Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that (...) its lawful exercise is no less pernicious than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

Contemporary critics of the administrative state are right to highlight the dangers of vesting too much power in a centralized bureaucracy removed from popular oversight and accountability. Too often neglected in this literature, however, are the dangers of vesting too little power in a centralized state, which enables dominant groups to further expand their social and economic advantages through decentralized means. This article seeks to synthesize these concerns, understanding them as reflecting the same underlying danger of state capture. (...) It then articulates a set of heuristics for the design of public and administrative institutions, which aim at minimizing the risks of capture from both public and private sources. By following these heuristics, it claims, we can successfully employ the administrative state as a weapon against concentrated private power, rather than allowing it to serve as a tool of dominant groups. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:In Their Father’s Library: Books Furnish Not Only a Room, But Also a Tradition ELIZABETH POWERS Although they shared close life dates and became famous in the same years for their epistolary novels, Johann Wolfgang von Goethe (1749–1832) and Fanny Burney (1752–1840) would seem to have been worlds apart literarily. (Goethe had in his Weimar library a copy of Evelina, while Burney was probably not ignorant of the Europe-wide (...) sensation The Sorrows ofYoung Werther.) What might be called their literary apprenticeship, however, was remarkably similar, consisting not of schooling in a traditional institution in which students (and, importantly, most eighteenth-century writers) were drilled in the classical curriculum, but, instead, from wide reading within the confines of their fathers’ libraries. It is true that Goethe and his younger sister Cornelia were supplied at home with a number of tutors and that their progress was monitored by their father, but their acquaintance with literature was fostered within the confines of the family home. Burney had no formal education at all. Indeed, on the appearance of Evelina, her father (according to her diary) remarked : “[S]he has had very little Education but what she has given herself,—less than any of the others!” Burney, however, had the advantage of growing up in a milieu in which books mattered. While the Goethes were eminently respectable, on the mother’s side part of what was the patriciate of the city of Frankfurt, the Burney household in London was bursting with wits and with what can only be called celebrities. The Burneys knew God and the world: David Garrick, Dr. Johnarion 28.1 spring/summer 2020 116 in their father’s library son, Hester Thrale. As Virginia Woolf noted of the famous father, Dr. Charles Burney, he was a musician “who could talk of intellectual things and ask clever people to his house.” Goethe has given plenty of evidence of roaming freely among his father’s books, a collection of 1,700 calfskin-bound volumes. When Burney went to serve at the court of King George III, Queen Charlotte was disappointed at how few books the author of Evelina possessed. (Similarities accumulate: Goethe also served at court, as minister in the duchy of Weimar.) But why cart around a load of books? As Burney wrote in her diary: “[M]y Father’s most delightful Library, as I then told her [the Queen], with my free access to it, had made [owning my own books] a thing unnecessary... ” Libraries in the eighteenth and early nineteenth century, whether private or public affairs, were not like contemporary public libraries, catering to a wide array of tastes, but were repositories of what Matthew Arnold termed “the best that is known and thought in the world.” Let’s call it the Western intellectual and cultural heritage. Most respectable homes would possess at a minimum a Bible, while the holdings in private homes, as evident in the library of Goethe’s father, could reach astounding proportions. According to Burney biographer Claire Harman, Fanny’s brother left at his death one of the finest private libraries of the age. Moreover, the antiquity of the works in the venerable libraries scattered across Europe from Dublin to Saint Petersburg, and especially their survival despite centuries of vicissitudes, was testimony to the authoritative nature of the transmission. Anyone who took the Bible in hand, who took lessons from it, adhering, for instance, to the injunctions of the Ten Commandments, was conscious of subscribing to values shared by preceding generations. Literary practitioners, also showing obeisance to authoritative predecessors, followed earlier models, in the process contributing to an evolving literary heritage. There was no purity in this transmission. It was truly promiscuous, but its quasi-biological character, like a mother’s left-handedness in a child, can be seen in the family Elizabeth Powers 117 resemblances among writers of different eras. Just as individuals perpetuate traits of their parents, so literature and the other arts recycled features of artistic predecessors. Writers as diverse in background and language and religion as Ariosto and Milton transmitted the dna, so to speak, of such epical forebears as Homer and Virgil. This sort of family legitimacy was... (shrink)

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property, antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In (...) particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily. (shrink)

Using food regime analysis, this paper critically analyzes how corporate actors amass, secure and apply power in the global agrifood system through International Investment Agreements (IIAs). IIAs are a key enabler of increasing corporate power in the agrifood system. We focus on three sets of investment provisions in IIAs: (a) the stringent enforceability mechanism of the investor-state dispute settlement (ISDS) system, (b) the expansion of the concept of expropriation, and (c) limitations or prohibitions on host countries to impose (...) performance requirements on foreign investors. We argue that these provisions compromise fairness in the international economic system. Attracted by promises of technology transfer, economic growth and employment, host states often prioritize policies that favor foreign investors even if such policies compromise domestic policy space. We provide analysis and examples of escalating corporate power at different stages of the industrial and transgenic model of agriculture. (shrink)

The first step in education's long road to respectability lay in the ability of its proponents to demonstrate that it was worthy of collaborating with traditional disciplines in the syllabus of higher learning. The universities where the infant discipline of education was promoted benefited from scholars who engaged in teaching and research with enthusiasm and preached the gospel of scientific education. These schools-Teachers College/Columbia University, the University of Chicago, and Stanford University-gained a reputation as oases of pedagogical knowledge. Soon, public (...) and private colleges alike introduced professional academic programs for the preparation of teachers. Foremost among the subjects for these programs was education philosophy, with its long history and the impeccable credentials of its ancient and modern expositors. Although the principal focus of this study is the history of educational philosophy in colleges and universities, it also recognizes educational philosophy's antecedents. Chapters cover ancient roots, Christian educational theory, educational theory and the modern world, philosophy and education in early America, development of philosophies of education, disciplinary maturity for educational philosophy, and prospects. There is a bibliography and an index. (shrink)

This paper has arisen from a concern that much recent policy-related research on markets displays misogynistic tendencies. In both the media and academic accounts it would appear as though the blame for social and educational inequalities can now be laid at the door of women - particularly middle-class mothers. Through examining competing perspectives on how we might understand this attribution of blame, this paper argues that their guilt is best explained not through changes in behaviour but through the conjuncture of (...) shifts in education policy and related research. These shifts have turned the attention of research away from the public domain of the state and the organisational and cultural attributes of schools to focus on the private domain of domestic decision-making. But the representations of these public and private domains are underpinned by unexamined gendered and ideological subtexts which have limited our powers of description and explanation. The paper concludes by suggesting strategies through which we might both address the tacit misogyny in research on markets and develop more sophisticated accounts of contemporary changes. (shrink)

The role of private food standards in agriculture is increasingly raising questions of legitimacy, particularly in light of the impacts such standards may have on food producers. While much work has been carried out at a macro policy level for developing countries, there have been relatively few empirical case studies that focus on particular food supply chains, and even fewer studies still of the impact of private standards on developed countries such as Australia. This study seeks to address (...) this imbalance, with a particular focus on examining the impact of private standards on an Australian vegetable supply food system in North Tasmania as well as tracing the impact of perceived and actual power relations among actors. Applying a governance framework and adopting a Foucauldian position we show that private standards are a “technology of power” that have risen out of a crisis discourse in the mid-1990s about on-farm food safety. Private standards have the effect of using knowledge from particular actors to establish truths about good agricultural practice (GAP), however we show that Tasmanian vegetable growers are not docile bodies and are employing alternative knowledge and technologies of power to challenge how GAP is implemented on-farm. (shrink)

The moral economics of the Islamic Action Front, the partisan wing of the original Jordanian Muslim Brotherhood, is both defined and compromised by internal inconsistency. Similar to others that might be classified as a socially conservative, religiously-oriented political party, the Islamic Action Front pledges a paternalist commitment to the poor only to undermine the already limited prospects of such paternalism through the adoption of charity-based approaches to social welfare and through their more general advocacy for economic liberalization, free markets, capital (...) mobility, and private initiative. How can one best explain both the contradictions constituting the Islamic Action Front’s economics and the political implications contained within such an economic agenda? This article will review the intersection of local class structure, party ideology, and history so to furnish an answer. (shrink)

This article explores the nature and role of legal powers in private law. I show how powers are special in that they allow agents to change their (and others’) legal circumstances merely by communicating an intention to do so, without having also to change the nonnormative facts of the world. This feature of powers is, I argue, particularly salient in private law, with its correlative or bipolar normative structure; understanding powers and their role in private law thus (...) requires careful attention to this correlativity. In the final section, I argue that the correct explanation of a variety of substantive problems in private law, many having to do with the role of a party's intention, turns on correctly understanding legal powers. (shrink)

Troubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray (...) an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and total surveillance, which are grave threats to freedom of expression. (shrink)

Although the literature has focused on individual differences in authenticity, recent findings suggest that authenticity is sensitive to context; that is, it is also a state. We extended this perspective by examining whether incidental affect influences authenticity. In three experiments, participants felt more authentic when in a relatively positive than negative mood. The causal role of affect in authenticity was consistent across a diverse set of mood inductions, including explicit (Experiments 1 and 3) and implicit (Experiment 2) methods. The link (...) between incidental affect and state authenticity was not moderated by ability to down-regulate negative affect (Experiments 1 and 3) nor was it explained by negative mood increasing private self-consciousness or decreasing access to the self system (Experiment 3). The results indicate that mood is used as information to assess one's sense of authenticity. (shrink)

This article examines the power relationship between the prime minister and ruling party legislators. I theoretically explore the power relationship between the prime minister and ruling party legislators, and examine legislators' parliamentary voting, focusing on the political process of postal service privatization of 2005. This analysis presents three arguments. First, theoretically, when the prime minister attempts to achieve a project, risking his or her job, he or she can firmly control ruling party legislators. Second, empirically, the anti-Koizumi legislators' (...) rebellion was based on their unfounded assumption about the prime minister's behavior or ultimate outcomes. Third, the anti-Koizumi legislators' electoral incentives to secure their reelection and ruling incentives to weaken or overthrow the Koizumi Cabinet drove them to rebel against the prime minister in the Lower House, while the ruling incentives alone caused the rebellion in the Upper House. (shrink)

Between 1980 and 2010 California’s health care policy field shifted from a business-dominated, closed-door pattern of decision making to a more open political arena. Through this process, a wide-ranging and diversely resourced coalition advocating on behalf of beneficiaries became an accepted partner in policymaking. This article examines this transformation, considering its broader implications for the political dynamics of the public-private welfare state and the role of advocacy groups in defending beneficiary interests. We argue that multifaceted coalitions exploit three vulnerabilities (...) of the public-private welfare state, which presents openings for advancing public priorities: 1) diverse and shifting interests, which allow advocates to build broad coalitions that include labor and some providers 2) service gaps that, when publicized, can generate public outrage; and 3) the hybrid institutional form of the public-private welfare state, which can connect service delivery organizations with a broader pro-public coalition. (shrink)

Drawing from a four-year study of US science institutions that support biological control of arthropods, this article examines the decline in biological control institutional capacity in California within the context of both declining public interest science and declining agricultural research activism. After explaining how debates over the public interest character of biological control science have shaped institutions in California, we use scientometric methods to assess the present status and trends in biological control programs within both the University of California Land (...) Grant System and the California Department of Food and Agriculture. We present available data on the number of scientific positions and the types of positions to discuss the impact on the amount of public interest research on biological control in California. We use sociograms to depict how biological control science networks have been reconfigured over time. Our quantitative and qualitative analyses indicate that the following factors contributed to the decline of biological control science in California over the 45-year period analyzed: (1) the institutional reconfiguration of university research priorities; (2) the fraying networks within and increasing specialization of biological control science; (3) the transformation of the social organization of the life science work, including privatization; and (4) the abandonment of this thematic area by civil society activist groups. This broad array of forces suggests that biological control, as a public interest science, will require a deliberate intervention, based on advocacy of clear public interest criteria. (shrink)

What do we mean when affirming ‘the powerful return of the state’? Do we have in mind the jus ad bellum employed by aggressive states, or are we thinking of the duties that a state has towards its citizens? Starting from these questions, this article aims to reconceptualize the issue of the political legitimacy of a state by reconsidering the relationship between power and violence. Among other forms of emergencies and violence, then, a legitimate state needs to be capable (...) of responding to gender-based (sexual and domestic) violence. To reinforce my suggestion, I will reinterpret some Greek and Roman myths related to the founding of cities (Thebes, Athens and Rome). Through these myths, we will be able to illustrate, in particular, the necessity for a state to be capable of combating both public and private violence, reframing the notion of nemesis (as a fate that can be changed by descendants) and fear (as a status that can be stopped in the present). (shrink)

My paper will explore boundaries and rights, the public and the private, as to the enforcement of religious legal rules in societies self-consciously founded on Islamic law. I employ as my case-study legal and social controversies aroused by the Saudi Hay’at al-amr bi-al-ma`ruf wa-al-nahy `an al-munkar, the government agency charged with “ordering the good and forbidding the evil.” The paper will first lay out some of the laws fixing the powers of the Hay’at, including various statutes issued by the (...) king but, of equal or greater importance, the received medieval fiqh rules governing the muhtasib . Focus shall be on an issue much debated in the classical law and also a long-time bone of contention in Saudi society, namely the legal limits on the powers of the Hay’at to investigate and punish immoral acts occurring in private. Limits on such powers stem from two sources, both in the law and in social understandings of that law. One source, the more prominent in public debate, concerns revelatory and fiqh and related social norms against spying or prying into people’s behavior and against undue attempts to expose people’s sins. Notably, however, this restriction affects only enforcement. The pervasiveness of laws considered to arise from the relationship of the individual to God still stands. A solitary immoral act performed in privacy can still be a sin and a crime, and punishable if it is somehow legitimately known and proved . The second source of restrictions is more far-reaching, going beyond issues of investigation and proof. As held by the majority of scholars, the Hay’at may not compel or forbid any actions for which the religious-legal ruling is under classical law a matter of legitimate difference of scholarly opinion; or inversely, the Hay’at may compel or forbid only those actions as to which there is a divine command known to a certainty either from a revealed text or from the consensus of scholars. A commonly noted abuse by the Hay’at in Saudi Arabia has been to attempt to enforce rules lacking requisite certainty, such as requiring veiling of the face. Rules known to a certainty have a pervasive role in Islamic constitutional theory. In principle, such rules must be enforced, regardless of whether they concern matters other societies may consider individual or private, such as changing one’s religion. Rules lacking that high degree of certainty cannot – without separate justification on grounds other than religious text – define sins or crimes or be enforced as general rules by the state. Though seemingly scholastic and philosophical, this restriction is potentially crucial in defining a realm of individual autonomy in religious matters and shaping the boundary between public and private in societies self-consciously founded in Islamic law. It is important to examine to what extent the restriction is reflected in legal and social practice in such societies. (shrink)

The rise of private standards, including those involving multi-stakeholder processes, raises questions about whose interests are served and the kind of power that is exerted to maintain these interests. This paper critically examines the battle for ideas—the way competing factions assert their own narratives about value chain relations, the role of standards and related multi-stakeholder processes. Drawing on empirical research on the horticulture and floriculture value chains linking Kenya and the United Kingdom, the analysis explores the framing of (...) sustainability issues, especially around labor issues and good agricultural practice, and the choice of response with respect to private standards and multi-stakeholder initiatives since the late 1990s. We identify four competing narratives currently in play: a dominant global sourcing narrative, a pragmatic development narrative, a broader development narrative and a narrative we term potentially transformative. This last narrative is currently emerging through the unpacking of narratives in relation to the framing of sustainability problems and solutions, and in terms of legislative, executive and judicial governance. The paper contributes to emerging understanding of power in value chains, moving beyond material power to a consideration of how ideational power is exerted and resisted. (shrink)

Why our workplaces are authoritarian private governments—and why we can’t see it One in four American workers says their workplace is a “dictatorship.” Yet that number almost certainly would be higher if we recognized employers for what they are—private governments with sweeping authoritarian power over our lives. Many employers minutely regulate workers’ speech, clothing, and manners on the job, and employers often extend their authority to the off-duty lives of workers, who can be fired for their political (...) speech, recreational activities, diet, and almost anything else employers care to govern. In this compelling book, Elizabeth Anderson examines why, despite all this, we continue to talk as if free markets make workers free, and she proposes a better way to think about the workplace, opening up space for discovering how workers can enjoy real freedom. (shrink)

Why government outsourcing of public powers is making us less free Many governmental functions today—from the management of prisons and welfare offices to warfare and financial regulation—are outsourced to private entities. Education and health care are funded in part through private philanthropy rather than taxation. Can a privatized government rule legitimately? The Privatized State argues that it cannot. In this boldly provocative book, Chiara Cordelli argues that privatization constitutes a regression to a precivil condition—what philosophers centuries ago called (...) "a state of nature." Developing a compelling case for the democratic state and its administrative apparatus, she shows how privatization reproduces the very same defects that Enlightenment thinkers attributed to the precivil condition, and which only properly constituted political institutions can overcome—defects such as provisional justice, undue dependence, and unfreedom. Cordelli advocates for constitutional limits on privatization and a more democratic system of public administration, and lays out the central responsibilities of private actors in contexts where governance is already extensively privatized. Charting a way forward, she presents a new conceptual account of political representation and novel philosophical theories of democratic authority and legitimate lawmaking. The Privatized State shows how privatization undermines the very reason political institutions exist in the first place, and advocates for a new way of administering public affairs that is more democratic and just. (shrink)

The public health measures implemented in response to the COVID-19 pandemic have resulted in a substantially increased shared reliance on private infrastructure and digital services in areas such as healthcare, education, retail, and the workplace. This development has (i) granted a number of private actors significant (informational) power, and (ii) given rise to a range of digital surveillance practices incidental to the pandemic itself. In this paper, we reflect on these secondary consequences of the pandemic and observe (...) that, even though collateral data disclosure and additional activity monitoring appears to have been generally socially accepted as inevitable consequences of the pandemic, part and parcel of a larger conglomeration of emergency compromises, these increased surveillance practices were not directly justified by appeals to solidarity and public health in the same way that the instigating public health measures were. Based on this observation, and given the increased reliance on private actors for maintaining the digital space, we argue that governments have a duty to (i) seek and ensure that there are justifications for collateral data disclosure and activity monitoring by private actors in the context of (future) public health emergencies like the COVID-19 pandemic, and (ii) regulate and provide accountability mechanisms for and oversight over these private surveillance practices on par with governmental essential services that engage in surveillance activities. (shrink)

Surrogacy involves a private agreement whereby a woman who gestates a child attempts to surrender her (putative) moral right to become the parent of that child such that another person (or persons), of the woman’s choice, can acquire it. Since people lack the normative power to privately transfer custody, attempts to do so are illegitimate, and the law should reflect this fact.

Transnational corporations have become actors with significant political power and authority which should entail responsibility and liability, specifically direct liability for complicity in human rights violations. Holding TNCs liable for human rights violations is complicated by the discontinuity between the fragmented legal/political structure of the TNC and its integrated strategic reality and the international state system which privileges sovereignty and non-intervention over the protection of individual rights. However, the post-Westphalian transition—the emergence of multiple authorities, increasing ambiguity of borders and (...) jurisdiction and blurring of the line between the public and private spheres—should facilitate imposing direct responsibility on transnational firms. Mechanisms for imposing direct responsibility on TNCs are considered including voluntary agreements and international law. However, I conclude that a hybrid public-private regime which relies on non-hierarchical compliance mechanisms is likely to be both more effective and consistent with the structure of the emerging transnational order. (shrink)

In an age when "we are all multiculturalists now," as Nathan Glazer has said, the politics of identity has come to pose new challenges to our liberal polity and the presuppositions on which it is founded. Just what identity means, and what its role in the public sphere is, are questions that are being hotly debated. In this book Susan Hekman aims to bring greater theoretical clarity to the debate by exposing some basic misconceptions—about the constitution of the self that (...) defines personal identity, about the way liberalism conceals the importance of identity under the veil of the "abstract citizen," and about the difference and interrelationship between personal and public identity. Hekman’s use of object relations theory allows her to argue, against the postmodernist resort to a "fictive" subject, for a core self that is socially constructed in the early years of childhood but nevertheless provides a secure base for the adult subject. Such a self is social, particular, embedded, and connected—a stark contrast to the neutral and disembodied subject posited in liberal theory. This way of construing the self also opens up the possibility for distinguishing how personal identity functions in relation to public identity. Against those advocates of identity politics who seek reform through the institutionalization of group participation, Hekman espouses a vision of the politics of difference that eschews assigning individuals to fixed groups and emphasizes instead the fluidity of choice arising from the complex interaction between the individual’s private identity and the multiple opportunities for associating with different groups and the public identities they define. Inspired by Foucault’s argument that "power is everywhere," Hekman maps out a dual strategy of both political and social/cultural resistance for this new politics of identity, which recognizes that with significant advances already won in the political/legal arena, attitudinal change in civil society presents the greatest challenge for achieving more progress today in the struggle against racism, sexism, and other forms of oppression. (shrink)

John White (2016) defends the UK private school system from the accusation that it allows an unfair form of ‘queue jumping’ in university admissions. He offers two responses to this accusation, one based on considerations of harm, and one based on meritocratic distribution of university places. We will argue that neither response succeeds: the queue-jumping argument remains a powerful case against the private school system in the UK. We begin by briefly outlining the queue-jumping argument (§1), before evaluating (...) White’s no-harm (§2) and meritocracy (§3) arguments. (shrink)

Chiara Cordelli’s The Privatized State offers a powerful critique of privatization and an inspiring vision of the kind of democratic governance that could secure citizens’ equal freedom. This essay raises questions about how Cordelli’s arguments apply in non-ideal theory. It asks whether her arguments about the illegitimacy of privatization provide us with adequate reasons to reject ongoing processes of privatization. It also queries some of her recommendations for how philanthropy should be practiced by individuals and incentivized by the state.

This article attempts to critically challenge Richard Rorty's view that the work of Jacques Derrida has no political utility. For Rorty, Derrida is a ‘private ironist’ whose quest for personal perfection renders him ineffectual as a ‘public liberal’. This view, I contend, is the consequence of looking at Derrida from the perspective of critics, such as Simon Critchley, who suggest that there is a strong ethico‐political strain in deconstruction on the basis of its Levinasian import. But to ally Derrida (...) too closely with Levinas, I maintain, runs the risk of obfuscating the rich and powerful insights regarding the nature of justice and democracy which Derrida has been developing for some time now. By showing how the theme of justice in Derrida differs from that encountered in Levinas, it becomes possible for us to show how Derrida's political intuitions bear remarkable and surprising similarity to those forged by Rorty. Derrida, on this reading, appears as a Utopian liberal in the pragmatic mode, one for whom progress in the political sphere is engendered by attending to the suffering of those about us and not (pace Marx, Althusser, and Foucault) by way of large‐scale revolution. The notion that solidarity is ultimately founded on our mutual susceptibility to suffering, I argue finally, is what serves to link Rorty's idea of a ‘liberal utopia’ to Derrida's ‘new international’, a comparison which significantly undermines the contention that the latter is useful for exclusively private purposes. (shrink)

It has gone largely unnoticed that when Deleuze opposes the “private thinker” to the “public professor,” he is invoking the existential thought of Lev Shestov. The public professor defends established values and preaches submission to the demands of reason and the State; the private thinker opposes thought to reason, “idiocy” to common sense, a people to come to what exists. Private thinkers are solitary, singular and untimely, forced to think against consensus and “the crowd.” Deleuze takes from (...) Shestov and Kierkegaard the idea that genuine thinking manifests itself in a thinking which rebels against rational necessity, a theme central to Shestov’s leading French interpreter, Benjamin Fondane. Although Deleuze at first expresses doubts as to whether Shestov’s critique of reason can overcome the legislative reason of Kant, or whether it is entirely free of ressentiment, I argue that Shestov and Fondane’s anti-rationalism is more radical than Deleuze sometimes admits, and show how Deleuze’s attitude toward Shestov became more unreservedly positive over the years. On the other hand, against Shestov and Fondane, I agree with Deleuze that the private thinker is in solidarity with the “strange powers” which can remake the world, and thus with “the people to come.” Nonetheless, I argue that Deleuze’s philosophy cannot form the basis of a politics of egalitarian consensus, but that “the people to come” can only be a “broken chain” of untimely and singular exceptions. (shrink)

The emergence of private authority has become a feature of the post-Cold War world. The contributors to this volume examine the implications of this erosion of the power of the state for global governance. They analyse actors as diverse as financial institutions, multinational corporations, religious terrorists and organised criminals. The themes of the book relate directly to debates concerning globalization and the role of international law, and will be of interest to scholars and students of international relations, politics, (...) sociology and law. (shrink)

In this book Saul Kripke brings his powerful philosophical intelligence to bear on Wittgenstein's analysis of the notion of following a rule.

The most powerful response to growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of an owner's rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies—rather than merely explanatory gaps—that render it unable to overcome the specter of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and nonowners. In place of (...) the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a nonowner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities. (shrink)

Although public law scholars have long addressed the problems of accountability generated by private decision-making and "privatization," they have largely ignored this phenomenon in the immigration context. Our ignorance is increasingly indefensible. Millions of employers - private parties - are required by law to screen their workers for unauthorized immigrants, and growing evidence suggests that they use their screening power to ignore workplace protections and to otherwise exploit these workers. This article is the first attempt to apply (...) the insights generated by the privatization literature to immigration law. It argues that our nation's employers have emerged as private immigration screeners who, like airport inspectors screening for ineligible entrants and law enforcement officers screening for criminal noncitizens, assist the Department of Homeland Security in identifying unauthorized workers for removal. More than just agents of exploitation, reframing employers as private screeners demonstrates that they are also agents of the state. Borrowing analytical concepts developing in the privatization literature, I argue that the high risk of abuse and the lack of readily available mechanisms for reducing that risk raise troubling implications over the kind of power that employers wield as private immigration screeners in the workplace. Reframing our nation's employers as private screeners gives theoretical coherence to the discretionary decision-making authority they actually wield, and explains why they have used that authority to exploit workers - as private parties carrying out public duties, they are incentivized to serve their own interests instead of verifying the immigration status of their workers in good faith. Examining the problem of private immigration screening also forces us to reconsider two aspects about immigration screening generally. First, although immigration law tends to reward unauthorized immigrants who lay low and tends to punish those who draw attention to themselves, I suggest that we ought to rethink this logic at least in the context of the workplace. Because workplace violations committed by employers are typically enforced by private parties, punishing unauthorized immigrants who attempt to assert these rights and thus draw attention to themselves, only encourages workplace violations by employers and fosters a culture of lawlessness. Second, thinking about how decision-making authority within immigration law should be allocated between the public and the private contributes to the current conversation over how similar decision-making authority should be allocated between federal entities and local entities. Although questions of accountability have lingered in the backdrop of the immigration federalism debate, I suggest that scholars would be well served to foreground these questions and answer them head-on. (shrink)

In _Law’s Rule_, Gerald Postema provides a robust theoretical framework of the rule of law that technology scholars can use to analyze power in the digital world. He articulates how the rule of law can be concerned with private power, and not just public power. His emphasis on the ethos of fidelity allows us to see how the rule of law of law may be degraded in the digital era through the erosion of the informal institutions (...) and practices needed to sustain the rule of law. In addition to outlining these contributions, this paper argues that Postema’s account of digital power needs to focus more on digital power structures rather than digital power wielding, that digital power structures erode many informal constraints on power, and that addressing sociotechnical systems might require rethinking law’s distinctive instrumentalities in order to embrace the use of digital technologies to increase transparency and compliance. (shrink)

In Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It), Elizabeth Anderson argues that most people in the United States and other liberal societies spend their working lives under the kind of autocratic rule we would normally associate with communist dictatorships. They are forced to work in oppressive environments, deprived of many freedoms, and given practically no say over working conditions. Even in their nonworking lives workers are frequently subjected to employer scrutiny and sanction. (...) And the legal framework and economic realities surrounding employment are such that exit is viable for only a small minority. Anderson’s work has generated great interest and, along with it, several criticisms that take exception to her observations, economic assumptions, and conclusions. This paper delineates the various economic claims made against Private Government so as to facilitate further inquiry of these issues. (shrink)

A company of buccaneers invites comparison with states founded on the social contracts of Hobbes and Locke. These companies were formed by an explicit contract, the articles of agreement, and transgressors risked being marooned in a literal state of nature. Buccaneers were relatively powerful and their authority structure and share system was relatively democratic. The role of venture capitalists in organizing buccaneering may explain why parallels with Locke's social contract are particularly striking. Matthew Tindall attempted to exclude pirates and include (...) privateers in the social contract, but conceded that sufficiently powerful pirates themselves formed states. These comparisons highlight the problem of basing human rights on contract theory. (shrink)

Thomas Piketty’s Capital and Ideology constitutes a landmark achievement in furthering our understanding of the history of inequality, and presents valuable proposals for constructing a future economic system that would allow us to transcend and move beyond contemporary forms of capitalism. This article discusses Piketty’s conceptions of ideology, property, and ‘inequality regimes’, and analyses his approach to social justice and its relation to the work of John Rawls. I examine how Piketty’s proposals for ‘participatory socialism’ would function not only to (...) redistribute income and wealth, but also to disperse economic power within society, and I discuss the complementary roles of redistribution and predistribution in his proposals, and Piketty’s place in a tradition of egalitarian political economy associated with James Meade and Anthony Atkinson. Having elaborated on Piketty’s account of the relationship between economic policy and ideational change, and his important idea of the ‘desacralization’ of private property, I develop ‘seven theses’ on his proposals for participatory socialism, examining areas in which his approach could be enhanced or extended, so as to create a viable twenty-first century version of democratic socialism. (shrink)

Nudging policies rely on behavioral science to improve people's decisions through small changes in the environments within which people make choices. This article first seeks to rebut a prominent objection to this approach: furnishing governments with the power to nudge leads to relations of alien control, that is, relations in which some people can impose their will on others—a concern which resonates with republican, Kantian, and Rousseauvian theories of freedom and relational theories of autonomy. I respond that alien control (...) can be avoided, if nudging is suitably transparent and democratically controlled. Moreover, such transparency and democratic control are institutionally feasible. Building on this response, I then provide a novel and surprising argument for more nudging: democratically controlled public policy nudging can often contain the power of private companies to nudge in uncontrolled and opaque ways. Therefore, reducing alien control often requires more rather than less nudging in public policy. (shrink)

Heath’s paper on privatization defends a broadly welfarist-economic approach in thinking about the legitimacy of privatizations. This approach is ‘instrumentalist’ (in contrast to deontological approaches). In this response, I accept the value of an instrumentalist approach to privatization, but argue against Heath’s welfarist version of it, and argue in favor an alternative. First, the ends we seek when thinking about socially vital goods (our theory of public interests) should go beyond Pareto-efficiency. Second, as to the means we employ to realize (...) these ends, we need a view of markets which takes into account not just their competitiveness, but also the distribution of power. This means we need to differentiate market types. Third, we need to differentiate ownership types beyond the standard shareholder-owned company. Alternative ownership structures may be able to realize public interests more easily and hence make privatization less problematic. On these three issues, the picture Heath sketches leaves out too many of the variables that, in the end, may be decisive in whether or not a privatization is acceptable. (shrink)

The public sphere has been seen by conservatives as an arena for safeguarding private relations. Private power relations could be threatened by newly recognized social groups that make claims on the state for justice and equality. Therefore, conservatives have been concerned about who can speak and exist in public and who can thereby make demands on the state. In the debates over transgender rights in Canada, social conservatives and neoliberal forces have merged in complex and impactful ways. (...) Analyzing House of Commons and Senate debates and committee proceedings for Bill C-279 and Bill C-16, I examine three conservative arguments that illustrate attempts to maintain private power relations and hierarchal gendered divisions by ensuring that transgender and gender nonconforming people are not allowed to exist, speak or make claims in public: first, the assertion that gender identity and gender expression are not definable identity categories for claims-making because transgender people are deceptive and can change their gender based on their feelings; second, the targeting of public facilities, and particularly public bathrooms, as sites of contention, danger and necessary gender segregation; and third, the attempt to delegitimize rights claims by criminalizing transgender people in relation to cisgender women and children. (shrink)

Augustin est bien connu comme défenseur d’une « théorie privative » du mal. On peut lire, par exemple, dans les Confessions que « le mal n’est que la privation du bien, à la limite du pur néant ». Le problème, cependant, avec les théories privatives du mal est qu’elles ne nous offrent pas, généralement, une explication robuste ni de l’activité du mal, ni de son pouvoir à causer des effets bien réels ; effets desquels l’expérience demande, malgré tout, une explication (...) rationnelle. Or, selon Augustin, la privation seule ne permet pas de rendre compte de toutes les manifestations du mal. L’explication privative du mal est, certes, la plus étudiée par la littérature ; mais elle ne constitue qu’une partie du tableau. Cet article veut souligner quatre moments de l’explication du mal qu’Augustin propose : le mal comme privation ; le mal comme parasite par rapport à l’être ; le mal comme perversion de la volonté ; et finalement, le mal comme conflit d’intérêts. Chacun de ces moments éclaire un type de mal, mais aucun ne permet à lui seul de rendre compte du problème. Pris ensemble, cependant, et gardant leurs différences respectives à l’esprit, la réponse d’Augustin à la question du mal se révèle beaucoup plus sophistiquée et exhaustive qu’on ne voudrait souvent l’admettre lorsqu’on se limite uniquement à la théorie de la privation. | : Augustine is well-known for advocating a ‘privation theory’ of evil. In Confessions, he writes that “evil has no existence except as a privation of good, down to that level which is altogether without being.” The problem with privation theories of evil generally is that they do not provide a robust enough account of the activity and power of evil to cause the very real effects for which experience demands a rational explanation. For Augustine, however, privation alone does not fully account for evil in all of its manifestations. The privation account of evil receives much scholarly treatment, but it is only part of the complete Augustinian picture. This paper outlines four accounts of evil in Augustine : evil as privation, as parasitic on being, as perversion of the will, and as conflict of interest. Each deals with a kind of evil, but none alone provides a complete account. Taken together, however, with their differences in mind, Augustine’s explanation of evil is shown to be much more sophisticated and comprehensive than is often recognised when one limits one’s understanding of Augustine’s conception of evil to the privation theory alone. (shrink)

This paper focuses on private residential green space as a site of contested meanings. Recent research points to the emergence of an activism centered on ecological restoration and a shift away from the lawn as the only accepted landscape practice for private green space. However, it is clear that the lawn, a particularly powerful cultural landscape form in residential neighborhoods, still largely dominates this space across North America. This investigation examines the voices of two groups: traditional lawn owners (...) and ecological activists. We observe two sets of discourses centered on private green space. Both groups construct residential green space as a site of identity politics-a site wherein the self is defined as pure and the other excluded as different and necessarily inferior. And both perceive their discourse as ''natural.'' The critical finding is that they are almost entirely oppositional discourses. The contest over what constitutes appropriate landscaping practices for this space provides a locus for bringing to a discursive level, the kinds of socio-cultural perspectives and practices that create and dominate our places in late capitalist society. We suggest that at present the lawn remains a barrier to alternative green space practices. (shrink)