Critical Security Studies proceeds from the premise that words are world-making, that is that the ways we think about security are constitutive of the worlds of security we analyse. Turned to conventional security studies and the practices of global politics, this critical insight has revealed the ways in which the exclusions that are the focus of this conference have been produced. Perhaps most notable in this regard has been David Campbell's work, showing how the theory and practice of security (...) are an identity discourse producing both insides and outsides, but the production of excluded others is a theme that runs through the critical scholarship on security in the past decade or more. This article turns the critical security studies gaze on itself, to explore the field's own complicity in the production of exclusions. The article reads three important instances of critical security studies for the inclusions and exclusions they produce: Ken Booth's Theory of World Securitv , the epilogue to David Campbell's Writing Security , and the CASE Collective Manifesto. The article concludes by asking about the nature of the inclusions and exclusions these divisions produce and the politics which those exclusions, in turn, (re)produce. (shrink)

Hardly known twenty years ago, exclusion from public space has today become a standard tool of state intervention. Every year, tens of thousands of homeless individuals, drug addicts, teenagers, protesters and others are banned from parts of public space. The rise of exclusion measures is characteristic of two broader developments that have profoundly transformed public space in recent years: the privatisation of public space, and its increased control in the 'security society'. Despite the fundamental problems it raises, (...) class='Hi'>exclusion from public space has received hardly any attention from legal scholars. This book addresses this gap and comprehensively explores the implications that this new form of intervention has for the constitutional essentials of liberal democracy: the rule of law, fundamental rights, and democracy. To do so, it analyses legal developments in three liberal democracies that have been at the forefront of promoting exclusion measures: the United Kingdom, the United States, and Switzerland. (shrink)

Jaegwon Kim has argued that unless mental events are reducible to subvening physical events, they are at best overdeterminers of their effects. Recently, nonreductive physicalists have endorsed this consequence claiming that the relationship between mental events and their physical bases is tight enough to render any such overdetermination nonredundant, and hence benign. I focus on instances of this strategy that appeal to the notion of constitution. Ultimately, I argue that there is no way to understand the relationship between irreducible mental (...) events and their physical bases such as to both eliminate causal redundancy and preserve the efficacy of mental events. (shrink)

Through an analysis of the US Supreme Court's case Heller this paper argues that legal process can be pragmatically reconceptualized so as to create information necessary to decide complex social issues. This is in contrast to other more standard conceptions of law as more emphasizing what information ought to be excluded.

In his path-breaking study, A Colonial Liberalism: The Lost World of Three Victorian Visionaries (1991), Stuart Macintyre makes a case for the distinctiveness of colonial liberalism and its local habitat, with liberals' insistence on the principle of political equality and the democratic right of self-government. Macintyre's three visionaries — Higinbotham, Pearson and Syme — were also leading crusaders against Chinese immigration, which peaked in Victoria in the 1850s, the decade in which self-government and manhood suffrage were introduced. The local habitat (...) wore a racial aspect. In this essay I suggest that it was precisely the democratic ideal of equality, espoused in the context of Chinese immigration and colonial nation-building, that led to the insistence on racial exclusion. Colonial liberals called for racial exclusion because of, not in spite of, their commitment to democracy. The apparent paradox of a policy of exclusion promoted in the name of equality was, I suggest, definitive of the project of colonial liberalism. (shrink)

Choć samo zjawisko wykluczenia społecznego nie jest nowe, to jego waga, zwłaszcza w perspektywie praw człowieka, została doceniona stosunkowo niedawno. „Wykluczenie społeczne” nie jest kategorią konstytucyjną. Celem opracowania jest ogólne usytuowanie problematyki wykluczenia w kontekście zagadnień konstytucyjnych. Zmierza się do dookreślenia, czym jest wykluczenie społeczne oraz do wskazania zasadniczych konstytucyjnych punktów odniesienia, pozwalających na podjęcie tego problemu. Właściwe wykluczeniu społecznemu jest złożoność przyczyn - sam brak środków finansowych nie musi prowadzić do wykluczenia, choć proces wykluczania może być zainicjowany jednym wydarzeniem. (...) Jednak wykluczenia nie można adekwatnie scharakteryzować jedynie poprzez jego przyczyny. Wielowymiarowość dotyczy także przejawów wykluczenia. O wykluczeniu społecznym w sensie właściwym mówi się wówczas, gdy ograniczenia dotyczą jednocześnie wielu sfer życia społecznego. Chodzi przy tym o sfery fundamentalne, istotne . Charakterystyczne dla wykluczenia jest dłuższe trwanie w czasie. Często ma wymiar przestrzenny – procesy wykluczania prowadzą do wyodrębnienia obszarów, enklaw zamieszkanych przez wykluczanych, co jeszcze bardziej utrwala stan wykluczenia. Procesy wykluczania prowadzą niekiedy do zjawiska zwanego dziedziczeniem biedy czy wykluczenia. Ochrona przed wykluczeniem, wolność od niego, została uznana za prawo człowieka; prawo niesprowadzalne do tradycyjnie formułowanych praw gospodarczych, socjalnych i kulturalnych; mimo że wykluczenie społeczne dotyczy przede wszystkim udziału w życiu gospodarczym, społecznym i kulturalnym. Wykluczenie jest powiązane z naruszeniem zasady równości, jednak nie daje się ująć jedynie w perspektywie tej zasady, przy czym w szeregu istotnych punktów różni się od dyskryminacji w korzystaniu z praw człowieka. Poszukując w Konstytucji RP, w której brak jest kategorii „wykluczenia społecznego” zasadniczych punktów odniesienia należy poszukiwać w zasadzie godności z art. 30 oraz – w stosunku do obywateli – w art. 1. Jako pomocnicze punkty odniesienia można wskazać zasady sprawiedliwości społecznej, solidarności oraz równości, a także konstytucyjny katalog wolności i praw, przede wszystkim wolności i praw ekonomicznych, socjalnych i kulturalnych. (shrink)

In my book, The Rights of Others, I developed a discourse-theoretic approach to questions of political membership in liberal democracies, which include practices of citizenship, as well as of immigration, refuge and asylum. This article revisits five issues in response to various criticisms. How can we justify democratic exclusions? Is there a `right to membership' and how can it be reconciled with the different practices of various constitutional democracies? Is there a distinction between normatively acceptable and normatively problematic restrictions on (...) political membership? Does the concept of `democratic iterations' describe normative or empirical processes? How plausible is the binarism of the national and the global? I argue that democratic exclusions can be justified by not discriminating against would-be citizens and immigrants on the basis of ascriptive criteria. Ascriptive characteristics, like one's sex and skin colour, are not the product of one's voluntary doings. Democratic iterations are empirical processes which can be judged in the light of normative criteria deriving from discourse theory. Furthermore, while the binarism of national and global is problematical, alternative configurations of political membership at the present are not more defensible. (shrink)

Central to the freedom of association is the freedom to exclude. In fact, American constitutional law permits associations to discriminate on otherwise prohibited grounds, a principle of expressive discrimination or what I call "expressive exclusion." However, we lack a complete normative defense of it. Too often, expressive exclusion is justifi ed as a simple case of religious accommodation, or a simple case of freedom of association or speech—justifi cations that are defi cient. I argue that expressive exclusion (...) is essential in creating genuine space for democratic dissent. It stands at the intersection of speech, association, and democracy. (shrink)

Recent literature on the ‘exclusions’ of the modern nation-state has missed a major transformation in the legitimate mode of excluding, from group to individual-based. This transformation is explored in a discussion of universalistic trends in contemporary Western states’ immigration and citizenship policies. Conflicting with the notion of a ‘nation-state’ owned by a particular ethnic group or nation, these trends are better captured in terms of a ‘liberal state’ that has self-limited its sovereign prerogatives by constitutional principles of equality and individual (...) rights. (shrink)

Jaegwon Kim’s principle of Explanatory Exclusion says there can be no more than a single complete and independent explanation of any one event. Accordingly, if we have a complete neurological explanation for some piece of human behavior, the mental explanation must either be excluded, or it must not be distinct from the neurological explanation. Jaegwon Kim argues that mental explanations are not distinct from neurological explanations on account of the fact that they refer to the same objective causal relation (...) between events. A number of critics have argued that this extensional model of explanatory individuation allows for too many descriptions to state the same explanation. In this paper I consider, and ultimately reject, a possible response to these critics called the Constitutive Property Reply. (shrink)

Central to the freedom of association is the freedom to exclude. In fact, American constitutional law permits associations to discriminate on otherwise prohibited grounds, a principle of expressive discrimination or what I call "expressive exclusion." However, we lack a complete normative defense of it. Too often, expressive exclusion is justifi ed as a simple case of religious accommodation, or a simple case of freedom of association or speech—justifi cations that are defi cient. I argue that expressive exclusion (...) is essential in creating genuine space for democratic dissent. It stands at the intersection of speech, association, and democracy. (shrink)

Marya Schechtman takes issue with analytic philosophy's emphasis on the first sort of question to the exclusion of the second.

Philosophical dialetheism, whose main exponent is Graham Priest, claims that some contradictions hold, are true, and it is rational to accept and assert them. Such a position is naturally portrayed as a challenge to the Law of Non-Contradiction (LNC). But all the classic formulations of the LNC are, in a sense, not questioned by a typical dialetheist, since she is (cheerfully) required to accept them by her own theory. The goal of this paper is to develop a formulation of the (...) Law which appears to be unquestionable, in the sense that the Priestian dialetheist is committed to accept it without also accepting something inconsistent with it, on pain of trivialism—that is to say, on pain of lapsing into the position according to which everything is the case. This will be achieved via (a) a discussion of Priest's dialetheic treatment of the notions of rejection and denial; and (b) the characterization of a negation via the primitive intuition of content exclusion. Such a result will not constitute a cheap victory for the friends of consistency. We may just learn that different things have been historically conflated under the label of 'Law of Non-Contradiction'; that dialetheists rightly attack some formulations of the Law, and orthodox logicians and philosophers have been mistaken in assimilating them to the indisputable one. (shrink)

In the late 19th century, a comprehensive semantics of crowds emerged in European social theory, dominated in particular by Gustave Le Bon and Gabriel Tarde. This article extracts two essential, but widely neglected, sociological arguments from this semantics. First, the idea that irrationality is intrinsic to society and, second, the claim that individuality is plastic rather than constitutive. By following the destiny of this semantics in its American reception, the article demonstrates how American scholars soon transformed the conception of (...) crowds. Most importantly, the theoretical cornerstone of the European semantics, the notion of suggestion, was severely challenged in the USA. It is argued that this rejection of the suggestion doctrine paved the way for a distinctive American approach to crowds and collective behaviour in which the early European emphasis on irrationality was ignored and crowds were analysed as rational entities. This may have relieved the discomfort of irrationality but it is also entirely disposed of what were in fact crucial sociological insights. The article recalls the semantics of crowds in order to evoke an early branch of social theory that still contains a provocative gesture. (shrink)

In “Stereotyping as Discrimination: Why Thoughts Can Be Discriminatory,” I propose that stereotyping someone—even if you manage to keep your thoughts hidden and don’t act on them—can constitute a form of discrimination (2021b). What, Alex Madva asks, are the practical implications of this claim? Even if I am correct that stereotyping constitutes a form of discriminatory treatment, it’s still possible that people should keep on speaking and acting as if “discrimination” refers exclusively to behaviors and policies. He invites me to (...) explore the “potential payoffs and perils” of referring to thoughts and perceptions as discriminatory, especially as they relate to legal practice and social-scientific inquiry (2021, 46). (shrink)

This chapter contains sections titled: Interpretation According to Law References.

How can we determine what are just boundaries or just criteria for inclusion or exclusion in contemporary states, nations, peoples, or other 'communities of justice'? As Barbieri demonstrates, recent theories of justice have failed to grapple squarely with this fundamental problem, either wholly ignoring it, or approaching it, inadequately, in terms of distributive or commutative justice, or simply declaring the problem insoluble. Developing a clear understanding of the peculiarities of constitutive justice, Barbieri contends, is a task that has (...) important implications for political philosophy as it bears on topics such as citizenship, migration, multiculturalism, self-determination, and the drafting of new constitutions. To this end, Constitutive Justice critically discusses some present approaches that promise to shed light on constitutive questions involving inclusion and the ethics of boundaries; provides an analysis of some of the central topics that plausible normative theories of constitutive justice will need to address; and develops the author's own constructive account. (shrink)

This study shows how three Chilean media construct in their discourse the social actor ‘secondary students’, in a multimodal way. It focuses on the representation of Televisión Nacional de Chile (also known as TVN), El Dínamo and El Ciudadano of this social group which is often suppressed suppressed from the media sphere. It is a qualitative study with a social semiotic approach, following the guidelines of Visual Grammar and the typology of representation of social actors by van Leeuwen (2003). The (...) corpus comprised 15 multimodal texts of 2018 compiled from internet sites, which constitute a semiotic chain of a news event about education. The results suggest that TVN creates the meaning of an ‘aggressor student’, El Dínamo as a ‘student to be reformed’; whereas El Ciudadano, represents him as a social actor who is an ‘active participant’. (shrink)

In The Causal Exclusion Problem, the popular strategy of abandoning any one of the principles constituting the causal exclusion problem is considered, but ultimately rejected. The metaphysical foundations undergirding the causal exclusion problem are then explored, revealing that the causal exclusion problem cannot be dislodged by undermining its metaphysical foundations – as some are in the habit of doing. Finally, the significant difficulties associated with the bevy of contemporary nonreductive solutions, from supervenience to emergentism, are expanded (...) upon. While conducting this survey of contemporary options, however, two novel approaches are introduced, both of which may resolve the causal exclusion problem from within a nonreductive physicalist paradigm. (shrink)

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...) the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 36.2 (2003) 119-134 [Access article in PDF] The Constitution of Rhetoric's Tradition Maurice Charland Rhetoric is not a discipline. That is to say, as a domain of theoretical and practical knowledge, rhetoric is weakly institutionalized, lacking a centralized arbiter and standardized set of procedures for establishing truth claims. It also lacks the basic characteristics that Michel Foucault defines as disciplinary, for while we can identify "groups (...) of objects, methods, their corpus of properties considered to be true, the interplay of rules and definitions, of techniques and tools," these are neither universally admitted, nor do they "constitute a sort of anonymous system, freely available to whoever wishes, or whoever is able to make use of them, without their being any question of their meaning" (1972, 222). On the contrary, despite the fact that rhetoric is usually figured as offering practical and, indeed, positive knowledge, the meaning of its terms is always being questioned and at stake. While we might, by considering terms loosely, seek to identify rhetoric in terms of objects such as "persuasion," or "discourse," these are not exclusively its province. Furthermore, the ends of rhetoric are themselves unclear. Is rhetoric really the art of discovering the available means of persuasion? Or is it an art of citizenship? Or a method of enquiry? It has at times been defined as each. Consequently, none of these methods can fix its identity. At most, we can say that "rhetoric," as a domain of knowledge, signals a commitment to the idea of agency in discourse.Rhetoric, while not disciplinary, nevertheless "hangs together" as a domain of knowledge even though it does not cohere conceptually. It is, or comes close to being, a "discursive formation." That is to say, we can identify a field that produces statements concerning discourse and its operations, which is characterized by certain regularities that articulate with the term rhetoric itself. The first such regularity is the gesture of negation. Rhetoric refuses philosophy (or acts out having been refused by philosophy). [End Page 119] Rhetoric further is defined against other intellectual genres: rhetoric is not poetics, is not political science, is not ethics, though it may "speak" to them. Ultimately, though, this tells us very little about the nature of rhetoric's difference, for while refusal is effective in positing the existence of a boundary between rhetoric and other domains, the location of that boundary and what it contains remains unspecified. Rhetoric must also be attributed an at least provisional sense. This is accomplished by rhetoric's second gesture, which initially appears more substantial. Rhetoric is framed in terms of the positivity of a foundational "tradition." Indeed, the gesture toward tradition is ubiquitous. Consider, for example, both the title and principles of organization of Patricia Bizzell and Bruce Herzberg's (1990) anthology, George Kennedy's (1998) recursion to the idea of "tradition" even as he attempts to present rhetoric as a natural and cross-cultural phenomenon, recent feminist works that explicitly address "the tradition," 1 the routine citation of Classical authorities and examples, the recurrence of "new" rhetorics, including Burke's dramatism, Perelman's theory of argumentation, as well as Barthes' semiotics, which are offered as supplements to tradition's lacks, and, finally, the energy devoted to the study of the history of rhetoric. The rhetorical tradition, as something bequeathed or put in play by ancient teachers, appears to offer rhetoric a substance, a literature, and a set of problems, particularly through variants of two other principles of discursive formation identified by Foucault, commentary and the author-function. Even so, the gesture toward tradition does not imply the existence of a historically rooted and fixed corpus or model: "Tradition" is a vague term, there is no unproblematic canon of texts to be commented upon, and tradition itself, rather than Aristotle, Plato, or Cicero, stands as "author." What we debate is the meaning of the "tradition," the uneasy relationship between Socrates and Sophists, Plato and Aristotle, but as positions rather than personae. Furthermore, in the name of rhetoric, ancient and modern texts are often read against the grain, and what is... (shrink)

The mass movement of people across the globe constitutes a major feature of world politics today. -/- Whatever the cause of the movement - often war, famine, economic hardship, political repression or climate change - the governments of western capitalist states see this 'torrent of people in flight' as a serious threat to their stability and the scale of this migration indicates a need for a radical re-thinking of both political theory and practice, for the sake of political, social and (...) economic justice. -/- This book argues that there is at present a serious gap between the legal and social practices of immigration and naturalisation in liberal democratic states and any theoretical justification for such practices that can be made within the tradition of liberal political philosophy. How can liberal states develop institutions of democratic citizenship and at the same time justifiably exclude 'outsiders' from participating in those institutions? The book examines various responses to this contradiction within the liberal tradition, and finds none of them satisfactory - there are no consistently liberal justifications for immigration control and this has serious implications both for liberal practice and theory. (shrink)

The critical concept of commodity fetishism and its developed forms of money and capital fetishism ground the contemporary shape of social life under the rule of capital. This chapter offers a novel interpretation based on Marx’s Capital, elucidating the oft-overlooked interconnection of the fetishism triptych that accounts for domination, as well as the normalisation of exploitation as experienced in capitalist life. In commodity fetishism, a market-based pseudo-social ‘thing-hood’ preponderates over commodity owners and producers, concealing the double inversion that constitutes the (...) ‘world of commodities’. Money’s fetish form makes it appear as the ‘sovereign’ of the commodity world, possessing the exclusive social power to establish the value hierarchy of all persons and objects relativised in regard to it. The universal condition of monetisation of the life process in bourgeois society necessitates the adoption of the competition principle, leading to the generalised formation of a commodity self, shaped by competitive individualism. The social separation of the great mass of commodity producers from the means of production and the consequent need to sell themselves as commodities in the form of wage labour constitutes the social basis of capital fetishism, through which the process of capital ‘valorisation’ is enfolded within the process of use value production, disappearing into its socio-material character and thus naturalised. Capital fetishism dissimulates the production of surplus value by social labour and constructs the harmonised appearance of an equitable contribution of ‘factors of production’ in the sharing of the surplus product, thereby obscuring distributional struggles over it. Such antagonisms over surplus undergird the logic of neoliberal capitalism’s two-pronged strategy, pursuing ‘deregulation of labour relations’ on the one hand and dismantling the welfare state on the other. (shrink)

En el presente texto analizaremos la categoría de pluralidad como componente indispensable para pensar en la construcción de una comunidad no totalitaria y como impedimento a ciertos modos contemporáneos de dejar fuera-de una comunidad a determinados grupos humanos. La cuestión de fondo, que no pretendemos resolver aquí, es la posibilidad de pensar un mundo en donde quepan muchos mundos. Propondremos la categoría de pluralidad para abordar esta cuestión tanto a partir del análisis realizado por Hannah Arendt, como por Jean-Luc Nancy. (...) En un primer momento nos detendremos en la figura de la exclusión del mundo a partir de las nociones de apátrida trabajada por Arendt, necropolítica por el filósofo camerunés Achille Mbembe y la idea de inmundicia elaborada por Nancy. Desde allí podremos tomar la perspectiva que buscamos para el análisis de la pluralidad, donde plantearemos, por una parte las infranqueables diferencias e incompatibilidades entre el análisis arendtiano y nancyano de la pluralidad como proponer algunas confluencias. Finalmente propondremos la exigencia de un momento de autoafirmación y vinculación de la pluralidad que es lo que hace que esta pueda constituir un mundo y muchos mundos a la vez, este momento es el nosotros, trabajado también por Arendt, Nancy y Roig. In the following text we will analyse the category of plurality as an essential element to think of the construction of a nontotalitarian community and as an impediment to particular contemporary modes of leaving certain specific human groups “out of” a community. The bottom line, which we do not intend to solve here, is the possibility to think a world in which many worlds fit. We will propose the category of plurality to approach this issue both from the analysis carried out by both Hannah Arendt and by Jean-Luc Nancy. At first we will consider the representation of exclusion from the world starting from the notions of stateless developed by Arendt, necropolitics by Cameroonian philosopher Achille Mbembe, and the idea of filth by Nancy. From there we can take the perspective that we seek for the analysis of plurality, posing on the one hand the insurmountable differences and incompatibilities between Arendt’s and Nancy’s analysis of plurality, and, on the other hand, some of their confluences. Finally, we will propose the necessity of a moment of self-assertion and connection of plurality that permits the constitution of this plurality as one and many worlds at the same time this moment is “us”, addressed also by Arendt, Nancy and Roig. (shrink)

It has become an academic self-evidence that space can only inadequately be conceptualized as a material or earth-bound base for social processes. This could commend a theoretical view of space as the outcome of action, which brings both social production practices and bodily deployment into focus. The action-theoretical perspective allows the constitution of space to be understood as taking place in perception. Not only are things alone perceived but also the relations between objects. This article develops a space-theoretical concept according (...) to which space is constituted through acts as the outcome of synthesis and positioning practices. This opens up a theoretical perspective defining atmospheres as an external effect, instantiated in perception, of social goods and human beings in their situated spatial order/ing. Exclusion and inclusion are accordingly comprehended in terms of perception of the attunement of places. With reference to Anthony Giddens, this article discusses how space can be understood as a duality of structural ordering and action elements. (shrink)

Évidemment, penser une constitution européenne ne relève pas de la compétence propre et exclusive des juristes. Les philosophes, les historiens, les politistes, les économistes, les psychanalystes ont, chacun dans leur domaine, des titres à faire valoir pour fonder également leur légitimité à parler « constitution européenne » ; les hommes politiques, les partis, les associations,..

Is there a problem of causal exclusion between micro- and macro-level physical properties? I argue (following Kim) that the sorts of properties that in fact are in competition are macro properties, viz., the property of a (macro-) system of 'having such-and-such macro properties' (call this a 'macro-structural property') and the property of the same system of 'being constituted by such-and-such a micro- structure' (call this a 'micro-structural property'). I show that there are cases where, for lack of reducibility, there (...) is a prima facie intra-level causal competition between the two kinds of properties. The problem can be resolved without giving up on the causal efficacy of the macro-structural properties if we understand instances of macro-structural properties to be parts of micro-structural property instances. The parthood relation between both kinds of property instances can be mapped onto the way physical theory deals with the relation of their descriptions in the framework of perturbation theory. The application of this framework to the problem of emergent properties is discussed. (shrink)

The present debate on constitutional rights aims to protect the individual against the intrusive power of the state. Analysing the precarious relationship between art and money, the authors argue that constitutional rights need to be extended into the regimes of private governance. This requires four fundamental changes. (1) Constitutional rights can no longer be limited to the protection of individual actors. Instead, they need to be extended to guarantees of freedom of discourses. (2) The new experience of the twentieth century (...) is that totalizing tendencies have their origin not only in politics, but also in other fields of action, especially in technology, science, and the economy. Thus, a discursive concept of constitutional rights should be directed against any social system with totalizing tendencies. (3) Instead of concentrating on centres of economic and social power, constitutional rights in the private sphere should focus on the specific communicative medium of the expansionist social system involved. (4) This excludes the direct analogy of a ‘right’ as a quasispatial exclusion zone. More significant guarantees of discursive autonomy could be found in a ‘proceduralization’ of constitutional rights. (shrink)

Kim's exclusion argument threatens to show that irreducible constituted objects are epiphenomenal. Kim's arguments are examined and found to be unconvincing; that a constituted cause requires its constituent to be a cause is not an adequate reason to reject the causation of the constituted object (event or property-instance). However, I introduce and argue for, the Causal Power Uniqueness Condition (CPUC). I argue that CPUC and the causal closure of the physical, implies that constituted objects or property-instances are not novel (...) causal powers. (shrink)

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)

The article is addressing one of the central but maybe the most ambiguous and multilayered concepts of Husserl’s phenomenology. Husserl’s insisting on a form of intentionality that implies not just conscious directedness towards objects, but also a constitutive function of mental acts, led to some serious accusations of his idealism and solipsism. Justification of such accusations depends exclusively on whether we understand constitution in an ontological sense, as a creative process which brings worldly entities into being, or in an (...) epistemological sense, as a process which enables us to identify and to interpret a particular givenness as something. In early stages of phenomenology, a so-called “hylomorphic” theory of constitution prevailed, which stated that object of our experience can be present for us only if some sense-data is formed in our intentional acts by a meaning-giving component. This theory proved to be unsatisfying when Husserl turned to a phenomenological description of temporal objects, discovering that not just objects, but also intentional acts have a distinct temporal structure. However, the analysis of temporal constitution reaches even further, because the idea of the “living present”, and its triadic structure of retention-primal impression-protention, holds the key to an explanation of horizon-intentionality, and offers the answer to an essential transcendental question: How is it possible for us to be aware of the world towards which all of our intentional life is directed, and from which all of the motivation for our actions originates? (shrink)

Theories of deliberative democracy have faced the charge of leading to the unjust exclusion of voices from public deliberation. The recent rhetorical turn in deliberative theory aims to respond to this charge. I distinguish between two variants of this response: the supplementing approach and the systemic approach. On the supplementing approach, rhetorical modes of political speech may legitimately supplement the deliberative process, for the sake of those excluded from the latter. On the systemic approach, rhetorical modes of political speech (...) are legitimate within public deliberation, just so long as they result in net benefits to the deliberative system. I argue that neither of these two approaches adequately meets the unjust exclusion charge. Whereas the supplementing approach does not go far enough to incorporate rhetorical speech into public deliberation, the systemic approach goes too far by legitimizing forms of rhetoric that risk only exacerbating the problem of unjust exclusion. More constructively, I draw on Aristotle’s conception of rhetoric, as an art that is a counterpart to dialectic, to argue for a constitutive approach to rhetoric. I show how this approach provides a more expansive notion of deliberation that remains normatively orientated. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is that policymaking (...) is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

The ‘consensus’ model of public reason, associated with John Rawls’s political liberalism, has been criticised for excluding certain reasons from receiving consideration where the justification of the constitutional essentials is concerned. One limitation of these criticisms is that they typically focus on the exclusion of reasons political liberals are committed to excluding, notably reasons based on religious and comprehensive views. I argue that public reason excludes some reasons, central to the interests of many oppressed groups, that public reason advocates (...) will agree should not be excluded.L’idée de raison publique comme «consensus», associée au libéralisme politique de John Rawls, a été attaquée du fait de sa supposée incapacité à permettre la prise en compte de certaines raisons dans les cas où la substance même de la constitution est en question. Une limitation de ces critiques est qu’elles se concentrent habituellement sur l’exclusion de ces raisons que les libéraux eux-mêmes s’efforcent d’exclure, en particulier des raisons fondées sur des vues globales ou religieuses. Je défends l’idée selon laquelle la raison publique exclut de fait certaines raisons, essentielles aux intérêts de nombreux groupes opprimés, que les tenants de la raison publique eux-mêmes considèreraient ne pas devoir être exclues. (shrink)

Theories of deliberative democracy have faced the charge of leading to the unjust exclusion of voices from public deliberation. The recent rhetorical turn in deliberative theory aims to respond to this charge. I distinguish between two variants of this response: the supplementing approach and the systemic approach. On the supplementing approach, rhetorical modes of political speech may legitimately supplement the deliberative process, for the sake of those excluded from the latter. On the systemic approach, rhetorical modes of political speech (...) are legitimate within public deliberation, just so long as they result in net benefits to the deliberative system. I argue that neither of these two approaches adequately meets the unjust exclusion charge. Whereas the supplementing approach does not go far enough to incorporate rhetorical speech into public deliberation, the systemic approach goes too far by legitimising forms of rhetoric that risk only exacerbating the problem of unjust exclusion. More constructively, I draw on Aristotle’s conception of rhetoric, as an art that is a counterpart to dialectic, to argue for a constitutive approach to rhetoric. I show how this approach provides a more expansive notion of deliberation that remains normatively orientated. (shrink)

In June 2019 Victoria became the first state in Australia to permit “voluntary assisted dying”, with its governance detailed in the Voluntary Assisted Dying Act 2017. While taking lead from the regulation of medically assisted death practices in other parts of the world, Victoria’s legislation nevertheless remains distinct. The law in Victoria only makes VAD available to persons determined to be “already dying”: it is expressly limited to those medically prognosed to die “within weeks or months.” In this article, we (...) discuss the emergence of the Victorian legislation across key formative documents. We show how, in devising VAD exclusively for those “already at the end of their lives”, the Victorian state mobilizes the medico-legal category of the already dying. We argue that this category functions to negotiate a path between what are seen as the unacceptable alternatives of violent suicide on the one hand, and an unlimited right to die on the other. Further, we argue that the category of the already dying operates to make medical practitioners the gatekeepers of this new life-ending choice and effectively limits the realization of autonomy at the end of life. (shrink)

Buchanan and Keohane argue that institutional reform is required to reverse the inertia that has too often constituted the international response to intra-state crises. Their proposal, however, does not constitute a viable solution to the problem they so convincingly identify.

Free software introduces a challenge to the classical conception of individual rights. The model of software licensing given by the General Public License generates the question whether it constitutes an exercise or a wavering of copyright. It is argued in this paper that the later alternative is entrenched in the classical concept of freedom as autonomy, which, by its turn, is reflected in a classical conception of individual rights based on the model of propriety as a dominion over an exclusive (...) object (res). We provide grounds for a concept of non-exclusive individual rights, based on the notion of freedom as reciprocity, in order to obtain more solid legal foundations for the free licensing of software. The concept of freedom as reciprocity and the corresponding reconstruction of non-exclusive subjective rights achieved in this paper is an exercise in general theory of law and thus may be applied to other legal fields where the classical notion of freedom and the property of exclusivity do not fit properly. (shrink)

The constitution’s standing as a legal act of the highest power not only ensures its exclusive status in the legal system but also determines the hierarchic certainty of all norms within that system. The explicit character of the constitution does not preclude it from ensuring the hierarchical functionality of the legal system. This latter function requires that the limitation “problem” of explicitness be addressed by interpreting the constitution as a systemic document. Applying the constitution, therefore, requires a continuous effort in (...) comprehending it. The official doctrine of constitutional judicial institutions reflects the standard for understanding the constitution. This standard becomes the sole source, not only de jure, but significantly de facto, for determining the legality of legal acts. The constitution, as the prime and foremost law in a country, determines the functionality of the entire system of legal norms. As a legal source, it takes on the role of the material arbiter of final legality. The constant need to ensure the functioning of the system of legal norms hence informs yet another necessity–to apprehend and understand the constitution and the norms and principles established within. A few factors induce this perpetual need for interpretation, those being (a) the abstractness of constitutional norms, (b) “competition” among constitutional norms, (c) the integral and systemic nature of the constitution, and (d) the problem of legislative/regulative omission in the constitution. (shrink)

There is a dichotomy in the Humean thought that morality is more properly felt than judged of. The idea of a moral sensibility with an epistemic and rational content is grounded in the experience of the state of nature, and a distinction made between a defensive and a constructive morality, constituted by a set of motivations, against the law of the strongest, and protective of the relationships of education and creative work, exclusion from which undermines the conditions for a (...) constructive morality. Aesthetic education is a means of overcoming the sectarianism of defensive morality. (shrink)

Dharmakīrti’s apoha theory of concept formation aims to provide an account of intersubjectivity without relying on the existence of real universals. He uses the pan-Yogācāra theory of karmic imprints to claim that sentient beings form concepts by treating unique particulars as if a certain subset of them had the same effects. Since this judgment of sameness depends on an individual's habits, desires, and sensory capacities, and these in turn depend on the karmic imprints developed over countless lifetimes and continuously reshaped (...) by ongoing actions, the extent to which individuals experience themselves as acting within a shared world depends on these imprints. However, a number of critics—traditional and contemporary—have expressed compelling doubts about whether or not apoha can be successful given Dharmakīrti's ontology which, in addition to denying universals, eventually denies the reality of even the most basic structure of conventional experience: subject/object duality. In line with the tradition he inherits, Dharmakīrti considers even the mere division of a moment of awareness into defined structures of subject and object to be a distortion shaped by beginningless karmic imprints. While this initial moment of awareness is nonconceptual, the experience of a certain world is always already shaped by the previous actions of sentient beings trapped within the web of saṃsāra, in a process driven by ignorance. Dharmakīrti’s reliance on karmic imprints on two distinct levels—one within the conventional world, and one which constitutes the conventional world—may thereby provide a compelling account of intersubjectivity without relying on universals. (shrink)

I argue that the completeness of physics is composed of two distinct claims. The first is the commonly made claim that, roughly, every physical event is completely causally determined by physical events. The second has rarely, if ever, been explicitly stated in the literature and is the claim that microphysics provides a complete inventory of the fundamental categories that constitute both the causal features and intrinsic nature of all the events that causally affect the physical universe. After showing that these (...) claims are distinct, I argue that they can be used to solve a difficulty with existing responses to the exclusion problem—namely, that these existing responses also undermine the powerful causal argument for physicalism. Recognizing that there are two kinds of completeness opens up room for the nonreductive physicalist to solve the exclusion problem while also endorsing a modified, cogent causal argument for a kind of physicalism compatible with her position. (shrink)

In contemporary discourse, inclusion has evolved into a core value, with inclusive societies being lauded as progressive and inherently positive. Conversely, exclusion and excluding practices are typically deemed undesirable. However, this paper questions the prevailing assumption that inclusion is always synonymous with societal progress. Could it be that exclusion, in certain contexts, serves as a more effective tool for advancing societal development? Is there a more intricate interconnection between these phenomena than conventionally acknowledged? This paper advocates moving beyond (...) a simplistic inclusion/exclusion dichotomy and puts forth two theses. First, it posits that exclusion can, at times, be a superior metric for gauging progress. Second, it contends that inclusion and exclusion are thoroughly entwined, challenging the notion of a clear demarcation between them. The underlying premise is that, much like inclusion, there can be meaningful value associated with exclusion. Furthermore, applying a rigid inclusion/exclusion dichotomy oversimplifies the discourse on societal progress, providing an artificial representation of what constitutes advancement. Such oversimplification hampers both contemporary research in the humanities and broader political discourse. The primary objective of this paper is to introduce a fresh perspective to the discourse surrounding societal progress. By challenging the fundamental conceptual framework, it seeks to add nuance to the ongoing debate, fostering a more comprehensive understanding of the complexities inherent in measuring progress within society. (shrink)

This paper proposes an exploration of relationships and exchanges between the philosophies of Cavell and Kuhn by the study of aspects of the philosophy of Wittgenstein. Although the notions of language games and family resemblances used by Kuhn in The Structure of Scientific Revolutions have been elaborated by Wittgenstein, Cavell’s reading of Wittgenstein inspired that of Kuhn. I will attempt to show that against this background, Cavell’s conception of the relations of arts, works of arts, and artists, can be relevantly (...) compared to Kuhn’s conception of the relations of sciences, scientific successes, and scientific practitioners. Three ways of elucidating the mutual exchanges between Cavell and Kuhn may be distinguished: One consists in clarifying the ways in which Cavell and Kuhn explicitly mutually inspired each other. Another one consists in clarifying that Cavell’s Wittgenstein inspired Kuhn. And a third one consists in clarifying that Wittgenstein inspired both Kuhn and Cavell and the ways in which he inspired them. This third way is not exclusive of the first two and even contributes to these by rendering explicit their stakes. For at stake is not only the restitution of the truth of an exegetical mediation: that Kuhn’s Wittgenstein cannot be truly understood without accounting for Cavell’s Wittgenstein. Rather the transitive character of the mediation implied by interpretation does not substitute for the intransitive character of a thoroughly philosophical inheritance. It is not the case that because Kuhn was inspired by Cavell who was inspired by Wittgenstein, that Kuhn could be inspired only by Cavell’s Wittgenstein, and not by Wittgenstein. Further, the question is not only philological but philosophical if we take into account the methods and the philosophy of Wittgenstein. To use an image: that a path was indicated by someone to someone else could not have implied that what was indicated by a person to another was oneself; this much was already known to us with the old fable of the moon, the finger and the sage. With this paper I will thus first seek to establish the relevance of the comparison of Cavell’s conception of the relations of arts, works of arts, and artists with Kuhn’s conception of the relations of sciences, scientific successes, and scientific practitioners. Then I will attempt to render explicit the unrestrictive limits of this comparison both to account for the mutual exchanges between Cavell and Kuhn and consider or bring out some symmetries and asymmetries concerning the place of paradigms in sciences and arts. (shrink)

It is often debated whether what we ought, politically, to do is determined by standards that are independent of any actual political process or whether, by contrast, judgments reached in actual democratic processes have constitutive importance in determining what we should do. This paper argues that this is not an exclusive disjunction and that, consistently with there being independent standards, constitutively authoritative judgments can enter into the truth-conditions pertaining to claims about what we ought, politically, to do. The crucial (...) objection to constitutive judgment is that it involves an unacceptable form of bootstrapping, according to which reasons arise out of nothing. To circumvent this objection, the paper deploys John Broome's notion of a wide-scope 'normative requirement'. Normative requirements affect what ought to be done without altering the balance of reasons and defuse the bootstrapping objection by blocking the derivation of all-things-considered conclusions. To show that politics involves constitutive authority of this kind, the paper defends two illustrative normative requirements applicable to the political process that give constitutive roles to political judgments of various kinds. Throughout, the discussion is enlivened by comparisons to the judgments of a baseball umpire, which have been illuminatingly discussed by Robert Brandom. (shrink)

This essay puts in conversation some of Seyla Benhabib’s insights about exiled, stateless and migrant populations with ongoing discussions in critical race theory about the racial exclusions of indigenous populations and populations of colour not only in the foundations of Western modern states but also in their contemporary functioning today. The essay locates these exclusions not only in the failures of states but also in their proper functioning, that is, in their very design and constitutive structures, focusing for this (...) purpose on what is described as constitutive exclusions. The essay argues that the relationship between legal agency and social and political agency needs further articulation within Benhabib’s jurisgenerative politics in order to properly address constitutive exclusions. (shrink)

The question—what is a political constitution?—might seem, at first blush, fairly innocuous. At one level, the idea of a political constitution seems fairly well settled, at least insofar as most political constitutionalists subscribe to a similar set of commitments, arguments and assumptions. At a second, more reflective level, however, there remains some doubt whether a political constitution purports to be a descriptive or normative account of a real world constitution, such as Britain’s. By exploring the idea of a political constitution (...) as differently articulated by J.A.G. Griffith, Adam Tomkins and Richard Bellamy, this essay explores why the normativity of a political constitution may be indistinct and ill-defined, and how compelling reasons for this indistinctness and ill-definition are to be found in the very idea of a political constitution itself. A political constitution is here conceived as a ‘model’ which supplies an explanatory framework within which to make sense of our constitutional self-understandings. The discipline of thinking in terms of a model opens up a critical space wherein there need not be some stark, all-encompassing choice between constitutional models, which, in turn, allows for more subtle understandings of Britain’s constitution as neither exclusively ‘political’ nor ‘legal’. (shrink)

This article reinterprets the Kelsen-Schmitt debate in the context of social systems theory and rethinks its major concepts as part of legal and political self-reference and systemic differentiation. In Kelsen?s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law. Similarly, Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. The author argues that the (...) process of legal and political globalisation rules out the possibility of formulating substantive theories of the state associating this particular social organisation with metaphysical values and a self-validating collective identity. Kelsen and Schmitt continue to inspire current theories of non-metaphysical globalised law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalised legal and political communications and not as their ultimate end. (shrink)