Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

The course is focused on historical texts, most of them philosophical. Context for understanding the texts and the course of democratic development will be provided in lecture and discussions, and by some background readings (Dunn). We begin with the remarkable Athenian democracy, and its frequent enemy the Spartan oligarchy. In Athens legislation was passed directly by an assembly of all citizens, and executive officials were selected by lot rather than by competitive election. Athenian oligarchs such as Plato more admired Sparta, and their disdain for the democracy became the judgment of the ages, until well after the modern democratic revolutions. Marsilius of Padua in the early Middle Ages argued for popular sovereignty. The Italian citystates of the Middle Ages did without kings, and looked back to Rome and Greece for republican models. During the English Civil War republicans debated whether the few or the many should be full citizens of the regime. The English, French, and American revolutions struggled with justifying and establishing a representative democracy suitable for a large state, and relied on election rather than lot to select officials. The English established a constitutional monarchy, admired in Europe, and adapted by the Americans in their republican constitution. The American Revolution helped inspire the French, and the French inspired republican and democratic revolution throughout Europe during the 19 century.

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Democracy and Its Critics

The Law of Peoples John Rawls Harvard 1999 John Rawls, the great political philosopher, has turned his reflections to questions of international justice, much as his philosophical ancestor Kant did toward the end of his career. Indeed, Kant's conception of a "pacific federation" of states in Perpetual Peace is Rawls's acknowledged model for the "realistic utopia" sketched in The Law of Peoples, which expands upon his 1993 essay by the same title (without, however, revising its basic argument). Despite differing philosophical constraints and geopolitical conditions, both Kant and Rawls aim to develop an ideal normative framework for international law that accommodates a measure of realism and rejects the idea of a world-state. Unfortunately, in its uncritical acceptance of so-called "decent hierarchical societies" even at the level of ideal theory, the normative claim of Rawls's Law of Peoples is undermined. This philosophical appeasement, meant to secure perpetual peace in our time through a moderately demanding Law of Peoples that liberal and "decent" hierarchical societies alike can endorse, departs fundamentally from Kant's cosmopolitanism. For Kant, the "First Definitive Article of a Perpetual Peace-as opposed to a temporary interruption of hostilities-is that each member state of the foedus pacif cum must have a republican form of government, which is partly founded upon "the principle of legal equality for everyone (as citizens)." By contrast, Rawls weakens his ideal of international justice to buy the assent of hierarchical societies, which by definition lack equality among citizens, at the price of sacrificing a theoretical basis for justifying reforms of the practices and institutions of these hierarchical societies above a minimal level of decency. Rawls's complex argument begins by extending the original position, in which principles of justice for the basic structure of society are chosen under epistemic constraints that ensure fairness, from a single liberal society to what he calls the Society of Liberal Peoples. In a second step, though still within ideal theory, he argues that the substantive principles comprising the Law of Peoples are also acceptable to decent hierarchical societies, which possess decent consultation hierarchies and common good conceptions of justice. Despite being inegalitarian, decent hierarchical societies do respect basic human rights, allow some dissent, and at least consult with representatives of groups whose members are denied full citizenship rights. …

The Law of Peoples

In his Tanner Lecture of 1979 called “Equality of What?” Amartya Sen asked what metric egalitarians should use to establish the extent to which their ideal is realized in a given society. What aspect(s) of a person’s condition should count in a fundamental way for egalitarians, and not merely as cause of or evidence of or proxy for what they regard as fundamental? In this study I examine answers to that question, and discussions bearing on that question, in recent philosophical literature. I take for granted that there is something which justice requires people to have equal amounts of, not no matter what, but to whatever extent is allowed by values which compete with distributive equality; and I study what a number of authors who share that egalitarian view have said about the dimension(s) or respect(s) in which people should be made more equal, when the price in other values of moving toward greater equality is not intolerable. I also advance an answer of my own to Sen’s question. My answer is the product of an immanent critique of Ronald Dworkin, one, that is, which rejects Dworkin’s declared position because it is not congruent with its own underlying motivation. My response to Dworkin has been influenced by Richard Arneson’s work in advocacy of “equality of opportunity for welfare,” but my answer to Sen’s question is not that Arnesonian one, nor is my answer as well formulated as Arneson’s is.1 It needs much further refinement, but I nevertheless present it here, in a rough-and-ready form, because of its association with relatively fi nished criticisms of others which I think are telling. If this study contributes to understanding, it does so more because of those criticisms than because of the positive doctrine it affi rms.

On the Currency of Egalitarian Justice

This paper provides a critical overview of the realist current in contemporary political philosophy. We define political realism on the basis of its attempt to give varying degrees of autonomy to politics as a sphere of human activity, in large part through its exploration of the sources of normativity appropriate for the political and so distinguish sharply between political realism and non-ideal theory. We then identify and discuss four key arguments advanced by political realists: from ideology, from the relationship of ethics to politics, from the priority of legitimacy over justice and from the nature of political judgement. Next, we ask to what extent realism is a methodological approach as opposed to a substantive political position and so discuss the relationship between realism and a few such positions. We close by pointing out the links between contemporary realism and the realist strand that runs through much of the history of Western political thought.

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Realism in normative political theory

Political realists like Bernard Williams and Raymond Geuss reject political moralism, where ideal ethical theory comes first, then applied principles, and politics is reduced to a kind of applied ethics. While the models of political moralism that Williams criticizes are endorsed by G.A. Cohen and Ronald Dworkin respectively, I argue that this realist case against John Rawls cannot be sustained. In explicating and defending Rawls’s realistically utopian conception of ideal theory I defend a Kantian conception of theory where it is by abstracting from immediate realities that theory is fit to guide practice by providing a framework for political judgment.

Rawls and Realism

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Procedure in substance and substance in procedure: reframing the Rawls–Habermas debate

The complex debate about proceduralism in deliberative democratic theory is important for understanding alternative models for bridging theory and practice. In this article, I contrast Jurgen Habermas’ model of epistemic proceduralism with that of David Estlund. I begin by locating the differences between them in terms of contrasting interpretations of Rousseau’s idea of the general will. On this basis, I set out two competing models of democratic proceduralism – an instrumental conception and a constitutive conception – and show how Estlund’s critique of Habermas’ procedural theory of ‘deep deliberative democracy’ mistakenly presupposes that Habermas is committed to an instrumental conception. After clarifying the role of Habermas’ ideal speech situation, I explicate and defend a Habermasian model of reflexive epistemic proceduralism. I conclude by considering the implications of this model for understanding the relationship between normative theory and empirical research.

The ideal and reality of epistemic proceduralism

Constructivisme et pratiques reflexives d’elaboration de la constitution 
L’approche par la dependance aux pratiques fait une tentative bienvenue de frayer un chemin entre, d’une part, le cosmopolitisme liberal, et, d’autre part, l’etatisme et le nationalisme.
Ce faisant, elle cherche a reconcilier l’universalite de la justice avec le role particulier que jouent les principes de justice dans le contexte des differentes pratiques sociales. Dans cet article, j’affirme cependant que le « tournant pratique » dans la theorisation
de la justice n’est pas alle assez loin, que ce soit methodologiquement ou substantiellement. D’un point de vue methodologique, il est necessaire de depasser le
positivisme residuel de l’approche par la dependance aux pratiques en faveur d’une approche interpretative qui rende compte de la nature reflexive et evolutive des pratiques
sociales. D’un point de vue substantiel, porter l’attention sur la reflexivite des pratiques sociales, en particulier sur les pratiques d’elaboration reflexive de la constitution, fournit
le cadre d’une approche republicaine de la justice internationale ayant le souci de reconcilier l’idee kantienne d’universalite de la justice avec l’idee de souverainete populaire de
Rousseau et Hegel.

Constructivism and Reflexive Constitution-Making Practices

What do we want from a theory of justice? Amartya Sen argues that what we should not want is to follow the social contract approach revived by John Rawls, or transcendental institutionalism, in its...

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James Gledhill

Papers

Rawls and Realism

Procedure in substance and substance in procedure: reframing the Rawls–Habermas debate

The ideal and reality of epistemic proceduralism

Constructivism and Reflexive Constitution-Making Practices

In defense of transcendental institutionalism