Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. Firstly, (...) I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)

For Rousseau, the primary function of the republican constitution is not to contain state power, but rather to cultivate certain personal dispositions and social forms through which the stability of a political order based on the general will can be realised. Thus, his constitutional projects for Corsica and Poland formulate peculiar constitutional devices aimed at fostering a distinctive vision of austerity as the social horizon of republican politics. I outline how Rousseau's political thought translates to a peculiar conception of constitutionalism (...) as cultivating stability conditions for the realisation of his principles of political right. In particular, I focus on how Rousseau's conception of austerity illustrates his prescient sense of the source of inequality and domination in liberal societies, insidiously embedded in symbolic and ritual forms. I also address the limitations of austerity as a constitutional antidote to domination in liberal societies. (shrink)

Deliberation is widely viewed as being intrinsic to republican citizenship. Neo-Roman republicans such as Philip Pettit value deliberation primarily for its role in rendering coercive political authority non-arbitrary and thus non-dominating. Accordingly, a deliberative public sphere is seen as necessary to foil domination in politics. In this article, I consider a countervailing view shared by two otherwise very different theorists – Pierre Bourdieu and Jean-Jacques Rousseau. In Bourdieu’s account of social practice, deliberation can harbour subtle forms of symbolic violence in (...) ways which neo-republican theory struggles to account for. Rousseau’s ‘communitarian’ politics of austerity is, I argue, undergirded by a similar concern that complex political discourse will represent a mystifying ‘sophistry’, encoded in differentiating signifiers, and thus become an insidious site of domination. Both perspectives, I argue, help to illuminate important blind spots in the neo-republican account of political deliberation in its relationship to domination. (shrink)

In this paper, I consider what it might mean to approach boredom as a problem of post-history, rather than of modernity as such. Post-history, or ‘end of history’, in this sense, is linked with the impossibility or unlikelihood of political-systemic change, and thus with the disappearance of the contingency or temporal flux that had been understood as the context or prerequisite of political action and political freedom. I will, argue, firstly, that both Rousseau and Fukuyama depict societies that are ‘post-historical’, (...) in this sense, and which are marked by ‘boredom’ of this specifically post-historical kind. Secondly, I will argue that both thinkers link post-historical boredom with the disappearance or diminution of the ‘drive for recognition’ that both understood as both an agent and effect of ‘history’. Thirdly, I will argue that while Fukuyama understands post-historical boredom as an ‘irritant’ that threatens to restart history without quite succeeding in doing so, Rousseau understands it as an essentially stabilising (and happy) condition that maintains post-historical man in an equilibrium modelled on the order of nature itself. And fourthly, I consider certain ways in which this ‘post-historical’ boredom might coexist and overlap with the ‘promise of intensity’ experienced in post-Fordist neoliberal society. (shrink)

ABSTRACT Because Rousseau identifies popular sovereignty with the enactment of fundamental laws, he seems to conflate popular sovereignty with constituent power: the people are sovereign because they constitute the state, without actually ruling it. However, he assigns the lawgiver, or (‘legislator’) an antecedent task that has a more obviously ‘constituent’ character – the task of constituting the people itself, as a political subject and political unity. Thus Rousseau’s lawgiver offers a template for understanding the relationship between popular sovereignty and constituent (...) power. Accordingly, I make three arguments concerning the ‘constituent’ role of the lawgiver. Firstly, I argue that Rousseau’s lawgiver belongs within a ‘realist’ tradition of constituent power, which understands the people not as the bearer of constituent power, but as its product. Secondly, since the lawgiver’s task is to alchemise peoplehood by bequeathing the people a ritual life, this helps us understand how constituent power remains ‘live’ within the social life of the republic. And thirdly, since the lawgiver effects a rupture in political time of which Rousseau judges the people itself incapable, its role is to compensate not only for the people’s incapacity to reason, but more importantly, its incapacity to act. (shrink)

In this paper, I consider what it might mean to approach boredom as a problem of post-history, rather than of modernity as such. Post-history, or ‘end of history’, in this sense, is linked with the impossibility or unlikelihood of political-systemic change, and thus with the disappearance of the contingency or temporal flux that had been understood as the context or prerequisite of political action and political freedom. I will, argue, firstly, that both Rousseau and Fukuyama depict societies that are ‘post-historical’, (...) in this sense, and which are marked by ‘boredom’ of this specifically post-historical kind. Secondly, I will argue that both thinkers link post-historical boredom with the disappearance or diminution of the ‘drive for recognition’ that both understood as both an agent and effect of ‘history’. Thirdly, I will argue that while Fukuyama understands post-historical boredom as an ‘irritant’ that threatens to restart history without quite succeeding in doing so, Rousseau understands it as an essentially stabilising (and happy) condition that maintains post-historical man in an equilibrium modelled on the order of nature itself. And fourthly, I consider certain ways in which this ‘post-historical’ boredom might coexist and overlap with the ‘promise of intensity’ experienced in post-Fordist neoliberal society. (shrink)

The relationship between constitutional secularism and gender equality acquires peculiar dimensions in the context of the laïcité project in republican France – particularly, in the contemporary conflict between a laïcité interpreted as a politics of emancipatory social transformation, and the more minimalist liberal conception prevailing in French law. The dominant narrative in the republican establishment, shared between left and right, has been that laïcité will lead to gender emancipation not only by dissolving any sectarian dimensions of women’s citizenship – that (...) is, by sustaining a religiously neutral public sphere – but also, by preventing the domination as well as the coercion of religious choice in the intimate and private spheres of family and community. In this narrative, laïcité represents a more ambitious project of gender emancipation than that promised by the liberalisms more redolent of the Anglo-American world. The apogee of this expansionary interpretation of constitutional secularism is expressed in the 2004 prohibition on conspicuous markers of religious affiliation in the public schools, and the recent debate on the ‘full’ Islamic veil. This article considers the relationship of laïcité to gender equality through the lens of the broader theoretical debate surrounding the relationship of political liberalism to the politics of non-domination. The elusive challenge is to craft a constitutional secularism that can sustain a viable politics of non-domination – going beyond the formalist voluntarism redolent of classical liberalisms, offering undominated as well as uncoerced religious choice – yet also avoiding an overzealous emancipatory stance that itself assumes a regulative role for women’s religious choices. (shrink)

The republican project of freedom as non-domination commits the State to endowing citizens with the resources and attitudes necessary to both apprehend domination and abstain from dominating others. This, some have argued, renders it incompatible with political liberalism, which eschews the promotion of personal liberal virtues, being derived independently of any 'comprehensive doctrine'. Republican freedom is therefore depicted as penetrating deeper, in its application, into intimate and 'private' spheres. I argue, through a Rousseauist interpretation of Rawls's social contract, that its (...) 'political' stricture need not, however, preclude any socially transformative, emancipatory role. Thus, the promotion of freedom as non-domination is compatible with the 'modelled constraints' of Rawls's original position. Far from transgressing the 'political' limits of State power, the goods associated with non-domination may instead be seen as necessary to the realisation of 'moral personality'—independently of the 'final ends' for which it may be exercised. (shrink)

France’s prohibition on public face-veiling was rationalised partly with reference to ‘fraternity’ – the third prong of the republican motto – as well as liberty and equality. Correspondingly, the voile intégral was widely described as transgressing republican standards of civility. Yet counterintuitively, republican civility was not understood, at least primarily, in terms of sociability or expressivity – but rather as requiring discretion, modesty and self-restraint. Therefore, the ‘full veil’ was not portrayed as an austere interpretation of religious modesty, but as (...) precisely the opposite – as an ‘ostentatious’ defiance of republican civility. It was deemed anti-republican not because it was too modest – but rather because it was too flamboyant. In this light, I argue that the law should be understood neither as a coherent republican response to problems of domination in religious life nor, however, should it be seen purely as an expression of ethno-nationalist defensiveness. Rather, it can be understood as an attempt to legislate a republican habitus, that is a set of social mores – and bodily techniques – deemed appropriate in republican society. I use the French example to consider the political function of civility understood not in relation to speech constraints but rather in terms of bodily and linguistic technique. (shrink)

Rousseau’s embrace of popular sovereignty – a sovereignty that is unmediated and unrepresented – is often understood as entailing a kind of democratic absolutism. However, Richard Tuck has argued t...

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)

Introduction : Rousseau's austerity and Rousseau's Constitutions -- The constitution of freedom -- The constitution of Autarky -- The constitution of symbol and ritual -- The constitution of deliberation -- The constitution of judgment .