Suum Cuique Tribuere. Some Reflections on Law,Freedom and Justice

Abstract. Moral and theoretical deficiencies of the main foundation strategies in social and political systems (Social Engineering, Foundationalism and Invisible Hand theories) are explained by the necessity of a synthesis of different kinds of rationality, i.e., goal-rationality, norm-rationality and rightness and weighing rationality. The anthropological basis of the theory is a distinction between homo finalis and homo socialis. At the institutional level, this conception leads to a synthesis of the rule of law and the welfare state. At the political level, this implies a retonsideration of the principles of democracy and political planning.     

The Angry Pamphleteer: True Threats,Political Speech,and Applying Watts v. United States in the Age of Twitter

Since the 1969 case Watts v. United States, courts have consistently held that politically motivated speech about or directed to public figures may be punished if it qualifies as a “true threat” rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. Through an analysis of the political speech-true threat cases that apply Watts, this study identifies and assesses three distinct modes of analysis that lower courts use to distinguish political speech from true threats. They are: (1) criteria-based analysis; (2) ad hoc balancing; and (3) a form of balancing referred to herein as “line-crossing analysis.” This study concludes that criteria-based analysis is the most prominent mode used by lower courts. As applied to new media and political participation, criteria-based analysis risks unduly restricting valuable political speech.     

Discourse of decency: white nationalists,white antiracists,and the criminality of color

Contemporary research on white racial attitudes on race and crime reflect a grouping of opinions on a traditional liberal-conservative scale. These two groupings reflect what sociologists and political scientists call ‘issue constraint’ or a ‘clustering’ of ideas into a specific ideological worldview. Many now argue this gulf is growing; a white ‘culture war’ that many interpret as evidence of the increasing fracturing and political bifurcation of white racial identities over ‘hot button’ topics like race and crime. While a substantial literature on race and crime finds white racial attitudes to vary by educational level and political orientation, we know less about shared understandings of crime and race in relation to the processes of white racial identity formation. Rather than view attitudinal statements on race and crime as accurate reflections of essential different and static white racial political positions or ideological orientations, additional scholarship can examine discourse on crime and race as constitutive of the white identities that wield them. Drawing from an ethnographic study with conservative white nationalists and liberal white antiracists, this paper addresses the following question: what is the relationship between discourse on crime and race and the ongoing process of white racial identity formation?     

The Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

“Fair and Balanced?” Justice Issues on Political Talk Shows

Like their news program predecessors, many political talk shows focus a considerable amount of their coverage on justice issues. Although numerous past studies have examined justice issue presentation in news programs, infotainment, and crime drama, to date only one forthcoming study has examined crime and justice coverage on political talk shows. Political talk shows often present issues in a debate format, as well as emphasize the balanced nature of the content in advertising, with one program even using the slogan “fair and balanced.” Building upon the format of previous media studies, we analyzed a composite month of videotaped footage of three popular political talk shows appearing on cable networks: CNN’s Lou Dobbs Tonight, MSNBC’s Hardball with Chris Mathews, and The O’Reilly Factor from the Fox News Channel. Using content analysis techniques, this study examines balance in the form and content of these programs in terms of presentation of justice issues, political party identification of hosts and guests and realistic presentations of race and gender in the context of crime and justice. Results indicate that these programs tend to adopt an advocacy tone rather than an objectivist one. Furthermore, we demonstrate that racial and gender portrayals of crime and justice on these shows are significantly distorted from reality, with a priority afforded to white female victims of violent crime and minority male offenders.     

Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes  to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”     

Pathways to Power: The Role of Preparliamentary Careers and Political Human Capital in the Obtainment of Cabinet Positions

Understanding the rise to power is central to the study of politics. Yet, we still know little about the career paths of influential politicians like ministers. The literature assumes that dominant preparliamentary occupations (e.g., lawyer, local offices) predict promotion. We move beyond this potential ecological fallacy and suggest a perspective that emphasizes the role of gatekeepers and political human capital like national political experience and education. We leverage complete career data of all Dutch MPs (N = 1,263; 1945–2012) and study their (N = 4,966) opportunities to obtain a cabinet position. A sequence analysis with fuzzy clustering reveals eight career paths in both the professional and political domain. A logistic regression analysis that uses these career paths as predictors shows that prominent occupations and communicative experience do not constitute the pathway to ministerial power; a university education and preparliamentary national political experience do. Findings support the value of political human-capital theory to understand political promotion.     

Targeting the Treatment: The Strategy behind Lyndon Johnson's Lobbying

Lyndon Johnson woke up studying whip counts, went to bed reading the Congressional Record, and invested countless hours in between translating that political intelligence into a lobbying offensive. The result, famously christened “The Johnson Treatment,” remains the archetype practitioners and political scientists cite when appraising presidential leadership on Capitol Hill. Yet Beltway folklore aside, we know little about how LBJ helped forge winning legislative coalitions. Stepping back from the (countless) colorful anecdotes, this study offers a new and systematic look at Lyndon Johnson's lobbying. Specifically, after exploring theoretical models of presidential coalition building, we then investigate their operational tenets using original data on all President Johnson's contacts, with each member of Congress, in both chambers, for every day he was president.     

The reformers’ dilemma: media,policy ownership,and reform

Current proposals for strengthening policy ownership in reforming economies are fundamentally flawed. Modeling the reform process as a prisoners’ dilemma demonstrates that political agents must overcome this conflict of interests before present proposals for bolstering ownership will work. A politically autonomous mass media is one important mechanism enabling political agents to do this. Reforming countries without free media face an uphill battle overcoming the problems associated with transition. We test our theory by investigating the relationship between media freedom, foreign aid, and economic development in 26 post-socialist transition countries. The results of this analysis support our theory.      

Political Journals in Germany

Germany in the 18th and 19th centuries possessed a wealth of monthly political journals. The period after the Second World War saw a renaissance of monthly journals, which offered orientation to a populace disoriented by National Socialism and war. Today there is a limited number of monthly political journals and their total circulation does not exceed 100,000. But their readership constitutes the small group of citizens who take an interest in politics and in political discourse. Their quantitative influence cannot be measured, their qualitative influence cannot be overestimated. The article focuses mainly on the magazines Neue Gesellschaft/Frankfurter Hefte and Die Politische Meinung. The former is supported by the Friedrich-Ebert-Stiftung, the latter by the Konrad-Adenauer-Stiftung.     

The Idea of the "Third Reich" in the German Legal, Philosophical and Political Thinking in the 20th Century

The idea that after the Nazi takeover the German political prpaganda machinestrongly supported the naming of their land the "Third Reich" (Drittes Reich) is a misperception shared by many historians, political scientists as well as lawyers all around the world even today. It is much less know that Hitler himself was never in full support of his expression even proved qiute effective both before and after NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) tekeover.     

Masculinities,Money, and Mosques in Algeria’s Civil War

To what extent did economic marginalization and political crisis activate prejudice, violence, and religious faith in Algeria’s civil war during the 1990s? The Algerian novel Les Agneaux du Seigneur (In the Name of God), by Yasmina Khadra offers a glimpse. The novel shows how political and economic disparities intertwined with an increasingly strict interpretation of Islam. In turn, Islam’s political applications and its militarized enforcement soon drew the country into a veritable civil war. The resulting breakdown of the cultural order simultaneously increased the pressure on men to fulfill a socially prescribed gender role and made the fulfillment of that role more difficult.     

POLITICIZATION OF THE CRIMINAL OFFENDER

A “political model” of crime and punishment is described and the utility of this model is explored in the light of depth interviews with incarcerated offenders. It is suggested that the average offender brings to prison political socialization experiences which have resulted in alienation but not ideological estrangement from the political order. It is further suggested that politicizing processes in prison, coupled with the failure of rehabilitative efforts, have mode the political model acceptable to a large proportion of offenders. this model is not acceptable to prison administrators, however, and the result is increasingly that administrators and clients are operating from conflicting paradigms.     

Blind Alleys of Post-Soviet Development: Searching for Exits: Editor's Introduction

The articles in this issue of Russian Politics and Law show that Soviet legacies continue to shape the political development of all of the post-Soviet states. Some articles in the issue focus more specifically on Russia, highlighting how some of the political problems that have resulted from Soviet legacies have derailed the liberalization of the region's most important state.     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

Otherwise than Hospitality: A Disputation on the Relation of Ethics to Law and Politics

At a time of unprecedented migration and social displacement, following a century ravaged by war and hegemonic shift, the question of hospitality presents itself with unparalleled urgency. Taking his cue from Immanuel Kant’s cosmopolitics, Jacques Derrida addressed this question by deliberating on the nature of the political obligation to the other person. Invoking the work of Emmanuel Levinas, this demand is first of all ethical, and unconditional. But Derrida was also acutely aware of the residual violence of the hospitable gesture, which always takes place in a scene of power. The resultant aporias at the heart of hospitality provoked debate between the two authors at the 2007 Critical Legal Conference, and this paper seeks to elucidate and elaborate on this encounter. At stake are the matters of the potential political forms of hospitality, whether it should always been striven for and, ultimately, how one can conceptually reconcile its ethics with its violence.

Restraint,Reaction, and Penal Fantasies: Notes on the Death Penalty in Israel, 1967–2016

What role does the death penalty play in contexts of protracted political violence? What does it symbolize for its opponents and proponents in such contexts? Can it survive as a potent topic of political life even without actual executions? Since 1967, the death penalty has been a lawful sanction in Israel's military courts, which have jurisdiction over Palestinians in the Occupied Territories. Though it has never been carried out, it has been intensely debated throughout this period and the topic has retained major political, cultural, and judicial significance. I argue that both sides in these debates use the topic mostly symbolically, rather than as an issue of public policy. For opponents, refraining from using the death penalty has become a symbol of restraint , used in self‐legitimation. For proponents, death penalty advocacy serves as what I term a penal fantasy , an outlet for frustration, symbolizing defiance against the image of restraint.     

The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically about Political Constitutionalism

This article proposes a sociological critique of theories of political constitutionalism, which distinguish sharply between political and judicial constitutionalism and express hostility towards constitutions allowing extensive judicial control of legislation. It argues that such theories are usually undermined by a sociologically deficient account of politics. As an alternative, this article proposes a theory of politics based in a model of systemic inclusion. Using this perspective, it claims that constitutions with a strong judicial emphasis, especially where judicial functions are supported by international norms, have served, in many societies, as an effective precondition for the emergence and persistence of a relatively secure, differentiated political domain. These claims are exemplified through analysis of recent constitution‐making experiments in Russia, Kenya and Bolivia.