In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy” – a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of the agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.” For climate change in particular, the “social cost of carbon,” or more broadly the “social cost of greenhouse gases,” is sometimes described as “the most important number you’ve never heard of.” A key reason is that within the executive branch, the stringency of regulation of greenhouse gases emissions often depends on that number. Another reason is that the social cost of carbon can and should play a role in determining the content of other kinds of initiatives, such as a carbon tax. In the United States, the relevant numbers were challenged in court under the administrations of Barack Obama (where they were upheld) and Donald Trump (where they were struck down). The litigation raises fundamental questions about the role of science, economics, and politics in judicial review of agency action, and about the relationship between courts and the administrative state. With respect to the social cost of carbon: (1) A decision to use the global number, as opposed to the domestic number, would be straightforward to defend against an arbitrariness challenge; a decision to use the domestic number, as opposed to the global number, would be difficult to defend against an arbitrariness challenge. (2) A decision to use a low discount rate, such as two percent, would be straightforward to defend against an arbitrariness challenge; a decision to use a high discount rate, such as seven percent, would be exceedingly difficult to defend against an arbitrariness challenge. (3) A wide range of decisions – involving, for example, climate sensitivity and the damage function -- raise difficult questions in science and economics; they should be straightforward to defend against an arbitrariness challenge, but only if they follow from a reasoned justification. (4) Approaches that take account of equity – including “prioritarianism” – should be defensible against an arbitrariness challenge, as should be a refusal to adopt such approaches, but here again, a reasoned justification is required. (5) A decision to “back out” a social cost of carbon, from some specific target, would be challenging to defend against an arbitrariness challenge. A general lesson, with broader implications, is that judicial review of the
{"title":"The Arithmetic of Climate Change","authors":"C. Sunstein","doi":"10.2139/ssrn.3906854","DOIUrl":"https://doi.org/10.2139/ssrn.3906854","url":null,"abstract":"In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy” – a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of the agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.” For climate change in particular, the “social cost of carbon,” or more broadly the “social cost of greenhouse gases,” is sometimes described as “the most important number you’ve never heard of.” A key reason is that within the executive branch, the stringency of regulation of greenhouse gases emissions often depends on that number. Another reason is that the social cost of carbon can and should play a role in determining the content of other kinds of initiatives, such as a carbon tax. In the United States, the relevant numbers were challenged in court under the administrations of Barack Obama (where they were upheld) and Donald Trump (where they were struck down). The litigation raises fundamental questions about the role of science, economics, and politics in judicial review of agency action, and about the relationship between courts and the administrative state. With respect to the social cost of carbon: (1) A decision to use the global number, as opposed to the domestic number, would be straightforward to defend against an arbitrariness challenge; a decision to use the domestic number, as opposed to the global number, would be difficult to defend against an arbitrariness challenge. (2) A decision to use a low discount rate, such as two percent, would be straightforward to defend against an arbitrariness challenge; a decision to use a high discount rate, such as seven percent, would be exceedingly difficult to defend against an arbitrariness challenge. (3) A wide range of decisions – involving, for example, climate sensitivity and the damage function -- raise difficult questions in science and economics; they should be straightforward to defend against an arbitrariness challenge, but only if they follow from a reasoned justification. (4) Approaches that take account of equity – including “prioritarianism” – should be defensible against an arbitrariness challenge, as should be a refusal to adopt such approaches, but here again, a reasoned justification is required. (5) A decision to “back out” a social cost of carbon, from some specific target, would be challenging to defend against an arbitrariness challenge. A general lesson, with broader implications, is that judicial review of the ","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129781199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper follows up on the work of de Vanssay et al. (2005) in examining characteristics of constitutions (e.g., parliamentary systems), using data originating from the Database of Political Institutions. With updated data, correlational findings are reproduced and extended. However, introducing almost any degree of identification draws results strongly into question. Taking the evidence together, there are rather strong reasons against placing much confidence in a causal relationship between the broader array of constitutional characteristics and economic freedom. However, it is important to note that the variables considered here do not include direct measures of democracy or civil liberties, the positive effects of which have stronger support elsewhere in the literature.
{"title":"The Constitution of Ambiguity: Is the Link between Economic Freedom and Constitutions Weaker than Thought?","authors":"Ryan Murphy","doi":"10.2139/ssrn.3906216","DOIUrl":"https://doi.org/10.2139/ssrn.3906216","url":null,"abstract":"This paper follows up on the work of de Vanssay et al. (2005) in examining characteristics of constitutions (e.g., parliamentary systems), using data originating from the Database of Political Institutions. With updated data, correlational findings are reproduced and extended. However, introducing almost any degree of identification draws results strongly into question. Taking the evidence together, there are rather strong reasons against placing much confidence in a causal relationship between the broader array of constitutional characteristics and economic freedom. However, it is important to note that the variables considered here do not include direct measures of democracy or civil liberties, the positive effects of which have stronger support elsewhere in the literature.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114049883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What explains variation in the extent to which out-group individuals participate in behaviors that challenge existing social orders in ways that fall short of outright contentious politics? In addition to existing explanations that point to technological exposure, institutional change, or leadership attributes, we present a new and complementary explanation. We argue that more significant limitations on a dominant group's ability to police access to informal and formal institutions of power or to regulate participation in privileged activities in a given location cause higher rates of persistent out-group actions that challenge existing social orders. We test our argument using the creation of "contraband camps'' during the U.S. Civil War and Reconstruction-era Black political leadership. These camps significantly limited whites' power and control locally, while Black political leadership breached social conventions at the time. Using quantitative analyses that draw on original data collection, we find that relative to counties without such camps, counties with the camps had almost twice as many Black political leaders. Our results shed light on an understudied phenomenon in the U.S. Civil War while also contributing to research on social change.
{"title":"Explaining Variation in Challenges to Social Conventions: Black Political Leadership and 'Contraband Camps' in the U.S. Civil War","authors":"M. Stewart, Karin E. Kitchens","doi":"10.2139/ssrn.3902116","DOIUrl":"https://doi.org/10.2139/ssrn.3902116","url":null,"abstract":"What explains variation in the extent to which out-group individuals participate in behaviors that challenge existing social orders in ways that fall short of outright contentious politics? In addition to existing explanations that point to technological exposure, institutional change, or leadership attributes, we present a new and complementary explanation. We argue that more significant limitations on a dominant group's ability to police access to informal and formal institutions of power or to regulate participation in privileged activities in a given location cause higher rates of persistent out-group actions that challenge existing social orders. We test our argument using the creation of \"contraband camps'' during the U.S. Civil War and Reconstruction-era Black political leadership. These camps significantly limited whites' power and control locally, while Black political leadership breached social conventions at the time. Using quantitative analyses that draw on original data collection, we find that relative to counties without such camps, counties with the camps had almost twice as many Black political leaders. Our results shed light on an understudied phenomenon in the U.S. Civil War while also contributing to research on social change.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122514986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper makes use of data from the Papua New Guinea Election Results Database. It draws on an exercise in which we standardised the spelling of candidate names to allow for intertemporal analysis. Our central research questions included: whether the share of more experienced MPs in Papua New Guinea’s parliament has increased; whether MPs who have been in power longer are more or less likely to be re-elected than newer MPs; whether the typical first-time winner in the 2012 and 2017 elections had a long history of previous candidacies; and whether women candidates perform better over time if they stand in multiple elections. We found no trend of increasing MP experience. We found third term MPs were less likely to be re-elected than first and second term, but fourth-term MPs were more likely to be re-elected. We found that, typically, winners in 2012 and 2017 had not stood many times prior to victory. And we found that female candidates tend to perform worse on average the more times they stand, although there is considerable variation amongst different candidates.
{"title":"Using Name Standardisation to Track Candidate and MP Performance over Time in Papua New Guinea","authors":"Thomas Wangi, Terence Wood","doi":"10.2139/ssrn.3471604","DOIUrl":"https://doi.org/10.2139/ssrn.3471604","url":null,"abstract":"This paper makes use of data from the Papua New Guinea Election Results Database. It draws on an exercise in which we standardised the spelling of candidate names to allow for intertemporal analysis. Our central research questions included: whether the share of more experienced MPs in Papua New Guinea’s parliament has increased; whether MPs who have been in power longer are more or less likely to be re-elected than newer MPs; whether the typical first-time winner in the 2012 and 2017 elections had a long history of previous candidacies; and whether women candidates perform better over time if they stand in multiple elections. We found no trend of increasing MP experience. We found third term MPs were less likely to be re-elected than first and second term, but fourth-term MPs were more likely to be re-elected. We found that, typically, winners in 2012 and 2017 had not stood many times prior to victory. And we found that female candidates tend to perform worse on average the more times they stand, although there is considerable variation amongst different candidates.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126857287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What is the long-term impact of pre-colonial ethnic institutions? I examine the consequences of the fragmentation of local indigenous communities produced by Spanish rule in Mexico. To do this I make use of unique data from 18th century pueblos — the basis of modern-day counties — to study the institutional impact that the formation of these pueblos had on current development in Mexico. I find that after controlling for alternative mechanisms, counties encompassing more historical pueblos, are more developed, and have less poverty, but are more unequal today. The effects are more latent in places where pre-hispanic roots are deeper (historical Mesoamerica and high altitude areas), suggesting the institutional impact has a pre-colonial basis.
{"title":"The Historical Legacy of (Pre?)Colonial Indigenous Settlements in Mexico","authors":"Fernando Arteaga","doi":"10.2139/ssrn.3270733","DOIUrl":"https://doi.org/10.2139/ssrn.3270733","url":null,"abstract":"What is the long-term impact of pre-colonial ethnic institutions? I examine the consequences of the fragmentation of local indigenous communities produced by Spanish rule in Mexico. To do this I make use of unique data from 18th century pueblos — the basis of modern-day counties — to study the institutional impact that the formation of these pueblos had on current development in Mexico. I find that after controlling for alternative mechanisms, counties encompassing more historical pueblos, are more developed, and have less poverty, but are more unequal today. The effects are more latent in places where pre-hispanic roots are deeper (historical Mesoamerica and high altitude areas), suggesting the institutional impact has a pre-colonial basis.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128129518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay takes prior work on Chevron in a new direction, arguing that broad deference doctrines have the largely unrecognized but particularly pernicious effect of increasing the politicization of the legislative process. Not only do Chevron and related deference doctrines affect how legislators go about the business of the Congress, but they change legislators’ understanding of what the business of Congress is. Untethered from the need to actively govern agencies that have been delegated sufficiently broad authority to keep the basic ship of state afloat, legislators refocus their attention on maintaining power for themselves and their political party. In this light, in the thirty or so years since Chevron became the law of the land, our country’s governing institutions have grown increasingly politicized: and at the risk of overstating this essay’s claim, perhaps Chevron itself, and the related embrace of broad judicial deference to the administrative state of which it is part, is in some measure responsible for our current sorry political state. This is an undesirable outcome. And, as framed here, it is not only unfortunate but also problematic on separation of powers grounds. Conversely stated, if this essay’s argument holds, separation of powers principles may offer some remedy to the harms that Chevron has worked upon to our constitutional republic. The intuition explored in this essay is that Chevron dramatically exacerbates Congress’s worst tendencies, encouraging Congress to push its legislative functions to the executive and to do so in a way that increases the politicization and polarization of American law and policy. This gives rise to a fear that Chevron effectively allows, and indeed encourages, Congress to abdicate its role as the most politically-accountable branch by deferring politically difficult questions to agencies. This argument is, at core, based in separation of powers concerns. While separation of powers concerns generally focus on preventing one branch of government from encroaching into the realm of the other branches, this essay offers a twist, arguing that Chevron’s demurral to agency interpretations encourages a Congressional abdication of its Constitutional responsibilities – and that such deference is therefore an abdication of the judiciary’s Constitutional role as a check on the problematic conduct of its sister branches.
{"title":"Chevron's Political Domain: W(h)ither Step Three?","authors":"J. Hurwitz","doi":"10.2139/ssrn.3225524","DOIUrl":"https://doi.org/10.2139/ssrn.3225524","url":null,"abstract":"This essay takes prior work on Chevron in a new direction, arguing that broad deference doctrines have the largely unrecognized but particularly pernicious effect of increasing the politicization of the legislative process. Not only do Chevron and related deference doctrines affect how legislators go about the business of the Congress, but they change legislators’ understanding of what the business of Congress is. Untethered from the need to actively govern agencies that have been delegated sufficiently broad authority to keep the basic ship of state afloat, legislators refocus their attention on maintaining power for themselves and their political party. In this light, in the thirty or so years since Chevron became the law of the land, our country’s governing institutions have grown increasingly politicized: and at the risk of overstating this essay’s claim, perhaps Chevron itself, and the related embrace of broad judicial deference to the administrative state of which it is part, is in some measure responsible for our current sorry political state. \u0000 \u0000This is an undesirable outcome. And, as framed here, it is not only unfortunate but also problematic on separation of powers grounds. Conversely stated, if this essay’s argument holds, separation of powers principles may offer some remedy to the harms that Chevron has worked upon to our constitutional republic. \u0000 \u0000The intuition explored in this essay is that Chevron dramatically exacerbates Congress’s worst tendencies, encouraging Congress to push its legislative functions to the executive and to do so in a way that increases the politicization and polarization of American law and policy. This gives rise to a fear that Chevron effectively allows, and indeed encourages, Congress to abdicate its role as the most politically-accountable branch by deferring politically difficult questions to agencies. This argument is, at core, based in separation of powers concerns. While separation of powers concerns generally focus on preventing one branch of government from encroaching into the realm of the other branches, this essay offers a twist, arguing that Chevron’s demurral to agency interpretations encourages a Congressional abdication of its Constitutional responsibilities – and that such deference is therefore an abdication of the judiciary’s Constitutional role as a check on the problematic conduct of its sister branches.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113960373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article focuses on the transformations of human-nature relations as a result of colonial occupation of Darjeeling in the mid nineteenth century. The study explores the applicability of the contending theses of “modes of production”, central to materialist historiography, and “modes of resource use”, central to post- colonial nationalist historiography in understanding environment, ecology and culture of colonial Darjeeling as a form of human interaction with nature. Arguments of post-colonial critical scholarship on environmental history central to continuity and change have also been tested to understand the processes of transformations of human-nature relationship in colonial Darjeeling. While making a conscious attempt to stay away from ecological determinism, this Article, nevertheless, is tied together through the rubric of ecological premises that defined and structured the socio-political history of Darjeeling. The study has attempted to discern how the pre- colonial instinctive and natural ecological concerns for Darjeeling tract were overrun and ecological premises were modified by the colonizers. This Article firmly affirms that amidst human- nature relations, Darjeeling has been a unique experience of environmental and material transformation. The study, at the end, intends to strike at the cog of the colonially evolved political economy of human-nature relationships.
{"title":"Transformed Human- Nature Relations: A Saga of Darjeeling under Early Colonial Dispensation","authors":"Dr. Tahiti Sarkar","doi":"10.2139/ssrn.3628086","DOIUrl":"https://doi.org/10.2139/ssrn.3628086","url":null,"abstract":"This Article focuses on the transformations of human-nature relations as a result of colonial occupation of Darjeeling in the mid nineteenth century. The study explores the applicability of the contending theses of “modes of production”, central to materialist historiography, and “modes of resource use”, central to post- colonial nationalist historiography in understanding environment, ecology and culture of colonial Darjeeling as a form of human interaction with nature. Arguments of post-colonial critical scholarship on environmental history central to continuity and change have also been tested to understand the processes of transformations of human-nature relationship in colonial Darjeeling. While making a conscious attempt to stay away from ecological determinism, this Article, nevertheless, is tied together through the rubric of ecological premises that defined and structured the socio-political history of Darjeeling. The study has attempted to discern how the pre- colonial instinctive and natural ecological concerns for Darjeeling tract were overrun and ecological premises were modified by the colonizers. This Article firmly affirms that amidst human- nature relations, Darjeeling has been a unique experience of environmental and material transformation. The study, at the end, intends to strike at the cog of the colonially evolved political economy of human-nature relationships.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127357219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Facilitating state policy experimentation is an oft-cited justification for the U.S. federalism system. Despite growing recognition of risk aversion, free riding, and other disincentives to state-led experimentation, the mythology of state laboratories still dominates these accounts. We propose a framework that counters this entrenched assumption and enables more productive analysis of policy experimentation. The Article explores a continuum of experimental approaches that differ in terms of the degree of experimental rigor that they incorporate — such as the extent to which they control for confounding variables — and the governance levels at which they are designed and implemented. We apply this new analytical framework to case studies from divergent policy areas, including agricultural, natural resources, and education law. These examples highlight rigorous experiments designed and largely administered by federal agencies. Our framework and case studies turn the concept of the “laboratories of the states” on its head, showing that experimentation can and often does occur at multiple levels, including the federal level. In countering and adding nuance to traditional experimentation accounts, the Article also reveals the benefits of federal involvement in policy experiments, and thus the perils of weakening federal authority in an effort to enhance core federalism values like experimentation. Federal expertise and resources — and even the simple availability of experimental platforms, such as federally-owned and managed lands — often give the federal government a comparative advantage in the policy experimentation field. This is not to say that the federal government should consistently lead and implement experiments, but it calls attention to the importance of understanding experimentation as a multi-level endeavor that extends well beyond the states.
{"title":"Federal Laboratories of Democracy","authors":"H. Wiseman, D. Owen","doi":"10.2139/ssrn.3076066","DOIUrl":"https://doi.org/10.2139/ssrn.3076066","url":null,"abstract":"Facilitating state policy experimentation is an oft-cited justification for the U.S. federalism system. Despite growing recognition of risk aversion, free riding, and other disincentives to state-led experimentation, the mythology of state laboratories still dominates these accounts. We propose a framework that counters this entrenched assumption and enables more productive analysis of policy experimentation. The Article explores a continuum of experimental approaches that differ in terms of the degree of experimental rigor that they incorporate — such as the extent to which they control for confounding variables — and the governance levels at which they are designed and implemented. We apply this new analytical framework to case studies from divergent policy areas, including agricultural, natural resources, and education law. These examples highlight rigorous experiments designed and largely administered by federal agencies. \u0000Our framework and case studies turn the concept of the “laboratories of the states” on its head, showing that experimentation can and often does occur at multiple levels, including the federal level. In countering and adding nuance to traditional experimentation accounts, the Article also reveals the benefits of federal involvement in policy experiments, and thus the perils of weakening federal authority in an effort to enhance core federalism values like experimentation. Federal expertise and resources — and even the simple availability of experimental platforms, such as federally-owned and managed lands — often give the federal government a comparative advantage in the policy experimentation field. This is not to say that the federal government should consistently lead and implement experiments, but it calls attention to the importance of understanding experimentation as a multi-level endeavor that extends well beyond the states.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124110553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Italian Abstract: Secondo Giovanni Tarello, Montesquieu e stato un precursore dell’illuminismo giuridico e il fondatore del principio della teoria della tripartizione dei poteri in esecutivo, legislative e giudiziario. Inoltre, egli avrebbe subordinato quest’ultimo al potere legislativo, definendo il giudice la «bocca della legge», che ripete, meccanicamente, la volonta del legislatore. In questo scritto propongo delle interpretazioni alternative. Secondo altri interpreti italiani, la teoria della separazione dei poteri non deve essere interpretata come una teoria astratta e razionale, avente lo scopo di separare i poteri e di assoggettare i giudici alla parola della legge. Al contrario, Montesquieu avrebbe cercato di limitare il potere pubblico attraverso un modello di sovranita divisa. Seguendo questa chiave di lettura il potere giudiziario in Montesquieu e un contropotere che limita il potere legislativo interpretando lo «spirito» dell’ordinamento giuridico prima che la «lettera» della legge. English Abstract: According to Giovanni Tarello, Montesquieu was a forerunner of the legal enlightenment. He is believed to have formulated the theory of the tripartition of state powers into executive, legislative, and judicial branches. Moreover, he is supposed to have subordinated the judicial to the legislative power (the judges should therefore be merely the “mouth of the law” and limit themselves to the mechanical application of the legislator’s will). In this paper I will suggest other interpretations. In the view of other Italian scholars, the theory of the separation of powers should not be seen as subjecting the judiciary to the legislative branch. On the contrary, Montesquieu can be understood as having intended to limit public power through the division of sovereignty, whereby judges set boundaries on the wielding of political power by interpreting the spirit rather than merely the letter of the law.
{"title":"Montesquieu e la scienza giuridica italiana (Montesquieu and Italian Legal Science)","authors":"Antonio Merlino","doi":"10.2139/SSRN.2994045","DOIUrl":"https://doi.org/10.2139/SSRN.2994045","url":null,"abstract":"Italian Abstract: Secondo Giovanni Tarello, Montesquieu e stato un precursore dell’illuminismo giuridico e il fondatore del principio della teoria della tripartizione dei poteri in esecutivo, legislative e giudiziario. Inoltre, egli avrebbe subordinato quest’ultimo al potere legislativo, definendo il giudice la «bocca della legge», che ripete, meccanicamente, la volonta del legislatore. In questo scritto propongo delle interpretazioni alternative. Secondo altri interpreti italiani, la teoria della separazione dei poteri non deve essere interpretata come una teoria astratta e razionale, avente lo scopo di separare i poteri e di assoggettare i giudici alla parola della legge. Al contrario, Montesquieu avrebbe cercato di limitare il potere pubblico attraverso un modello di sovranita divisa. Seguendo questa chiave di lettura il potere giudiziario in Montesquieu e un contropotere che limita il potere legislativo interpretando lo «spirito» dell’ordinamento giuridico prima che la «lettera» della legge. English Abstract: According to Giovanni Tarello, Montesquieu was a forerunner of the legal enlightenment. He is believed to have formulated the theory of the tripartition of state powers into executive, legislative, and judicial branches. Moreover, he is supposed to have subordinated the judicial to the legislative power (the judges should therefore be merely the “mouth of the law” and limit themselves to the mechanical application of the legislator’s will). In this paper I will suggest other interpretations. In the view of other Italian scholars, the theory of the separation of powers should not be seen as subjecting the judiciary to the legislative branch. On the contrary, Montesquieu can be understood as having intended to limit public power through the division of sovereignty, whereby judges set boundaries on the wielding of political power by interpreting the spirit rather than merely the letter of the law.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122668337","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Donald Trump campaigned as a populist but how can a populist who blames the “establishment” for the country’s failures, rule, when the government bureaucracy is itself a creature of the establishment? The answer that appears to be emerging is a “personalist” style of leadership that may be popular in the short term but is unlikely to achieve any of Trump’s goals. If Trump wants to be effective, he will need to adopt a bureaucratic style of governance that will, however, require him to rely on the elites he has disparaged, disappointing his followers, converting him into a conventional president, and very likely ruling out the type of authoritarian regime that Trump’s critics fear.
{"title":"Can It Happen Here?: Donald Trump and the Paradox of Populist Government","authors":"E. Posner","doi":"10.2139/ssrn.2893251","DOIUrl":"https://doi.org/10.2139/ssrn.2893251","url":null,"abstract":"Donald Trump campaigned as a populist but how can a populist who blames the “establishment” for the country’s failures, rule, when the government bureaucracy is itself a creature of the establishment? The answer that appears to be emerging is a “personalist” style of leadership that may be popular in the short term but is unlikely to achieve any of Trump’s goals. If Trump wants to be effective, he will need to adopt a bureaucratic style of governance that will, however, require him to rely on the elites he has disparaged, disappointing his followers, converting him into a conventional president, and very likely ruling out the type of authoritarian regime that Trump’s critics fear.","PeriodicalId":306154,"journal":{"name":"AARN: State & Non-State Political Organization (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126059204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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