ABSTRACT Between April 1820 and April 1822, stimulated by the restoration of the Cádiz Constitution, Bentham devoted himself to writing a number of works on the constitutional reform and colonial rule of Spain, which have been sources of a scholarly debate over Bentham's views on colony. By examining those works, this essay aims to supplement the scholarly debate by drawing attention to a thesis that Bentham developed in his criticism and evaluation of the Cádiz Constitution: a thesis concerning (...) the irreconcilable incompatibilities of liberal constitution and colonisation. I focus on Bentham's critical analyses of the Constitution, and indicate that Spain's colonial rule of Ultramaria not only intensified the weaknesses of the Constitution, but also rendered its merits useless, if not harmful, to the public in both hemispheres. Moreover, I explore the tension that Bentham detected between liberal constitutionalism and colonialism. I maintain that, in Bentham's observation, the civil rights granted by the Cádiz Constitution to the Ultramarians stood to facilitate the enlightenment of citizens and the formation of civil society. As a consequence, the delusion of the Spanish ruling few would be exposed, and the Ultramarians’ discontent with exploitation by such foreign rulers would sow the seeds of disobedience and resistance. (shrink)

Scholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of (...) global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations. (shrink)

In "Constitutional Goods" Alan Brudner presents novel conception of justice that will inform the content of the ideal liberal constitution. The content of this novel conception of justice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner's conception ofjustice. Brudner is unable (...) to construct an inclusive conception of liberalism from elements of libertarianism, egalitarianism, and communitarianism, and his account of public reason lacks the properties of fairness and reciprocity that differentiate a reasonable agreement from a modus vivendi. This paper therefore defends a Rawlsian political conception ofjustice and justification from Brudner's criticisms and proposed alternatives. (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)

'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a (...) class='Hi'>liberal democratic legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)

This volume examines the concept of the rule of law, arguing that the principles it identifies provide the foundations of a liberal democratic legal order. It explains the connections between a range of matters fundamental to the relationship between citizen and state, including freedom of speech, civil disobedience, procedural fairness, and administrative justice.

One new form of liberalism is a doctrine that might be called Constitutional Welfare Liberalism. It stands in some continuity with the varieties of welfare and equality oriented liberalism that emerged in the Nineteenth Century and which found expression in the U.S. in political movements like the New Deal of F.D.R. and the Great Society of L.B.J. Constitutional Welfare Liberalism differs somewhat from earlier versions of Welfare Liberalism in that it claims to be solidly grounded in the fundamentals of the (...) liberal tradition and of the American Constitution. Advocates of Constitutional Welfare Liberalism would replace what they call the “negative-liberties model” of the Constitutional order with a “benefits model.” They rest their case on an analysis of rights that denies the meaningfulness of the common distinction between negative and positive rights. Some advocates of Constitutional Welfare Liberalism also base their claims on the positive empowerments and ends of government as expressed in the Preamble to the Constitution. It is shown here via an analysis of the negative/positive rights distinction that the distinction is indeed meaningful when understood more accurately than Constitutional Welfare Liberalism theorists do. Likewise it is shown that neither the general character of the Constitution as an empowerment of government, nor the particular goals stated in the Preamble imply the benefits model. (shrink)

This article investigates, based on in-depth interviews and mail surveys, the different ways liberal market regimes are constituted by looking at two small market societies, the U.S. and German automotive parts markets. In a situation in which neoliberal paradigm is being challenged and prior norms about contracts and contractual relations do not work either, this article explores how different conceptions of fairness and divergent market regimes are constituted. This article claims that divergent market regimes result from different kinds of (...) problem-solving practices in a novel context among reflexive agents—public deliberation versus isolated dyadic deliberation of conflicts. (shrink)

Amartya Sen has demonstrated a possible inconsistency between a (liberal) right and Pareto optimality. Neither Sen nor the subsequent literature have discussed the origin of the rights that lead to the liberal paradox. In this article I examine one possible origin of rights definitions-a constitutional contract agreed to by all members of the community. Constitutional rights are show to be vulnerable to a similar paradox as with liberal rights, but if the writers of the constitution were (...) correct in their choice of actions to protect, such paradoxes will be unlikely and involve small welfare losses when they do occur. The article demonstrates that both the origin of rights and their potential role in advancing the interests of citizens can be explained using a utilitarian/welfarist methodology. (shrink)

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

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously (...) form their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all cititizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production. (shrink)

There is a modern movement to grow artificial meat in laboratories in order to counter the ills of industrial animal agriculture. This article investigates whether lab-grown meat constitutes animal liberation by critically examining its proposed ethical superiority over traditional meat. These considerations are balanced with reflections on the ethical unknowns and shortcomings of the use of technology to solve human-caused problems. We examine a range of meanings attributed to “animal liberation” and consider how various forms of violence are potentially left (...) unchallenged, with a particular focus on gender relations. (shrink)

Resumen Tradicionalmente los derechos sociales han sido considerados como derechos positivos que por su naturaleza no deberían formar parte de la constitución. La objeción más común en contra de los derechos sociales constitucionales sostiene que estos son derechos prestacionales y que la constitución está destinada a proteger solo los derechos de no interferencia. En este trabajo muestro que la tesis anterior es disputable y ofrezco argumentos que desde la tradición liberal permiten defender la constitucionalización de los derechos sociales. En (...) términos generales, los argumentos presentados giran en tornos a dos ideas matrices del pensamiento de Rawls vinculadas a su concepción de los ciudadanos como personas que deberían gozar de autonomía, así como a su concepción de sociedad. En términos particulares el trabajo presenta una lectura sistemática de los dos principios de la justicia y un análisis de las nociones de sociedad como sistema de mutua cooperación, así como de las ideas de autorrespeto y poderes morales. Abstract Social rights have been considered positive rights that do not require them to be part of the constitution. The most common objection against constitutional social rights holds that social rights are welfare rights and that, by nature, the Constitution should protect only rights of non-interference. In this paper, I show that the previous thesis is debatable, and I offer a liberal argument to defend the constitutionalisation of social rights. In general terms, the arguments presented rest on two main ideas of Rawls's thought linked to his conception of citizens as autonomous persons, as well as to his conception of society. In particular, the paper proposes a systematic understanding of the two principles of justice and an analysis of the notions of society as a system of mutual cooperation, as well as the ideas of self-respect and moral powers. (shrink)

This book aims to distil the essentials of liberal constitutionalism from the jurisprudence and practice of contemporary liberal-democratic states. Most constitutional theorists have despaired of a liberal consensus on the fundamental goals of constitutional order. Instead they have contented themselves either with agreement on lower-level principles on which those who disagree on fundamentals may coincidentally converge, or, alternatively with a process for translating fundamental disgreement into acceptable laws. Alan Brudner suggests a conception of fundamental justice that liberals (...) of competing philosophic schools may accept as fulfilling their own basic commitments. He argues that the model liberal-democratic constitution is best understood as a unity of three constitutional frameworks: libertarian, egalitarian, and communitarian. Each of these has a particular conception of public reason. Brudner criticizes each of these frameworks insofar as its organizing conception claims to be fundamental, and moves forward to suggest an Hegelian conception of public reason within which each framework is contained as a constituent element of a whole. When viewed in this light, the liberal constitution embodies a surprising synthesis. It reconciles a commitment to individual liberty and freedom of conscience with the perfectionist idea that the state ought to cultivate a type of personality whose fundamental ends are the goods essential to dignity. Such a reconciliation, the author suggests, may attract competing liberalisms to a consensus on an inclusive conception of public reason under which political authority is validated for those who share a confidence in the individual's inviolable worth. (shrink)

Unlike exploitative exchanges, exchanges featuring externalities have never seemed to pose particular problems to liberal theories of justice. State interference with exchanges featuring externalities seems permissible, like it is for coercive or deceptive exchanges. This is because exchanges featuring negative externalities seem to be clear cases of the two exchanging parties harming a third one via the exchange—and thus of conduct violating the harm principle. This essay aims to put this idea into question. I will argue that exchanges featuring (...) negative externalities are not unjust in this straightforward way, i.e. because they would constitute an instance of wrongfully causing or risking a bodily or material harm. In fact, unless we are subscribing to particularly demanding variants of liberalism—e.g. perfectionist liberalism—or unless we are exclusively focusing on borderline cases of externalities—i.e. of effects of exchanges hardly to be called externalities—there is no liberal theory of how exchanges featuring externalities are unjust. (shrink)

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political reasons (...) on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts. (shrink)

My text offers an attempt to justify theoretically the existence of an important pillar of contemporary constitutional democracy: judicial review. Why do Supreme and Constitutional Courts that are not electorally accountable organs have the power to modify and occasionally cancel from the books statutory legislation passed by elected and accountable representatives? The argument presented discusses and questions the standard doctrine of the separation of powers and is based on the foundations of modern political authority as the agency the function of (...) which is to protect and guarantee citizens’ rights. (shrink)

The article describes the main publications of emigrant press during the period of 1945-1990. These publications reflect a significant contribution to the academic research of the constitutional development problematics of an independent Republic of Lithuania in 1918-1940, made by the emigrants who escaped Soviet aggression by going to the West. Among emigrants these topics were mostly analysed and described at the time when any possibilities of objective academic research in Lithuania were widely limited by Soviet ideology and politics. Exceptional attention (...) of emigrant authors was attracted by the democratic constitutional structure of Lithuania, established by the Constituent Assembly. The article describes the academic research made by emigrants on the main constitutional acts established by the Constituent Assembly, such as the resolution of the 15th of May, 1920, ascertaining the fact of reconstructing the independence of the state of Lithuania, as well as the Constitution of Lithuania of August the 1st, 1922. (shrink)

This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self-governance. The individual and her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a (...) moral right to self-determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would-be immigrants. (shrink)

This paper asks whether we can defend associative duties to our compatriots that are grounded solely in the relationship of liberal co-citizenship. The sort of duties that are especially salient to this relationship are duties of justice, duties to protect and improve the institutions that constitute that relationship, and a duty to favour the interests of compatriots over those of foreigners. Critics have argued that the liberal conception of citizenship is too insubstantial to sustain these duties — indeed, (...) that it gives us little reason to treat compatriots any differently from how we treat foreigners, with all the practical consequences that this would entail. I suggest that on a specific conception of liberal citizenship we can, in fact, defend associative duties, but that these extend only to the duty to protect and improve the institutions that constitute that relationship. Duties of justice and favouritism, I maintain, cannot be particularised to one's compatriots. (shrink)

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

The liberal constitution in South Africa, which entrenches a certain kind of socio-economic organisation, renders systems of socio-economic organisation traditional to Africa, dysfunctional. These traditional communitarian systems contain within themselves structures endorsing harmony, mutuality and reciprocity as ground rules or values which distribute significant resources (both material and moral) to all agents in accordance with their socially determined deserts. The absence of these structures in South Africa contributes to a condition, inflamed by liberal structures, of rights paralysis (...) under which agents are unable to translate rights into substantial benefits. In this article I examine this condition with reference to two traditional systems of socio-economic organization to exhibit their advantages as correctives to the paralysis of rights, and to compare them in order to establish which one is preferable. (shrink)

Liberalism is a critically important topic in the contemporary world as liberal values and institutions are in retreat in countries where they seemed relatively secure. Lucidly written and accessible, this book offers an important yet neglected Russian aspect to the history of political liberalism. Vanessa Rampton examines Russian engagement with liberal ideas during Russia's long nineteenth century, focusing on the high point of Russian liberalism from 1900 to 1914. It was then that a self-consciously liberal movement took (...) shape, followed by the founding of the country's first liberal (Constitutional-Democratic or Kadet) party in 1905. For a brief, revelatory period, some Russians - an eclectic group of academics, politicians and public figures - drew on liberal ideas of Western origin to articulate a distinctively Russian liberal philosophy, shape their country's political landscape, and were themselves partly responsible for the tragic experience of 1905. (shrink)

We enter here upon a history of conversational traffic between the respective departments of philosophy and law in the old academy of liberalism, where lawyers hear much from philosophers, yes-and philosophers hear from lawyers, too, in what has fruitfully been a both-ways exchange. Our philosophical protagonist is John Rawls. This book comprises a study of the rise and workings, within the Rawlsian political-liberal philosophy, of the idea of a country's higher-legal constitution as a public platform for the justification (...) of political coercion. A study of Rawls on constitutionalism can help us, I believe, in scoping out and managing a cluster of constitutional lawyers' debates-interminable ones, it seems, in the constitutional-democratic precincts of our times-that I will catalogue soon below. But conversely, I believe, those seeking the best and truest readings of Rawls might have something to learn from the controversies of the lawyers. My approach to Rawls has accordingly been that of a critically leavened (while no doubt broadly sympathetic) exegesis, while with the legal-discursive materials I take more of a diagnostic turn. My hope is that a treatment of these two discourses in relation to each other will prove an aid to both political-philosophical and legal-practical reflection. (shrink)

Issues concerning patients' rights are at the center of bioethics, but the political basis for these rights has rarely been examined. In Bioethics in a Liberal Society: The Political Framework of Bioethics Decision Making , Thomas May offers a compelling analysis of how the political context of liberal constitutional democracy shapes the rights and obligations of both patients and health care professionals. May focuses on how a key feature of liberal society -- namely, an individual's right to (...) make independent decisions -- has an impact on the most important relational facets of health care, such as patients' autonomy and professionals' rights of conscience. Although a liberal political framework protects individual judgments, May asserts that this right is based on the assumption of an individual's competency to make sound decisions. May uses case studies to examine society's approach to medical decision making when, for reasons ranging from age to severe mental disorder, a person lacks sufficient competency to make independent and fully informed choices. To protect the autonomy of these vulnerable patients, May emphasizes the need for health care ethics committees and ethics consultants to help guide the decision-making process in clinical settings. Bioethics in a Liberal Society is essential reading for all those interested in understanding how bioethics is practiced within our society. (shrink)

Many political theorists today deny that citizenship can be defended on liberal grounds alone. Cosmopolitans claim that loyalty to a particular state is incompatible with universal liberal principles, which hold that we have equal duties of justice to persons everywhere, while nationalist theorists justify civic obligations only by reaching beyond liberal principles and invoking the importance of national culture. In Liberal Loyalty, Anna Stilz challenges both views by defending a distinctively liberal understanding of citizenship. Drawing (...) on Kant, Rousseau, and Habermas, Stilz argues that we owe civic obligations to the state if it is sufficiently just, and that constitutionally enshrined principles of justice in themselves--rather than territory, common language, or shared culture--are grounds for obedience to our particular state and for democratic solidarity with our fellow citizens. She demonstrates that specifying what freedom and equality mean among a particular people requires their democratic participation together as a group. Justice, therefore, depends on the authority of the democratic state because there is no way equal freedom can be defined or guaranteed without it. Yet, as Stilz shows, this does not mean that each of us should entertain some vague loyalty to democracy in general. Citizens are politically obligated to their own state and to each other, because within their particular democracy they define and ultimately guarantee their own civil rights. Liberal Loyalty is a persuasive defense of citizenship on purely liberal grounds. (shrink)

I define and defend a non-democratic authority with the power to annul the decisions of democratic branches of government when such decisions infringe upon citizens’ basic rights and liberties. I refer to this non-democratic authority as Liberal Aristocracy. The argument for Liberal Aristocracy has two parts: the first part demonstrates that Liberal Aristocracy will arrive at decisions that further the moral end of sustaining citizens’ rights; the second part holds that Liberal Aristocracy is a moral means (...) to this end. First, I discuss two existing arguments for non-democratic authorities – Platonic Aristocracy and Constitutional Court Judges. I claim that Plato’s argument is unsuccessful because it relies on controversial metaethical premises that are unlikely to provide a basis for rights. Liberal justifications of the power of Constitutional Courts are argued to be incomplete because they do not designate an authority that is qualified to decide when citizens’ rights are infringed by democratic branches of government. Nor do they show that such an authority is in fact required if citizens’ rights are to be protected. In order to supplement the liberal argument for the power of Constitutional Courts I develop an account of Liberal Aristocracy, which rests on the idea that Constitutional Court Judges should possess moral expertise. I claim that moral expertise qualifies Judges to decide when citizens’ rights are violated by democratic decisions. Furthermore, I argue that decisions taken democratically will sometimes encroach on citizens’ rights. Claims and are shown to justify the non-democratic authority of Liberal Aristocracy. The second part of the argument for Liberal Aristocracy examines arguments to the effect that only democratic procedures can be morally legitimate, even if other decision procedures arrive at outcomes that provide greater support for citizens’ rights. Three claims are offered in support of this idea. First, democracy is claimed to be necessary to support deliberation. Second, democracy is seen as the only procedure that can uphold the value of autonomy by securing citizens’ consent. Third, it is argued that non-democratic procedures will not recognise the equal status of citizens. I hold that these three claims are false and that Liberal Aristocratic procedures can be morally legitimate. (shrink)

This paper presents the metaphysics of liberal rights reasoning on one hand and that of demographic reasoning on the other, as exemplifying two worldviews that both compete and complement each other in the contemporary German public debate on demographic decline. First, this essay outlines the way in which liberal theorists of various outlooks, perfectionist and neutralist alike, assume that a wide range of rights serves not only the interests of those individuals who possess them, but that it constitutes (...) the foundations of a just and stable political order in general and therefore is to the advantage of everyone. Second, the essay explains how demographic reasoning questions the assumption of harmony shared by the liberal approaches. Third, it provides an impression of the way in which demographic arguments have been deployed in the public sphere in Germany in the last few years. These arguments associate the autonomy of women with the demise of Germany. They claim that by encouraging women to pursue self-realization as self-interested individuals, the modern secular ethos of Germany as a democratic welfare society may be self-destructive in the long run, since it leads to sub-replacement fertility. Finally, the essay stresses that liberal and demographic perspectives share a “blindness” of historical events. In response, the conclusion brings history back in, by historicizing both demographic reasoning and demographic developments in Germany, with the aim of defusing some of the anxieties that may have been aroused by the current debate. (shrink)

This chapter contains sections titled: Liberation Theology Philosophy of Liberation Pedagogy of the Oppressed Conclusion References Further Reading.

Constitutional politics has returned in our time in a truly dramatic way. In the last 25 years, not only in the new or restored democracies of South and East Europe, Latin America and Africa, but also in the established liberal or not so liberal democracies of Germany, Italy, Japan, Israel, New Zealand, Canada and Great Britain, issues of constitution-making, constitutional revision and institutional design or redesign have been put on the political agenda. Even in the United States, (...) given the new or renewed problems of our versions of presidentialism, federalism and electoral regime, Article V has come to be experienced as a veritable prison house, and judicial constitution-making (think of Buckley v Valejo) is often seen as much as a threat to, as the protection of, democratic mechanisms. And, most recently, in countries currently experiencing externally imposed revolutions, namely Afghanistan and Iraq, constitution-making has turned out to be a central stake in the ongoing political process. We are living in an epoch in which the nations seem to be slouching, or being prodded, toward Philadelphia and Americans, as the heirs of Madison and MacArthur, are sorely tempted to try teaching others the secrets of its success as a supposedly continuous 200-year-old constitutional democracy. But to be an effective teacher, it is not enough to be in a position of political-military superiority. One must first relearn to learn and even to re-learn. (shrink)

When in 2001 Earth Liberation Front activists drove metal spikes into hundreds of trees in Gifford Pinchot National Forest, they were protesting the sale of a section of the old-growth forest to a timber company. But ELF's communiqu on the action went beyond the radical group's customary brief. Drawing connections between the harms facing the myriad animals who make their home in the trees and the struggles for social justice among ordinary human beings resisting exclusion and marginalization, the dispatch declared, (...) "all oppression is linked, just as we are all linked," and decried the "patriarchal nightmare" in the form of "techno-industrial global capitalism." In Total Liberation, David Naguib Pellow takes up this claim and makes sense of the often tense and violent relationships among humans, ecosystems, and nonhuman animal species, expanding our understanding of inequality and activists' uncompromising efforts to oppose it. Grounded in interviews with more than one hundred activists, on-the-spot fieldwork, and analyses of thousands of pages of documents, websites, journals, and zines, Total Liberation reveals the ways in which radical environmental and animal rights movements challenge inequity through a vision they call "total liberation." In its encounters with such infamous activists as scott crow, Tre Arrow, Lauren Regan, Rod Coronado, and Gina Lynn, the book offers a close-up, insider's view of one of the most important--and feared--social movements of our day. At the same time, it shows how and why the U.S. justice system plays to that fear, applying to these movements measures generally reserved for "jihadists"--with disturbing implications for civil liberties and constitutional freedom. How do the adherents of "total liberation" fight oppression and seek justice for humans, nonhumans, and ecosystems alike? And how is this pursuit shaped by the politics of anarchism and anticapitalism? In his answers, Pellow provides crucial in-depth insight into the origins and social significance of the earth and animal liberation movements and their increasingly common and compelling critique of inequality as a threat to life and a dream of a future characterized by social and ecological justice for all. (shrink)

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many, perhaps even most, liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same- sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review (...) in terms of liberal neutrality akin to Rawls’s “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown.) But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family by drawing upon work by J. David Velleman and H. L. A. Hart, and discuss the implications of this account for political theory and constitutional law. (shrink)

This paper argues for the importance of the political context of a society for bioethics. In particular, I argue that in a liberal constitutional society, such as the one we find ourselves in, no particular moral perspective is granted a privileged position. Rather, individuals are allowed to live their lives according to values they adopt for themselves, and the rights granted to protect this ability “trump” social consensus, and place boundaries on the social application of personal moral beliefs and (...) values. (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)

Ronald Dworkin’s Justice for Hedgehogs defends liberal political morality on the basis of a rich account of dignity as constitutive of living well. This article raises the Rawlsian concern that making political morality dependent on ethics threatens citizens’ political autonomy. Thereafter, it addresses whether the abandonment of ethical foundations signals the demise of Dworkin’s liberalism and explores the possibility of laundering his conception so as to facilitate a marriage between the political philosophies of Rawls and Dworkin. The article finishes (...) by rebutting some objections Dworkin raises against Rawls’s account of public reason. (shrink)

A study investigating how the founders of Marxism came to terms with the emergence of liberal democracy as a political system. It examines, in language without jargon, how they defined democracy and how they evaluated the liberal constitutional state, by placing their ideas in historical context.

This article advances a critical analysis of John Rawls’s justification of liberal democratic nuclear deterrence in the post-Cold War era as found in The Law of Peoples. Rawls’s justification overlooked how nuclear-armed liberal democracies are ensnared in two intransigent ethical dilemmas: one in which the mandate to secure liberal constitutionalism requires both the preservation and violation of important constitutional provisions in domestic affairs, and the other in which this same mandate requires both the preservation and violation of (...) the liberal commitment to international legal arrangements and to the rule of law generally. On this view, the choice to violate constitutional provisions and international legal arrangements is evidence of nuclear despotism. Moreover, this choice does not imply that the ethical foreign policy dilemmas were resolved. Instead, it implies that the dilemmas force liberal democratic governments into implementing ethically paradoxical policy outcomes. (shrink)

It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory's vision of the future is nostalgia for the past. For (...) liberal constitutional theorists the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True, they may have faltered sometimes in implementing constitutional principles, but all that needs to be done today is to appoint justices in the mold of Warren, Brennan, or Thurgood Marshall. And here I really do mean all that needs to be done: No rethinking of what constitutional law is all about seems needed to liberal constitutional theorists. (shrink)

Awareness of, and respect for differences of gender, race, religion, language, and culture have liberated many oppressed groups from the hegemony of white, Western males. However, respect for previously denigrated collective identities should not be allowed to confine individuals to identities constructed around one main component used for political mobilisation, or to identities that depend on a priority of properties that are not optional, like race, gender, and language. In this article I want to sketch an approach for accommodating different (...) kinds of identity within a multicultural constitutional democracy. From a vantage point provided by a definition and explanation of personal identity, I want to show how people define, construct and change their personal identities to make themselves into unique individuals. Next I show how democratic political institutions and the personal identities of individuals reciprocally influence one another. In the final section I sketch ways in which diverse personal identities ought to be accommodated in multicultural constitutional democracies. The conclusion is that a society which gives its members the liberty, space, and opportunity to freely construct their own identities might avoid the formation of closed groups committed exclusively to their own sectional interests. (shrink)

Scholars in science and technology studies (STS) have recently been called upon to advise governments on the design of procedures for public engagement. Any such instrumental function should be carried out consistently with STS’s interpretive and normative obligations as a social science discipline. This article illustrates how such threefold integration can be achieved by reviewing current US participatory politics against a 70-year backdrop of tacit constitutional developments in governing science and technology. Two broad cycles of constitutional adjustment are discerned: the (...) first enlarging the scope of state action as well as public participation, with liberalized rules of access and sympathetic judicial review; the second cutting back on the role of the state, fostering the rise of an academic-industrial complex for technology transfer, and privatizing value debates through increasing delegation to professional ethicists. New rules for public engagement in the United Sates should take account of these historical developments and seek to counteract some of the anti-democratic tendencies observable in recent decades. (shrink)