Focusing on the case of Colombia, this article sets out a sociological examination of constitutions marked by strong, activist judiciaries, by entrenched systems of human rights protection, and by emphatic implementation of global human rights law. Contra standard critiques of this constitutional model, it argues that such constitutions need to be seen as creating a new pattern of democracy, which is often distinctively adapted to structures in societies in which the typical patterns of legitimation and subject formation required for democratic (...) government were obstructed. In polities with such constitutions, legal institutions and norm setters have at times assumed the status offunctional equivalentsfor more typical democratically mandated actors and institutions. In such polities, further, global law assumes essential importance as it creates new sources of normative authorization for legislation and stimulates new lines of articulation between government and society. The article concludes that analysis of such polities, exemplified by Colombia, shows that the common categories of democratic-constitutional analysis are no longer always adequate for understanding current tendencies in democratic formation, and they can easily undermine democracy itself. (shrink)

A prevailing understanding of realism, chiefly among its critics, casts realists as those who seek a ‘distinctively political normativity’, where this is interpreted as meaning nonmoral in kind. Moralists, on this account, are those who reject this and believe that political normativity remains moral. Critics have then focused much of their attention on demonstrating that the search for a nonmoral political normativity is doomed to fail which, if right, would then seem to fatally undermine the realist endeavour. This paper makes (...) the case that casting the difference between realism and moralism in these terms is a mistake, one which overlooks the substantial body of realist work which is clear that it has no such aspirations to develop a nonmoral political normativity. The hope is that in drawing attention to this mistake a line can be drawn under these unhelpful debates, and we can move on to more fruitful constructive and critical discussions between realists and their critics. (shrink)

This article articulates a neo-pragmatist theory of human rights by drawing and expanding upon the American classical pragmatism of G.H. Mead. It characterizes this neo-pragmatist theory of rights by its anti-foundationalist, relational, fictive, and constitutive nature, and begins by providing a reconstruction of Mead’s social pragmatist approach to rights, a contribution systematically ignored by contemporary sociologists of rights. Next, it details the cost of this disciplinary oblivion by examining how much neo-pragmatism, critical theory, and legal consciousness studies have meanwhile gained (...) by engaging with Mead’s work on rights. Finally, it discusses the contributions of this historical-theoretical exercise to the rapidly growing sociology of rights, and shows that by supplementing the neo-Meadian approach with a recent interpretation of Hobbes’s fictional theory of politics, there appear to be substantive gains in the empirical study of the origins, consequences, meaning, and denial of rights. (shrink)

This brief comment responds to some of the issues raised by Daniel Weinstock’s paper on the application of the republican ideal to public health. It considers the application outside of that specific context of both the problem Weinstock identifies and the solution he proposes. It queries, with reference to the different sorts of relationships of domination which exist, whether a republican approach to public health might not be better to seek to begin from private relationships of domination and to define (...) its scope with reference to such relationships. (shrink)

Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a (...) latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy. (shrink)

Should the EU be a federal union or an intergovernmental forum? Recently, demoicrats have been arguing that there exists a third alternative. The EU should be conceived as a demoicracy, namely a ‘Union of peoples who govern together, but not as one’. The demoi of Europe recognise that they affect one another’s democratic health, and hence establish a union to guarantee their freedom qua demoi – which most demoicrats cash out as non-domination. This is more than intergovernmentalism, because the demoi (...) govern together on these matters. However, if the union aims at protecting the freedom of the different European demoi, it cannot do so by replacing them with a ‘superdemos’, as federalists want. This paper argues that demoicracy does possess distinctive normative features; it claims, however, that an institutional choice between intergovernmentalism and federalism is necessary. Depending on how we interpret what the non-domination of demoi requires, demoicracy will either ground a specific way of practicing intergovernmentalism or a specific form of federalism. It cannot, however, ground an institutional model which is genuinely alternative to both. (shrink)

The paper offers five desiderata on a realist normative theory of politics: that it should avoid moralism, deontologism, transcendentalism, utopianism, and vanguardism. These desiderata argue for a theory that begins from values rooted in a people’s experience; that avoids prescribing a collective deontological constraint; that makes the comparison of imperfect regimes possible; that takes feasibility and sustainability into account; and that makes room for the claims of democracy. The paper argues, in the course of exploring the desiderata, that a neo-republican (...) philosophy of government does pretty well in satisfying them. (shrink)

For many years, fundamental rights were primarily protected in the European Union (EU) legal order in a negative way; EU institutions and Member States should not infringe fundamental rights when acting within the scope of EU law. However, since the Treaties of Amsterdam and Lisbon, the EU has gained greater competences to develop fundamental rights standards, and new mechanisms for the protection of these standards have emerged. Although these new instruments enhance the mandate of the EU regarding fundamental rights protection, (...) they also trigger a number of important questions. They are capable of calling into question, to an unprecedented extent, sensitive domestic policy areas through a rights-based process of Europeanization. Furthermore, the EU regime for the protection of fundamental rights is increasingly difficult to contain within the limits of the traditional principle of attributed competences that was initially designed to circumscribe the process of European integration. Both types of questioning trigger significant resistances at the EU as well as national level. (shrink)

Courts play a key role in deciding on public health controversies, but the legitimacy of judicial intervention remains highly controversial. In this article I suggest that we need to carefully distinguish between different reasons for persistent disagreement in the domain of public health. Adjudicating between public health controversies rooted in factual disagreements allows us to investigate more closely the epistemic capacities of the judicial process. While the critics typically point out the lack of appropriate expertise of judges—in particular with respect (...) to health and public health—we should not move too fast in inferring from this a generalized competence problem. This article offers four reasons for vindicating the importance of judicial intervention in factual disagreements: the relative independence of judges from the political establishment, the judicial commitment to evidence, the specific nature of judicial reasoning and an additional voice for the people in the policy-making process. (shrink)

Are the rights, duties, and virtues of citizenship grounded exclusively in considerations of justice, or do some or all of them have other sources? This question is addressed by distinguishing three different accounts of the justification of these rights, duties, and virtues, namely, the justice account, the common-good account, and the equal-membership account. The common-good account is rejected on the grounds that it provides an implausible way of understanding what it is to act as a citizen. It is then argued (...) that the justice account and the equal-membership account provide complementary perspectives that differ in terms of the scope of the duties they ground: the latter offers an analysis of the duties that citizens proper (those with an unconditional right of residence and full political rights) owe to each other, whereas the former provides an analysis of the duties that those who are under the jurisdiction of the same state, whether fellow citizens or not, owe to each other. The article concludes by arguing that the distinction between the justice account and the equal-membership account cuts across the traditional one that is drawn between liberal and republican theories of citizenship. (shrink)

This article looks at Bernard Williams’s relevance to particular debates in constitutional theory about the legitimacy of two competing models of institutional design: political constitutionalism which endorses giving the final say on the meaning of constitutional rights to legislatures; and legal constitutionalism which endorses giving the final say on the meaning of rights to courts. Recent defences of political constitutionalism have made claims about the realism of their accounts when compared with legal constitutionalism and have co-opted Bernard Williams’s realism to (...) support their case. This article examines these claims, concluding that these accounts of political constitutionalism rely on a distinctly non-Williamsian form of political moralism in that they assume a legitimacy for political constitutionalism which is prior to politics and political disagreement. It offers an alternative defence of political constitutionalism, a partial defence, which, it argues, is closer to the realism of Bernard Williams than these accounts. (shrink)

In recent years there has been a revival of interest in civic republicanism. In light of this revival, it is interesting to consider what sort of theory of legal or judicial adjudication such a doctrine—centered on the value of promoting freedom from domination—would recommend. After discussing the importance of such a theory and clarifying its relationship to broader questions of institutional design, it is argued that theories of adjudication should be assessed according to three criteria: first, their contribution to the (...) republican cause of promoting freedom from domination; second, their suitability to the characteristic features of legal systems; and third, their impact on long-run institutional stability. According to these criteria, a republican theory of adjudication would hold that judges and other legal officials should strive in their decisions and interpretations to maintain and enhance the distinctive value of the rule of law. (shrink)

As an advocate of ‘comparative political theory,’ Fred Dallmayr has long engaged with Confucianism with a new vision for democracy suitable in East Asia but little attention has been paid to his idea of Confucian democracy, which he presents as a specific mode of ethical or relational democracy. This paper investigates Dallmayr’s ethical vision of Confucian democracy, first, by articulating his postmodern reconceptualization of democracy in terms of post-humanism and, second, by examining his post-humanist reevaluation of Confucian virtue ethics as (...) a critical resource for ethical democracy. It argues that the ethical vision of Confucian democracy, though morally appealing, should not dismiss the important instrumental value of democracy as a political system and, rather, find a way to integrate democracy’s instrumental and intrinsic values in a way that can enhance the qualitative relationality between people, political agents, and the common good. (shrink)

Decisions in democracy are binding not in virtue of being true or good, but on account of being an outcome of the majority voting procedure. For some, this is a proof of an intricate connection between democracy and moral relativism. The ‘militant democracy’ model, on the other hand, is premised on the idea that certain political actors and choices have to be banned for being fatally bad for democracy. This gives rise to the claim that protected democratic fundamental values of (...) freedom and equality enjoy the status of absolute moral standards. This article dismisses the intuition that justification of ‘militant democracy’ depends on unpacking the relation between democracy and meta-ethics. Instead, following Bernard Suits’ analytical exposition of the important features of games, it demonstrates, first, how democracy is like a game and, then, it argues that a plausible justification of ‘militant democracy’ stems from its game-like character. (shrink)

I reply to each of the contributions in this issue. I agree with much that Hillel Steiner argues, especially his insistence that the associated ideas of impartiality and discontinuity are crucial to dealing satisfactorily with a diversity of competing claims. I am, however, less willing to conceive provision for that diversity as the role, rather than a role, that we should ascribe to rights. I question the success of David Miller?s endeavour to provide a unified justification of human rights grounded (...) in the concept of need. It is the notion of a minimally decent human life, rather than need itself, that does most of the justificatory work in Miller?s argument and, arguably, that notion does not deliver a genuinely unitary account of human rights. I concede the case for state funding of opera and the arts more generally to John Horton?s argument, but defend neutralism, and its associated distinction between the right and the good, as a strategy for dealing with diversity, including cultural diversity. I resist Richard Bellamy?s attempt to ground all basic rights in democracy and suggest that his argument relies upon idealized assumptions about the functioning of democracy. I share much of his objection to substituting judicial for political decision-making but argue that a strong moral commitment to rights need not imply a shift in power from democratic processes to courts. I endorse Albert Weale?s argument for favouring a beneficial design approach over a rights approach to healthcare and to many other social goods. Rights should not monopolize our moral and political thinking. (shrink)

Politics, Philosophy & Economics, Volume 21, Issue 2, Page 97-121, May 2022. Republicans hold that people are unfree if they are dominated, that is, if others have an insufficiently constrained ability to frustrate their choices. Since legislation can frustrate individuals’ choices, republicans believe that the design of legislative institutions has consequences for individual freedom. Some have argued that if legislative institutions are democratic, then they need not be sources of domination at all. We argue this view is incorrect: the introduction (...) of legislative authority, even if democratically organized, always creates a new site of domination. However, republicans can defend democratic procedures as the best means of minimizing the degree to which citizens are dominated, subject to the constraint of equalizing everyone’s freedom. We formulate and prove this claim within a simple model of legislative authority and domination. (shrink)

It has become a commonplace in neo-republican thinking to claim that if the notion of rights can be allowed a place in republican political theory, it can never achieve the prominence that liberalism allegedly grants it. Philip Pettit’s book, Republicanism, provides several arguments to buttress this thesis. This article aims at examining these arguments in order to show that once properly stated, they must on the contrary be considered as powerful arguments to the effect that republicans take rights very seriously.

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...) to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples (NNPs). The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is (...) relegated in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights. (shrink)

A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples. The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is relegated (...) in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights. (shrink)

Machiavelli's 500-year-old treatise The Prince outlined the central features of the realist tradition in international relations. His premises led him to question the likelihood of efficacious and stable international law and international courts, a skepticism that has present-day proponents. Machiavelli's reluctance was due to a combination of features of human nature and a focus on anarchic features of the relations among states. This article challenges these assumptions and implications: Other interpretations of human nature are closer to Machiavelli's text, and current (...) relations among states are significantly different. The revised assumptions should make Machiavelli's followers more optimistic about international law and international courts. (shrink)

Cristina Lafont’s Democracy Without Shortcuts enriches the discussion of deliberative democracy with new insights. After discussing her three objections against Waldron’s denunciation of judicial review as antidemocratic, the main flaw of Waldron’s thesis is argued to remain out of focus. The constitution is understood by him as owned by the living citizens, in a pattern of serial sovereignty that raises three problems: the ‘wanton republic’; the under-individuation of the polity; generational inequality. The answer to Lafont’s question ‘Can We Own the (...) Constitution?’ is then argued to be that only ‘we the people’, including past, present and future ‘free and equal’ generations, own the constitution. The living citizens are the segment of ‘the people’ endowed with agency, have a voice, can modify the inherited political scheme, but cannot legitimately disfigure it, under penalty of destroying the regulatory function of the constitution. (shrink)

The renewed interest on political realism can offer a new reading of the traditional dichotomy between normative and realist conception of constitutionalism. The purpose of this article is to analyse this renewed discussion, especially by focusing on the relationship between “political realism” and “political constitutionalism,” in the light of some theorists and authors—such as Richard Bellamy and Jeremy Waldron. After a brief introduction in which political realism will be discussed, especially through Bernard Williams’ reinterpretation, the article proposes a rereading of (...) democratic constitutionalism from the classical dichotomy between normativism and realism in political theory. The focus will be set on three key issues: 1. Richard Bellamy’s constitutional theory in a realist perspective; 2. An insight of legal constitutionalism under a normative banner; 3. A brief conclusion in which the risks of a majoritarian and populist constitutionalism will be discussed. (shrink)

Disagreement among philosophers over the proper justification for political institutions is far from a new phenomenon. Thus, it should not come as a surprise that there is substantial room for dissent on this matter within democratic theory. As is well known, instrumentalism and proceduralism represent the two primary viewpoints that democrats can adopt to vindicate democratic legitimacy. While the former notoriously derives the value of democracy from its outcomes, the latter claims that a democratic decision-making process is inherently valuable. This (...) article has two aims. First, it introduces three variables with which we can thoroughly categorise the aforementioned approaches. Second, it argues that the more promising version of proceduralism is extrinsic, rather than intrinsic, and that extrinsically procedural accounts can appeal to other values in the justification of democracy without translating into instrumentalism. This article is organised as follows. I present what I consider to be the ‘implicit view’ in the justification of democracy. Then, I analyse each of the three variables in a different section. Finally, I raise an objection against procedural views grounded in relational equality, which cannot account for the idea that democracy is a necessary condition for political legitimacy. (shrink)

Republicans understand freedom as the guaranteed protection against any arbitrary use of coercive power. This freedom is exercised within a political community, and the concept of arbitrariness is defined with reference to the actual ideas of its citizens about what is in their shared interests. According to many current defenders of the republican model, this form of freedom is understood in strictly negative terms representing an absence of domination. I argue that this assumption is misguided. First, it is internally inconsistent. (...) The central republican focal point of arbitrariness is a necessarily socially-constructed ideal that only exists as the creation of the citizens themselves. Secondly, republican freedom operates in two distinct realms or spheres. There is freedom under a law that is required to uphold the collective good as reflected in society’s norms, and there is freedom within that very system of norms. The threats to freedom from within each sphere are different and must be addressed accordingly. The negative approach, however, conflates the two and emphasises only the dangers faced under the law. This exposes citizens – especially those from marginalised social groups – to domination in the second realm from oppressive social norms. Only by clearly recognising the nature of both kinds of threats can a comprehensive republican freedom be formulated. (shrink)

Political parties have been the subject of a recent resurgent interest among political philosophers, with prominent contributions spanning liberal to socialist literatures arguing for a more positive appraisal of the role of parties in the operation of democratic representation and public deliberation. In this article, I argue for a similar re-evaluation of the role of political parties within contemporary republicanism. Contemporary republicanism displays a wariness of political parties. In Philip Pettit’s paradigmatic account of republican democracy, rare mentions of political parties (...) often stress their tendency to lead to factionalism or corruption. Others working in the republican tradition such as Richard Bellamy and Ian Shapiro provide more extended discussion of the role of parties, but limit their theoretical function to enabling electoral competition. I argue that political parties play a far more significant role in promoting non-domination than this. In addition to enabling electoral competition, I show that political parties are also essential to the effective operation of two other components of republican democracy: contestation and interest-formation. I further argue that understanding political parties in these terms is compatible with republican democracy more generally, addressing the worry that parties will produce factional rather than common-good oriented public decisions. (shrink)

The debate between legal constitutionalists and critics of constitutional rights and judicial review is an old and lively one. While the protection of minorities is a pivotal aspect of this debate, the protection of disenfranchised minorities has received little attention. Policy-focused discussion—of the merits of the Human Rights Act in Britain for example—often cites protection of non-citizen migrants, but the philosophical debate does not. Non-citizen residents or ‘denizens’ therefore provide an interesting test case for the theory of rights as trumps (...) on ordinary representative politics. Are they the ultimate success story of the human rights framework? Or was Michael Walzer correct to describe government of denizens by citizens as a modern form of ‘tyranny’? This paper argues that neither liberal rights theorists nor democratic republicans provide a coherent response to the existence of denizens. Liberal rights theorists overstate the extent to which a politically powerless status can secure individual rights, while democratic republicans idealise the political process and wrongly assume that all those affected by laws are eligible for political participation. The paper outlines an alternative model for assessing the accountability of states to their non-citizen population, informed by the republican ideal of non-domination. It identifies gaps in state accountability to denizens–such as where there is inadequate diplomatic protection—and argues that these gaps are particularly troubling if their exit costs of leaving the state are high. (shrink)

Like many rights theorists, Peter Jones regards rights as lying outside politics and providing constraints upon it. However, he also concedes that rights are matters of reasonable disagreement and that, as a matter of fairness, disputes about them ought to be resolved democratically. In this paper I develop these concessions to argue that rights require democratic justification and that this can only be provided via a real democratic process in which those involved ?hear the other side?. I relate this argument (...) to the republican theory of non-domination, contending that it fits the Lockean project of regarding rights as constraints on arbitrary power better than liberal views that place rights outside the democratic process. I conclude by noting the implications of this argument for rights-based judicial review of legislation. (shrink)

I aim to explain why majority voting can be assumed to have an epistemic edge over lottery voting. This would provide support for majority voting as the appropriate decision mechanism for deliberative epistemic accounts of democracy. To argue my point, I first recall the usual arguments for majority voting: maximal decisiveness, fairness as anonymity, and minimal decisiveness. I then show how these arguments are over inclusive as they also support lottery voting. I then present a framework to measure accuracy so (...) as to compare the two decision mechanisms. I go over four arguments for lottery voting and three arguments for majority voting that support their respective accuracy. Lottery voting is then shown to have, compared to majority voting, a decreased probability of discrimination. That is, I argue that with lottery voting it is less probable under conditions of normal politics that if the procedure selects X, X is reasonable. I then provide two case scenarios for each voting mechanism that illustrate my point. (shrink)

Theories of domination are primarily attempts to understand the value of justice, freedom, and equality by examining cases where they are absent. Such theories seek to clarify and systematize our judgments about what it is to be weak against uncontrolled strength, i.e., about what it is to be vulnerable, degraded, and defenseless against unrestrained power. -/- Much contemporary disagreement about domination involves competing answers to three questions: (1) Who, or what, can dominate? (2) Is it possible to dominate merely by (...) having power with a certain structure, or is domination an exercise or an abuse of power? (3) Exercised or unexercised, what kind of power is domination? The remainder of this entry will address each of these questions in turn, then conclude with a survey of how the idea of domination has been used in recent applied ethical theory. It will become clear as we examine competing answers to these three questions that different theorists have very different ideas of why, exactly, we need a theory of domination. There may be wide agreement that we need the idea of domination to make sense of unjust power relations, but unjust power relations are wildly varied, and theorists of domination disagree not only about which varieties most need to be understood, but about how theorizing domination helps us to understand them. (shrink)

El presente artículo comienza reconstruyendo las razones por las cuales las teorías modernas se concentran en la ciudadanía como una garantía muy importante de legitimidad -arguyendo que la ciudadanía está intrínsecamente ligada a una forma republicana de orden político. La segunda parte del artículo muestra que, bajo las actuales condiciones de la globalización, la ciudadanía crea o mantiene un orden transnacional multinivel que impide que otras personas y políticas puedan realizar una ciudadanía (completa), y que incluso contribuyen a violaciones directas (...) de exigencias legítimas por parte de no-ciudadanos. La tercera parte discute críticamente las propuestas de Archibugi, Owen y Baubóck acerca de cómo repensar la ciudadanía transnacional o formas equivalentes de participación y control. En la parte final, el artículo aboga por una conexión entre la concepción de la ciudadanía constelación y una forma específica de democracia transnacional. Tal conexión permitiría a la ciudadanía seguir siendo el factor clave para la legitimidad. This article starts by reconstructing the reasons for the modern focus on citi-zenship as a major guarantee for legitimacy - arguing that citizenship is intricately linked to a republican form of political order. In its second part this paper shows that under the current conditions of globalization citizenships creates or maintains a transnational multi-level order which prevents other persons and polities from realizing (full) citizenship, and even contributes to direct violations of legitimate claims of non-citizens. The third part of the article critically discusses proposals by Archibugi, Owen and Baubóck, how to rethink transnational citizenship or equivalent forms of participation and control. And in its final part it advocates linking the conception of constellational citizenship to a specific form of trans-national democracy. With such a link citizenship could continue to be the key factor for legitimacy. (shrink)

Riker (1982) famously argued that Arrow’s impossibility theorem undermined the logical foundations of “populism”, the view that in a democracy, laws and policies ought to express “the will of the people”. In response, his critics have questioned the use of Arrow’s theorem on the grounds that not all configurations of preferences are likely to occur in practice; the critics allege, in particular, that majority preference cycles, whose possibility the theorem exploits, rarely happen. In this essay, I argue that the critics’ (...) rejoinder to Riker misses the mark even if its factual claim about preferences is correct: Arrow’s theorem and related results threaten the populist’s principle of democratic legitimacy even if majority preference cycles never occur. In this particular context, the assumption of an unrestricted domain is justified irrespective of the preferences citizens are likely to have. (shrink)

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

Philip Pettit ha utilizado la libertad positiva y negativa de Isaiah Berlin para dos propósitos diferentes. En primer lugar, la distinción es empleada para elaborar un ideal distinguible de libertad como no-dominación que contiene elementos propios de la libertad negativa y la libertad positiva. En segundo lugar, Pettit sostiene que la libertad como no-dominación es más atractiva que la libertad negativa defendida por Berlin –la libertad como no-interferencia– y una variedad de libertad positiva que Berlin critica –la libertad como participación (...) o populismo. Este trabajo sostiene que existe una tensión entre estos dos objetivos. Una vez que se elabora una concepción distinguible de libertad como no dominación no es posible argüir que es más atractiva que las alternativas rivales. Específicamente, los argumentos que Pettit ha formulado en contra de la libertad positiva no tienen ningún impacto sobre una variante de libertad positiva que, por un lado, identifica libertad con control y, por el otro, identifica al control con la existencia de instituciones republicanas. (shrink)