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

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

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.

/pdf/democracy-and-its-critics-2zxg086s7q.pdf

Democracy and Its Critics

Populist Radical Right Parties in Europe.

THIS is a book of great length (444 pages of text), great learning (168 pages of notes), but not of commensurate understanding. It is a pity, because its defects may conceal its undoubted merits. When Dr. Popper is not caricaturing writers whose views he dislikes-and he dislikes a great many-he has a useful contribution to make to political thought, and his general moral theory (mainly to be found in the notes) is eminently sane and sensible. But for his passion for tilting at windmills he would have written a better and shorter book. The Open Society and its Enemies By K. R. Popper. Vol. 1: The Spell of Plato. Pp. vii + 268. Vol. 2: The High Tide of Prophecy—Hegel, Marx and the Aftermath. Pp. v + 352. (London: George Koutledge and Sons, Ltd., 1945.) 2 vols., 42s. net.

The Open Society and its Enemies

This article provides a comparative conceptual analysis of the logic of populism and the logic of (constitutional) democracy. Populism is defined as a thin-centered ideology which advocates the sovereign rule of the people as a homogeneous body. The logic of this ideology is further developed in reference to the work of Carl Schmitt and is shown to generate all the characteristics typically ascribed to populism. The logic of democracy is analyzed on the basis of the work of Claude Lefort and defined as a regime in which the locus of power remains an empty place. This analysis replaces the widespread model of constitutional democracy as a paradoxical combination of a constitutional and a democratic pillar. This two-pillar model fails to appreciate the internal coherence and some of the main features of the (constitutional) democratic logic. Thereby, the two-pillar approach gives rise to an understanding of populism as continuous with the democratic promise of constitutional democracy. In contrast, our anal...

Populism versus democracy

In this article we develop a concentric containment policy for dealing with political extremism starting from the deliberative model of democracy. This model of democracy is particularly well suite...

Defending Democracy: The Concentric Containment of Political Extremism

Staging Deliberation: The Role of Representative Institutions in the Deliberative Democratic Process

According to Carl Schmitt, the political is essentially characterized by the antagonistic opposition between friends and enemies. In several recent books, Chantal Mouffe has taken hold of this central Schmittian idea and has used it as a starting point for a critique of the consensual nature of both contemporary political theory and contemporary political practice.1 On the theoretical level, Mouffe argues that the current emphasis on the need for a reasonable political consensus, as found in John Rawls’s political liberalism or in Jürgen Habermas’s model of deliberative democracy, is misguided.2 Theories like these are based on a universalistic logic which misrepresents the true nature of the political and fails to understand its dynamics. Because of its individualistic framework, so the argument goes, consensualism lacks the conceptual means to understand politics as a power struggle between collective identities. Moreover, as a result of its rationalistic premises, it refuses to accept that political oppositions cannot be resolved by rational means and that politics is ultimately about making decisions in an undecidable terrain. Finally, because of its universalistic aspirations, consensualism is unwilling to recognize that our social order is not organized on the basis of universal rational or moral principles, but rather on the basis of necessarily contingent and, therefore, “hegemonic” articulations of power relations.3 On the political level, Mouffe claims that the tendency to downplay the importance and the persistence of political oppositions is dangerous because it tends to hamper the proper workings of the political sphere. Political oppositions that are unable to appear in the political arena are bound to re-emerge elsewhere in a much less tractable guise. In this regard, Mouffe associates the rise of right wing populist parties in Western Europe with the dominance of “third way” politics and the alleged disappearance of the left/right distinction. Similarly, she believes the emergence of international terrorism to be the result of the unipolar nature of our current neoliberal world-order, in which the hegemonic dominance of the United States leaves no opportunity for the representation of real political oppositions on the international scene.4 According to Mouffe, the main problems connected to consensualist theories and practices stem from their one-sided commitment to a liberal strand of political thinking. Consensualists fail to appreciate that liberal democracy is a political regime based on a paradoxical mixture of two political traditions and thus combines the universalistic logic of liberalism with the antagonistic logic of democracy. In order to reinstate the importance of this latter logic, Mouffe elaborates her own model of agonistic pluralism. Therein, she acknowledges the importance of a thin consensus on the ethico-political values of liberty and equality as the constitutive symbolic framework of any liberal democratic regime. At the same time, however, the agonistic model emphasizes that this thin consensus remains conflictual. Democracy is characterized by an open-ended political struggle in which agonistic opponents advocate different and incompatible interpretations of the core values of liberty and equality.

Stefan Rummens

Papers

Populism versus democracy

Defending Democracy: The Concentric Containment of Political Extremism

Staging Deliberation: The Role of Representative Institutions in the Deliberative Democratic Process

Democracy as a Non‐Hegemonic Struggle? Disambiguating Chantal Mouffe's Agonistic Model of Politics

Populism as a Threat to Liberal Democracy