The idea of the political, reconfiguring sovereignty and exception: Analysing theoretical perspectives of Carl Schmitt and Giorgio Agamben -/- Author / Authors : Meenakshi Gogoi Page no. 69-78 Discipline : Political Science/Polity/ Democratic studies Script/language : Roman/English Category : Research paper Keywords: Political, Sovereignty, Exception, Democracy, Rule of Law.

ABSTRACT A new ‘political philosophy’ is indispensable to the ‘post-Corona world,’ and this paper tries to analyze the future of ‘liberal democracy’ in it. It shows that ‘liberal democracy’ faces a ‘global crisis’ that has begun before, but the ‘novel Coronavirus pandemic,’ as a setback for it, strongly encourages that crisis. ‘Liberalism’ and ‘democracy,’ which had long been assumed by ‘political philosophers’ to go together, are now becoming decoupled, and the ‘liberal values’ of ‘democracy’ are eroding. To find why and (...) how, this paper analyzes ‘authoritarianism,’ ‘totalitarianism,’ and the evils and propensities of ‘democracy’ that bring about further erosions of ‘liberal values.’ There may be difficult trade-offs to be made between ‘liberal’ and ‘authoritarian’ ‘values’ - and, after the experience of ‘Coronavirus,’ this paper shows the ‘illiberal or authoritarian democracy’ may become stronger. -/- KEYWORDS: democracy, liberalism, liberal democracy, illiberal democracy, the novel Coronavirus pandemic, Covid-19, authoritarianism, totalitarianism. -/- EXTENDED ABSTRACT For almost a century in West, ‘democracy’ has meant ‘liberal democracy’-a political system marked not only by ‘free and fair elections,’ but also by ‘liberal values.’ ‘Liberalism’ applied to the problem of the limits of the criminal law would require commitment to the presumption in favor of ‘liberty.’ If the word ‘liberal’ is to have any utility in this context, it should refer to one who has so powerful a commitment to ‘liberty’ that she is motivated to limit the number of acknowledged liberty-limiting or coercion-legitimizing principles as narrowly as possible. So, she only believes in ‘harm-principle’ as the morally relevant reason for criminal prohibitions. ‘Offense principle’ and ‘paternalistic’ and ‘moralistic’ considerations, when introduced as support for penal legislation, have no weight at all. So, it means ‘autonomy’ and ‘self-regarding vs. other-regarding actions distinction’ based on which the human is the owner of her mind and body and everything consenting adults do is beyond the realm of morality and law. It leads to ‘individual’ ‘basic rights and liberties’ such as ‘basic rights and liberties’ of ‘speech,’ ‘religion,’ and ‘property’ and ‘collective’ ‘basic rights and liberties’ such as ‘basic rights and liberties of assembly,’ ‘civil society,’ ‘political pluralism,’ ‘democratic institutions,’ and ‘non-governmental organizations.’ ‘Liberalism’ also believes in ‘equality of conditions, ‘equal and free participatory rights in political decision making,’ and ‘collective self-governance.’ It also believes in the ‘rule of law,’ a ‘separation of powers,’ and ‘checks and balances.’ However, even under fair and free elections, the elected leaders can be ‘populists,’ ‘ultra-nationalists,’ ‘racists,’ ‘fascists,’ and ‘authoritarians’ who do not respect ‘inviolable basic rights and liberties,’ and suppress ‘minorities.’ Democratically elected leaders can routinely ignore constitutional limits on their power and deprive their citizens of ‘basic rights and liberties.’ The two strands of ‘liberal democracy’ have been coming apart in the world, and the ‘liberal’ elements of ‘democracy’ have been fraying and eroding even before the ‘novel Coronavirus pandemic.’ Even before the Coronavirus hit, there was already much discussion of a crisis of ‘liberal democracy.’ In particular, there has been a debate about whether ‘liberalism’ and ‘democracy,’ which had long been assumed to go together, were becoming decoupled. This paper shows ‘liberal democracy’ faces a ‘global crisis’ that had begun before the ‘novel Coronavirus pandemic.’ It also analyzes ‘authoritarianism,’ ‘totalitarianism,’ ‘liberalism,’ and ‘democracy’ and shows that Covid-19 is a setback for ‘liberal democracy.’ What is striking about the current moment is that many of the ‘liberal’ elements of ‘democracy’ are so far holding up under immense pressure. ‘Illiberal democracies’ seemed to be emerging in many countries. This model of ‘illiberal democracy,’ in which elections continue to be held but some individual rights and liberties are curtailed, may emerge stronger from this new crisis. In that sense, the ‘pandemic’ may become a challenge not only to ‘democracy’ as such but also to ‘liberal democracy’ in particular – in other words, a system of popular sovereignty together with guaranteed basic rights, such as freedom of association and expression and checks and balances on executive power. ‘Authoritarian’ procedures may succeed in mitigating the spread of the ‘Coronavirus,’ but the world now faces another problem: that when the virus recedes, many ‘liberal democracies’ will be far less ‘liberal’ or ‘democratic’ than they were before. In times of crisis, ‘liberal values’ have been ignored temporarily in the name of executive power. However, the ‘temporary’ can become ‘permanent.’ In addition, if citizens lose their faith in the legitimacy of ‘liberal democracy’ as the best form of government, and think ‘liberal democracy’ cannot function effectively during a crisis, and ‘authoritarian regimes’ manage the crisis more decisively, the world will slide towards ‘illiberal or authoritarian democracy,’ and many ‘liberal democracies’ will be at grave risk of failure. There may now be difficult trade-offs to be made between those basic rights and security - and, after the experience of Covid-19, many citizens may choose security. (shrink)

This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

The literature contains two concepts of corruption which are often confused with one another: corruption as twisted character (pollution), and corruption as disloyalty. It also contains two sites for corruption: the corruption of individuals, and the corruption of entire institutions such as a state or a legislature.This paper first draws a clear distinction between the pollution and disloyalty concepts of corruption in the individual context, and then defends a conception of disloyalty corruption according to which the distinguishing feature is an (...) agent who uses powers delegated to her from her principal as her own. Then, the paper shifts gears to the institutional context, arguing that the best account of institutional corruption in the extant literature is of the pollution kind. It then fills the remaining logical space by laying out a conception of institutional corruption as disloyalty and explaining its moral significance for the political legitimacy of a democracy. (shrink)

The paper discusses different interpretations of Callicles and Thrasymachus’ positions. There are good reasons for interpreting Callicles as a critic of democracy and as an aristocratic political thinker whose political views are closer to Plato’s than is usually assumed. The paper argues that Callicles defends a natural right of the best citizens to rule over the crowd. However, in contrast to Plato, for Callicles the rule of the best should not aim at the common good but at their (...) personal advantage. The paper also discusses the view that Thrasymachus is just a sociologist of power who diagnoses what actually happens in politics (Henning Ottmann, Max Salomon). This interpretation is still current, and enables us to understand important aspects of legislation in contemporary democracies. Finally, the paper argues that there are reasons to understand Thrasymachus not only as a political realist, but, similar to Protagoras, as a moral sceptic. (shrink)

Since at least the second half of the 19th century, the U.S. federal government has enjoyed “plenary power” over its immigration policy. Plenary power allows the federal government to regulate immigration free of judicial review and thereby, with regard to immigration cases, minimize the Constitutional protections afforded to non-citizens. The justification for granting the U.S federal government such broad powers comes from a certain understanding of sovereignty; one where limiting sovereign authority in cases like immigration could potentially undermine its legitimacy (...) and thereby lead to something like a Hobbesian “state of nature.” One of the potential downsides of allowing the federal government to have such broad powers, however, is the potential to place non-citizens in a situation analogous to what Giorgio Agamben has called the “state of exception.” This situation appears to leave us with the following dichotomy: without something like the plenary power doctrine a political community will end up with a state of nature, but with something like the plenary power doctrine they end up with a state of exception. This essay offers a two-part response to this dilemma. First, it argues that the plenary power doctrine goes against the spirit of the U.S. Constitution, specifically the Fourteenth Amendment. Non-citizens, even undocumented immigrants, are entitled to more Constitutional protections than they currently enjoy. Second, since extending these protections is more consistent with the spirit of the Constitution, I argue that curtailing the federal government’s power over matters of immigration does not undermine its sovereignty, but promotes it. In short, with regard to immigration, it is a false but seductive dichotomy that constitutional democracies must choose between a state of nature and a state of exception. (shrink)

Wittgenstein taught us that there could not be a logically private language— a language on the proper speaking of which it was logically impossible for there to be more than one expert. For then there would be no difference between this person thinking she was using the language correctly and her actually using it correctly. The distinction requires the logical possibility of someone other than her being expert enough to criticize or corroborate her usage, someone able to constitute or hold (...) her to a standard of proper use. I shall explore the possibility of something opposite- sounding about laws, namely, that there could in principle be laws whose existence, legitimacy, goodness, and efficacy depend upon their being private, in this sense: their existence is kept secret from those who legitimately benefit from the laws and yet who would misguidedly destroy them were they to come to know of them; and it is kept secret from those who would illegitimately benefit from being able to circumvent the laws, and who could circumvent them if they knew of them. The secrecy of the laws increases their efficacy against bad behavior, and since were the public to come to know of these laws the public would lose its nerve and demand that the laws be rescinded, it prevents the public from destroying laws that are in fact in the public interest. These laws are therefore in a way logically private: they cannot at the same time exist, have the foregoing virtues, and be public. After proposing conditions under which such laws ought to be enacted, I moot logical objections to the very idea that there could be such laws, practical objections to their workability, and moral objections to their permissibility. I conclude by suggesting that, while we normally think of secret laws as creatures of the executive branch, things functionally equivalent to secret laws could also be created by other branches of government and societal institutions, and that all of this would be compatible with the form of sovereignty that is democratically grounded in the will and interests of the people. (shrink)

Placed between constituting and constituted power, homo sacer reveals the state of exception, which through sovereign ban, is kept both inside and outside the law. Agamben’s latest political and legal philosophy is based upon this concept. As the victim of sovereignty, homo sacer unfolds the paradox of sovereign power, criticiz- ing its fundaments and showing the emptiness of law. However, for potentiality which is at the centre of Agamben’s argument, we need to look not only outside sovereignty and sovereign power, (...) but also outside homo sacer. This ar- ticle aims to examine such space, arguing that through absolute potentiality, the fulfilment of law is possible with the content to be focused on reaching conditions of justice and happy life. (shrink)

Offers an original interpretation of Plato’s Laws and a new account of its enduring importance. Ballingall argues that the republican regime conceived in the Laws is built on "reverence," an archaic virtue governing emotions of self-assessment—particularly awe and shame. Ballingall demonstrates how learning to feel these emotions in the right way, at the right time, and for the right things is the necessary basis for the rule of law conceived in the dialogue. The Laws remains surprisingly neglected in the (...) scholarly literature, although this is changing. The cynical populisms haunting liberal democracies are focusing new attention on the “characterological” basis of constitutional government and Plato’s Laws remains an indispensable resource on this question, especially when we attend to the theme of reverence at its core. (shrink)

As civil liberties are shredded and powerful corporate and political force engage in a range of legal illegalities, the state itself becomes a model for corruption and violence. Violence has become not only the foundation of corporate sovereignty, it has also become the ideological scaffolding of common sense. Under casino capitalism, the state has become the enemy of justice and offers a prototype for types of misguided rebellion that mimic the lawlessness enshrined by corporate sovereignty and the repressive state apparatuses. (...) Under such circumstances, the force of action does not reside in deliberation, compassion, justice, equality and freedom. The state of exception has become the rule serving to legitimate illegality and normalizing violence and force as the only mediating dynamic worth utilizing to solve problems. In addition, subjectivity itself has become both hyper-masculinized, transformed, and subordinated to the celebration of an aggressive, violent and hyper-competitive war machine. Evidence of the hardening of the culture and the ongoing visibility of a pathological form of hyper-masculinity abounds in polices that amount to a permanent war on the poor, women, immigrants, workers, public servants, Muslims, poor minorities and those adults marginalized by class and race. Casino capitalism's paranoiac and increasingly repressive institutional and ideological apparatuses live in fear of dissent, critical rationality and the possibility of collective struggles moved by the desire for justice and a radical democracy. This is precisely where questions about education and resistance connect to broader debates about producing critical agents capable of acting as engaged and responsible citizens in a substantive democracy. Neoliberalism, as a dominant ideology, changed not only ways of thinking, but, consequently, practices. Evidently, a process of transformation like the one imposed by the hegemony of neoliberal ideology does not take place without resistance-conscious or not-and here it is the role of the State (and its ideological apparatus) in the subjection of individuals. For Fisher, there is no element that shows that the public actually embraced neoliberal doctrines with enthusiasm. For Mark Fisher, capitalist realism is \\\"an expression of class decomposition, and a consequence of class disintegration\\\". The phenomenon resulting from this discontent that finds few ways to express itself that are not individual is named by Mark Fisher as the \\\"privatization of stress\\\", which easily converts into depression and other psychological suffering. Although both its neoliberal and neoconservative components are opposed to bureaucracy in favour of privatised decentralisation, in practice capitalist realism involves the normalisation of bureaucracy and the creation of additional and unnecessary labour. Although pyramidal hierarchies are flattened, the increase and establishment of constant communication through technology has led to people at the same level surveilling each other. (shrink)

We subsist under the law where we claim our rights and are obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often can (...) be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension between the public power and private interests could be one reason as well as offers a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary type in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law can shape a legal plane of bureaucracies or public administration, and may guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status. (shrink)

This study seeks to critically explore the link between sovereignty, violence and war in Giorgio Agamben’s Homo Sacer series and Thomas Hobbes’s Leviathan. From a brief rereading of Leviathan’s main arguments that explicitly revolves around the Aristotelian distinction between actuality/ potentiality, it will conclude that Hobbesian pre-contractual violence is primarily based on what Hobbes terms “anticipatory reason” and the problem of future contingency. Relying on Foucauldian insights, it will be emphasized that the assumption of certain potentialities suffices in leading to (...) Hobbes’s well-known conclusion that the state of nature is a “condition of Warre.” In a second step, this study considers some of Agamben’s arguments to account for how pre-contractual violence as envisioned by Hobbes cannot be rendered impotent through the integration of a sovereign. In specific, Agamben’s claims shed light on an irreducible, inextricable entwining between the state of nature and the state of law as “Siamese twins” (Virno). On a meta-level, Agamben thus implicitly shows how the “Hobbesian problem” cannot be merely reduced to a “problem of order” (Parsons). With regard to the current functioning of the stratagems of financial markets and the mechanisms of future-colonization underpinning global politics, this study finally argues that Hobbes ought to be reevaluated in particular regarding the problem of the future in his account. Partly responding to Agamben’s critical investigations, I suggest that a careful exploration of what will be coined “the prospects of an actualization of the potentiality not-to-be” might serve as a first theoretical step towards a productive form of criticism. (shrink)

Kant is often regarded as one of the founding fathers of modern liberal democracy. His political theory reaches its climax in the ground-breaking work, Perpetual Peace (1795), which sets out the basic framework for a world federation of states united by a system of international law. What is less well known is that two years earlier, in his Religion within the Bounds of Bare Reason (1793/1794), Kant had postulated a very different, explicitly religious path to the politics of peace: he (...) presents the idea of an “ethical community” as a necessary requirement for humanity to become “satisfactory to God”. While many recent scholars have noted the importance of Kant’s concept of the ethical community, few recognize the force of his argument that such a community is possible only if it takes the form of a church; as a result, the precise status of his proposal remains unclear and under-appreciated. He argues in Division One, Section IV, of Religion’s Third Piece that the idea of this community can become a reality only through a “church” that is characterized by four rational requirements: unity, integrity, freedom, and the changeability of all church rules except these four unchangeable marks. Prior to Section IV, Division One portrays this ethical community as having a political form, yet an essentially nonpolitical matter. He compares it with Jewish theocracy, but observes that the latter failed to be an ethical commonwealth because it was explicitly political. Whereas traditional theocracy replaces the political state of nature (which conforms to the law, “might makes right”) with an ethical state of nature (which conforms to the law that I call, “should makes good”), or attempts to synthesize them, non-coercive theocracy transcends this distinction through a new perspective: it unites humanity in a common vision of a divine legislator whose only law is inward, binding church members together like families, through the law of love. Whereas the legal rights supported by democracy and a system of international law can go a long way to prepare for world peace, Kant’s conviction is that it will be ultimately impossible without support from healthy religion. (shrink)

Passages in Aristotle’s Politics Book 3 are cited in discussions of the “rule of law”, most particularly sections in 1287a where the famous characterization of law as “mind without desire” occurs and in 1286a where Aristotle raises and explores the question whether it is better to be ruled by the best man or the best laws. My paper aims, by exegetically culling out Aristotle’s position in the Politics, Nicomachean Ethics and Rhetoric, to argue that his view on the (...) class='Hi'>rule of law and its relations to human subjects is considerably more complex and considerably more interesting. Despite Aristotle’s dictum, laws are not expressions or institutions of a pure and passionless rationality, and in order to be framed, understood and administered well, one must both have the sort of solid understanding of virtues, vices, passions, and motives of human action that Aristotle’s moral philosophy provides and have developed, at least to some degree, certain virtues. My paper focuses particularly on three themes: the role of the passions and desires in judgment, action, virtues and vices; the inescapability of passions and desires in the functioning of law; the possibility for rule of law and a certain level of virtue to be mutually supporting. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular (...) conceptions of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

This work shows differences in public participation in China and Western countries, conceptually and empirically. To do so, the different philosophical and public administration traditions are outlined. Main contributions are tables and dashboards to allow general comparisons and to differentiate contexts in both political settings, besides being useful for other settings. The tables included are: 1) Main features of context in China, 2) Deliberative democracy, 3) Main features of context in the west, 4) The Gil Dashboard helping to outline the (...) endogenous foundations for change both in China and the West. -/- democracy, rule of law, public participation, China, western countries . (shrink)

The concept of the exception has heavily shaped modern political theory. In modernity, Kierkegaard was one of the first philosophers to propound the exception as a facilitator of metaphysical transcendence. Merging Kierkegaard’s metaphysical exception with early modern political theorist Jean Bodin’s theory of sovereignty, Carl Schmitt introduced sovereignty to metaphysics. He thereby made an early modern concept usable in a post-metaphysical world. This essay carries Schmitt’s appropriation one step further. Drawing on Walter Benjamin’s replacement of transcendental metaphysics with contingent creaturehood, (...) it reintroduces the anti-foundationalist concept of repetition that was implicit in Kierkegaard’s paradigm but which was not made lucid until Benjamin crafted from the Schmittian exception a vision of political life grounded in creaturely existence. -/- . (shrink)

When faced with a rule that they take to be true, and a recalcitrant example, people are apt to say: “The exception proves the rule”. When pressed on what they mean by this though, things are often less than clear. A common response is to dredge up some once-heard etymology: ‘proves’ here, it is often said, means ‘tests’. But this response—its frequent appearance even in some reference works notwithstanding1—makes no sense of the way in which the expression is (...) used. To insist that the exception proves the rule is to insist that whilst this is an exception, the rule still stands; and furthermore, that, rather than undermining the rule, the exception serves to confirm it. This second claim may seem paradoxical, but it should not, once it is realized that what does the confirming is not the exception itself, but rather the fact that we judge it to be an exception; and that what is confirmed is not the rule itself, but rather the fact that we judge it to be a rule. To treat something as an exception is not to treat it as a counterexample that refutes the existence of the rule. Rather it is to treat it as special, and so to concede the rule from which it is excepted. The point comes clearly in the original (probably 17th Century) Latin form: Exceptio probat (figit2) regulam in casibus non exceptis. Exception (i.e. the act of excepting) proves (establishes) the rule in the cases not excepted. Clearly this form of reasoning cannot apply when the rule that we are considering has the form of a simple universal generalization. Here there can be no exceptions, only counterexamples. So what we need, and what will be developed.. (shrink)

Pogge, O'Neill, Elkins, and others propose the "dispersal" or "unbundling" of state sovereignty, allegedly to disincentivize war, to foster global and regional cooperation on environment, justice, and other issues of naturally supra-state concern, as well as to tailor some functions or jurisdictions to more local, regional, or differently shaped geographical areas. All these proposals are guilty of function-atomism, i.e. they ignore the massive benefits of clustering identically bounded functions or jurisdictions in a single territory. These benefits include the effective enforcement (...) of law; the effective production of public goods and deterrence of free-riding; the coinciding of the tax base, law formation and enforcement and sustaining community of media, schools, universities, and other vital institutions; and the fostering of democratic community and participation in a significant political structure. (shrink)

This paper aims at clarifying the role which the concept of 'divine sovereignty ' plays in the discussions which are taking place among Islamic thinkers (and others) concerning the possibility of democracy in an Islamic context. It argues that 'sovereignty ' has at least two meanings, one 'f'actual', the other 'normative'. The paper also argues that the second sense of 'sovereignty ' allows us to construe ta!k o{ 'divine sovereignty' as an attempt by Islamic thinkers to go beyond the merely (...) procedural views of democracy which focus on the familiar procedures o( power contestation, election and accountability. (shrink)

Dimitris Vardoulakis asks how it is possible to think of a politics that is not commensurate with sovereignty. For such a politics, he argues, sovereignty is defined not in terms of the exception but as the different ways in which violence is justified. Vardoulakis shows how it is possible to deconstruct the various justifications of violence. Such dejustifications can take place only by presupposing an other to sovereignty, which Vardoulakis identifies with agonistic democracy. In doing so, Sovereignty and Its Other (...) puts forward both a novel critique of sovereignty and an original philosophical theory of democratic practice. (shrink)

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely originate (...) with human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and extensive (...) interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

This qualitative research aims to explore and unravel the theory of natural law within its Greek context and its influence on political thought, particularly addressing the need to counteract the damages of tyranny and the cyclical succession of regimes, as articulated by Plato. This study reveals that the concept of natural law predates Stoics and it is rooted within the pre-Socratic natural philosophy. The study exposes that Aristotelian ethics and politics are rooted in the concept of natural law, ultimately giving (...) rise to the Aristotelian "mixed form of government" and laying the groundwork for republicanism. In extending this inquiry, I attempt to identify a parallel argument in ancient Iran, investigating the presence of natural law and its impact on the political landscape. The concept of natural law, emphasizing the alignment of social and political affairs with nature's rules, played a significant role in shaping the Indo-Iranian communities. The Sanskrit term rta and its Avestan equivalent, Aša, denote this foundational concept. However, the ascendancy of Zoroastrianism and its new theology led to the consolidation of all Indo-Iranian gods into the singular omnipotent deity, Ahura Mazdā. Ahura Mazdā, along with its prophet Zaraθuštra, possessed the authority to govern both earthly life and the afterlife. The exclusive attributes of Ahu and Ratu empowered God and its messenger to formulate and enact laws ensuring a place in heaven. Consequently, Divine Law and positive law became intricately intertwined within a unified legal framework. This divine law, sanctioned by God and enforced by the King, diverges from the Greek perspective, particularly that of Aristotle, where tyranny is seen as a deviation from the ideal political order. In the Iranian context, tyranny is synonymous with God's representation, sharing the holiness and regal attributes of a King, who, in the Iranian and Avestan sense, enjoys God's blessing as Xvarənah or Faer-e Izadi. The intertwining of law and authority of the King precludes the possibility of an independent legal sovereignty apart from the King’s authority. The monotheistic tenets of Zaraθuštra’s religion, officially established in the 4th century AD as the Religion of the State, solidify this integrated system. Consequently, the coexistence of republicanism or any mixed form of government within Iran becomes unattainable under the influence of this monotheistic doctrine. (shrink)

Carl Schmitt contends that liberal constitutionalism or the rule of law fails because it neglects the state of exception and the political, namely politics viewed as a distinction between friend and enemy groups. Yet, as a representative of liberal constitutionalism, Locke grapples with the state of exception by highlighting a magistrate prerogative and/or the right of the majority to act during a serious political crisis. Rather than neglecting the political, Locke’s state of war presupposes it. My thesis is that (...) Schmitt’s assault against Locke’s liberal constitutionalism is one-sided, and hence Locke’s militant liberalism can disarm it. In support of my thesis I shall argue (1) that Schmitt overlooks Locke’s distinction between liberty and license; (2) that, ironically, Schmitt’s conception of politics resembles Locke’s state of war; and (3) that Locke’s liberalism is militant rather than neutral because it excludes extremists from enjoying equal civil and political rights, as reasonable citizens do, to compete for political power. (shrink)

At the core of republican thought, on Philip Pettit’s account, lies the conception of freedom as non-domination, as opposed to freedom as noninterference in the liberal sense. I revisit the distinction between liberal and republican freedom and argue that republican freedom incorporates a particular rule-of-law requirement, whereas liberal freedom does not. Liberals may also endorse such a requirement, but not as part of their conception of freedom itself. I offer a formal analysis of this rule-of-law requirement and compare (...) liberal and republican freedom on its basis. While I agree with Pettit that republican freedom has broader implications than liberal freedom, I conclude that we face a trade-off between two dimensions of freedom (scope and robustness) and that it is harder for republicans to solve that trade-off than it is for liberals. Key Words: freedom • republicanism • liberalism • noninterference • non-domination • rule of law • robustness • liberal paradox. (shrink)

Separation of powers is one of the ideas with profound theoretical and practical significance, especially in the field of political science. The birth of the theory of separation of powers marked the transition from the barbaric use of power in authoritarian societies to the exercise of civilized power in democratic societies. Therefore, separation of powers is considered an objective necessity in democratic states, a condition to ensure the promotion of liberal values, and a criterion for assessing the existence and development (...) of the Rule of Law where people's sovereignty plays a paramount role. On the way to perfecting political thinking, the theory of separation of powers has developed into a complete system in the main philosophy of John Locke. Within the scope of the article, the author focuses on analyzing Locke's ideology of separation of powers in terms of the nature of separation of powers, the basis and some principles of power division, and the roles of the different parts of government power and the relationship between them. (shrink)

Political theorists have recently sought to replace the liberal, contractual theory of the firm with a political view that models the authority relation of employee to firm, and its appropriate regulation, on that of subject to state. This view is liable to serious difficulties, however, given existing discontinuities between corporate and civil authority as to their coerciveness, entry and exit conditions, scope, legal standing, and efficiency constraints. I here inspect these, and argue that, albeit in some cases significant, such discontinuities (...) fail to undermine the firm/state analogy, either because they are not significant enough to do so or because the particular trait on which they hinge is not decisive for how authority, in the state and in the firm, should be regulated to be legitimate. A pro tanto requirement exists, I thus argue, that corporate authority be held to regulatory norms comparable to those legitimate states abide by, including civil liberties, rule-of-law constraints, and accountability to subjects. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to (...) elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a challenge (...) to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalization policies by reflecting on the normative meaning of the rule of law and by examining empirical evidence assessing the effects of legalization. Our central contention is that legalization policies can enhance the rule of law. We offer five rule of law arguments in support of legalization, which help to mitigate the dilemma between justice and the rule of law. We conclude by discussing some policy implications of our analysis. (shrink)

The purpose of this article is to introduce an innovative approach to the theoretical debate of the last two centuries on how to appropriately conceptualize modern democracy. The main argument that is being put forward by the analysis is that the common reliance on the assumption of pre-modern political philosophy, that democracy is a certain type of political regime or at least a form of rule, has become insufficient to cover the influence and scope of its modern meaning and (...) practical use. Political theory faces the risk of becoming misguided and prejudiced, if the problem of re-conceptualizing democracy is not taken seriously into account. The article tends to offer new insights on the ongoing democratic debate by focusing on one simple question: can modern democracy be understood in terms of a political regime or should it be viewed as a distinct entity? The field of study relevant to our analysis of democracy ranges from Enlightenment thinkers, such as J. J. Rousseau and Voltaire, to XIX–XX century political philosophers (like A. de Tocqueville and C. Schmitt) and some contemporary theorists, like P. Manent. The article starts with explanations, why it is important to look deeper into the conceptual difficulties of modern democracy and why political philosophy and its theories on political regimes are crucial for such a task. Parts 3–5 of the analysis tend to prove that the only way to appropriately understand modern democracy is to identify and question its basic assumptions: the sovereignty of the people and social equality. The final part of the article – part 6 – offers a critique of understanding modern democracy as a political regime. The critique identifies three main theoretical problems, inherent to the discussion on modern democracy, which make it difficult to avoid contradictions when applying the name “democratic” to various political regimes. The article concludes that: First, democracy is not a political regime in a pre-modern sense of the term, which is an assumption still widely taken for granted in political theory. Democracy should be seen as a universal principle of legitimization of power, which can be applied by various regimes. Second, political philosophy faces the danger of adopting an oversimplified understanding of democracy as merely an institutional form of rule (a view perpetuated by social sciences); as well as the danger of conceptualizing democracy as a substance-free and abstract ideal, applicable to all forms of government. Both of these concepts fail to acknowledge the scope of democracy and thus should not be seen as satisfactory. Third, theoretical discussions on democracy suffer from three conceptual shortcomings, which make it impossible to speak about democracy as a political regime. The three problems are: 1. a tendency to see democracy as an ideal concept with no need of practical grounding; 2. making democracy a formal concept with no need of references to its normative nor positive substance; 3. making democracy a pseudo-religious entity by imitating structural elements of Christian religion: faith in a universal nature of humans, an all-powerful sovereign (the people), messianic mission. Lastly, the article generalizes that political philosophy has an obligation to demystify the concept of democracy in order to re-emerge discussions about the substance of different political regimes. For this purpose the concept of loyalty should be taken into account. If we want to prove that a certain state corresponds to a certain political regime, we must try to understand why its subjects maintain loyalty to a specific form of rule. Only unprejudiced political philosophy is capable of such a task, that’s why it should avoid taking the concept of democracy for granted. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

This article advances a critical analysis of John Rawls’s justification of liberal democratic nuclear deterrence in the post-Cold War era as found in The Law of Peoples. Rawls’s justification overlooked how nuclear-armed liberal democracies are ensnared in two intransigent ethical dilemmas: one in which the mandate to secure liberal constitutionalism requires both the preservation and violation of important constitutional provisions in domestic affairs, and the other in which this same mandate requires both the preservation and violation of the liberal commitment (...) to international legal arrangements and to the rule of law generally. On this view, the choice to violate constitutional provisions and international legal arrangements is evidence of nuclear despotism. Moreover, this choice does not imply that the ethical foreign policy dilemmas were resolved. Instead, it implies that the dilemmas force liberal democratic governments into implementing ethically paradoxical policy outcomes. (shrink)

While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...) possible, including the elements of law and morality that are operated by combatants in war. I suggest that, ethically speaking, deploying a legally competent robot in some legally regulated realm is not much different from deploying a more or less well-armed, vulnerable, obedient, or morally discerning soldier or general into battle, a police officer onto patrol, or a lawyer or judge into a trial. All feature automaticity in the sense of deputation to an agent we do not then directly control. Such relations are well understood and well-regulated in morality and law; so there is not much challenging philosophically in having robots be some of these agents — excepting the implications of the limits of robot technology at a given time for responsible deputation. I then consider this proposal in light of the differences between two conceptions of law. These are distinguished by whether each conception sees law as unambiguous rules inherently uncontroversial in each application; and I consider the prospects for robotizing law on each. Likewise for the prospects of robotizing moral theorizing and moral decision-making. Finally I identify certain elements of law and morality, noted by the philosopher Immanuel Kant, which robots can participate in only upon being able to set ends and emotionally invest in their attainment. One conclusion is that while affectless autonomous devices might be fit to rule us, they would not be fit to vote with us. For voting is a process for summing felt preferences, and affectless devices would have none to weigh into the sum. Since they don't care which outcomes obtain, they don't get to vote on which ones to bring about. (shrink)

When political philosopher Hannah Arendt introduced the concept of ‘banality of evil’ she did so in reference to the actions of Germans who appropriated the doctrines of National Socialism “thoughtlessly” and without obvious intentions to do evil. But, Arendt’s description of this phenomenon entails that such banality can be found even in a democracy such as the USA. The relation of law and morality must therefore be unambiguous to defend the rule of law against the rule of men. (...) However, a legal philosophy other than positivism is essential to safeguard the Republic against the overreach of executive power. And, where the psychopathology of Donald Trump is at the core of America’s electoral discontent in 2020, as mental health professionals have argued, there is all the more reason to take Arendt’s counsel especially seriously today. It is in this context that it is argued here that the American public must beware Trump’s inducement of America’s banality of evil. (shrink)

Legitimacy is a concept that has been largely forgotten by the deconstructive discourse on law and politics. This article seeks, on the one hand, to reassess the role of legitimacy in deconstruction and, on the other hand, to bring deconstructive thinking to bear on the concept of legitimacy. By re-reading Derrida’s “Declarations of Independence” through the lenses of his later texts on sovereignty and (counter)signature, it is argued that, rather than being deconstructible, legitimacy is deconstructing any self-founding of law and (...) power. As such, legitimacy functions not as an evaluative concept of law and order but as a constantly insisting demand that facilitates the principles of responsibility and responsiveness. (shrink)

Many commentators lament that American democracy is in crisis. It is becoming a system of minority rule, wherein a party with a minority of the nationwide vote can control the national government. Partisan gerrymandering in the House of Representatives fuels this crisis, as does the equal representation of small and large states in the Senate. But altering these features of the legislature would not end minority rule. Indeed, it has long been held that majority rule cannot be (...) guaranteed within any district system, as a minority of voters nationwide can be efficiently distributed such that a minority party wins a majority of districts by narrow margins. -/- This Article offers a way to save majority rule. Since the way a party can gain control of the legislature with a minority of the vote is to win a majority of districts by narrow margins of victory and lose a minority of districts by large margins of victory, the solution is to make margins matter. Hence, this Article proposes that we preserve electoral districts in which the candidate with the most votes wins, while making the weight of their vote in the legislature (a representative’s “legislative power”) a function of margins of victory. The first goal of this Article is to outline how this proposal, which I call “weighted voting by margin of victory” (WVMV), retains the democratic virtues of district systems while ending minority rule. This is the first basis for the democratic imperative to make margins matter. -/- There is, however, a second basis for that same imperative, which turns on the political equality of voters. The U.S. Supreme Court has long held that the democratic equality should be understood in terms of equal voting power (one person, one vote). But when margins of victory don’t matter, the power of a vote lies exclusively in its potential decisiveness. A vote that changes the margin of victory without changing the victor is “wasted”. But it is an electoral reality that votes in competitive districts are more likely to be decisive, and votes in uncompetitive districts are more likely to be wasted; as a result, candidates and parties are more responsive to some voters than others. So voters are not political equals. They do not have equal voting power, except in an empty formalistic sense. By contrast, WVMV gives votes a second type of power. The power of a vote is to potentially decide who wins and to actually change the legislative power of the victor. Each vote, in effect, transfers a unit of political power to a democratic representative. This “transference” power can be meaningfully equalized between voters. A voter in an uncompetitive district is far less likely to change who wins, but is equally able to change the margin of victory, such that their vote is no longer wasted. This gives candidates and parties a strong reason to be more equally responsive to all voters who can change the margins. Hence, there is a democratic imperative to make margins matter, in order to give voters a meaningfully equal form of voting power. -/- The final goal of this Article is to explain how we can implement WMVM in modern democracies, focusing on three particularly challenging cases: the U.S. Senate, the Parliament of the United Kingdom, and the U.S. House of Representatives. These cases are challenging for several reasons, the most pertinent of which turn on the ways we should understand margins of victory when electorates are of unequal sizes (as in the U.S. Senate) or are contested by more than two parties (as in the U.K.) or are conducted under different voting procedures (as in many districts in the U.S. House). I argue that WVMV should be considered feasible in such contexts, and hence offers a practical, rather than purely theoretical, alternative to the status quo. (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 purpose of this article is to suggest a theoretical approach to modern democracy and its implicit contradiction between the idea of public sovereignty and the model of political representation. The apparent practical problem arising from this contradiction is the lack of legitimacy in democratically elected officials and parliament in general. The article argues that the issue with democratic representation cannot be explained sociologically, but must include a theoretical analysis of the normative contradiction between the egalitarian principle of sovereignty of (...) the people and the hierarchical model of political representation. -/- The article develops its argument from the conceptual framework laid down in the political theory of Montesquieu. Montesquieu’s thoughts on political regimes offer important insights about modern representative democracy, highlighting the structural relationship between what he called the “nature of democracy” (the rule of the people) and the “generating principle of democracy” (love for equality). Three contemporary interpretations of Montesquieu’s theory (by Fred Dallmayr, Michael Mosher and Sharon Krause) are introduced and critically evaluated. -/- The article concludes that: -/- Representative democracy suffers from a structural tension between the democratic idea of the rule of the people and its practical implementation through the model of representation, which was inherited from predemocratic monarchic regimes. The problem is not sociological but structural. -/- Montesquieu’s theory offers a conceptual framework for analyzing the inner tension of representative democracy between the ideas of egalitarianism and political hierarchy. Contemporary authors suggest different interpretations of Montesquieu’s thought and offer several strategies for the possible improvement of democratic rule, such as (1) redrawing the notion of representation, (2) creating a more empowered civic society and (3) introducing a meritocratic educational system for individuals. Yet, they all miss the original idea posed by the Enlightenment philosopher regarding the balance between the democratic principle (passion for equality) and its natural claim to represent the people with “intermediary institutions” that mitigate the adverse tendencies of the democratic form of government. -/- Philosophical discussions about democratic legitimacy should consider one Montesquieu’s statement that is rarely theoretically acknowledged: that democratic political representation needs non-egalitarian social ideas. This means that democracy must tolerate certain non-democratic social ideas (such as honor) for its own benefit, because they provide the necessary balancing institutions. Such an idea would benefit the ongoing debates about democracy by providing a more structural outlook on the fundamental source of the problem (which is a structural collision of contradictory ideas: “equality” vs. “hierarchy”) than those offered by the sociological strategies of democratization or civic empowerment. (shrink)

Democracy has been hailed as a global phenomenon and the most popular feature of modern political thought. Several notable efforts have been made by the global community to promote and extend democracy to cover billions of people, with their varying histories, cultures, and disparate levels of affluence. In 2007, the United Nations General Assembly resolved to support the efforts of governments to promote and consolidate new or restored democracies. The GA in this regard stated that “democracy is a universal value (...) based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. Also, while democracies share common features, there is no single model of democracy, and that democracy does not belong to any country or region, reaffirming further the necessity of due respect for sovereignty, the right to self-determination, and territorial integrity. In 2005, the United Nations Democracy Fund was created to implement projects aimed at enhancing democratic practice, promoting human rights, and encouraging participation of all groups in democratic processes. In contrast to its growing popularity, democracy has also been closely looked at with suspicion by experts- academic, political, and otherwise. Skeptics assert that “ the meaning of democracy is contested with no universal definition that is applicable.”. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

Both G.F.W. Hegel and Carl Schmitt took seriously the problem of political sovereignty entailed by liberal political theories. In Dictatorship (1919) and Political Theology (1922), Schmitt rejects liberal political theories that argue for the immediate unity of democracy and legality i.e., popular sovereignty, because he thinks they cannot secure political sovereignty. In the Philosophy of Right, Hegel denounces popular sovereignty for similar reasons. Yet given Schmitt’s negative assessment of Hegel their positions are seldom related to one another. I argue in (...) this paper that Schmitt’s analysis of liberal political theories is similar to Hegel’s analysis of Rousseau’s liberal ideas. I contend, however, that Schmitt’s solution, which collapses the distinction between the executive and the legislative power in favor of the former, fails to secure political sovereignty. Contrary to Schmitt, Hegel conceives of the liberal predicament as a basic determination of any political state that rests on the division of the legislative and executive power. Hegel argues that the constitutional monarchy is a genuine instantiation of political sovereignty that can maintain not only the division of these powers, but also their unity. In this regard, I argue that Hegel’s conception of the division of powers provides a more convincing theory of the problem afflicting modern states than Schmitt’s and at least deserves to be taken more seriously by critics of Schmitt’s solution such as Hannah Arendt, Leo Strauss, Jurgen Habermas, Andreas Kalyvas and Chantal Mouffe. (shrink)

Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions taken on (...) two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy. (shrink)

Jean-Jacques Rousseau is one of the most controversial philosophers and political theorists of the Enlightenment. He has often been accused of laying the ideological foundation for many repressive and radical movements and regimes, from the reign of terror of the French Revolution to the right-wing and left-wing totalitarian regimes of the twentieth century. Especially his idea of the general will has been criticised by scholars as an abstract Platonism that establishes the dictatorship of the state and rejects basic human rights. (...) Some authors even believe that all of Rousseau’s authoritarian passages are merely a paraphrase of arguments found in French absolutist thought. Nevertheless, Rousseau’s novelty lay in his denial of identifying authority with only one person. Instead, sovereignty was based on the will of all those people who made up the political body. Accordingly, the theory of absolute monarchy was transformed into an alternative democratic version of absolute popular sovereignty. Rousseau is also considered one of the classics of the contractual tradition. He argued that mankind without a govern- ment would live in what he called a “state of nature” where there would be no law and order. Thus, the main purpose of this paper is to compare Rousseau’s ideas about the principles of political authority in two of his works: “The Social Contract” and “Considerations on the Government of Poland”. In the first part of the paper we will briefly review the main concepts developed in The Social Contract, such as the general will, the social contract, sovereignty and direct democracy. In the second part, we will focus on the main ideas put forward in Considerations on the Government of Poland. Then, at the end, we will try to identify the reasons for the conceptual changes in some of Rousseau’s views. (shrink)

This article reviews the political thought of one of the most important figures during the Islamic resurgence in the 20th century, Abul A’la Maududi. The thought of Maududi is often read superficially by either those desiring to portray him as politically ‘liberal’ and ‘progressive’ as well as ‘backwards’ and ‘conservative’. The core of debates surrounding Maududi’s support for liberal democratic principles such as equality, freedom, democratic elections, and the like are pinpointed and reviewed individually, according to two main primary texts, (...) Islamic Way of Life, and Islamic Law and Constitution. The themes that are covered by the article concern (a) the meaning of his term ‘theodemocracy’; (b) Maududi’s understanding of the ‘shurah council’ (advisory council to the Caliph) and its meaning in terms of popular sovereignty; and (c) the people’s role in maintaining rule of law and the office of the Caliph. It is argued that after a review of these concepts within their respective contexts, the argument attempting to show Maududi as an ‘innovator’ or ‘progressive’ in terms of his application of Islamic law in his modern-day ideal for an Islamic state collapses. Rather, it is shown that Maududi clearly envisioned the ideal Caliphate as one established by the prophet Muhammad and his companions (the ‘Rashidūn Caliphate’) and affirmed Divine sovereignty over the general concept of ‘popular sovereignty’ as conceived by western political thought. (shrink)

As a classical liberal, or libertarian, I am concerned to advance liberty and minimize coercion. Indeed on this view liberty just is the absence of coercion or costs imposed on others. In order to better understand the notion of coercion I discuss Robert Nozick's classic essay on the subject as well as more recent contributions. I then address the question of whether law is coercive, and respond to Edmundson and others who think that it isn't. Assuming that the law is (...) in fact coercive, there is still a question,as with all coercive acts, as to whether that coercion is justified. Edmundson thinks that this places a special burden on the state of justifying its existence, whereas it simply places the same burden on the state as anyone else. What I reject is the longstanding doctrine of Staatsrason, namely that the state is not subject to the same moral rules as its subjects. With respect to the relation of morality to law, Edmundson thought that another of the fallacies of which philosophical anarchists were guilty was that of assuming that there was a sphere of morality where law had no business. On the contrary, our concern is with spheres of law which appear to have little to do with morality, which is to say laws against wrongs of the malum prohibitum variety, as opposed to wrongs which are malum in se. I then turn to a matter with which Edmundson begins his study, namely how it is that states acquire the authority to do what they do, namely coerce their subjects. While the fact that the philosopher's stone of political obligation has proved rather elusive may mean that a legitimate state lacks the authority to demand obedience pure and simple, Edmundson contends that it can at the very least demand that we do not interfere in the administration of justice. I argue that this attempt to sidestep the justification of the authority of the state fails and that we seem in the end to be having to take the state's word for it that we must do X on pain of penalty P. Nor, as I go on to argue, is it any help to appeal to democracy to remedy a failed justification of the authority of the state. There either is a moral justification of state coercion in order to prevent harm to innocent subjects, or there isn't, and this holds,if it does, not only at the level of individuals, but also at the level of the state, regardless of its constitutional form. After concluding that the attempts of Edmundson and others to refute the anarchic turn in recent political philosophy have failed, it would seem that the withering away of the state foreseen in Marx's eschatology is not as improbable as maybe it once appeared. (shrink)

The aim of the article is to develop precise epistemic rules for good public political arguments, by which political measures in the broad sense are justified. By means of a theory of deliberative democracy, it is substantiated that the justification of a political measure consists in showing argumentatively that this measure most promotes the common good or is morally optimal. It is then discussed which argumentation-theoretical approaches are suitable for providing epistemically sound rules for arguments for such theses and for (...) the associated premises, rules whose compliance implies the truth or acceptability of the thesis. Finally, on the basis of the most suitable approach, namely the epistemological one, such systems of rules for the required types of arguments are presented that fulfil the conditions mentioned. (shrink)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the (...) judges (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)