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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
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

References
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Dissertation
01 Jan 2016
TL;DR: It is found that as the actors and interests involved in health policy have proliferated, health issues have become increasingly politicised and the growing dependence on, and progressive strengthening of, voluntarist governance, as well as the declining scope and influence of EU health policy.
Abstract: Health is a unique and intriguing sphere of European Union (EU) policy, not least of all because it has only been recognised as such for the last 15 years. From piecemeal origins in public health and occupational safety it underwent dramatic expansion as a result of exposure to free movement and internal market law in the 1990s. Now, in the aftermath of the economic crisis, it is entering another unprecedented era. As the focus of the European project has turned to fiscal sustainability and the strengthening of collective economic governance, health policy has been swept into frameworks designed for the oversight of macroeconomic policy and national expenditure. Crucially, these frameworks extend EU health influence into areas reserved in the founding treaties for exclusive national control. This thesis seeks to map the changing nature, scope and governance of EU health policy, contributing to the existing patchwork of literature and reviewing the prevailing narrative in light of the critical juncture now being faced. It draws on the theories of European integration, the Europeanisation framework and the more recent governance approaches to assess the continuing relevance of core themes – crisis politics, regulatory policy, the internal market, new modes of governance, and the role of the Court – in health policy development. Using six case studies and data from 41 interviews with experts, policy-makers and officials, it examines the catalysts, drivers and dynamics of health policy integration. It finds that as the actors and interests involved in health policy have proliferated, health issues have become increasingly politicised. Addressing the consequences of this trend, the thesis explores the growing dependence on, and progressive strengthening of, voluntarist governance, as well as the declining scope and influence of EU health policy. Finally, it reflects upon the future of health within a politicised European integration project.

22 citations

Dissertation
01 Jan 2016
TL;DR: In this article, the authors examine the development of legislation, policy, and practice for the historic environment sector in England since 1997 in the context of the formative political and societal influences that act to shape it.
Abstract: This thesis examines the development of legislation, policy, and practice for the historic environment sector in England since 1997 in the context of the formative political and societal influences that act to shape it. Over this period, the emergence of a ‘public value paradigm’ for heritage is identified and the thesis considers the historical and ethical foundations for heritage within this ‘Public Value era’. The thesis then undertakes an explicitly political analysis of the historic environment sector and the effectiveness of the processes and practices which guide its political and public reputations and relationships. Set against this analysis, the thesis explores the question of how the historic environment sector should seek to construct a set of contemporary practices, in a changeable political world, which are compatible with the principles of public value that underpin the rhetoric of modern heritage. Of particular note is the influence of changing governance practices and economic conditions evident under recent Governments. The thesis examines the impacts of these various influences and attempts to disentangle the principles and utility of public value from the contextual political opportunities which have influenced its development in practice. The thesis offers a solution in the form of a public value framework, designed to guide the strategic engagement of the historic environment sector with its political, professional and public stakeholders. This framework is used to show how public value provides a viable model for conceptualising and shaping the political engagement of the professional historic environment sector and effectively navigating political systems. It therefore aims to contribute to the development of an innovative and flexible public value-rooted sector which is capable of delivering broad and socially relevant heritage benefits through historic environment sector activities.

22 citations

Journal ArticleDOI
TL;DR: In this paper, the authors try to go beyond normative debates on what should count as civil society and who is to be identified as being part of civil society by relating such normative claims to the social sites where they are produced and claimed.

22 citations

Posted Content
TL;DR: In this paper, the authors take up systems theory as a heuristic for assessing the regime's responsiveness to outside influences and examine the direction investment law is taking in a few key areas: first, in the shift in emphasis away from expropriations (the ‘takings rule’) to the fair and equitable treatment standard, which is performing similar functions; second, the attempt to merge global standards by embracing World Trade Organization Appellate Body decision making; and third, the hesitant embrace of proportionality doctrine as a means of weighing public interests into the equation.
Abstract: There are at least two views within investment arbitration about how to respond to legitimation problems associated with inconsistent rulings, latitudinal interpretations, and arbitral bias and conflicts of interest. Some prefer to keep the regime on course and not respond to these outside perturbations. Others prefer to take into account external influences, such as human rights and environmental commitments, in the course of investment treaty interpretation. Both understand that, whatever the response, these questions will be determined by lawyers, scholars, and arbitrators operating within the system of international investment law and not by actors operating outside of it. Both views, in other words, are congenial to systems-theoretic accounts. As articulated by Teubner, there is a proliferation of functional legal sub-systems, developing autonomously of states, each of which, in the course of maximizing internal rationality, potentially is on a collision course with other operative sub-systems. These can only be forestalled if sub-systems act reflexively by devising strategies of self-limitation that selectively internalize objections emanating from external spheres. As this maps on to self-understandings of actors operating within investment arbitration, this paper takes up systems theory as a heuristic for assessing the regime’s responsiveness to outside influences. In order to take stock of the degree of reflexivity, the paper examines the direction investment law is taking in a few key areas: first, in the shift in emphasis away from expropriations (the ‘takings rule’) to the fair and equitable treatment standard, which is performing similar functions; second, in the attempt to merge global standards by embracing World Trade Organization Appellate Body decision making; and third, the hesitant embrace of proportionality doctrine as a means of weighing public interests into the equation. These moments of reflexivity turn out to be modest in reach and so unlikely to calm objections emanating from states and social movements. What likely will be necessary is intervention into and steering by states of the regime, an intervention that is anathematic to Teubner’s system-theoretic account.

22 citations