In lieu of an abstract, here is a brief excerpt of the content:Politics Is a Mushroom: Worldly Sources of Rule and Exception in Carl Schmitt and Walter BenjaminKam Shapiro (bio)Life is not a mushroom growing out of death.—Carl Schmitt, The Visibility of the ChurchTo isolate death from life, not leaving the one intimately woven in the other, and each one entering into the other’s midst—this is what one must never do.—Jean-Luc Nancy, L’intrus1Carl Schmitt’s theory of the exception was bound (...) up with a thoroughgoing critique of philosophies of immanence, materialism, and “atheism,” which he treated as interchangeable. In his early writings, he adopted the Christian perspective according to which postlapsarian nature cannot by itself yield a juridical order, or in his poetic phrase, “life is not a mushroom growing out of death.” Yet—in accord with Catholic doctrine—he also found sources of life, or law, in this world. While he repudiated theories of collective self-legislation, he embraced a popular sovereign empowered to impose form on a chaotic society. In Political Theology (1922), he compared the form-giving power of the sovereign to an act of divine intervention. Law, he argued, can only function in a lawful or “normal” situation that precedes formalization, and the sovereign “produces and guarantees the situation in its totality” [13]. In The Crisis of Parliamentary Democracy (1923) Schmitt retained his theological terms: “A scientific study of democracy must begin with a particular aspect that I have called political theology” [32]. In the modern age, democratic constituent power (pouvoir constituant) replaces the will of God as the transcendent source of a substantial order, namely democratic homogeneity. Democratic will-formation thereby becomes an act prior to its subject, or as Schmitt wrote, “[...] only political power, which should come from the people’s will, can form the people’s will in the first place” [Crisis 28]. A variety of democratic theorists dwell on the paradoxical character of democratic sovereignty, sometimes tracing it back to Rousseau’s well-known formulations [see esp. Connolly and Honig]. They highlight the gap between a transcendent (ideal or fictive) will in whose name political power acts, and the bounded, material consensus it forms, ostensibly rendering the latter vulnerable to challenge. As I argue, however, a closer look at Rousseau’s discussion of democratic founding in On the Social Contract reveals instead a dynamic relay between dispersed substantial or immanent sources of affiliation, on the one hand, and various agents and techniques of political power that draw on and combine them in a collective will, on the other, or what I call the virtual and the virtuosic.2 After briefly exploring this dynamic in Rousseau’s [End Page 121] On the Social Contract, I will highlight similar dynamics at work in Schmitt’s Weimar writings, examining three instances: the complexio oppositorum (1923), national myth (1923), and the polemical opposition of friend and enemy (1927), focusing especially on the first. Contrary to familiar readings of Schmitt’s metaphysical “exceptionalism,” I argue that for Schmitt, as for Rousseau, political power does not create a normative order from a vacuum, and the apparent transcendence of sovereign authority has a variety of worldly sources.3 Finally, I consider what I call “democratic virtuosity,” or virtuosity from below, focusing on Walter Benjamin’s repudiation of sovereign acts of lawmaking or law preserving in favor of ongoing collective habit-formation. As I argue, Benjamin returns spiritual force to the material world not only to shatter human authorities, but also to democratize creation.Rousseau—Anticipating the PeopleIn the Social Contract, Rousseau formulated the paradox of democratic founding to which so many, including Schmitt, would return. “In order for an emerging people to appreciate the healthy maxims of politics, and follow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be the result of the institution, would have to preside over the founding of the institution itself; and men would have to be prior to laws what they ought to become by means of laws” [Rousseau 69]. As Rousseau argues, a constitution can form a general will only if it commands the loyalty of the people, that is, if there is... (shrink)

One of the main themes of Bobbio’s writings was the relationship between law and politics. Yet an ambiguity runs through his writings on this point. He saw politics and law as intimately related, with the one entailed by the other. Yet, the tautologous relationship he saw as existing between the two posed a potential problem – what could be called the Hobbes challenge. For if politics is impossible without law, yet all law flows from politics, then we seem faced with (...) a dilemma of either a vicious circle or an infinite regress. Bobbio never really confronted this dilemma, although in a bid to escape the prospect of the Hobbesian lawless sovereign he gestured towards a natural law solution at odds with his legal positivism. Instead, this article suggests an alternative in precisely the non-sovereign account of politics Hobbes criticized, that of a republican democracy based on political equality rather than popular sovereignty. In this account, the rule of law can be reconciled with the rule of persons precisely because men must rule together as rulers and ruled in turn, rather than any one or group of them permanently ruling over the others. Law on this account results from a particular type of politics. (shrink)

In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as (...) ominous evidence of the rule of law's fragility in modern liberal democracy. (shrink)

New Proposals for New Questions Nuevas propuestas para nuevas cuestiones In six sections, the volume deals with different questions of political philosophy. The first section focuses on democratic theories, the second on conceptual debates, discussing topics such as collective rights, the terrorist phenomenon, Libertarianism and conceptions of freedom. In a third section on contemporary debates, perspectives on sovereignity and legitimacy as well as discourse theory versus political liberalism are discussed. The volume also features essays on democracy and law, and in (...) a section entitled oJudicial construction of democracyo papers on constitutional reviews by judges in the Netherlands as well as the construction of democracy in the context of Latin-American democracies. Finally, in the last section the volume deals with the European Constitutional Treatise, analysing the arguments and examining the legitimacy crisis and the main objections displayed against this treatise. Contents I. On Democratic theory / Teoria de la democracia: Eerik Lagerspetz: The Problem of the Common Good in Democratic Theory Sergiy Maksymov: The Kantian Project of the Law Governed Society and New Democracies II. Conceptual debates / Debates conceptuales: Martin Blanchard: Recognition and the Case of Indigenous Reparations: A Habermasian Critique of Habermas Bronik Matwijkiw: The failed Model of Terrorism Susumu Morimura: The Libertarian View of Human Nature Jonathan E. Soeharno: Freedom as Second Nature. Exploring the value of Hegel's concept of Autonomous Personality for Global institutional theory Hashimoto Tsutomu: On the Concept of Positive and Negative Liberty III. Contemporary debates / Debates contemporaneos: Terhi Kiiskinen: Sovereignty Revisited: On Inalienable Constitutional Power Luiz B. Leite Araujo: A Decade of Debate: Discourse Theory versus Political Liberalism IV. Democracy and law / Democracia y derecho: Kenneth E. Himma: Does it really mather whether a Judicial Decision is morally Legitimate? The practical implications of Judicial Illegitimacy in a otherwise Legitimate State Carl Lebeck: Commitments, Rules and the limits of Constitutionalism Oliver W. Lembcke: Exception Rules? Freedom and the Order in a State of Exception Bart van Klink: Does Necessity knows no Laws? Application of Law in a State of Exception Costanza Margiotta: Ideas and Values of the oLegalo State Jiri Priban: Constitution-Making. Morality and Legal Symbolism: on Identity, Temporality and Differentiation of the legal, political and moral Systems V. Judicial construction of democracy / Construccion judicial de la democracia: Maurice Adams: Judging the Constitution: the Third Way. Some reflections on the introduction of Constitutional Review by Judges in The Netherlands Larry Alexander: What is the Problem of Judicial Review? Roberto Corona Copado: Las reglas del juego democratico. La Suprema Corte de Justicia de Mexico en la solucion de controversias entre organos del poder politico desde 1995 Jose de J. Ibarra Cardenas: La construccion judicial de la Democracia en Iberoamerica VI. Deliberation on European constitutional norm / Deliberacion sobre la nueva constitucion europea: Olaf Tans: Deliberating European Constitucional Norms. An Analysis of arguments Carla M. Zoethout: The Court and the Charter or Who Guards the Court of Justice of the EU under the new Constitution?. (shrink)

This book intervenes in contemporary debates about the threat posed to democratic life by political emergencies. Must emergency necessarily enhance and centralize top-down forms of sovereignty? Those who oppose executive branch enhancement often turn instead to law, insisting on the sovereignty of the rule of law or demanding that law rather than force be used to resolve conflicts with enemies. But are these the only options? Or are there more democratic ways to respond to invocations of emergency politics? Looking (...) at how emergencies in the past and present have shaped the development of democracy, Bonnie Honig argues that democracies must resist emergency's pull to focus on life's necessities because these tend to privatize and isolate citizens rather than bring us together on behalf of hopeful futures. Emphasizing the connections between mere life and more life, emergence and emergency, Honig argues that emergencies call us to attend anew to a neglected paradox of democratic politics: that we need good citizens with aspirational ideals to make good politics while we need good politics to infuse citizens with idealism.Honig takes a broad approach to emergency, considering immigration politics, new rights claims, contemporary food politics and the infrastructure of consumption, and the limits of law during the Red Scare of the early twentieth century. Taking its bearings from Moses Mendelssohn, Franz Rosenzweig, and other Jewish thinkers, this is a major contribution to modern thought about the challenges and risks of democratic orientation and action in response to emergency. (shrink)

This essay examines the terms of the Judicial Oath sworn by the judges in the Athenian courts during the classical period. There is general agreement that the oath contained four basic clauses: to vote in accordance to the laws and decrees of the Athenian people, to vote about matters pertaining to the charge, to listen to both the accuser and defendant equally, and to vote or judge with one’s most fair judgment . Some scholars believe that the fourth clause gave (...) judges the right to vote according to their conscience and to ignore the law if they found it unjust. The first part of the essay shows that this clause gave judges the right to make decisions solely on the basis of their most just judgment only where the laws gave no clear guidance. It was a default clause invoked only twice in the extant orations; it was never used as justification to ignore the written laws. The second part addresses the view that the courts took political factors into account during trials. Although some trials involved leading politicians, the courts were bound by their oath to decide whether the defendant was guilty of the charge brought by the accuser. The only part of a trial where a defendant might mention his political achievements or his public largesse was at during the assessment of the penalty in a trial on a public charge. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Citizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789Patrick HenryCitizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789, by Daniel Gordon; viii & 270 pp. Princeton: Princeton University Press, 1994, $39.50.Under examination here is the early modern period in France from Louis XIV to the French Revolution when kings ruled absolutely and citizens were without sovereignty. Discarding the traditional image of the Enlightenment as the absolute (...) enemy of absolutism, Gordon, in this sense, follows Norbert Elias and Robert Darnton who treat the Enlightenment as part of an elitist and hierarchical establishment. More specifically, as his subtitle indicates, Gordon portrays the invention of a “nonpolitical polis” (p. 6), an ideological social space where, despite political inequality, citizens could practice social equality in a hierarchical régime. The rise of this “nondemocratic egalitarian ethos” (p. 7) brought with it a new cult of sociabilité, a term invented in the eighteenth century to describe the idealization of the private sphere and the practice of social equality.The first chapter, then, ties sociability not to democracy, as in the Habermasian model, but to the absolutism that stimulated it and coexisted with it. A series of five ideal types of sociability depict how men and women, members of the bourgeoisie and the aristocracy, came together—in commerce, public welfare, scientific academies, salons, cafés, public libraries, and various other social situations not protorevolutionary in character—to create a bond among equals [End Page 279] under the ancien régime. In this framework, progress and modernity are born during the absolute monarchy where sociability suggests conviviality rather than class warfare. Every major French novel of the eighteenth century supports Gordon’s refutation of De Toqueville’s surprising statement that “noblemen and bourgeois never met except by chance in private life “in prerevolutionary France” (p. 27).In chapters two and three, Gordon examines the nature of the rules of sociability found in courtesy literature and their functioning as the imagined basis of the newly invented idealized space called société. In addition to analyzing in great detail the nature and frequency of the vocabulary invented to define and describe sociabilité, Gordon discusses sociabilité in the context of natural law theory in Hobbes, Bossuet, and among others, Pufendorf, who wanted to refute Hobbes by showing that self-interest leads humans to establish stable social relations even before government orders them to do so. Holbach surfaces here too for having amalgamated the older language of politeness and the newer language of natural law. In Holbach, as in the Encyclopédie, sociability, based on egalitarian premises of natural law, is nonetheless fully compatible with the hierarchical regime. Among other things, this shows clearly that the philosophes never preached the French Revolution. Striving to eliminate the abuses of despotism and establish equality in private life was not tantamount to working for political equality and the abolition of all rank. In this same vein, Gordon paints the apolitical essence of the private sphere and, by a rigorous study of the seventeenth-century manuals of polite living, shows convincingly (this time against Elias who saw the court as a model of refined behavior) that the salon was indeed a world unto itself, independent of preexisting social hierarchies. Rejecting Paul Hazard’s conception of absolute rupture between seventeenth-century culture and eighteenth-century thought, Gordon destroys the facile dichotomy between seventeenth-century hierarchy and eighteenth-century equality and, once again, admirably depicts the compatibility of Enlightenment and absolutism.If chapters one to three underscore a certain continuity between the seventeenth and eighteenth centuries, chapters four and five explain important changes. It is not, for example, the mere preservation of the idea of sociable communication but rather its new use that is germane in understanding the Enlightenment. Now “conversation” and “civility” no longer had meaning only for an urban elite but had in fact become ideals in all philosophical endeavors including the writing of universal history. Sociable communication had become the defining characteristic of modern nations. In the fourth chapter, by analyzing in detail the works of Jean-Baptiste Suard, Gordon demonstrates the meaning that the writing of universal history in Scotland acquired within the French... (shrink)

This book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. Contrary to this conception, the authors defend a positive interpretation where the rule of law results from the strategic choices of relevant actors. Rule of (...) law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to law, does law rule. What distinguishes 'rule-of-law' as an institutional equilibrium from 'rule-by-law' is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest. (shrink)

First published in 1987. The legal and political writings of the German Social Democrats Kirchheimer and Neumann, from the period prior to the National Socialist seizure of power, are little known to English readers. This volume presents a selection of important essays from this period, which focus on the prospects for the constitutional realization of a social democratic order in the first German Republic - the Weimar Republic, created out of the collapse of the monarchy in 1918, and destroyed by (...) the National Socialists in 1933. Both Kirchheimer and Neumann were active as lawyers in the later 1920s and early 1930s, the latter especially having a close connection with trade union legislation and labour law. From their viewpoint as Social Democrats and lawyers they present incisive analyses of the problems confronted by the attempt to realize the ideal of a social Rechtsstaat in a political environment increasingly dominated by forces on left and right which saw constitutional order only as a means to seize power, and not as a legitimate form of order in itself. In these circumstances, political issues translated into constitutional issues, and thus could be analysed in terms of the aims and objectives of a given constitutional order. A substantial introduction by the volume's editor, Keith Tribe, presents the political and theoretical background to these essays, which range over questions of industrial democracy, political representation, parliamentary rule and the role of judicial review. These issues are once more on the political agenda of Western industrial democracies, and the analyses of Kirchheimer and Neumann have lost none of their force and relevance, despite the catastrophic 'failure' of Weimar democracy in 1933. (shrink)

We propose hereafter an analysis of the way in which the post-communism has determined the significance of justice and, in doing so, pretended to reorganize the possibility for a legitimate political community. Given that the public perception points out to a gap between the rule of law and justice, one should understand for what reasons. Does the rule of law have the resources for doing justice? Are the legal procedures enough? Or should we take into consideration the possibility (...) that the rule of law is unable to do justice? Subsequently, we identify and discuss three radicalizations: the issue of normativity, the rogue state and the heterogeneity between law and justice. Ultimately, the possibility of justice depends on a different way of thinking democracy. (shrink)

This paper addresses the problem of the strategies and theories of democratic participation in Nigeria that breed institutional marginality and bad governance due to shortfalls in pursuing the values of justice and empowerment as core democratic characteristics. The same democratic principles such as voting, parliament, constitution, judiciary, that are suggestive of gains such as responsible use, and peaceful transfer of power may not have translated fully into sociopolitical empowerment for responsibility and representation in evolving democratic practice in Nigeria due to (...) problems of agency and political ideology. Democratic theorizing and participation in Nigeria has defied orthodox presuppositions seen in the disrespect for basic rights and the disregard for the rule of law in democracy that allow for fair play within and among the elites and political grassroots. Thus this study investigates the Nigerian predicament as a model or case study, raising questions about the reasons for the systematic disempowerment of groups. (shrink)

In the modern age, the political secret has acquired a bad reputation. With modern democracy’s ideal of transparency, political secrecy is identified with political crime or corruption. The article argues that this repression of secrecy in modern democracies falls short of a substantial understanding of the structure and workings of political secrecy. By outlining a genealogy of political secrecy, it elucidates the logic as well as the blind spots of a current culture of secrecy. It focuses on two fundamental logics (...) of secrecy, deduced from the Latin terms ‘ arcanum’ and ‘ secretum’. Whereas the logic of arcanum regards secrecy as a legitimate dimension of government, a modern logic of secretum is marked by an inextricable dialectics between the withdrawal and communication of knowledge, between secrecy and publicity. Here, the secret is not so much a piece of withheld knowledge as a ‘secrecy effect’ that binds the realm of secrecy to the public sphere by a dialectics of permanent suspicion and scandal. Instead of falling into the trap of this ‘secrecy effect’ it is worth taking a closer look at the tradition of thought on the arcana imperii, from Tacitus to early modern doctrines of raison d’état to Carl Schmitt. What this tradition deals with is the functionality of secrecy and its complicated relation to the law. The arcana tradition elaborates the crucial point of secrecy: its potential, but also its profound ambivalence. Secrecy opens up a discretionary space of action exempt from the rule of law, and, according to Carl Schmitt, ignores the law so as to allow it to become effective. Secrecy serves to protect and stabilize the state, but at the same time it opens a space of exception from the rule of law that breeds violence, corruption and oppression. Instead of seeing secrecy as the opposite of a political culture of transparency, it is more productive to regard secrecy as transparency's complement – a counterpart, however, that is marked by the profound paradox of being both a consolidation of and a threat to democracy. (shrink)

Alessandro Ferrara’s argument in Sovereignty Across Generations takes shape within a broadly Rawlsian ‘political liberal’ framework of thought about moral underpinnings for a constitutional-democratic practice of politics. Where, exactly (I ask here), is the place within that thought for concern about occurrences in a country’s past of popular constituent power? If the country’s currently established constitutional regime is fully democratic (and is otherwise morally in order) by whatever operational measures you and I might think to apply, why should we or (...) anyone care about how or by whose authority the regime got set up and running in the first place? By Ferrara’s Rawls-inspired teaching in Sovereignty Across Generations, the answer to that question will come from a certain conception of political legitimacy. But then a potent objection comes from those who press the question of how to reconcile a democratic conception of legitimacy with a subjection of current (say) deliberative-majoritarian rule to antecedently imposed terms of constraint. Under Rawlsian and Ferrarian stimulus, I look into the possible relevance here of H.L.A. Hart’s proposition of a complementarity or fusion, in our concept of law, of an ‘internal’ with an ‘external’ perspective that those involved may adopt toward the coercive social practice in question. Underlying the Rawlsian constitutional proposition on legitimacy, I end by suggesting, is the thought that, in order for a person to live in freedom under law, that person will have to sustain simultaneously an internal attitude of bonding to their society’s own ongoing project of legality and an external attitude of critical judgemental of that project as reasonably and rationally acceptable to free and equal citizens in conditions of reasonable pluralism. (shrink)

In France there is a way of thinking about freedom that often impedes its realization. To understand this question first a fundamental contradiction of the tension between political rationalism and popular sovereignty is examined. The terms of this contradiction are presented along with the ways in which this tension manifested itself in France during the Revolution of the 19th Century. This is also shown by contrasting the French approach to producing the law-state with English liberalism which relies on a balance (...) of powers. The French case shows that there is a way, other than representative government, to think about protective rule: the establishment of a good, rational authority based on science. Key Words: democracy • France • law-state • liberalism • politics • political rationalism • popular sovereignty. (shrink)

How has the concept of democracy been understood, manifested, reimagined and represented through the ages? In a work that spans 2,500 years these fundamental questions are addressed by 66 experts, each contributing their overview of a theme applied to a period in history. With the help of a broad range of case material they illustrate the physical, social and cultural contexts of democracy in Western culture from antiquity to the present. Individual volume editors ensure the cohesion of the whole, and (...) to make it as easy as possible to use, chapter themes are identical across each of the volumes. Superbly illustrated, the full six-volume set combines to present the most comprehensive and authoritative survey available on democracy throughout history. The six volumes cover: 1 - Antiquity (500 BCE-565 CE); 2 - Medieval Age (565-1450); 3 - Renaissance (1450-1650); 4 - Age of Enlightenment (1650-1800); 5 - Age of Empire (1800-1920); 6 Modern Age (1920-present) The ten themes are: Sovereignty; Liberty and the Rule of Law; The 'Common Good'; Economic and Social Democracy; Religion and the Principles of Political Obligation; Citizenship and Gender; Ethnicity, Race and Nationalism; Democratic Crises, Revolutions and Civil Resistance; International Relations; Beyond the Polis. The page extent for the pack is approximately 2016pp. Each volume opens with Notes on Contributors and an Introduction and concludes with Notes, Bibliography, and an Index. The Cultural Histories Series A Cultural History of Democracy is part of The Cultural Histories Series. Titles are available both as printed hardcover sets for libraries needing just one subject or preferring a one-off purchase and tangible reference for their shelves, or as part of a fully-searchable digital library available to institutions by annual subscription or on perpetual access (see www.bloomsburyculturalhistory.com). (shrink)

The traditional conception construes human rights as moral rights all people have due to some basic feature or interests deemed intrinsically valuable. This comported well with the revival of the discourse of human rights in the wake of atrocities committed during WWII. It served as a useful referent for local struggles against foreign rule and domestic dictatorship in the 1980s. Since 1989, human rights discourse acquired a new function: the justification of sanctions, military invasions, and transformative occupation administrations by (...) outsiders, framed as enforcement of international law against violators. The traditional conception doesn't fit this new function, hence the efforts to counter-pose a "political" to the "traditional" approach. This essay analyzes two recent versions of the political conception, and argues for a third. The thesis is that sovereign equality and human rights are normative principles of our dualist international system and both are needed to construct a more just version of that system. (shrink)

The article is a critical examination of the crisis in the rule of law in the context of contemporary politics in the USA. It sorts out some examples of American national and foreign policy regarding the so called ‘cult of democracy’. The article is divided in two parts. The first part consists of the report, which concerns, respectively, official US government relationships to international law; the power of the Presidency; and the role of the Supreme Court. The second part (...) examines some philosophical implications of American policy, concerning the questions of democracy and the rule of law. (shrink)

In Politics III.10 and IV.4, Aristotle discusses the difference between governments that are regulated by the rule of law and those that are not. Although he concludes that the rule of law helps guard against arbitrary and injudicious government action, Aristotle is also sensitive to the fact that in a democracy it is essential for the people to remain sovereign over the law. His discussion is helpful for understanding, not only the tension between the 'rule of law' (...) and the 'rule of men', but also the complex role the rule of law plays in any modern democracy. (shrink)

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in (...) Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure. (shrink)

This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test - states of emergency. States of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive - in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with (...) the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law. The rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers. (shrink)

This chapter contains section titled: I II III.

The objective of this article is to introduce a new concept for grouping all countermajoritarian instruments which became the true casualties of polity design during the New Latin American Constitutionalism (NLAC). This theoretical endeavor, which has not been undertaken until now, will be discussed on the basis of the constitutional upheavals that occurred between 1999 and 2009 in Venezuela, Ecuador, and Bolivia. By addressing a specific theme of this experience, namely its implications for the relationship between democracy and countermajoritarian devices, (...) this article shows why an aggregating concept such as state ataraxy is needed. This concept fills the gap that hinders understanding of what has been institutionally dismantled in the course of these reforms. The article then challenges the claim that with the collapse of countermajoritarian institutions, democracy necessarily collapses. It concludes with a new assessment of the novelty that the NLAC may have brought concerning the tension between democracy and countermajoritarian institutions. The findings contribute to understand one of the most enduring concerns of state theory in general, the tension between democracy and the rule of law. (shrink)

For more than a decade now a profound rule-of-law crisis has gripped the European Union, and while the fight for the rule of law has topped not only the academic but also the judicial and political agenda, the results have been disappointingly meagre. This article argues that the main reason for that should be sought in a political strategic move of justifying the assaults on the rule of law by resorting to an “illiberal democracy.” This premeditated political (...) narrative shift has unleashed onto the political sphere and onto public discourse at large comprehensive doctrines which had hitherto been left dormant thanks to an overlapping consensus on the rule of law as a central building block of the political conception of justice à la Rawls. Once this overlapping consensus was broken, the rule of law itself lost its neutral character as a referee on the right among the many conceptions of the good, itself becoming part of the highly politicized power play for dominance among irreconcilable—liberal and illiberal—comprehensive doctrines. The overlapping consensus in the EU is thus broken, but there are no conceptual reasons inherent to the rule of law itself for which it could not be rebuilt in the future. (shrink)

" -- Seyla Benhabib, Harvard University "Winner, 1996 Elaine and David Spitz Book Prize for the best book on liberal and democratic theory, Conference for the Study of Political Thought.

The rule of law and the law of nature -- The rule of law in Athenian democracy and Plato's Laws -- Protagoras on democracy and the rule of law -- Sophistic criticisms of the rule of law -- What make a law good? -- Plato's Socrates and the law codes of Athens -- The role of law in the classification of democratic constitutions in Aristotle, Pol. IV.

The first segment starts with a definition of two dimensions of the concept of rule of law; related to the notion of sovereignty and as a concept to control arbitrariness on the part of the ruler. The segment proceeds to give a historical account of the notion and the different stages of its epistemological configuration, from the ancient Greek notion of Eunomia and its incompatibility with the popular rule to the current notion, where the rule of law (...) has become fused with democracy and human rights. The first segment also focuses on the relation between the concept of the rule of law and other principles, such as proportionality, neutrality, and effectiveness. The second segment of the paper analyses the phenomenon of juridification of the rule of law in international treaties and domestic constitutions. It pays particular attention to the role that constitutional accommodation plays in the process of rationalization of the rule of law as a prerequisite to its idealization and mystification. It analyses the reason why this principle is an essential feature of the constitutionalism despite the inner plurality of legal systems. The next aspect, analysed in the third segment of this paper, is the messianic use of the concept of the rule of law. The paper performs a critical definition of messianic, covering a theological perspective and the different theories and concepts that go hand in hand with the idea of the Messiah, such as the “coming”, prophetical and apocalyptical messianism, the phenomena of eschatology, expiation and redemption pictured in Judaism. The segment also covers the secular transplantation of the messianic thought. The last segment is a conclusion returning to the themes identified in the paper and summarises how the messianic thought is applied in the realm of the rule of law. (shrink)

자신의 저술에서 민주주의를 옹호하거나 민주주의자를 자처한 적이 전혀 없음에도 불구하고 루소의 정치철학이 현대 민주주의의 정치원칙를 제공했다는데는 아무도 이의를 제기하지 않는다. 그렇다면 그 정치철학의 어떤 요인이 루소를 현대 민주주의 확립에 있어 가장 영향력 있는 사상가로 꼽히게 만드는가? 본고에서 연구자들은 루소 사상과 민주주의 연관성, 그리고 일반의지론에 대한 기존 연구들의 성과와 한계를 살펴본 후, 루소가 제시하는 “정치적 권리의 올바른 원칙”으로서의 “일반의지” 개념이 고전고대의 정치사상, 특히 아리스토텔레스의 『정치학』을 넘어 민주주의 정치철학의 현대적 전회에 어떤 기여를 하였는지 논한다.BR공화주의 관점에서 볼 때 아리스토텔레스와 루소는 연속성을 가졌다고 생각되어 (...) 왔다. 하지만 본 연구자들은 아리스토텔레스의 『정치학』과 루소의 『사회계약론』을 목차별로 비교·분석한 결과, “민주정(民主政)”에 관해 루소는 그 개념, 내용 및 역사적 평가를 아리스토텔레스와 거의 공유했음에도 불구하고, “일반의지”개념을 축으로 하여, 국가통치의 기조를 덕치주의에서 법치주의 또는 입헌주의로, 통치의 인적 기반을 ‘폴리스적 동물’에서, ‘자유롭고 평등한 인간으로서 주권자 시민’으로 혁명적으로 전형(轉形)하여, 태생적·지연적 인연이 아니라, 주권자 시민들이 이성적으로 동의한 정치적 권리에 근거하여 정립한 헌법적 원칙들에 의거하여 공화국 건국과 통치의 프로젝트를 제시했다는 특이점을 밝혀냈다. 바로 이 헌법기반의 공화국이야말로 현대적 국민국가의 정상적 통치모델로 간주되는 입헌민주주의에 다름 아니며, 결과적으로 루소는, ‘주민’ 또는 ‘인민’의 자연적 필요에 따라 자연발생적으로 성립되는 폴리스의 생태를 논한 현대 이전의 전형적 국가통치론으로서 아리스토텔레스적 개념의 정치학에서 벗어나, 자신의 이성적 국가능력을 자각하여 건국의 협약 당사자로 나선 ‘주권자 시민’이 국가 통치의 담당자라는 입론을 바탕으로 탈(脫)아리스토텔레스적 현대 정치학을 정립하였다. (shrink)

In Between Facts and Norms, Jürgen Habermas works out the legal and political implications of his Theory of Communicative Action (1981), bringing to fruition the project announced with his publication of The Structural Transformation of the Public Sphere in 1962. This new work is a major contribution to recent debates on the rule of law and the possibilities of democracy in postindustrial societies, but it is much more. The introduction by William Rehg succinctly captures the special nature of the (...) work, noting that it offers a sweeping, sociologically informed conceptualization of law and basic rights, a normative account of the rule of law and the constitutional state, an attempt to bridge normative and empirical approaches to democracy, and an account of the social context required for democracy. Finally, the work frames and caps these arguments with a bold proposal for a new paradigm of law that goes beyond the dichotomies that have afflicted modern political theory from its inception and that still underlie current controversies between so-called liberals and civic republicans. The book includes a postscript written in 1994, which restates the argument in light of its initial reception, and two appendixes, which cover key developments that preceded the book. Habermas himself was actively involved in the translation, adapting the text as necessary to make it more accessible to English-speaking readers. (shrink)

Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse for alleged abuses of power as a universal and enduring facet of the (...) rule of law, his conception of recourse turns out to resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system. Yet such a system both promises to promote and threatens to undermine each of the three principles that Postema claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. And if the rule of law can’t be instantiated unequivocally in any particular set of institutions, then perhaps we should be more willing to treat the ideal as a subject of politics rather than just a constraint on it. (shrink)

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

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits by Rocco PezzimentiAdam CarringtonPEZZIMENTI, Rocco. The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits. Herefordshire, U.K.: Gracewing, 2021. 207 pp. Paper, $22.00Rocco Pezzimenti's The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits is an ambitious book. A professor at LUMSA, Rome, he seeks to consider anew the (...) nature, structure, and purposes of democracy as well as the society in which this form of government best operates. He sees this task as needed because, he argues, contemporary democracies face new challenges that threaten their legitimacy and their capacity to fulfill their just and needed purposes. He notes that democracies are not "infallible," either morally or in their ability to maintain themselves, and thus need conscious understanding and prudent maintenance.The subtitle establishes the three main themes by which he diagnoses and addresses democracy's trials. Pezzimenti orders his argument most through the lens of limits. While present in all spheres and regimes, popular government in particular partakes of limitation, since "mutual limitation... is the basis of our democracies." Limits for Pezzimenti stem from distinct elements of a society competing for finite power ordered toward action. Many of our political and social problems, both past and present, stem from denying limitations or misordering their interactions. The presentism that tempts democracy must be tempered by the limits the past places on it. Institutions are one helpful means for this interaction, which helps guard against a "utopianism which wants to solve everything immediately, deceiving itself that it can perform miracles." Law itself involves limits, placing boundaries on the action of private persons and public entities. So does pluralism and "polyarchy," whereby we recognize the limits particular persons and communities place on politics' universalism as well as how politics restrains these other elements from descending into intolerant, selfish particularity. Important to this point is Pezzimenti's discussion of sovereignty, which must not be reduced to a mere question of who rules and where but to the question of rightly pursuing a common good respectful of individual rights. True freedom inheres in the proper cohering of these elements.Pezzimenti turns to the distribution of powers within a community as part of the discussion of limits. He argues that "the traditional tripartition, theorized by Polybius and on to Montesquieu, today appears certainly insufficient." To define all political power as legislative, executive, and judicial, then to distribute them among competing institutions, does not fully account for the contemporary political landscape. Moreover, those [End Page 361] "classic" powers themselves need to be rethought to meet today's concerns. Legislative power must account for claims that its representative systems either are oligarchic in practice or lead to crass populism, and that they fail to account for group identities as opposed to class ones. The executive must evolve in pursuit of a better "efficiency and efficacy"—including speed of response to problems—that requires a better relationship with the modern bureaucracy, which he describes as "the other face of the executive." The judicial power must focus on a renewed impartiality, especially in relation to the additional powers Pezzimenti thinks need to be named and then tamed. The new powers that he says we must recognize include the press, mass media, technology, and more. Here, Pezzimenti categorizes as powers the functions of government (making, enforcing, and adjudication of the law) alongside avenues or means for exercising political influence, if not outright control. These other forces have distorted democracy's needed limits partly because law and custom have not adequately accounted for their evolving role in power.These issues lead to the last challenge, that of representation. The problem of representation threatens democracy's legitimacy, since this form of government is grounded more than any other in the idea that "power must be the expression of the community." Yet even here the issue of limits orders the discussion. The unaccounted-for new powers described above remove too many limitations either on crass populism or encroaching rule of elites. The former can abuse individual rights, which he says "are not negotiable," based on oppressive whims... (shrink)

We can characterise modern democracies of the Western type as Hobbesian democracies.1 In a modern democracy the State is a political Sovereign of the Hobbesian kind, enjoying a constitutional authority that for all practical purposes is absolute, having the potential of reaching every nook and cranny of its subjects’ life and work. Its authority is restrained only by the requirement of respect for certain formalities and procedures, and the lingering memory of something called the rule of law.2 Hobbesian (...) democracy’s peculiar characteristic, of course, is that at least some of the people to whom the sovereign power of the State is entrusted are elected by secret ballot under a rule of universal suffrage. Winston Churchill said that ‘Democracy is the worst form of government, except for all the others’.3 He had a point: democracy is the worst form of totalitarian government except for all the others. However, why should we put up with any government that not only has virtually unlimited or absolute constitutional powers (as in an absolutist regime) but also uses them to regulate and tax everything and everybody within the territory under its control (as in a totalitarian regime4)? As we shall see, there are good reasons for saying that Hobbesian democracy is among the worst forms of government.. (shrink)

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

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged between (...) constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. (shrink)

According to the usual interpretation, Plato's last dialogue, the Laws, indicates a substantial change in his political thought, namely the defence of the Rule of Law as the best possible political order. Therefore, he has been considered the first representative of this central concept for the modern State. The present paper points to the radical differences between Plato'sconception and the contemporary understanding of the Rule of Law. It also explains his interpretation of the function of the law in (...) a well-ordered State and to the opposition of his view to ourcontemporary doctrine of democracy. (shrink)

Blandine Kriegel, at one time a collaborator with Michel Foucault, is one of France's foremost political theorists. This translation of her celebrated work L'Etat et les esclaves makes available for English-speaking readers her impassioned defense of the state. Published in France in 1979 and republished in 1989, this work challenged not only the anti-statism of the 1960s but also generations of romanticism in politics that, in Kriegel's view, inadvertently threatened the cause of liberty by refusing to distinguish between the despotic (...) and the lawful state. In a work that addresses the urgent concerns of Europe and the contemporary world as a whole, Kriegel examines the background of modern liberal democracy in the late seventeenth and eighteenth centuries and argues cogently for the future of constitutional social-democracy. She maintains, among other positions, that European liberal democracies would have been impossible without the political basis provided by the lawful state first developed by monarchies. She also shows that early modern centralized states became liberal insofar as they developed a centralized legal system, rather than a centralized administration. In developing these ideas, she presents a picture of the state as a major force for human liberty. (shrink)

Political theorist Jeremy Waldron makes a bracing case against identifying rule of law with predictability. Seeing the rule of law as just one value to which democracies aspire, he embraces thoughtfulness rather than rote rule-following, flexibility even at the cost of vagueness, and emphasizing procedure and argument over predictable outcomes.

We live in a time of turbulent change when many of the frameworks that have characterized our societies over the last few centuries – such as the international order of sovereign nation-states – are being called into question. In this new volume of essays and interviews, Habermas focuses his attention on these processes of change and provides some of the resources needed to understand them. What kind of international order should we seek to create in our contemporary global age? How (...) should we understand the political project of Europe and how can the democratic deficit of the EU be overcome? How should we understand the relation between democracy as popular sovereignty, which has become the defining principle of political legitimacy in the modern world, and the idea of basic human rights embodied in the rule of law? Habermas brings his formidable powers of analysis and his distinctive theoretical perspective to bear on these and other key questions of the modern age. His analysis is shaped throughout by his commitment to informed public debate and his powerful advocacy of a postnational renewal of the project of constitutional democracy. _Time of Transitions_ will be essential reading for all students and scholars of sociology and politics, and it will be of interest to anyone concerned with the key social and political questions of our time. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Miracle of MetaphorRethinking the State of Exception with Rosenzweig and SchmittBonnie Honig (bio)For the word is mere inception until it finds reception in an ear and response in a mouth.—Franz Rosenzweig, The Star of RedemptionThe legal anthropologist Carol Greenhouse opens her book on time, A Moment’s Notice, with a story recorded by Goethe, who, when traveling through Italy, observed a trial and took note of its peculiar timekeeping (...) practices. A man seated at a desk held in his hand a glass sand bottle, a timepiece. It was not immediately clear what his purpose was. But Goethe soon noticed that as the prosecutor spoke the man kept the bottle lying on its side, its sands inert, and whenever the defense began to speak the man would turn the bottle upright and restart its sand flow. When the state spoke, time stopped. The defense, however, was subject to time.The story accords well with the views of state sovereignty propounded by Carl Schmitt, who identifies sovereignty as such with the power to legally suspend law for a time by declaring a state of exception. For Schmitt, as for Giorgio Agamben, who works in his wake, the state of exception is that paradoxical situation in which the law is legally suspended by sovereign power. The ensuing condition is one in which we—or, rather, sovereign powers—are neither subject to law nor free of it but rather both, since the state of exception is itself a legal condition of alegality. Grounded in paradox—the legal suspension of law—and seeming well positioned to explain elements of the current political landscape that liberal and deliberative democratic theorists only criticize, Schmitt’s “state of exception,” I think it is fair to say, has captured the imagination of contemporary political theory.I seek to loosen its hold on our imagination by pluralizing the particular political theology on which Schmitt’s account is based and from which it draws sustenance. And I do so with the intent of highlighting the dependence of the so-called state of exception upon democratic energies and its vulnerability, therefore, to democratic action and resistance.I begin by devoting sustained attention to Schmitt’s metaphor for the state of exception—the miracle, noting that we may accept his metaphorization and yet be drawn by it to very different conclusions. Alternative conceptions of miracle, as we shall see, point not to singular sovereign ruptural power but rather to receptivity, popular power, and the importance of orientation in everyday life to divinity or sovereignty. For this alternative, I turn to Franz Rosenzweig’s theology. Another implication of the work begun here is to lay the groundwork for questioning contemporary identifications of action with event and politics with singularity. I ask whether the metaphor of miracle, normally taken to mark extraordinary, ruptural, or inaugurative politics (as, for example, by Hannah Arendt), might not license instead a turn to the ordinary, away from rupture to the everyday, from transcendence to immanence (though, as William Connolly points out, the immanent can also be ruptural [Pluralism] and, as Eric Santner points out, the rupture sought by Rosenzweig’s new thinking is one that would return us to a different ordinary [On the [End Page 78] Psychotheology of Everyday Life and “Miracles Happen”]). Motivating this exploration is an intuition: that contemporary political theory’s debates about whether political action is best seen as ordinary or extraordinary, ruptural or rule-governed, may be a reiteration of earlier debates in political theology about the status of the extraordinary—god and miracle or divine agency—in the ordinary human world. Mindful of that reiteration, and with the help of Rosenzweig’s “new theology,” we may rechart our course and see opportunities to rethink emergency politics in the state of exception in more democratic terms.A Secret Conversation?In Political Theology, Carl Schmitt, the soon-to-be-lapsed Catholic legal thinker who would later become jurist to the Nazi party in 1930s Germany, claimed that all significant political concepts are reinhabitations of theological concepts and should be treated as such. In The Enemy, an intellectual biography of Schmitt, Gopal Balakrishnan points out this is an overstatement... (shrink)

This chapter examines the nature of legislative deliberation and the political sources of legislative majorities as dominant themes of American constitutional thinking. Drawing on James Madison's insights based on his memorandum ‘Vices of the Political System of the U. States’, it considers how the American conception of the rule of law developed amid the republican innovations of the late eighteenth century. It looks at the constitutional crisis of the late 1780s and the underlying aspects of governance in the colonies-becoming-commonwealths (...) of Anglophone North America, with reference to Madison's arguments regarding the ‘impotence of the laws of the states’ and ‘perspicuity’ in the realms of law and politics. It also discusses Madison's innovative approach to republican constitutionalism as well as his conception of the effect of popular opinion and interest on the pursuit of public good and private rights. (shrink)

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to (...) ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

In his essay ‘Critique of Violence’, Walter Benjamin subjects violence to a critique in order to establish the criterion for violence itself as a principle. His starting point is the distinction between law-positing and law-preserving violence. However, these are for him inseparable and subjected to the law of historical change: the history of the law is nothing but the dialectical rising and falling of legal orders. Benjamin’s analysis of legal violence and his criticism of parliamentary democracies, this article advances, should (...) be related to the critical analysis of the possibilities for alternative politics in contemporary democratic rule of law states, as those advanced by Bernard Noël, Philippe Lacoue-Labarthe, Jean-Luc Nancy and Jacques Rancière. For Benjamin, it is only law-destroying divine violence, whose principle is justice, not power, that is able to break this circle and open up a new era. Divine violence is, however, not only a provocative but also an extremely problematic, even dangerous, concept, as Jacques Derrida, among others, has claimed. This article considers, therefore, whether the concept of divine violence has any real political relevance in the contemporary era. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 5, Page 655-673, June 2022. The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the (...) rule of law is simultaneously before, after, concurrent and synonymous with democracy: It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic (...) institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation. (shrink)

The article aims to assess Hobbes’ methodological legacy. After a brief review of different interpretations of Hobbes relevant to the subject, I center the discussion on the reading advanced by Norberto Bobbio and the notion of three “different forms and levels of rationality”: First, Hobbes’ dichotomy-based reasoning that radically contended the Aristotelian tradition, as well as biblical hermeneutics used by medieval theologians. Second, individualism as a method for collective decision making, one that led to socalled “game theory” and moral individualism (...) (quite significant in contemporary political philosophy). Finally, the rationality of political power that imposes on Sovereignty binding rules for gaining and maintaining power.After the discussion of the three different forms and levels of rationality, the article concludes that Thomas Hobbes, instead of being primarilyre- ferred to as an advocate of autocratic regimes, should be considered, at the very beginning of the long history of rule of law, as one of the key authors of modern constitutionalism and democracy.Resumen:Después de un rápido recorrido sobre las múltiples interpretaciones del pensamiento hobbesiano, el ensayo retoma y desarrolla la lectura que de Hobbes propuso Norberto Bobbio. Con base en esta lectura, se busca evaluar el legado metodológico de Hobbes, el cual se despliega a través de distintos niveles de racionalidad: en primer lugar, el razonamiento basado en dicotomías, el cual desafió de manera contundente la tradición aristotélica, la labor de los historiadores antiguos y la hermenéutica bíblica de los teólogos medievales. En segundo lugar, el individualismo como método para tomar decisiones colectivas, lo que abrió la puerta a la así llamada “teoría de juegos” y al individualismo moral tan notable en la filosofía política contemporánea. Y finalmente, la racionalidad del poder político, que lógicamente impone sobre la soberanía ciertas reglas vinculantes para obtener y mantener el poder.En conjunto, con el análisis de las distintas formas y niveles de racionalidad se pretende respaldar la idea de que Hobbes —antes de ser identificado como un defensor de regímenes autocráticos— puede ser considerado como un autor clave para la democracia y el constitucionalismo moderno, colocado en el justo inicio de la larga historia del Estado de derecho. (shrink)

Vietnam is implementing global socio-economic integration, so the law must also be renovated to meet the requirements of international integration. Because the law is attached to the country's institutions, it shows the consistency in Vietnam's politics, economy, and diplomacy. In the world, the rule of law is a typical value that humanity aims for because it upholds the law, expressing our nation's aspiration for a democratic and equal society. Therefore, Vietnam has built a socialist rule of law. To (...) achieve this, Vietnam must ensure the free power of its citizens, promote the democracy of the state, and ensure that power belongs to the people. The paper uses a materialist dialectical method to examine the building of civic consciousness that promotes the perfection of Vietnam's current socialist rule of law. At the same time, the article also uses analytical methods and synthetic methods to clarify the sense of citizenship in the Vietnamese state, Vietnam's political institutions, and the development of the socialist rule of law is correct. (shrink)