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.’.

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)

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.

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)

Principles of justice, David Estlund argues, cannot be falsified by people’s unwillingness to satisfy them. In his Utopophobia, Estlund rejects the view that justice must bend to human motivation to deliver practical implications for how institutions ought to function. In this paper, I argue that a substantive argument against such bending of justice principles must challenge the reasons for making these principles sensitive to motivational limitations. Estlund, however, provides no such challenge. His dispute with benders of justice is therefore a (...) verbal one over the true meaning of justice, which need not worry those with the intuition that justice should perform a function that requires bending. By focusing on John Rawls’s reasons for bending his justice principles, I point towards a substantive critique of bent justice. (shrink)

John Rawls thinks republicanism is compatible with his political liberalism. Philip Pettit insists that the two conflict in important ways. In this paper, I make sense of this dispute by employing David Chalmers’s method of elimination to reveal the meaning underlying key terms in Rawls’s political liberalism and Pettit’s republicanism. This procedure of disambiguating terms will show how the two theories defend the same institutional arrangement on the same grounds. The procedure thus vindicates Rawls’s view of the two theories being (...) compatible. The reason for this compatibility is that both theories are politicized—that is, they are constructed to attract the compliance of all reasonable members of a modern, pluralistic society. (shrink)

According to group-agent realism, treating groups as agents with their own intentional states, irreducible to those of the group members, helps us explain and predict the groups’ behavior. This pap...

A moralised conception of freedom is based on a normative theory. Understanding it therefore requires an analysis of this theory. In this paper, I show how republican freedom as non-domination is moralised, and why analysing this concept therefore involves identifying the basic components of the republican theory of justice. One of these components is the non-moralised pure negative conception of freedom as non-interference. Republicans therefore cannot keep insisting that their freedom concept conflicts with, and is superior to, this more basic (...) concept. I demonstrate how we can use pure negative freedom to formulate the republican theory more precisely. This exercise is more fruitful than the common focus on the alleged conflict between the two freedom concepts. (shrink)

In a reply to my recent paper “The Cost of Denying Intrinsic Value in Nature,” Rut Vinterkvist raises an important objection to my claim that environmentalists must ascribe intrinsic value to some natural entities to consistently defend the protectionist views I believe many of them have. To defend this claim, I provided three hypothetical cases, involving threatened natural entities, designed to show that only an intrinsic value of these respective entities could explain a reason to protect them. My claim was (...) that, even in these cases, environmentalists would generally find the natural entities in question protection-worthy. Against this claim, Vinterkvist argues that environmentalists can consistently opt for protection of these entities without ascribing any intrinsic value to them, the idea being that we can argue for protection of the entities on the basis that other people care for them (for whatever reasons, if any). We should protect them, not for their own sake, but for the sake of those who care for them. In this response, I explain why I believe her suggestion—challenging to my argument as it is—does not provide a proper option for environmentalists who want to argue for protection in these and similar cases. (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)

Abstract Applied ethics is commonly carried out on the assumption that moral decisions can be handled by experts. This involves a failure to recognize that being morally serious means recognizing that one cannot hand over responsibility for certain decisions to anyone else. The idea of moral expertise is shown to be based on a misconstrual of the nature of moral discourse, one that can be overcome by following Wittgenstein's exhortation to philosophers to pay heed to the actual uses of language. (...) The sense of a moral judgment cannot be considered in isolation from what the speaker is doing in the context of utterance. The author concludes by suggesting that this discussion can provide the basis for a new reading of Anscombe's essay ?Modern Moral Philosophy? (shrink)

Introduction: What is evil and how can we understand it? -- The theology of evil -- Theodicies -- The privation theodicy -- The free will theodicy -- The Iraenean theodicy -- The totality theodicy -- History as secular theodicy -- Job's insight-the theodicy of the hereafter -- Anthropology of evil -- Are people good or evil? -- The typologies of evil -- Demonic evil -- Evil for evil's sake -- Evil's aesthetic seduction -- Sadism -- Schadenfreude -- Subjective and objective (...) evil -- Kant and instrumental evil -- The impossibility of a "devilish" will -- The paradox of evil -- Moral rebirth -- The evil is the other-idealistic evil -- "Us" vs. "them" -- Violent individuals -- Arendt and stupid evil -- The evil and the stupid -- Radical and banal evil -- Eichmann, Hoss, and Stangl -- Normal people and extreme evil -- Thinking as opposition -- Evil people -- The problem of evil -- Theory and praxis -- Ethics of conviction and ethics of responsibility -- Politics and violence -- Evil as a concrete problem. (shrink)

Richard Arneson argues that Fair Equality of Opportunity should be rejected, since it is not only too weak and too strong, but also problematically meritocratic. The paper aims to defend FEO, and argues that it is not too weak, since, pace Arneson, it does apply to the problem of stunted ambition. The argument from meritocracy is shown to be based on a conflation of different senses of meritocracy. Finally, it is shown that FEO, correctly interpreted, gives intuitive answers to the (...) examples put forward to bolster the too strong charge. It is concluded that Arneson’s refutation of FEO fails. (shrink)

In her latest book _Spying Through a Glass Darkly: The Ethics of Espionage and Counter-Intelligence_, Cécile Fabre suggests that the deception of third parties during an infiltration operation can be justified as a foreseen but unintended side effect. In this essay, I criticize this view. Such deception, I argue, is better justified paternalistically as a means of preventing third parties from becoming wrongful threats. In the second part of the article, I show that Fabre ignores an important moral complication in (...) deception operations where agents intentionally allow others to be harmed as a means of protecting a secret. I argue that intentionally allowing harm to others as a means is a particularly problematic mode of agency which must be addressed in a normative account of espionage. (shrink)

In this article I argue for an empiricist view on laws. Some laws are fundamental in the sense that they are the result of inductive generalisations of observed regularities and at the same time in their formulation contain a new theoretical predicate. The inductive generalisations simul- taneously function as implicit definitions of these new predicates. Other laws are either explicit definitions or consequences of other previously established laws. I discuss the laws of classical mechanics, relativity theory and electromagnetism in detail. (...) Laws are necessary, whereas acciden- tal generalisations are not. But necessity here is not a modal concept, but rather interpreted as short for the semantic predicate “... is necessarily true”. Thus no modal logic is needed. The neces- sity attributed to law sentences is in turn interpreted as “necessary condition for the rest of the the- ory”, which is true since fundamental laws are implicit definitions of theoretical predicates use in the theory. (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)

Technik ist allgegenwärtig. Sie durchdringt nicht nur die Produktion von Gütern und die Wissenschaften, auch unser Alltagsleben ist weitgehend durchwebt mit technischen Anordnungen unterschiedlichster Form und Ausprägung. Dabei ist den einzelnen technischen Artefakten häufig nicht anzusehen, wie stark sie nicht nur unsere Umwelt beeinflussen, sondern sogar unser Erkennen und Verstehen mitprägen. Dieser Zirkel von Verstehen und Gestalten, Gestalten und Verstehen kann als ein hermeneutischer Zirkel der Technik beschrieben werden. Die Beiträge des Sammelbandes setzen sich in diesem Sinne mit Aspekten einer (...) philosophischen Begründung von technischem Handeln auseinander, versuchen verschiedene Deutungen etablierter Wissenschaften zu hinterfragen und geben Aussichten auf mögliche Gestaltungsansätze. Technik wird dabei nicht als dem Menschen gänzlich äußerlich und entgegengesetzt begriffen, sondern als ihm wesentlich inhärent - als Teil verständnisorientierten Handelns und handlungsorientierten Verstehens. (shrink)

Kimi zaman akademik hayatımızı doğrudan etkileyen kararların kimler tarafından nerede ve nasıl alındığını bilemeyebiliriz. Kimi zaman da bilsek bile bu akademik toplumun şeffaf olduğu anlamına gelmeyebilir. Doktora sonrası yurda dönmeden önce, tezimi okuyan hocalarımdan “Orada seni anlayan birilerini bulabilecek misin?” gibi bir soru gelmişti. Sorunun doğru yanıtının ne olduğundan emin değildim; hala da değilim.

Electromagnetism is usually understood as a theory describing how charged particles and eletromagnetic fields interact. In this paper I argue that a double ontology comprising both particles and fields is problematic. Either we should think of electromagnetism as a theory about charged particles directly interacting with each other, or as theory of fields whose local interactions are manifested as field quanta, called "particles." From a purely theoretical point of view the choice between a particle and a field interpretation does not (...) matter much when it concerns classical electromagnetism; both interpretations are possible and, as shown by Quine, there is a general method for translating a theory about one kind of objects into a theory assuming another kind of objects, provided these theories are empirically equivalent. From an empiricist point of view, however, the particle interpretation is the choice, since some particles are directly observable. Testable predictions of electromagnetism are predictions of the motion of charged bodies, in theory represented as particles, so this must be the empiricists' choice of ontology. In quantum electrodynamics one is however forced to chose a field ontology, since a particle ontology for this theory is impossible. So called "quantum particles" are field quanta, which cannot be treated as individuals making up a domain of quantification. There is thus a tension regarding ontology between classical and quantum electrodynamics. But this tension is nothing else than the much debated measurement problem of quantum mechanics. (shrink)

I Möten med historiens mångfald ger nästa generation av svenska historiker läsaren en inblick i sina pågående eller nyss avslutade forskningsarbeten.