This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of (...) constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society. (shrink)

The present article commences analyzing the origins and influences of the religious discourse on the configuration of the modern constitutional discourse and the contributions of the jus-positivism in the consolidation of this sacred-civil language. The second issue is the definition of the U.S. Constitution as a mixed and not as a democratic constitution, with regard to the influences of Plato, Aristotle, Cicero and Polybius to the Drafters of the first modern constitutional text; stability and equilibrium took preference (...) over democracy in a wide sense. I also analyze how the Drafter’s decision has conditioned the modern constitutional system up to the present. (shrink)

The theory of the separation of powers between a legislature, an executive and a judiciary is still the foundation of modern representative democracy. It was developed by Montesquieu and came to replace the older theory of the mixed constitution which goes back to Plato, Aristotle and Polybios: there are three types of constitution: monarchy, oligarchy and democracy; when institutions from each of the three types are mixed, an interplay between the institutions emerges that affects (...) all functions of state: legislation, implementation of laws and jurisdiction. Today Montesquieu's separation of powers is riddled with so many exceptions that it is an obstacle rather than a help to understand the structure of modern democracy. The mixed constitution deserves to be revived as a corrective to the prevailing view that Western states are pure democracies and that democracy is rule by the people. (shrink)

Summary The politeia established in Athens in 317 after a covenant between Cassander and Demetrius of Phalerum was variously described by ancient authors as a tyranny, an oligarchy, and a democracy. Even among modern scholars there is no agreement about its definition. A close study of the architecture of the so-called regime of Demetrius and a comparison with the almost contemporary constitution of Cyrene, imposed on the African town by Ptolemaeus I, lead us to characterize it as a (...) mixed constitution, which balanced elements from the three principal types of political organisation. This experiment had a strong impact on the Hellenistic and Roman political traditions, as testified by Cicero, who recalled Demetrius as the last great Athenian lawgiver and inventor of the blended constitution. (shrink)

The study of illiberal constitutions has recently generated enormous scholarly interests. Few, however, have focused on whether democracies may still embrace constitutionalism mixed with illiberal elements. This article explores mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated illiberal elements, including duty clauses imposed upon citizens, directives requiring the State to enact laws to fulfill the goals of governance, and constitutional cultures that (...) exhibit high deference to political elites based on the Confucian tradition. This article further examines the impacts of such mixed constitutions on three challenging issues: managing pandemic crisis, applying artificial intelligence, and combating fake news. This article finds mixed features of illiberal and democratic constitutions in the two countries by giving their governments more space in managing urgent crises, showing higher deference to experts who are generally trusted by the public, and making compromises to individual rights for greater public good. However, this does not imply that the government is not made democratically accountable, or rights and freedoms are not asserted or valued by individuals. To the contrary, nongovernmental organizations and courts in the two countries continue to act as a counterbalancing force, challenging the government’s policies and decisions if not reasonably balanced, weakening the tendency of power concentration that has been seen in other countries where democratic backsliding or authoritarian governance is gradually revived. (shrink)

Are federal prosecutions of non-federal officials for corruption likely to improve non-federal government? This essay suggests that such prosecutions can undermine the distinctive style of democracy at the state and local level, an effect that can be harmful to democracy in America overall. This conclusion rests on a larger argument about the different nature of federal and non-federal democracy in the United States. To insure that each official maintains impartial loyalty to values defined by a single, popularly (...) accountable policymaker, the federal system of bureaucratic populism strictly separates the officials’ public and private interests, through various devices such as civil service protection for executive officials, Article III life tenure, and fixed salary for federal judges, specialized training for federal officers, and conflict-of-interest rules that bar federal officers from acting when their judgment could be compromised by private interests. By contrast, participatory populism rejects this separation of the public and private spheres, instead mixing professional and lay decision-making by using thousands of part-time, under-paid executive and legislative officers who are expected to have substantial private interests in the communities that they represent. The essay argues that each style of democracy has mutually exclusive advantages and disadvantages. However, enforcement of federal anticorruption law against non-federal democracies can undermine their system of mingled private and public interests, reducing the degree to which such governments can provide laypersons with opportunities for political activity. As an illustration of the overextension of federal criminal law, I examine the First Circuit’s interpretation of 18 U.S.C. §§ 1341 and 1346, the federal mail fraud statute in United States v. Sawyer. Sawyer comes dangerously close to declaring that any undisclosed state or local officer’s conflict of interest constitutes a violation of § 1346 when it involves the U.S. mails. I argue that this view of § 1346 is an error. Participatory populism requires that private and public tasks be closely mingled in ways that bureaucratic populism forbids. Undoubtedly, this mixture of public and private creates a risk that public office will be used for private gain. However, it also avoids some of the bureaucratic sclerosis and lack of lay participation that can be endemic to the more centralized federal tradition. In conclusion, I suggest that federal prosecutors ought to content themselves with using § 1346 to enforce already-existing state criminal conflict-of-interest rules, for the sake of preserving a place in our federal regime for participatory populism. (shrink)

In Plato's Laws, the Athenian Visitor says that the best constitution is a mixture of monarchy and democracy. This is the theoretical basis for the institutions of Magnesia, and it helps the citizens to become virtuous. But what is meant by ‘monarchy’ and ‘democracy’, and how are they mixed? I argue that the fundamental relations in Plato's discussion of constitutions are those of authority and equality. These principles are centrally about the extent to which citizens submit (...) to the judgment of an authority and the extent to which they decide for themselves respectively—the extent to which they are ruled by themselves or ruled by another. The institutions of Magnesia reflect these principles in practice and provide a more nuanced way to understand Plato’s assessment of democratic institutions. (shrink)

Contemporary political discourse is marked with the language of democracy, and Western countries in particular seek to promote democracy at home and abroad. However, there is a sublimated conflict in general political discourse between a desire to rely on alleged political experts and a desire to assert the supposed common sense of all men. Can the struggle between the democratic and aristocratic values embodied in this conflict be reconciled? The question is perennial, and raises issues that are central (...) to constitutional design. Aristotle, developing in significant ways insights made by his teacher Plato, grapples with it in his Politics. Aristotle's views on these matters are relevant—by way of the American Founders'—to contemporary American politics and modern democracies generally. During the eighteenth century, the Founders, some of whom explicitly reached back to Aristotle's work, also struggled—especially in The Federalist Papers—with these thorny issues of constitutional design. They created the U.S. Constitution in part to address these very same problems and issues. We are living in some ways, then, in the shadow of Aristotle's political theorizing, albeit as transposed by the American Founders. Both Aristotle and some of the American Founders theoretically favor aristocracy over democracy, but concede that in practice a blend of the two has to be integrated into the fundamental structure of political society. We need to reconnect with these important political discussions in order to come to terms with aristocratic and democratic values in our current circumstances. Footnotesa I am grateful to Fred Miller and David Keyt for many helpful suggestions and thoughtful questions throughout the editing process. I would also like to thank Irfan Khawaja for valuable feedback on an earlier version of this essay. (shrink)

-/- In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be (...) claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy. (shrink)

The relationship between religion and politics complicated efforts to develop a constitutional and legal framework for the post-revolution Egyptian state. During different stages of the transitional phase, this led to results that are dangerously misaligned with the principles of democracy and citizenship. During the period between 2011 and 2013, several constitutional and legal results emerged. New laws on the exercise of political rights, election procedures and political parties did not stipulate a ban on the use of religion for political, (...) electoral, or partisan purposes. This provided a legal loophole for the use of religious slogans in politics and prevented the imposition of penalties on groups exploiting religious spaces for electoral campaigning and other political purposes. This situation is contradictory to inclusive, citizenship-based politics. It also leaves society vulnerable to serious risks related to political and partisan affiliations as well as to electoral behavior based on religious identity instead of ideas and goals common to all citizens, regardless of religion. In addition to the contradictions between the constitutional and legal results of the transitional phase and the principles of democracy and citizenship resulting from the mixing of religion and politics in post-revolution Egypt, another set of political contradictions resulted from the ongoing use of religion in politics by conflicting groups. These contradictions, among other factors, prevented the success of efforts to foster democracy, citizenship and power devolution. (shrink)

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of the European Union; what kind of polity is the Union? The suggestion offered is that there is a legally constituted order, and that a suitable term to apply to it is a ‘commonwealth’, comprising a commonwealth of ‘post-sovereign’ states. Is it a democratic commonwealth, and can it be? Is there sufficiently a demos or ‘people’ for democracy to be possible? If not democratic, what is (...) it? Monarchy, oligarchy, or democracy, or a ‘mixed constitution’? Argued: there is a mixed constitution containing a reasonable element of democratic rule. The value of democracy is then explored in terms of individualistic versus holistic evaluation and instrumental versus intrinsic value. Subsidiarity can be considered in a similar light, suggestively in terms of forms of democracy appropriate to different levels of self-government. The conclusion is that there is no absolute democratic deficit in the European commonwealth. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

continent. 1.4 (2011): 242—252. Introduction The following two works were produced by visual artist Jonas Staal and writer Vincent W.J. van Gerven Oei during a visit as artists in residence at The Bag Factory, Johannesburg, South Africa during the summer of 2010. Both works were produced in situ and comprised in both cases a public intervention conceived by Staal and a textual work conceived by Van Gerven Oei. It was their aim, in both cases, to produce complementary works that could (...) be read “through each other,” in which the movement of artistic construction would be imitated by textual deconstruction and vice versa. Both works deal with the way in which capital, apartheid, and monumentality are interwoven in South-African society. The Missing Link addresses a monument for democracy, erected on the premises of a private corporation running both an amusement park and the Apartheid Museum franchise. The textual intervention accompanying this public intervention investigates the limits of the inclusiveness of the anti-discrimination section in the South-African constitution, itself a monumental work of democracy. The Monument for the Distribution of Wealth deals with the history and eventual dissolution of a monumental square, commemorating the Soweto Uprising, in one of the poorest townships of Johannesburg. The history accompanying this public dismemberment of memory is equally fragmented, which is expressed by the many voices recounting uncertain and perhaps even irrelevant “facts” about the genius loci, the way in which the memorial space has actually entered into the memory of the inhabitants surrounding it. Next to their individual practices, Staal and Van Gerven Oei have worked together on a number of projects ever since 2007, including several art residencies. Their work involves an investigation of the different interfaces between art, politics, and public space in media ranging from theater and public interventions, to video installations and (co-authored) textual works. The Missing Link Missing Link (1) Missing Link (2) Missing Link (3) Intervention on the monument entitled The Seven Pillars of the Constitution , part of the Apartheid Museum in Johannesburg, South Africa. The Seven Pillars represent the constitutional values propagated in South Africa since the abolition of the apartheid regime. The monument and museum were built by the Gold Reef Resorts corporation, which is also responsible for the theme park and casino next to it. By placing the word “capitalism” on the wall surrounding the museum, the capitalist system and the constant social divisions that it implies are interpreted as sophistic continuations of apartheid politics. Through the capitalist system, apartheid is still operational within South African society. Whereas during the apartheid regime, the separation clearly ran along race divisions, in the current, “democratic” system, the same actual separation is sustained without it being an explicit element of the foundations of the country, i.e. the constitution. This intervention foregrounds the constant role of capitalism is both periods. At the same time the intervention acknowledges that contemporary Western artisthood is a mirror of the privileges that are offered by the capitalist system, and the type of artist that it produces. The intervention initiates a critical discourse concerning the capitalist system situated within the disaster of capitalism itself, in other words: through the desire to break with the presumption that art would be able to operate outside the capitalist system and to confirm that art—and the artist himself—is in fact modeled on this system. The public intervention by Staal was supplemented by a textual intervention by Van Gerven Oei: a proposition to alter the seventeenth amendment of the South African constitution. Even though the anti-discrimination legislation in South-Africa is one of the most stringent and inclusive in the world, one factor—wealth—remains outside its scope, thus continuing the schisms along racial lines produced during the apartheid regime: §9.3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, and wealth. Monument for the Distribution of Wealth Intervention concerning the June 16 Memorial Acre in Central Western Jabavu, one of the poorest townships of Johannesburg. The monument comprises a park on which different are placed recalling an important protest the black population against the former apartheid regime. In 1976, from a school adjacent to the park, they started a massive protest against the introduction of Afrikaans in the school curriculum. The police reacted violently, and shot several hundreds of students. The construction of the June 16 Memorial Acre was started in 2005, and from the start was the paragon of corruption. Coordinated by local politicians, some family members of the protest leader from 1976 gained control of the realization of the monument, outside the regulation through external institutions. The available budget of 41 million rand (at that time well over 5 million euro) was largely embezzled. In the meantime, the monument has become fully dilapidated and defaced. The park has become overgrown with weeds and covered in a layer of dirt, and the local population is slowly plundering the square to use the material for the construction and decoration of their own houses. The Monument for the Distribution of Wealth develops the dynamics already existent around the June 16 Memorial Acre. Without obtaining official permission in advance, several local inhabitants were hired to break down the monument, sort the materials, and offer it to the neighborhood. Thus, the redistribution of wealth after the fall of the apartheid regime is finally taking place, albeit from the mere remains of the capital that was once invested in the community. The words “monument” and “for free” are spray-painted on the stacks of material, both in English and Zulu, as these are locally the most common languages. Van Gerven Oei supplemented Staal’s public intervention with an account of the history of the monument based on a series of interviews. The account clarifies how the different interests within the protest 1976 are reflected in the exceeding decay of the park, and how in the end those interests were represented by the June 16 Memorial Acre. Monument for the Distribution of Wealth 1: Removing stones Monument for the Distribution of Wealth 3: Pulling down statues Monument for the Distribution of Wealth 4: Offering the material Monument for the Distribution of Wealth 5: Offering the material Monument for the Distribution of Wealth 6 The next day A Fragmentary History of the Monument for the Distribution of Wealth, Formerly Known as the June 16 Memorial Acre in Central Western Jabavu, Soweto Vincent W.J. van Gerven Oei The following text, based on interviews and online research aims to provide parts of a history of the park in front of Morris Isaacson High School in Central Western Jabavu, Soweto. The idea for the transformation of the park into a memorial site has its source in the events of June 16, 1976: the start of the the student uprising in Soweto. The development of the park was started in the early 1980s, and the actual transformation into a memorial site, the June 16 Memorial Acre, was initiated in 2005. Over the last few years, several monumental additions have been made to the park: A marble monument with three pillars was revealed on June 16, 2006. A sculpture of a book and several billboards on June 16, 2008. A sculpture of student leader Tsietsi Mashinini on June 16, 2010. The park was transformed into the Monument for the Distribution of Wealth on August 3, 2010. According to the entry “Youth Struggle” on the website South African History Online, the Bantu Education Act was introduced in 1953 . In 1954 , Dr Verwoerd, Minister of Native Affairs, stated: “What is the use of teaching the Bantu child mathematics when it cannot use it in practice? That is quite absurd.” According to the entry “Soweto uprising” on Wikipedia, the Afrikaans Medium Decree was issued in 1974 , forcing all black schools to use Afrikaans and English in a 50-50 mix as languages of instruction. The Regional Director of Bantu Education (Northern Transvaal Region), J.G. Erasmus, told Circuit Inspectors and Principals of Schools that from January 1, 1975 , Afrikaans had to be used for mathematics, arithmetic, and social studies from standard five (7th grade). English would be the medium for general science and practical subjects. Indigenous languages would be used for religion instruction, music, and physical culture. According the entry “Soweto uprising” on Wikipedia, on April 30, 1976 , students from the Orlando West Junior School in Soweto went on strike, refusing to go to school. Their example was followed by other schools in Soweto. A student from Morris Isaacson High School, Toboho “Tsietsi” Mashinini, proposed a meeting on June 13, 1976 to discuss further action. According to Weizmann Hamilton’s article “The Soweto Uprising 1976,” which appeared in the September 1986 edition of Inqaba Ya Basebenzi (Fortress of the Revolution), on June 13, 1976 , the South African Students’ Movement called a meeting at the Donaldson Community Center in Orlando. 300-400 Students representing 55 schools decided to hold a mass demonstration on June 16. According to Brian Mokhele, member of the Joint Community Safety Forum, Dr Edelstein was the first victim of the Soweto uprising and killed the day before the march on June 15, 1976 . Edelstein was an administrator at the pass office in Jabavu and gave golf courses to the local community. Edelstein was put in a garbage bin and pierced by pickaxes. The garbage bin was left at the very spot of the murder for many years. A few years ago, a child was beheaded at the same spot, and the basketball court next to it has been abandoned since. According to Marcus Neustetter, founder of the Trinity Session, this story is untrue. According the entry “Soweto uprising” on Wikipedia, on June 16 , Tsietsi Mashinini led students from Morris Isaacson High School to join up with others who walked from Naledi High School. A crowd of between 3,000 and 10,000 eventually ended up near Orlando High School. According to Raymond Marlowe, a local photographer, Tsietsi Mashinini was heading the march. According to the entry “Hector Pieterson” on Wikipedia, Dr Edelstein died on June 16, 1976 , stoned to death by mob and left with a sign around his neck proclaiming “Beware Afrikaaners.” The first child to die that day was called Hastings Ndlovu. According to Pat Motsiri, Orlando West is claiming struggle heritage through the Hector Pieterson Museum, while Hector Pieterson was from Jabavu. According to Pat Motsiri, his generation effectively struggled between 1980 and 1991, forcing the release of Nelson Mandela and negotiations with the apartheid regime while the 1976-generation was safely in exile. Nevertheless, this has not been recognized in any monument. After the abolition of apartheid, the generation from 1976 returned from exile, occupied important government and ANC positions, creating an abundance of 1976 memorials and refusing to acknowledge that this was only possible because of the younger generation’s struggle. He calls this a generational conflict. According to Archibald Dlamini, the park officer responsible for the Memorial Acre, he started working for the municipality in 1978. In 1981/82 , Isaac Makhele from Pimville, who used to work in the cemetery business, was the first developer of the park. It used to be just a normal park until City Parks decided to develop the Memorial Acre in 2006. In 2007 the work was stopped by the community. According to Brian Mokhele, he left the country in 1989 after he participated in the riots of 1986. But when he returned in 1999 he found that nothing had changed. He says that they were promised to be protected by the Constitution, but that reality is different. The police uses fear to suppress them so that they don’t come out to talk openly. He has been arrested twice, both times harassed and tortured by the police, but in the end always released without indictment. He says that this is their way to threaten communities to back off from politics. According to Moses, who is sitting outside rolling a joint, Brian knows everything. He tells Brian to tell me everything he knows. According to Brian Mokhele, Tsietsi Mashinini was possibly murdered in 1990 during his exile in New York. Two weeks before he was supposed to return to South Africa, his papers in order, he was found dead under mysterious circumstances. His coffin was sealed when he was buried. According to Pat Motsiri, he came up with the idea for the Memorial Acre in 2003 . He submitted the documents for the proposal to the council, which sidelined him as soon as the budget came out in 2005 . According to Brian Mokhele, there was on estimation R 41,000,000 spent to redesign the park and turn it into the Memorial Acre. The millions were divided by Amos Masondo, the mayor of Soweto, the local councilor Bongani D. Zondi, and the director of the city of Johannesburg, Pat Lephunya. They were dividing the money between several contractors: Tsietsi Mashinini’s brothers were involved in the development of the park, they got the tender to do the green areas, the landscaping. Construction was done by other companies, some did the paving, the toilets, etc. EMBA, a private company appointed by the municipality was in control of the money flow, but the money was quickly gone. According to Raymond Marlowe, the contractor bought a BMW with the money. According to Archibald Dlamini, the Mashinini brothers got the tender, so the space would look more like the other places around in Soweto. It was agreed that after they were done, they would return the property to the municipality. They did whatever they could do. According to Mafaisa, a member of the Jabavu business community, he was one of the contractors for the landscaping and the pavement under Mpho Mashinini, one of the brothers. He says that I should contact Mavi for information on Mpho. According to Poi Stuurman, a local youth worker, Mafaisa is one of the guys who ran away with the money. According to Mavi, Mpho Mashinini was never a contractor. The contracts were organized by Sbu Butelezi, the former head of the Gauteng Department for Public Works. The June 16 Foundation and the Mashinini brothers will be the beneficiaries of the park when it is finished. According to Brian Mokhele, City Parks did not accept the Memorial Acre because it was not finished. The rest of the year, the unfinished park is not maintained, as should have happened. This was done deliberately so that in the end they can just clean the whole thing up and have a reason to redo the whole park. According to Brian Mokhele, the Mashinini brothers now work for the government. People that manipulate for money purposes always come from the government’s side. Because the park was left unfinished, the people from the neighborhood are taking away the stones to decorate their own homes with. According to Archibald Dlamini, because City Parks doesn’t accept responsibility of the park, he officially has nothing the guard, except for his cottage, which is municipal property. The thieves come at night and destroy the park, but he cannot do anything because he is sleeping. According to the website of the Thanda Foundation on June 16, 2006 a bronze statue of Hector Pieterson, the first child to die in the 1976 protests, made by Kobus Hattingh and Jacob Maponyane was unveiled in the Maponya Mall in Soweto. The statue is sculpted after the famous image shot by Sam Nzima of Mbuyisa Makhubo carrying the dead body of the boy. The sculpture was sponsored by the Thanda Foundation, founded by the Swedish entrepreneur Dan Olofsson and South-African entrepreneur Matthews Phosa. According to the official website of the City of Johannesburg, the Memorial Acre and Artwork were unveiled in 2006. According to a blog post on sowetouprisings.com, the Memorial Acre was still under development on July 24, 2006. According to Archibald Dlamini, City Parks only cleans up the park once a year just before the June 16 celebrations. Everybody is waiting for the Mashinini brothers to finish their job. The last time he talked with them was in 2007 . According to a sign on the school grounds of the Morris Isaacson High School, the June 16 Trail will be finished in 2008 . According to a blog post on sowetouprisings.com, the Memorial Acre contains another monument erected in Tsietsi’s honor. The monument was created as part of the Sunday Times Heritage Public Art program. Its physical form resembles a giant book which symbolizes the crisis in education experienced in 1976. On the face of the book is the map of the route taken by the students from Morris Isaacson High School in Central Western Jabavu to Phefeni Junior Secondary in Orlando West (currently the site of the Hector Pieterson Museum), while the back cover of the ‘book’ is inscribed with a tribute to Tsietsi Mashinini. The monument was revealed on June 16, 2008 . According to Marcus Neustetter, the billboards on the Memorial Acre were part of a school project realized in 2008. Following several workshops, the students from different high schools along the June 16 Trail were invited to work with artists on the billboards, while the neighborhood community was invited to watch the process during the festivities on June 15 and 16, 2008 . The billboards were supposed to be removed because of construction works on the Memorial Acre, which never ended up happening. According to Brian Mokhele, the former toilet facilities were converted into a house for the park officer. This park officer has been working for city parks for more than 12-15 years, but does nothing here, because the park, including the new toilet buildings, is not finished. The government is now moving around looking for people to take this job because they stopped it. They confronted everybody who was going in and chased them away. According to John, in 2009 , some girls, around 16 or 17 years old, were raped by four men who had been drinking in a local shebeen. When the bar quit they said that they would go home by car, but instead raped the girls on the Memorial Acre nearby. This happened in the unfinished toilets, because the doors couldn’t be closed. According to Brian Mokhele, there used to be some fences around the park because of the construction work that was eventually stopped, but these were also stolen. According to Archibald Dlamini, people from the neighborhood started about two and a half years ago, and the last piece was stolen near the end of 2009 . Sometimes he would catch someone with a roll of fence, and then use it for his own cottage. According to the official website of the City of Johannesburg, a statue of Tsietsi Mashinini by Johannes Pokhela was revealed on June 16, 2010 , “Youth Day.” According to Shirley Makutoane, deputy principal of Isaac Morrison High School, the statue of Tsietsi Mashinini, funded by the June 16 Foundation, has temporarily been placed within the school perimeter. The statue will be moved to the Memorial Acre when it will be finished, in 2011 . According to Brian Mokhele, beside the June 16 Foundation, there is also a June 16 Memorial Acre Foundation. Both foundations are quarreling about the money involved in the Memorial Acre project. Nobody knows who’s involved in them. According to Marcus Neustetter, the June 16 Foundation consists of people that were part of 1976 protest movement, local government officials, representatives of the Hector Pieterson Museum, and the council. According to students from the Isaac Morrison High School, the statue of Tsietsi Mashinini is on the school ground because on the Memorial Acre it would be vandalized by youths from White City, an adjacent neighborhood. Accorcing to Brian Mokhele, the statue of Tsietsi should eventually be mounted on the Memorial Acre. It is wrong that the statue is in the school at the moment, because it is not a public school. He wants the statues to depict the massiveness of the force that was coming into Soweto after the protests. According to Brian Mokhele, City Parks, City of Jo’burg, City Lights, and SAPS are making some sort of plan to take the plan back. They want to remove the trees from the Memorial Acre, and redesign the Memorial Acre into a relaxing park, without political content. They want to depoliticize the square. In doing so,they will have their own employment and not use local workforces. According to Brian Mokhele, the community wants to remove the monuments, amphitheater, and sculptures from the Memorial Acre because they do not resemble anything. The sculptures should be depicting the truth of what happened, because the Memorial Acre is a political heritage site. He wants to involve the people that actually participated in the struggle to make the monument so that everyone can enjoy it and get a better understanding of the struggle heritage. Therefore, he proposes collective ideology in which everyone has a say. This would prevent future vandalization of the monument. According to Pat Motsiri, the sculptures must depict the event around June 16, 1976. Like the story of Dr Edelstein, who was pierced by pickaxes, forced into a garbage bin and burned alive. According to Jonas Staal, the Memorial Acre should be destroyed, its elements stacked on pallets, thus forming the Monument for the Distribution of Wealth . According to Mafaisa, his men can do the work quickly. He has about twenty men working under him. (shrink)

Writing a history of ancient Greece, in periods of political turbulence and transition, involved the construction of an edifying platform for civil conduct. Britain, 1770-1850, was one such period. In examining Athenian democracy the British historians of the late eighteenth century, like William Mitford and John Gillies, found a convenient channel to articulate their private political preferences and antipathies, thereby accentuating the ideological antagonism of the post-revolutionary age. Athenian liberalism was deliberately drawn from oblivion only to be set as (...) a constitutional example to avoid, whereas the merits of the mixed British constitution were distinctly exposed. The British Utilitarians, by contrast, produced a case on behalf of representative government that included the basic characteristics of democracy and which witnessed its minimum prototype in ancient Athens. George Grote assumed the task of upsetting the conventional idea of Athens, thus perpetuating the typical association of Greek historiography with contemporary political discussion. (shrink)

Notions of democracy and nationhood constitute the pivotal legacy of the American Revolution, but to understand their development one must move beyond a purely American context. Citizens of a Common Intellectual Homeland explores the simultaneous emergence of modern concepts of democracy and the nation on both sides of the Atlantic during the age of revolutions. Armin Mattes argues that in their origin the two concepts were indistinguishable because they arose from a common revolutionary impulse directed against the prevailing (...) hierarchical political and social order. The author shows how the reconceptualization of democracy and the nation, which resulted from this revolutionary impulse, received its decisive form from the French Revolution. Although the French Revolution was instrumental in redefining the two terms, however, neither were these changes confined to France, nor did the new meanings merely radiate from France to other countries. To illustrate the transatlantic emergence of these ideas, Mattes considers the works of pairs of prominent intellectual contemporaries--one in America and the other in Europe--each writing on a common topic. The thinkers and topics include Thomas Paine and Edmund Burke on the transatlantic revolutions, John Adams and Friedrich von Gentz on the mixed constitution, James Madison and Immanuel Kant on perpetual peace, and Thomas Jefferson and Destutt de Tracy on the nation. Mattes's approach highlights the significant impact that the French Revolution had on the evolution of thought in the period, demonstrating that the emergence and early development of modern concepts of democracy and the nation in America were intimately tied to revolutionary events and processes in the larger Atlantic world. Preparation of this volume has been supported by the Thomas Jefferson Foundation. Jeffersonian America. (shrink)

Recognizing that the best or ideal constitution is generally unattainable, Aristotle employs a principle of proximity: although the highest end is best, if it is unattainable, legislation should aim at the result that is closest to the end and thus the best attainable outcome. In politics, this is called the ‘second sailing’, and Aristotle discusses such a constitution under the headings of polity, mixed constitution, and middle constitution. Although this constitution is correct and just, (...) the standard is lowered in the face of necessity. Still, the second‐best constitution serves as a norm for evaluating the various deviant constitutions that are forms of democracy and oligarchy. The second‐best constitution emulates the ideal constitution and it satisfies the maxim of unanimity, which in its strongest form requires that if a constitution is to be preserved, all the citizens should wish that it exist and continue unchanged. (shrink)

In this article, I consider a curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with political resentment and anti-establishment sentiments—and how we may begin to address that challenge through creative constitutional designs. Specifically, I draw upon insights from comparative constitutionalism to discuss four main areas of constitutional law and theory that appear to hold some intellectual promise in this context: formal constitutional commitment at the national level to recognizing the urban/rural divide and (...) commitment to addressing it; creative electoral system designs that take into account the spatial dimension of politics; spatial pluralization based on concepts such as “mixed constitutions,” “community standards,” and “margin of appreciation”; and rethinking elements of equalization and fiscal federalism more generally. Taken together, the four directions I discuss here offer a repertoire of constitutional design possibilities that hold promise in mitigating the resurging rural/urban gulf. More generally, they serve as an invitation to constitutional thinkers to shake up the rather stagnant constitutional thought of spatial governance, and to think creatively about the ever-expanding urban/rural divide and its consequences for the theory and practice of 21st century constitutional democracy. (shrink)

In Democracy in Australia I argued that the Australian system is a mixture of features, some democratic and some oligarchical. In this lecture I want to outline the thinking behind this mixture. It is not an inconsistency or an accident, as if the drafters of our constitution meant to make a democracy but did not quite succeed. Rather, the Australian constitution is an intelligent and successful solution to certain problems which worried educated people in the 19th (...) century but are now largely forgotten. Perhaps their problems have turned out to be unreal; or perhaps the problems are forgotten because their solution was so successful. The drafters of the Australian Constitution set out to balance Democracy and certain other values, in a tradition of the mixed or balanced constitution coming down from Aristotle. (shrink)

This article uses the methods that Locke advocated in his Essay Concerning Human Understanding to evaluate manuscript evidence from five different schemes and two drafts of the Fundamental Constitutions of Carolina, to thereby determine what role, if any, John Locke had in writing it, and in advocating for slavery and absolutism. It focuses on the influential claims put forward by David Armitage 20 years ago, that Locke was responsible for actively promoting slavery in Carolina’s Fundamental Constitutions. It enables the reader (...) to view, and judge, the relevant evidence. The author concludes, and invites the reader to conclude, that Armitage’s main claims lack foundation in the manuscript evidence. That evidence instead points towards the legal power of those who owned Carolina, the Lords Proprietors, and to the crown, which granted Carolina’s charter, and to the logic of a different theory of government, patriarchalism, for the rationale behind both slavery and absolutism. The central ideas behind slavery and colonization were epitomized, as Locke understood, by Sir Robert Filmer, who wrote the book to which Locke responded in his Two Treatises of Government. Filmer’s ally, Sir Henry Spelman, like Filmer a deeply committed royalist who believed in the king’s unlimited prerogatives, composed the original 1629 Carolina charter that shaped the Fundamental Constitutions. Misattributing the authorship of particular clauses to Locke is a symptom of a larger failure to distinguish the impact of momentous debates over authority and race in the seventeenth century. Locke’s theories did, in practice as well as principle, reject the theory of domination put forward by Filmer, and argued instead for human rights and democracy that were inclusive and capacious. The manuscript evidence has the potential to reshape how modern democratic theory is understood in the present. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Democracy in an Uncertain World:Expertise as a Provisional Response to VulnerabilityRobert Smid (bio)In the final chapter of American Immanence, Michael Hogue writes that "[r]ather than asking the foundationalist question of what epistemology is needed to ground or justify democracy, the pragmatist asks what epistemology democracy entails. What 'way of knowing' follows from, or is appropriate to, democracy as an associational ethos of vulnerable life?"1 While (...) Hogue and I have explored similar themes in our research on the promises and perils of democracy, this statement identifies a key difference in our respective approaches that has significant implications for the role that democracy can and should play in inquiry as well as for its potential to revolutionize civilization as we know it in the Anthropocene.In what follows, I raise three interrelated points that interrogate that difference. The first pertains to the role of foundations, provisional or otherwise, in Hogue's work, and results in a challenge to the special status seemingly given to democracy and a proposed inversion of the relation he poses between epistemology and democracy. The second pertains to the role of education in a democracy. This is a dimension of traditional pragmatist discourse on democracy that is conspicuously absent in Hogue's book, yet one that has significant implications for his argument. In this section, I will draw out the Deweyan strains of that discourse that appear to inform Hogue's work and contrast them with a Peircean take that yields notably different outcomes. The third point addresses the relation between democracy and sovereignty, a relation that Hogue explicitly eschews but that I will argue maintains some validity within democratic discourse, albeit in a more modest and provisional form. Finally, I draw these three points together in a conclusion that affirms much of Hogue's argument—including the profound vulnerability manifested by the Anthropocene and the need for more resilient forms of associated life—but assert that democracy is no less vulnerable than any other aspect of our uncertain world and therefore cannot be expected to possess within itself all that is necessary for its ongoing development. Building on the inversion of democracy and epistemology in the first section, the constitutive role of education in a [End Page 30] democracy as laid out in the second section, and the argument for a mitigated sovereignty in the third section, I argue that professional expertise provides an acceptable and necessary default when democratic structures fail.I. Provisional FoundationsAs a theopolitics rooted in religious naturalism, Hogue's understanding of democracy is one that is "embodied, relational, and vulnerable."2 That is, knowledge, meaning, and value all emerge out of and are conditioned by their social context, and shift according to the interests and needs of those who lay claim to them. Accordingly, Hogue's argument for democracy is that it is the way of life that allows for the broadest possible participation in such constructions, and which responds most effectively to the conditions of uncertainty and vulnerability surrounding them. It comes as no surprise, then, that his account of democracy is antifoundational, recognizing not only that all inquiry begins in medias res, but also that it emerges from a wide variety of media and that, while one goal of democratic discourse may be to chart a coherent path forward, both the media and the proposed paths are subject to change at any moment. Such antifoundationalism is a fairly standard commitment in pragmatist and process discourse, and thus relatively uncontroversial in its own right. It is worth noting, however, that being committed to antifoundationalism and actually being antifoundationalist in practice are often two very different things, our best efforts to the contrary notwithstanding.It is clear from Hogue's book that he resists any foundationalist epistemology, opting instead to derive his epistemology from democratic practice. As noted above, he asks "[w]hat 'way of knowing' follows from, or is appropriate to, democracy as an associational ethos of vulnerable life?"3 While it is possible that there is one epistemology that is best suited to democracy understood in this way, that epistemology would not, by his account, stand on its own foundation but be contingent on one... (shrink)

Whether the US Constitution guarantees a right to conduct scientific research is a question that has never been squarely addressed by the United States Supreme Court. Similarly, the extent to which the First Amendment protects the right to communicate the results of scientific research is an issue about which there is scant judicial authority. This article suggests that a crucial guidepost for exploring both these uncharted areas of constitutional law should be whether restrictions on scientific research or communication truly (...) implicate fundamental individual rights or instead primarily concern issues of general social welfare—issues that in a democracy are properly decided by the representative branches of government or their delegates, not by the judiciary. (shrink)

This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal (...) position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in itsCitizens Uniteddecision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (HarperandBryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law. (shrink)

One of the dominant tendencies in the history of mankind throughout the entire course of its development has been the struggle between two opposing principles-democracy and tyranny. The very concepts, born in antiquity, reflected the clash and constant rivalry of two principles in the organization of the political order of the states of antiquity. In the narrow sense democracy was understood to mean a form of the state based on the recognition that the people [narod] are the source (...) and at the same time the bearers of power, which they realize by implementing their civil rights and freedoms. Tyranny was taken to mean a form of state power that was established through force and based on one-person rule. An important peculiarity of the genesis of tyranny is the circumstance that it arose in a transitional period in the struggle of the people against the ancestral nobility and found support in the people for a struggle against the aristocratic opposition. Scholars see the social purpose of the power of tyrants in the implementation of reforms aimed at improving the situation of the demos, developing a new social hierarchy, and forming a strong state. The authors of antiquity-Plato, Aristotle, and Polybius-who drew a clear distinction between democracy and tyranny, nonetheless saw the possibility of one form of rule turning into the other. They therefore considered both these forms of rule imperfect or even as the worst of all possible forms, and instead they saw the ideal to lie in a mixed form of government that theoretically eliminates the flaws of each of the extreme or pure forms. (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)

Archytas of Tarentum, a contemporary and associate of Plato, was a famous Pythagorean, mathematician, and statesman of Tarentum. Although his works are lost and most of the fragments attributed to him were composed in later eras, they nevertheless contain valuable information about his thought. In particular, the fragments of On Law and Justice are likely based on a work by the early Peripatetic biographer Aristoxenus of Tarentum. The fragments touch on key themes of early Greek ethics, including: written and unwritten (...) laws; freedom and self-sufficiency; moderation of the emotions and cultivation of virtues; equality and the competence of the majority to participate in government; criticism of “rule by an individual”; a theory of the ideal “mixed constitution”; distributive and corrective justice and punishment, and of the rule of law. The fragments also contain one of the only positive accounts of democracy in ancient Greek philosophy. (shrink)

A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order (...) is to be democratic, each of its component institutions must be democratic, taken one by one; (2) the fallacious assumption that if judges are politically biased, courts will issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory. A systemic approach implies that the choices of legal actors are strategically interdependent: the best course of action for any given actor will depend upon what other actors do. Judges deciding how to interpret statutes and the constitution, for example, cannot simply assume, idealistically, that it would be best for them to adopt the approach that would be best for all if adopted by all. If others do not adopt that approach, then the nature of the best approach for the given judge may itself change, taking others' actions as nonideal constraints. The implication is a second-best approach to constitutionalism and legal interpretation.The judge who takes system effects into account may change her approach in light of the behavior of her colleagues and the behavior of other institutions. Although such a judge is strategic, it does not follow that she is unprincipled. Rather, under identifiable conditions, the systemically-minded judge will be a strategic legalist who attempts to act, within the constraints that arise from others' behavior, so as to nudge the legal system toward the best possible state, according to her view of the law. Indeed, the systemically-minded judge may even be a legal chameleon who changes her approach as the legal environment, including the behavior of other judges, changes around her, until the court as a whole reaches an equilibrium of optimal diversity. Although such a course of action is psychologically demanding, the systemic benefits that the legal chameleon creates can be attained at the systemic level instead. Wise appointments by Presidents and Senators aiming to diversify the judiciary would mimic, in a second-best way, the diversity that a bench of legal chameleons would produce"--John M. Olin Center for Law, Economics, and Business web site. (shrink)

Part I distinguishes epistemic and choice democracy, attributing the first to the Rawls of A Theory of Justice but arguing that the second is more justifiable. Part II argues that in comparison with the difference principle, three principles — equal participation in choice democracy, no subordinating purpose, and a just wants guarantee — constitute a more rational choice in the original position; and that they better provide all the benefits claimed for the difference principle in its comparison with (...) either average utilitarianism or restricted average utilitarianism (the mixed conception). Part III, despite noting that my conclusions in Part II can all be reached within the Rawlsian framework, suggests that finding the basis of equality in the presuppositions of communicative action rather than in the existence of the two basic moral powers is more conducive to the affirmative conclusions of Parts I and II. It argues that Rawls' conclusions represented in part his not fully carrying out the break with Kant that he identified himself as making. (shrink)

In this paper, I examine recent phenomenological research on both depressive and manic episodes, with the intention of showing how phenomenologically oriented studies can help us overcome the apparently paradoxical nature of mixed states. First, I argue that some of the symptoms included in the diagnostic criteria for depressive and manic episodes in the DSM-5 are not actually essential features of these episodes. Second, I reconsider the category of major depressive disorder (MDD) from the perspective of phenomenological psychopathology, arguing (...) that severe depressive episodes should not be characterized by any particular moods (such as sadness, hopelessness, or guilt), and should instead be characterized by a diminished capacity for finding ourselves situated in and attuned to the world at all. In other words, the affective dimension of depression should be characterized as a change in the way we have moods, not as a change from one kind of mood to another. Third, I turn to mania, arguing that manic episodes, taken as the opposite of depressive episodes, should be characterized not by any particular moods (such as euphoria, grandiosity, or even irritability), but should instead be characterized by an enhanced or heightened capacity for finding ourselves situated in and attuned to the world. In other words, the affective dimension of mania, like the affective dimension of depression, should be understood as a change in the way we have moods, not as a change from one kind of mood to another. Fourth, I return to the phenomenon of mixed states and argue that the affective dimension of depression and mania, when conceived along the phenomenological lines I set forth in the previous sections, dissolves the paradox of mixed states by showing that the essential characteristics of depression and mania cannot and do not coincide. Many cases of mixed states are diagnosed because moods that we take to be essential features of either depression or mania arise within the context of what is considered to be the opposite kind of episode (e.g. dysphoria, typically associated with depression, often arises in what is otherwise considered a manic state). However, if we conceive of the affective dimension of depression as a decrease in the degree to which one is situated in and attune to the world through moods, and the affective dimension of mania as an increase in the degree to which one is situated in and attuned to the world through moods, then the particular mood one finds oneself in is simply irrelevant to the diagnosis of either depression or mania. As a result, the manifestation of any particular moods in what otherwise seems to be a pure manic or depressive episode does not constitute a mixed state. (shrink)

In this essay I address the difficult question of how citizens with conflicting religious and secular views can fulfill the democratic obligation of justifying the imposition of coercive policies to others with reasons that they can also accept. After discussing the difficulties of proposals that either exclude religious beliefs from public deliberation or include them without any restrictions, I argue instead for a policy of mutual accountability that imposes the same deliberative rights and obligations on all democratic citizens. The (...) main advantage of this proposal is that it recognizes the right of all democratic citizens to adopt their own cognitive stance in political deliberation in the public sphere without giving up on the democratic obligation to provide reasons acceptable to everyone to justify coercive policies with which all citizens must comply. (shrink)

In the early 1990s Israel underwent a so-called constitutional revolution. According to the champions of this revolution, Israel has essentially become, as a result of this momentous event, a constitutional democracy, upholding individual freedom and liberties and allowing for judicial review of parliamentary legislation. Despite the congratulatory rhetoric, it is generally agreed upon that the constitution is still in need of some essential supplements before Israel can qualify as a fully constitutional democracy. The main question addressed in (...) this paper is the following: is it ‘reasonable’ that Israel take the further necessary steps that qualify it as a fully constitutional democracy? The doubts raised in this regard stem from the very concerns that lead political philosophers (mainly Rawls) to stress the unique value of liberal democracy. As they argue, liberal democracy provides deeply divided societies with the best means to secure their legitimacy and political stability. Israel's political realities, I argue, defy this claim. Moreover, Israel's political realities may also carry a valuable lesson to other states, even to seemingly robust liberal democracies. It is not the purpose of the paper, of course, to argue that Israel's existing rule of government should be embraced by other states – far from that. Israel should undergo some radical changes so that it can protect the rights and interests of all its citizens. Yet, to achieve this purpose, it should transcend, I will argue, liberal democracy. As matters stand, simply strengthening its liberal character, Israel's political system may be exposed to a growing challenge to its legitimacy and stability. It should, therefore, reject liberal democracy and especially the principle of neutrality that is intimately connected with a liberal rule of government and embrace, instead, the ideal of multicultural democracy. This ideal, I argue, is better equipped to answer the need of deeply divided societies to secure their legitimacy and stability. (shrink)

This essay goes beyond the dominant conception of constituent power developed by Emmanuel Sieyès and Carl Schmitt by excavating an alternative through the practices of twentieth-century workers’ councils and the interpretations of council democracy by Cornelius Castoriadis and Hannah Arendt. Interpreters of the constituent power often agree on its fundamentally antagonistic relation to constituted power, hereby making constituent politics a momentary experience, which cannot be sustained in constituted politics. Council democracy, instead, discloses a modality of politics, which (...) bridges the gap between constituent power and political form in order to provide institutional means through which the spirit of revolution can survive the founding moment. With this alternative concept of council democratic constituent power, this essay contributes to radical democratic theory by stipulating ways in which institutions can be rethought radically democratic as a way in which constituent power (creativity, novelty, freedom) can be institutionally approximated and continually reexperienced. (shrink)

Suppose a committee has to take a stand on a complex issue, where the decision presupposes answering a number of sub-questions. There is an agreement within the committee which sub-questions should be posed. All questions are of the ”yes or no?”-type and the main question is to be given the yes-answer if and only if each sub-question is answered with “yes”. Two different voting procedures can be used. On one procedure, the committee members vote on each sub-question and the voting (...) results then determine the committee’s conclusion on the main issue. This premise-based procedure (or pbp, for short) can be contrasted with the conclusion-based procedure (cbp), on which the members directly vote on the conclusion, with the vote of each member being guided by her views on the relevant sub-questions. The problem we want to examine concerns the relative advantages and disadvantages of the two procedures from the epistemic point of view. In some cases one can assume that the question before the committee has a right answer, which the committee is trying to reach. Is one of the two procedures better when it comes to tracking the truth? As it turns out, the answer to this query is not univocal: On the basis of Condorcet’s jury theorem we shall show that the premise-based procedure is clearly superior if we want to reach truth for the right reasons, i.e. without making any mistakes on the road to the conclusion. However, if the goal instead is to reach truth for whatever reasons, right or wrong, there will be special cases in which using the conclusion-based procedure turns out to be more reliable. But for the most part, the premise-based procedure will still retain its superiority. In this respect, our results disconfirm the tentative conjectures that have been put forward in Pettit and Rabinowicz (2001). (shrink)

The urban traffic environment is characterized by the presence of a highly differentiated pool of users, including vulnerable ones. This makes vehicle automation particularly difficult to implement, as a safe coordination among those users is hard to achieve in such an open scenario. Different strategies have been proposed to address these coordination issues, but all of them have been found to be costly for they negatively affect a range of human values (e.g. safety, democracy, accountability…). In this paper, we (...) claim that the negative value impacts entailed by each of these strategies can be interpreted as lack of what we call Meaningful Human Control over different parts of a sociotechnical system. We argue that Meaningful Human Control theory provides the conceptual tools to reduce those unwanted consequences, and show how “designing for meaningful human control” constitutes a valid strategy to address coordination issues. Furthermore, we showcase a possible application of this framework in a highly dynamic urban scenario, aiming to safeguard important values such as safety, democracy, individual autonomy, and accountability. Our meaningful human control framework offers a perspective on coordination issues that allows to keep human actors in control while minimizing the active, operational role of the drivers. This approach makes ultimately possible to promote a safe and responsible transition to full automation. (shrink)

Should we try to live in the present? Such is the imperative of modernity, Jed Rubenfeld writes in this important and original work of political theory. Since Jefferson proclaimed that 'the earth belongs to the living', since Freud announced that mental health requires people to 'get free of their past', since Nietzsche declared that the happy man is the man who 'leaps into the moment', modernity has directed its inhabitants to live in the present, as if there alone could they (...) find happiness, authenticity, and above all freedom. But this imperative, Rubenfeld argues, rests on a profoundly inadequate, deforming picture of the relationship between freedom and time. Instead, Rubenfeld suggests, human freedom, indeed human being itself, necessarily extends into both past and future; self-government consists of giving our lives meaning and purpose over time. From this conception of self-government, Rubenfeld derives a new theory of constitutional law's place in democracy. Democracy, he writes, is not a matter of governance by the present 'will of the people'; it is a matter of a nation's laying down and living up to enduring political and legal commitments. Constitutionalism is not coun. (shrink)

In philosophy and political theory, the term paradox is often used synonymously with antinomy, contradiction and aporia. This article clarifies the meaning of these terms through tracing their respective etymology. We see that antinomy denotes a deep-seated conceptual opposition, whereas contradiction and aporia represent alternative responses to antinomy. The former presents the antinomy as potentially resolvable at some future time, and the latter sees the antinomy instead as a constitutive impasse. By way of contrast, para doxa originally referred to (...) a statement that is ‘contrary to received opinion’, but this idea has generally been subsumed – both in philosophy and more common place understandings – under the notion of aporia. This conceptual recovery enables a better understanding of key traditions in social and political theory, notably post-structuralism and Habermasian critical theory, which can be demarcated through their respective responses to the emergence of ‘paradoxes’. However, the article also demonstrates the material significance of these philosophical categories through their application to contemporary democratic politics. I analyse the constitutive tension between liberalism and democracy as well as the emergence of populism and show how these conceptual tools provide new insights for understanding these most pressing political developments of our time. (shrink)

A committee has to address a complex question, the answer to which requires answering several sub-questions. Two different voting procedures can be used. On one procedure, the committee members vote on each sub-question and the voting results then are used as premises for the committee’s conclusion on the main issue. This premise-based procedure can be contrasted with the conclusion-based procedure. On that procedure, the members directly vote on the conclusion, with the vote of each member being guided by her views (...) on the relevant sub-questions. These procedures are by no means equivalent, which has been pointed out in legal theory in connection with jury votes. There may be a majority of voters supporting each premise, but if these majorities do not significantly overlap, there will be a majority against the conclusion. Pettit connects the choice between the two procedures with general political theory, in particular, with the discussion of deliberative democracy. However, the problem we want to examine concerns the relative advantages and disadvantages of the two procedures from the epistemic point of view. In some cases one can assume that the question before the committee has the right answer. In cases like this, is one of the two procedures better when it comes to tracking the truth? As it turns out, the answer to this query is not univocal. On the basis of Condorcet’s jury theorem, we show that the premise-based procedure is clearly superior if the objective is reach truth for the right reasons, i.e. without making any mistakes on the way. However, if the goal instead is to reach truth for whatever reasons, right or wrong, there will be cases in which using the conclusion-based procedure turns out to be more reliable, even though, for the most part, the premise-based procedure will retain its superiority. Our results partly confirm and partly disconfirm the tentative conjectures that have been put forward in Pettit and Rabinowicz. (shrink)

This book addresses the ethical and political questions flowing from the vastly increased possibilities to manipulate the genetic properties of organisms, including human beings. Due to the great complexity of the scientific fields involved, these questions are framed and answered mostly by scientific experts. But the new technological possibilities and social practices connected with genetic manipulation intrude into domains that for a long time have been the provenance of religious and secular worldviews and touch upon deep-seated convictions and emotions. Moreover (...) they are strongly influenced by economic and political interests. As a consequence, questions of scientific truth and technical control are getting more and more mixed up with questions regarding values and interests. Against this background, this book starts from the premise that neither clinging to the idea of value-neutral, disinterested science, nor the complete abandonment of this idea in favour of postmodern relativism will be of much help here. Instead the different contributions to this book explore the idea of a ‘lingua democratica’ for the life sciences and sketch the contours of this notion by focusing on a broad range of conceptual and practical issues in the field of genomics. (shrink)

A bold new approach to combatting the inherent corruption of representative democracy This provocative book reveals how the majority of modern liberal democracies have become increasingly oligarchic, suffering from a form of structural political decay first conceptualized by ancient philosophers. Systemic Corruption argues that the problem cannot be blamed on the actions of corrupt politicians but is built into the very fabric of our representative systems. Camila Vergara provides a compelling and original genealogy of political corruption from ancient to (...) modern thought, and shows how representative democracy was designed to protect the interests of the already rich and powerful to the detriment of the majority. Unable to contain the unrelenting force of oligarchy, especially after experimenting with neoliberal policies, most democracies have been corrupted into oligarchic democracies. Vergara explains how to reverse this corrupting trajectory by establishing a new counterpower strong enough to control the ruling elites. Building on the anti-oligarchic institutional innovations proposed by plebeian philosophers, she rethinks the republic as a mixed order in which popular power is institutionalized to check the power of oligarchy. Vergara demonstrates how a plebeian republic would establish a network of local assemblies with the power to push for reform from the grassroots, independent of political parties and representative government. Drawing on neglected insights from Niccolò Machiavelli, Nicolas de Condorcet, Rosa Luxemburg, and Hannah Arendt, Systemic Corruption proposes to reverse the decay of democracy with the establishment of anti-oligarchic institutions through which common people can collectively resist the domination of the few. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Interpreting from the IntersticesThe Role of Justice in a Liberal Democracy—Lessons from Michael Walzer and Emmanuel LevinasNicholas R. Brown (bio)1As anyone who is familiar with more recent theological debate can attest, the appraisal of the liberal democratic tradition has undergone a radical reevaluation in the wake of Stanley Hauerwas’s and Alasdair MacIntyre’s scathing critiques. As a result of their blistering assault, religious ethicists and philosophers now find themselves (...) operating within a discursive milieu that is almost the photo negative of the one they previously inhabited. For what has followed After Virtue and After Christendom is a situation in which compliance with liberal democratic norms is now perceived as actively inveighing against justice rather than as an integral prerequisite to its pursuit.There are cracks, however, beginning to emerge in the MacIntyre/Hauerwas edifice. For what is becoming disputed and increasingly so among a growing chorus of religious ethicists and philosophers is whether their critical reading of liberal democracy offers the most [End Page 155] helpful or even the most biblical way to think through its own moral dimensions as well as those undergirding its relationship with justice.It is the emergence of these criticisms that forms the basis for this essay. For the thesis that I wish to advance below is that liberal democracy offers religious ethicists and philosophers alike a moral framework and vocabulary from which it is possible to comprehend and enact the normative precepts encapsulated within a biblical understanding of justice. Accordingly, some aspects of my argument will build upon the rhetorical trajectories that have been already charted by the ethicists and philosophers I mention above.What distinguishes my approach, however, is that I will proceed from a more focused examination of some of the ethical and political undercurrents found within contemporary Jewish thought. More specifically, I want to probe the ethical philosophy of Emmanuel Levinas and the political philosophy of Michael Walzer, for I believe the juxtapositional methodology of interpretation which informs each of their perspectives is illustrative of an interstitial hermeneutic that helps further illuminate the moral compatibility between biblical and democratic accounts of justice.2By now, MacIntyre’s and Hauerwas’s critiques of the liberal democratic tradition have been so thoroughly documented, discussed, and dissected that a review of their perspectives cannot help but have a certain pleonastic quality.Probably the most significant and disturbing problem that MacIntyre and Hauerwas see belying the liberal democratic tradition stems from its conception of time and space, or more precisely, its lack thereof. For what they discover upon a more careful probing of its moral and epistemological underpinnings is a pursuit of transcendence not dissimilar to Gnostic metaphysics. In the case of liberalism, however, the existential encumbrances to be excised are not corporeal and carnal in nature, but historical and social. [End Page 156]Such conditionalities, surmise liberal theorists, are so shot through with conceptual prejudices that they comprise an interpretative straight-jacket that vitiates against the kind of objectivity necessary to engage in a nonparochial process of moral and political discernment. For it is precisely this ability “to be able to stand back from any and every situation in which one is involved, from any and every characteristic that one may possess, and to pass judgment on it from a purely universal and abstract point of view that is totally detached from all social particularity” which MacIntyre sees as constituting “the essence of moral agency” of modern liberalism (AV 31–32). Therefore, “liberalism is successful,” maintains Hauerwas, “exactly because... [it] provide[s] that philosophical account of society designed to deal with” the moral and political implications such a social and historical denuding portends, namely “a system of rules that will constitute procedures for resolving disputes as they pursue their various interests.”1However, what liberalism defines as success MacIntyre and Hauerwas see as anything but. Instead, both judge its “system of rules” to be an insidious prescription for a particularly virulent form of moral nihilism and political bankruptcy. For by stripping moral and political discourse of their historical and social referents, liberalism, ironically and tragically, eviscerates itself of the very heuristic and discursive practices necessary to make those... (shrink)

This article presents a conceptual investigation of the intellectual debates on the normative destination of China, which have intensified since the mid-1990s when both liberalism and the New Left emerged under the Chinese backgrounds of the spreading of marketization and the maintaining of political authoritarianism.1 The investigation, however, is not an attempt to systematically examine those debates, which, as usual in the Chinese intellectual style of the twentieth century, often freely and arbitrarily cross various issue-areas and mix very different concepts. (...) Instead, this article interprets and criticizes the debates with its own political and academic concerns , which are reflected in two questions: First, how does liberty originate from a society that traditionally and practically has had little liberty? Second, how can such liberty be, whereas it has been given to birth or substantial growth from whatever soils and by whatever paths, sustained, expanded, and institutionalized in the society? (shrink)

This article analyzes the institutional patterns of eight young democracies in Asia. The analysis originates from Lijphart's majoritarian-consensus framework. It illustrates that neither Lijphart's two-dimensional democracy pattern, nor an alternative pattern exists in Asia. Instead, the review of possible causes for the lack of conformity between Lijphart's patterns of democracy and the reality of the situation in Asia support the criticism in existing research literature regarding some of Lijphart's main assumptions and major conclusions. Furthermore, Asian realities provide (...) only partial support for Lijphart's advice that the consensus option is the more attractive option for countries that designed their first democratic constitutions. (shrink)

W artykule proponuje się dyskusję z tezami Philipa Pettita zawartymi w książce On the People’s Terms: A Republican Theory and Model of Democracy i artykule „Two Republican Traditions”. Skupiając się na tzw. tradycji włosko-atlantyckiej, Pettit wskazywał na kluczowe dla republikanizmu powiązania etosów sprzeciwu obywatelskiego (contestatory citizenry) i ustroju mieszanego (mixed constitution). Nie jest przypadkiem, że do tak pojętej tradycji republikańskiej Pettit nie zaliczył Jeana-Jacques’a Rousseau, uznanego raczej za prekursora komunitaryzmu. Trudno się jednak zgodzić z prezentowaną przez Pettita (...) klasyfikacją tradycji republikańskiej i — zwłaszcza — jego odczytaniem myśli Rousseau. Przede wszystkim to właśnie ta myśl ukazuje najlepiej, że republikanizm, uosabiający wszak ideę rządów obywatelskich, mógł przyswoić wartości ustroju mieszanego jedynie w sposób doraźny i warunkowy — jedynie dopóty, dopóki sprzyjały one ograniczeniu nieobywatelskich (niewybieralnych) czynników władzy. Trudno też przyjąć tezę Pettita, że zapoczątkowana przez Rousseau teoria zwierzchnictwa ludu musi podważać ideały kultury czujności obywatelskiej. (shrink)

In the quest for a workable ideal of democracy, the systems approach has recently shifted its perspective on deliberative democratic theory. Instead of enquiring how institutionalized decision-making might mirror an ‘ideal deliberative procedure’, it asks how democracy might be construed as a ‘deliberative system’. This leads it to recommend de-emphasizing the role of parliament and focusing instead on non-institutionalized actors and communications. Though this increased emphasis is undoubtedly warranted, the importance of parliament must not be downplayed. (...) In the debate about transnational democracy – and about EU democratization in particular – it is widely held that making democracy safe for transnational politics entails finding new, non-parliamentary ways of organizing it. Here, the deliberative systems perspective may be misunderstood as offering an alternative, non-parliamentary route to transnational democracy. This article argues that a deliberative system without a parliamentary legislature is tantamount to deliberation without democracy and that an elected parliamentary legislature is constitutive of democracy as a deliberative system – national or transnational. To substantiate this claim, the article suggests looking at Habermas’ discourse theory in a new light, as a sociological-reconstructive approach that aims to explicate the cognitive dimension of modern democratic decision-making. Acknowledgement of discourse theory’s sociological intent enhances our understanding of democracy as a deliberative system in two important ways. First, it helps elucidate the epistemic meaning of democracy differently from the accounts given in alternative theories. Discourse theory holds that what generates democratic legitimacy in modern democracies is a particular epistemic quality which the democratic process lends to decisions by enabling citizens to view the latter as valid outcomes of a cooperative practice of collective problem-solving among equals. From this pragmatist understanding it follows, second, that the presence of a parliamentary legislature is crucial to the establishment and operation of democracy as a deliberative system. (shrink)

Regardless of unpredictable and contingent geopolitical events such as last year’s surprising rejection of the European Constitution in France and the Netherlands, this coming year will certainly witness a large surge in patriotism. The Winter Olympics in February, and the World Cup in the summer, both promise to whip national sentiments into a fever pitch. One other thing is certain, though: journals of philosophy and ethics will continue to debate the virtues of cosmopolitanism, as this number of Ethical Perspectives (...) does through its contributions below.Why is this? Why do philosophers and academics hold on to this idea of cosmopolitanism, an idea utterly lacking in the convictions of the general public? Is it perhaps because the first cosmopolitans were in fact philosophers? The first to identify himself as a cosmopolitan was Diogenes the Cynic, and Plato’s dialogues paint many of the Sophists in cosmopolitan hues. Although people generally support the idea of internationalism as far as it promotes trade, travel, and football tournaments, once it begins to meddle in internal affairs, as it does with outsourcing and transnational constitutions, they tend to fall back upon the patria. They killed Socrates for corrupting the youth of Athens, not the youth of the world.Whether it is the service and manufacturing industries of Asia and India ‘stealing’ American jobs, or widespread fears of Brussels’ legendary bureaucrats, the non-academic public consistently turns from its tepid embrace of cosmopolitanism to patriotism whenever threatened. Are we too quick to label this as self-interest or even selfishness? Or is there something else at work in the debate between cosmopolitanism and patriotism? Some approaches to cosmopolitanism are certainly guilty of an absolute removal of difference, of wishing away the nation state, of replacing it with an international body based on purely universal principles, and of wiping away the competencies of nations on many levels. The call for the world state can come across as an appeal for an anodyne and internationalist homogeneity based on a clinical morality that, for all its sensitivity, runs roughshod over the well-engrained cultural, legal, and social beliefs of many peoples.Clearly, this is what many Europeans fear, and to a large degree, Americans as well in their dislike for the International Court of Justice. Even the economic hegemony of outsourcing removes national power, and replaces it with pure economic rationality.Our contributors below do not advocate these reductions, although some may point to them. Key to each contribution below is sensitivity to the world as it is, to its need for difference even in the face of an ever-increasing globalisation that sometimes is connected with cosmopolitanism. Yet, every proponent of cosmopolitanism must sketch how it is possible in practice. Of course, an obvious problem is how to dwell consequently as a cosmopolitan. Not many contemporary cosmopolitans would be prepared to follow Diogenes’ commitment to rootlessness: living in exile after having been included in a forgery conviction aimed at his father, the ascetic Diogenes called a barrel his home. Such was his drive to live a levelled life that he cast away his only bowl upon seeing a poor peasant boy drinking from cupped hands. Today’s cosmopolitan leads a much more prosaic life, and hence the problem with cosmopolitanism begins as something mundane. Does not a cosmopolitan still pay national taxes? Does not a cosmopolitan still need a national passport and second country visas? But, the questions quickly turn ontological: how can one shed oneself of one’s nationality, of one’s belonging, as if it is just an accident of one’s own constitution, instead of as an important property of one’s own constitution? In other words, belonging is important: a citizen of the world still values citizenship. Clearly, the absolute cosmopolitan reduction is an absurdity: one is always rooted, in some sense. Even cosmopolitanism is rooted in a specific Western mindset, and is no self-evident preference of human existence.As Rudi Visker’s contribution so clearly shows through an investigation of the narcissism of minor differences, these questions revolve around the question of confrontation with alterity. What I am, in no small way plays off what I am not. I cannot be everything, if I am something. Freud’s analysis of minor differences reveals that members of a group identify with that group on the basis these minor differences. What is self-evident to a particular culture marks that culture off from another culture, a culture that by definition does not share the same set of the self-evident. To be a foreigner, as any ex-patriot can attest, is to stand outside of the self-evident, whether this means interpreting gestures, understanding commercial practices, or, as Freud would have it, staying on the correct side of national taboos. There is thus a dialectic of inner and outer, a dialectic which refuses a reduction of one to the other. As Visker puts it, recognising the stranger within oneself is quite different than recognising the stranger outside of oneself, and to confuse these as being the same is not only to misunderstand the very issue at stake, it is also a dangerous trivialisation of difference.But clearly, there is something viable and laudable in the idea of cosmopolitanism, since it stresses the universal moral community of humanity. Cosmopolitanism is an attempt to see all human subjects as subject to the same moral law. Indeed, the sort of federation to which cosmopolitanism leads, at least in a modified Kantian expression as Bert van Roermund tells us, even gives us good grounds to recognise the legitimacy and moral equivalence of states. Importantly, the international legal order does not draw its power from any supranational force, but from the choice of independent national actors to recognise it. Hence, this cosmopolitan order depends on nationhood, and good standing within this order depends on the degree to which a country decides to participate. Again, the universal here depends on well-rooted particularity, a particularity able to choose for the universal.What do we do, then, with outlaw nations, those nations that are hostile to the choice for the universal? Through a clear reading of Hegel, Paul Cobben proposes that the metric for a state’s legality is the measure to which it permits the moral freedom of its citizens to bloom. A free person requires a free legal order; only in such can a person obtain the full measure of human rights due. States that do not permit this blooming are illegitimate; they contradict the nature of the human person, and citizens dwelling under the yoke of these have the right to ask for outside assistance in removing this illegitimate power above them. However, for this plea to be met, two conditions must obtain: the oppressed people must have the wherewithal to form a political order after the removal of the illegitimate state, and the action must be grounded in the principles and support of a legal community, which in essence would be a world federation of states. In fact, it is morally incumbent upon all legal states to aim at such a world federation, upon pain of contradiction.Our duty to others does not end with the politically oppressed; the economically oppressed also lay a moral claim upon us. So, as Toon Vandevelde asks in his contribution, what about the global poor? The poor are hungry and in need of shelter and a future, but to address these issues at the level of rights is in a way heartless: what good does it do to legislate that everyone has the right to food, when this right can never be called upon, or enforced, in any meaningful sense? Moreover, approaches that demand non-prioritised generosity not only ignore the fundamental economic fact of scarcity, they also run the risk of creating the moral hazard of dependence on charity. The true cosmopolitan approach is the recognition of our common humanity and of our concomitant duty to help others as far as this help does not endanger us. This duty is compounded by the marginalisation of the poor through globalisation, a globalisation that they did not ask for. The extent of our help is indeterminate, but its direction is clear: it must aim to integrate those poor who wish it within our international systems, and so to ease their own transitions from poverty.Both Gil Anidjar and Maria Bonnafous-Boucher continue this theme of economy, but each from a highly specific viewpoint. Indeed, their contributions are perhaps somewhat darker, delving into an aspect of the unspoken underneath the choice for the universal. Anidjar begins with the relation between religion and economy within the interplay of Judaism and Christianity, whereas Bonnafous-Boucher focuses on the development of political economy through a Foucaultian lens. Although highly distinct contributions, both share the insight that the economy is now the central theme of our power structures, and that economy, isolated from questions of morality or justice, must likewise play a decisive role within the structure of cosmopolitanism, or, at minimum, the political unity of peoples. For, national government long ago ceded to a promiscuous mix of governance, and religion to economy. This nexus enthrones governance as an economic rationale stripped of all other trappings, and inscribes any possible cosmopolitanism within a framework of an aggressive capitalism, a kind of economic theology, a kind of hegemony in which state boundaries are essentially liquefied. Capital, after all, knows no boundaries. (shrink)

Desde su origen en el siglo V a.C., la democracia como régimen político ha mantenido cierto núcleo normativo constante, la igualdad y la libertad entre sus miembros, y fuertes discontinuidades en la organización interna de sus instituciones. Las democracias modernas son igualmente deudoras de dos tradiciones: por un lado la de la soberanía popular, sea bajo la forma de una democracia directa o bajo la forma de una constitución mixta republicana; y, por otro lado, la de los derechos subjetivos innatos. (...) La democracia resolvió los dilemas que le presentaban los intereses contrapuestos por medio de dos recursos: el de la representación -que permitía incorporarlos en un cuerpo colegiado reducido dentro del cual era posible la deliberación y el acuerdo- y el de la elección universal de los representantes y mandatarios por períodos acotados. Este esquema institucional amenaza quebrarse bajo la tensión insostenible de las exigencias domésticas de cada nación, por una parte, y las potentes constricciones provenientes de una economía globalizada, por la otra. From its very beginning during the fifth century B.C. democracy, as a politi-cal regime, has maintained a constant normative nucleus; equality and freedom among its members. But it also presents notorious discontinuities in the institu-tional internal organization. Modern democracies are equally indebted to two traditions; on the one hand popular sovereignty, under the form of either direct democracy or republican mixed constitution, and innate subjective rights on the other. Democracy resolved the dilemmas that emerged from opposed interests through two ways: representation, which enables it to incorporate them in a reduced collegiate body, within which deliberation and consensus is possible, and also through the universal election of representatives and governors by pre-established periods of time. This institutional schema is dangerously falling apart due to domestic tensions within each nation, on the one hand, and the constriction coming from the globalized economy on the other. (shrink)

In the 1960s republic and republicanism hardly figured in political theory. Today they are prominent, if highly contested, topics in political thought in the English‐speaking world. While there may be many reasons for this, undoubtedly a particularly important factor was one of the periodic convulsions in the American search for identity. From the late 1960s onwards, American scholars launched a sustained criticism of the assumption that America was founded on the institutionalization of a complex of ideas identified broadly as individualistic (...) liberalism and began a long and fertile search for alternative roots, which were soon identified as republican. This endeavour on the part of American historians was quickly supplemented by a magisterial interpretation of the whole of Anglo‐American political culture in the early modern period as predominantly a development of the civic humanist republicanism hammered out in Renaissance Italy, a topic that was undergoing its own rapid development. The result was a rich historical panorama of the development of republican ideas and practices from the Renaissance to our own time: the Italian cities attempting to avoid princely rule by basing republican government on the virtues of an aristocracy; the Dutch provinces shoring up their independence from Iberian monarchy by developing that new and controversial government, republics based on commercial, not landed, wealth; the English Commonwealth which, though short‐lived, helped to secure the continuing influence of republican ideas and enabled people in the eighteenth century to see Britain's mixed constitution as that apparent paradox, a monarchical republic – and one based on representation; the American Revolution which, by renewing the idea of federation, refuted the traditional republican dogma that a republic could not exist in a large country and, in the process, made republicanism decisively anti‐aristocratic; the French Revolution which transformed so much of republican thought into a still continuing debate about democracy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Plato’s Second Republic: An Essay on the Laws by André LaksSusan Sauvé MeyerLAKS, André. Plato’s Second Republic: An Essay on the Laws. Princeton, N.J.: Princeton University Press, 2022. x + 278 pp. Cloth, $35.00When the unnamed Athenian of Plato’s Laws specifies the constitution and law code for the (fictional) city of Magnesia, he retreats from some of the more notorious principles that structure the ideal city in (...) the Republic, most notably the prohibition against private property and private families for the city’s rulers and the explicit mandate that the rulers be philosophers. Magnesia will be governed by its property-owning citizens in a constitutional regime where law is the supreme political authority. Both [End Page 355] retreats are marked by the Athenian as making Magnesia “second best” in relation to the ideal.One of Laks’s striking theses is that the ideal from which the Laws’s second-best city falls short is not simply that of the Republic. Within the Laws itself, he argues, the Athenian articulates a “legislative utopia” and a constitutional ideal that are only imperfectly realized in the city identified as “second.” The constitutional ideal is articulated in book 3 in the mandate that a constitution achieve a mean (meson) between democracy and monarchy, while the legislative ideal underwrites the mandate in book 4 that laws should have persuasive preludes.While the constitutional “mean” mandated in book 3 is often characterized as “the mixed constitution,” Laks argues that what is mandated is not a mixture of monarchical and democratic institutions, but rather a synthesis of democracy and monarchy, with each institution implementing both democratic and monarchical principles. Laks calls such a mean a “middle.” If the mandated constitutional “middle” were fully achieved, he claims, democratic equality would be synthesized with the inequality of monarchy and thereby transformed from arithmetical into proportional equality. Similarly, democratic freedom would be synthesized with submission to authority, and transformed from negative freedom from authority into the positive freedom of rationality. Laks proposes that the freedom to emerge from this “metamorphosis” is the “voluntary servitude to the laws” lauded in book 3. While he acknowledges that Plato nowhere identifies such servitude to law as freedom, Laks locates that conception on the horizon of the conceptual metamorphosis of freedom that he finds in the Laws.Neither synthesis—of equality or of freedom—is perfectly achieved in the city whose constitution and law code are specified in the Laws, according to Laks; this is the burden of his remark that the constitution of Magnesia is “a mixture (sit venia verbo) of a mix and a middle.” A residue of unmitigated arithmetical equality remains in the constitution specified in book 6 to the extent that it includes a paradigmatically democratic procedure, the lottery, among the otherwise meritocratic procedures for appointing citizens to public office. A residue of despotism remains in the law code of Magnesia to the extent that the persuasive preludes to its statutes employ the manipulative rhetoric of praise and blame rather than philosophical arguments that display the rational grounding of the law in divine reason.Both retreats from the ideal are necessitated, on Laks’s interpretation, by the imperfect rationality of human beings. Not every person can learn to appreciate the superiority of proportional to arithmetical equality, or the perfect rationality of the laws’ prescriptions. In a “legislative utopia” citizens will obey the law because they appreciate its rational grounding, but that ideal is not fully achievable in a community of human beings. However rational the laws’ prescriptions may be, citizens’ obedience must be secured by nonrational means as well—hence the Athenian’s characterization of the politeia of the Laws as a “tragedy” (817b). [End Page 356]Laks’s exposition of these (and other) themes over the course of the volume is cumulative rather than sequential, diffuse rather than regimented, and deliberately sensitive to the literary features of Plato’s text and the ways in which its message may be allusive, indirect, or equivocal. What emerges from Laks’s learned engagement with the text is an interpretation that is “suggested” (an oft used phrase in the volume) rather than mandated by... (shrink)

A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to (...) ascertain what, exactly, makes a constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions. (shrink)

This contribution analyses the ancient Greek notion of eunomia in the philosophical prose literature of the fourth century BC. While the term eunomia is often translated as ‘good government’ or ‘good order’, such vague translations fail to capture the specifics of eunomia, and thus part of the philosophical debate about constitutions is lost. Closer inspection reveals that within the fourth-century constitutional debate, eunomia entails two distinct aspects: the excellence of the laws and their durability. These two aspects are predicated of (...) various constitutions: the mixed constitution, of which Sparta and Crete are primary examples in the fourth century; the Athenian democracy as a paradigm of law-abidingness; and philosophical constitutions aiming at virtue. It is a hallmark of the last that such law codes start from marriage and childbirth and follow the course of human life. (shrink)