Reflective Judgement and Prudential Rationality: A Contribution to an Inclusive Practical Application of Law

Hannah Arendt has developed a theory of the importance of judgment of taste for political manners, founded on the Kantian aesthetic theory. Nowadays this theory is considered a current theoretical reference for establishing a political way to reconcile the demands of the radicalization of deliberative democracy with the need for political inclusion (Iris Marion Young, Seyla Benhabib). Albena Azmanova in her The Scandal of Reason: A Critical Theory of Political Judgment proposes an inclusive political rhetoric. The political theory founded on judgment is based on Kant’s philosophy; it was developed by Arendt and has greatly influenced the current debate, as an alternative theory in which the moral basis of law can be more sensitive to human contexts; a universalist theory more adequate for dealing with the tragic dimension of human life. The theory of political judgment uses the concepts of reflective judgment and ‘enlarged thought’ as its main concepts. As a starting point, a theory like this considers the singular judgments of justice that each person makes. The background, therefore, is not a rational foundation of principles, but the capacity of rational beings to make judgments. This post-metaphysical theory of law, based on a theory of judgment, is a critique of legal positivism, but presents itself as an alternative to the idealistic theory of law. But this theoretical project has received some criticism related to the adequacy of Arendt’s rereading of Kantian philosophy and her attempt to approximate Kant’s reflective judgment to the Aristotelian concept of phronêsis. Some critics, such as Bryan Garsten, believe that Kant’s rhetoric of public reason diminished and displaced the prudential faculty of judgment that Arendt is to be interested in reviving. Arendt’s attempt to find a theory of judgment in Kant’s aesthetic theory is not successful, in Garsten’s view. Our purpose is to show that a critical theory of judicial judgment is not only possible, but necessary; Arendt’s theory of judgment offers an important contribution to a critical theory of judicial judgment, particularly one devoted to the construction of a legal theory that prioritizes a politics of social inclusion. This theory proposes a critical approach to the project of the procedural conception of democracy, since it can mask social exclusion. An adequate understanding of judicial argumentation cannot forget that it happens in a rhetorical context: it is not only important what a discourse says, but how it says it. The radicalization of deliberative democracy supposes a revision of the ways judicial deliberation is thought: not by reference to universal or at least general principles, but taking into consideration what is ‘critically relevant’, with a view to remedying social injustice (following Azmanova).

     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

For Both Love and Money: Viviana Zelizer's The Purchase of Intimacy

Viviana Zelizer's recent book, The Purchase of Intimacy (2005), presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships—a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships and then explains her more three‐dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.     

Troubled Children and Children in Trouble: Redefining the Role of the Juvenile Court in the Lives of Children

This Essay considers the emerging research in the area of dual‐jurisdiction children, often referred to as “crossover kids”—those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to “track” children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court—a return to its roots—to better enable a court to consider the needs of the whole child, in context with the needs of her/his family.     

Contemporary Feminist Perspectives on Social Contract Theory

Abstract. This paper explores two feminist contributions to the analysis of the social contract tradition, comparing the political philosophy of Carole Pateman with the moral theory of Jean Hampton, to ask two questions. First, which points must feminists continue to argue in their critique of the social contract tradition today? The second question is: Can feminists actually draw anything from the social contract tradition today? It argues that Pateman's critique of contractarianism continues to be useful when read in the context of her analysis of “self‐ownership” and subordination rather than as a rewriting of the social contract. Hampton's deployment of a Kantian test for the failure of respect for personhood within domestic (and other) relationships does not undermine Pateman's position. Consideration of how such an ideal can be understood as potentially compatible with Pateman's perspective raises issues about the radical potential within claims for equal respect for personhood. In Hampton's work, widespread “test failure” can be used to indicate that political action rather than moral analysis is required. Hampton assumes that those employing the test are able to abstract themselves sufficiently from their current position to imagine what it would be to be treated as a person. It is argued that this “moral test” should be envisaged as being asked in concert with others, at which point it has the potential to become political action.     

Primetime Dispute Resolution: Reality TV Mediation Shows in China's “Harmonious Society”

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top‐rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.     

The Force of International Law: Lawyers' Diplomacy on the International Scene in the 1920s

Where does international law (IL) draw its authority from a still weakly institutionalized international scene deprived of the warrants of a state? To address this classical debate, the article draws from a case study on the social and professional structure of the “international legal community” as it emerged during the 1920s as part of the rise of multilateralism and international organizations. It focuses on the “situation of the international lawyers” of the time, starting with the multiple and often antagonistic roles they play (as legal advisers, scholars, judges, diplomats, politicians, etc.) and the variety of interests and causes they defend (states, international organizations, professional interests, etc.) in international politics. It argues this heteronomy of international lawyers helps understand the autonomization of international law. Far from being opposed to one another it has often been assumed—realism and idealism, national loyalty and international loyalty, political logic and learned logic—actually gain when analyzed as various modes of affirming a single cause—that of an international rule of law. This attention given to the “situation of international lawyers” and to the way they manage their various allegiances also accounts for the particular vision of the “International” and of “Law and Politics” relationships that are encapsulated in this emerging international corpus juris.     

Reason of State and Public Reason

“Reason of state” is a concept that is rarely used in contemporary legal and political philosophy, compared to everyday parlance; “public reason,” in contrast, is ubiquitous, especially in liberal philosophy, as a legitimacy‐conferring device. In this article it is argued that the unpopularity of the notion of “reason of state” is partly due to its notorious ambiguity. Three different usages of the notion can be identified: a “thin” usage (where “reason of state” is equivalent to the common good); an “ironical” usage (where it is used pejoratively to denounce it as a pretext for application of illegitimate or illegal means); and a “pre‐emptive” usage (where “reason of state” functions as a legitimate second‐order exclusionary reason used to override otherwise mandatory first‐order rules of action). It is argued that only the “thin” usage is helpful in a by‐and‐large liberal‐democratic context. The article then discusses the main dilemmas related to the concept of public reason, especially in its most influential, Rawlsian interpretation, and defends the concept against common critiques. Finally, the two concepts of “reason of state” and public reason are compared, and it is argued that a “thin” usage of “reason of state” is functionally equivalent to public reason, and that both resonate with the theory of “input democracy” (focusing, as it does, on the legitimacy of reasons—or motivations—for applying coercive rules to individuals). The article also identifies a problematic feature of “reason of state”: its emphasis on the state as a privileged interpreter of such reasons and/or as identifying the pool of actors within which the “constituency” of public reason is ascertained. There are good reasons to resist both of these consequences: the former because of its potentially authoritarian consequences, the latter because of reasons provided by cosmopolitan political conceptions.     

Post-secular Messianism Against the Law: Judith Butler on Walter Benjamin and ‘Sacred Life’

This essay focuses on Judith Butler’s configuration in Parting Ways: Jewishness and the Critique of Zionism (2012a) of sacred life from the mystical motifs that traverse Walter Benjamin’s writings as the pivot of an anti-identitarian ethics committed to non-violent resistance. To gain critical leverage on Butler’s post-secular stance, my analysis turns to Talal Asad’s ‘Redeeming the “Human” Through Human Rights’ chapter from Formations of the Secular (2003), where he enunciates a disparity between a ‘pre-civil state of nature’ and the notion of ‘inalienable rights’ that informs the subject’s rights under secular law. In underscoring the secular state’s inability or refusal to ascribe sacredness to ‘real living persons’ over and against ‘“the human” conceptualized abstractly, or imagined in a state of nature’ as presumed by natural law, Asad indirectly articulates what is at stake in Butler’s explication in Parting Ways of Benjamin’s ‘Critique of Violence’. In this context, Butler unpacks Benjamin’s remarks about the sixth commandment’s non-coercive disposition and the inner struggle its provisional applicability prompts. A conception of ‘sacred life’ crystallizes through Butler’s emphasis on the open-endedness of this struggle, which encourages us to abandon a solipsistic investment in our own suffering in the process of acknowledging its eternally transient rhythm. I argue that Butler supplements this motif by drawing upon Hannah Arendt’s grounding of the political in cohabitation. My contention is that while ‘sacred life’ forms the backbone of Butler’s affirmation of civil disobedience, Arendt empowers Butler’s ethics to transcend Benjamin’s Jewish-messianic melancholy by radicalizing the passivity that refracts it.     

Approaches to Liberty. Outline for a “Methodological Communitarianism”*

Abstract. In this paper, the Author gives an account of the French perspective on the debate between an “individualist” and a “communitarian” conception of liberty. He argues that, despite the dominant tendency within recent French political philosophy to assume that the individualist conception of liberty is the only truly modern form of liberty, communitarian principles are present within the Enlightenment tradition. He demonstrates the inadequacies of the individualist approach in an analysis of Rawls, and also rejects the type of communitarianism developed by MacIntyre, which depends upon a substantive concept of the community. With reference to theories of communication, he describes how we can elaborate a cornmunitarian approach to individual freedom.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

Reconciling MacCormick: Constitutional Pluralism and the Unity of Practical Reason

This article begins by assessing the ways in which the life and work of Neil MacCormick exemplified a dual commitment to the local and particular—especially through his advocacy of nationalism—and to the international and the universal. It then concentrates on one of the key tensions in his work which reflected that duality, namely the tension between his longstanding endorsement of constitutional pluralism—and so of the separate integrity of different “local” constitutional orders—and his belief in some kind of unity, and so community, residing in the moral and rational properties of all law. The article continues by considering a number of ways in which this tension may be resolved. It concludes, with particular reference to MacCormick's late work on ethics, that the answer may be found through the idea of a general unity of practical reason which undergirds the various special orders of practical reason by which particular legal systems are distinguished.     

Law and the Building Blocks of the Familiar

This article draws on the insights offered by Francesca Polletta, Calvin Morrill, and Elizabeth Chiarello in their comments on my book, Caring for Our Own: Why There Is No Political Demand for New American Social Welfare Rights ( 2014 ) to further specify the conditions that unleash the emancipatory potential of law. I argue that much of law's emancipatory power lies in its capacity to “construct anew”—to demonstrate new solutions to social problems by connecting the familiar with the strange. Drawing on the case of child care, I find that laws do not automatically provide the cultural resources to construct new claims for state intervention, but that existing laws—and the symbols, narratives, and norms that we associate with them—serve as grist for the political imagination and can be transposed to new contexts or institutions. In the absence of cultural resources in one institution (such as work), advocates can use legal discourse to strategically shift responsibility for a social problem to a new institution (such as education), opening up possibilities for new models, organizational actors, constituencies, and frames.     

Nussbaum on Sexual Instrumentalization

In “The Wrongness of Rape”, Gardner and Shute argued that the English offence of rape primarily targets the wrong of objectification. They tie objectification closely to instrumentalization—to the “conversion of subjects into instruments or tools”. In doing so, they explicitly purport to follow Nussbaum’s understanding of what is morally problematic about objectification. In this paper, I want to explore more closely just what Nussbaum understands by instrumentalization, focusing in particular upon the meaning and role of mutuality in her analysis. Doing so gives us insight into why sexual touching in three broad contexts may not be considered instances of instrumentalization: spontaneous sexual touching in a romantic context; non-spontaneous sexual touching in the context of intimate relationships; and prostitution. The last point may be most controversial given Gardner and Shute’s own stated view that prostitution involves instrumentalization. Even when we look to sexual touching in intimate relationships, however, Nussbaum seems to introduce ideas of implied consent that appear nowhere in Gardner and Shute’s paper.     

Boundary Work: Transcendence and Authoriality in Religious and Secular Law

The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism and the inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident.     

Reflections on Habermas on Democracy

Jürgen Habermas is a radical democrat. The source of that self-designation is that his conception of democracy—what he calls “discursive democracy”—is founded on the ideal of “a self-organizing community of free and equal citizens,” coordinating their collective affairs through their common reason. The author discusses three large challenges to this radical-democratic ideal of collective self-regulation: 1) What is the role of private autonomy in a radical-democratic view? 2) What role does reason play in collective self-regulation? 3) What relevance might a radical-democratic outlook have for contemporary democracies? The author addresses these questions by considering Habermas' answers, and then presenting alternative responses to them. The alternatives are also radical-democratic in inspiration, but they draw on a richer set of normative-political ideas than Habermas wants to rely on, and are more ambitious in their hopes for democratic practice.     

Liberalism and Its Other: The Politics of Primitivism in Colonial and Postcolonial Indian Law

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or “indigenous.” Liberalism thus recurrently encounters its primitive other, a face‐off that gives rise to a peculiar set of dilemmas and contradictions for political theory and law. In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies? To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so‐called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. Through a close reading of these legal provisions for tribal peoples and places, I explore the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial Indian states.     

Contextualism in the Study of Indian Intellectual Cultures

When J. L. Austin introduced two “shining new tools to crack the crib of reality”—the theory of performative utterances and the doctrine of infelicities—he could not have imagined that he was also about to inaugurate a shining new industry in the philosophy of the social sciences. But with its evident concern for the features to which “all acts are heir which have the general character of ritual or ceremonial,” Austin’s theory soon became indispensable in the analysis of ritual, linguistic and every kind of social action. While Indianists such as Frits Staal, Bimal Matilal and David Seyfort Ruegg have made good use of the work of Austin and his “ordinary language” school, it is Quentin Skinner who has attempted to turn Austin’s insights into a general “theory and method” for the study of intellectual cultures. The question I want to address in this paper has to do with the applicability of Skinnerian techniques to the study of literary and intellectual Sanskrit culture in premodern India. If not all of Skinner’s methods transfer to the new context, identification of the points at which they breakdown helps to clarify the distinctive contours of Indian intellectual history, and suggests appropriate methodological innovation.     

From deuteronomy to deniability: A historical perlustration on white-collar crime

The history of social efforts to deal with offenses now categorized as white-collar crime shows a struggle for justice and equity with roots deep in the past. This paper uses a triad of English marketing offenses—forestalling, regrating, and engrossing—to epitomize the legal background of efforts to control the abuse of commercial power. The paper notes the spurious ancestry of the doctrine of caveat emptor, and offers explanations for the decline and the subsequent revival of crusades against the exploitation of consumers by business forces. Scholarly work on white-collar crime is placed in this historical context, followed by a general appraisal of the nature of changes over time—from the dire biblical prophecies in Deuteronomy to the bland explanations of “plausible deniability” during the recent Iran-Contra hearings before the U.S. Congress.