In The Culture of Control Garland describes the ‘policy predicament’ of late modern society as involving the normality of high crime rates and the acknowledged limitations of the criminal justice system. This combination has triggered a contradictory range of policy responses that Garland describes as adaptive and non‐adaptive, with the non‐adaptive responses characterised as ‘denial’ and ‘acting out’. Garland’s invocation of these Freudian constructs invites a more fully developed psychoanalytic reading of the contemporary landscape of penal policy. Drawing on the (...) writings of Jung and Freud as well as more recent psychoanalytic interpretations of punishment and punitiveness, we aim in this paper to put the Culture of Control ‘on the couch’. That is, we try to draw out some of the psychoanalytic themes that Garland so tantalisingly dangles before us, and begin to flesh out the implications of a full‐fledged psychoanalytic interpretation of Garland’s argument. (shrink)

ABSTRACTIt is often held that disagreement over non-normative facts is less significant to the project of public justification than disagreement over relevant moral norms. But this dismissal of non-normative factual disagreement is unjustified—an ad hoc attempt to save the ideal of public justification from the endemic actual disagreement that threatens it. Disagreement over norms is relevant to political legitimacy; so, too, is disagreement over facts. I draw two implications from this point. First, inasmuch as accounts of public justification typically involve (...) a unanimity condition, public justification should not be thought a desideratum of political legitimacy. Second, virtuous political praxis will often involve enforcing legislation in spite of unresolved non-normative factual disagreement. That is, with respect to legitimacy, there is nothing morally amiss about such legislation. Clearly these last claims presuppose some basis for legitimacy other than agreement; I will only gesture at what this might be. Assuming that much actual legislation is indeed legitimate, though—in spite of extant normative and non-normative disagreement—I go so far as concluding that such a basis, whatever it is, must exist. (shrink)

Whether institutions and not just individual doctors have a right to not participate in medical assistance in dying (MAID) is controversial, but there is a tendency to frame the issue of institutional non‐participation in a particular way. Conscience is central to this framing. Non‐participating health centres are assumed to be religious and full participation is expected unless a centre objects on conscience grounds. In this paper we seek to reframe the issue. Institutional non‐participation is plausibly not primarily, let alone exclusively, (...) about conscience. We seek to reframe the issue by making two main points. First, institutional non‐participation is primarily a matter of institutional self‐governance. We suggest that institutions have a natural right of self‐governance which, in the case of health centres such as hospitals or hospices, includes the right to choose whether or not to offer MAID. Second, there are various legitimate reasons unrelated to conscience for which a health centre might not offer MAID. These range from considerations such as institutional capacity and expertise to a potential contradiction with palliative care and a concern to not conflate palliative care and MAID in public consciousness. It is a mistake to frame the conversation simply in terms of conscience‐based opposition to MAID or full participation. Our goal is to open up new space in the conversation, for reasons unrelated to conscience as well as for non‐religious health centres who might nonetheless have legitimate grounds for not participating in MAID. (shrink)

In recent years, political legitimacy as a concept distinct from full justice has received much attention. Yet in addition to querying the specific conditions legitimacy requires, there is a more general question: What is legitimacy even about? How ought we identify and conceptualize these conditions? According to the regnant justificatory liberal (JL) approach, legitimate legal coercion is based on reasons all reasonable persons can accept and JL is explicated in terms of a hypothetical procedure. Alas, Part I explains why JL (...) is inadequate. First, I argue that it de-legitimizes all coercion. Second, it undercuts the proposition that there are certain basic rights which must be protected for legitimacy. Third, I suggest that JL structurally involves paternalism. Where should theorists turn? My perhaps surprising proposal is that they turn to the Christian Reformed (CR) tradition of social thought. As I take it, this tradition is composed of such figures as Augustine and Calvin, Abraham Kuyper and Herman Dooyeweerd, and, more recently, Francis Schaeffer. It has long theorized such issues as church-state separation and permissible coercion, and is replete with conceptual resources. Thus, Part II reconstructs an alternative legitimacy framework out of these resources. The central CR insight is this: legitimacy is a function of preventing basic wrongs. Legal coercion is only necessary "by reason of sin". I develop this insight in terms of three ideas. First, those wrongs which must prevented as conditions of legitimacy are objective wrongs, obtaining universally regardless of consent. Second, they presuppose some view of basic teleology. A teleological view is needed to elaborate contentful basic rights non-arbitrarily, but only a basic teleological view insofar as legitimacy is distinct from full justice. Third, I suggest these wrongs are fruitfully understood as constituting an exogenous standard, one that is neither the product of actual nor hypothetical self-legislation. Part III brings JL and CR legitimacy into dialogue. Understanding legitimacy in terms of objective, teleological, and exogenous wrongs, respectively, helps us avoid each of the unacceptable consequences of JL covered in Part I. Legitimacy is better conceptualized in CR terms; preventing such wrongs is what legitimacy is about. (shrink)

This book addresses a substantive normative issue of contemporary political theory, the issue of political legitimacy, critiquing the mainstream approach of justificatory liberalism and offering an alternative reconstructed from neo-Calvinist social thought, a rich source of insights that might be applied to other issues within political theory.

This book addresses a substantive normative issue of contemporary political theory, the issue of political legitimacy, critiquing the mainstream approach of justificatory liberalism and offering an alternative reconstructed from neo-Calvinist social thought, a rich source of insights that might be applied to other issues within political theory.

According to justificatory liberalism legal coercion is legitimate only when exercised for reasons that all reasonable persons can accept. That is, laws are legitimate only if they satisfy JL’s unanimity condition. This principle entails that if no law meets the unanimity condition, then no law is legitimate. However, given the diversity of persons who meet JL’s own twofold criteria of ‘reasonable’ – commitment to fair cooperation and recognition of reasonable pluralism – no law would be supported by all reasonable persons (...) in JL’s thought experiment, let alone in the real world. I illustrate this diversity of qualified views with an objector inspired by Michael Bakunin, whose revolutionary anarchist views take the state to threaten more than protect equality and pluralism. Therefore, JL would prohibit any use of legal coercion. Nothing would be justified by JL. This result clearly conflicts with commonsense, which recognizes many instances of legal coercion as legitimate even amidst disagreement, and calls into question JL’s plausibility. (shrink)

Ever since medical assistance in dying (MAID) became legal in Canada in 2016, controversy has enveloped the refusal by many faith‐based institutions to allow this service on their premises. In a recent article in this journal, Philip and Joshua Shadd have proposed ‘changing the conversation’ on this issue, reframing it as an exercise not of conscience but of an institutional right of self‐governance. This reframing, they claim, will serve to show how health‐care institutions may be justified in refusing to (...) provide MAID on moral or religious grounds. I argue that it will not make it easier to justify institutional refusal, and is likely to make it harder. (shrink)