Pub Date : 2024-08-06DOI: 10.1177/01914537241265117
Guido Niccolò Barbi
This article discusses possible ways to account for how solidarity comes to be constituted. Beyond accounts tying solidarity either to identity, or to the adherence to a common normative framework, recent scholarship has underscored the role played by collective action in bringing about solidarity. In this paper, I agree that collective action has been often overlooked as a fundamental element in constituting solidarity but warn against the risk of conceptualizing the source of solidarity exclusively in terms of action. Instead, I propose to understand solidarity as resulting from the continuous interaction between two different dimensions of solidarity: constitutive solidarity that centres on collective action, and constituted solidarity which centres on given identities. My paper begins by distinguishing the two meanings of solidarity – constituted and constitutive. The first referring to an (instituted) set of mutual obligations applying to a given group, the second referring to solidarity as underlying social bond, which establishes the solidarity group in the first place. The paper then goes on to discuss three different accounts of constitutive solidarity: identity-based, obligations-based and action-based. I argue that only the action-based account can conceptualise the coming about of new forms of solidarity and the changing scope of the solidarity group. Yet, such accounts are unable to conceptualise how constitutive solidarity can come to ground constituted forms of solidarity, able to endure through time. On this basis, I propose to interpret constitutive and constituted solidarity as two ‘moments’ of solidarity, one symbolically grounding the other, even if not through linear causation. Rather, constitutive solidarity is constantly evolving and constantly contributes to remap the identities depicting social reality, which ground constituted forms of solidarity.
{"title":"Sources of solidarity. Between given identity and collective action","authors":"Guido Niccolò Barbi","doi":"10.1177/01914537241265117","DOIUrl":"https://doi.org/10.1177/01914537241265117","url":null,"abstract":"This article discusses possible ways to account for how solidarity comes to be constituted. Beyond accounts tying solidarity either to identity, or to the adherence to a common normative framework, recent scholarship has underscored the role played by collective action in bringing about solidarity. In this paper, I agree that collective action has been often overlooked as a fundamental element in constituting solidarity but warn against the risk of conceptualizing the source of solidarity exclusively in terms of action. Instead, I propose to understand solidarity as resulting from the continuous interaction between two different dimensions of solidarity: constitutive solidarity that centres on collective action, and constituted solidarity which centres on given identities. My paper begins by distinguishing the two meanings of solidarity – constituted and constitutive. The first referring to an (instituted) set of mutual obligations applying to a given group, the second referring to solidarity as underlying social bond, which establishes the solidarity group in the first place. The paper then goes on to discuss three different accounts of constitutive solidarity: identity-based, obligations-based and action-based. I argue that only the action-based account can conceptualise the coming about of new forms of solidarity and the changing scope of the solidarity group. Yet, such accounts are unable to conceptualise how constitutive solidarity can come to ground constituted forms of solidarity, able to endure through time. On this basis, I propose to interpret constitutive and constituted solidarity as two ‘moments’ of solidarity, one symbolically grounding the other, even if not through linear causation. Rather, constitutive solidarity is constantly evolving and constantly contributes to remap the identities depicting social reality, which ground constituted forms of solidarity.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"32 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141937969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-30DOI: 10.1177/01914537241263284
Oliver Gerstenberg
A crucial insight in Michelman’s ‘Constitutional Essentials’ is that constitutions may serve a justificatory or proceduralizing aim in modern liberal democracies. Yet the pervasiveness of moral disagreement – all-the-way-up; all-the-way-down – suggests, as I will argue, a democratic-experimentalist turn, which focuses on a non-hierarchical process of stakeholder deliberation and the court’s role in instigating and overseeing that process, ensuring non-domination. I believe that Frank is exactly right in arguing that a liberally justification-worthy political framework-law-in-place is normatively necessary for democratic politics to succeed in divided societies. But I want to suggest that democratic experimentalism can offer further support to this claim.
{"title":"The constitution as a law of lawmaking: Comments on Frank Michelman’s constitutional essentials","authors":"Oliver Gerstenberg","doi":"10.1177/01914537241263284","DOIUrl":"https://doi.org/10.1177/01914537241263284","url":null,"abstract":"A crucial insight in Michelman’s ‘Constitutional Essentials’ is that constitutions may serve a justificatory or proceduralizing aim in modern liberal democracies. Yet the pervasiveness of moral disagreement – all-the-way-up; all-the-way-down – suggests, as I will argue, a democratic-experimentalist turn, which focuses on a non-hierarchical process of stakeholder deliberation and the court’s role in instigating and overseeing that process, ensuring non-domination. I believe that Frank is exactly right in arguing that a liberally justification-worthy political framework-law-in-place is normatively necessary for democratic politics to succeed in divided societies. But I want to suggest that democratic experimentalism can offer further support to this claim.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"73 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141864219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-23DOI: 10.1177/01914537241263258
Steven L Winter
The claim of liberal constitutionalism is that a text-like object or a ‘diplomatically abstract’ set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process of political cooperation and contestation. Legitimacy can arise only from the practice of democracy itself – that is, self-governance under conditions that realistically accord equal recognition and respect to all participants. Law is not some abstract entity or prior fixation, special and above. It is not, as Michelman once said, ‘an autonomous force’ that provides ‘an external untouchable rule of the game’. It is just another social institution or performative practice that does (or does not) reflect our democratic nomos. To be committed, as a strong democrat, to the rule of law is to be committed to the idea that we make the rules by which we govern ourselves. Equal voice, equal power, and equal law are just self-government. They are internal to – that is, constitutive of – the game. They are not untouchable; indeed, they are being manhandled every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance.
{"title":"Democracy’s ruling hand","authors":"Steven L Winter","doi":"10.1177/01914537241263258","DOIUrl":"https://doi.org/10.1177/01914537241263258","url":null,"abstract":"The claim of liberal constitutionalism is that a text-like object or a ‘diplomatically abstract’ set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process of political cooperation and contestation. Legitimacy can arise only from the practice of democracy itself – that is, self-governance under conditions that realistically accord equal recognition and respect to all participants. Law is not some abstract entity or prior fixation, special and above. It is not, as Michelman once said, ‘an autonomous force’ that provides ‘an external untouchable rule of the game’. It is just another social institution or performative practice that does (or does not) reflect our democratic nomos. To be committed, as a strong democrat, to the rule of law is to be committed to the idea that we make the rules by which we govern ourselves. Equal voice, equal power, and equal law are just self-government. They are internal to – that is, constitutive of – the game. They are not untouchable; indeed, they are being manhandled every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"38 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141773387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-22DOI: 10.1177/01914537241265116
Nektarios Kastrinakis
The dominant view for the relation between Adorno and Nietzsche is that the latter’s influence on the former, in terms of style and content, is primarily to be found in Adorno’s book Minima Moralia. Contrary to the dominant view, this article takes seriously Adorno’s admission that ‘of all the so-called great philosophers I owe [Nietzsche] by far the greatest debt – more even than Hegel’ and investigates the extent of Nietzsche’s influence in the conception of negative dialectics. It is argued that there could be a significant as well as inconspicuous influence that runs through Adorno’s Negative Dialectics to the point where Nietzsche legitimately be proclaimed the originator of Adorno’s negative dialectics. For those who consider negative dialectics to be the paramount achievement of Adorno’s thought, this claim would be equivalent to the claim that Nietzsche’s most significant contribution in Adorno’s thought is to be found in Negative Dialectics rather than in Minima Moralia.
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Pub Date : 2024-07-18DOI: 10.1177/01914537241263290
Andrew Koppelman
What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society. Michelman’s analysis has powerful attractions, but he overclaims the clarity with which rights can be defended within the Rawlsian framework he contemplates. The interests that courts must defend will vary from one society to another, depending on what the locals happen to value. They cannot therefore be derived abstractly from the moral powers. In John Rawls’s four-stage sequence, writers of constitutions, legislatures, and courts necessarily consider contestable ideas of the good. Deep disagreement even about political fundamentals is a permanent condition of political life in a free society. Social unity is possible, but it is a more unstable unity than Rawls and Michelman imagine.
{"title":"The fluidity of political legitimacy: On Michelman’s Constitutional Essentials","authors":"Andrew Koppelman","doi":"10.1177/01914537241263290","DOIUrl":"https://doi.org/10.1177/01914537241263290","url":null,"abstract":"What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society. Michelman’s analysis has powerful attractions, but he overclaims the clarity with which rights can be defended within the Rawlsian framework he contemplates. The interests that courts must defend will vary from one society to another, depending on what the locals happen to value. They cannot therefore be derived abstractly from the moral powers. In John Rawls’s four-stage sequence, writers of constitutions, legislatures, and courts necessarily consider contestable ideas of the good. Deep disagreement even about political fundamentals is a permanent condition of political life in a free society. Social unity is possible, but it is a more unstable unity than Rawls and Michelman imagine.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"52 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141739046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-24DOI: 10.1177/01914537241263289
Mark Tushnet
Can a constitution be treated as a recommendation rather than as binding and entrenched law? I argue that the answer to that question is Yes. With respect to the constitution in gross, that is, the total set of general provisions setting out both the structures of governance and the basic rights the constitution protects, the constitution as recommendation can serve as a focal point for ordinary political contestation which, because it unfolds in real time and is conducted by actors with limited time and energy for such contestation, occurs within (largely) settled institutional forms. With respect to the constitution in detail, that is, brought to ground in judicial judgments in contested cases, the answer is more complicated. Ordinarily treating judicial judgments as recommendations is a prescription for instability (and for that reason inconsistent with the idea of institutional settlement). If the target of such a judgment makes a considered judgment that instability is worth it, the target is raising questions about the continuing value of remaining in the particular polity within which the principle of institutional settlement holds sway.
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Pub Date : 2024-06-24DOI: 10.1177/01914537241263254
Kenneth Baynes
Michelman's Constitutional Essentials raises important questions about the idea of political liberalism and related idea of public reason. This essay offers a sympathetic commentary while also exploring the importance of the idea of reciprocity for both Rawls and Michelman.
{"title":"Political liberalism, public reason and the Goldilocks problem: On Michelman’s Constitutional Essentials","authors":"Kenneth Baynes","doi":"10.1177/01914537241263254","DOIUrl":"https://doi.org/10.1177/01914537241263254","url":null,"abstract":"Michelman's Constitutional Essentials raises important questions about the idea of political liberalism and related idea of public reason. This essay offers a sympathetic commentary while also exploring the importance of the idea of reciprocity for both Rawls and Michelman.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"19 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141509881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-24DOI: 10.1177/01914537241264105
David M Rasmussen
This essay raises questions about the role of reciprocity as it pertains to the various formulations of the liberal principle of legitimacy as interpreted by Constitutional Essentials.
本文就互惠的作用提出了一些问题，因为它涉及到《宪法要义》对自由主义合法性原则的各种解释。
{"title":"The enduring significance of reciprocity","authors":"David M Rasmussen","doi":"10.1177/01914537241264105","DOIUrl":"https://doi.org/10.1177/01914537241264105","url":null,"abstract":"This essay raises questions about the role of reciprocity as it pertains to the various formulations of the liberal principle of legitimacy as interpreted by Constitutional Essentials.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"35 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141532514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-21DOI: 10.1177/01914537241263287
Sanford Levinson
These are difficult times for the project of ‘political liberalism’. Frank Michelman is one of the most distinguished advocates for liberal constitutionalism, and one can only wonder if the time has past – that is, if the ‘owl of Minerva’ has perhaps flown – with regard to a constitutional project identified very much with the mid-20th century.
{"title":"Has the owl flown with regard to ‘the constitutional theory of political liberalism’?","authors":"Sanford Levinson","doi":"10.1177/01914537241263287","DOIUrl":"https://doi.org/10.1177/01914537241263287","url":null,"abstract":"These are difficult times for the project of ‘political liberalism’. Frank Michelman is one of the most distinguished advocates for liberal constitutionalism, and one can only wonder if the time has past – that is, if the ‘owl of Minerva’ has perhaps flown – with regard to a constitutional project identified very much with the mid-20th century.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"26 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141509882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-20DOI: 10.1177/01914537241263275
Johan van der Walt
In January and February 2023, the University of Luxembourg hosted a series of four online seminars on Frank Michelman’s then just recently published book Constitutional Essentials ( CE), a book which in Frank’s own words aimed to work out the implications of Rawls' theory of political liberalism for constitutional theory and debates between constitutional lawyers regarding a number of constantly recurring questions of constitutional law. Eleven of the invited contributions to the four seminars (presentations of 15–20 minutes) plus one additional contribution by Silje Langvatn, are now collected in this special issue of Philosophy & Social Criticism, followed by a response by Michelman. This introduction to the discussions between Michelman and his interlocutors begins with a brief synopsis of some of the key lines of argument that Michelman develops in CE and then moves on to survey all the arguments offered in response. The last section takes a briefly look at Michelman’s replies to these responses.
{"title":"The Luxembourg symposium on frank Michelman’s constitutional essentials (Oxford university press, 2022)","authors":"Johan van der Walt","doi":"10.1177/01914537241263275","DOIUrl":"https://doi.org/10.1177/01914537241263275","url":null,"abstract":"In January and February 2023, the University of Luxembourg hosted a series of four online seminars on Frank Michelman’s then just recently published book Constitutional Essentials ( CE), a book which in Frank’s own words aimed to work out the implications of Rawls' theory of political liberalism for constitutional theory and debates between constitutional lawyers regarding a number of constantly recurring questions of constitutional law. Eleven of the invited contributions to the four seminars (presentations of 15–20 minutes) plus one additional contribution by Silje Langvatn, are now collected in this special issue of Philosophy & Social Criticism, followed by a response by Michelman. This introduction to the discussions between Michelman and his interlocutors begins with a brief synopsis of some of the key lines of argument that Michelman develops in CE and then moves on to survey all the arguments offered in response. The last section takes a briefly look at Michelman’s replies to these responses.","PeriodicalId":46930,"journal":{"name":"PHILOSOPHY & SOCIAL CRITICISM","volume":"22 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141531555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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