Property without authority? Between natural law and the Kantian state

ABSTRACT

In Territorial Sovereignty, Anna Stilz seeks to combine a Kant-inspired moral justification of the state with a natural law-inspired account of ‘foundational title’. The aim of my essay is to show that the contrasting ways in which these two frameworks conceptualize the relation between property (or rights over objects more generally) and authority lead to tensions on two levels of Stilz’s own argument. Concerning individuals’ occupation of land, the question is why some rights over objects can be acquired pre-politically (i.e. occupancy rights), while others cannot (i.e. property rights). And concerning states’ claims over territory, it is unclear whether state entrance basically ‘absorbs’ our political obligations, or whether states have a duty of justice to establish more ambitious (and possibly coercive) forms of global government. The underlying question is whether, or to what extent, Stilz remains committed to Kant’s unconditional justification of territorial sovereignty and, if so, how the very idea of natural rights (over objects in particular) can be made to fit into such an account.     

Transforming (but not transcending) the state system? On statist cosmopolitanism

Can states become committed and competent agents of cosmopolitan justice? The theory of ‘statist cosmopolitanism’ argues that they can: their citizens can be turned towards a commitment to cosmopolitan principles and actions by moral entrepreneurs constituting a ‘cosmopolitan avant-garde’, and can be sustained in their commitment to those principles by their pre-existing attachment to the state as a political community. Taking cosmopolitan principles as axiomatic, this paper subjects statist cosmopolitanism to critique. First, I question the scale of the transformation that a cosmopolitan avant-garde can engender given the complexity of the causal chains the avant-garde seek to elucidate, as well as the countervailing potency of the state itself which reinforces particularistic attitudes in its citizens. Second, I argue that even if, contra my preceding argument, the cosmopolitan avant-garde were to be successful, states would find it desirable to federally integrate in order to be better able to realise their cosmopolitan commitments. Such integration is compatible with statist cosmopolitanism’s motivational theory, even if not its institutional vision. Finally, I re-characterise the cosmopolitan avant-garde as agitators for the transcendence, rather than just transformation, of the state system.     

No right to unilaterally claim your territory: on the consistency of Kantian statism

The paper examines the consistency of recent Kantian justifications of state authority through reflection on the normative implications of states’ territorial nature. I claim that their conceptual structure leaves these accounts unable to close the justificatory gap that emerges at the transition from legitimate authority simpliciter, to legitimate state authority. None of the strategies Kantian statists have come up with in order to solve this problem – based on the proximity, occupancy and permissive principles – provides the needed grounds on which to carve up the earth’s surface into jurisdictional domains. Yet, I conclude that this does not require Kantians to cede statist grounds altogether but to take a distinctly ‘global perspective’ on states.     

Unequal but fair? Cultural recognition and self-government rights

This review of Patten’s Equal Recognition suggests that minority rights can be grounded either in cultural accommodation rights or collective self-government rights. I defend four propositions: (1) individuals’ interests in membership in political communities cannot be reduced to their interests in being able to pursue their own conceptions of the good; (2) liberal states do not have to extend neutrality as equal treatment to self-government claims that intersect with their own jurisdiction; (3) claims for the establishment of public languages and territorial autonomy need to be justified on the basis of self-government rights rather than on grounds of equal treatment of cultural identities; (4) as a condition for their admission, immigrants can be expected to waive collective self-government rights rather than cultural protection rights.     

The Gordon Brown Problem: New Labour and the Two ‘Adam Smiths’

As is well known, New Labour is often presented as an alternative to the conventional preferences of the left and right in British politics. Less commented upon is Gordon Brown's self‐conscious appeal to the thought of Adam Smith in doing so. Brown claims to have rescued Smith from those on the right that interpret his ‘invisible hand’ metaphor from The Wealth of Nations to represent dogmatic advocacy of free markets. Rather than interrogate this view, Brown attempts to complement it with the ‘helping hand’ that Smith supposedly proffers in The Theory of Moral Sentiments, in order to stress New Labour's resolution of ‘enterprise and fairness.’ I argue that Brown instead reiterates the academically discredited Adam Smith Problem, in which the moral ‘Smith’ is deemed subordinate to the economic ‘Smith,’ and that his use of these erroneous characterisations highlights his commitment to a set of preferences usually associated with the right.     

National Competition Policy: The Downside

Identifying the ‘downside’ of competition policy raises the question of whether there is an ‘up-side’. Competition is supposed to drive the organisers of commodity production to minimise the costs they have to bear in some short to medium term, within environments more or less circumscribed by government regulations. The actual period tends to be that for which the providers of finance are prepared to wait for returns after a poorly performing company is restructured. Economists used to say that cost minimisation requires an industry structure in which there are many independent producers. Nowadays, more enlightened writers speak of ensuring that the market positions held by existing producers are contestable by prospective new producers. The question of what government in Australia may do to establish competition in this sense of competition has recently focussed on the desirable re-organisation of public enterprises, perhaps especially those that exist at the level of the states. So what are the dimensions of the ‘downside’ of opening the market positions occupied by public enterprises to contestation by private companies, especially those which are monopolies? The answer takes a large measure of the gloss off the Hilmer promises. The problems to be addressed are: the limit put on contestability where there is an element of natural monopoly; the tendency for cost minimisation to depend on the tighter management of labour; and, the difficulty of insisting simultaneously on both ‘competition’ and the satisfaction of ‘community service obligations’ (CSOs).     

Human Rights and Modern Liberalism: a Critique

The idea of human rights has become one of the central moral notions of both the theory and practice of international politics. While its foundation and future in the practice of politics looks bright, it is an idea that still causes great trouble at the theoretical level. What are human rights? Why do we have them? To what should we attribute the authority of their moral claims? The theorist Michael Freeman has suggested one theory that by addressing such questions may serve as a foundation for human rights. His theory, however, ends by begging the questions it set out to answer.     

Immigrant sexual citizenship: intersectional templates among Mexican gay immigrants to the USA

Existing literature on sexual citizenship has emphasized the sexuality-related claims of de jure citizens of nation-states, generally ignoring immigrants. Conversely, the literature on immigration rarely attends to the salience of sexual issues in understanding the social incorporation of migrants. This article seeks to fill the gap by theorizing and analyzing immigrant sexual citizenship. While some scholars of sexual citizenship have focused on the rights and recognition granted formally by the nation-state and others have stressed more diffuse, cultural perceptions of community and local belonging, we argue that the lived experiences of immigrant sexual citizenship call for multiscalar scrutiny of templates and practices of citizenship that bridge national policies with local connections. Analysis of ethnographic data from a study of 76 Mexican gay and bisexual male immigrants to San Diego, California, reveals the specific citizenship templates that these men encounter as they negotiate their intersecting social statuses as gay/bisexual and as immigrants (legal or undocumented); these include an ‘asylum’ template, a ‘rights’ template, and a ‘local attachments’ template. However, the complications of their intersecting identities constrain their capacity to claim immigrant sexual citizenship. The study underscores the importance of both intersectional and multiscalar approaches in research on citizenship as social practice.     

Minorities and Modernity: The Crisis of Liberal Secularism

The Enlightenment as the origin of modernity and as the foundation of moral universalism has been much invoked by social theory in recent years especially by writers influenced by Michel Foucault's essay on the subject. Postmodernism and cultural anthropology have made the question about Enlightenment universalism ever more pressing. At one level the issue is very simple. By its emphasis on universalism in knowledge and ethics, the Enlightenment made particularity a problem and it resulted in a stigmatization of those social groups that patently departed from its magisterial interpretation of rationality appear to be irrational, premodern and dangerous. Aamir Mufti claims uncontroversially that the Enlightenment idea of universalism set up a series of contrasts between the universalism of the bourgeois world of civility, civilization and citizenship on the one hand and local practices and customs on the other. The result was to construct a classification of social minorities who were deemed to be in need of education, moral reform, modernization and assimilation. Enlightenment in the Colony involves a comparison between “the Jewish Question” and the Partition of India. The particularity of Jews and Muslims is examined in the context of modern assumptions about universalism, especially the notion of universal citizenship.     

Morality without Intention

Abstract

An examination of how, in literature, silence and veiling are related to moral significance. The paper emphasizes Walter Benjamin’s essay on Goethe’s Elective Affiniites and Nathaniel Hawthorne’s “The Minister’s Black Veil” and poses the question of how the literary can possess moral meaning or effect when, as in these two works, silence and veiling appear as a means of refusing or denying intention. Benjamin’s and Hawthorne’s different critiques of the symbol are presented as the central issue around which the possibility of moral meaning is decided as an intentionless act. Benjamin’s preservation of the moral is interpreted as the cause of the paradoxical and contradictory sources of the expressionless and its critical violence as well as the veiling and secrecy he identifies as forming the true work of art. Against this account, Hawthorne’s story is read as the refusal of any preceding secret as the basis of a moral claim and thus as the defining category of the work of art.     

Tightened Immigration Policies and the Self‐Employment Dynamics of Mexican Immigrants

As the U.S. government has intensified its crackdown on illegal immigration in recent years, an important question to ask is how undocumented immigrants react to the stricter enforcement of immigration laws. This paper seeks to answer whether they increasingly choose self‐employment in an effort to avoid apprehension and subsequent deportation. To guard against endogeneity bias that might stem from increased enforcement in reaction to illegal immigration, the empirical analysis makes use of the September 11 terror attacks (9/11), which inadvertently triggered stricter immigration enforcement nationwide, as a natural experiment. Using a difference‐in‐differences approach and data from the Current Population Survey between 1996 and 2006, this paper examines the changes in the self‐employment choices of male and non‐citizen Mexican immigrants (a proxy for undocumented immigrants) compared to less‐educated Whites (the control group). The findings indicate that male and non‐citizen Mexican immigrants are substantially more likely (40 percent) to enter into self‐employment than less‐educated Whites after 9/11. The analysis further suggests that this finding is not driven by the 2001 recession that coincided with the terror attacks. The increased entries are mainly observed in the group that is most likely to be in the United States illegally and in those who face strong economic incentives. In addition, increased entries are not driven by increased unemployment among Mexican immigrants after the 9/11 event, but, rather, they reflect a change in the behavior of the unemployed Mexican immigrants, perhaps due to changes in perceived risks of detection and deportation.     

Naked protest: the maternal politics of citizenship and revolt

This article explores immigrant protest, citizenship and their relationship, through an account of a ‘naked protest’ by a group of mothers, refused asylum seekers and ‘illegal immigrants’ at Yarl's Wood immigration removal centre in England and ends with an account of the use of the ‘naked curse’ in a protest by an indigenous group of mothers against global oil corporations in the Niger Delta. Woven together from activist materials, news reports, interviews, documentaries and historical data, I recount and mobilise these protests to think about ‘the scaling of bodies’ (Marion-Young 1990) and citizenship under neoliberalism, and the routes through which motherhood is mobilised as a site of political agency and resistance to processes of disenfranchisement. I argue that these maternal protests challenge the ‘catastrophic functionalism’ of Agamben-inspired accounts of ‘bare life’, and offer an alternative lens through which to perceive the ethical and political claims made by abject populations (Papadopoulos et al. 2008, p. 198). In thinking through and with these naked protests, this article reframes the sexual politics of citizenship and brings questions of maternity and natality to bear on citizenship studies.     

Kant and the critique of the ethics-first approach to politics

Abstract

Contemporary ‘realists’ attack the Kantian influence on political philosophy. A main charge is that Kantians fail to understand the specificity of politics and neglect to develop a ‘distinctively political thought’ that differs from moral philosophy. Instead, the critics say, Kantians are guilty of an ‘ethics-first approach to politics,’ in which political theory is a mere application of moral principles. But what does this ethics-first approach have to do with Kant himself? Very little. This article shows how Kant’s approach to political theory at a fundamental level includes political institutions, power, and coercion as well as disagreement, security, and coordination problems. In contrast to realists, Kant has a fundamental principle, which can explain why and guide how we ought to approach the political question, namely the norm of equal freedom. Yet, Kant’s theory does not take the form of a moralistic ought addressed to the isolated individual, but concerns a problem that we share as interdependent beings and that requires common institutions. The fruitfulness of the Kantian approach, then, is that it can take the political question seriously without being uncritical of actual politics and power, and that it can be normative without being moralistic.     

A multilevel puzzle: Migrants’ voting rights in national and local elections

How does international migration impact the composition of the demos? Constitutional doctrines and democratic theories suggest contrasting responses: an insular one excludes both non‐citizen immigrants and citizen‐emigrants; a deterritorialised one includes all citizens wherever they reside; a postnational one includes all residents and only these. This article argues that none of these predicted responses represents the dominant pattern of democratic adaptation, which is instead a level‐specific expansion of the national franchise to include non‐resident citizens and of the local franchise to include non‐citizen residents. This is demonstrated by analysing an original dataset on voting rights in 31 European and 22 American countries, and outlining a level‐sensitive normative theory of citizenship that provides support for this pattern as well as a critical benchmark for current franchise policies. The findings can be summarised in two inductive generalisations: (1) Voting rights today no longer depend on residence at the national level and on citizenship of the respective state at the local level; (2) Voting rights do, however, generally depend on citizenship of the respective state at the national level and on residence at the local level. In the article, these are called the patterns of franchise ‘expansion’ and ‘containment’. The former supports the idea of widespread level‐specific expansion of the franchise and refutes the insular view of the demos. The latter signals corresponding level‐specific restrictions, which defeats over‐generalised versions of deterritorialised or postnational conceptions of the demos. In order to test how robust this finding is, cases are analysed where the dominant patterns of expansion have been resisted and where unexpected expansion has occurred. With regard to the former, the article identifies constitutional and political obstacles to voting rights expansion in particular countries. With regard to the latter, the article shows that even where national voting rights have been extended to non‐citizen residents, containment remains strong through indirect links to citizenship.     

The integrity of religious believers

ABSTRACT

According to Cécile Laborde, persons with religious commitments that are incidentally burdened by generally applicable laws should, under certain circumstances, be provided with an exemption from those laws. Laborde’s justification for this view is that religious commitments are a type of commitment with which a person must comply if she is to maintain her integrity. I argue that Laborde’s account is insufficiently demanding in terms of the other-regarding attitudes it expects people to have before they can make claims to exemptions based on their integrity. The reason it is insufficiently demanding is that Laborde’s account rests on what I call a ‘non-moralised’ view of integrity. I raise some criticisms of this view and defend the alternative, ‘moralised’ view of integrity, according to which the value of a religious person’s integrity depends on whether the practice she wishes to perform complies with certain moral constraints.     

政策性城市新移民社会资本对个体健康的影响研究--基于成都市的调查

基于社会资本理论,系统分析成都市政策性城市新移民与城市本地居民的健康相关社会资本现状。结果表明,政策性城市新移民的总体社会资本得分和单项社会资本得分均低于城市本地居民,且差异有统计学意义(P<0.05)。在此基础上,通过开展政策性城市新移民的社会资本对健康的影响因素分析,构建社会资本影响健康的作用路径模型,提出了提升政策性城市新移民健康相关社会资本的建议,为制定提高政策性城市新移民健康水平的政策提供参考依据。     

Partisanship and independence: the peculiar moralism of American politics

Against the background of historical antipartyism in practice and in democratic theory, and with a focus on American political thought, this paper takes issue with contemporary arguments that value the political identity ‘Independent’ and disparage partisanship. A typology of ‘Independent’ is offered and both empirical and moral claims about the superiority of Independent voters are rebutted, with particular focus on the ‘weightlessness’ of Independents. The reasons to appreciate the moral distinctiveness of partisanship for democracy are set out: commitment to political pluralism, to regulated political rivalry, and to shifting responsibility for governing. Inclusiveness, comprehensiveness, and compromisingness set the contours for an ethic of partisanship.     

Getting to justice?

This article addresses whether Albert Weale’s view in Democratic Justice and the Social Contract (OUP 2013) fits into one of two strands of social contract traditions, and how his account stands up to critics. He claims to stand in the contractarian tradition, which seeks to justify normative principles of justice from non-moral premises. The alternative is the contractualist tradition which assumes that individuals are also motivated by other-regarding moral considerations. The aim of the latter theories is often limited to systematise and specify vague and contested normative judgements concerning shared institutions. There are tensions in Weale’s account as to whether it addresses the question of concern to contractarians or rather that of contractualists. A second challenge concerns Weale’s attempt to extrapolate principles of justice from common property resource regimes within the basic structure of society to that basic structure of a ‘great society’ itself. The impact of the basic structure on individuals is so pervasive that the principle Weale proposes seems misapplied. A claim to the marginal product in complex modes of production supplemented by a social insurance scheme says little about the distributive principles for assessing how the basic structure as a whole should engender the distribution of marginal products among us.     

The fiscal effects of statehood: New Mexico and Arizona, 1903–1919

The residents of US territories often vote against statehood for fear government will use its greater sovereignty to impose a heavier tax burden. On the other hand, public choice theory predicts that fiscal decentralization limits government’s size. The financial reports of New Mexico and Arizona were examined before and after statehood in 1912. Graphical and regression analyses of the ratios of receipts and expenditures to property values and US GNP suggest that the relative price of government rose far more in the two new states than in a control state, Nevada, thus supporting the claims of statehood’s opponents.     

Democratic and constitutionalist elements in Khomeini’s Unveiling of Secrets and Islamic Government

This is a study of Khomeini’s two main pre-revolutionary political works: one, Islamic Government, in which he urges his audience to accept that Islam is a political religion and jurisprudents of Islamic law have a crucial role in government; and a second, The Unveiling of Secrets, of which only short excerpts have been translated into English and which has received scant attention by scholars outside of Iran. This latter work is crucial to study because in this work, he elaborates his view on democratic and constitutionalist principles, subjects he had treated only vaguely and briefly in Islamic Government. Contrary to much of the secondary literature produced on Khomeini, which claims that Khomeini’s theory is simply a theory of guardianship, antithetical to participatory government, the article claims that in The Unveiling of Secrets, and (though more ambiguously) in Islamic Government, Khomeini appeals to democratic and constitutionalist principles to argue that the views of common citizens, and not just experts in Islamic law, must be heeded by an Islamic government. Recognizing the complexities and ambiguities of Khomeini’s thought both in his earlier and later works allows us to understand and engage in dialogue with the scholars who inherit and critique his ideas today.