Consonant with the ongoing “aesthetic turn” in legal scholarship, this article pursues a new conception of law as poetry. Gestures in this law-as-poetry direction appear in all three main schools in the philosophy of law’s history, as follows. First, natural law sees law as divinely-inspired prophetic poetry. Second, positive law sees the law as a creative human positing (from poetry’s poesis). And third, critical legal theory sees these posited laws as calcified prose prisons, vulnerable to poetic liberation. My first two (...) sections interpret two texts at the intersections among these three theories, namely Percy Bysshe Shelley’s “A Defense of Poetry” and Alexis de Tocqueville’s Democracy in America. Shelley identifies a poetic rebirth in the ruins of natural law, suggesting a philosophy of law as “natural poesis.” And Tocqueville names several figurative aristocracies capable of redeploying aristocratic law against democratic despotism, suggesting a philosophy of law as “aristo-poetic counterforce.” Finally, I propose a new theory of law as poetry bridging these two theories, “natural aristo-poetic counterforce.”. (shrink)

If militarism violates the ideals of liberty and justice in one way, and rapidly increasing social stratification violates them in another, then American democracy is in crisis. A culture of democratic accountability will survive only if citizens revive the concerns that animated the great reform movements of the past, from abolitionism to civil rights. It is crucial, when reasoning about practical matters, not only to admit how grave one's situation is, but also to resist despair. Therefore, the fate of democracy (...) depends, to some significant degree, on how we choose to describe the crisis. Saying that we have already entered the new dark ages or a post-democratic era may prove to be a self-fulfilling prophecy, because anyone who accepts this message is apt to give up on the hard work of organizing and contestation that is needed to hold political representatives accountable to the people. This paper asks how one might strike the right balance between accuracy and hope in describing the democracy's current troubles. After saying what I mean by democracy and what I think the current threats to it are, I respond to Romand Coles's criticisms of reservations I have expressed before about rhetorical excess in the works of Stanley Hauerwas, Alasdair MacIntyre, and Richard Rorty. This leads to a discussion of several points raised against me by Hauerwas. A digression offers some of my reasons for doubting that John Howard Yoder's biblical scholarship vindicates Hauerwas's version of pacifism. The paper concludes by arguing that Sheldon Wolin's work on the evisceration of democracy, though admirably accurate in its treatment of the dangers posed by empire and capital, abandons the project of democratic accountability too quickly in favor of the romance of the fugitive. (shrink)

In this essay I investigate conceptual foundations of populist ideological attempts to decontest the language, symbols and ambitions of popular sovereignty. Using Michael Freeden's morphological approach to analysing ideologies, I argue that unpacking the conceptual basis of populist incursions into contemporary political narratives sheds important light on left?right contests over the nature of democracy. From this vantage point, we see that forces on the left and right contest the normative and policy implications of three key features in populism's normative democratic (...) core: (1) the relationship between popular sovereignty and representation; (2) the nature of equality; and (3) the political economy of the conflict between ?the people? and elites. (shrink)

Democracy is admired for fostering deliberation, debate and innovation. Yet there is also the persistent suspicion that it is anti-intellectual. This article turns to one of the foremost theorists of modern democracy, Alexis de Tocqueville, to assess his contribution to the debate on democratic anti-intellectualism. It argues that Tocqueville denies democracy is anti-intellectual, yet he also claims democracy favours a distinctive intellectual life, informed theoretically by a Cartesian scepticism and practically by the dominance of a practical and commercial perspective in (...) the sciences, arts and literature. The article concludes by examining the technocratic implications of this form of intellectualism for democratic stability and legitimacy. (shrink)

The paper clarifies Havel’s perception of post-democracy through his various writings and speeches, in comparison with the concepts of post-democracy as proposed by C. Crouch, J. Rancière, R. Rorty, S. Wolin, J. Habermas, and Ch. Mouffe. Consequently, Havel’s critique of the then Western parliamentary democracy and the very essence of his notion of post-democracy will be thoroughly illuminated. The historical and intellectual circumstances that shaped his thinking on the topic will be analysed as well. Some misinterpretations of Havel’s thinking that (...) have emerged in the meantime will also be clarified. (shrink)

El presente trabajo pretende demostrar que la categoría despotismo analizada por Tocqueville afecta principalmente a la subjetividad y no a la lógica social de la democracia moderna. Para demostrar esta premisa, se explora la influencia de la filosofía política aristotélica en la psicología moral del autor francés, para mostrar que los atributos empíricos de esta conexión permiten constatar una concepción «asentida» de despotismo que condiciona el comportamiento, en detrimento de interpretaciones que abogan por una exclusiva congruencia estructural de sus efectos.

One of Tocqueville’s best-known empirical claims in Democracy in America is that there is no national-level public administration in the United States. He asserts definitively and repeatedly that “administrative centralization does not exist” there. However, in scattered passages throughout the text, Tocqueville points to multiple federal agencies that contemporary historians and APD scholars characterize as instances of a growing national administrative system, such as the Post Office Department and the Bureau of Indian Affairs. I reevaluate Tocqueville’s treatment of bureaucracy in (...) America in light of this evidence. I contend that Tocqueville, perhaps in spite of himself, reveals even the most paradigmatic examples of active, democratic self-government in Democracy in America—townships and other voluntary associations—to be embedded in and causally supported by a network of interrelated, centralized public administrative institutions. Crucially, Tocqueville never resolves the tension between his acknowledgment of the causal power of these institutions and his claims that they do not exist. This new picture of the empirical and normative complexity of Tocqueville’s treatment of bureaucratic institutions offers a rich set of conceptual resources for contesting, among other claims, the political construction of nostalgia for a lost age of do-it-yourself White settler democracy in a time before bureaucracy in America. (shrink)

This paper revisits Tocqueville’s famous portrait of the American female, which begins with assertions of her equality to males but ends with her self-cloistering in the domestic sphere. Taking a cue from Tocqueville’s extended sketch of the “faded” pioneer wife in “A Fortnight in the Wilderness” and drawing connections to Tocqueville’s criticisms of the division of industrial labor, I argue that the American girl’s ostensibly free choice to remove herself from public life is not an act of freedom. Rather, it (...) is a manifestation of a particular type of unfreedom that reveals underappreciated connections between the two great dangers about which Democracy in America warns: tyrannical majoritarianism and soft despotism. My argument that the girl’s choice to withdraw from public life is coerced rather than free thus highlights the nonpolitical sources of oppression that exist within democratic societies. The paper concludes by raising questions about the need for coercion within Tocquevillian democracy and the implications of this for Tocqueville’s “new” political science—indeed, for his liberalism more generally. (shrink)

Frágil é, segundo Alexis de Tocqueville, o equilíbrio em que se encontra a liberdade em um estado social de igualdade de condições. Tomados pela sua maior paixão, a da igualdade, os homens democráticos podem assistir a conversão da liberdade em despotismo ao se entregarem à busca exclusiva de seus interesses e bens privados, ao abdicarem da faculdade de julgar, deixandose guiar servilmente pela opinião da maioria, a fonte da autoridade em tal estado social. Em face disso, este artigo sustenta que, (...) ao discorrer acerca dos costumes estadunidenses, n'A Democracia na América, o autor não faz mera descrição mas delineia uma teoria social, a doutrina do interesse bem compreendido, a qual relacionaria, na república americana, a virtude e o interesse, e poderia fornecer elementos para instruir as sociedades democráticas. (shrink)

Throughout his career, Alexis de Tocqueville was deeply concerned about the replacement of public-minded politics by materialistic egoism in modern democratic societies. Though there is a substantial literature on his response to democratic materialism, the poetic aesthetic category of the ideal and beautiful has been rarely discussed as a major element of his remedy for the crisis. Contrary to a common scholarly assumption, this article argues that Tocqueville conceived democratic individuals’ poetic taste for the ideal and beautiful as a key (...) source of materialistic democracy’s political redemption. Focusing on his poetic idealisation of the French revolutionaries of 1789, the article recovers a branch of his political aesthetics according to which the beauty of a heroic moral ideal inspired by revolutionary political actors can play a significant role in generating public-spirited politics in a democratic society. Unlike contemporary neo-Tocquevillian scholars who tend to privilege the language of interest or duty in reinvigorating the public life of liberal democracy, Tocqueville believed in an alternative strategy premised on the essentially poetic nature of democratic citizens. (shrink)

The Religion of Humanity has typically been associated with Auguste Comte's positivism. Within liberal philosophical debate, John Stuart Mill's measured advocacy for it has received some attention, especially given his otherwise well-known emphasis on the tension between religion and liberty. Yet Alexis de Tocqueville's perceptive awareness of the Religion of Humanity as an evolving phenomenon, expressed through his discussion of democratic poetry, remained largely unnoticed. Of course, Tocqueville's essential religio-political task was to promote a modified version of Christianity and buttress (...) the standing of religious morality as an outside barrier against human action motivated by democratic materialism, notwithstanding the secular doctrine of self-interest well understood. Indeed, despite the neutral tone of Tocqueville's discussion of democratic poetry, elsewhere his critique of democratic pantheism, writers and orators, theatre, and historians warned against excessive veneration of humanity, which amounted to a sublimation of the dogma of the sovereignty of the people. (shrink)

Prior generations’ electoral crises (e.g., gerrymandering) have dealt mainly with political maneuverings around geographical shifts. We analyze four recent (1998–2003) American electoral crises: the Clinton impeachment controversy, the 2000 Florida presidential election, the Texas legislators’ flight to Oklahoma and New Mexico, and the California gubernatorial recall. We show that in each case temporal manipulation was at least as important as geographical. We highlight emergent electoral practices surrounding the manipulation of time, which we dub “temporal gerrymandering.” We suggest a theory of (...) postmodern electoral crises, in which the rules of time and space are simultaneously in flux. These crises expose concerns with early American democratic theory, which was based on an understanding of “the people” as geographically and temporally unidimensional. Representative systems, therefore, were designed largely without reference to geographic and temporal complexity. (shrink)

It is widely believed that the philosophical concept of 'tabula rasa' originates with Locke's Essay Concerning Human Understanding and refers to a state in which a child is as formless as a blank slate. Given that both these beliefs are entirely false, this article will examine why they have endured from the eighteenth century to the present. Attending to the history of philosophy, psychology, psychiatry and feminist scholarship it will be shown how the image of the tabula rasa has been (...) used to signify an originary state of formlessness, against which discourses on the true nature of the human being can differentiate their position. The tabula rasa has operated less as a substantive position than as a whipping post. However, it will be noted that innovations in psychological theory over the past decade have begun to undermine such narratives by rendering unintelligible the idea of an 'originary' state of human nature. (shrink)

Sheldon S. Wolin’s ‘fugitive democracy’ is arguably his most provocative contribution to political theory. Breaking with the understanding of democracy as a constitutional form whose origins he locates in the work of Aristotle, Wolin claims democracy is better understood not as a constitution, but as a ‘rebellious moment,’ making democracy dependent on cultural rather than institutional characteristics. This formulation poses a problem for democracy as a political phenomenon, as political power today tends to be concentrated within institutions. Without institutional expression, (...) democracy is alienated from political power and hence a contradiction in terms. I reconstruct an understanding of Wolin’s fugitive democracy that can avoid such problems, while also being adequate to the current political juncture. I argue that Aristotle’s conception of the practice of justice, read through the lens of Wolin’s ‘fugitive democracy,’ becomes ‘fugitive justice,’ the cultivation of a democratic ethos that might support and sustain fortuitous democratic moments, connecting democratic culture to political institutions. In this way, Aristotle’s work is split: not simply the founder of constitutionalism, through ‘fugitive justice’ Aristotle becomes a resource for radical democrats, and a complement to Wolin’s concept of democracy. (shrink)