This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber’s book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber’s theory provides a viable account of the preference for proximity.
{"title":"Subsidiarity as the Preference for Proximity","authors":"Maria Cahill","doi":"10.1093/ajj/auab010","DOIUrl":"https://doi.org/10.1093/ajj/auab010","url":null,"abstract":"\u0000 This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber’s book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber’s theory provides a viable account of the preference for proximity.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43137849","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}
Barber’s recent book The Principles of Constitutionalism argues that state sovereignty is not subject to legal limits, from either domestic or supranational law. It further suggests that state sovereignty is not subject to moral limits either. This paper argues that this is an unsound view of state sovereignty and that Barber’s work contains valuable resources for developing an alternative, sounder view. A sound account of state sovereignty will consider the legitimate scope of a state’s authority, over and above the authority the state claims. It will explain the foundations of state authority in terms of rules, rather than the mere say-so of someone mighty. And it will be continuous with influential legal accounts of state sovereignty that historically accompanied the very emergence of the state.
{"title":"Law and the Limits of Sovereign Power","authors":"Maris Köpcke","doi":"10.1093/ajj/auab006","DOIUrl":"https://doi.org/10.1093/ajj/auab006","url":null,"abstract":"\u0000 Barber’s recent book The Principles of Constitutionalism argues that state sovereignty is not subject to legal limits, from either domestic or supranational law. It further suggests that state sovereignty is not subject to moral limits either. This paper argues that this is an unsound view of state sovereignty and that Barber’s work contains valuable resources for developing an alternative, sounder view. A sound account of state sovereignty will consider the legitimate scope of a state’s authority, over and above the authority the state claims. It will explain the foundations of state authority in terms of rules, rather than the mere say-so of someone mighty. And it will be continuous with influential legal accounts of state sovereignty that historically accompanied the very emergence of the state.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48114602","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}
In a contribution to a symposium on Nick Barber’s book, The Principles of Constitutionalism, I argue that Barber is right to explain the principles of constitutionalism by reference to the purpose of a state, but I defend a restatement of that purpose. Barber says that it is to advance the well-being of the citizens. I argue that the purpose is more open-ended: it is to make the political community a good one. The state has duties that are not grounded in the well-being of its citizens, and it may legitimately pursue good public purposes that do not advance its citizens’ well-being. The state is for its citizens, not primarily in the sense that it is there to make them better off, but in the sense that it is a way for citizens (and not for outsiders) to act as an organized community.
在尼克·巴伯(Nick Barber)的著作《宪政原则》(The Principles of Constitutionalism)的研讨会上，我提出，巴伯通过参考国家的目的来解释宪政原则是正确的，但我为该目的的重申进行了辩护。巴伯说，这是为了提高公民的福祉。我认为，其目的更为开放:它是为了让政治共同体变得更好。国家的责任并不以公民的福祉为基础，它可以合法地追求良好的公共目的，而不促进公民的福祉。国家是为公民服务的，主要不是为了让他们过得更好，而是为了让公民(而不是外人)作为一个有组织的社区而行动。
{"title":"The Purpose of a State","authors":"Timothy Endicott","doi":"10.1093/AJJ/AUAB007","DOIUrl":"https://doi.org/10.1093/AJJ/AUAB007","url":null,"abstract":"\u0000 In a contribution to a symposium on Nick Barber’s book, The Principles of Constitutionalism, I argue that Barber is right to explain the principles of constitutionalism by reference to the purpose of a state, but I defend a restatement of that purpose. Barber says that it is to advance the well-being of the citizens. I argue that the purpose is more open-ended: it is to make the political community a good one. The state has duties that are not grounded in the well-being of its citizens, and it may legitimately pursue good public purposes that do not advance its citizens’ well-being. The state is for its citizens, not primarily in the sense that it is there to make them better off, but in the sense that it is a way for citizens (and not for outsiders) to act as an organized community.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45146952","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}
{"title":"Acknowledging the Body: The Challenge for Public Bioethics","authors":"C. Tollefsen","doi":"10.1093/AJJ/AUAB003","DOIUrl":"https://doi.org/10.1093/AJJ/AUAB003","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60654910","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 considers the relationship between the state and its people, reflecting on Nick Barber’s principles of constitutionalism. The joint intention of the people is central to the social reality of the good state, which is an institutionally ordered people. Other forms of political order, including empire, are possible, but there is good reason for a people to form a state and to exercise political agency. While under some conditions non-democratic rule is legitimate, there is good reason for authority to be shared widely and for rulers to foster close connections with the ruled, which makes self-government possible. Barber’s account of subsidiarity risks neglecting social solidarity in general, and nationality in particular, which would undermine the joint intention of the people. The sovereign state is the means by which a people participates in the international realm, but sovereignty may be misused to alienate a people from the state.
{"title":"The State and Its People","authors":"R. Ekins","doi":"10.1093/AJJ/AUAB011","DOIUrl":"https://doi.org/10.1093/AJJ/AUAB011","url":null,"abstract":"This article considers the relationship between the state and its people, reflecting on Nick Barber’s principles of constitutionalism. The joint intention of the people is central to the social reality of the good state, which is an institutionally ordered people. Other forms of political order, including empire, are possible, but there is good reason for a people to form a state and to exercise political agency. While under some conditions non-democratic rule is legitimate, there is good reason for authority to be shared widely and for rulers to foster close connections with the ruled, which makes self-government possible. Barber’s account of subsidiarity risks neglecting social solidarity in general, and nationality in particular, which would undermine the joint intention of the people. The sovereign state is the means by which a people participates in the international realm, but sovereignty may be misused to alienate a people from the state.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46573485","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}
Professor Nicholas (Nick) Barber’s learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book’s implicitly classical approach, it would have benefited, at a number of key junctures, from drawing upon the rich and enduring tradition of the ius commune. Barber often speaks in the register of the classical law, perhaps without knowing it. Doing so more often, and more explicitly, would have improved an already impressive work.
{"title":"Echoes of the Ius Commune","authors":"Adrian Vermeule","doi":"10.1093/ajj/auab005","DOIUrl":"https://doi.org/10.1093/ajj/auab005","url":null,"abstract":"\u0000 Professor Nicholas (Nick) Barber’s learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book’s implicitly classical approach, it would have benefited, at a number of key junctures, from drawing upon the rich and enduring tradition of the ius commune. Barber often speaks in the register of the classical law, perhaps without knowing it. Doing so more often, and more explicitly, would have improved an already impressive work.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45456375","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}
The Principles of Constitutionalism examines the principles which speak to the construction and interaction of state institutions. This article responds to some criticisms of that book, in particular, those which question the universalizability of the principles, the relationship between state institutions and the people of the state, the place of democracy within constitutionalism, and the role of finality in state decision-making. It is argued that it is the link between the people and institutions, mediated by democracy, that both explains and justifies the state’s claim to act as the final arbiter of the obligations of its people.
{"title":"Peoples, Principles, and Finality","authors":"N. Barber","doi":"10.1093/AJJ/AUAB009","DOIUrl":"https://doi.org/10.1093/AJJ/AUAB009","url":null,"abstract":"\u0000 The Principles of Constitutionalism examines the principles which speak to the construction and interaction of state institutions. This article responds to some criticisms of that book, in particular, those which question the universalizability of the principles, the relationship between state institutions and the people of the state, the place of democracy within constitutionalism, and the role of finality in state decision-making. It is argued that it is the link between the people and institutions, mediated by democracy, that both explains and justifies the state’s claim to act as the final arbiter of the obligations of its people.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45906061","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}
Gerald Postema raised a powerful challenge to Ronald Dworkin’s theory of interpretation. By allowing each interpreter to make her own judgment about the content of a social norm, Dworkinian interpretation becomes insufficiently intersubjective and insufficiently political. In previous work, I argued that this criticism must be rejected because Postema’s own account of law, analogical reasoning, and the rule of law requires one to make a reflected judgment and hold other actors accountable to the law. Nevertheless, a powerful objection claims that protestant interpretation is incompatible with the first person-plural reasoning that an intersubjective social practice requires. In response to the objection, I argue that no such incompatibility exists. On closer examination, protestant interpretation is part of the attitude that a rational agent must adopt if she is to acquit her moral responsibilities as a participant in a social practice.
{"title":"Is Protestant Interpretation an Acceptable Attitude Toward Normative Social Practices? An Analysis of Dworkin and Postema","authors":"Thomas Bustamante","doi":"10.1093/AJJ/AUAB004","DOIUrl":"https://doi.org/10.1093/AJJ/AUAB004","url":null,"abstract":"\u0000 Gerald Postema raised a powerful challenge to Ronald Dworkin’s theory of interpretation. By allowing each interpreter to make her own judgment about the content of a social norm, Dworkinian interpretation becomes insufficiently intersubjective and insufficiently political. In previous work, I argued that this criticism must be rejected because Postema’s own account of law, analogical reasoning, and the rule of law requires one to make a reflected judgment and hold other actors accountable to the law. Nevertheless, a powerful objection claims that protestant interpretation is incompatible with the first person-plural reasoning that an intersubjective social practice requires. In response to the objection, I argue that no such incompatibility exists. On closer examination, protestant interpretation is part of the attitude that a rational agent must adopt if she is to acquit her moral responsibilities as a participant in a social practice.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60655027","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}
Focusing on Barber’s account of the separation of powers, this essay questions the solidity of the foundations for the constitutional principles he articulates. It argues that his attempt at universalism and his account of the substantive content of the principles come apart. Barber’s attempt to ground universal principles in an account of the nature of the state is questionable, because that account is too thin. In making the conception of the state thick enough to ground the substantive content of his principles, Barber implicitly draws upon particularistic aspects of western liberal constitutional culture. Specific constitutional principles are inevitably grounded in particular legal and constitutional cultures. A primary object of a state is to maintain legitimacy as regards its citizens and an object of the institutions which comprise the state is to maintain legitimacy in the eyes of each other. In a complex and changing world there is no simple or single recipe for this.
{"title":"The Separation of Powers in The Principles of Constitutionalism","authors":"P. Sales","doi":"10.1093/AJJ/AUAB008","DOIUrl":"https://doi.org/10.1093/AJJ/AUAB008","url":null,"abstract":"\u0000 Focusing on Barber’s account of the separation of powers, this essay questions the solidity of the foundations for the constitutional principles he articulates. It argues that his attempt at universalism and his account of the substantive content of the principles come apart. Barber’s attempt to ground universal principles in an account of the nature of the state is questionable, because that account is too thin. In making the conception of the state thick enough to ground the substantive content of his principles, Barber implicitly draws upon particularistic aspects of western liberal constitutional culture. Specific constitutional principles are inevitably grounded in particular legal and constitutional cultures. A primary object of a state is to maintain legitimacy as regards its citizens and an object of the institutions which comprise the state is to maintain legitimacy in the eyes of each other. In a complex and changing world there is no simple or single recipe for this.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUAB008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44880727","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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