This paper intersects the literature on the democratic boundary problem with the literature on the constructivist turn in political representation to show that the boundary problem broadly construed involves a distinction between ‘the problem of inclusion’ (into pre-existing demoi and their decision-making procedures) and ‘the problem of constituting the demos’ (which involves criteria for partaking in constituent power). This distinction is consistently neglected by democratic theorists. However, it has serious implications for representative democracies because the standard answers to the boundary (...) problem – the all-affected-interests principle, the all-subjected principle, and the substantive-demos principle – do not apply to the problem of constituting the demos. A new principle aimed at the latter problem is here proposed: the constructivist-representative principle. In the end, it should be clear that ascertaining who should be entitled to participate in which democratic decision requires the adoption of different principles depending on the specific demos in question and on the type of decision-making procedure involved (e.g., constitution-making-or-changing, lawmaking, policymaking, etc.). (shrink)

The transformation of international law has provoked a burgeoning literature on various conceptual and normative questions, such as the nature and legitimacy of international authorities. Constitutional and international scholars have so far been attracted to domestic normative theories such as constitutionalism, democratic legitimacy, and the rule of law. This attraction often comes at the expense of a more fundamental and prior question: How best to carry out this normative investigation and which normative theory to put into use in assessing the (...) moral value of international authorities? This “meta-theoretical question” invites us to investigate the methodology of transnational constitutional theorizing by prompting discussions on which normative theory is more suitable for application at the international level. This review article brings into dialogue two recently published books (Sadurski’s Constitutional Public Reason and Mac Amhlaigh’s New Constitutional Horizons) that partially address this meta-theoretical question by prompting us to reflect on how best to conduct transnational constitutional theorizing. (shrink)

This contribution delves into the concept of ‘corporate sovereignty’, where companies, akin to states, function not only as economic entities but also as political actors exercising a novel form of sovereignty. Although business ethics typically approaches corporate power from ethical, legal, and economic perspectives, these viewpoints prove inadequate in conceptually grasping the specific form of power, namely sovereignty. In an era of escalating corporate influence and contested state authority, political theology becomes indispensable. The political theology of Carl Schmitt, though not (...) prominently featured in business ethics, provides valuable insights into how corporate power manifests in contemporary reality, particularly as ‘corporate sovereignty’. Schmitt contends that sovereignty reveals itself in exceptional circumstances, a concept paralleled by companies exercising sovereignty. Political theology unveils the political concepts and power dynamics behind corporate sovereignty, necessitating a broader approach in business ethics where political philosophy and theology play a crucial role. (shrink)

Extraterritorial border controls prevent migrants from arriving at the territory of the state and effectively undermine rights to apply for asylum and protections against non-refoulement. As a result, a wealth of scholarship argues that external border controls are illegitimate exercises of state power. This paper challenges two versions of this argument, first, the claim that carrier-sanctions are illegitimate because they subject migrants to morally impermissible forms of coercion and, second, the claim that carrier-sanctions are illegitimate because they subject migrants to (...) illegitimate claims to authority.Against coercion-based accounts of legitimacy, this paper defends the view that while carrier-sanctions are coercive, the coerciveness of a policy is not relevant to its legitimacy. What is relevant is instead whether the authority claimed by the state is legitimate. Against authority-based accounts, this paper argues that states are unable to claim authority in the relevant sense over migrants that are present in the territories of other states.The paper concludes by suggesting that the charge that carrier-sanctions are illegitimate should shift towards the state that allows carriers to enforce these policies on their territories. No state has the legitimate authority to permit other states to pressure carriers to prevent migrants in need of protection from travelling. The state that introduces carrier-sanction legislation, on the other hand, is not exercising illegitimate authority though they may act contrary to demands of justice. (shrink)

Climate change harmfully affects social and natural systems. These outcomes adversely affect the human and natural systems, resulting in adopting related-response measures whose implementation yields similar outcomes, especially when poorly designed. Climate-related projects, actions, and policies cause harmful environmental impacts, even though the United Nations Convention on Climate Change and its subsequent instruments urge parties, when dealing with climate change, to employ methods that preserve the quality of the environment. Few studies have established the effects of these environmentally, economically, culturally, (...) and socially unsound mechanisms on public participation, although research usually proves that ecological and environmental citizenship can enhance climate action. The study also highlights gaps in the common understanding of public participation in climate action. This reflection analyses the relationships between public participation and climate response measures and concludes that uncertainty related to response measures could affect the perception of climate action by the public. The reflection, therefore, shows that many international environmental law legal instruments, policies, and scholarships attempt to address the issue. (shrink)

Complex moral and political problems like climate change have the capacity to make wrongful (in)actions appear reasonable. This has significance for the central questions of jurisprudence. If we cannot plan rationally for the future, or acts now thought to be rational and blameless become progressively more blameworthy, central elements in our understanding of law – planning, reasonableness, and authority – may diminish in their ability to explain the function and normativity of law. If this is the case, legal positivism and (...) legal non-positivism appear to be confronted with significant, but different, challenges depending on the extent that they conceive of law as future-orientated planning or as a form of practical reasonableness. (shrink)

The German Aufklärung was only one of at least three distinct Eighteenth Century Movements we now call ‘the Enlightenment’. But what is enlightenment? This question was posed in a Berlin journal in 1783 and answered in the same journal a year later by two of the movement’s leading representatives: Moses Mendelssohn and Immanuel Kant. Kant’s answer, which is expounded in this essay, changed the understanding of the movement. Kant sees enlightenment not as only a development of intellect but a liberation (...) of mind and character from the authority of others that keeps us all, at least to some extent, from thinking for ourselves. But Kant holds that thinking for oneself requires communication with others and searching for an intellectual standpoint that is valid for all. It is a process that is never completed. We are all to some degree in need of enlightenment. And Kant’s call for enlightenment is as urgent today as it was in his own age. (shrink)

The 1930s–1940s underwent profound structural economic and political turmoil following the collapse of the nineteenth century liberal market economies. The intellectual debates of the time were dominated by the question of whether Marx’s theory of the tendency of rate of profit to fall was true, or what consequence could be imagined in the survival of capitalist societies. Placed in the middle of such debates was also the reorganization of national productions into war economies. By means of reconstructive analysis, the paper (...) provides a critical overview of the debates that took place within the circle of the Frankfurt School during those years. It also advances an interpretive thesis suggesting that remedies to capitalist crises of the time turned state powers into privatized, illiberal coercive entities. Coercion and privatization reinforced each other. This general tendency is well illustrated by the famous Pollock-Neumann debate. These intellectuals expressed views not only intended to shed light on the historical period of time, but also to formulate long-term considerations on the authoritarian trends embedded in our contemporary democracies. Through historical reconstruction, the paper’s aim is to identify a long-term structural thread of transformation starting from the transformation of the German economy in 1930s and touching upon post Second World War problems of states’ restructuring along privatization/coercion divides. (shrink)

The purpose of this contribution is to analyse climate change litigation in an innovative way, considering it as an example of “privatisation” of international law, and unravelling the “ecological” side of conflict-of-laws climate change litigation. The paper will first explain the concept of privatisation of law as applied to international law and what it means in the context of climate change litigation, before moving to a landmark case, whose appeal is still pending in front of a domestic court in Europe: (...) Milieudefensie et al. v. Royal Dutch Shell plc. The focus of the analysis of the cases will be limited to the use of the conflict-of-laws mechanism present in the Rome II Regulation, namely Article 7. The paper critically assesses the principle of ubiquity included in this provision, by looking at the concept of “event giving rise to the damage” as applied in CO2 reduction claims in the existing legal scholarship and using an underexplored ecofeminist perspective. Inspired by the work “A relational feminist approach to conflict of laws” by Roxana Banu (2017), the paper argues for a relational understanding of the concept of “event” and goes further to consider in an ecofeminist perspective the environment as composed of human, non-human beings and natural objects, and of their relations with each other. The article is meant to be a starting point for further research, which for the first time applies ecofeminist theories to private international law. (shrink)

Several critics have argued that private prisons are not only problematic because of their worse effects but also intrinsically wrong. This article analyzes two prominent arguments for this claim: the representation argument and the condemnation argument. The conclusion is that these arguments fail to show that there is something intrinsically wrong about private prisons. This is especially true if the arguments are extended to non-profit private prisons under social injustice contexts that states are responsible for. In such cases, non-profit private (...) prisons might not only be on a par with public prisons but be preferable to them. However, the arguments are also insufficient to oppose every conceivable for-profit private prison. (shrink)

AI-based algorithms are used extensively by public institutions. Thus, for instance, AI algorithms have been used in making decisions concerning punishment providing welfare payments, making decisions concerning parole, and many other tasks which have traditionally been assigned to public officials and/or public entities. We develop a novel argument against the use of AI algorithms, in particular with respect to decisions made by public officials and public entities. We argue that decisions made by AI algorithms cannot count as public decisions, namely (...) decisions that are made in the name of citizens and that this fact should be taken into consideration when utilizing AI to replace public officials. (shrink)

If the state outsources a responsibility to private actors to plant trees, is that necessarily a bad thing? Surely, one would think not. Still, in constitutional theory, there are many forceful arguments against privatisation. One of the core arguments against privatisation is the question of who ought to do what and what it means for a policy area to be inherently public. In this paper, I am interested in varieties of privatisation and in particular what privatisation means in the context (...) of climate change. The aim of the paper is to show that precisely because there is a variety of privatisation, in some areas, such as the environment and regarding climate change, we may discuss the question of ‘duty’ rather than privatisation as such. (shrink)