Three paradigms of legal positivism -- The pure theory of law : science or political theory? -- Kelsen's principles of legality -- Kelsen's theory of democracy : reconciliation with social order -- Democratic constitutionalism : Kelsen's theory of constitutional review -- Kelsen's legal cosmopolitanism -- Conclusions : the pure theory of law and contemporary positivism.

‘Bill Scheuerman’s ‘The End of Law’ offers a compelling case for the claim that Carl Schmitt’s constitutional theory is not authentically democratic. This does not entail, however, that Schmitt’s views are of no relevance for understanding the contemporary crisis of democracy. Schmitt’s arguments offer a blueprint for the populist-authoritarian subversion of democracy. Defenders of democracy are therefore well-advised to engage with Schmitt’s ideas.’.

ABSTRACTIt is often held that the legitimacy of a democratic constitution depends on its production by constituent power. This paper argues that the notion of legitimation by constituent power face...

Neo-Republicans claim that Hobbes’s constitutional indifferentism (the view that we have no profound reason to prefer one constitutional form over another) is driven exclusively by a reductive understanding of liberty as non-interference. This paper argues that constitutional indifferentism is grounded in an analysis of the institutional presuppositions of well-functioning government that does not depend on a conception of liberty as mere non-interference. Hence, indifferentism cannot be refuted simply by pointing out that non-domination is a distinctive ideal of freedom. This result (...) does not suffice to defend the strong version of indifferentism put forward by Hobbes. But it does point to an important limitation of neo-republican constitutional theory: Neo-republicanism will amount to a distinctive paradigm of constitutional thought only if it is understood in a way that conflicts with Hobbes’s understanding of the institutional presuppositions of well-functioning government. It is doubtful that we have good reason to embrace neo-republicanism, so understood. (shrink)

This paper aims to assess the relevance of the notion of the material constitution for democratic constitutional theory. It is argued that the concept of material constitution is a useful antidote...

Hans Kelsen's critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen's attack on Austin anticipated the key elements of Hart's rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin's conception of sovereignty reveals important differences in purpose and intention between Kelsen's Pure Theory of Law and Hart's legal theory. The Pure Theory of Law is animated (...) by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory. (shrink)

Christopher Wellman has argued that legitimate states enjoy a right to freedom of association that necessarily includes a right to exclude immigrants. This paper shows that Wellman’s argument for this conclusion is unsound since it is based on a construction of collective rights that is inapplicable to the rights of a state.

Gustav Radbruch’s famous article Statutory Lawlessness and Supra-Statutory Law1 puts forward two key theses. The first of these, which will not concern me here, is a claim about the nature of law....

Volume 11, Issue 1, March 2020, Page 131-139.

This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under Article (...) 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories. (shrink)

In ‘The Republic’, Plato famously reduced practical authority to theoretical authority, arguing that a just society must be governed by philosophers. This idea of the philosopher-king flourished in the medieval specula principum. The medieval papacy was grounded on a similar blend of practical and theoretical authority. The Pope was credited with the capacity to decide on the truth of beliefs because he was elected to office. In their fight against the omnicompetence of the Pope, Marsilius of Padua and William of (...) Ockham were aware that in order to contain the power of the papal office, they had to find a way of legitimately distinguishing between theoretical and practical authority. Consequently, both of them severed the traditional link between political theory and virtue ethics, considering the virtue and the wisdom of the ruler as accidental to the legitimacy of government. In contrast to this demotion of theoretical authority in the state, both Marsilius and William argued that experts should play a bigger role in the church. The definition of true belief and heresy should not, according to them, lie in the hands of an elected official (i. e. the Pope), but rather in the hands of theological experts. This article aims to show that the critique of the papal monarchy gave rise to a new understanding of the distinction between theoretical and practical authority. (shrink)

Die Transformation der römischen Welt ist ein hoch aktuelles und viel diskutiertes Thema der Geschichtswissenschaft. Die Bedeutung von Verwandtschaft für diesen epochalen Prozess wurde bislang kaum untersucht. Der Sammelband schließt diese Lücke, indem er die Rolle der Verwandtschaft für die Umwandlung der sozialen Ordnung in den Blick nimmt. Er erweitert damit maßgeblich die Perspektive auf den Epochenumbruch von der Spätantike zum Mittelalter.

The book provides the first critical edition of the Dialogus written in Latin by William of Ockham in the 14th century. The dialogue is Ockham's chief work on political philosophy which engages with questions of property rights, natural law, and the theory of nation-states.

This paper presents a version of neurophenomenology based on generative modelling techniques developed in computational neuroscience and biology. Our approach can be described as _computational phenomenology_ because it applies methods originally developed in computational modelling to provide a formal model of the descriptions of lived experience in the phenomenological tradition of philosophy (e.g., the work of Edmund Husserl, Maurice Merleau-Ponty, etc.). The first section presents a brief review of the overall project to naturalize phenomenology. The second section presents and evaluates (...) philosophical objections to that project and situates our version of computational phenomenology with respect to these projects. The third section reviews the generative modelling framework. The final section presents our approach in detail. We conclude by discussing how our approach differs from previous attempts to use generative modelling to help understand consciousness. In summary, we describe a version of computational phenomenology which uses generative modelling to construct a computational model of the inferential or interpretive processes that best explain this or that kind of lived experience. (shrink)

The purpose of this article is to critically assess the ‘three-world theory’ as it is presented—with some slight but decisive differences—by Jürgen Habermas and Karl Popper. This theory presents the philosophy of science with a conceptual and material problem, insofar as it claims that science has no single access to all aspects of the world. Although I will try to demonstrate advantages of Popper’s idea of ‘the third world’ of ideas, the shortcomings of his ontological stance become visible from (...) the pragmatic point of view in Habermas’s theory of communicative acts. With regard to the critique that the three-world theory has met in both its pragmatic and ontological versions, I will take a closer look at John Searle’s naturalistic counter-position. By teasing out some problematic implications in his theory of causation, I aim to show that Searle’s approach is, in fact, much closer to Popper’s than he might think. Finally, while condoning Habermas’s distinction between the natural world and the lifeworld, I will opt for a pragmatically differentiated view of ‘the real’, rather than speaking of different worlds. (shrink)

Critical discussion of Lenin’s What Is to Be Done? is hindered by a series of historical myths. Issues such as the following need to be studied more empirically and more critically: Did the attitudes of early readers of WITBD? reflect Lenin’s alleged ‘worry about workers’? Did the events of 1905 cause Lenin to renounce his earlier views about the workers and about party-organisation, giving rise to disputes with Bolshevik activists? Did either Lenin or Trotsky ever rethink and reject the ideological (...) positions that Karl Kautsky defended before World-War I? These and related issues are addressed with close attention to source-material. (shrink)

Romano Guardini gilt als einer der massgeblichen christlichen Denker des 20. Jahrhunderts. Seine Schriften, philosophische und theologische Abhandlungen, aber auch zahlreiche meditative und spirituelle Texte, haben eine weltweite Verbreitung gefunden und pragen ungebrochen bis heute Generationen von Leserinnen und Lesern. Der vorliegende Band, der aus Anlass des 50. Todestages Romano Guardinis am 1. Oktober 2018 sowie zur Eroffnung des Seligsprechungsprozesses erscheint, versammelt Beitrage namhafter Autorinnen und Autoren. Aus unterschiedlichen Perspektiven widmen sie sich insbesondere Guardinis Buch "Der Herr" uber Person und (...) Botschaft Jesu Christi, aber beispielsweise auch Aspekten der Gottesfrage, der Ethik oder des Gebets. Eine Fundgrube fur alle, die sich der Person und dem Denken Guardinis neu nahern mochten. Mit Beitragen von Hanna-Barbara Gerl-Falkovitz, Jean Greisch, Karl Kardinal Lehmann (+), Peter Reifenberg, Marius Reiser, Peter Schallenberg, P. Kosmas Lars Thielmann OCist, Karl-Heinz Wiesemann. (shrink)

This article assesses the value of Karl Popper's situational analysis for contem porary sociology We maintain that this element of Popper's social science methodology has been largely neglected by sociologists and suggest that this is because it is borrowed from economics. As such, situational analysis has much in common with recent attempts to introduce rational choice in sociology. Our main question is this: What is the contribution of situational analysis to the current debate about rational choice in sociology? Our (...) answer is that Popper has little to add to this debate. His formulation of situational analysis is too general and too vague to be much of a guide to research. Among other things, situational analysis fails to pay due attention to interests and to social interaction in the explanation of social phenomena. On the positive side, we notice that Popper does include social institutions as the most important element in individuals' situations. (shrink)

Aggregating individuals’ consistent attitudes might produce inconsistent collective attitudes. Some groups therefore need the capacity to form attitudes that are irreducible to those of their members. Such groups, group-agent realists argue, are agents in control of their own attitude formation. In this paper, however, I show how group-agent realism overlooks the important fact that groups consist of strategically interacting agents. Only by eliminating group agency from our social explanations can we see how individuals vote strategically to gain control of their (...) groups and produce collective attitudes we cannot make sense of if we treat groups as agents. (shrink)

Public reason liberals expect individuals to have justificatory reasons for their views of certain political issues. This paper considers how groups can, and whether they should, give collective public reasons for their political decisions. A problem is that aggregating individuals’ consistent judgments on reasons and a decision can produce inconsistent collective judgments. The group will then fail to give a reason for its decision. The paper considers various solutions to this problem and defends a deliberative procedure by showing how it (...) incentivizes information sharing and leads to outcomes most acceptable to the group members. (shrink)

Hannah Arendt and Theodor W. Adorno, two of the most influential political philosophers and theorists of the twentieth century, were contemporaries with similar interests, backgrounds, and a shared experience of exile. Yet until now, no book has brought them together. In this first comparative study of their work, leading scholars discuss divergences, disclose surprising affinities, and find common ground between the two thinkers. This pioneering work recovers the relevance of Arendt and Adorno for contemporary political theory and philosophy and lays (...) the foundation for a critical understanding of political modernity: from universalistic claims for political freedom to the abyss of genocidal politics. (shrink)

The revival of republicanism was meant to challenge the hegemony of liberalism in contemporary political theory on the grounds that liberals show insufficient concern with institutional protection against political misrule. This article challenges this view by showing how neorepublicanism, particularly on Philip Pettit’s formulation, demands no greater institutional protection than does political liberalism. By identifying neutrality between conceptions of the good as the constraint on institutional requirements that forces neorepublicanism into the liberal framework, the article shows that neutrality is what (...) neorepublicans must jettison to offer a tenable critique of liberalism. Only then can neorepublicans ensure greater protection against misrule by demanding that citizens participate more actively in politics. They can then also criticize liberalism for failing to appreciate the importance of such protection. (shrink)

Institutions promoting republican freedom as non-domination are commonly believed to differ significantly from institutions promoting negative freedom as non-interference. Philip Pettit, the most prominent contemporary defender of this view, also maintains that these republican institutions are neutral between the different conceptions of the good that characterise a modern society. This paper shows why these two views are incompatible. By analysing the institutional requirements Pettit takes as constitutive of republican freedom, I show how they also promote negative freedom by reducing overall (...) interference. To avoid this result, republican institutions must be more restrictive and require that citizens conform to a life of political engagement. But then republican freedom will not be a neutral ideal. Rejecting negative freedom therefore means sacrificing neutrality. (shrink)

Can groups really be agents or is group agency just a fiction? Christian List and Philip Pettit argue influentially for group-agent realism by showing how certain groups form and act on attitudes in ways they take to be unexplainable at the level of the individual agents constituting them. Group agency is therefore considered not a fiction or a metaphor but a reality we must account for in explanations of certain social phenomena. In this paper, I challenge this defence of group-agent (...) realism by showing how it is undermined by individual-level analysis of how individuals interact within groups. While group agency can be a useful fiction, real agents are at the individual level, not the collective level. (shrink)

According to Niklas Luhmann, causality is both an impossibility and a necessity in education. On the one hand, the task of the teacher is an impossible one, because teaching as communication is a closed system that cannot determine the learning of pupils' psychical system in any causal sense. On the other hand, one cannot practice as a teacher without a belief in causality, i.e., in a causal connection between teaching and learning. In his article “The Child as the Medium of (...) Education,” Luhmann focuses on the enablement of education, despite its impossibility. His answer is that one thing that makes education possible is the emergence of the symbolically generalized medium “the child.” In this article, Lars Qvortrup focuses on Luhmann's understanding of causality. According to Luhmann, causality is not a simple, ontological fact, but the result of the attribution of certain causes to certain effects. The conclusion is that causality as an attribution category — and not causality as an ontological fact — is another thing that makes education possible. Qvortrup also concludes, however, that Luhmann is not alone in criticizing the traditional, mechanical concept of causality. Other contemporary philosophers and sociologists have pointed out that in order to analyze causality in complex social systems, one has to select some causal factors and ignore others. While others do this based on seemingly pure scientific and statistical criteria, Luhmann focuses on attribution as a social construction of causality. (shrink)

This study examined the influence of two organizational context variables, codes of conduct and supervisor advice, on personnel decisions in an experimental simulation. Specifically, we studied personnel evaluations and decisions in a situation where codes of conduct conflict with supervisor advice. Past studies showed that supervisors’ advice to prefer ingroup over outgroup candidates leads to discriminatory personnel selection decisions. We extended this line of research by studying how codes of conduct and code enforcement may reduce this form of discrimination. Eighty (...) German managers evaluated and selected candidates from an applicant pool including Germans (ingroup members) and foreigners (outgroup members). Supervisor advice to prefer ingroup members lowered suitability ratings of outgroup members as well as their chances to be selected for an interview. Ethical codes of conduct referring to equal opportunities limited this form of discrimination, but only when codes were enforced by sanctions and integrated into organizational every-day practice. The implications of these findings for research and practice are discussed. (shrink)

In the debate on how we ought to define political freedom, some definitions are criticized for implying that no one can ever be free to perform any action. In this paper, I show how the possibility of freedom depends on a definition that finds an appropriate balance between absence of interference and protection against interference. To assess the possibility of different conceptions of freedom, I consider the trade-offs they make between these two dimensions. I find that pure negative freedom is (...) clearly possible. Republican freedom might also be possible, though its protection requirement is too vague for a definitive verdict. Finally, the recently proposed ‘freedom as independence’ is impossible since it is an attempt to avoid the unavoidable trade-off. (shrink)

This article is a response to Thomas David Riisfeldt’s paper entitled ‘Weakening the ethical distinction between euthanasia, palliative opioid use and palliative sedation’. It is shown that as far as euthanasia and palliative sedation are concerned, Riisfeldt has not established that a common ground, or a similarity, between the two is the relief of suffering. Quite the contrary, this is not characteristic of euthanasia, neither by definition nor from a clinical point of view. Hence, the argument hinges on a conceptually (...) and empirically erroneous premise and is accordingly a non-starter. (shrink)