Freedom, Law, and the Colonial Project

In this essay I develop a Marxist-informed anticolonialist position, and from this position I assess the role of law in the early Canadian settler-state. I claim that the flexibility of law is a measure of its restitutive and exploitative facets, such facets that operate dialectically as a means of moderating between the settler-state’s liberal democratic ideals (e.g. individual freedom and enfranchisement) and its capitalist imperatives (e.g. privatization of land, expansion, and profit). Law plays an integral role in this context because, by performing this moderating function, it stabilizes the socio-economic order of the emergent settler-state. In the second half of this essay, I enrich my theoretical analysis by examining the variable legal subjectivity of early Ukrainian immigrants to Canada. This historical perspective allows me to illuminate the intricacies of the logic that informs law’s flexibility, and to show how the liberal democratic principle of freedom was—and continues to be—both extolled and compromised by the law’s moderating function.     

Liberal Legitimacy and the Question of Respect

In a modern pluralist society, the idea of liberal legitimacy as proposed by John Rawls offers a promising foundation for the further historic advancement of democracy. However, liberal legitimacy still seems to lack one key element—a unique type of respect at its foundations—without which such democratic advancement may not be achieved. Nor, on closer inspection, could the idea of liberal legitimacy succeed without this particular type of respect. When further refined at its foundation, arguably liberal legitimacy could open doors to previously unattainable improvements in democracy and legitimacy.     

Contemporary Pluralism and Toleration

The author outlines a conception of toleration as recognition of differences which she argues to be more adequate than current liberal views in order to face issues arising from contemporary pluralism. The liberal conception of toleration as freedom from government's interference in certain areas is appropriate if pluralism is conceived of as a plurality of conflicting conceptions of the good. By contrast, if pluralism is understood as the plurality of groups and cultures, asymmetrically situated in democratic society, then the issues underlying toleration are seen as the contested claim of minorities for asserting their different identity in the public space. Public toleration of differences is thus viewed as a symbolic public gesture of inclusion of the different identities and their bearers into democratic citizenship on an equal footing as members of minority groups. The argument supporting public toleration is so founded on reason of justice.     

Prospects and Limits of Democratic Governance in the EU

The EU Treaty contains for the first time a title on democratic principles. These provisions emphasise the importance of national parliaments and the EU parliament for the democratic legitimacy of the EU. The new chapter on democratic principles does not address the central challenge of the EU polity to the traditional understanding of democratic legitimacy, the disjunction of political and economic governance as expressed by the important role of independent institutions like the Commission, the European Central Bank and agencies in EU governance . This is a consequence of the fact that the status of independent regulatory institutions in a democratic polity has not been clarified—neither in the EU nor in the Member States. However, such independent institutions exist in diverse forms in several Member States and could hence be understood as a principle of democratic governance common to the Member States. Such an understanding has not yet evolved. The central theoretical problem is that regulatory theories which explain the legitimacy of independent institutions as an alternative to traditional representation remain outside the methodology of traditional democratic theory. Economic constitutional theory, based on social contract theory and widely neglected in the legal constitutional debate, offers a methodological approach to understanding independent regulatory institutions as part of representative democratic governance.     

Liberalism and Minority Rights. An Interview

The interview focuses on Kymlicka's major area of research, i.e., the issue of minority rights. Kymlicka explains why the rights of national minorities have been traditionally neglected in the Western political tradition. He argues that these rights promote individual freedom, and so should be seen as promoting liberal democratic principles. The interview covers many issues including the relationship between ethno-cultural groups and other forms of "identity politics"; how to individuate cultural groups with legitimate claims to minority rights; whether something like a "cosmopolitan view" can seriously challenge the need for minority rights; what are the dangers of building transnational political institutions such as the EU for democratic citizenship; what are the bases of social unity in multination states and what are the limits of toleration of illiberal minorities.     

Punishment, Socially Deprived Offenders, and Democratic Community

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis: circumstances in which a moral community can no longer be plausibly said to exist.     

Heller,Schmitt and the Euro

Heller understood that Schmitt's ‘authoritarian state’ was in fact the liberal state in its pure form, weak in relation to the capitalist economy but strong in fending off democratic interventions in its operation. Had he lived, Heller would not have been surprised by the close affinities between Schmittian economic authoritarianism and postwar German ordoliberalism, as mediated by a figure like Alexander Rüstow. Neoliberalism as today we know it drew heavily on ordoliberal doctrine, in particular through Friedrich von Hayek who managed to merge it with Austrian economics into a powerful ideological force to replace Keynesianism after the 1970s. Today the European Union, especially in its incorporation as monetary union, closely follows the liberal‐authoritarian template as devised by Schmitt and others in the final years of the Weimar Republic. The paper shows this with reference to the five European‐level institutions that today govern the European free market while protecting it from democratic interference: the Parliament, the Council, the Commission, the European Court of Justice and the European Central Bank.     

Making social media an instrument of democracy

In recent years, the responsibility of social media platforms towards their users and society at large has become a major political issue. However, the regulatory responses to the crisis of social media are still mostly considered unsatisfactory, as demonstrated by the widespread criticism of the German Network Enforcement Act of 2017. This article compares the current constitutional discourse on social media regulation with the debates that accompanied the last major transformation of the media landscape: the rise of broadcasting. While we certainly do not find a roadmap for social media regulation in the past, the key concept of the broadcasting discourse—the idea of media as a sphere of ‘institutional freedom’—can be applied to the challenges of today and can be used to strengthen the democratic function of social media.     

After the Critique of Rights: For a Radical Democratic Theory and Practice of Human Rights

The critique of human rights has proliferated in critical legal thinking over recent years, making it clear that we can no longer uncritically approach human rights in their liberal form. In this article I assert that after the critique of rights one way human rights may be productively re-engaged in radical politics is by drawing from the radical democratic tradition. Radical democratic thought provides plausible resources to rework the shortcomings of liberal human rights, and allows human rights to be brought within the purview of a wider political project adopting a critical approach to current relations of power. Building upon previous re-engagements with rights using radical democratic thought, I return to the work of Ernesto Laclau and Chantal Mouffe to explore how human rights may be thought as an antagonistic hegemonic activity within a critical relation to power, a concept which is fundamentally futural, and may emerge as one site for work towards radical and plural democracy. I also assert, via Judith Butler’s model of cultural translation, that a radical democratic practice of human rights may be advanced which resonates with and builds upon already existing activism, thereby holding possibilities to persuade those who remain sceptical as to radical re-engagements with rights.     

Sexually violent predator laws and the liberal state: an ominous threat to individual liberty

No other country has taken the idea of the liberal state - a government that relies on the rule of law to limit state power and maximize individual liberty - as seriously as the United States. But now many states are manipulating the government's civil commitment authority to indefinitely confine sex offenders who have served their criminal sentences and are entitled to their freedom in the community. This new system of preventive detention masquerading as civil commitment poses an ominous threat to individual liberty and to the continued vitality of the liberal state.     

The Rationality Paradox of Nudge: Rational Tools of Government in a World of Bounded Rationality

Nudge and the wider behavioral economics approach has become increasingly dominant in contemporary political and policy discourse. While much attention has been paid to the attractions and criticisms of nudge (such as liberal paternalism), this article argues that nudge is based on a rationality paradox in that it represents an approach that despite its emphasis on bounded rationality, does not reflect on its own limits to rationality. The article considers the implications of this paradox by considering mechanisms that influence government decision making and mechanisms that lead to unintended consequences in the context of policy interventions.     

Freedom of Opinion and Freedom of Expression: Some Reflections on General Comment No. 34 of the Un Human Rights Committee

The United Nations Human Rights Committee is a body of 18 independent experts (including a member from the Netherlands, Professor Cees Flinterman) who are tasked with monitoring compliance with the provisions of the 1966 International Covenant on Civil and Political Rights (in force 23 March 1976). The Committee deploys four principal activities — periodic examination of State Party reports, interpretation and progressive development of the provisions of the Covenant in the form of General Comments, and adjudication of individual complaints under the Optional Protocol, as well as follow-up procedures. This article analyzes the Committee’s second General Comment on Article 19 of the Covenant, which stipulates freedom of opinion and freedom of expression. In 52 paragraphs the General Comment systematically examines, defines and delimits the concepts contained in the three subparagraphs of Article 19, basing itself primarily on the Committee’s concluding observations upon examination of State Party reports and on the case-law in response to petitions under the Optional Protocol. The Committee highlights the primacy of freedom of opinion, recognizing that it is crucial for a democratic society that persons have access to truthful, reliable and pluralistic information, including through the internet, in order to develop a personal opinion whose expression must then be protected by law. The Committee notes, however, that whereas it is inadmissible to impose any restrictions on freedom of opinion, there are certain responsibilities that attach to the exercise of freedom of expression, namely the respect of the reputation of others as well as considerations of health, morals and national security. The Committee holds that so-called ‘memory laws’ as well as blasphemy laws are incompatible with Article 19 and that defamation laws must strike a balance between competing rights and interests. Paragraph 49 of the General Comment clearly affirms the right to hold non-conformist historical views and the right to be wrong. While it is not the function of lawyers or judges to establish what historical truth is, Article 20 of the Covenant imposes an obligation on governments to prohibit incitement to racial hatred or violence, the criminalization of which requires narrow definition of the elements of the crime.

     

Smoke Free? Public Health Policy,Coercive Paternalism,and the Ethics of Long-Game Regulation

Contemporary public health advocacy promotes a ‘fifth wave of public health’: a ‘cultural’ shift wherein the public's health becomes recognized as a common good, to be realized through concerted developments in the institutional, social, and physical environments. With reference to examples from anti-tobacco policy, in this article I critically examine the fifth-wave agenda in England. I explore it as an approach that, in the face of liberal individualism, works through a ‘long-game’ method of progressive social change. Given the political context, and a predominant concern with narrow understandings of legal coercion, I explain how efforts are made to apply what are presented as less ethically contentious framings of regulatory methods, such as are provided by ‘libertarian paternalism’ (‘nudge theory’). I argue that these fail as measures of legitimacy for long-game regulation: the philosophical foundations of public health laws require a greater – and more obviously contestable, but also more ambitious – critical depth.     

O tratamento jurisdicional das liberdades comunicativas na sociedade da informação no brasil

The study part of the proposed constitutional foundations laid in the model of the democratic rule of law, guided by convictions more human and sympathetic, in contrast to previous models carved under the aegis of dissociated financial aspirations of the relevance of a social growth. Among the arguments contained in the Constitution, it becomes two faces of freedom of expression —freedom of the press and the right to information— both in order to corroborate the importance of these values within a democratic society. Moreover, focusing on virtual relationships, we seek to understand what the decision-making positions in Brazil, in relation to press freedoms and the right to information. Finally, mention was made that there is the seat of the two main national courts (Supreme Court and Superior Court of Justice), negative bias over the Internet, going on, but the actual implementation of communicative freedoms, individual cases interpreting the light of constitutional prism and nuances that requires the digital environment, as a new reality in which human relationships are given.     

Moral Individualism and the Justification of Liberal Democracy

This article discusses the connection between individualism, pluralism and the moral foundation of liberal democracy. It analyses whether the requirement of value pluralism promoted by liberal democracies leads inevitably to communitarian ethics, or whether the liberal and democratic values of autonomy, tolerance and equality are actually based on an objectivistic and teleological account of justice. The author argues that value-neutral procedural and methodological individualism cannot support the liberal demands for pluralism and tolerance in a democratic regime. Instead, the justification of liberal democracy has to replace mechanical, methodological individualism with moral individualism. Moral individualism shows that in order to be legitimate and functioning liberal democracy has to be based on the form of individualism which contains objectivist moral aspects.     

The Jury as a Translation of Democratic Participation and Political Conflict

In this response to Valerie Hans's Presidential address, I use her “legal translating” term to argue that the implementation of liberal democratic structures in new democracies opens new opportunities to translate the jury system into and onto new democratic societies. While policy makers have concerns about the strength and vibrancy of lay participation in the legal system, policy makers' decisions to adopt trial by jury are not always democratic. Nonetheless, the consequence of the translation of trial by jury furthers democratic development. Using Nicaragua, Mexico, and Russia as case studies, I suggest that one goal of policy makers who attempt to adopt trial by jury is to reduce the discretionary power of judges who remain from the prior government. Comparative trial‐by‐jury research can contribute more to our understanding of democratic development than prior research has indicated.     

个人自由与社会秩序的对立统一以及刑法的优先选择

个人自由与社会秩序之间是一种对立统一关系 ,我国刑法应当优先选择个人自由。刑法以个人自由为第一位 ,自由与秩序处于和谐之中 ,在对立中获得统一 ;以社会秩序为第一位 ,自由与秩序则会由对立发展为严重对抗 ,结果是两败俱伤。     

Party Cohesion in the Danish Parliament

This article formulates a comprehensive and systematic taxonomy of micro level explanations of party cohesion; party cohesion being understood as party group members acting in unity externally. This apparatus is used in an analysis of party cohesion in the final divisions in the Danish Parliament, where cohesion figures are among the highest in the liberal democratic world. The investigation is based on interviews, survey data and data on voting behaviour. The main explanations of the high level of cohesion are the absence of disagreement in the party groups and a moral commitment to the party. Variation among MPs, parties and topics is also documented and discussed. The cohesion of each party and the compliant behaviour of individual MPs are related to the importance MPs ascribe to representing their party. Furthermore, divisions on moral issues, EU integration and local matters show lower than normal degrees of cohesion.     

Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.     

Motivating Environmental Action in a Pluralistic Regulatory Environment: An Experimental Study of Framing,Crowding Out,and Institutional Effects in the Context of Recycling Policies

In designing a recycling policy, the regulator must choose among multiple instruments. Our study seeks to address the linkages between the choice of regulatory instruments and institutional frameworks, people's intrinsic motivation, and various attitudinal measures. We examined the behavioral repercussions of several instruments that are used widely in recycling regulation, using an experimental survey on a representative sample of the Israeli population (N = 1,800 participants). Our findings suggest that the design of recycling policies should be sensitive to the framing effects of varied regulatory instruments and to the interplay between intrinsic and extrinsic motivation on the desirability and efficacy of the law. In particular, we point out the potential regulatory advantage of using deposit schemes over other instruments and of using private organizations as regulatory agents. Drawing on these findings, we discuss the potential value of using differentiated regulatory policies to provide incentives for recycling in societies characterized by broad heterogeneity in levels of intrinsic motivation.