This book investigates the consecutive shifts between three types of intermediary institutions in the European context: Corporatist, Neo-corporatist and Governance institutions. It develops a new conceptual framework for understanding the function and position of intermediary institutions in society, as well as a vocabulary capable of explaining the causes and consequences of these shifts for politics, economy and society at large. The book is designed to fill a gap in three rather distinct, yet also overlapping bodies of literature: European Political Economy, (...) European Integration and governance studies, and socio-legal studies in the European context. -/- Reviews: - Anne Guisset: Transfer: European Review of Labour and Research, 22, 3, 427-429, 2016. -/- - Ian Bruff, Capital & Class, 40, 3, 555 – 57, 2016. -/- . (shrink)

Usually regarded as a 1970s phenomenon, this article demonstrates that the debate between Jürgen Habermas and Niklas Luhmann continued until Luhmann’s death in 1998, and that the development of the two theorists’ positions during the 1980s and 1990s was characterised by convergence rather than by divergence. In the realm of legal theory, the article suggests, convergence advanced to the extent that Habermas’ discourse theory may be characterised as a normative superstructure to Luhmann’s descriptive theory of society. It is further shown (...) that the debate’s result was an almost complete absorption of Habermas’ theory by Luhmann’s systems theoretical complex – an outcome facilitated by Luhmann’s deliberate translation of central Habermasian concepts into systems theoretical concepts. The article argues that both the debate and Habermas’ conversion were made possible because not only Habermas’ but also Luhmann’s work can be considered a further development of the German idealist tradition. What Luhmann did not acknowledge was that this manoeuvre permitted the achievement of Habermas’ normative objectives; nor did he notice that it could eradicate a central flaw in the system theoretical construction, by allowing the context within which distinctions are drawn to be mapped – an issue of pivotal importance for grasping relationships between different social systems, and coordinating them, via the deployment of legal instruments. (shrink)

Can transformative law become an ambitious program for rethinking the theoretical basis for our understanding of law and its position in society? A program which explicitly goes beyond emotion and ideology. One way of dealing with both emotion and the devotion to ideology is, as also argued by Karl Mannheim back in 1926, to deploy an analytical lens, i.e. to substitute emotion and ideology with sophisticated theorizing. A form of theorizing which only is possible if deployed while maintaining proper analytical (...) distance to the object matter. On this background one might distinguish between three models of transformative law: Instrumentalization, Political Programming or Normative Selection, with the latter providing a third way between the two hitherto dominant approaches. (shrink)

This chapter advances a twofold analytical strategy. Firstly, an extrapolation of the legal method, i.e. the application of general rules to particular cases, into a general tool for both description and problem solving. Secondly, through the integration of the legal method with a phenomenological approach for the study of social worlds. This provides the basis for an integrated approach potentially deployable in relation to all social phenomena at the micro, meso and macro levels. This makes it an alternative to the (...) methodology of the social sciences, i.e. economics, political economy, political science and sociology. The social sciences have become characterized by hyper formalistic and opaque modelling and simplistic assumptions resulting in a structural incapacity of scholarly innovation with the consequence that they are incapable of answering ‘big questions’ and lacks the ability to reflect critically upon the basic structure of society and core assumptions about the composition of the social world. (shrink)

This book develops the law of political economy as a new field of scholarly enquiry. Bringing together an exceptional group of scholars, it provides a novel conceptual framework for studying the role of law and legal instruments in political economy contexts, with a focus on historical transformations and central challenges in both European and global contexts. Its chapters reconstruct how the law of political economy plays out in diverse but central fields, ranging from competition and consumer protection law to labour (...) and environmental law, giving a comprehensive overview of the central challenges of the law of political economy. It also provides a sophisticated and multifaceted framework for further enquires while outlining the contours of new law of political economy. (shrink)

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one. Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use (...) a term John Ruggie coined. The concerns have also helped nationalistic movements to gain power in many high-income countries, not at least in the United States, calling for putting their economy first. Accordingly, a number of commentators have announced a return of the nation state. In this special issue, we will show that the retreat-of-the-state thesis as well as the return-of-the-state thesis shares the same shortcomings. They conflate state and authority. As a consequence, both theses underestimate important transformations of authority that have taken place since the end of the “short 20TH century,” to use Eric Hobsbawm's periodization. With this special issue, we seek to contribute to a more nuanced analysis of the transformation of authority. The issue is the outcome of a conference that took place at the Copenhagen Business School in 2015, hosted by the research project ‘Institutional Transformation in European Political Economy: A Socio-Legal Approach’ and funded by the European Research Council. (shrink)

O Direito Global estrutura-se, predominantemente, por normas de conectividade, que se diferenciam das normas de coerência e de possibilidade. A centralidade das normas de conectividade emerge da própria função do direito global, que é a de aumentar a probabilidade de transferência de componentes sociais condensados, como capital econômico e produtos, doutrinas religiosas e conhecimento científico, de um contexto juridicamente estruturado para outro, no âmbito da sociedade mundial. Esse é o caso desde o colonialismo e o direito colonial até as atuais (...) cadeias produtivas globais e os direitos humanos. Tanto o direito colonial quanto os direitos humanos podem ser entendidos como ferramentas à serviço da função de constitucionalização orientada à estabilização e à facilitação da conectividade. Por conseguinte, é possível compreender o colonialismo e a governança global contemporânea como equivalentes funcionais, mas não como equivalentes normativos. (shrink)

When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the (...) European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light. (shrink)

What comes after neoliberalism? This is in many ways the question of our time. Or maybe neoliberalism doesn’t really exist at all? And if it does, what is the relevance for lawyers, legal scholarship and legal practice?

What is to be learned from the chaotic downfall of the Weimar Republic and the erosion of European liberal statehood in the interwar period vis-a-vis the ongoing European crisis? This book analyses and explains the recurrent emergence of crises in European societies. It asks how previous crises can inform our understanding of the present crisis. The particular perspective advanced is that these crises not only are economic and social crises, but must also be understood as crises of public power, order (...) and authority. In other words, it argues that substantial challenges to the functional and normative setup of democracy and the rule of law were central to the emergence and the unfolding of these crises. The book draws on and adds to the rich ’crises literature’ developed within the critical theory tradition to outline a conceptual framework for understanding what societal crises are. The central idea is that societal crises represent a discrepancy between the unfolding of social processes and the institutional frameworks that have been established to normatively stabilize such processes. The crises at issue emerged in periods characterized by strong social, economic and technological transformations as well as situations of political upheaval. As such, the crises represented moments where the existing functional and normative grid of society, as embodied in notions of public order and authority, were severely challenged and in many instances undermined. Seen in this perspective, the book reconstructs how crises unfolded, how they were experienced, and what kind of responses the specific crises in question provoked. -/- Table of Contents -/- Introduction: European Crises of Public Power: From Weimar until Today, Poul F. Kjaer & Niklas Olsen / Part I: Semantics, Notions and Narratives of Societal Crisis / 1. What Time Frame Makes Sense for Thinking About Crises?, David Runciman / 2. The Stakes of Crises, Janet Roitman / Part II: Weimar and the Interwar Period: Ideologies of Anti-Modernism and Liberalism / 3. The Crisis of Modernity – Modernity as Crisis: Towards a Typology of Crisis Discourses in Interwar East Central Europe and Beyond, Balázs Trencsényi / 4. European Legitimacy Crisis – Weimar and Today: Rational and Theocratic Authority in the Schmitt-Strauss Exchange, John P. McCormick / 5. Crisis and the Consumer: Reconstructions of Liberalism in Twentieth Century Political Thought , Niklas Olsen / Part III: The Causes of Crises: From Corporatism to Governance / 6. The Constitutionalization of Labour Law and the Crisis of National Democracy , Chris Thornhill / 7. The Crisis in Labour Law: From Weimar to Austerity Ruth Dukes / 8. From the Crisis of Corporatism to the Crisis of Governance, Poul F. Kjaer / Part IV: The Euro and the Crisis of Law and Democracy / 9. What is left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat Christian Joerges / 10. Reflections on Europe’s “Rule of Law Crisis”, Jan-Werner Müller. 11. Democracy under Siege: The Decay of Constitutionalisation and the Crisis of Public Law and Public Opinion, Hauke Brunkhorst/ Part V: The Consequences of Crises and the Future of Europe / 12. Crises and Extra-Legality: From Above and From Below, William E. Scheuermann / 13. “We could all go Down the Road of Lebanon” – Crisis Thinking on the Anti-Muslim Far Right, Mikkel Thorup / 14. Conclusions and Perspectives: The Re-Constitution of Europe, Poul F. Kjaer & Niklas Olsen Index . (shrink)

Intermediary institutions are a multi-facetted phenomenon which has taken many different forms in the course of social evolution. This is also being testified by the evolutionary trajectories from corporatism through neo-corporatism to governance in the European settings from the mid-nineteenth century onwards. Against this background, this chapter seeks to outline the key parameters of a theoretical framework suitable for approaching and analysing intermediary institutions. The chapter pins down five central dimensions of intermediary institutions. This is done under the headings: Context, (...) Function, Evolution, Order, and Compatibility. (shrink)

The law of political economy is a contentious ideological field characterised by antagonistic relations between scholarly positions which tend to be either affirmative or critical of capitalism. Going beyond this schism, two particular features appear as central to the law of political economy: the first one is the way it epistemologically seeks to handle the distinction between holism and differentiation, i.e., the extent to which it sees society as a singular whole which is larger than its parts, or, rather, as (...) a mere collection of parts. Different types of legal and political economy scholarship have given different types of answers to this question. The second feature of the law of political economy is the way in which it conceives of the relation between hierarchical and spontaneous dimensions of society, i.e., between firms and the market, or between public institutions and public opinion. The two distinctions can, however, be overcome through a third-way, emphasising the strategic role of law in mediating between holism and differentiation and hierarchy and spontaneity. This is demonstrated through a historical re-construction of the evolution of corporatist, neo-corporatist, and governance-based institutional set-ups of political economy. (shrink)

近年来， 围绕与各种超国家发展态势相关的正义问题， 学界展开 了热烈的讨论？ 在这个特殊的主题上， 除了其他同样引人注目的研 究之外， 持续的争论主要受到分析哲学的启发， 在规范性的研究领域 内进行。本文选择了一条受社会学启发的不同路径， 运用社会理论 和法律理论， 反思为何出现了这种关注证立问题的转向。因此． 本文 聚焦作为社会现象的证立和证立的社会实践， 亦即证立活动的实际 展开， 而不是聚焦诉诸正义理论的哲学推理的逻辑一致性。这当然 不是说， 哲学的推理与理解正义无关， 也当然不是说． 哲学与社会学 两种路径存在根本的矛盾。毋宁说， 本文可以被视为对主要运用哲 学推理方法的既有研究的补充， 可能为超国家脉络下的正义问题和 证立问题提供更扎实的理论反思？ .

In the western context, law has two functions. It upholds normative expectations and it transforms social phenomena. The latter is expressed through the form-giving function of law as law designates particular social phenomena as, for example, economic, political or religious. Inside such overarching categories, further subcategories can moreover be observed. In relation to economic processes, the legal institutions of competition, contract, corporation and property are, for example, classical examples of the form-giving function of law. The dual function of law is (...) briefly illustrated through a genealogy of imaginaries of law distinguishing between four historically dominant types of law: ‘Law as purpose’; ‘law as a tool’; ‘law as an obstacle’; and ‘law as reflexivity-initiation’. On this background, ten core dimensions of what might become a new episteme of transformative law are fleshed out with the aim of answering the question to what extent it can act as an alternative to the previous four types of law. (shrink)

Since the 1990s the effects of globalization on law and legal developments has been a central topic of scholarly debate. To date, the debate is however marked by three substantial deficiencies which this chapter seeks to remedy through a reconceptualization of global law as a law of inter-contextuality expressed through inter-legality and materialized through a particular body of legal norms which can be characterized as connectivity norms. The first deficiency is a historical and empirical one. Both critics as well as (...) advocates of ‘non-state law’ share the assumption that ‘law beyond the state’ and related legal norms have gained in centrality when compared with previous historical times. While global law, including both public and private global governance law as well as regional occurrences such as EU law, has undergone profound transformations since the structural transformations which followed the de-colonialization processes of the mid-twentieth century, we do not have more global law relatively to other types of law today than in previous historical times. The second deficiency is a methodological one. The vast majority of scholarship on global law is either of an analytical nature, drawing on insights from philosophy, or empirically observing the existence of global law and the degree of compliance with global legal norms at a given moment in time. While both approaches bring something to the table they remain static approaches incapable of explaining and evaluating the transformation of global law over time. The third deficiency is a conceptual-theoretical one. In most instances, global law is understood as a unitary law producing singular legal norms with a planetary reach, or, alternatively, a radical pluralist perspective is adopted dismissing the existence of singular global norms. Both of these approaches however misapprehend the structural characteristics, function and societal effects of global law. Instead a third positon between unitary and radical pluralist perspectives can be adopted through an understanding of global law and its related legal norms as a de-centred kind of inter-contextual law characterised by inter-legality. (shrink)

The regulation of the interfaces of private and public interests is a central and recurrent issue of modern law. The centrality of the distinction and the manifold conceptual and practical problems associated with it has moreover been exacerbated over the past fifty years through the dominance of the twin-episteme of law constituted by law and economics and human rights law. Against this background, an alternative approach to and concept of law, transformative law, is briefly introduced. An approach which implies replacing (...) the notions of private and public interests with the concepts of legally constituted public power and societal power. In order to analyse the potential and limits of transformative law, five legal phenomena, central to the other contributions to this special issue, are analysed: public interest litigation; legal mobilisation in the preliminary ruling procedure; bankruptcy proceedings; third-party litigation and the Meta Oversight Board. (shrink)

This research explores the carnal, experienced self as processual and becoming, situating life as zoe (as per Braidotti) in the context of the Western culture, characterized by alienation (Fromm, Foucault). The study first addresses the ontological disposition of the carnal self and then turns to the concepts of life and death (Freud, Fromm), to explicate the tie between materiality and discourse conditions. Erich Fromm’s classical distinction of having and being is restated as a distinction of having and becoming, which are (...) then explored as complimentary ontological, cultural, and characterological directionalities. A genealogy of their mutual dynamics then allows situating the relations of carnal bodies and inorganic prosthesis (e.g. technologies) in the light of life considered as the necessary synthesis of forces of preservation and perpetual change, beyond subject-object duality. (shrink)

Regulatory governance frameworks have become essential building blocks of world society. From supply chains to the regimes surrounding international organizations, extensive governance frameworks have emerged which structure and channel a variety of social exchanges, including economic, political, legal and cultural, on a global scale. Against this background, this special issue sets out to explore the multifaceted meaning, potential and impact as well as the social praxis of regulatory governance. Under the notions rules, resistance and responsibility the special issue pins out (...) three overall dimensions of regulation and governance thereby providing a theoretical and conceptual framework for grasping the phenomenon of regulatory governance. This is combined with extensive case studies on a number of regulatory governance settings ranging from the World Bank to agricultural reforms carried by the International Transitional Administrations (ITAs) in Kosovo and Iraq as well as global supply chains and their impact on the garment industry in Bangladesh. (shrink)

The Report presents insights which illuminates the intertwinements of European regulatory policies and global governance arrangements. By pinning down the exact nature of the interaction between these two levels, the EU’s dilemma becomes obvious: On the one hand, stronger global governance can be a chance, through which the EU can clarify its own raison d’être of increased integration to the wider world. On the other hand, the design of the European project is being challenged by more assertive global structures. This (...) is especially the case in relation to the WTO regime, which is constraining the decisional autonomy of the EU, regarding the appropriateness of its content and its external effects. Thus, the regulation of services in the EU and the WTO are discussed in the first section of this report. Section two focuses on labour standards, which are analysed from different angles in order to clarify the functions of the WTO and the ILO, multinational companies as well as other private actors within this specific field. The final section deals with the legitimacy problematic of transnational governance. Table of contents: Introduction Christian Joerges and Poul F. Kjaer Section One: Freedom of Services Chapter 1 The Multiple Understandings of Conflict between Trade in Services and Labour Protection Alexia Herwig Chapter 2 Competing in Markets, not Rules: The Conflict over the Single Services Market Susanne K. Schmidt Chapter 3 Competitiveness and Labour Protection: A Comment Markus Krajewski Section Two: Labour Standards Chapter 4 WTO and ILO: Can Social Responsibility be maintained in International Trade? Josef Falke Chapter 5 Reframing RECON: Perspectives on Transnationalisation and Post-national Democracy from Labour Law Claire Methven O’Brien Chapter 6 Transnational Governance and Human Rights: The Obligations of Private Actors in the Global Context Regina Kreide Section Three: The Legitimacy of Transnational Governance Chapter 7 Legitimacy through Precaution in European Regulation of GMOs? From the Standpoint of Governance as Analytical Perspective Maria Weimer Chapter 8 The Justice Deficit of the EU and other International Organisations Jürgen Neyer Chapter 9 Towards Normative Legitimacy of the World Trade Order Alexia Herwig and Thorsten Hüller Chapter 10 From Utopia to Apology – The Return to Inter-state Justice in Normative IR Scholarship: Comments on Neyer and Herwig & Hüller Jens Steffek. (shrink)

Online philosophy seminar notes, for virtual conference on the Aristotelian philosophy of mathematics, hosted by University of Geneva (organiser Ryan Miller), June 15, 2023.

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one. Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use (...) a term John Ruggie coined. The concerns have also helped nationalistic movements to gain power in many high-income countries, not at least in the United States, calling for putting their economy first. Accordingly, a number of commentators have announced a return of the nation state. In this special issue, we will show that the retreat-of-the-state thesis as well as the return-of-the-state thesis shares the same shortcomings. They conflate state and authority. As a consequence, both theses underestimate important transformations of authority that have taken place since the end of the “short 20TH century,” to use Eric Hobsbawm's periodization. With this special issue, we seek to contribute to a more nuanced analysis of the transformation of authority. The issue is the outcome of a conference that took place at the Copenhagen Business School in 2015, hosted by the research project ‘Institutional Transformation in European Political Economy: A Socio-Legal Approach’ and funded by the European Research Council. (shrink)

It is often argued that our obligations to address structural injustice are collective in character. But what exactly does it mean for ‘ordinary citizens’ to have collective obligations visà- vis large-scale injustice? In this paper, I propose to pay closer attention to the different kinds of collective action needed in addressing some of these structural injustices and the extent to which these are available to large, unorganised groups of people. I argue that large, dispersed and unorganised groups of people are (...) often in a position to perform distributive collective actions. As such, ordinary citizens can have massively shared obligations to address structural injustice through distributive action, but, ultimately, such obligations are ‘collective’ only in a fairly weak sense. (shrink)

This article outlines a new approach to the law of political economy as a form of transformative law, a new approach that combines a focus on the function of law with a concept of law encapsulating the triangular dialectics between the form-giving prestation of law, the material substance the law is oriented against, and the transcendence of legal forms—that is, the rendering of compatibility between forms. Transformative law thereby serves as an alternative to both law and economics and recently emerging (...) culturalist and neo-Marxist approaches. The timing of this publication is not coincidental. The era of neoliberalism—that is, of structural liberalism, which started in the 1970s and experienced its breakthrough in the 1980s and 1990s after the collapse of structural Marxism—is ending. This makes the question of what will succeed the neoliberal episteme pertinent. (shrink)

D’un point de vue sociologique, l’architecture du droit global se caractérise par une prééminence des normes de « connectivité », qu’il convient de distinguer des normes de « possibilité » et des normes de « cohérence ». La centralité des normes de connectivité dans cette structure provient de la fonction même du droit global, qui vise à faciliter le transfert de composants sociaux condensés –_tels que le capital, les produits économiques, les doctrines religieuses ou les connaissances scientifiques_–, d’un environnement juridique (...) à un autre à l’échelle planétaire. Cela se vérifie aussi bien dans le cas du colonialisme et du droit colonial que dans celui, aujourd’hui, des chaînes de valeur globales et des droits de l’homme. Le droit colonial et le droit des droits humains peuvent tous deux être compris comme des moyens de remplir une même fonction constituante de stabilisation et de facilitation de la connectivité. Cette compréhension trouve un écho significatif dans le droit international privé, qui participe de la même fonction. (shrink)

Habituellement considéré comme un phénomène des années 1970, le débat entre Jürgen Habermas et Niklas Luhmann s’est en réalité poursuivi jusqu’à la mort de Luhmann, en 1998 ; et l’évolution des positions des deux théoriciens au cours des années 1980 et 1990 s’est caractérisée par une convergence, plutôt que par une divergence. Dans le domaine de la théorie du droit, suggère cet article, la convergence a progressé dans la mesure où la théorie de la discussion (Diskursetheorie) d’Habermas peut se caractériser (...) comme une superstructure normative au regard de la théorie descriptive de la société formulée par Luhmann. De plus, le résultat du débat a été une absorption presque complète de la théorie habermassienne par le complexe de la théorie des systèmes de Luhmann – issue facilitée par le fait que ce dernier a délibérément traduit les concepts habermassiens centraux dans les concepts de la théorie des systèmes. Le débat et la conversion d’Habermas ont été possibles parce que le travail de celui-ci mais aussi celui de Luhmann peuvent être considérés comme un fruit de la tradition idéaliste allemande. Luhmann n’a pas vu que cette manœuvre permettait la réalisation des objectifs normatifs d’Habermas ; pas plus qu’il n’a perçu qu’il pouvait éradiquer une faille centrale de la construction de la théorie des systèmes en permettant de cartographier le contexte dans lequel les distinctions sont tracées – problème d’importance cruciale pour saisir les relations entre les différents systèmes sociaux et les coordonner via le déploiement d’instruments juridiques. (shrink)

Throughout its history the European integration process has not undermined but rather strengthened the autonomy of Member States vis-à-vis wider societal interests in relation to political economy, labour markets and social provisions. Both the ‘golden age nation state’ of the 1960s as well as the considerable transformations of Member State political economies over the past decades, and especially after the euro-crisis, was to a considerable degree orchestrated through transnational, most notably European, arrangements. In both cases the primary objective has been (...) to strengthened state capacities of public power and law against the encroachment of private interests into the state. In spite of this continuity considerable changes can however be observed in the substantial economic policies advanced due to the switch from a Keynesian to a monetarist economic paradigm. It is suggested that the debate on constitutional imbalances between the EU’s economic and social constitutions should be seen in this light. (shrink)

Global law settings are characterized by a structural pre-eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply (...) chains and human rights. Both colonial law and human rights can be understood as serving a constitutionalizing function aimed at stabiliz- ing and facilitating connectivity. This allows for an understanding of colonialism and contemporary global governance as functional, but not as normative, equivalents. (shrink)

Dog whistling—speech that seems ordinary but sends a hidden, often derogatory message to a subset of the audience—is troubling not just for our political ideals, but also for our theories of communication. On the one hand, it seems possible to dog whistle unintentionally, merely by uttering certain expressions. On the other hand, the intention is typically assumed or even inferred from the act, and perhaps for good reason, for dog whistles seem misleading by design, not just by chance. In this (...) paper, I argue that, to understand when and why it’s possible to dog-whistle unintentionally (and indeed, intentionally), we’ll need to recognize the structure of our linguistic practices. For dog whistles and for covertly coded speech more generally, this structure is a pair of practices, one shared by all competent speakers and the other known only to some, but deployable in the same contexts. In trying to identify these enabling conditions, we’ll discover what existing theories of communicated content overlook by focusing on particular utterances in isolation, or on individual speakers’ mental states. The remedy, I argue, lies in attending to the ways in which what is said is shaped by the temporally extended, socio-politically structured linguistic practices that utterances instantiate. (shrink)

A questão de saber se existe ou não pode ser encontrada em todos além do Estado tem sido o tema central da disputa acadêmica nas últimas décadas. Essa contribuição deriva do insight histórico que tem formas extensas de ordenar posses, qualidades constitucionais sempre existiram abaixo, ao lado e acima do estado. Nas últimas décadas, o debate sobre o constitucionalismo além do Estado se desdobrou em dois discursos separados: O primeiro é dirigido principalmente por cientistas políticos e pelo direito público e (...) é caracterizado por uma tentativa de criar um estado nacional Este último está sistematicamente subestimando a dimensão política das estruturas transnacionais. A fim de colmatar esta lacuna para o número de figuras-chave de um conceito transnacional específico do político está sendo concretizada. (shrink)

Desde os anos 1990, os efeitos da globalização na lei e nos desenvolvimento jurídico têm sido um tópico central no debate acadêmico. Até o presente, o debate foi, contudo, marcado por três lacunas que este capítulo tentará remediar a partir de uma reconceptualização do direito global como o direito de intercontextualidade marcado pela inter-juridicidade e materializado por meio de um corpo de normas que podem ser caracterizadas por sua conectividade. A primeira lacuna é de ordem histórica e empírica. Tanto os (...) críticos quanto os defensores da “lei não estatal” compartilham a premissa de que a “lei além do Estado” e as normas jurídicas correlatas teriam ganhado relevância nos tempos atuais se comparadas a períodos históricos anteriores. Enquanto o direito global, incluindo tanto o direito público e privado de governança global, bem como as construções regionais, como da União Europeia, passou por profundas transformações desde as estruturais, que seguiram os processos de descolonização em meados do século XX, constata-se que não há mais instrumentos de direito global em comparação com outros tipos de lei no mundo contemporâneo do que havia em outros períodos históricos. A segunda lacuna é metodológica. A maioria das produções acadêmicas sobre o direito global é ou de natureza analítica, trazendo reflexões a partir do campo da filosofia, ou de natureza empírica, observando a existência do direito global e os graus de conformidade às normas global em um dado período histórico. Embora essas duas metodologias tenham seu mérito, elas são estáticas, incapazes de explicar e de avaliar a transformação do direito global ao longo do tempo. A terceira lacuna é teórico-conceitual. Em diversas instâncias, o direito global é compreendido como uma lei unitária que produz normas de escala planetária, ou, alternativamente, adota-se uma perspectiva pluralista radical que descarta a existência de normas globais singulares. No entanto, ambas as abordagens parecem não compreender as características estruturais, função e efeitos societários do direito global. Ao contrário, uma terceira posição entre as perspectivas unitárias e radicais pode ser adotada por meio de uma compreensão do direito global e normas legais relacionadas como um tipo descentralizado de direito intercontextual e caracterizado pela inter juridicidade. O direito global pode ser definido como um fenômeno que, a princípio, é ilimitado em alcance, isto é, detém validade sem referência ou limitação a um território ou população específica, embora, por razões práticas, seja submetido a alguma limitação na maioria dos casos. Isso torna o direito global distinto do direito nacional, internacional, transnacional e da lei viva de base comunitária quando definidos da seguinte maneira: direito nacional, a lei dos estados-nação derivada do conceito de soberania; o direito internacional, a lei entre estados-nação; direito transnacional, qualquer lei que, em termos de jurisdição, origem ou efeito, ultrapassa as fronteiras nacionais, produzindo externalidades positivas ou negativas, enquanto continua a depender dos instrumentos e mecanismos legais dos estados; lei viva, normas sociais preenchendo a função de lei no seio de uma comunidade. Esses quatro tipos de lei podem agir, potencialmente, como fonte do direito global inter-jurídico na medida em que são empregadas numa forma intercontextual. Refletindo essa estrutura inter-jurídica, o conteúdo normativo substancial do direito global é caracterizado por uma relativa predominância estrutural de normas de conectividade. Normas de conectividade estão orientadas a facilitar o transplante, isso é, a extração, transmissão e incorporação dos componentes de significado de um contexto jurídico-legal para outro, como, por exemplo, no caso do comércio internacional e das leis de investimento, lei comercial doméstica ou leis aprovadas sobre atividades missionárias no contexto das leis religiosas. O conceito de normas de conectividade, portanto, diferencia-se do entendimento clássico sobre as normas de coerência, cuja finalidade é dar coerência no âmbito de uma coletividade sob a base de prescrições de ações que limitem o escopo de possíveis ações futuras e estabelecer sanções para a não-conformidade. Diferencia-se, ainda, de um entendimento progressivo sobre as normas como normas de possibilidade, implicando a articulação de futuros possíveis com base numa distinção entre o factual e o não-factual, isto é, mediante o distanciamento do mundo factual, com o objetivo de acentuar a abertura do futuro. Assim sendo, as normas de conectividade são, em outras palavras, um terceiro tipo de normas localizado entre as normas de coerência e as normas de possibilidade. (shrink)

It started and ended in Chile! This might be the introductory sentence to an economic history of our times. After the 1973 military coup the “Chicago Boys”, a group of Chilean economists educated by Milton Friedman at University of Chicago, took control of Pinochet’s economic policy. A type of policy which later on entered government offices in the UK and the US together with Margaret Thatcher and Ronald Reagan. Today protesters on the streets of Santiago seeks to tear down the (...) core pillars of the paradigm installed by the Chicago boys. Looking at broader developments, the essential driver of change over the past four decades have however not been an economic one but rather a legal one. Or rather the essential change has been the economics discipline acting as an invasive species entering into the realm of law though the law and economics paradigm. (shrink)

A central assumption in much contemporary scholarship is that a central shift has taken place over the course of the last four decades: a shift from a world largely centered on public authority to a world that is increasingly dominated by private authority. The central expression of this shift is seen to be a concurring move from public to private law and thus from legislation to contract as the central legal instrument structuring economic as well as other social processes. While (...) developments in this direction can certainly be observed, this article provides a more nuanced perspective. Outlining a long-term historical perspective, this article reconstructs the manifold and volatile dynamic between institutionalized forms of public and private authority. It does soon the basis of the argument that, in the course of this evolutionary process, the very function and meaning of both public and private authority has been fundamentally altered. This alteration implies the transformation of both dimensions into functionally limited and more specific phenomena. With this background, it becomes possible to argue that societal evolution is characterized by a dual expansion of both public and private forms of authority. The starting point is an understanding of authority as condensed power. Asymmetric relations implying either direct or indirect forms of domination are observable throughout society and are as such an intrinsic element of all social relations and processes. Authority is, however, based on a particular institutionalization of power, typically delineated and condensed with the help of legal instruments. Under radical modern conditions, law becomes constitutive for authority to the extent that one might argue that no form of authority exists outside its legal form. With this background, the article argues that the pre-1945 world at the local, national, and transnational level of world society was characterized by a relative dominance of private forms of authority. The process leading to state-based modern public law gaining not only a formal but also a factual capacity to structure societal processes was a century-long process: a process which implied an epic struggle aimed at undermining and eradicating alternative centers of public and private authority in society. It was, however, a first in the mid-twentieth century that an outright breakthrough of this claim and aspiration could be observed. The implied a respecification of public and private authority that remains central to our understanding of authority to this day. (shrink)

This article explores the ‘lack of meaning’ in contemporary society as a consequence of Western dualist thought paradigms and ontologies, via Gilles Deleuze’s concept of ‘reactive nihilism’ following the colloquial murder of God. The article then explores processual and new materialist approaches in the understanding of the lived and carnal self, arguing for immanent and senseful materiality as an ethical platform for religious, environmental, and societal solidarity for tomorrow. For the theoretical justification of the processual approach in understanding the enfleshed (...) self, the article employs John Dupré’s processual approach in the philosophy of biology, as well as Astrida Neimani’s critical posthumanism, and contextualizes these considerations with Erich Fromm’s ethical distinction of being and having. (shrink)

WINNER BEST SOCIAL PHILOSOPHY BOOK IN 2021 / NASSP BOOK AWARD 2022 -/- Together we can often achieve things that are impossible to do on our own. We can prevent something bad from happening or we can produce something good, even if none of us could do it by herself. But when are we morally required to do something of moral importance together with others? This book develops an original theory of collective moral obligations. These are obligations that individual moral (...) agents hold jointly, but not as unified collective agents. To think of some of our obligations as joint or collective is the best way of making sense of our intuitions regarding collective moral action problems. Where we have reason to believe that our efforts are most efficient as part of a collective endeavor we may incur collective obligations together with others who are similarly placed as long as we are able to establish compossible individual contributory strategies towards that goal. The book concludes with a discussion of “massively shared obligations” to large-scale moral problems such as global poverty. (shrink)

Together we can achieve things that we could never do on our own. In fact, there are sheer endless opportunities for producing morally desirable outcomes together with others. Unsurprisingly, scholars have been finding the idea of collective moral obligations intriguing. Yet, there is little agreement among scholars on the nature of such obligations and on the extent to which their existence might force us to adjust existing theories of moral obligation. What interests me in this paper is the perspective of (...) the moral deliberating agent who faces a collective action problem, i.e. the type of reasoning she employs when deciding how to act. I hope to show that agents have collective obligations precisely when they are required to employ ‘we-reasoning’, a type of reasoning that differs from I-mode, best response reasoning, as I shall explain below. More precisely, two (or more) individual agents have a collective moral obligation to do x if x is an option for action that is only collectively available (more on that later) and each has sufficient reason to rank x highest out of the options available to them. (shrink)

Moral duties concerning climate change mitigation are – for good reasons – conventionally construed as duties of institutional agents, usually states. Yet, in both scholarly debate and political discourse, it has occasionally been argued that the moral duties lie not only with states and institutional agents, but also with individual citizens. This argument has been made with regard to mitigation efforts, especially those reducing greenhouse gases. This paper focuses on the question of whether individuals in industrialized countries have duties to (...) reduce their individual carbon footprint. To this end it will examine three kinds of arguments that have been brought forward against individuals having such duties: the view that individual emissions cause no harm; the view that individual mitigation efforts would have no morally significant effect; and the view that lifestyle changes would be overly-demanding. The paper shows how all three arguments fail to convince. While collective endeavours may be most efficient and effective in bringing about significant changes, there are still good reasons to contribute individually to reducing emission. After all, for most people the choice is between reducing one’s individual emissions and not doing anything. The author hopes this paper shows that one should not opt for the latter. (shrink)

ABSTRACTIn this paper I defend a form of epistocracy I call limited epistocracy – rule by institutions housing expertise in non-political areas that become politically relevant. This kind of limited epistocracy, I argue, isn't a far-off fiction. With increasing frequency, governments are outsourcing political power to expert institutions to solve urgent, multidimensional problems because they outperform ordinary democratic decision-making. I consider the objection that limited epistocracy, while more effective than its competitors, lacks a fundamental intrinsic value that its competitors have; (...) namely, political inclusion. After explaining this challenge, I suggest that limited epistocracies can be made compatible with robust political inclusion if specialized institutions are confined to issuing directives that give citizens multiple actionable options. I explain how this safeguards citizens’ inclusion through rational deliberation, choice, and contestation. (shrink)

COVID-19 vaccine refusal seems like a paradigm case of irrationality. Vaccines are supposed to be the best way to get us out of the COVID-19 pandemic. And yet many people believe that they should not be vaccinated even though they are dissatisfied with the current situation. In this paper, we analyze COVID-19 vaccine refusal with the tools of contemporary philosophical theories of responsibility and rationality. The main outcome of this analysis is that many vaccine-refusers are responsible for the belief that (...) they should not be vaccinated and epistemically rational in holding it. This is an important result because it provides insights into the legitimacy of certain public health policies. In particular, this result shows that a public health policy that would abandon the project of convincing certain vaccine-refusers with reasons – e.g., by simply making vaccination compulsory – is prima facie illegitimate. (shrink)

The challenges facing us today require practical wisdom to allow us to react appropriately. In this paper, we argue that at a group level, we will make better decisions if we respect and take into account the moral judgment of agents with diverse styles of cognition and moral reasoning. We show this by focusing on the example of autism, highlighting different strengths and weaknesses of moral reasoning found in autistic and non-autistic persons respectively.

When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the (...) European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light. (shrink)

Humans are prone to producing morally suboptimal and even disastrous outcomes out of ignorance. Ignorance is generally thought to excuse agents from wrongdoing, but little attention has been paid to group-based ignorance as the reason for some of our collective failings. I distinguish between different types of first-order and higher order group-based ignorance and examine how these can variously lead to problematic inaction. I will make two suggestions regarding our epistemic obligations vis-a-vis collective (in)action problems: (1) that our epistemic obligations (...) concern not just our own knowledge and beliefs but those of others, too and (2) that our epistemic obligations can be held collectively where the epistemic tasks cannot be performed by individuals acting in isolation, for example, when we are required to produce joint epistemic goods. (shrink)

This commentary is part of a symposium on my book 'Getting Our Act Together: A Theory of Collective Moral Obligations' (Routledge, 2021). Here, I respond to the members of the North American Society for Social Philosophy’s 2022 Book Award Committee. I discuss whether most moral theory is individualistic, arguing that “traditional ethical theories” - meaning the traditions of Virtue Ethics, Kantian ethics as well as consequentialist ethics - certainly are. All of these focus on what individual agents ought to do (...) or how they ought to be. The commentators wonder whether any substantive moral theory can accommodate the idea of collective obligations? I suggest that one of my conditions for collective moral obligations is incompatible with objectivist versions of act-utilitarianism, which require moral agents to choose the option that actually maximises utility. Having said that, core elements of my account of collective moral obligations can be used with any substantive theory. Further, the theory—in its entirety—can be used with several substantive theories, including versions of all the major types of moral theory. How common are collective obligations? On my understanding, as fundamentally social thinkers, we are fairly flexible at switching between the we-mode and the I-mode, and will regularly respond to contextual cues for framing collective action scenarios. As such, I am not worried that there would be too few circumstances under which we have all-out collective obligations. What is more, we can generate such obligations by providing contextual cues for others that prompt them to frame situations as opportunities for joint action and to perform contributory actions. Another question raised by the commentators was if for having collective obligations it is crucial that we believe others will contribute? My answer is that such obligations do not necessarily depend on having positive evidence that concrete others are or will be contributing. Having said that, where we have positive evidence that others will not contribute and in particular where we know that their failure to contribute will unilaterally undermine the possibility of success of any collective action (as in strict joint necessity cases) this may undermine collective obligations. On my theory, what happens if people disagree on what is morally best? On my view, where such divergence between moral positions comes as a result of disagreement between morally motivated, reasonable, and well-informed people it undermines their collective obligation. Finally, are there “negative” collective duties? Yes, in fact collective harm cases can be conceived of as generating “negative” duties to collectively refrain from generating these kinds of harms, including our obligations to mitigate climate change through reducing greenhouse emissions. (shrink)

In recent decades, concepts of group agency and the morality of groups have increasingly been discussed by philosophers. Notions of collective or joint duties have been invoked especially in the debates on global justice, world poverty and climate change. This paper enquires into the possibility and potential nature of moral duties individuals in unstructured groups may hold together. It distinguishes between group agents and groups of people which – while not constituting a collective agent – are nonetheless capable of performing (...) a joint action. It attempts to defend a notion of joint duties which are neither duties of a group agent nor duties of individual agents, but duties held jointly by individuals in unstructured groups. Furthermore, it seeks to illuminate the relation between such joint duties on the one hand and individual duties on the other hand. Rebutting an argument brought forward by Wringe, the paper concludes that it is not plausible to assume that all humans on earth can together hold a duty to mitigate climate change or to combat global poverty given that the members of that group are not capable of joint action. (shrink)

Genevieve Lloyd’s Spinoza is quite a different thinker from the arch rationalist caricature of some undergraduate philosophy courses devoted to “The Continental Rationalists”. Lloyd’s Spinoza does not see reason as a complete source of knowledge, nor is deductive rational thought productive of the highest grade of knowledge. Instead, that honour goes to a third kind of knowledge—intuitive knowledge (scientia intuitiva), which provides an immediate, non-discursive knowledge of its singular object. To the embarrassment of some hard-nosed philosophers, intellectual intuition has an (...) affective component; it is a form of love, and ultimately given that human beings are finite modes of God/Nature (Deus sive Natura), it is a form of the intellectual love of God (amor Dei intellectualis). Some philosophers do not know what to make of this mysterious aspect of Spinoza’s philosophy, which is nonetheless firmly anchored in a reading of Part V of the Ethics. Nonetheless, this note will insist with Lloyd’s “Reconsidering Spinoza’s Rationalism” that such doctrine is an integral part of Spinoza’s philosophy. Moreover, it will be shown that Spinoza is well aware of the limitations of reason (ratio) in gaining scientific knowledge of the world and requires intuition precisely because of the inability of reason to represent individuals in their full particularity. Imagination too has a role to play in shaping scientific knowledge, although reason performs a vital critical role in disciplining and liberating the human mind from inadequate imaginary ideas. The result is an interpretation of Spinoza’s epistemology as both rationalist and intuitionist. DOI: 10.1080/24740500.2021.1962652. (shrink)

We can often achieve together what we could not have achieved on our own. Many times these outcomes and actions will be morally valuable; sometimes they may be of substantial moral value. However, when can we be under an obligation to perform some morally valuable action together with others, or to jointly produce a morally significant outcome? Can there be collective moral obligations, and if so, under what circumstances do we acquire them? These are questions to which philosophers are increasingly (...) turning their attention. It is fair to say that traditional ethical theories cannot give a satisfying answer to the questions, focusing as they do on the actions and attitudes of discreet individual agents. It should also be noted that the debate surrounding collective moral obligations is ongoing and by no means settled. This chapter discusses and compares the different attempts to date to answer the above questions. It proposes a set of meta-criteria—or desiderata— for arbitrating between the various proposals. (shrink)

This chapter provides a high-level introduction to the topic of propaganda. We survey a number of the most influential accounts of propaganda, from the earliest institutional studies in the 1920s to contemporary academic work. We propose that these accounts, as well as the various examples of propaganda which we discuss, all converge around a key feature: persuasion which bypasses audiences’ rational faculties. In practice, propaganda can take different forms, serve various interests, and produce a variety of effects. Propaganda can aim (...) to affect not only audiences’ beliefs and attitudes, but also their emotions and moods, and in turn how audiences subsequently reason or act. While propaganda is often thought of as false or misinformation, it can instead involve framing effects (“The war on drugs”), covert messaging (“There are Muslims among us”), emotionally charged slogans (“Make America Great Again”), or myths (“The American dream”). These forms of propaganda mislead audiences, not by introducing false information, but by making some beliefs and values, rather than others, salient. In fact, propaganda can even employ straightforwardly true claims (again, as in “There are Muslims among us”) and seemingly objective bureaucratic reports (“Crime has risen 4.2%”). To understand how these and other mechanisms enable propaganda to persuade by arational means, further study is needed. To that end, throughout the chapter we identify a number of places where the study of meaning and communication can help elucidate propaganda, as well as the places where propaganda issues challenges for the study of meaning. (shrink)

Democracy is the central political issue of our age, yet debates over its nature and goals rarely engage with feminist concerns. Now that women have the right to vote, they are thought to present no special problems of their own. But despite the seemingly gender-neutral categories of individual or citizen, democratic theory and practice continues to privilege the male. This book reconsiders dominant strands in democratic thinking - focusing on liberal democracy, participatory democracy, and twentieth century versions of civic republicanism (...) - and approaches these from a feminist perspective. Anne Phillips explores the under-representation of women in politics, the crucial relationship between public and private spheres, and the lessons of the contemporary women's movement as an experience in participatory democracy. (shrink)