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

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

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

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

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

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

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

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

本书以法理学的方法为工具,整合当前我国已有研究成果,比较深入系统地研究了法律控制权的历史地位、重大意义、战略路径和主要机制。.

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

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

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)

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

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

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

In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the (...) values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal. (shrink)

This article describes the main conceptual questions entailed in the doctrine of emergency powers, taking into account the theory and experience of their enforcement. It explains the constitutional aspects of emergency powers and evaluates the possibility of thinking about the position and force emergency powers play within a polyarchical constitution. It also discusses the epistemic dimension of emergency powers, constitutional dualism, and judicial control over emergency power.

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

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

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits by Rocco PezzimentiAdam CarringtonPEZZIMENTI, Rocco. The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits. Herefordshire, U.K.: Gracewing, 2021. 207 pp. Paper, $22.00Rocco Pezzimenti's The Anchors of Democracy: A New Division of Powers, Representation, Sense of Limits is an ambitious book. A professor at LUMSA, Rome, he seeks to consider anew the (...) nature, structure, and purposes of democracy as well as the society in which this form of government best operates. He sees this task as needed because, he argues, contemporary democracies face new challenges that threaten their legitimacy and their capacity to fulfill their just and needed purposes. He notes that democracies are not "infallible," either morally or in their ability to maintain themselves, and thus need conscious understanding and prudent maintenance.The subtitle establishes the three main themes by which he diagnoses and addresses democracy's trials. Pezzimenti orders his argument most through the lens of limits. While present in all spheres and regimes, popular government in particular partakes of limitation, since "mutual limitation... is the basis of our democracies." Limits for Pezzimenti stem from distinct elements of a society competing for finite power ordered toward action. Many of our political and social problems, both past and present, stem from denying limitations or misordering their interactions. The presentism that tempts democracy must be tempered by the limits the past places on it. Institutions are one helpful means for this interaction, which helps guard against a "utopianism which wants to solve everything immediately, deceiving itself that it can perform miracles." Law itself involves limits, placing boundaries on the action of private persons and public entities. So does pluralism and "polyarchy," whereby we recognize the limits particular persons and communities place on politics' universalism as well as how politics restrains these other elements from descending into intolerant, selfish particularity. Important to this point is Pezzimenti's discussion of sovereignty, which must not be reduced to a mere question of who rules and where but to the question of rightly pursuing a common good respectful of individual rights. True freedom inheres in the proper cohering of these elements.Pezzimenti turns to the distribution of powers within a community as part of the discussion of limits. He argues that "the traditional tripartition, theorized by Polybius and on to Montesquieu, today appears certainly insufficient." To define all political power as legislative, executive, and judicial, then to distribute them among competing institutions, does not fully account for the contemporary political landscape. Moreover, those [End Page 361] "classic" powers themselves need to be rethought to meet today's concerns. Legislative power must account for claims that its representative systems either are oligarchic in practice or lead to crass populism, and that they fail to account for group identities as opposed to class ones. The executive must evolve in pursuit of a better "efficiency and efficacy"—including speed of response to problems—that requires a better relationship with the modern bureaucracy, which he describes as "the other face of the executive." The judicial power must focus on a renewed impartiality, especially in relation to the additional powers Pezzimenti thinks need to be named and then tamed. The new powers that he says we must recognize include the press, mass media, technology, and more. Here, Pezzimenti categorizes as powers the functions of government (making, enforcing, and adjudication of the law) alongside avenues or means for exercising political influence, if not outright control. These other forces have distorted democracy's needed limits partly because law and custom have not adequately accounted for their evolving role in power.These issues lead to the last challenge, that of representation. The problem of representation threatens democracy's legitimacy, since this form of government is grounded more than any other in the idea that "power must be the expression of the community." Yet even here the issue of limits orders the discussion. The unaccounted-for new powers described above remove too many limitations either on crass populism or encroaching rule of elites. The former can abuse individual rights, which he says "are not negotiable," based on oppressive whims... (shrink)

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

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

“What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates. What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in which one confronts one another, the way in which one struggles. The (...) rule and the struggle, the rule in the struggle, this is the juridical.” - Michel Foucault Penal Theories and Institutions is the title Michel Foucault gave to the lectures he delivered at the Collège de France from November 1971 to March 1972. In these lectures Michel Foucault presents for the first time his approach to the question of power that will be the focus of his research up to the writing of Discipline and Punish and beyond. His analysis starts with a detailed account of Richelieu’s repression of the Nu-pieds revolt and then goes on to show how the apparatus of power developed by the monarchy on this occasion breaks with the system of juridical and judicial institutions of the Middle Ages and opens out onto a “judicial State apparatus”, a “repressive system”, whose function is focused on the confinement of those who challenge its order. Michel Foucault systemizes the approach of a history of truth on the basis of the study of “juridico-political matrices” that he had begun in the previous year’s lectures and which is at the heart of the notion of “knowledge-power”. In these lectures Foucault develops his theory of justice and penal law. The appearance of this volume marks the end of the publication of the series Foucault’s courses at the Collège de France. (shrink)

Illuminates legal reasoning -- and its justification At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method (...) of reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power. Explores enduring questions Focusing on work over the past century, the essays address important recurring questions, such as: When a judge or a lawyer reasons to a conclusion about what is legally required in a given case, must he also ask what is morally required? To what extent do a judge's personal, political, or moral biases affect his legal reasoning? What is the impact of such biases? Can all such biases be avoided? Is legal reasoning similar to reasoning in mathematics, logic, and linguistics, the physical sciences, the social sciences, or literature and history? Do formal logical modes of argument play any roles in legal reasoning? Solid coverage, well organized The articles were chosen to present some of the most influential works on the topic, as well as less familiar works that are thought provoking and informative. Each volume also offers a representative range of theoretical approaches to its topic, contains an introduction that locates the subject within the larger framework oftheories of legal reasoning and jurisprudence, and includes bibliographical notes on further readings. Many 19th century legal theorists argued that deduction is the central mode of legal reasoning, and that legal argument is like a deductive proof in mathematics or logic. They were attracted to this "deductivist" concept because it suggested that legal reasoning could be politically and morally neutral. This volume brings together some of the most thought-provoking articles on both sides of the debate. It also contains several leading articles that explain the role of probabilistic judgments and presumptions in various types of legal arguments, including the laws of evidence and criminal procedure. The collection is a solid introduction to the basic modes of logical argument in legal reasoning. (shrink)

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

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

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public (...) discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers. (shrink)

The European Stability Mechanism is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated (...) rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology. (shrink)

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this (...) “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison? (shrink)

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

Bell argues that the dialogue that emanate from the aesthetic realm cannot be understood through a solely art-historical approach; instead, they must be understood as part of a collective endeavour. In this sense, the 'art' of post-dictatorship is not something that belongs to art or the artists themselves, but is about how the subjectivities and imaginations of new generations engage with questions of response, ethics and justice; and, in so doing, re-align themselves in relation to the past and to (...) the future. This book provides a valuable resource for those interested in the law, politics, art and sociology of contemporary Argentina. It will be of immense use to those studying in these areas and to those concerned more widely with transitional justice and memory politics. (shrink)

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

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

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

This 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)

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

My text offers an attempt to justify theoretically the existence of an important pillar of contemporary constitutional democracy: judicial review. Why do Supreme and Constitutional Courts that are not electorally accountable organs have the power to modify and occasionally cancel from the books statutory legislation passed by elected and accountable representatives? The argument presented discusses and questions the standard doctrine of the separation of powers and is based on the foundations of modern political authority as the (...) agency the function of which is to protect and guarantee citizens’ rights. (shrink)

“What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates (even if they had to be simple mediators or arbitrators). What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in which one (...) confronts one another, the way in which one struggles. The rule and the struggle, the rule in the struggle, this is the juridical.” - Michel Foucault Penal Theories and Institutions is the title Michel Foucault gave to the lectures he delivered at the Collège de France from November 1971 to March 1972. In these lectures Michel Foucault presents for the first time his approach to the question of power that will be the focus of his research up to the writing of Discipline and Punish (1975) and beyond. His analysis starts with a detailed account of Richelieu’s repression of the Nu-pieds revolt (1639-1640) and then goes on to show how the apparatus of power developed by the monarchy on this occasion breaks with the system of juridical and judicial institutions of the Middle Ages and opens out onto a “judicial State apparatus”, a “repressive system”, whose function is focused on the confinement of those who challenge its order. Michel Foucault systemizes the approach of a history of truth on the basis of the study of “juridico-political matrices” that he had begun in the previous year’s lectures (Lectures on the Will to Know) and which is at the heart of the notion of “knowledge-power”. In these lectures Foucault develops his theory of justice and penal law. The appearance of this volume marks the end of the publication of the series Foucault’s courses at the Collège de France (the first volume of which was published in 1997). (shrink)

The questions of violence, justice and judgment define one of the most resonant and constant concerns of contemporary thought. In part, this is only a reflection of what are often called the ‘realities on the ground’ . In the few years of this century the logic of violence, and even its aestheticisation – whether as terror or as ‘shock and awe,’ or in the citizen’s daily vocation to be ‘alert but not alarmed’ – have become the familiar data of (...) current experience. They are a kind of weather, felt through the colour-coded threat scale of the Homeland Security Advisory System, or in the casual references to the ‘current climate.’ In view of these realities, and of an acclimatisation to them that informs general popular support for extensions of executive power and legislative activity, the urgency of the turn or return to questions of force and law is to be expected. In the fabric of recent debate, they are seams at which confrontations are staged and positions defined; but also, where the thought that remains closest to the ‘realities on the ground’ is forced into juxtaposition with the mythological and theological schemes that violence, justice and judgment inevitably conjure. Thus, contributors to this issue of Colloquy were invited to consider whether it was possible to account for a difference between violence, terror and revolution, without simplification or banalisation of the relationship between law and force. On the one hand, the editors envisaged that this question would be a provocation to reexamine contemporary representations of sovereignty, jurisdiction and the ‘state of exception,’ in a global context dominated by issues of security and the justification of extra-legal and extra-judicial force – occupation, detention, torture. On the other hand, the reference to the mythological and the theological was inevitable, inasmuch as contributors were invited to organise their reflections around two of the most significant interventions in twentieth-century jurisprudence and political theory, Walter Benjamin’s “Critique of Violence” and Jacques Derrida’s “Force of Law.” For as is well-known, Benjamin and Derrida pursue their distinctive lines of questioning in the direction of a ‘divine violence’ or of a ‘mystical foundation of authority.’ The reception of the two texts suggests that these concepts remain, for many, difficult to the point of being indigestible; at least in the ‘current climate.’. (shrink)

Examines judicial decisions in Germany and Israel in order to provide a comparative test of the analysis of US Supreme Court decisions in Ch. 7. Although questions of political obligation have been much discussed by scholars, little attention has been paid to moral reasons advanced by actual states to justify the compliance of their subjects. Because in US cases, justices appeal to moral reasons most explicitly in difficult cases that concern imposing military service on conscientious objectors, the (...) analysis focuses on this area. In spite of their important constitutional and judicial differences, Germany and Israel support military obligations along similar lines. German decisions emphasize norms of equality or fairness. Israeli Justices have generally appealed to the importance of each individual's contribution to national defence. However, in a recent decision, norms of fairness are invoked. (shrink)

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

University of Calgary, Canada and Tel Aviv University, Israel mkeren{at}ucalgary.ca ' + u + '@' + d + ' '//--> Stacy Nyikos University of Tulsa, USA stacy-nyikos{at}utulsa.edu ' + u + '@' + d + ' '//--> Although questions of political obligation have been much discussed by scholars, little attention has been paid to moral reasons advanced by actual states to justify the compliance of their subjects. We examine the `self-image of the state' through Supreme Court decisions in (...) the USA, Germany, and Israel. Because moral reasons are expressed especially clearly in cases regarding obligations to provide military service, we focus on these. In spite of their important constitutional and judicial differences, the three states support military obligations along similar lines, though with some differences. In all three countries, appeal is made to obligations of reciprocity. Individuals must serve in order to provide the important benefit of defense. This `service conception' of political obligation accords norms of fairness or equality a central role, in order to justify the service of particular individuals. Reasons for less emphasis on fairness in Israeli cases are examined, while we claim that the overall similarities of the three countries provide some measure of indirect support to a theory of political obligation based on the principle of fairness. Key Words: political obligation • military service • fairness • principle of fairness • liberalism • state. (shrink)

This article describes the connection between political theory and political economy. It argues that political theorists need to take account of political economy in theorizing about the contemporary world because capitalism is the most powerful force at work in shaping the modern sociopolitical world. It also explains that economic questions concerning economic growth, the distribution of wealth and income, and role of markets are at the core of the political life in democratic societies.

Michel Foucault is one of the most preeminent theorists of power, yet the relationship between his militant activities and his analysis of power remains unclear. The book explores this relationship to explain the development of Foucault's thinking about power. Using newly translated and unpublished materials, it examines what led Foucault to take on the question of power in the early 1970s and subsequently refine his thinking, working through different models (war and government) and modalities (sovereign, disciplinary, (...) biopolitical, pastoral and governmental). Looking at Foucault's political trajectory, from his involvement with the prisoner support movement and Solidarity to his controversial engagement with the Iranian revolution, the book shows the militant underpinning of his interest in the question of power and its various shifts and mutations. This thorough account, which includes the first translation of a report edited by Foucault on prison conditions, will provide students in contemporary political theory with a better understanding of Foucault's thinking about power and of the interplay between political activities and theoretical productions. (shrink)