive, exceptionalist political narrative it also presents. (shrink)

Political CSR scholars argue that multi-stakeholder initiatives (MSIs) should be designed to facilitate deliberation among corporations, civil society groups, and others affected by corporate conduct for their decisions to be considered democratically legitimate. However, critics argue that decisions reached within deliberative MSIs will lack democratic legitimacy so long as corporations are granted a role in helping to make them. If the critics are correct, it leads to a paradox. Corporations must be excluded from holding decision-making authority within MSIs if they (...) are to function as democratically legitimate regulatory institutions at a global level. However, this risks severely diminishing the incentive of corporations to support and participate within MSIs, which often depend heavily for their success on the visibility provided them by corporate participants. In this paper, I argue that this apparent paradox should be considered irrelevant to the future study of MSIs since it is both unnecessary and impractical for researchers to focus on establishing democratically legitimate systems of governance within them. Instead, I recommend an approach informed by three touchstones of pragmatic philosophy to guide their future study—a criterion of usefulness, wariness of category disputes and commitment to experimentalism. I conclude by drawing on research in political science and social psychology that demonstrates an important practical role for deliberation within such organizations, arguing that researchers must zero in on the role that inclusive deliberation can play in bolstering their effectiveness as regulatory instruments. (shrink)

Richard Rorty challenges Jurgen Habermas's belief that validity-claims raised within context-bound discussions contain a moment of universality validity. Rorty argues that immersion within contingent languages prohibits any neutral, context-independent ground, that one cannot predict the defense of one's assertions before any audience, and that philosophy can no more escape its contextual limitations than strategic counterparts. Alfred Schutz's phenomenological account of motivation, the reciprocity of perspectives, and the theoretical province of meaning can articulate Habermas's intuitions.Since any claim can be analyzed from (...) an observer's perspective for its because-motives, it can always be shown to be context-related; but to the participant involved in the in-order-to project of establishing a claim's validity, the claim appears objectively valid until counter-evidence surfaces. Rorty, even when explaining what it is to make a truth claim, resorts to the observer perspective and omits reference to the in-order-to perspective, within which alone unconditional validity becomes visible. Furthermore, the expectation that one's claim is universally valid depends not on an empirical prediction that one''s claim can survive hypothesized future possible audiences. Rather, because of the reciprocity of perspectives, making possible communication and a common life, theoreticians assume that others will recognize what they take to be objective or valid, independently of diverse biographical circumstances. Finally, within the theoretical province requiring relevances different from those of everyday life, philosophy articulates claims with a greater potential to arrive at universal validity than projects that aim less universally, in spite of the fact that its theoretical context is always susceptible to because motive analysis. (shrink)

AbstractIn this paper I provide a decolonial critique of received knowledge about deliberative democracy. Legacies of colonialism have generally been overlooked in theories of democracy. These omissions challenge several key assumptions of deliberative democracy. I argue that deliberative democracy does not travel well outside Western sites and its key assumptions begin to unravel in the ‘developing’ regions of the world. The context for a decolonial critique of deliberative democracy is the ongoing violent conflicts over resource extraction in the former colonies (...) of Africa, Asia and Latin America. I argue that deliberative democracy cannot take into account the needs of marginalized stakeholders who are defending their lands and livelihoods. The paper contributes to the literature by (1) offering a critique of hegemonic models of democracy that cannot address issues of inequality and colonial difference and (2) offering possibilities to imagine counterhegemonic alternatives for a democratization of democracy from below. (shrink)

Integrative Social Contracts Theory is a popular framework to assist managers in making decisions on international moral dilemmas. Although the theory has been praised for its comprehensiveness and sophistication, commentators have raised concerns regarding the justification and identification of substantive hypernorms, fundamental moral principles valid across cultures. This paper introduces the deliberative test, a new method for testing the cross-cultural validity of ethical norms in ISCT. The test relies on the concept of Deliberative Capacity, arising from new developments in system-level (...) deliberative democracy research, which studies deliberation at the level of national societies and over time. Based on this recent stream of research, the deliberative test has the potential of providing better guidance for managers to decide which norms to follow in case of conflicting standards between home and host countries. (shrink)

This article sets out to offer a new reconceptualisation of the common good as the mechanism providing the temporal coordinates for revolutionary politics. The first section investigates the pairing of commonality and goodness, revealing its nature as a synthesis of apparently irreconcilable opposites. The second section examines how this irreconcilability is overcome, advancing the argument that to heal the divide, a double movement of definition and concealment is necessary, whereby the process of definition of what constitutes the common good is (...) accompanied by an expropriation, or hollowing out, of meaning. The third section offers a proposal for overcoming this epistemological impasse about the nature of the common good, by contrasting chronos and kairós, chronological time and what in English can be translated as ‘opportune time’, and offering kairós as the chance to create, within the fissures of the totalitarianism of chronological time, the timescape for revolutionary politics. This proposal is carried on in the second part of this article, starting with ‘Chronos and Kairós’ section, where the concept of kairós is expanded upon and coupled with the Epicurean and Lucretian idea of the clinamen, the swerve of the atoms that introduces the element of chance against Democritean determinism. With the support of Antonio Negri’s reading of kairós and clinamen, the article argues in ‘Alma Venus: Love, Desire and Revolution’ section that these two concepts provide the spatial and temporal coordinates for revolutionary politics, in tension and critical engagement with Ackerman’s idea of constitutional moments, to conclude in ‘Conclusions: Kairós and Revolutionary Politics’ section, that the common good is to be defined as that which takes place and is identified/identifiable within these coordinates. (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)

This study discusses how social movements can influence economic systems. Employing a political-cultural approach to markets, it purports that 'compromise movements' can help change existing institutions by proposing new ones. This study argues in favor of the role of social movements in reforming economic institutions. More precisely, Socially Responsible Investment (SRI) movements can help bring SRI concerns into financial institutions. A study of how the French SRI movement has been able to change entrenched institutional logics of the French asset management (...) sector provides wide-ranging support for these arguments. Empirical findings are drawn from a longitudinal case study (1997-2009), based on participative observation, interviews and documentary evidence. Implications for research on social movements, institutional change and SRI are outlined. Lastly, the study provides practitioners with some theoretical keys to understand the pros and cons of 'SRI labels'. (shrink)

ABSTRACTThis article studies multi-stakeholder initiatives as spaces for both deliberation and contestation between constituencies with competing discourses and disputed values, beliefs, and preferences. We review different theoretical perspectives on MSIs, which see them mainly as spaces to find solutions to market problems, as spaces of conflict and bargaining, or as spaces of consensus. In contrast, we build on a contestatory deliberative perspective, which gives equal value to both contestation and consensus. We identify four types of internal contestation which can be (...) present in MSIs—procedural, inclusiveness, epistemic, and ultimate-goal—and argue that embracing contestation and engaging in ongoing revision of provisional agreements, criteria, and goals can enhance the democratic quality of MSIs. Finally, we explore the implications of this perspective for theorizing about the democratic quality in MSIs and about the role of corporations in transnational governance. (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)

In this article we consider certain elements of the normative theory of Jürgen Habermas in the light of the proposals of Bruce Ackerman, with a view to strengthening a concept of deliberative democracy applied to the legitimation of juridical rules. We do not construct a hierarchy of the two positions, but seek to bring together certain elements to achieve a common project. As the starting point for examining the work of the two authors, we take the scheme proposed by Habermas (...) in Faktizität und Geltung. In this connection, through the work of Ackerman, we intend to fill in some of the gaps that Habermas appears to have left in the theory of radical democracy applied to the law. The work of Ackerman can make a significant contribution to deliberative democracy, to the discourse principle that Habermas defines, and to the contractualist theories from a liberal perspective. The study of these contributions makes possible a critical judgment that enables the legitimation of juridical rules carried out by Habermas to acquire greater practicity. In examining the epistemological status of juridical science and law, we attempt to determine the weight and the performance of normative democracy. In Tarr's view, it is a matter for philosophers to examine direct democracy and its desirability. (shrink)

This article takes up the question of how to facilitate substantive inclusion in deeply divided societies. Turning to deliberative democracy and consociationalism, we find that there is a surprising amount of overlap between the two potentially contradictory models of inclusion. We consider the deliberative potential of consociational institutions that not only address majority and minority relations, but that also find ways to include minorities within minorities. To this end, we examine the institutions that make up a consociation and recommend a (...) two-stage approach to deliberation that facilitates the articulation of public reasons in political decision-making. We argue that extending broad inclusion in an initial stage of deliberations where people do not have to adhere to the criterion of public reason avoids pre-emptive exclusions, while introducing this criterion in a second, decision-making stage of deliberations retains the benefits of deliberative democracy. This two-stage approach addresses the democratic concerns in consociational democracy vis-à-vis minority groups and in deliberative democracy vis-à-vis marginalized groups (that is, minorities within minorities). We argue that adopting this two-stage approach will deepen the level of inclusion found within consociational democracies and widen the applicable scope for deliberative democracy, which is often thought most amenable to small-scale decision-making. (shrink)

In his plea for consensual democracy in Africa, Kwasi Wiredu recommends unanimity about what is to be done, not what ought to be done, or unanimity on action rather than unanimity of values, beliefs and opinion. I caution the use of this procedural instrument by showing that some issues are so value-laden that a group decision cannot be value-neutral. It may sometimes be more productive to entertain value differences to keep them from going underground and becoming dangerous. However, the ability (...) to locate some common interest or ground seems to be crucial for such value confrontation. (shrink)

Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is (...) understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Drawing on the 1969–1970 trial of eight radical activists accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago, the article argues for a performative re-conceptualization of sovereignty, the subject, and the law as indeterminate, unpredictable, and open-ended discursive formations. The article demonstrates how the accused, working with and against legal doctrines, norms, and discourses, rethought normative conceptions of sovereignty, law, and subjectivity as contingent power-knowledge constellations that are open, unpredictable, and un-closable. (shrink)

In this article, I locate the Critical Theoretic and Republican themes of misrecognition and domination in transnational democracy, viewed as an emancipatory project. Contrary to John Dryzek, I argue that transnational democracy requires an appropriate account of mutual recognition and personal integrity in order to ground the emancipatory dimension of this project, especially given Dryzek's analysis of transnational contests in forming personal identifications. Beyond this, I argue that the same themes are needed to supplement James Bohman's account of the normative (...) powers of dominated persons to initiate deliberation in circumstances of injustice. Primarily, my claim has been that the idea of personal integrity remains essential not only to motivating the project of transnational democracy, but also modifying the appeal to normative powers in the interest of enabling dominated persons to enter into communicative relationships and engage in public processes of critical self-examination. (shrink)

Exploring the apparent tension between Foucault’s analyses of technologies of domination – the ways in which the subject is constituted by power–knowledge relations – and of technologies of the self – the ways in which individuals constitute themselves through practices of freedom – this article endeavors to makes two points: first, the interpretive claim that Foucault’s own attempts to analyse both aspects of the politics of our selves are neither contradictory nor incoherent; and, second, the constructive claim that Foucault’s analysis (...) of the politics of our selves, though not entirely satisfactory as it stands, provides important resources for the project of critical social theory. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out of the (...) realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out of the (...) realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have (...) an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

My aim in this article is twofold. First, I will illuminate the triangular conceptual connections between responsibility, authority, and power as they are exposed in the organizational realm; second, I will show how the three concepts are distinct. Relying on the work of Peter Strawson and his followers on responsibility for my point of departure, I will show that the connection between the inner corporational authority and its inner matching responsibility is different from the connection between the outer corporational forces (...) and influences and the CSR that they develop in reaction to these. This will expose another important distinction between two kinds of responsibility: the organizational kind, as instantiated in organizations, and the social kind, which constitutes the outer aspect of the CSR. Though many thinkers address different kinds of responsibility, a comparative perspective of these different concepts is missing. I attempt to bring three of these separate discourses together to examine them alongside one another, evaluating them in the light of their differences and similarities. This will expose a new typology of ‘responsibility’ that penetrates and illuminates the relations between corporations and society and as such enhance our understanding of organizational responsibility. (shrink)

Christopher Meckstroth’s book The Struggle for Democracy poses and attempts to solve a central problem of democratic theory: what he calls the ‘paradox of authorization’, whereby the very activity of spelling out the political content of democracy is said to potentially contradict its object, since the democratic theorist may end up substituting himself or herself for ‘the people’ in deciding what this form government amounts to in practice. In order to avoid this problem, Meckstroth suggests that the political content of (...) democracy ought to be extrapolated out of concrete political struggles, by submitting competing claims to represent the people’s will to a rational scrutiny that tests them for internal coherence. While pointing out the intrinsic interest and originality of this approach, the review also advances some reservations concerning the posited criterion’s capacity to perform all the work Meckstroth assigns it. In the end, the proposed solution to the ‘paradox of authorization’ may fall prey to... (shrink)