The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...) the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

Within siting literature there is strong agreement that compensation for environmental risks is a necessary condition for local acceptance of waste treatment facilities. In-kind compensation is commonly pushed forward as being more effective than financial benefits in reducing local opposition. By forcusing on the siting of a sanitary landfill in Santiago, Chile, this paper explores the performance of both types of compensation and relates the analysis to the notion of social norms of exchange. These are understood as being based on (...) three main types of social relations: care, justice and freedom. Whereas monetary compensation is associated with market relations based on freedom and the offer of in-kind compensation to egalitarian relations based on justice, the absence of compensation is linked to fraternal relations based on care. It is argued that in-kind compensation is more acceptable than monetary payments or not compensation because people tend to understand siting conflicts more as matters of justice rather than as matters of freedom or care. (shrink)

Are government restrictions on hate speech consistent with the priority of liberty? This relatively narrow policy question will serve as the starting point for a wider discussion of the use and abuse of nonideal theory in contemporary political philosophy, especially as practiced on the academic left. I begin by showing that hate speech (understood as group libel) can undermine fair equality of opportunity for historically-oppressed groups but that the priority of liberty seems to forbid its restriction. This tension between free (...) speech and equal opportunity creates a dilemma for liberal egalitarians. Nonideal theory apparently offers an escape from this dilemma, but after examining three versions of such an escape strategy, I conclude that none is possible: liberal egalitarians are indeed forced to choose between liberty and equality in this case and others. I finish the paper by examining its implications for other policy arenas, including markets in transplantable human organs and women’s reproductive services. (shrink)

Adaptive preferences are preferences formed in response to circumstances and opportunities – paradigmatically, they occur when we scale back our desires so they accord with what is probable or at least possible. While few commentators are willing to wholly reject the normative significance of such preferences, adaptive preferences have nevertheless attracted substantial criticism in recent political theory. The groundbreaking analysis of Jon Elster charged that such preferences are not autonomous, and several other commentators have since followed Elster’s lead. On a (...) second front, Capacity Theorists Martha Nussbaum and Amartya Sen have objected that adaptive preferences lead people away from objective goods and constitute an impediment to progressive change in developing countries. In this paper I argue that the criticisms of Elster, Sen and Nussbaum fail on the one hand to take into account what may be positively said in favour of this type of preference formation, and fail on the other hand to distinguish between different types of psychological changes – with the result that many of the critiques offered have a narrower purview than is currently allowed. My analysis of adaptive preferences, even in their most ideal form, is however not entirely positive; I adduce reasons why we can be cautious about allowing adaptive preferences to play certain types of roles in political processes, even as we accept those very preferences as normative and autonomous for the agent holding them. [International scholars without access to the AJPAE are invited to email [email protected] for a pdf copy of this article.]. (shrink)

A growing body of literature in feminist philosophy exposes the way in which occupying a particular group identity inhibits an affected agent’s ability to engage in communicative exchange effectively. These accounts reveal a fault in standard liberal defences of free speech, showing how, if free speech is a goal worth pursuing, then it must involve both a concern about the legitimate limits of state interference and of the effect of social norms on an agent’s communicative capacities. Building on the emergence (...) of a ‘critical’ branch of neo-republicanism, this article argues that such speech-related injustices are best understood as a feature of structural domination that threatens the agency of those affected. Recalibrating our understanding of free speech along critical republican lines thus secures discursive agency in our communicative exchanges in a way that both ensures democratic legitimacy and realises equal status for all. (shrink)

After an initial period of feminist theorizing concerned with understanding patriarchy as a structure of male domination, many thinkers turned away from theorizing domination as such and focused instead on women's (constructed) subjectivity, identity, and agency. While this has fostered important insights into the formation of women's preferences, desires, and choices, this focus on subjectivity and subject formation has largely overshadowed deeper understandings of patriarchy as a structure of male domination while producing elisions between agency and freedom. In this article, (...) I move to show how domination as a structural concept can help us to reclaim the idea of ‘patriarchy’ as a source of women's systematic oppression while freedom as non-domination, derived from early republican conceptualizations of freedom, can help us to disambiguate freedom from agency by taking as central the relative positions of actors within social and political structures. Structural freedom as non-domination is thus useful for feminist thinkers in that it gives us critical purchase on the dynamics inherent in unequal social and political relationships and can be linked clearly to the institutions and ideologies that shape and justify interactions between more powerful and less powerful groups. Further, from this point of view intersecting structures of domination can be analysed rather than intersecting identity categories, allowing us to take intersectionality into account and avoiding the need to ground feminist action on a unitary ‘category woman’. Finally, this analysis points toward the radical democratic connexion between freedom and participation in the creation of the material and symbolic structures that frame our collective lives. (shrink)

The primary concern of this essay is with the question “What is a political community?” This question is important in its own right. Arguably, the main purpose of political philosophy is to provide an account of the nature of political association and, in so doing, to describe the relations that hold between the individual and the state. The question is also important, however, because of its centrality in contemporary debate about liberalism and community.

Bioethics has entered a new era: as many commentators have noted, the familiar mantra of autonomy, beneficence, nonmaleficence, and justice has proven to be an overly simplistic framework for understanding problems that arise in modern medicine, particularly at the intersection of public policy and individual preferences. A tradition of liberal pluralism grounds respect for individual preferences and affirmation of competing conceptions of the good. But we struggle to maintain (or at times explicitly reject) this tradition in the face of individual (...) preferences that we find distasteful, suspect, or even repugnant, especially where the broader social good or respect for equality is at stake. Directed donation presents us with such a dilemma: can we uphold the right of self-determination through respect of individual preferences regarding disposition of transplantable organs while at the same time maintaining an allocation system that reflects values of equity and justice claimed to underlie the socially negotiated practice of transplantation? Or are some preferences simply to be deemed unethical and not respected, even if that leads to a reduction in the number of transplantable organs available and to an apparent disregard for the autonomous decisions of the recently deceased? (shrink)

The aim of this paper is to consider whether some seats in a democratically elected legislative assembly ought to be reserved for representatives of future generations. In order to examine this question, I will propose a new democratic model for representing posterity. It is argued that this model has several advantages compared with a model for the democratic representation of future people previously suggested by Andrew Dobson. Nevertheless, the democratic model that I propose confronts at least two difficult problems. First, (...) it faces insoluble problems of representative legitimacy. Second, one might question whether this model provides a reasonably effective way to represent future interests compared with existing representative democratic institutions. Despite such problems, it is argued that political representation of posterity can be defended on the basis of fundamental ideas and ideals in recent theory of deliberative democracy. The first reason for this is that in a number of cases democratic decisions cannot be regarded as normatively legitimate from the point of view of deliberative democracy, unless posterity is given a voice. The second reason is that representation of posterity can contribute to more rational and impartial deliberations and decisions in legislative assemblies. (shrink)

Liberal neutrality compels governments to respect individual preferences. Yet health-promotion campaigns, such as modern tobacco control policies, often seek to cultivate a preference for a healthy lifestyle. Liberal theorists have attempted to justify these policies by appealing to the concept of ‘means paternalism’, whereby these policies align with existing preferences. In contrast, this article argues that shaping preferences can be not only permissible but also morally required. Governments can preserve neutrality while influencing preferences by promoting generic goods valued in diverse (...) societies and considering the preference-formation of future generations. This argument provides a stronger rationale for tobacco control policies. (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)

I argue that a gendered division of labor is often the result of choices by women that count as fully voluntary because they are an expression of preferences and commitments that reflect women's understanding of their own good. Since liberalism has a commitment to respecting fully voluntary choices, it has a commitment to respecting these gendered choices. I suggest that justified political action may require that we fail to respect some people's considered choices.

This article discusses the current epistemological status of the political blogosphere, in light both of the concerns raised by Alvin Goldman in his 2008 paper ?The Social Epistemology of Blogging? and the recent drastic changes in the structure of the blogosphere. I argue that the political blogosphere replicates epistemically beneficial functions of the mainstream media for the functioning of democracy, and defend this claim from objections to the blogosphere that have been levelled by Goldman and Richard Posner. I then provide (...) an expanded defence of the political blogosphere in response to these particular objections. (shrink)

Welfarism is the view that morality is centrally concerned with the welfare or well-being of individuals. The division between welfarist and non-welfarist approaches underlies many important disagreements in ethics, but welfarism is neither consistently defined nor well understood. I survey the philosophical work on welfarism, and I offer a suggestion about how the view can be characterized and how it can be embedded in various kinds of moral theory. I also identify welfarism's major rivals, and its major attractions and weaknesses.

In a recent article, Iris Marion Young raises several challenges to deliberative democracy on behalf of political activists. In this paper, the author defends a version of deliberative democracy against the activist challenges raised by Young and devises challenges to activism on behalf of the deliberative democrat. Key Words: activism • deliberative democracy • Discourse • Ideology • public sphere • I. M. Young.

Este artículo analiza las concepciones pluralista, deliberativa y participativa sobre la democracia que centran los debates actuales sobre el tema. Son modelos que parten de presupuestos distintos y llegan a diferentes conclusiones. Se analiza la noción de racionalidad y razonabilidad de los individuos. Y también, el concepto de egoísmo y la posibilidad del altruismo y el tránsito de la autonomía individual al autogobierno colectivo. Finalmente se propone la teoría de la voluntad y la teoría del interés para llegar a algunas (...) conclusiones. (shrink)

Reviso tres maneras diferentes como los ideales de la democracia deliberativa han cambiado a la luz de las preocupaciones prácticas sobre su viabilidad, es decir, haciendo cada vez más importante el problema de cómo este ideal puede acercarse a sociedades caracterizadas por profundos desacuerdos, problemas sociales de enorme complejidad e instrumentos inoperantes en sus instituciones existentes. En primer lugar, las teorías de la democracia deliberativa enfatizan el proceso mismo de la deliberación, y no sus condiciones y procedimientos ideales y contrafácticos. (...) En segundo lugar, los demócratas deliberativos se interesan cada vez más en los problemas de la institucionalización, en hacer del voto, la regla de mayorías, la representación, los tribunales y el derecho constitucional, instituciones más deliberativas, en pro de una mayor democracia directa. En tercer lugar, los deliberativistas se ocupan de examinar y comparar los diferentes escenarios y procedimientos de la deliberación, señalando problemas empíricos y obstáculos que no siempre pueden anticiparse al recurrir únicamente a argumentos conceptuales. (shrink)

In liberal moral theory, interfering with someone’s deliberate engagement in a self-harming practice in order to promote their own good is often considered wrongfully paternalistic. But what if self-harming decisions are the product of an oppressive social context that imposes harmful norms on certain individuals, such as, arguably, in the case of cosmetic breast surgery? Clare Chambers suggests that such scenarios can mandate state interference in the form of prohibition. I argue that, unlike conventional measures, Chambers’ proposal recognises that harmful, (...) discriminatory norms entail a twofold collective moral obligation: to eliminate the harmful norm in the long run, but also to address unjust harm that is inflicted in the meantime. I show that these two obligations tend to pull in opposite directions, thus generating a serious tension in Chambers’ proposal which eventually leads to an undue compromising of the second obligation in favour of the first. Based on this discussion, I develop an alternative proposal which, instead of prohibiting breast implant surgery, offers compensation for the disadvantages suffered by individuals who decide not to have surgery. (shrink)

Este artículo investiga la posible justificación de derechos culturales dentro del marco teórico del enfoque en las capacidades. El enfoque no se opone en principio a esta justificación, pero establece restricciones significantes, y correspondientemente, no es compatible con las demandas multicultur..

This article presents an approach to how to make reasonable social choices when independent criteria (e.g., prioritarianism, religious freedom) fail to fully determine what to do. The article outlines different explanations of why independent criteria sometimes fail to fully determine what to do and illustrates how they can still be used to eliminate ineligible alternatives, but it is argued that the independent criteria cannot ground a reasonable social choice in these situations. To complement independent criteria when they fail to fully (...) determine what to do, it is suggested that society must engage in public deliberation by way of generating new reasons that can determine how to rank the alternatives. It is suggested that the approach to social choice presented here reveals a way of accepting the relevance of independent criteria for social choice without letting go of the idea that the attitudes of affected parties matter. (shrink)

This article traces recent trends in British politics, liberal political theory and human rights law in order to demonstrate why the right of exit – made famous in the political theory of multiculturalism by Chandran Kukathas – may be able to mediate tensions between them. I argue that the right of exit is an insufficient test for consent because some cultures may render some members incapable of effectively exercising their autonomy. I use empirical evidence drawn from legal cases and social (...) science in conjunction with a philosophical account of agency as fundamentally ‘relational’ to unpack and defend this controversial claim. Understanding agency in relational terms sheds light on precisely how oppressive culturally permitted relationships can simultaneously constitute some individuals’ primary identities while serving to harm those very same individuals in the process. This account of agency and culture also avoids both the liberal assumption of a sovereign self and also any essentialism or reification of culture. I suggest that for an individual to have the capacity to effectively use of the right of exit, they must be able to conceive of themselves as an agent, which includes having a sense of their own moral worth and the ability to imagine the possibility of living a different kind of life. (shrink)

In the January 6, 1991, issue of theWashington Post Magazine, reporter Walt Harrington wrote a profile of Bryan Stevenson. Mr. Stevenson is a 31-year-old working-class African-American from Delaware who graduated from Harvard Law School and the Kennedy School of Government. Like the typical graduate of Harvard Law School, Mr. Stevenson had the opportunity to join the worlds of six-figure corporate law or high-visibility politics. Rather than follow his colleagues, however, Mr. Stevenson works seven-day, eighty-hour weeks as director of the Alabama (...) Capital Representation Center. He appeals death sentences, handling twenty-four death-row cases himself, supervises five other lawyers who cover about thirty cases, and raises federal government and foundation funding. He does this living a Spartan existence on a salary of $24,000, refusing even the $50,000 directorship salary offered to him. (shrink)

The recent outbreak of Ebola in West Africa has killed thousands of people, including healthcare workers. African responses have been varied and largely ineffective. The WHO and the international community’s belated responses have yet to quell the epidemic. The crisis is characteristic of a failure to properly comply with the International Health Regulations 2005. More generally, it stems from a failure of international health justice as articulated by a range of legal institutions and instruments, and it should prompt us to (...) question the state and direction of approaches to the governance of global public health. This paper queries what might be done to lift global public health as a policy arena to the place of prominence that it deserves. It argues that there are at least two critical reasons for the past, present and easily anticipated future failings of the global public health regime. After exploring those, it then articulates a new way forward, identifying three courses of action that might be adopted in realising better health outcomes and global health justice, namely value, institutional and legal reform. (shrink)

In recent years, theorists of radical democracy have criticized the liberal pluralist model of politics, a model which views the political forum primarily as a space for bargaining and the aggregation of individual preferences. While conceding that some measure of bargaining and preference aggregation is probably an ineliminable feature of democratic politics, radical democrats have charged that this model underestimates or ignores the transformative effects of democratic political interaction. In particular, liberal pluralism does not allow for the possibility that democratic (...) politics can generate new forms of solidarity, enhance personal freedom, and inculcate virtue. (shrink)

This article examines the relationship of pragmatism to the theory of deliberative democracy. It elaborates a dilemma in the latter theory, between its deliberative or epistemic and democratic or inclusive components, and distinguishes responses to this dilemma that are internal to the conception of deliberation employed from those that are external. The article goes on to identify two models of pragmatism and critically examines how well each one deals with the tension identified in deliberative democracy.

Democracies find it difficult, and sometimes impossible to get through projects desired by a large share of the population because these are strongly opposed by local residents (NIMBY: Not In My BackYard). As a solution for these conflicts, economists proposed offering (monetary) compensation to the citizens of the host community. Experiences with many different projects and countries reveal, however, that monetary payments are incapable of solving the NIMBY-problem. A monetary offer to accept an otherwise undesired project undermines civic virtue. This (...) crowding-out effect is empirically demonstrated using the search for a nuclear repository in Switzerland. A satisfactory strategy to overcome the NIMBY-problem takes into account the procedure, the time sequence, as well as the type of compensation offered. (shrink)

A popular view among autonomy theorists is that facts about the history of a person's desires, and specifically facts about how they were formed or acquired, matter crucially to her autonomy. I argue that while there is an important relationship between a person's autonomy and the history of her desires, a person's autonomy does not depend on how her desires were formed or acquired. I argue that a desire's autonomy lies not in its origins but in whether its bearer has (...) a history of having engaged with it in the right sort of way. I argue that this view has important advantages, and no obvious disadvantages, over its historical and its non-historical rivals. (shrink)

La teoría “coaseana” del derecho, y el Análisis Económico del Derecho en general, asumen implícitamente la veracidad de dos premisas comportamentales: la “exogeneidad de la preferencia” y la “independencia de la referencia”. Este artículo señala algunas objeciones a estas premisas, luego evidencia algunas implicaciones acerca de: cómo el AED –desde un punto de vista positivo– pronostica los comportamientos de las personas y los efectos de las normas jurídicas entendidas como incentivos, y cómo, –desde un punto de vista normativo– la teoría (...) económica sugiere las decisiones del juez o del legislador. El artículo además presenta los desafíos a los que se enfrenta el AED al aceptarse la premisa comportamental de que las personas valoran los derechos individuales, no en términos absolutos, sino en términos relativos, comparados con un punto de referencia. (shrink)