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)

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)

This paper examines the discourse of war from a semiotic point of view and suggests some ideas for the development of practices of resistance to it. The discourse of war can be considered symptomatic in respect to underlying discourses of totality such as globalisation. By aiming at explanatory simplification, this kind of discourse takes the paradoxical form of an exhaustive paradigm which always engenders a residuum to be eliminated. Semiotics can develop practices of resistance to the discourse of war by (...) operating on the syntagmatic chains generated by its mediatic agencies. These practices are based on the postmodernist critique of totalising discourses. A process in which details are disconnected from the mediatic chains where they vanish might trigger the opening of a space of community that makes the residuum of war discourse presentable through metaphorical substitutions. Semiotic practices of resistance to the discourse of war presuppose a shift in theory from the paradigm of globality to that of partiality. Partiality must be understood both from a political and an epistemological point of view and it could therefore represent an important element in the development of a semioethics. (shrink)

Despite the problematic political positions he adopted during his life span, the work of Carl Schmitt contains a fascinating argument in favour of `the political', which is understood as a plural symbolic space composed of friends and enemies who reciprocally recognise each other. Schmitt's struggle for the political is a struggle for a public spirit which accounts for this plurality. One of the terrains on which Schmitt wages this struggle is that of historical meaning. The image of history is crucial (...) for the political, as it is one level on which the relation between enemies is symbolised. In this paper, Schmitt's polemic for a political conception of history, which gives the enemy and the defeated their due place as political subjects, will be reconstructed. Central to Schmitt's endeavour is the attempt to think historical singularity, against the notion of repetition in history, against the understanding of history as a reservoir of `lessons' and against ideologies of progress. Through his polemic, a profane and sober image of history appears which stresses singularity, relative contingency and openness, and the pluralisation of social temporalities. The enigmatic notion of the katechon will play a crucial role in providing a very minimal but crucial form of historical meaning for such a political conception of history. (shrink)

The notion of ideology and its critique have taken a remarkable about-turn in recent decades. While in classical Marxism, ideology used to be understood in terms of a distorted representation of real social divisions, recent authors such as Claude Lefort and Ernesto Laclau have argued that there is no standpoint outside language or representation, and they consider those representations as ideological that remain blind to their own political effects. However, a dimension that was crucial in the classical Marxist tradition has (...) been downplayed in their work, namely the importance of ideology critique for the process of emancipation or of a particular subject becoming political. To reintroduce this dimension in the recent debate on ideology, this article takes recourse to a selective and creative reading of Carl Schmitt. Schmitt, it is argued, understands ideology critique as a crucial precondition for the process through which a subject becomes political. From a Schmittian perspective, ideology critique aims at unmasking depoliticisation and thus at making visible an intersubjective space of conflict, which is the inevitable condition for every democratic or emancipatory struggle. (shrink)

A dominant interpretation of Carl Schmitt’s work depicts him as a theologically inspired and anti-humanist thinker. This article argues, however, that his concept of the political, founded on a plea for relative instead of absolute enmity, takes Schmitt away from theology onto a profane level, where enemies recognize each other as human beings. Although Schmitt states that whoever invokes the concept of humanity wants to deceive, one can trace in his work a distinction between two concepts of humanity, which gives (...) a philosophical foundation for the distinction between relative and absolute enmity, and, thus, for the political. It is at the basis of a minimally normative understanding of the political which can be of great interest for contemporary debates on the contemporary world order. (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that (...) may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)

There is a particular ressonance between the thinking of Walter Benjamin and that of the German jurist Carl Schmitt, including the fact that both analyse the 16th and 17th centuries in order to understand the 20th. Regarding this fact, the article attempts to clarify some themes that lead Schmitt’s work, i.e that of State of Exception, that of theologization of politics, the critique of parliamentarism as support of the Modern State, the tension between democracy and dictatorship, to explain how the (...) dialog between the two thinkers occurs, seeking thus for a better understanding of key works of Benjamin, specially The Origin of German Tragic Drama. (shrink)