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Journal Article

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

01 Feb 1997-Review of Metaphysics-Vol. 51, Iss: 1, pp 153-155
About: This article is published in Review of Metaphysics.The article was published on 1997-02-01 and is currently open access. It has received 2568 citations till now. The article focuses on the topics: Democracy.
Citations
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Journal ArticleDOI
TL;DR: Populists are often excluded from political life on the basis that they are too emotional as mentioned in this paper, which is endemic to political and social theory, and has long been utilised to marginalise women, non-Europeans, or young people.
Abstract: Populists are often excluded from political life on the basis that they are too emotional. Both social movements as well as political parties who are labelled as populist are accused of using demagoguery and manipulation in order to attract support and new membership. Often, these critiques emanate from the political establishment, creating a division between emotional and rational actors in politics. In this article, I argue that instead of seeing populism as a nominal or ordinal category, we should look at how the term itself has performative properties. The article is interested in how populism as a concept is used as a tool for exclusion, and how being ‘too emotional’ is used as justification for excluding certain actors. This article first contends that this perspective is endemic to political and social theory, and has long been utilised to marginalise women, non-Europeans, or young people. Second, the article demonstrates how this perspective also pervades much of contemporary studies on populism, which do not sufficiently recognise the political implications of employing a strict divide between emotion and reason. Third, the article further contends that by using a Laclauian framework which sees politics as equal to hegemony as equal to populism, one can conclude that populist actors are no different from other political actors; emotions and affects are always central to any political identity. Instead, the division between emotional and rational in politics serves to sediments exclusionary practices against newcomers and challengers of the status quo. I conclude by using the Laclauian framework, focus can be turned to the performative function of populism, and its political implications.

18 citations


Cites background from "Between Facts and Norms: Contributi..."

  • ...A similar focus on rationality is expressed in deliberative democratic theory, where the foundations of Habermas’ work are all reliant on the capacity to rational argumentation (Habermas 1984, 1996)....

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Journal ArticleDOI
TL;DR: The authors conducted an online factorial survey experiment among a sample of 960 Americans recruited on Amazon's Mechanical Turk, comparing support for the use of referendums and public meetings, arguing that attitudes towards these instruments depend on whether they are used to inform legislators or take binding decisions.
Abstract: Previous research on public support for participatory decision-making fails to distinguish between vote-centric (referendums and initiatives) and talk-centric (deliberative-style meetings) instruments, despite a deliberative turn in democratic theory suggesting that political discussion among ordinary citizens improves decision-making. In an online factorial survey experiment conducted among a sample of 960 Americans recruited on Amazon’s Mechanical Turk, we compared support for the use of referendums and public meetings, arguing that attitudes towards these instruments depend on whether they are used to inform legislators or take binding decisions. Public meetings were rated considerably lower than referendums and initiatives, especially when the outcomes were binding. Contrary to expectations, we did not find a preference for binding (over advisory) referendums and individuals from referendum and initiative states, where these instruments are legally binding, expressed less support for binding participatory reforms than individuals from non-direct democratic states. Despite the many critiques of direct democracy, public debate in the US has not considered whether advisory outcomes might appease some of these concerns. The results also demonstrated that individuals expressing concerns about the inability of ordinary citizens to understand politics and about the welfare of minority groups were not as negative about participatory decision-making when legislators had the final say.

18 citations


Cites background from "Between Facts and Norms: Contributi..."

  • ...…approach emphasize a range of positive outcomes: among others, participants learn important civic skills, consolidate their political views, empathize with opposing viewpoints, and set aside personal interests in the pursuit of common goals (Gutmann & Thompson, 1996; Habermas, 1996; Roberts, 2004)....

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  • ...Political discussion has an educative effect, by stimulating participants to develop their argumentation skills, and a reconciling effect, by encouraging participants to consider opposing viewpoints (Fishkin, 1991; Habermas, 1996)....

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  • ...…political theorists have urged more deliberation to improve decision-making processes (Chambers, 2012; Fishkin, 1991; Gutmann & Thompson, 1996; Habermas, 1996), however previous research on citizens’ perceptionsmeasures only support for referendums or for the general idea of ‘giving citizens…...

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Posted Content
TL;DR: In this paper, the authors suggest that this pluralism is a result of at least two factors: First, proponents of Stakeholder Theory pursue different research interests prioritizing either the descriptive, the instrumental or the normative-ethical aspects of their studies.
Abstract: Stakeholder Theory is a very pluralistic field of research with a large variety of theoretical perspectives and empirical studies. On the one hand this pluralism is a valuable source of creativity, inspiration and innovation, but on the other hand the incoherent claims, messy theoretical foundations, and inconclusive results make it difficult to assess Stakeholder Theory’s contribution to research on Business and Society and Corporate Social Responsibility. We suggest that this pluralism is a result of at least two factors: First, proponents of Stakeholder Theory pursue different research interests prioritizing either the descriptive, the in-strumental, or the normative-ethical aspects of their studies. Second, in the course of their research projects scholars apply different philosophies and methods based on numerous paradigmatic assumptions about how to conduct social research and to develop knowledge on the business-society relationship. A careful analysis of these different research interests and paradigmatic assumptions helps us to better understand the pluralism of the field, to navigate between the various theories, to assess their contribution, and to explore the usefulness of pluralism and the possibility or necessity of theory integration.

18 citations

Journal ArticleDOI
TL;DR: In this paper, the authors argue that the ordre public or morality clause does not provide sufficient protection against ethically problematic uses of the patent system within the area of life, and that there are worrisome obstacles to any effective and comprehensive critical analysis of the ethical aspects of bio-patenting.
Abstract: In order to take ethical considerations of patenting biological material into account, the so-called “ordre public or morality clause” was implemented as Article 6 in the EC directive on the legal protection of biotechnological inventions, 98/44/EC. At first glance, this seems to provide a significant advantage to the European patent system with respect to ethics. The thesis of this paper argues that the ordre public or morality clause does not provide sufficient protection against ethically problematic uses of the patent system within the area of life. On the contrary, there are worrisome obstacles to any effective and comprehensive critical analysis of the ethical aspects of bio-patenting, especially in the field of agriculture. These obstacles can be seen as indirect consequences of the implementation of ethical considerations in form of the ordre public and morality clause in the EC Directive. Therefore, Article 6 of the EC Directive on the legal protection of biotechnological inventions seems to ultimately weaken the position of ethics in the debate concerning bio-patenting because the ordre public and morality clause is usually interpreted in an exclusively bio-ethical way in the sense of an “intrinsic ethics,” which is primarily interested in questions regarding the moral status of particular entities. It is argued that an important cause of this phenomenon is that the decisive reasons against bio-patenting are concerns of social ethics, and not bio-ethics.

18 citations


Cites background from "Between Facts and Norms: Contributi..."

  • ...(Cf. Habermas (1996), here particularly pp. 104–118 and pp. 447–)....

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Dissertation
01 Mar 2017
TL;DR: The authors use critical discourse analysis (CDA) as a primary methodological tool to analyse the criminal justice discourse as it relates to offensive language crimes in Australia, including swearing, danger and disgust.
Abstract: This thesis analyses criminal justice discourse as it relates to offensive language crimes in Australia. Across Australia, and elsewhere, it is a crime to use offensive, indecent or obscene language in or near a public place. These crimes are governed by broadly drafted provisions that allow police and judicial officers significant discretion in determining offensiveness. Although offensive language crimes can theoretically target a multitude of words and phrases, in practice, the laws are used to police and punish a small selection of swear words. Provisions that circumscribe offensive speech have a linguistic dimension. This dimension has been under-theorised in previous scholarship on the topic. Accordingly, my thesis places language at the centre of offensive language crimes, by interrogating how such crimes are represented and legitimised as a particular discursive formation within the criminal justice system. My thesis asks two questions: Firstly, how is offensive language represented in criminal justice discourse? Secondly, how are offensive language crimes legitimised in criminal justice discourse? I employ a distinct approach to these questions by employing critical discourse analysis (‘CDA’) as my primary methodological tool. CDA is not strictly a ‘method’, but rather, a loosely grouped body of work that views language as both shaping and shaped by society. Analysts works from the premise that we cannot neutrally represent reality. Instead, we construct (and reconstruct) reality, including social identities, subject positions, social relationships and systems of knowledge and belief, through language. I use the phrase ‘criminal justice discourse’ to describe socially constructed ways of signifying reality, through language, in the criminal justice system. My thesis situates its linguistic analysis of offensive language crimes in broader social, political and historical contexts. I draw into the frame linguistic research on swearing, and literature relating to metaphors, purity and disgust. The thesis structure is based on the following themes: language interpretation in the courts; swearing, danger and disgust; context; objective standards; and power, order and authority. These themes are derived from my doctrinal analysis of offensive language crimes and ideas that inform and legitimise the criminal punishment of swearing. My thesis reconceptualises how offensive language is interpreted in the criminal law. I extend existing scholarship by highlighting how criminal justice discourse creates and entrenches power inequalities, augments judicial discretion, ignores difference and promotes unfairness. I demonstrate how discourse shapes perceptions about things, people, ideas and words that are deemed ‘out of place’ and worthy of criminal sanction.

18 citations

References
More filters
Journal ArticleDOI
TL;DR: In this comprehensive social theory of the Internet and the networked information economy, Benkler describes how patterns of information, knowledge, and cultural production are changing--and shows that the way information and knowledge are made available can either limit or enlarge the ways people can create and express themselves.
Abstract: With the radical changes in information production that the Internet has introduced, we stand at an important moment of transition, says Yochai Benkler in this thought-provoking book. The phenomenon he describes as social production is reshaping markets, while at the same time offering new opportunities to enhance individual freedom, cultural diversity, political discourse, and justice. But these results are by no means inevitable: a systematic campaign to protect the entrenched industrial information economy of the last century threatens the promise of today's emerging networked information environment. In this comprehensive social theory of the Internet and the networked information economy, Benkler describes how patterns of information, knowledge, and cultural production are changing--and shows that the way information and knowledge are made available can either limit or enlarge the ways people can create and express themselves. He describes the range of legal and policy choices that confront us and maintains that there is much to be gained--or lost--by the decisions we make today.

4,002 citations

Journal ArticleDOI
Archon Fung1
TL;DR: In this paper, the authors develop a framework for understanding the range of institutional possibilities for public participation, including who participates, how participants communicate with one another and make decisions together, and how discussions are linked with policy or public action.
Abstract: The multifaceted challenges of contemporary governance demand a complex account of the ways in which those who are subject to laws and policies should participate in making them. This article develops a framework for understanding the range of institutional possibilities for public participation. Mechanisms of participation vary along three important dimensions: who participates, how participants communicate with one another and make decisions together, and how discussions are linked with policy or public action. These three dimensions constitute a space in which any particular mechanism of participation can be located. Different regions of this institutional design space are more and less suited to addressing important problems of democratic governance such as legitimacy, justice, and effective administration.

1,526 citations

01 Dec 2000
TL;DR: In this paper, the authors examine the current debate about the nature of democracy and discuss the main theses of the approach called "deliberative democracy" in its two main versions, the one put forward by John Rawls, and the other one put forth by Jurgen Habermas.
Abstract: This article examines the current debate about the nature of democracy and discusses the main theses of the approach called 'deliberative democracy' in its two main versions, the one put forward by John Rawls, and the other one put forwardby Jurgen Habermas. While agreeing with them as regards to the need to develop a more of democracy than the one offered by the 'aggregative' model, I submit that they do not provide an adequate understanding of the main task of democracy. No doubt, by stating that democracy cannot be reduced to a question of procedures to mediate among conflicting interests, deliberative democrats defend a conception of democracy that presents a richer conception of politics. But, albeit in a different way thanthe view they criticize, their vision is also a rationalist one which leaves aside the crucial role played by 'passions' and collective forms of identifications in the field of politics. Moreover, in their attempt to reconcile the liberal tradition with the democratic one, deliberative democrats tend to erase the tension that exist between liberalism and democracy and they are therefore unable to come to terms with the conflictual nature of democratic politics. The main thesis that I put forward in this article is that democratic theory needs to acknowledge the ineradicability of antagonism and the impossibility of achieving a fully inclusive rational consensus. I argue that a model of democracy in terms of 'agonistic pluralism' can help us to better envisage the main challenge facing democratic politics today: how to create democratic forms of identifications that will contribute to mobilize passions towards democratic designs.;

1,338 citations

Journal ArticleDOI
TL;DR: Public diplomacy, as the diplomacy of the public, not of the government, intervenes in this global public sphere, laying the ground for traditional forms of diplomacy to act beyond the strict negotiation of power relationships by building on shared... as mentioned in this paper.
Abstract: The public sphere is the space of communication of ideas and projects that emerge from society and are addressed to the decision makers in the institutions of society. The global civil society is the organized expression of the values and interests of society. The relationships between government and civil society and their interaction via the public sphere define the polity of society. The process of globalization has shifted the debate from the national domain to the global debate, prompting the emergence of a global civil society and of ad hoc forms of global governance. Accordingly, the public sphere as the space of debate on public affairs has also shifted from the national to the global and is increasingly constructed around global communication networks. Public diplomacy, as the diplomacy of the public, not of the government, intervenes in this global public sphere, laying the ground for traditional forms of diplomacy to act beyond the strict negotiation of power relationships by building on shared...

936 citations

Book
05 Oct 2012
TL;DR: Tweets and the Streets as mentioned in this paper examines the relationship between the rise of social media and the emergence of new forms of protest, arguing that activists' use of Twitter and Facebook does not fit with the image of a "cyberspace" detached from physical reality.
Abstract: Tweets and the Streets analyses the culture of the new protest movements of the 21st century. From the Arab Spring to the "indignados" protests in Spain and the Occupy movement, Paolo Gerbaudo examines the relationship between the rise of social media and the emergence of new forms of protest. Gerbaudo argues that activists' use of Twitter and Facebook does not fit with the image of a "cyberspace" detached from physical reality. Instead, social media is used as part of a project of re-appropriation of public space, which involves the assembling of different groups around "occupied" places such as Cairo's Tahrir Square or New York's Zuccotti Park. An exciting and invigorating journey through the new politics of dissent, Tweets and the Streets points both to the creative possibilities and to the risks of political evanescence which new media brings to the contemporary protest experience.

911 citations