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

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

1. The world of dictatorial institutions 2. Three illustrative cases 3. The use of institutions to co-opt 4. Institutions and policies under dictatorship 5. Institutions and outcomes under dictatorship 6. Institutions and the survival of dictators.

/pdf/political-institutions-under-dictatorship-4xbc4ndsl5.pdf

Political Institutions under Dictatorship

more impressive with each exposure to it. Everything has changed and nothing has changed since Democracy in America was published in the 1830’s. Its author grasped with remarkable perception both the mutable and the immutable qualities of man. There could be nothing more salutary for us today than to assimilate his fine sense of what was permanent in a world which, like ours, was undergoing deep convulsions. Committed to the classical economics of Adam Smith, Tocqueville did not share Smith’s illusions about the eternal nature of the market. On the contrary, as Albert Salomon has emphasized, his point of view

Democracy in America: An Appreciation On the Occasion of the Centennial of Tocqueville's Death

1. Introduction 2. How long should constitutions endure? 3. Conceptualizing constitutions 4. A positive theory of constitutional endurance 5. Empirical implications of the theory: identifying risks to constitutional life 6. An epidemiological analysis of constitutional mortality 7. Contrasts in constitutional endurance 8. Contexts of chronic failure 9. Conclusion.

/pdf/the-endurance-of-national-constitutions-492g3mhmwv.pdf

The Endurance of National Constitutions

Preface Glossary 1. Arab courts in comparative perspective 2. The creation and operation of the modern Egyptian legal system, 1876-1937 3. Egyptian courts, 1937-1971: centralization, authoritarianism and socialism 4. Egyptian courts, 1971-1996: the re-emergence of liberal legality 5. Legal reform in the Arab states of the Gulf 6. The legal system and the rule of law in Kuwait and Qatar 7. Popular uses of the courts 8. Business and the courts Conclusion Bibliography Index.

The Rule of Law in the Arab World: Courts in Egypt and the Gulf

Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government

Egypt’s mass uprising of 2011 gave birth to tremendous hopes that a new era of democratic politics could be built in the Arab world. But the process of transition to a democracy was badly designed, providing strong incentives for the country’s diverse political actors to behave in ways that undermined democratic development. Compounding these political mistakes was a heavy authoritarian legacy of division, mistrust, and unaccountability. While elections were not the cause of Egypt’s political woes, voting only clarified and sometimes aggravated the growing fissures in the Egyptian body politic. And those divisions have not only sabotaged Egypt’s post-2011 democratic hopes but also have undermined the prospects for future democratic development.

Egypt's Failed Transition

The Islamic shariʿa is central to Islam in the minds of most Muslims and non-Muslim scholars. In many ways, the centrality of the Islamic shariʿa has increased in recent decades. Yet despite—or perhaps because of—this centrality, the precise, even the general, role of the shariʿa in Islamic societies is the subject of contentious debate among Muslims. Outside of and underlying such debates are more subtle and rarely articulated differences about the meaning of the Islamic shariʿa. In this essay, I will put forward a general intellectual map for those varying meanings. More critically, I will suggest that important shifts in the meaning of the Islamic shariʿa have taken place in the Muslim world, and that these shifts are closely connected to the nature and viability of legal and educational institutions associated with the Islamic shariʿa in the past. As the Islamic shariʿa has become disconnected from these institutions, its meaning has changed in some fundamental ways. Most important, the shariʿa is approached less for its process than for its content. And because the shift in institutions and understanding has received much less attention from Muslims, widespread attempts to re-create older relationships (particularly involving the relationship between the Islamic shariʿa and the state) in fact involve a deepening rather than a counteracting of the transformation in the Islamic shariʿa.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0020743800064813

Nathan J. Brown

Papers

The Rule of Law in the Arab World: Courts in Egypt and the Gulf

Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government

Egypt's Failed Transition

Shari a and State in the Modern Muslim Middle East

When Victory Is Not an Option: Islamist Movements in Arab Politics