The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently (...) would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

In bioethics, discussions of justice have tended to focus on questions of fairness in access to health care: is there a right to medical treatment, and how should priorities be set when medical resources are scarce. But health care is only one of many factors that determine the extent to which people live healthy lives, and fairness is not the only consideration in determining whether a health policy is just. In this pathbreaking book, senior bioethicists Powers and Faden confront (...) foundational issues about health and justice. How much inequality in health can a just society tolerate. The audience for the book is scholars and students of bioethics and moral and political philosophy, as well as anyone interested in public health and health policy. (shrink)

: The increasing reliance upon, and perhaps the growing public and professional skepticism about, the special expertise of bioethicists suggests the need to consider the limits of moral expertise. For all the talk about method in bioethics, we, bioethicists, are still rather far off the mark in understanding what we are doing, even when we may be going about what we are doing fairly well. Quite often, what is most fundamentally at stake, but equally often insufficiently acknowledged, are inherently (...) class='Hi'>political, essentially contested visions of the most compelling and attractive forms of life for individuals and social organization. The current situation in bioethics parallels similar debates in eighteenth-century jurisprudence, especially Jeremy Bentham's withering critique of the prevalent forms of judicial argument and his own, equally unsuccessful, attempt to develop a decision-making procedure in ethics that would operate on a plane above politics. The risk, both then and now, is that we will fail to appreciate the wide range of reasonable disagreement that will remain past the point of extended reflection and discussion. (shrink)

This book features papers from CEPE-IACAP 2015, a joint international conference focused on the philosophy of computing. Inside, readers will discover essays that explore current issues in epistemology, philosophy of mind, logic, and philosophy of science from the lens of computation. Coverage also examines applied issues related to ethical, social, and political interest. -/- The contributors first explore how computation has changed philosophical inquiry. Computers are now capable of joining humans in exploring foundational issues. Thus, we can ponder machine-generated (...) explanation, thought, agency, and other quite fascinating concepts. The papers are also concerned with normative aspects of the computer and information technology revolution. They examine technology-specific analyses of key challenges, from Big Data to autonomous robots to expert systems for infrastructure control and financial services. -/- The virtue of a collection that ranges over philosophical questions, such as this one does, lies in the prospects for a more integrated understanding of issues. These are early days in the partnership between philosophy and information technology. Philosophers and researchers are still sorting out many foundational issues. They will need to deploy all of the tools of philosophy to establish this foundation. This volume admirably showcases those tools in the hands of some excellent scholars. -/- . (shrink)

This paper questions whether Critchley's ethical project can adequately talk about anarchism without acknowledging the critiques that political position has of philosophy. It argues that Critchley is too quick to dismiss "philosophical anthropology" as a way of understanding the link between politics and a certain notion of infinity. By a comparison of Noam Chomsky and Emmanuel Levinas, it attempts to show that there is a way of conceiving politics that does not give philosophy the final say.

This article considers transdisciplinarity from the standpoint of reading and readers, rather than as a collection of texts, concepts or proper names. It argues that the humanism and anti-humanism debates of the 1950s and 1960s, particularly understood through the work of Jean-Paul Sartre and Louis Althusser, was above all a debate about the politics of reading. Understanding transdisciplinarity to relate to a projected model of post-disciplinarity, the article suggests that transdisciplinarity needs to supplement its conceptual and political remit with (...) a theory of reading, such that reading across disciplines simultaneously becomes a question of reading beyond disciplinary boundaries. (shrink)

New Proposals for New Questions Nuevas propuestas para nuevas cuestiones In six sections, the volume deals with different questions of political philosophy. The first section focuses on democratic theories, the second on conceptual debates, discussing topics such as collective rights, the terrorist phenomenon, Libertarianism and conceptions of freedom. In a third section on contemporary debates, perspectives on sovereignity and legitimacy as well as discourse theory versus political liberalism are discussed. The volume also features essays on democracy (...) and law, and in a section entitled oJudicial construction of democracyo papers on constitutional reviews by judges in the Netherlands as well as the construction of democracy in the context of Latin-American democracies. Finally, in the last section the volume deals with the European Constitutional Treatise, analysing the arguments and examining the legitimacy crisis and the main objections displayed against this treatise. Contents I. On Democratic theory / Teoria de la democracia: Eerik Lagerspetz: The Problem of the Common Good in Democratic Theory Sergiy Maksymov: The Kantian Project of the Law Governed Society and New Democracies II. Conceptual debates / Debates conceptuales: Martin Blanchard: Recognition and the Case of Indigenous Reparations: A Habermasian Critique of Habermas Bronik Matwijkiw: The failed Model of Terrorism Susumu Morimura: The Libertarian View of Human Nature Jonathan E. Soeharno: Freedom as Second Nature. Exploring the value of Hegel's concept of Autonomous Personality for Global institutional theory Hashimoto Tsutomu: On the Concept of Positive and Negative Liberty III. Contemporary debates / Debates contemporaneos: Terhi Kiiskinen: Sovereignty Revisited: On Inalienable Constitutional Power Luiz B. Leite Araujo: A Decade of Debate: Discourse Theory versus Political Liberalism IV. Democracy and law / Democracia y derecho: Kenneth E. Himma: Does it really mather whether a Judicial Decision is morally Legitimate? The practical implications of Judicial Illegitimacy in a otherwise Legitimate State Carl Lebeck: Commitments, Rules and the limits of Constitutionalism Oliver W. Lembcke: Exception Rules? Freedom and the Order in a State of Exception Bart van Klink: Does Necessity knows no Laws? Application of Law in a State of Exception Costanza Margiotta: Ideas and Values of the oLegalo State Jiri Priban: Constitution-Making. Morality and Legal Symbolism: on Identity, Temporality and Differentiation of the legal, political and moral Systems V. Judicial construction of democracy / Construccion judicial de la democracia: Maurice Adams: Judging the Constitution: the Third Way. Some reflections on the introduction of Constitutional Review by Judges in The Netherlands Larry Alexander: What is the Problem of Judicial Review? Roberto Corona Copado: Las reglas del juego democratico. La Suprema Corte de Justicia de Mexico en la solucion de controversias entre organos del poder politico desde 1995 Jose de J. Ibarra Cardenas: La construccion judicial de la Democracia en Iberoamerica VI. Deliberation on European constitutional norm / Deliberacion sobre la nueva constitucion europea: Olaf Tans: Deliberating European Constitucional Norms. An Analysis of arguments Carla M. Zoethout: The Court and the Charter or Who Guards the Court of Justice of the EU under the new Constitution?. (shrink)

In this book, a distinguished international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislatures and courts. The issues are illustrated with recent developments in Australian constitutional law.

What kind of discourse is likely to build up constitutional norms? How do legal-philosophical insights get along with competing political claims? This book presents the main conclusions from the CITC (Congreso Internacional de Teoria Constitucional) in Cordoba, Argentina. While addressing the very foundations of Constitutional Law, leading scholars from Europe and America got together to debate legal and political issues which impinge upon institutional design and polity assessment, political representation and rights protection. Not to mention other vexing (...) challenges such as the proper latitude of judicial review, the threatening phenomena of untamed emergency powers and the current international dimension of supra-national state-building. Beyond governance and human rights discourse, the core content of this book is concentrated on shedding some light on which theoretical and/or political conditions could better stand and give shelter to civil obedience and constitutional patriotism. (shrink)

Jeremy Waldron objects to judicial review of legislation on the ground that it effectively accords the views of a few judges ‘superior voting weight’ to those of ordinary citizens. This objection overlooks that representative government does the same. This article explores the concept of political representation and argues that delegates may be institutionally bound to heed the convictions of their constituents, but they are not their proxies. Rather, they are best viewed as their trustees. They ought to decide (...) according to what they think is in their constituents’ interest. In this sense, a strong element of independent judgment is involved in their institutional role. So, if we have no problem with assigning their views superior voting weight, it should not be thought particularly objectionable to give judges the same power. What is more, once we acknowledge the independence they enjoy, the question arises whether and by what institutional means we ought to constrain and check their power. The judiciary is well suited effectively to carry out this supervisory function, because it is immune from political pressure by the legislature that would reduce it to its instrument. Hence, in some cases the institution of judicial review is morally justified. (shrink)

In contemporary democracies, global capitalism exerts a significant influence over how state power is exercised, raising questions about where political power resides in global politics. This question is important, since our specific considerations about justifiability of political power, i.e. political legitimacy, depend on how we characterize political power at the global level. As a partial answer to this question, I argue that our notion of global political legitimacy should be reoriented to include the structural (...) power of the Transnational Capitalist Class as its subject matter. Structural power is a social relation in which the institutional context makes some agents comply with others’ preferences regardless of actors’ intentional efforts to bring about such outcomes. Even when global business elites do not intentionally exercise power to obtain political control of global governance, their structural power has recognizable effects that partly enforce the world order. To advance my claim, I utilize the radical realists’ argument that the notion of legitimacy is applicable to a broader range of social practices that are beyond dyadic power relations, i.e. rulers intentionally exercising power over subjects. (shrink)

Global Justice and Avant-Garde Political Agency is, first and foremost, a manifesto for an approach to political philosophy*what Ypi calls ‘activist political theory’*and can, I think, be best understood as an attempt to disturb analytic political philosophy from its ‘dogmatic slumber’ and motivate its movement towards the tradition of critical theory. In the first section of this commentary, I will lay out the grounds for this view. Having thus sketched an account of the point and purpose (...) of this text, I will then focus on the relationship of both the methodological and the substantive arguments on global justice to the question of power. At a methodological level, I will argue that Ypi does not take the significance of power sufficiently seriously as an issue for political theory with emancipatory intent. With regard to her substantive arguments concerning global justice and state power, I will argue that she does not adequately address the character of power as a positional good because the analysis does not operate at the fundamentally appropriate institutional level of analysis. (shrink)

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how (...) legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy. (shrink)

Democracy has been a flawed hegemony since the fall of communism. Its flexibility, its commitment to equality of representation, and its recognition of the legitimacy of opposition politics are all positive features for political institutions. But democracy has many deficiencies: it is all too easily held hostage by powerful interests; it often fails to advance social justice; and it does not cope well with a number of features of the political landscape, such as political identities, boundary disputes, (...) and environmental crises. Although democracy is valuable it fits uneasily with other political values and is in many respects less than equal to the demands it confronts. In this volume prominent political theorists and social scientists present original discussions of such central issues. Democracy's Values deals with the nature and value of democracy, particularly the tensions between it and such goods as justice, equality, efficiency, and freedom. (shrink)

Articles on human rights and administrative ideologies for some political issues which have legal implications with reference to Bangladesh.

La "judicialización" es un fenómeno amplio, que resulta de la confluencia de innumerables tendencias históricas y que produce diversos efectos en las prácticas económicas, sociales y políticas. Algunos analistas contemporáneos han advertido que la judicialización implica una profunda transformación sobre las prácticas de gobierno. Este artículo sostiene quela judicialización, especialmente la denominada "judicialización de la política", tienen estrechos vínculos con el neoliberalismo. El problema consiste en que, al día de hoy, son escasos los estudios capaces de corroborar tal relación. ¿Cómo (...) y hasta qué punto la judicialización fue promovida por el neoliberalismo? Para contestar esta pregunta, se procederá al análisis genealógico de una serie de documentos redactados a mediados del siglo XX, siguiendo la hipótesis de que allí emerge un programa de gobierno donde la judicialización no sólo es admitida e incluso promovida, sino además propuesta como una práctica privilegiada de intervención estatal sobre la sociedad. "Judicialization" is a broad phenomenon, which is the result of the confluence of innumerable historical trends and that produces diverse effects on economic, social and political practices. Some contemporary analysts have observed that the judicialization implies a profound transformation in government practices. This article argues that judicialization, especially the so-called "judicialization of politics", has close relations with neoliberalism. The problem is that, at present, there are few studies capable of corroborating this relationship. How and to what extent was the judicialization promoted by neoliberalism? To answer this question, we make a genealogical analysis on a set of documents written in the mid-twentieth century. According to our hypothesis, these documents emerge a program of government where the judicialization is not only admitted and even promoted, but also proposed as a privileged practice of state intervention on society. (shrink)

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and (...) judicial power under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies. (shrink)

This paper investigates the Turkish Constitutional Court (TCC)’s treatment of legal challenges brought against Turkey’s legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC’s institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey’s executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It (...) also argues that the TCC’s judicial restraint during the pandemic was simply the re-manifestation of its ‘play-it-safe’ strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics. (shrink)

Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In On Law, Politics, and Judicialization, two of the world's leading political scientists present the best of their research, focusing on how to build and test a social science of law and (...) courts. The opening chapter features Shapiro's classic 'Political Jurisprudence,' and Stone Sweet's 'Judicialization and the Construction of Governance,' pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the lawmaking dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping 'judicialization of politics' around the world. Chosen empirical settings include the United States, the GATT-WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria. Written for a broad, scholarly audience, the book is also recommended for use in graduate and advanced undergraduate courses in law and the social sciences. (shrink)

This article argues that Bernard Williams’ Critical Theory Principle (CTP) is in tension with his realist commitments, i.e., deriving political norms from practices that are inherent to political life. The Williamsian theory of legitimate state power is based on the central importance of the distinction between political rule and domination. Further, Williams supplements the normative force of his theory with the CTP, i.e., the principle that acceptance of a justification regarding power relations ought not to be created (...) by the very same coercive power. I contend that the CTP is an epistemic criterion of reflective (un)acceptability which is not strictly connected to the question of whether people are dominated or not. I show that there are cases of non-domination that fail the epistemic requirements of the CTP. (shrink)

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

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist: reflecting the ability of judicial review to express and protect citizen’s interests in political participation, political equality, political representation and political accountability. The point of judicial review is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, (...) trustworthiness or competence of judges and legislators. Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges. Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals in justifying power and authority. Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy. (shrink)

"The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit." [Is this just a statement of procedural legitimacy?] "To answer the question [of who assigns rights], courts must take a view as to (...) the proper role of courts vis-a-vis legislatures; they must take a view about the allocation of power in our legal/political system. In drawing this line, courts can take one of two approaches. First, they can make decisions solely on the basis of considerations internal to the relevant clauses of the Constitution, perhaps by giving them a moral reading. Second, they can include in their thinking institutional considerations regarding the role of popular decision-making bodies in our governmental structure." Claims that Dworkin advocates the first [which is false], and that we should accept the second, which is advocated by advocates of judicial restraint. It is appropriate for a judge to give weight to the fact that a decision was reached by a legislature. "Specifically, I think it appropriate that courts presume the constitutionality of such laws, understanding that their own role demands that they overturn them if they are not merely different from what the judges might have decided on their own, but are beyond acceptability." Reasons for the presumption of constitutionality: value of compromise, allocation of power ), appropriateness of humility, integrity and community. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Absolute and Ordained Power of God and King in the Sixteenth and Seventeenth Centuries: Philosophy, Science, Politics, and LawFrancis OakleyThe quintessentially scholastic distinction between God’s power understood as absolute and ordained (potentia dei absoluta et ordinata) has been described “as a ‘yes and no’ answer to the question whether God is able to do or arrange things other than he did in creating the orders of nature and (...) grace.” 1 The importance of that distinction the historical scholarship of the past forty years has served increasingly to indicate. 2 The idea that it expressed had emerged already in the twelfth century, and in the standard form familiar to us from later years we now know it to have surfaced among the theologians of Paris in the opening years of the thirteenth. We also know that long before the end of the thirteenth century it had come to be understood in the two distinct ways that were to persist on through the late medieval and early modern centuries and to be acknowledged in the neo-scholastic manuals of the late nineteenth century.According to the first of these understandings, embedded in the classical formulations given to the distinction by Albertus Magnus, Thomas Aquinas, William of Ockham, and many other later thinkers, the term potentia absoluta was used simply to denote God’s power in itself, taken in abstracto and without reference to the orders of nature and grace he has actually willed de potentia ordinata to establish. There was no question, that is, of the absolute power’s [End Page 669] being understood as a presently-active power by means of which God intervenes in the world to act apart from or set aside the order established by the ordained power. It refers instead to God’s ability to do many things he does not choose to do. Or put in the temporal terms that William Courtenay favors, it refers to “the total possibilities initially open to God, some of which were realized by creating the established order,” the “unrealized possibilities” being “now only hypothetically possible.” 3Side by side with this “classical” usage, however, there had emerged already in the thirteenth century what has been called a “juristic” or “opera-tionalized” understanding of the potentia dei absoluta as a presently-active power of potential interposition in the established order. Thus Duns Scotus, who gave a most influential expression to this alternative understanding, drawing an analogy not only with kings but with any free agent within whose power the law falls, distinguished between the ordained power by which God acts de jure in accordance with the rightful law he has established and the absolute power whereby de facto he can act apart from or against the law. In such a formulation the absolute power clearly exceeds the ordained. Rather than referring simply to the realm of logical possibility prior to God’s ordination of things, that absolute power is now construed as a presently-active and extraordinary power capable of acting apart from the order established de potentia ordinata and prevailing in the ordinary course of things. This “juristic” understanding of the distinction was clearly affiliated closely with the cognate distinction that medieval canonists invoked as early as the thirteenth century in an attempt to elucidate what the pope, in the absoluteness of his plenitudo potestatis, or absolute power, could do that was not open for him to do when acting in accordance with his merely ordained or “ordinary” power.Philosophy and ScienceIn an earlier and complementary article, I traced the career of the power distinction, as well as the persistence of the two distinct ways of understanding it, across the fifteenth century and on into the thinking of sixteenth- and seventeenth-century theologians, Lutheran and Reformed as well as Catholic. 4 It remains now to go on to demonstrate that the currency of the distinction in these later centuries was no more confined to strictly theological circles or settings than it had been during the Middle Ages. The Coimbran commentators and Suárez certainly deployed it for more generally philosophical purposes, 5 [End Page 670] and in the seventeenth century they were by no means... (shrink)

Modern western political thought revolves around globality, focusing on the partitioning and the connecting up of the earth’s surface. But climate change and the Anthropocene thesis raise pressing questions about human interchange with the geological and temporal depths of the earth. Drawing on contemporary earth science and the geophilosophy of Deleuze and Guattari, this article explores how geological strata are emerging as provocations for political issue formation. The first section reviews the emergence – and eventual turn away (...) from – concern with ‘revolutions of the earth’ during the 18th- and 19th-century discovery of ‘geohistory’. The second section looks at the subterranean world both as an object of ‘downward’ looking territorial imperatives and as the ultimate power source of all socio-political life. The third section weighs up the prospects of ‘earth system governance’. The paper concludes with some general thoughts about the possibilities of ‘negotiating strata’ in more generative and judicious ways. (shrink)

Un ouvrage qui rassemble les contributions des meilleurs spécialistes de la pensée de Ronald Dworkin sur des questions cruciales pour nos démocraties comme la discrimination positive, la neutralité de l'Etat, la liberté religieuse ou encore l'avortement et l'euthanasie.

Lawyering for the Rule of Law introduces a new model of government lawyering in which government lawyers function as an ancillary mechanism that enables the court to expand its influence on policy-making within the political branches by forming out-of-court settlements. It discusses the centrality of government lawyers with regard to judicial mobilization and the enforcement of social reforms through adjudication, and sheds light on particular functions of government lawyers as adjudicators and facilitators of institutional arrangements. It also discusses (...) the ethical and professional dilemmas of government lawyers in judicial review and the relationship between lawyers' professional morality and outcomes in litigation. (shrink)

This important book examines Spinoza's moral and political philosophy. Specifically it considers Spinoza's engagement with the themes of Stoicism and his significant contribution to the origins of the European Enlightenment. Firmin DeBrabander explores the problematic view of the relationship between ethics and politics that Spinoza apparently inherited from the Stoics and in so doing asks some important questions that contribute to a crucial contemporary debate. Does ethics provide any foundation for political theory and if so in what (...) way? Likewise, does politics contribute anything essential to the life of virtue? And what is the political place and public role of the philosopher as a practitioner of ethics? In examining Spinoza's Ethics, his most important and widely-read work, and exploring the ways in which this work echoes Stoic themes regarding the public behaviour of the philosopher, the author seeks to answer these key questions and thus makes a fascinating contribution to the study of moral and political philosophy. (shrink)

What, if anything, is problematic about the involvement of celebrities in democratic politics? While a number of theorists have criticized celebrity involvement in politics (Meyer 2002; Mills 1957; Postman 1987) none so far have examined this issue using the tools of social epistemology, the study of the effects of social interactions, practices and institutions on knowledge and belief acquisition. This paper will draw on these resources to investigate the issue of celebrity involvement in politics, specifically as this involvement relates to (...) democratic theory and its implications for democratic practice. We will argue that an important and underexplored form of power, which we will call epistemic power, can explain one important way in which celebrity involvement in politics is problematic. This is because unchecked uses and unwarranted allocations of epistemic power, which celebrities tend to enjoy, threaten the legitimacy of existing democracies and raise important questions regarding core commitments of deliberative, epistemic, and plebiscitary models of democratic theory. We will finish by suggesting directions that democratic theorists could pursue when attempting to address some of these problems. (shrink)

On 25 May 1993 the United Nations Security Council took the extraordinary and unprecedented step of deciding to establish the International Criminal Tribunal for the Former Yugoslavia as a mechanism for the restoration and maintenance of international peace and security. This was an extremely significant innovation in the use of mandatory enforcement powers by the Security Council, and the manifestation of an explicit link between peace and justice - politics and law. The establishment of ad hoc tribunals for the former (...) Yugoslavia and Rwanda was followed by the adoption of the Rome Statute of the ICC in July 1998, the arrest of General Augusto Pinochet in London in October 1998, and the establishment of ad hoc tribunals in Cambodia, Sierra Leone, and East Timor, all of which pointed to an emerging norm of international criminal justice. The key to understanding this is the relationship between the political mandate and the judicial function. The Tribunal was established as a tool of politics, but it was a judicial, not a political tool.This book provides a systematic examination of the Tribunal, what it is, why it was established, how it functions, and where its significance lies. The central question is whether an international judicial institution, such as the Tribunal, can operate in a highly politicized context and fulfill an explicit political purpose, without the judicial process becoming politicized. Separate chapters chart the origins of the court, the process of establishment, jurisdiction, procedure, state co-operation, including obtaining custody of accused, and the role and function of the Chief Prosecutor. This last element is the key to the Tribunal's success in maintaining a delicate balancing act so that its external political function does not impinge on its impartial judicial status, and instead enhances its effectiveness. The book concludes with an assessment of the conduct of the Milosevic case to date. (shrink)

Most of the writers who contributed to the issue were locked up at the time in Italian jails.... I was trying to draw the attention of the American Left, which still believed in Eurocommunism, to the fate of Autonomia. The survival of the last politically creative movement in the West was at stake, but no one in the United States seemed to realize that, or be willing to listen. Put together as events in Italy were unfolding, the Autonomia issue--which has (...) no equivalent in Italy, or anywhere for that matter--arrived too late, but it remains an energizing account of a movement that disappeared without bearing a trace, but with a big future still ahead of it.--Sylvère LotringerSemiotext is reissuing in book form its legendary magazine issue Italy: Autonomia: Post-Political Politics, originally published in New York in 1980. Edited by Sylvère Lotringer and Christian Marazzi with the direct participation of the main leaders and theorists of the Autonomist movement, this volume is the only first-hand document and contemporaneous analysis that exists of the most innovative post-'68 radical movement in the West. The movement itself was broken when Autonomia members were falsely accused of being the intellectual masterminds of the Red Brigades; but even after the end of Autonomia, this book remains a crucial testimony of the way this creative, futuristic, neo-anarchistic, postideological, and nonrepresentative political movement of young workers and intellectuals anticipated issues that are now confronting us in the wake of Empire. In the next two years, Semiotext will publish eight books by such Italian "Post-Fordist" intellectuals as Antonio Negri, Christian Marazzi, Paolo Virno, and Bifo, as they update the theories of Autonomia for the new century.Sylvère Lotringer, general editor of Semiotext, lives in New York and Baja California. He is the author of Overexposed: Perverting Perversions, 2007). Christian Marazzi, an Italian economist, lives in Switzerland. He is the author of Capital and Language: From the New Economy to the War Economy and Sock's Place, both forthcoming from Semiotext. (shrink)

Mask-wearing political protests have been global front page news for several years now; yet, almost no literature exists which attempts to engage the symbolic density and ritual role played by such mask-wearing acts. We argue that mask-wearing has political potentiality which relates to deeper-lying anthropological features of mask-wearing. The powers of the mask reside in the transformative ability of masks to unify and transcend key oppositional categories such as absence/presence and death/life, creating possibilities where conventional boundaries of the (...) possible/impossible no longer restrict. By questioning the communicative rationality of the modern ‘public’ and the ‘sphere’ in which it operates, we approach mask-wearing as a ‘communicative opening’. Building on earlier critiques of liberal democratic normativity, we further argue that the ‘utopia of transparency’ is itself a regulatory power and that mask-wearing exposes the very notions that were supposed to form the background of modern, emancipatory politics: transparency, free speech and representative democracy. (shrink)

In this article, we address the relevance of J.S. Mill’s political philosophy for a framework of public health ethics. In contrast to some readings of Mill, we reject the view that in the formulation of public policies liberties of all kinds enjoy an equal presumption in their favor. We argue that Mill also rejects this view and discuss the distinction that Mill makes between three kinds of liberty interests: interests that are immune from state interference; interests that enjoy a (...) presumption in favor of liberty; and interests that enjoy no such presumption. We argue that what is of focal importance for Mill in protecting liberty is captured by the essential role that the value of self-determination plays in human well-being. Finally, we make the case for the plausibility of a more complex and nuanced Millian framework for public health ethics that would modify how the balancing of some liberty and public health interests should proceed by taking the thumb off the liberty end of the scale. Mill’s arguments and the legacy of liberalism support certain forms of state interference with marketplace liberties for the sake of public health objectives without any presumption in favor of liberty. (shrink)

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

In Rawls’s political liberalism, legitimate exercises of political power must be publicly justifiable to reasonable citizens on grounds each can coherently accept, where citizens count as “reasonable” only if they can accept certain values of public culture. Other citizens have no say in public justification, or no equal say. For Rawls, then, legitimate political power must accord with a subset of cultural values, and can be legitimate even if it is not (equally) justifiable to people who cannot (...) accept them. Does this mean that Rawls permits that such people be dominated? What kind of domination, if any, would this involve, and would it involve “cultural” domination? This chapter takes its lead from these questions. It offers a reading of the role of public justification in political liberalism that foregrounds differences in the discursive standing of reasonable and unreasonable people, and interpret these differences in domination-theoretic terms. I suggest that there is reason to believe that Rawls’s view would subject the unreasonable–a mixed group that also includes respectable people–to forms of discursive and political domination, and this in a manner that attracts the worry that cultural domination is involved. (shrink)

Posner's “pragmatic” defense of broad judicial deference to legislative power still reflects the shortcomings noted in my review of his Law, Pragmatism, and Democracy. His pragmatism still fails to provide meaningful criteria for decision making that do not collapse into an indeterminate relativism; and his argument that strict constraints on judicial power are required by respect for democracy underestimates the importance of two serious interconnected weaknesses of the modern state: widespread voter ignorance, and interest‐group exploitation of that ignorance.

The axiom at the heart of this article stipulates that everything that can be extracted from Heidegger's thought by way of political contribution can be so extracted only from a position that is itself essentially non-political. This means that everything Heidegger says about politics, or that can be seen to resonate with our political situation, is articulated from a position or a space that is itself not political, a space that, furthermore, defines and decides the essence (...) of politics. His contribution, then, is not to the political debate as such. Rather, it consists in asking whether what is historically at stake in politics and played out in political terms is itself political, and so a matter for political thought, or whether the questions and concepts of political thought are themselves shaped in response to a phenomenon, possibly an event, which it, as political thought, cannot interrogate, or even intimate. Following Heidegger, I envisage our political situation from a non-political perspective, and provide the measure for an evaluation of contemporary politics as an ontohistorical phenomenon. This, I do by following a lead Heidegger develops in the 1930s and 1940s, and by focusing on the concept of Macht, the translation of which will turn out to raise key philosophical issues. Despite its obvious political connotations and overtones, this concept will turn out to designate a phenomenon that is not so much political, as it is metaphysical: it is metaphysics itself, and metaphysics in its entirety, that is of power. This means that all metaphysics is metaphysics of power, and that power itself is through and through metaphysical. Politics, especially modern politics, turns out to be an effect of Macht understood as a metaphysical phenomenon. Having revealed the structure of power, its logic, imperatives and different regimes, I consider briefly the possibility of a politics that would not be governed by such a principle of power, the possibility of what I would call a politics of powerlessness, or a politics of the otherwise than power (Ohnmacht). Could that be ‘politics’ in the highest and ownmost sense? Could ‘Europe’ stand for such radical politics? (shrink)

Examines the moral and political philosophies of John Locke in comparison with his predecessors and contemporaries such as Hobbes and Filman.

As a growing area of research, the philosophy of time is increasingly relevant to different areas of philosophy and even other disciplines. This book describes and evaluates the most important debates in philosophy of time, under several subject areas: metaphysics, epistemology, physics, philosophy of language, philosophy of mind, cognitive science, rationality, and art. -/- Questions this book investigates include: Can we know what time really is? Is time possible, especially given modern physics? Must there be time because we cannot (...) think without it? What do we experience of time? How might philosophy of time be relevant to understanding the mind-body relationship or evidence in cognitive science? Can the philosophy of time help us understand biases toward the future and the fear of death? How is time relevant to art – and is art relevant to philosophical debates about time? Finally, what exactly could time travel be? And could time travel satisfy emotions such as nostalgia and regret? -/- Through asking such questions, and showing how they might be best answered, the book demonstrates the importance philosophy of time has in contemporary thought. Each of the book’s 10 chapters begins with a helpful introduction and ends with study questions and an annotated list of further readings. This and a comprehensive bibliography at the end of the book prepare the reader to go further in their study of the philosophy of time. (shrink)

In this essay, the author shows how Foucault's discussions of pastoral power relate to a wider “analytics” of religious power set down in 1975 and 1976 before he deploys the language of the “pastoral”. In shifting the discussion of pastoral power to a wider trajectory, the author considers the question of whether pastoral power persists after the historical shift to governmentality. The chapter maps the specific features of Foucault's idea of pastoral power in the 1977–78 College de France course and, (...) aided by the “dry and schematic character” of the lectures. It examines one of the most neglected aspects of pastoral power, the theological relation of pastoral power, something brought to light in the 1977–78 course. The priority Foucault gave to pastoral power is significant not only for its “decisive” historical importance, but also in showing something of how “religion is a political force”. (shrink)

: The focus of questions of justice in health policy has shifted during the last 20 years, beginning with questions about rights to health care, and then, by the late 1980s, turning to issues of rationing. More recently, attention has focused on alternatives to cost-effectiveness analysis. In addition, health inequalities, and not just inequalities in access to health care, have become the subject of moral analysis. This article examines how such trends have transformed the philosophical landscape and encouraged (...) some in bioethics to seek guidance on normative questions from outside of the contours of traditional philosophical arguments about justice. (shrink)