I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

The question of whether or not a closed border entry policy under the unilateral control of a democratic state is legitimate cannot be settled until we first know to whom the justification of a regime of control is owed. According to the state sovereignty view, the control of entry policy, including of movement, immigration, and naturalization, ought to be under the unilateral discretion of the state itself: justification for entry policy is owed solely to members. This position, however, is inconsistent (...) with the democratic theory of popular sovereignty. Anyone accepting the democratic theory of political legitimation domestically is thereby committed to rejecting the unilateral domestic right to control state boundaries. Because the demos of democratic theory is in principle unbounded, the regime of boundary control must be democratically justified to foreigners as well as to citizens, in political institutions in which both foreigners and citizens can participate. (shrink)

Translator's introduction -- Preface -- Part I: The aesthetics of politics -- Ten theses on politics -- Does democracy mean something? -- Who is the subject of the rights of man? -- Communism : from actuality to inactuality -- The people or the multitudes -- Bio-politics or politics -- September 11 and afterwards : a rupture in the symbolic order -- Of war as the supreme form of advanced plutocratic consensus -- Part II: The politics of aesthetics -- The aesthetic (...) revolution and its outcomes -- The paradoxes of political art -- The politics of literature -- The monument and its confidences or Deleuze and Art's capacity for resistance -- The ethical turn of aesthetics and politics -- Part III: Response to critics -- The usage of distinctions. (shrink)

He proposes, in his characteristically allusive and intriguing way, a politics of gestureOCoa politics of means without end.Among the topics Agamben takes up are the properly political paradigms of experience, as well as those generally not ...

Claude Lefort is one of the leading social and political theorists in France today. This anthology of his most important work published over the last four decades makes his writing widely accessible to an English-speaking audience for the first time. With exceptional skill Lefort combines the analysis of contemporary political events with a sensitivity to the history of political thought. His critical account of the development of bureaucracy and totalitarianism in the Soviet Union and Eastern Europe is a timely contribution (...) to current debates about the nature and shortcomings of these societies. His incisive analyses of Marx's theory of history and concept of ideology provide the backdrop for a highly original account of the role of symbolism in modern societies. While critical of many traditional assumptions and doctrines, Lefort develops a political position based on a reappraisal of the idea of human rights and a reconsideration of what "democracy" means today. The Political Forms of Modern Society is a major contribution to contemporary social and political theory. The volume includes a substantial introduction that describes the context of Lefort's writings and highlights the central themes of his work. (shrink)

Cultural-nationalist and democratic theory both seek to legitimize political power via collective self-rule: their principle of legitimacy refers right back to the very persons over whom political power is exercised. But such self-referential theories are incapable of jointly solving the distinct problems of legitimacy and boundaries, which they necessarily combine, once it is assumed that the self-ruling collectivity must be a pre-political, in-principle bounded, ground of legitimacy. Cultural nationalism claims that political power is legitimate insofar as it expresses the nation’s (...) pre-political culture, but it cannot fix cultural-national boundaries pre-politically. Hence the collapse into ethnic nationalism. Traditional democratic theory claims that political power is legitimized pre-politically, but cannot itself legitimize the boundaries of the people. Hence the collapse into cultural nationalism. Only once we recognize that the demos is in principle unbounded, and abandon the quest for a pre-political ground of legitimacy, can democratic theory fully avoid this collapse of demos into nation into ethnos. But such a theory departs radically from traditional theory. (shrink)

In political theory it goes without saying that the constitution of government raises a claim for legitimacy. With the constitution of the people, however, it is different. It is often dismissed as a historical question. The conviction is that since the people cannot decide on its own composition the boundaries of democracy must be determined by other factors, such as the contingent forces of history. This article critically assesses this view. It argues that like the constitution of government, the constitution (...) of the people raises a claim for legitimacy. The failure to see this is what makes many theorists run into the arms of history. They submit the legitimacy of the people to the arbitrary and asymmetrical forces of the present. (shrink)

Jurisprudence is the prudence of jus, law's consciousness and conscience. Throughout history, when thinkers wanted to contemplate the organisation of society or the relationship between authority and the subject, they turned to law. All great philosophers, from Plato to Hobbes, Kant, Hegel, Marx and Weber had either studied the law or had a deep understanding of legal operations. But jurisprudence is also the conscience of law, the exploration of law's justice and of an ideal law or equity at the bar (...) of which state law is always judged. Jurisprudence brings together 'is' and 'ought', the positive and the normative, law and justice. But after a long process of decay, legal theory is today characterised by cognitive and moral poverty. Jurisprudence has become restricted and academically peripheral, a guidebook to technocratic legalism and a legitimation of the existent. Critical jurisprudence returns to the classical tradition of a general philosophy of law and adopts a much wider concept of legality. It is concerned both with posited law and with the law of the law. All legal aspects of the economic, political, emotional and physical modes of production and reproduction of society are part of critical jurisprudence. This widening of scope allows a radical rethinking of the nature of rights, justice, sovereignty and judgement. A political philosophy of justice today must examine the political economy of law; transitions from Empire to nation; ideological and imaginary constructions through which we understand ourselves and relate to others; ways in which gender, race or sexuality create forms of identity that both discipline bodies and offer sites of resistance. Law's complicity with political oppression, violence and racism has to be faced before it is possible to speak of a new beginning for legal thought, which in turn is the necessary precondition for a theory of justice. Critical Jurisprudence offers an ethics of law against the nihilism of power and an aesthetics of existence for the melancholic lawyer. (shrink)

Radical democratic political theorists have used the concept of constituent power to sketch ambitious models of radical democracy, while many legal scholars deploy it to make sense of the political and legal dynamics of constitutional politics. Its growing popularity notwithstanding, I argue that the concept tends to impede a proper interpretation of civil disobedience, conceived as nonviolent, politically motivated lawbreaking evincing basic respect for law. Contemporary theorists who employ it cannot distinguish between civil disobedience and other related, yet ultimately different, (...) modes of political illegality. The essay also examines Jürgen Habermas’ recent contributions to a theory of mixed or dualistic constituent power, conceding that Habermas avoids many theoretical and political ills plaguing competing radical democratic theoretical retrievals. Nonetheless, Habermas’ attempt to salvage the idea of constituent power as part of... (shrink)

Revolutionary in its own time and controversial to this day, this work is a permanent classic of political theory and a key source of democratic belief. Rousseau's concepts of "the general will" as a mode of self-interest uniting for a common good, and the submission of the individual to government by contract inform the heart of democracy, and stand as its most contentious components today. Also included in this edition is Rousseau's Discourse on Political Economy", a key transitional work between (...) his Discourse on Inequality and The Social Contract. This new translation offers fresh insight into a cornerstone of political thought, which is further illuminated by a comprehensive introduction and notes. (shrink)

Written in the intense political and intellectual tumult of the early years of the Weimar Republic, _Political Theology_ develops the distinctive theory of sovereignty that made Carl Schmitt one of the most significant and controversial political theorists of the twentieth century. Focusing on the relationships among political leadership, the norms of the legal order, and the state of political emergency, Schmitt argues in _Political Theology_ that legal order ultimately rests upon the decisions of the sovereign. According to Schmitt, only the (...) sovereign can meet the needs of an "exceptional" time and transcend legal order so that order can then be reestablished. Convinced that the state is governed by the ever-present possibility of conflict, Schmitt theorizes that the state exists only to maintain its integrity in order to ensure order and stability. Suggesting that all concepts of modern political thought are secularized theological concepts, Schmitt concludes _Political Theology_ with a critique of liberalism and its attempt to depoliticize political thought by avoiding fundamental political decisions. (shrink)

Alison Stone investigates how human existence is conditioned by the fact that it begins with birth. How does birth shape the way we are in the world, and the meaning of our lives? Philosophers have written much about death, but neglected birth. Stone brings natality into philosophical view, offering fascinating insights into the human condition.

In this, his most influential work, legal theorist and political philosopher Carl Schmitt argues that liberalism's basis in individual rights cannot provide a reasonable justification for sacrificing oneself for the state. This edition of the 1932 work includes the translator's introduction which highlights Schmitt's intellectual journey through the turbulent period of German history leading to the Hitlerian one-party state. It also includes Leo Strauss's analysis of Schmitt's thesis and a foreword by Tracy B. Strong placing Schmitt's work into contemporary context.

Faced with the apologetic and exclusionary tendencies of liberal normativism, there is a marked trend in political theory to recover a more critical conception of justice, which does not adopt the dismissive attitude of traditional Marxism. In this context, the legacy of post-structuralism has been ambivalent. On the one hand, the work of thinkers such as Jacque Derrida, Michel Foucault and Gilles Deleuze has helped to shape the direction of the relevant discourse. On the other hand, post-structuralist critiques of political (...) normativism have been often accused of leading to a subsumption of justice to power. Contributing to the ongoing discussion, my article explores the insights of Derrida, Foucault and Deleuze and assembles them into a coherent line of analysis. The main argument advanced is that post-structuralist thought provides a fertile basis for a critical concept of justice, which foregrounds the notion’s material texture without forfeiting its normative and ethical traits. (shrink)

Rousseau has always had an uncertain relationship with the theory of constituent power. On the one hand, his distrust of political representation and support for popular sovereignty seem consistent with the idea of the people as a legally unlimited constitution-maker. On the other hand, if, from those views about representation and sovereignty, it follows that Rousseau is a proponent of direct democracy, then there seems to be no place in his thought for a theory that presupposes, above all, a separation (...) between those who exercise a delegated authority and those who possess an original constitution-making power. In a legal order in which all laws must be directly made by the people, such a separation is absent: the constituent and the legislative body are one and the same. It is therefore not surprising that Rousseau’s name is largely absent from contemporary literature on constituent power. In this article, however, I will show that once Rousseau’s particular conception of law, as well as his distinction between sovereignty and government, are properly understood, one finds in his work not only the first major formulation of the theory of constituent power, but also a careful exploration of its implications for actual constitutional practice. (shrink)

Readings of Derrida’s work on law and justice have tended to stress the distinction between them. This stress is complicated by Derrida’s own claim that it is not ‘a true distinction’. In this essay I argue that ordinary experiences of the inadequacy of existing laws do indeed imply a claim about what would be more just, but that this claim only makes sense insofar as one can appeal to another more adequate law. Exploring how Derrida negotiates a subtle path between (...) classical Platonism and classical conventionalism about justice, the attempt is made to take seriously Derrida’s aim to affirm the idea of a ‘mystical’ foundation of the authority of laws by taking ‘the use of the word “mystical” in what I venture to call a rather Wittgensteinian direction’. (shrink)

In his 1923 work, Roman Catholicism and Political Form, Carl Schmitt claims that representation is a complexio oppositorum and incarnates a hierarchical form of political authority, which is alternative to liberalism. This article shows that Carl Schmitt’s interpretation of the political theology of representation is based on a misreading. Schmitt selectively overlooks some meanings of the theology of repraesentatio to build his decisionistic political agenda. An investigation of the original conceptual meanings of representation in Tertullian, the first Christian author who (...) theorized representation and established many of its subsequent theological meanings, shows a different picture. At its inception, representation already included mechanisms of plurality and participation, which anticipated, and perhaps motivated, the absorption of the representation vocabulary within democratic discourse and practice. Political theology is a valuable field of inquiry to prove the claim that the... (shrink)

"In this densely imbricated volume Derrida pursues his devoted, relentless dismantling of the philosophical tradition, the tradition of Plato, Kant, Hegel, Nietzsche, Husserl, Heidegger—each dealt with in one or more of the essays. There are essays too on linguistics and on the nature of metaphor, the latter with important implications for literary theory. Derrida is fully in control of a dazzling stylistic register in this book—a source of true illumination for those prepared to follow his arduous path. Bass is a (...) superb translator and annotator. His notes on the multilingual allusions and puns are a great service."—Alexander Gelley, _Library Journal_. (shrink)

This article offers an alternative reading of the Abbé Sieyès and the modern ‘nation-state’ problématique. I argue that the subject/object that is constituted in the early days of modernity is the incomplete society: an impossible-possibility ideal of congruency of population, authority and space. I suggest reading this ideal of congruency as a fantasy in that it offers a certain ‘fullness to come’, the promise of jouissance that can never be attained and is thus constantly re-envisioned and reinvoked. Drawing on discourse-analytical (...) and psychoanalytical tools I explain the logic of fantasy before analysing Sieyès’ What is the Third Estate?, as I show how he critiques and fragments the old model of the state and how his reading of the nation is fantasmatic, a continuous project towards impossible congruency. (shrink)

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)

McCormick, John, Carl Schmitt's Critique of Liberalism: Against Politics as Technology (reviewed by Andreas Kalyvas); Caldwell, Peter, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (reviewed by Andreas Kalyvas); Dyzenhaus, David, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, Hermann Heller (reviewed by Andreas Kalyvas); Cristi, Renato, Carl Schmitt and Liberal Authoritarianism: Strong State, Free Economy (reviewed by Andreas Kalyvas).

This article proposes an interpretation of the status of the Grundnorm in Hans Kelsen’s legal theory which addresses the broader philosophical problem of the ultimate foundation of normativity. It begins by reviewing the main objections that have been raised against Kelsen’s theory, pointing out that most of these can be met by a ‘transcendental’ interpretation of the Grundnorm as a condition of possibility for legal cognition. It then argues that in order to solve the problem of the ultimate foundation for (...) legal validity it is also necessary to read the Grundnorm in light of the parallel category of ‘nomo-dynamicity’, which Kelsen introduced in all his legal writings beginning with the Pure Theory of Law of 1933. This yields a conception of legal validity as an ‘essentially temporal’ category, from the point of view of which the problem of ultimate foundations cannot emerge because the beginning is by definition not situated conceptually within time. The broader conclusion is therefore that overcoming the problem of the ultimate foundation of normativity requires abandoning the theologico-political assumption that valid norms are posited through a sovereign gesture analogous to that through which God is supposed to have created the universe ex nihilo. Construing normativity as ‘essentially temporal’ implies that the search for ultimate foundations must run into a category that is entirely foreign to political theology but well known to phenomenology: that of an ‘always-already’. (shrink)

This new translation of Aristotle's _Metaphysics_ in its entirety is a model of accuracy and consistency, presented with a wealth of annotation and commentary. Sequentially numbered endnotes provide the information most needed at each juncture, while a detailed Index of Terms guides the reader to places where focused discussion of key notions occurs. An illuminating general Introduction describes the book that lies ahead, explaining what it is about, what it is trying to do, how it goes about doing it, and (...) what sort of audience it presupposes. (shrink)

Rousseau's general will is mostly interpreted as promoting social unity at the expense of plurality. Conversely, this article argues that the general will depends on, and preserves, plurality for its formation and legitimacy. The general and the particular are not fixed opposites, for Rousseau, but are interdependent and contextually defined. The Rousseauian universal anticipates Laclau's notion of universality. The absence of any natural foundations for society deprives the universal of any pre-given identity. Likewise, the Laclauian universal names the lack of (...) ultimate ground for society. To prevent either sectarianism or despotism, the universal has to be constructed politically. Rousseau's contingent general will supplements the lack of universality, as diverse groups and individuals construct common values and political objectives that unify them across divisions without suppressing their difference. Due to its originary lack, the general will remains for ever incomplete. That incompleteness conditions the questioning, ambiguity and openness to change characterizing democracy. Key Words: democracy • equality • freedom • general will • Ernesto Laclau • particular • plurality • Jean-Jacques Rousseau • sovereignty • universal. (shrink)

Hans Kelsen refused to develop a democratic theory of the basic norm. Given that he expounded a strong distinction between law and politics as two separate scientific disciplines he consistently argued against any attempt to politicize legal science and corrupt its object of cognition. As a result, there has been very little discussion of the basic norm in relation to his democratic theory. This article attempts to fill this gap by tracing the relationship between the basic norm and democracy in (...) Kelsen’s legal and political writings. More precisely, it maps Kelsen’s seminal distinction between autonomy and heteronomy onto his reflections on constitutional making and probes the anti-democratic implications of his theory of the basic norm as they undermine the normative foundations of democratic theory. The article concludes by addressing the question of whether it is possible to articulate a theory of the democratic ground norm, of democratic foundings with a normative content, by proposing the idea of an immanent, performative basic norm as the source of validity of a democratic constitutional order Key Words: Hannah Arendt • basic norm • constitu ere • constitutional making • democracy • immanent norm • Hans Kelsen. (shrink)

How to introduce 'politics' as a specific concept within a deconstructive style of thinking? In order to answer this question, this contribution compares Derrida with Laclau. According to the former the starting-point of a deconstructive style of thinking is différance. It links together the economic detour of homecoming and the relation to otherness. Laclau's analysis of politics as hegemonization within a situation of undecidability presupposes this notion of différance and can therefore be useful in introducing politics within a deconstructive style (...) of thinking. But there still is a major difference between Derrida and Laclau's decisionism: if différance as the relation without relation of economy and otherness cannot avoid decisions based on power in order to stabilize the social, these decisions are always marked by passivity and therefore deconstructible in the name of 'justice' that exceeds politics even if it takes place nowhere but within politics. Key Words: decisionism • . Derrida • . hegemony • . Laclau • . law. (shrink)