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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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?

The paper argues that an account of understanding should take the form of a Carnapian explication and acknowledge that understanding comes in degrees. An explication of objectual understanding is defended, which helps to make sense of the cognitive achievements and goals of science. The explication combines a necessary condition with three evaluative dimensions: An epistemic agent understands a subject matter by means of a theory only if the agent commits herself sufficiently to the theory of the subject matter, and to (...) the degree that the agent grasps the theory (i.e., is able to make use of it), the theory answers to the facts and the agent’s commitment to the theory is justified. The threshold for outright attributions of understanding is determined contextually. The explication has descriptive as well as normative facets and allows for the possibility of understanding by means of non-explanatory (e.g., purely classificatory) theories. (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)

In this paper I discuss two related ideas and cross-reference them, as it were, on the common ground of the Spinozistic text. First, I want to construct a Spinozistic account of domestic violence and a Spinozistic response to such violence. This will involve attempting to explicate the phenomenon (or at least one aspect of it, to be defined) through the terms and conceptual structure of Spinoza's Ethics. Second, I want to discuss a feminist reading (interpretation) of Spinoza, that of Luce (...) Irigaray. The projects work together, as a better Spinozistic account requires a charitable reading of Spinoza to which Irigaray points the way. Irigaray will turn out to be more Spinozistic that Spinoza himself. In addition, the construction of a Spinozistic response to domestic violence will highlight the textual basis of Irigaray’s reading. It is hoped that this will contribute to making Irigaray’s reading accessible to philosophers trained in the analytic tradition. The undercurrent of both discussions will be an attempt to explicate and further what I take to be a shared moral insight in the late twentieth century, namely, that domestic violence, and particularly violence against women as wives and partners, is morally wrong. (shrink)

Most philosophers writing on meaning in life agree that it is a distinct kind of final value. This consensus view has two components: the ‘final value claim’ that meaning in life is a kind of final value, and the ‘distinctness claim’ that it is distinct from all other kinds of final value. This paper discusses some difficulties in vindicating both claims at once. One way to underscore the distinctness of meaning, for example, is to retain a feature of our pretheoretical (...) concept of meaning in life, according to which the least possible quantity of meaning is meaninglessness. Unfortunately, this makes it harder to defend the claim that meaning is a kind of final value. On the other hand, revising the concept to allow for negative meaning renders meaning closer in structure to other kinds of final value, but also makes it harder to defend the distinctness claim. In light of these difficulties, the paper explores the prospects of a theory of meaning in life which departs from the consensus view by rejecting the final value claim. On such a view, the value of meaning in life is entirely instrumental. (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)

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)

Recognizing that truth is socially constructed or that knowledge and power are related is hardly a novelty in the social sciences. In the twenty-first century, however, there appears to be a renewed concern regarding people’s relationship with the truth and the propensity for certain actors to undermine it. Organizations are highly implicated in this, given their central roles in knowledge management and production and their attempts to learn, although the entanglement of these epistemological issues with business ethics has not been (...) engaged as explicitly as it might be. Drawing on work from a virtue epistemology perspective, this paper outlines the idea of a set of epistemic vices permeating organizations, along with examples of unethical epistemic conduct by organizational actors. While existing organizational research has examined various epistemic virtues that make people and organizations effective and responsible epistemic agents, much less is known about the epistemic vices that make them ineffective and irresponsible ones. Accordingly, this paper introduces vice epistemology, a nascent but growing subfield of virtue epistemology which, to the best of our knowledge, has yet to be explicitly developed in terms of business ethics. The paper concludes by outlining a business ethics research agenda on epistemic vice, with implications for responding to epistemic vices and their illegitimacy in practice. (shrink)

Actualism is the doctrine that the only things there are, that have being in any sense, are the things that actually exist. In particular, actualism eschews possibilism, the doctrine that there are merely possible objects. It is widely held that one cannot both be an actualist and at the same time take possible world semantics seriously — that is, take it as the basis for a genuine theory of truth for modal languages, or look to it for insight into the (...) modal structure of reality. For possible world semantics, it is supposed, commits one to possibilism. In this paper I take issue with this view. To the contrary, I argue that one can take possible world semantics seriously without any commitment to possible worlds or possibilism and hence remain in full compliance with actualist scruples. Moreover, one can do so without without invoking either "ersatz" worlds or haecceities. (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 Reasons and Persons, Parfit (1984) posed a challenge: provide a satisfying normative account that solves the Non-Identity Problem, avoids the Repugnant and Absurd Conclusions, and solves the Mere-Addition Paradox. In response, some have suggested that we look toward person-affecting views of morality for a solution. But the person-affecting views that have been offered so far have been unable to satisfy Parfit's four requirements, and these views have been subject to a number of independent complaints. This paper describes a person-affecting (...) account which meets Parfit's challenge. The account satisfies Parfit's four requirements, and avoids many of the criticisms that have been raised against person-affecting views. (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)

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)

As there is currently a neo-Aristotelian revival currently taking place within contemporary metaphysics and dispositions, or causal powers are now being routinely utilised in theories of causality and modality, more attention is beginning to be paid to a central Aristotelian concern: the metaphysics of substantial unity, and the doctrine of hylomorphism. In this paper, I distinguish two strands of hylomorphism present in the contemporary literature and argue that not only does each engender unique conceptual difficulties, but neither adequately captures the (...) metaphysics of Aristotelian hylomorphism. Thus both strands of contemporary hylomorphism, I argue, fundamentally misunderstand what substantial unity amounts to in the hylomorphic framework – namely, the metaphysical inseparability of matter and form. (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 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)

Abstract: The article presents and critically discusses Walton's (and Reed's and Macagno's) argument scheme approach to a theory of good argumentation. In particular, four characteristics of Walton's approach are presented: 1. It presents normative requirements for argumentation in the form of argument schemes, i.e. relatively concrete type descriptions. 2. These schemata are enthymematic, i.e. they omit some of the premises required by other approaches. 3. The actual argument schemes are usually supplemented by critical questions. 4. The method is inductive, bottom-up, (...) gaining the normative schemata by abstraction from empirically collected groups of similar arguments. These characteristics, among others, are then discussed on the basis of four adequacy conditions: AC1: effectiveness in achieving the epistemic goal of obtaining and communicating justified acceptable opinions; AC2: completeness in capturing the good argument types; AC3: efficiency in achieving the goals; AC4: justification of the argument schemes. The discussion then reveals a number of weaknesses in Walton's argument schemes; among other things, they are neither effective (in the defined sense) nor truly justified. Contributing factors to these problems include the schema approach, i.e. not looking at the form of arguments, and the lack of epistemological foundations in the development of good types of arguments. However, the critical analyses reveal a better alternative: an epistemological approach based on epistemological principles. The article concludes with a detailed analysis of the scheme Practical Inference, which confirms the general criticism in detail. (shrink)

The advent of contemporary evolutionary theory ushered in the eventual decline of Aristotelian Essentialism (Æ) – for it is widely assumed that essence does not, and cannot have any proper place in the age of evolution. This paper argues that this assumption is a mistake: if Æ can be suitably evolved, it need not face extinction. In it, I claim that if that theory’s fundamental ontology consists of dispositional properties, and if its characteristic metaphysical machinery is interpreted within the framework (...) of contemporary evolutionary developmental biology, an evolved essentialism is available. The reformulated theory of Æ offered in this paper not only fails to fall prey to the typical collection of criticisms, but is also independently both theoretically and empirically plausible. The paper contends that, properly understood, essence belongs in the age of evolution. (shrink)

This paper examines two mistakes regarding David Lewis’ Principal Principle that have appeared in the recent literature. These particular mistakes are worth looking at for several reasons: The thoughts that lead to these mistakes are natural ones, the principles that result from these mistakes are untenable, and these mistakes have led to significant misconceptions regarding the role of admissibility and time. After correcting these mistakes, the paper discusses the correct roles of time and admissibility. With these results in hand, the (...) paper concludes by showing that one way of formulating the chance–credence relation has a distinct advantage over its rivals. (shrink)

Variants of the slogan that a succession of experiences does not amount to an experience of succession are commonplace in the philosophical literature on temporal experience. I distinguish three quite different arguments that might be captured using this slogan: the individuation argument, the unity argument, and the causal argument. Versions of the unity and the causal argument are often invoked in support of a particular view of the nature of temporal experience sometimes called intentionalism, and against a rival view sometimes (...) called extensionalism. I examine these arguments in light of the individuation argument. In particular, I show that the individuation argument is, at least prima facie, neutral between those two views of temporal experience; and once the individuation argument is in place, the unity and causal argument also lose their force against extensionalism. (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)

Although they are continually compositionally reconstituted and reconfigured, organisms nonetheless persist as ontologically unified beings over time – but in virtue of what? A common answer is: in virtue of their continued possession of the capacity for morphological invariance which persists through, and in spite of, their mereological alteration. While we acknowledge that organisms‟ capacity for the “stability of form” – homeostasis - is an important aspect of their diachronic unity, we argue that this capacity is derived from, and grounded (...) in a more primitive one – namely, the homeodynamic capacity for the “specified variation of form”. In introducing a novel type of causal power – a „structural power‟ – we claim that it is the persistence of their dynamic potential to produce a specified series of structurally adaptive morphologies which grounds organisms‟ privileged status as metaphysically “one over many” over time. (shrink)

It is sometimes claimed that non-human animals (and perhaps also young children) live their lives entirely in the present and are cognitively ‘stuck in time’. Adult humans, by contrast, are said to be able to engage in ‘mental time travel’. One possible way of making sense of this distinction is in terms of the idea that animals and young children cannot engage in tensed thought, which might seem a preposterous idea in the light of certain findings in comparative and developmental (...) psychology. I try to make this idea less preposterous by looking into some of the cognitive requirements for tensed thought. In particular, I suggest that tensed thought requires a specific form of causal understanding, which animals and young children may not possess. (shrink)

A central tension shaping metaethical inquiry is that normativity appears to be subjective yet real, where it’s difficult to reconcile these aspects. On the one hand, normativity pertains to our actions and attitudes. On the other, normativity appears to be real in a way that precludes it from being a mere figment of those actions and attitudes. In this paper, I argue that normativity is indeed both subjective and real. I do so by way of treating it as a special (...) sort of artifact, where artifacts are mind-dependent yet nevertheless can carve at the joints of reality. In particular, I argue that the properties of being a reason and being valuable for are grounded in attitudes yet are still absolutely structural. (shrink)

I examine some recent claims put forward by L. A. Paul, Barry Dainton and Simon Prosser, to the effect that perceptual experiences of movement and change involve an (apparent) experience of ‘passage’, in the sense at issue in debates about the metaphysics of time. Paul, Dainton and Prosser all argue that this supposed feature of perceptual experience – call it a phenomenology of passage – is illusory, thereby defending the view that there is no such a thing as passage, conceived (...) of as a feature of mind-independent reality. I suggest that in fact there is no such phenomenology of passage in the first place. There is, however, a specific structural aspect of the phenomenology of perceptual experiences of movement and change that can explain how one might mistakenly come to the belief that such experiences do involve a phenomenology of passage. (shrink)

Serious actualism is the view that it is metaphysically impossible for an entity to have a property, or stand in a relation, and not exist. Fine (1985) and Pollock (1985) influentially argue that this view is false. In short, there are properties like the property of nonexistence, and it is metaphysically possible that some entity both exemplifies such a property and does not exist. I argue that such arguments are indeed successful against the standard formulation of serious actualism. However, I (...) also argue that we should distinguish a weaker formulation of serious actualism using the actualist distinction between truth in, and truth at, a possible world. This weaker formulation is then shown to be consistent with the existence and possible exemplification of properties like the property of nonexistence. I end with a novel argument for the truth of the weaker formulation. (shrink)

This paper argues that we should replace the common classification of theories of welfare into the categories of hedonism, desire theories, and objective list theories. The tripartite classification is objectionable because it is unduly narrow and it is confusing: it excludes theories of welfare that are worthy of discussion, and it obscures important distinctions. In its place, the paper proposes two independent classifications corresponding to a distinction emphasised by Roger Crisp: a four-category classification of enumerative theories (about which items constitute (...) welfare), and a four-category classification of explanatory theories (about why these items constitute welfare). (shrink)

Evolutionary developmental biology represents a paradigm shift in the understanding of the ontogenesis and evolutionary progression of the denizens of the natural world. Given the empirical successes of the evo-devo framework, and its now widespread acceptance, a timely and important task for the philosophy of biology is to critically discern the ontological commitments of that framework and assess whether and to what extent our current metaphysical models are able to accommodate them. In this paper, I argue that one particular model (...) is a natural fit: an ontology of dispositional properties coherently and adequately captures the crucial casual-cum-explanatory role that the fundamental elements of evo-devo play within that framework. (shrink)

Although contemporary metaphysics has recently undergone a neo-Aristotelian revival wherein dispositions, or capacities are now commonplace in empirically grounded ontologies, being routinely utilised in theories of causality and modality, a central Aristotelian concept has yet to be given serious attention – the doctrine of hylomorphism. The reason for this is clear: while the Aristotelian ontological distinction between actuality and potentiality has proven to be a fruitful conceptual framework with which to model the operation of the natural world, the distinction between (...) form and matter has yet to similarly earn its keep. In this chapter, I offer a first step toward showing that the hylomorphic framework is up to that task. To do so, I return to the birthplace of that doctrine - the biological realm. Utilising recent advances in developmental biology, I argue that the hylomorphic framework is an empirically adequate and conceptually rich explanatory schema with which to model the nature of organisms. (shrink)

Ectogestation involves the gestation of a fetus in an ex utero environment. The possibility of this technology raises a significant question for the abortion debate: Does a woman’s right to end her pregnancy entail that she has a right to the death of the fetus when ectogestation is possible? Some have argued that it does not Mathison & Davis. Others claim that, while a woman alone does not possess an individual right to the death of the fetus, the genetic parents (...) have a collective right to its death Räsänen. In this paper, I argue that the possibility of ectogestation will radically transform the problem of abortion. The argument that I defend purports to show that, even if it is not a person, there is no right to the death of a fetus that could be safely removed from a human womb and gestated in an artificial womb, because there are competent people who are willing to care for and raise the fetus as it grows into a person. Thus, given the possibility of ectogestation, the moral status of the fetus plays no substantial role in determining whether there is a right to its death. (shrink)