Exam Legal Theory PDF

Week 7 23 / 10 / 2024 Course Details: ​ Main topic: Constitutionalism ○​ Political Liberalism by John Rawls ○​ Sovereignty Across Generations by Alessandro Ferrara ​ Assignments are on Luiss Learn (?) Lecture Intro: ​ What is law? VS What i...

Week 7 23 / 10 / 2024 Course Details: ​ Main topic: Constitutionalism ○​ Political Liberalism by John Rawls ○​ Sovereignty Across Generations by Alessandro Ferrara ​ Assignments are on Luiss Learn (?) Lecture Intro: ​ What is law? VS What is the law? ○​ What is the law? ​ Requires an answer to “What is law?” first ○​ What is law? Views on Law: Descriptive VS Normative ​ Descriptive Sense: Law as it IS (just facts; the letter of the law) ○​ Ex.) Isaac Newton’s Law of Gravitational Attraction ​ It’s a universal law that describes how physical matters relate to one another in space ○​ BUT whenever the law fails to grasp the facts, the law has to be adapted ​ The law becomes invalid when it’s infringed (?) ​ Normative Sense: Law as it SHOULD BE (prescribes how reality should be) ○​ Reality has to match the law (not the other way around) ​ The law is no less valid simply because it’s infringed ○​ Hans Kelsen: EFFICACY of law ​ Law that fails to regulate political and social life is defective ​ When a law is habitually infringed, there’s something wrong with that law What is the Function of Law? ​ Talcott Parsons: ○​ Human beings act ​ Acting = CHOOSING means in order to achieve goals ​ Goals can be connected ○​ Ex.) Setting an alarm ⇒ to come to class in time ⇒ to do well in college ⇒ to graduate ⇒ to get a good job ​ There are ultimate goals / ends (these goals aren’t means in order to achieve other goals; they don’t lead to other goals)  ○​ Ex.) Living a good life = the ultimate goal / end ○​ Parsons says it’s contradictory for us to think that we’re in society and to think that these ultimate ends are totally unrelated or randomly related ​ Goals aren’t random; there’s some relation between them ​ Institutions teach you how to connect all of the goals ​ What is political politics? ○​ The roots of politics: ​ People’s goals aren’t exactly the same ​ Social life requires the community to prioritize (choose) certain goals ​ Because the community can’t work on all goals at the same time ​ Utopian societies are able to do all goals at the same time ​ Some people (like Carl Schmitt) think that the goals of the strongest are prioritized ​ Ex.) The EU’s fiscal policy: Should we prioritize fiscal balancing OR economic growth ​ Some people think that you should balance the budget first to focus on economic growth later ​ Some people think that you should stimulate the economy first, which would help balance the budget ○​ Politics is about deciding which goals to prioritize ​ This process needs to happen in a public dimension ​ Needs to affect the lives of MANY people in society ​ Prioritizing private goals isn’t politics ○​ Ex.) Deciding what to do with free money in a family = NOT politics ​ What is law? ○​ Law = A normative order that allows social life and politics to take place ​ The function of law: ○​ Elementary (primitive) view of politics: There’s a problem ⇒ something needs to be done ⇒ opinions are heard ⇒ options are assessed ⇒ a decision is made ⇒ the decision is implemented ​ This can be democratic OR undemocratic ○​ There needs to be norms / rules that determine: ​ WHO brings problems up to the community? ​ WHO decides which option to choose? ​ WHO implements the decision?  ​ Law is a system of rules that enables communal will and regulates the interactions between GROUPS (members of the community) by establishing RIGHTS and OBLIGATIONS ○​ Possible origins: ​ Habitual ​ Religious ​ Traditional ○​ Nazi Germany: ​ They DIDN’T abolish elections BUT changed the election laws ​ They gave a list of 400 candidates for the parliament ○​ The only options were “Yes, I agree” and “No, I disagree” Regulative and Constitutive Rules: ​ Rules = normative constructs that regulate actions ○​ Regulative VS Constitutive Rules (John Searle and John Rawls): ​ Regulative Rules: ​ Rules that regulate actions that exist independently of the rules themselves ○​ Ex.) Traffic laws ​ We would move around anyway even without traffic lights, though it would be less safe ​ When you run a traffic light, you’re still driving ○​ Ex.) Grammar (BUT this can also be constitutive in schools) ​ People would still communicate even with grammar rules ​ Because grammar has to adjust itself to reality (changing trends) ​ The action has to exist prior (independently) of the rule ​ Freedom is LIMITED by regulative rights ○​ Ex.) Every time you pass a traffic light, it limits your freedom and takes your judgement away ​ Constitutive Rules: ​ Rules that CREATE the behaviors / conducts that they then regulate ○​ Ex.) Sports rules; board game rules ​ These rules DON’T regulate previously existing behaviors / conducts ​ The rules have created the games  ​ When you regulate chess rules, you aren’t playing chess anymore ​ The action DOESN’T exist without the rule ​ Freedom is NOT limited by constitutive rules ​ There are simple rules AND rules that address very significant matters ​ Simple: How old the president needs to be ​ Significant: No death penalty ​ Constitutive Rules VS Constitutional Rules: ​ The constitution has BOTH Regulative and Constitutive rules ○​ Regulative: ​ Ex.) Rules regulating public assembly ○​ Borderline case: VOTING ​ Could be treated as either regulative OR constitutive ​ Constitutive element: Formal procedure (proper, valid voting) ​ Ex.) Having to write properly on a piece of paper, submitting at the proper place ​ Regulative element: Expressing consent ​ People would express consent anyway, like by raising hands or shouting ​ RIGHTS count as constitutive rules (since they aren’t limiting freedom) ​ Constitutions: Are they regulative rules or constitutive rules? ○​ Everything that happens is constitutional, and if nothing happens, that would still be constitutional! Main Topic of Debate: ​ 1) Where does law come from? ​ 2) What makes law valid? ○​ What distinguishes law from a set of valid norms and a set of norms that merely pretends to be law? ○​ Scott Shapiro’s example: Lex and Phil ​ There’s a really ancient tribe (like 10,000 BC) ​ The eldest in the tribe (Lex) tells the tribe that he’s found the solution to solve conflicts between members of the tribe ​ The solution: Lex will come up with rules to address the issues  ○​ They will know when he has made a rule when he sits under the big palm tree in the village square ○​ His judgements will be final ○​ After he dies, his children will continue enforcing them ​ Everyone is ok with this BUT a legal philosopher in the tribe named Phil objects ​ There has to be a prior rule that tells Lex he has the right to make rules ○​ Otherwise it’s an arbitrary exercise of power (like the gunman situation) ​ Lex giving rules isn’t any more valid than anyone else, including Phil, giving rules ​ Lex says he’ll make a Rule #1 that enables him to make the rest of the rules ​ Phil says that won’t work since there’s no previous rule to make a Rule #1 in the first place ​ Lex proposes to have everyone vote to accept his rules ​ Same problem: There’s no rule that empowers the tribe members to transfer the power to make rules to Lex ​ Lex ignores Phil and makes the rules anyway, so the laws are born ○​ The moral of the story: It’s a “chicken-and-egg” problem ​ Article 2 of the US Constitution: The prerogative of the US president as the commander-in-chief of the military depends on the validity of the constitution as a whole? ​ Who determines the validity of the constitution? ○​ The constitution was ratified by the required 3/4ths of the original 13 states ○​ BUT there wasn’t a prior rule that conferred authority to the 13 states to ratify the constitution ​ Article 7 set this up BUT it’s the same problem as Lex making a Rule #1 ○​ The 2 Solutions: ​ 1) Hans Kelsen’s Grundnorm: ​ Prioritizes NORMS ​ 2) Legal positivism: Law is the product of the self-authorized will of the sovereign (also Schmitt’s idea) ​ Prioritizes the SOVEREIGN ​ Thomas Hobbes, John Austin, etc.  Week 8 28 / 10 / 2024 Positivism VS Natural Law (Prof Ferrara’s Version) What Makes a Law Valid? ​ Legal Positivism: Depends on the ORIGIN of the law ○​ Depends on the validity of the authority (the sovereign) who issued the law ○​ DOESN’T depend on the content of the law ○​ Thomas Hobbes: 3 principles ​ 1) “What pleases the emperor has the force of law” ​ 2) “The emperor is not bound by law” ​ 3) “Give to everyone his due” (?) ○​ Relatively modern ideas BUT not entirely modern ​ Justinian Code 529 AD ○​ Legal Positivism is qualified by 5 assumptions: ​ 1) Law is MAN-MADE ​ There has to be a lawgiver somewhere ​ 2) Separation of law and morality ​ 3) Pure analysis of legal concepts, distinct from other subjects ​ 4) It’s a CLOSED logical system ​ Correct decisions can be deduced from predetermined legal rules by logical rules alone ​ Max Weber: Rule of law = state of affairs in which the legal consequences of ANY action can be calculated ○​ ANY action can be described as legal or not legal ​ 5) MORAL judgement CAN’T be established by logical roots ​ But LEGAL judgement can ​ JUSTICE-TRACKING LAW (Natural Law): Depends on the CONTENT (merit / substance) of the law ○​ Why you shouldn’t call it “natural law” ​ It DOESN’T fit the ideas of modern thinkers like Jürgen Habermas (although it does fit John Locke’s ideas) ​ Because justice MATTERS ​ In natural law, the law has to be moral but not necessarily just 3 Versions of Positive Law: ​ 1) Thomas Hobbes: Contract Theory ○​ Hobbes was one of the first thinkers in those days to break away from the ideas of natural law ○​ Social order is MAN-MADE ​ Social life is actually an advantage for humans ○​ State of Nature: CONFLICT ​ Due to the selfish desires of each human and things like jealousy, rivalry, greed, glory-seeking, etc. ​ It’s a “war of all against all” ​ NOT all the time, but generally ​ Unless peace is established, you have to assume that there is war ​ Life in this state of nature would be poor, solitary, and short ​ Auctoritas non veritas facit legem (authority, not truth, makes the law) ​ Without an authority, there is no law ​ Without law, there is no injustice ○​ People CREATE a sovereign and voluntarily give authority up to the sovereign ​ Leviathan (the authority) gives the laws ​ It needs A SWORD (sanctions) to enforce its laws ○​ Hobbes’s 3 insights: ​ 1) Justice and injustice come from the law ​ 2) Law is a command with sanctions issued by a sovereign ​ 3) Sovereignty = ULTIMATE, unrestricted power ​ The sovereign CANNOT be under the law ○​ The Rights of the Sovereign (19 in total): ​ 1) The legal order is IRREVERSIBLE (legally) ​ There’s no legal way of breaking it ​ 2) Being above the law ​ 3) CANNOT be tried / condemned for his actions ​ 4) Property is a POSITIVE creation (man-made) ​ There’s no natural right to property ○​ When you’re dispossessed of property, you have no right to it ​ 5) NO separation of powers (the sovereign has all of the powers) ​ 6) It’s up to the sovereign to assess when war is for the public good ○​ The sovereign’s rights are BOTH prescriptive and normative ○​ Fundamental Laws: ​ Fundamental law = if it’s taken away, the entire commonwealth is destroyed  ○​ No one can repeal a law if not the sovereign himself ○​ Validity of Laws: ​ Tacit Consent: If no one objects to a law, that means everyone generally accepts it ​ Norms that are met with silence are sort of legitimized in that way ​ Laws MUST be commands (John Austin’s idea) ​ If they’re not commands, then they’re not laws ​ 2) John Austin: Command Theory of Law ○​ A law is a command backed with sanctions by a sovereign ○​ The sovereign must ACTUALLY be able to inflict sanctions ○​ Habitual Obedience: ​ The sovereign doesn’t habitually obey anyone else ​ The sovereign is the SOURCE of authorization ​ There doesn’t have to be a norm above him ​ There DOESN’T have to be a rule that establishes the sovereign ​ ○​ H.L.A. Hart’s Criticism: ​ 1) Not all rules are commands because not all rules impose obligations & sanctions ​ Ex.) Civil law & most things in private law (wills, etc.) ​ 2) Problems with the idea of habitual obedience: Habitual obedience doesn’t make sense when the king’s successor inherits the crown ​ 1) There’s no habit of obeying the new king ​ 2) Previous commands continue into the reign of the new king ​ 3) There has to be primary norms that empower the sovereign with legislative power ​ Thought Experiment: Society with NO written laws (just customary laws) ○​ Rules evolve spontaneously ​ Hart’s idea: “In the beginning were primary rules” as opposed to the usual positivist “In the beginning was the sovereign” idea ​ Primary Rules: Regulate behaviors ​ Secondary Rules: Regulate the rules that regulate behaviors (Primary Rules)  ○​ They establish the authorities to regulate particular areas of social life ○​ 1) Rules of Change ​ 1) Rules that confer powers on individuals or groups to enact legislation ​ 2) Rules that allow you to change your status ​ Making contracts or wills, getting married, etc. ○​ 2) Rules of Adjudication ​ Rules that establish conflict adjudication ​ Ex.) Establishing courts ○​ 3) Rules of Recognition (can NEVER be questioned; it’s the basic aspect of a legal system) ​ Rules that decide the validity of a legal system ​ They authorize certain bodies to recognize new rules as binding ​ DOESN’T depend on coercion 30 / 10 / 2024 Part 2 of Positivism VS Natural Law (Prof Ferrara’s Version) Part 2 of What Makes a Law Valid? Lecture Intro: ​ Validity of law: Kelsen VS Schmitt ​ Review of Legal Positivism: ○​ Validity of a law: Depends on its source (where it comes from) ○​ It’s called positivism because it comes from a fact ​ Political fact - from the ruling sovereign ​ Quasi-legal fact - the existence of a basic norm or primary rules ○​ It’s a normativist view since there’s a specific source of valid law (e.g. sovereigns can do whatever they wants) Justice-tracking Law (Natural Law): ​ Basic intuition that what grounds the validity of law is its content and substance, in response to some normative standard, principle, or divine ideal ​ Substance of law, where the credentials of those who make the law are not solely sufficient to make any law  ​ Is somehow entangled that there is something independent of us in space/ nature/ sharia ​ Purpose of law can be discovered through transcendental reason ​ 2 paradigms of natural law: ○​ 1) Classic natural law - John Locke ○​ 2) Contemporary natural law - Ronald Dworkin John Locke (1632-1704): ​ Was a student at Oxford when King Charles I was executed, at the height of the civil war ​ Inherits Hobbes’s Social Contract Theory: The legal order is the product pot the rational agreement between people dispersed in a state of nature where no authority exists (no just & unjust actions) ○​ Locke’s State of Nature: State of liberty with basic freedoms ​ As opposed to Hobbes, Locke posits that in the state of nature there is a state of liberty, but it is not one of license ​ He posits that humans share basic intuitions considering certain good or bad actions ​ There are some basic goods/ rights (e.g. life, liberty, and property) that are binding on us ​ Furthermore, individuals have the basic instinct to defend these rights, for themselves and others ​ Locke’s 2 Treatises of Government ○​ People choose to voluntarily be sovereign to have greater protection of their natural rights ○​ In the state of nature, each individual acts as the judge in their own case, which can lead to inaccurate and inefficient ‘rulings’ ​ No concept of ‘thirdness’ in the state of nature - third-party adjudication ○​ People leave the state of nature because at the crucial (?) judgement is not impartial in the state of nature, but is in the hands of the self-interested parties ​ Applies directly to contemporary legal theory with the advent of Human Rights Treaties, where certain rights are enshrined and bound to be protected ○​ Every state self-authorizes their choices, and therefore international treaties / organizations act as the third party adjudicating on the conflict ○​ Without international points of adjudication, human rights violations will be ignored when intervening would be inconvenient for the state  ○​ However, in a state with a third-party unbiased adjudicator, it can allow and empower intervention without consequence / makes it easier ○​ If a lawmaker in a commonwealth infringes on or fails to protect our natural rights, the state of affairs produced by the commonwealth is worse than that of the state of nature ​ Failure to protect rights = worse than state of nature ​ Better in the state of nature than with a lawmaker that makes unjust law ​ With natural law, we have a legal benchmark with which we can judge the validity of law ​ If the sovereign jeopardizes their subjects’ lives, the subjects have the right to rebel ​ Key Insights: ○​ 1) We could change for the worse when moving from nature to commonwealth ○​ 2) The sovereign/ lawgiver is not above the law, and must respect the subjects’ natural law ​ Is not absolute and responsive to basic rights, because individuals have the right to rebel ​ From Locke’s perspective, the sovereign cannot be above the law because then there is no difference than being in the state of nature, as the Hobbesian sovereign does not answer to a third-party judge ​ The sovereign legislates, passes laws, and judges whether laws are applied correctly, BUT with respect to the fundamental rights, and can be kept in check by other bodies ​ Natural law provides a benchmark by which we can evaluate the justice of law ⇐ key to the justice-tracking perspective ○​ 3) To be in a legal-political bond, the right and wrong (the merit) is not just the matter of one’s idiosyncratic judgement, but of an impartial third-party judgement ​ Without which, there would be no difference between one’s beliefs and the facts ​ “I believe I’m in the right, and therefore I am because I judge” ​ Who Can Infringe the Law? ○​ From Hobbesian POV, law can only be infringed from below, as whatever the sovereign does is law, so only the people (NOT the sovereign) can violate the law ○​ Locke posited that if no one could judge between him and the sovereign, then they are not in a commonwealth state, but in the state of nature  ○​ Locke’s POV: The law CAN be broken from above by officials who overstep the limits of their power / authority and infringe rights, and in this act, they reinstate the state of nature within the commonwealth and authorize the people to rebel ​ The right to rebel would be void if we did not connect with the right to prevent these violations on the basis of a well-grounded suspicion ​ If we have to wait for an autocratic form of power to come in, further abuses of rights will be enacted, and therefore rebellion should be used as a consequence and preventative ○​ The constituent power of the people (refers to it as the supreme power of people to create a commonwealth) and then the constituted power of those who run the commonwealth Ronald Dworkin (1931-2013) ⇐ Anti-Legal Positivism: ​ Validity of law = depends (at least partly) on the moral merit of its norms ​ In its extreme form, classic natural law, was based on the latin saying “unjust law is no law” ​ Dworkin is the key attacker of the legal positivist separation between what the law IS and what the law OUGHT TO BE ○​ Dworkin: To understand the law, we must understand what it ought to say ​ The rules and principles and the interpretative nature of adjudication ​ Some people understand the constitution as a series of rules ○​ Certain legal principles, e.g. no retroactive law, are basic and underlie the functioning of constitutions, whether explicitly stated or not ○​ However, Dworkin posits that the correct view of the constitution is as a compound of principles ​ Principles VS Rules (3 Important Points): ○​ 1) Rules: Allow for prioritization, staying which comes first/ is more important ​ Principles: DON’T have prioritization / exceptions but balancing (these were 2 of the points) ​ Ex.) In chess, the king can only move one tile at the time, except when castling ​ E.g.) Consider the principle by which no one cannot profit from an unlawful act ○​ Ex.) If you kill someone who’s will you benefit from, after serving your time, you still don’t have access to the will ​ Balanced with counter principles  ○​ Ex.) when you breach contract and take a new job, you may need to provide compensation to the prior company, but you are not forced to leave your new job, so in a way you profited from an unlawful act (despite some penalty) ​ No exceptions ⇒ instead, balancing of principles ○​ 2) Rules: Can easily be enumerated ​ Principles: CAN’T so easily be enumerated ​ Principles are a part of an interior understanding of legality, and the project of spelling out and listing every legal principle which exists in jurists minds is paramount to writing what law is - which you will end with law is law - legal principles are legal principles ​ Certain legal principles can be taken for granted/ as universal fact (like not being able to walk through walls) and therefore cannot be enumerated ​ US Bill of Rights recognizes that no one can make an exhausted, closed list of rights and principles Justice-tracking: ​ Article 11 of the Italian Constitution: “Italy rejects war as an instrument of aggression against the freedom of other peoples and as a means of settlement of international disputes” ○​ The meaning of this article depends on the meaning of the term ‘war’ ○​ An originalist understanding would look back to 1948, when the constitution was being written, and imagine what the original writers meant when thinking of war ○​ Legitimate self-defense in 2024 may be different than 1948 ○​ Ex.) If a missile is launched from Kaliningrad, must NATO wait for it to enter its airspace to make a move? ​ By then, NATO might have already suffered damage from it ​ Can countries launch preemptive strikes to keep an attack from happening? ​ Is it still self-defense before the aggressive act has been committed? ​ Dworkin argues that we cannot separate what the law says with what it should say (living constitutionalist) ○​ The law means nothing until it is interpreted ○​ Disagrees with the idea that the law says what the lawmaker intended it to say  ○​ The objections to the authorial intention are: ​ 1) It’s difficult to determine which authors’ opinions matter ​ The entirety of parliament? ​ Or only those who agreed to pass the constitution / law? ○​ How can you determine a historical figure’s intentions? ​ Retrospective literature can be doctored ​ What are the indicators of intention? ​ What about those who partook in the creation of law, but whose intentions were not codified? How will their intentions be taken into account? ○​ These factors make the originalist view totally useless, for it is only speculative and presumptive ○​ Dworkin said that “law is silent before interpretation” ○​ The interpretation that is correct is one that makes the most of the legal system and potentializes it for the best ​ Similar to when a director is choosing which end scene for its movie, the correct choice is the one that brings out its full potential Week 9 4 / 11 / 2024 Lecture Intro: Review on Private VS Public Law ​ Private law VS public law ○​ Private Law concerns the HORIZONTAL relations between individuals ​ Includes: ​ Contract law ​ Commerical law ​ Labor law ​ Family law (in between private AND public law) ○​ Public Law concerns the VERTICAL relations between individuals and public institutions (also BETWEEN institutions) ​ Ex.) Parliament - Elected Government relation ​ Institution - Institution relationship types: ​ Constitutional Law ​ Criminal Law ​ Tax Law ​ International Law ​ etc. ​ The Distinction in Antiquity:  ○​ Roman Empire: ​ Public Law = concerns the empire’s interests (?) ​ Private Law = concerns individual interests ○​ Middle Ages: ​ Main focus was on Canon Law VS Secular Law ○​ Resurgence (Thomas Aquinas’s time) Public Law (Main Focus on Constitutional Law): Popular Sovereignty (Demos) VS Lawful Government: ​ Popular Sovereignty: ○​ No individual rights ​ No due process ​ The people (majority) decided what would happen ○​ Ex.) You could be exiled by the will of the people ​ Democratic Government: ○​ YES individual rights ○​ Limits to public authority ○​ Limits to the will of the people Hans Kelsen ​ Biography: ○​ Born in Prague (part of Austria at that time) ○​ Studied in Heidelberg under some guy (graduated in 1911) ○​ Played a key role in drafting the Austrian Constitution (post-WW1) ○​ Published The Pure Theory of Law (1934) ○​ Forced to leave Austria but moved to Köln and then to Geneva and then to the US ○​ Tried to applied for a job at Harvard BUT was strongly opposed by Lon Fuller and his folks ○​ Got a position in Berkeley (in the Department of Political Theory, NOT law school) ○​ DEFENDED the Nuremberg Trials (despite being a legal positivist) ​ Theories: ○​ 1) Hierarchy of Norms: Justness and validity of laws depends on HIGHER norms ​ Higher norms give validity to laws BUT don’t affect their content ○​ 2) The state is a legal order (NOT a political organization) ​ It’s an organized collection of norms (NOT a loose collection)  ​ There are subordinate norms under superior norms, etc. ○​ 3) Grundnorm = highest norm that gives validity to the constitution ​ It’s a presupposed concept that serves to validate the constitution (it’s entirely theoretical) ​ Constitution = the product of the will of the people ​ Kelsen’s Quote #1: ○​ If a revolution succeeds, the new legal order is considered to be valid ​ A NEW grundnorm has been created ​ Constituent power has been exercised ○​ If a revolution fails, the act of trying to establish a new legal order is an ILLEGAL act (treason) ○​ HOWEVER, this is just a postulate (theory) ​ Kelsen’s Quote #2: ○​ “The people” = “a system of individual human acts regulated by the state legal order” ​ NOT the conglomeration of actual persons ​ It’s a collection of legal acts performed by the members of the state ○​ The people’s unity = “the unity of the state’s legal order” ○​ “The law makes the people” (not the other way around) ​ Kelsen’s Quote #3: ○​ Validity of laws DOESN’T depend on: ​ Merit ​ Morality ​ Justice ​ Any value transcending positive law ○​ It’s technically a legal positivist view ​ Kelsen’s Quote #4: ○​ An unconstitutional statute is still VALID ​ Since an invalid statute isn’t a statute at all ○​ The statute can only be valid IF it corresponds to the constitution ​ Can’t be valid if it contradicts the constitution ○​ All norms can be semantically (by way of their meaning) understood as derivations (expansions) of higher norm 6 / 11 / 2024 Carl Schmitt Carl Schmitt: ​ Started working during the days of the German Empire ​ First major work: Political Theology ○​ Opening sentence: “Sovereign is he who decides on the exception” ​ Aka the suspension of the law during a state of emergency ​ 1923: The Crisis of Parliamentary Democracy ○​ Criticized liberalism and parliamentary democracy ​ 1927: The Concept of the Political ○​ All of politics is based on the friend-enemy distinction ​ 1928: A Constitutional Theory ​ Schmitt turned more to institutionalism later on after previously focusing on sovereignty (?) ​ 1930s - end of WW2: Schmitt focused on criticizing the cosmopolitan liberal order ○​ Ex. Woodrow Wilson’s presidency, League of Nations, discussions about forming the UN ○​ Schmitt wrote The Nomos of the Earth ​ Defends the old Westphalian system of international relations ​ Westphalian System = basically a Hobbesian state of nature but among states instead of individuals ○​ States voluntarily form alliances without being forced to by a global framework ​ Sees a “global legal order” as a very dangerous move ​ Because it “dehumanizes” the opponent as a criminal ​ Schmitt’s Quote #1: ○​ 1) Laws (including constitutions) MUST be established by a political will (aka someone has to establish it) ​ “Constitutions don’t fall from trees” - Prof Ferrara ​ Kelsen’s argument: There must have been a people who created the constitution ○​ 2) Constitutions derive their validity from the authority of the sovereign ​ “In the beginning was the sovereign” ​ The sovereign creates the state and the constitution ○​ 3) The state does not have a constitution; the state IS the constitution ​ The state would disappear if the constitution disappeared ​ The constitution identifies the state ​ Ex.) French First Republic, Second Republic, etc. ○​ It became a new republic every time the constitution was changed significantly ​ “The state presupposes the concept of the political” ​ Means that the constitution is made against someone ○​ To draw a line between who is in and who is out ​ Defines the friend-enemy distinction  ○​ This line could be based on ethnicity OR [ ] ​ The state is a projection of the political (the friend-enemy distinction), NOT the other way around ○​ In normal, everyday politics, the friend-enemy distinction isn’t that significant ○​ BUT during states of emergency, it becomes a huge thing ○​ 4) The sovereign who creates the constitution comes in 2 forms: ​ 1) As a sovereign dictator ​ It’s someone / a body whose authority IS NOT challenged ○​ Ex.) The Constitutional Assembly had the power to make the constitution and no one challenged its authority to speak for the people ​ 2) As a “lord of exception” ​ Somebody who has the power to determine the exception ​ Schmitt’s Quote #1: ○​ 1) Schmitt’s 4 concepts / views (NOT types) of the constitution: ​ 1) Absolute Constitution ​ Captures the whole of the state in its distinctiveness ○​ Political unity ○​ Social order ​ It’s MORE than just a set of legal norms ○​ It’s a “form of forms” ○​ It defines the state ​ It’s the “soul of the polity” since it provides for continuity and distinctiveness throughout historical change ​ A constitution lasts much longer than any specific government does ​ Ex.) The example of a choir ○​ The constitution is the score (song) ○​ Unity and order are in the song itself ​ 2) Relative Constitution ​ Kelsen’s view: The constitution is a collection of # number of legislative articles / provisions ○​ Schmitt’s argument: Kelsen’s view is misleading since Kelsen implies that all of the articles have the same weight ​ In reality, though, some articles are more important than others  ​ Ex.) Article 1 of the Italian constitution: the priority of labor over property ○​ Property is a product of labor ○​ So you have to recognize the priority of labor ​ Ex.) Article 3 ​ Ex.) Article 11: Rejection of war ​ Having amendments reduces the constitutional provisions to the level of normal laws ​ Just like how normal laws can be repealed and amended ​ It’s a misconception ○​ It makes us lose sight of the identity-forming nature of the constitution ​ 3) Positive Constitution ​ The constitution is the outcome of a political decision (aka the sovereign deciding, “this is the law”) ○​ Relates to Schmitt’s Quote #2 ○​ It’s a decision by the holder of the constituent power (the subject) ​ Could be a single individual OR a body ​ Many constitutions have a preamble (usually a normative statement) that represents the decision made by the constituent power ○​ It usually determines the form of the state (ex. federal state, parliamentary democracy, etc.) ​ 4) Ideal Constitution ​ It’s a polemical view / political act ​ It’s a militant constitutions that rejects a whole different approach (a “never again constitution) ○​ Acts as a bulwark against a return to the past ○​ Ex.) Democracy instead of Fascism ​ Schmitt’s Quote #3: ○​ 1) The validity of the constitution also comes from its faithfulness to the political will of the subjects ​ Criticizes legal positivism (but his view is still political positivist)  ​ Norms are valid NOT because they should be valid BUT because they are only positive norms if they don’t regard reasonableness, justice, etc. ​ CONTENT MATTERS since it must factually represent the political will ​ BUT Schmitt’s view is also another form of positivism (political positivism instead of legal positivism) ○​ Since he says that the laws must factually represent the will of the people (but not necessarily morality) ​ Schmitt’s view on amendments: ​ Amending = creating a WHOLE NEW constitution ​ There’s no authorization to do it 8 / 11 / 2024 John Rawls A Theory of Justice (1971) ​ Complex, but not obscure ​ See list of key terms to understand the the text ​ Acclaimed as the most important work in political philosophy since 1861 ​ Leo Strauss said this book had reawakened normative political philosophy after a century-long slumber ○​ The idea that conflict was a clash of interests ​ Revamped the centrality of the normative question “what is a just society” ○​ - Political realist - posited that constitutional consensus was necessary for quelling conflict ​ Just principles are based on ○​ 1) Fact of pluralism ○​ 2) Veil of ignorance ○​ 3) Reflective equilibrium ○​ 4) Original position ○​ 5) Circumstances of justice Political Liberalism ​ We live in complicated societies with conflicting views of the world ○​ In this context, the whole question arises: “What procedure could we possibly follow that gives us consent among people who are so politically different for reasons other than compromise?” - Rawls, a central theme in his work  ​ How can people from different backgrounds and perspectives come to agree, substantially for reasons of principle? ○​ This can happen through normative minimalism ​ Minimal baseline of justice and fairness ​ Principles form an overlapping consensus in a pluralist society ​ Anti-utilitarian trust ○​ Utilitarianism - justice relates to the greatest happiness for the largest number of people ○​ Rawls, reaches back to a Kantian POV, argues that justice does not have to do with an action’s outcomes, but with intentions ​ As outcomes are largely out of the control of individuals, they can be foreseen but not predetermined ​ Morally admissible if the individual’s action’s intention can be morally defended ○​ On a societal level, a just society is one with a basic structure/ main organization is built upon just principles (it is just because it’s principles are just) ​ Refers to contract theory ​ Rawls’ doctrine is often referred to as neo-contractarian theory ​ Just are the principles that would be selected by rational actors, under certain control factors (called the original positions), under contract-making conditions ○​ Rawls does away with the state of nature and refers to it as the original position ​ Page 30 of Political Liberalism “I don’t really know why I took the course I did” the movement from Theory of Justice (1971) to Political Liberalism (1993) Rawlsian Key Terms: ​ Original Position ○​ An equivalent of the state of nature, without its ambiguities ​ Individuals choose the principles of justice behind a "veil of ignorance" to ensure fairness, as they have no knowledge of their own place in society ​ Justice as Fairness ○​ Theory of justice that is a composite of 2 principles ​ Based on principles chosen in the original position ○​ Aim: equal basic rights, equality of opportunity, and inequality allowed to help the disadvantaged ​ Veil of Ignorance  ○​ A mental exercise in which decision-makers ignore personal characteristics ○​ Categorical imperative ​ Reflective Equilibrium ○​ Balance and adjusting of moral principles to reach consistency in one’s beliefs about justice ​ Circumstances of Justice ○​ Conditions under which justice is relevant ○​ Ex.) Moderate scarcity and conflicting interests ○​ Must be in an intermediate situation (complete scarcity could mean your life spells my death - in no scarcity politics is irrelevant / unnecessary) ​ Fact of Pluralism ○​ Actors take for granted the existence of a plurality of irreconcilable views on justice ○​ The idea realist that conflicting moral, religious, and philosophical doctrines exist in democratic societies ​ 2 Principles of Justice as Fairness (see the slides) ○​ Equal Freedom ​ Everyone should have equal rights compatible with similar liberties of others ○​ Principle of Difference ​ Inequalities are permissible if they benefit the disadvantaged and are attached to positions open to all ​ Reasonable Pluralism ○​ Acceptance that different, reasonable comprehensive doctrines will exist in a free society ​ Political Conception of Justice ○​ A framework of justice grounded in shared political values, NOT in any specific comprehensive doctrine ​ Basic Structure of Society ○​ The primary social institutions (e.g. legal, economy, family) that shape individuals' lives and govern social cooperation ​ Comprehensive Doctrines ○​ Broad moral or philosophical systems (religious or secular) that provide individuals with an overarching sense of meaning and values ​ Society as Fair System of Cooperation (and “union of social unions”) ○​ View of society as an association of individuals cooperating for mutual advantage under fair terms ○​ Society as an association of various cooperative institutions working together  ​ Political Conception of the Person ○​ Individuals as free, equal, and rational beings capable of justice and fair cooperation ​ Well-ordered Society ○​ A society in which everyone accepts and knows that others accept the same principles of justice, as do institutions ​ Rational VS Reasonable ○​ “Rational" = to be pursuing one’s own good (selfish) ○​ “Reasonable”= willingness to cooperate fairly and recognize others' claims to justice ​ Burdens of Judgement ○​ Factors leading reasonable people to different, often conflicting conclusions about moral and political issues ​ Liberal Principle of Legitimacy ○​ Political power is legitimate only if it is exercised in ways that all reasonable citizens can endorse it ​ Overlapping Consensus ○​ Agreement on political principles by citizens with different comprehensive doctrines, allowing stability in a pluralistic society ​ Constitutional Consensus ○​ Agreement on basic constitutional principles without requiring agreement on deeper philosophical or moral beliefs ​ Modus Vivendi ○​ Pragmatic compromise among conflicting groups, maintaining peace but lacking deeper moral consensus ​ Public Reason ○​ Based on common principles accessible to all citizens rather than specific doctrines, used in political discourse ​ Constituent Power ○​ Authority to establish or amend a constitution, typically attributed to the people or their representatives Political Liberalism: ​ Rearranging the basic structure of society ​ The book is marked by the transition of the idea of the fact of pluralism to a new formulation of reasonable pluralism ○​ The whole book is a response to a question that is posed at the beginning (p. 4), and guides  ​ Question: “How is it possible for there to exist, over time, a stable and just society of free and equal citizens, who remain profoundly divided by reasonable philosophical doctrine?” ​ Answer: We have to construct a publicly recognized standard, from which all citizens can examine whether their political and social institutions are just ​ We construct a political conception of justice ​ How can we live in a society where the force of law does not oppress someone? ​ - Quote #4 from the slideshow ○​ Mark the distance between us and the age of populism Week 10 11 / 11 / 2024 Rawls Chapter 1 (Continued) Rawl’s Quote #5: Political Conception of Justice ​ Justice = the “basic structure of society” ○​ A society’s main political, social, and economic institutions + how they fit together into one unified system of social cooperation from one generation to the next ○​ It’s presented as a freestanding view ​ Fair system of interpretation ​ Political [something] ​ Well-ordered society ​ Political conception of justice ​ Main question: What are the main principles that a constitution should reflect? ⇐ subject of a political conception of justice (using a controlled language composed of building blocks that come from philosophical reflection) ○​ What does “society” mean? (explained by Rawl’s Quote #6) Rawl’s Quote #6: The Idea of Society as a Fair System of Cooperation ​ Cooperation is different from “socially coordinated activity” ​ Cooperation includes the idea of the “fair terms of cooperation”, which in turn “specify as the idea of reciprocity” ○​ Being forced DOESN’T count as cooperation ​ So cooperation can’t be separated from fairness ○​ There has to be some sort of (voluntary) advantage for each participant  ​ Not being killed (the lesser evil) doesn’t count as an advantage since it was forced ​ Society is NOT: ○​ 1) A community ​ Because communities are unified by one shared thick ideal (with thick ethical substance) embedded in the tradition ​ Society only has a thin ideal ○​ 2) An association ​ Because associations have specific purposes ​ You can enter or leave it whenever you want ​ BUT you automatically enter society with birth and leave it with death Rawl’s Quote #5: Political Conception of THE PERSON ​ Rousseau’s view: The individual has an intrinsic “propensity” (inclination) for association ○​ Opposite view (Hobbesian): State of nature = Individuals have NO natural propensity to social life ​ Rawl’s view: Neutral conception of the person ○​ 1) Human beings are endowed with the moral power to conceive an idea of “the good” (and to change it whenever deemed necessary) ​ Acting = linking together ends and means ​ Living a good life is an end in and of itself ○​ 2) Each individual recognizes each other’s autonomy ​ Opposite: Slavery (slaves need their master’s permission to authorize claims) ○​ 3) Individuals are free insofar as they recognize the limits to which they can advance their claims (views of “the good”) ​ So one person’s freedom can’t limit other people’s freedom (?) ​ Ex.) Someone’s view of “the good” can’t require killing, since that would violate justice ​ Rawl’s Quote #8: The Idea of a Well-ordered Society ○​ Well-ordered society: ​ 1) It’s a society where everyone accepts (and knows that everyone else accepts) the exact same principles of justice (BUT Rawls will change his mind about this later) ​ Ex.) A religious order where everyone has the same beliefs ​ Ex.) A society where everyone agrees that politics shouldn’t interfere with economics ​ 2) The basic structure is publicly known to satisfy these principles  ​ People need to know what the principles that underlie institutions are ​ 3) People have a normally effective sense of justice and so they can generally comply with society’s demands (from an internal point of view; because they think it’s the right thing to do) ​ Rawl’s Quote #9: Reasonable Pluralism ○​ Simple pluralism (“pluralism as such”) ≠ reasonable pluralism ​ Rawl’s Quote #11: ○​ Political Consensus of Justice: There needs to be a consensus that runs through all reasonable conceptions of justice (there has to be overlapping consensuses) ​ Rawl’s Quote #12: First Definition of Political Liberalism ○​ 3 Conditions For Political Liberalism (for society to be a fair system of cooperation between equal and reasonable citizens): ​ 1) Society is regulated by a political conception of justice (as opposed to a comprehensive, non-political conception of justice) ​ Ex.) Some people might say everyone needs to have the right view of justice and we need to disregard those who don’t ​ 2) The political conception of justice needs to have an overlapping consensus from all reasonable conceptions of justice (enables people from different views of political justice to accept it) ​ Ex.) Italian Constitution: Formed by Catholics, Marxists, and liberals who found common ground and had a consensus ​ BUT there can be some outliers (“weirdos” / extremists) ​ 3) Public discussions need to be conducted by reasoning from the point of view of what is common ground ​ Rawl’s Quote #13: Reasonable Actors ○​ You have to start from a reasonable conception of justice ○​ What does “reasonable” mean? ​ Rawls never gives an abstract definition of “reasonable” ​ Reasonable = enacted by a “reasonable” actor ​ Doesn’t have to be an individual; could be a collective actor like an institution or state ○​ Reasonable VS Rational Actors ​ Rational Actors: “Freeriders” who try to maximize their benefit & are willing to cheat (break rules) if they aren’t caught / minimizing their risks (basically being hypocrites)  ​ Ex.) Not participating in a strike because cuz “why sacrifice my salary when I can just do nothing and reap the benefits?” ​ Reasonable Actors: ​ 1) Willing to propose rules of fair terms of cooperation AND abide by them on the condition that others also abide by them ○​ Being prepared NOT to be “freeriders” (not to cheat) ○​ BUT not totally altruistic (they won’t abide if other people don’t) ​ 2) Recognizing and respecting judgements ​ Unreasonable Actors: ​ Unready to propose / accept any rules & are willing to violate all rules when they can get away with it ​ Rawl’s Quote #14: Rational Actors ○​ They think in terms of what benefits them (or others under their care) VS what doesn’t ○​ NOT necessarily the same as “selfish actors” ​ Ex.) Parents who are willing to cheat to benefit their children (not directly for their own good) ○​ They want the advantage WITHOUT the cost Rawls Chapter 2 ​ Rawl’s Quote #15: The Reasonable VS the Rational ○​ Reasonable Actors: Understand that other people who think differently may have good reasons ​ Includes ONLY the aspects of morality that have to do with equitable cooperation ​ NOT derivable from the rational ​ Footnote 7: Targets the Hobbesian view ○​ It’s NOT always rational to be reasonable ​ Ex.) It’s rational NOT to join a strike and just reap the benefits later on without the risk of being punished ​ The reasonable is PUBLIC in the sense that the rational is not ​ There NEEDS to be publicity (reasonable actors rely on knowing that others will comply with the rules as well) ○​ BUT rational actors usually have secret goals ​ The reasonable recognize the burdens of judgement: ​ Burdens of judgement = “causal factors” that explain why in the absence of oppression, reasonable disagreement and  reasonable pluralism (diversity of opinions) are the normal outcomes to be expected ○​ Plurality of opinions = the natural fruit of the free exercise of reason (NOT an inconvenience that society has to get rid of) ○​ Oppression ⇒ uniformity ​ BUT no oppression ⇒ pluralism (diversity of opinions) ​ The 6 Burdens of Judgement (Causal Factors): ○​ 1) Complexity of evidence ​ Evidence on a certain case can be conflicting or complex (hard to evaluate) ​ Even knowledgeable people can come to different conclusions ○​ 2) Disagreements about the WEIGHT of evidence ​ Can cause them to arrive at different conclusions as well ​ Ex.) Secularism ​ 3 definitions of secularism: ○​ 1) [ ] ○​ 2) Importance of religion in the lives of people (with importance to society) ○​ 3) [ ] ​ Based on these definitions, US society can be seen as either less secular (1&3) or just as secular as France (2) ○​ 3) Indeterminacy (all concepts are vague and rely on cases) ⇒ ​ Ex.) Rights: There’s multiple views on rights ​ 1) Rights as things that are respected even if they go against the common interest of society (they DON’T have utility) ​ 2) Rights = “the good life” (they have utility) ○​ 4) Total experiences (views? attitudes?) differ across people ​ Ex.) In the US, getting 51% majority in the Senate = woohoo (victory)! BUT Europe, 51%  majority = “Hmm, where did we go wrong??” (amputated victory) ○​ 5) [ ] ○​ 6) The term “valuable” is so broad that NO society can encompass all of it (society requires CHOOSING / privileging some aspects) ​ Ex.) Choosing freedom over other aspects ○​ Rational Actors: Believe that everyone who thinks differently must be mistaken ​ The political conception of justice is designed for reasonable actors ​ BUT you CAN’T only have the reasonable because otherwise, you’d have no grasp on any idea of purpose ○​ Purpose is anchored to the notion of “the good” ​ People do something for the sake of something ​ Cooperation needs to be organized in a fair way in view of OBTAINING something GOOD (ex. justice, security, liberty, etc.) 13 / 11 / 2024 Lecture Intro: ​ The world is populated by actors who are rational but NOT reasonable ​ To be reasonable, you need to accept that others might have reasons that are just as good and well-grounded as yours ○​ Rawls think that democracy CAN’T prosper when people delegitimize the opponent as an outcast ○​ Democracy & liberal order = an order where people make compromises and renounce some aspects of their “whole truth” in order to get stability ​ This is a RATIONAL stance (but NOT reasonable) Stability as Such (FACT of society) VS Stability for the Right Reasons ​ You’ll never find this distinction in Kelsen or Schmitt’s works (you’ll either have stability or not have it) ​ There’s a need for BOTH rational and reasonable individuals in society ​ The regulations that form the texture of social life are produced by separated powers ○​ Some are passed by the legislative (parliament) ○​ Some are passed by the executive (Italy: “decrees”; US: “executive orders”) ○​ Some are rulings passed by the judicial (like US Supreme Court) ​ BUT not all of these regulations are entirely just  ○​ As citizens of a decent, well-ordered liberal democratic order, we can still face exercise of the separated powers that we deeply regard as unjust / illegitimate, BUT nonetheless, it’s law Justice VS Legitimacy: ​ Extreme position (St. Thomas Aquinas): “Lex iniusta non est lex” ​ Middle ground position: “This is unjust, but still, it’s the law” ​ There needs to be a criterion that grounds the justness of justice ​ Question: What makes that obligation an actual obligation instead of just an act of force backed by sanctions? ○​ Liberal Principle of Legitimacy Rawl’s Quote #21 - Liberal Principle of Legitimacy: ​ Legitimacy of political power / a law (Rawl’s view): Requires a constitution with essentials (not necessarily details) that ALL citizens can reasonably be expected to endorse based on principles and ideals that they can accept in their common human reason ○​ The constitution’s basics need to be acceptable (seen as just) by ALL citizens regardless of gender, ethnicity, religion, etc. ○​ NOT because they’re forced to accept it ​ OPPOSITE (Rousseau’s) view: MAJORITY rule (non-constitutional democracy) ○​ Legitimacy = comes from acceptance by the majority OR follows what most people want ○​ Ex.) In the US, 45% of the public believes that the US should declare itself as a Christian state ​ 1/4 of that 45% believes that in case of conflict, the Bible should be referred to instead of laws ​ Locke’s view: Consent of the governed ○​ Legitimacy comes from the consent of the governed ○​ Rawl’s counter-argument: RATIONAL IGNORANCE (consent is emotional, NOT rational) ​ People don’t want to educate themselves before voting since they know they have very little influence on the voting results ​ So they vote emotionally, not rationally ​ Opinions are now formed through anonymous processes of communication (ex. social media) ​ Now, political leaders need to have rapid reactions on the internet (ex. social media posts & tweets)  ​ There’s less time to consult others & form reasonable opinions ○​ VERTICALIZES the process ○​ Rawls says we’ll NEVER have the total consent of the governed ​ There’ll always be dissenters who think the law is unjust ​ Prof’s View: Legitimation by Constitution: ○​ Legitimacy comes from CONSTITUTIONALITY ○​ The Constitutional Court (CC) acts as an impartial referee (like one in a sports game with the ultimate authority to judge if acts were in accordance with the constitution or not) Rawl’s Quote #22 - 5 Features of Public Reason: ​ 1) Public reason = a form of reasoning that abstains from using any premises not shared by our interlocutor ○​ You use public reason when you reason from an existing point of view that is COMMONLY accepted / from shared principles ​ NOT reasoning from your own, completely new point of view ​ Only crazy people have those ​ There’s NO private reasons (just as there are no private languages) ○​ Public reason is based on what is shared (what’s written down in meeting notes / “the minutes of the meeting”) ​ 2) Public reason has its own jurisdictional area: Concerning questions about the basic structure & constitutional essentials of a democratic society ○​ Its domain is the public domain ○​ It should regulate the decisions in the public forum ​ 3) Public reason ISN’T the only legitimate source of reasoning in the public sphere of a democratic society. There are 3 other forms of public discourse: ○​ 1) Declaration ○​ 2) Conjecture ○​ 3) Witnessing ​ 4) Public reason finds its locus standi (place of standing) in the “public forum”, NOT the “background culture” ○​ Public reasoning can be used as long as divisive concepts aren’t written down in the law ​ 5) Exclusive & Inclusive conceptions of public reason 15 / 11 / 2024 Lecture Intro (Review of Chapter 6): ​ What makes a law a binding (legitimate) law?  ○​ It needs to follow a constitution whose conception of justice that includes an “overlapping consensus” all the different major political conceptions in the nation ​ Political justice = NOT just a view of justice that everyone in the country can agree on ​ NOT a political compromise that’s drawn up at the convergence point ○​ Rawls says (pages 39 & 40) that the political conception of justice needs to be capable of: ​ 1) Freestanding validation (philosophically justifiable & sensible view of justice) ​ Rawl’s position: What rational people would choose in the original position ​ It can be the convergence point of an overlapping consensus of several moral views (but that’s not all of it) Rawl’s Quote #23 / Section 6 of Chapter 6: ​ Constituent power = the power to set the rules of a game (this case = the rules of a political & legal game) ○​ People tend to depict constituent power as starting from scratch ○​ Setting up rules according to its totally free will (with little to no constraints) ​ 5 Principles of Rawl’s Constitutionalism: ○​ 1) The distinction between constituent power and ordinary / constituted power (taken from Locke) ​ BUT Locke thinks that constituent power is a power that operates UNDER the law ​ It’s NATURAL LAW ○​ But you can’t have natural rights as the foundation of a legal system (many thinkers don’t believe in natural rights) ​ [ ] said that natural rights is “nonsense upon stilts” ​ Rawls says voters have constituted power (NOT constituent power) ○​ 2) The distinction between higher and ordinary law ​ Higher law = the expression of the people’s constituent power (basically what’s written in the constitution); has the authority of “We the People” ​ Ordinary law = has the expression & authority of the ordinary power of Congress & the electorate  ​ Rawls makes a clear distinction between “the people” and “the voters” ○​ The people = the author of the constitution (includes MULTIPLE generations) ○​ The voters = a constituted power ○​ 3) The democratic constitution (written OR unwritten) reflect, in the language of higher law, “the political ideal of the people to govern itself in a certain way” ​ Instrumental view of the constitution: It’s an instrument of the government for preventing conflict from endangering society ​ Rawl’s view: The constitution is the translation of a higher divine law into political and legal language ​ It translates a vague feeling of what distinguishes us into articles of the constitution ​ Ex.) Distinctiveness of the Italian constitution: ○​ Rejects war as an instrument for resolving conflicts ○​ 4) “In a democratically ratified constitution with a bill of rights”, the citizens establish certain constitutional essentials ​ Ex.) The republic is one and indivisible ○​ 5) Constitutional democracy = a regime in which no separate branch of constituted power wields ultimate authority. Rejecting the opposite views of “parliamentary supremacy” and “judicial supremacy”, Rawls states that “ultimate power is held by the three branches in a duly specified relation with one another with each responsible to the people” ​ Parliamentary supremacy: ​ Parliament = the “voice of the people” ○​ Electorate gets glorified as “the people”; “the will of the electorate” = “the will of the people” ​ Judicial supremacy: ​ What the constitution says = what the court says its says ​ Rawl’s argument: Ultimate power is held by all of the 3 branches ​ It’s not fit to think that one branch has the ultimate power (the last word) ​ The ultimate power is duly held by the interplay of the 3 branches over time ​ The constitution = what allows the court to interpret the constitution ○​ If the people DON’T agree with the court’s interpretation, there has to be leeway to correct the  court’s decision through the activation of other branches (like amendments via acts of parliament) ○​ So the parliament should be able to override the court’s decisions by amending the constitution (to negate the court’s decision) ​ Ex.) 14th Amendment’s overturning of the Dred Scott decision ○​ BUT the supreme court can also invalidate amendments (in some countries) ​ Ex.) Indian supreme court Rawls’s Quote #23bis ​ (same as 5) from the last quote) ○​ The legality of law comes from the cogency of the act of law / source of law ​ Was it an abuse of power or not? ​ It has to be justice-tracking ​ Not that there can’t be unjust laws, BUT ○​ Rawls contradicts Kelsen’s point of view ​ They BOTH agree that certain matters are outside the democratic arena ​ You can’t have a referendum establishing a national religion ○​ Even though there’s a vote ​ Public Reason: ​ Kelsen: Public reason = finding a compromise when there’s a conflict ○​ This is the same for negotiating any issue ​ Whatever is agreed to is fine ○​ Democracy can be troublesome, though ​ Ex.) When Pilate asked the mob whether to free Jesus or Barabbas ​ Rawls: Public reason = Arguing from principles that are shared with the reasonable hope of reaching binding conclusions that are also shared ○​ Modus vivendi ​ There’s a 3rd term of overlapping consensus that’s different from a compromise and a normative [ ] ​ The Constitution: ​ Kelsen: The constitution was made by the people delegating their constitution-making enterprise to representatives  ​ The individual & the social contract ​ Rousseau: His individual = the most demanding individual ○​ The constitution should leave the individual as free as before ○​ Not giving up anything in exchange ​ Locke & Hobbes: ○​ People need to give some liberties & freedoms up in exchange for adjudication of conflicts / protection by the sovereign ​ Kelsen: ○​ We discover what the Grundnorm is retrospectively, BUT no one ever chose it ​ Legal theorists reconstruct with the basic norm is ​ BUT the Grundnorm is groundless Week 11 18 / 11 / 2024 Comparing Rawls and Schmitt: Agreements: ​ 1) Constituent Power: They both talk about the constituent power while Kelsen just dismisses it (since it’s outside of the realm of law) ○​ Amending power is (somewhat) CONSTITUENT POWER ​ It has to be (somewhat) above the constitution to be able to change it ​ BUT it can’t completely restart the constitution ​ 2) Legal validity: They also distrust purely procedural (formal) approaches to legal validity ○​ They agree that substance MATTERS ​ Ex.) The Supreme Court of India struck down amendments that were going to violate the “basic structure” of the constitution ​ “Basic structure” of India’s constitution included (regardless of whether there: ○​ The supremacy of the constitution ○​ The form of government ○​ The secular character of the constitution ○​ The dignity of the people  ○​ The indivisibility of the nation ○​ Etc. ​ 3) The Political / Overlapping Consensus: They agree that the constitution draws a line between those who are in and those who are out (friends and enemies) ○​ They both agree that there’s an overlapping consensus that allows the legal order to be formed ○​ BUT there are also “outliers” who don’t agree with the overlapping consensus and must be contained (prevented from causing harm) Disagreements: ​ Political Alignment: ○​ Schmitt: Nazi (Fascist) ○​ Rawls: Liberal democrat ​ 1) The “political” (form - consensus on WHAT?) ⇐ “the political” differentiates between insiders and outsiders (outliers) ○​ Schmitt: Consensus = always substantive & thick; it brings the citizens to share a cultural artifact (to identify themselves with a philosophical doctrine) that existentially expresses the inner sense of self of that group of insiders ​ It could be a popular ideology ​ Ex.) “Here we’re all Marxists” ​ It could also be a politicized religious message ​ Ex.) “We’re all Sharia” ​ The political = the Volksgeist (the spirit / identity) of the people ​ It also comes up in pop culture (on social media, etc.) ○​ Ex.) Posts about what it means to be a true American ​ The constitution needs to express the Volksgeist ○​ Rawls: Consensus = a THIN (formal) basic structure (political conception of justice, fundamental rights, constitutional essentials, etc.) ​ “Thin” means it allows for more deviation ​ The constitution DOESN’T fully represent the spirit of the nation ​ Overlapping consensus CAN’T be one philosophical / religious construct that conveys the whole truth ​ 2) The “political” (domain) ○​ Schmitt: Ubiquitous domain (could arise in ANY area of society and disrupt the fabric of society) ​ Every area of society could be political (polarized) ​ Ex.) Even medical policies can be political  ​ The state is supposed to act like a lid to keep the “political” from erupting and disrupting the fabric of society ○​ Rawls: Circumscribed domain (could be political virtues, the basic structure, the political conception of justice, rights, liberties, etc.) ​ The “political” is distinct from associations ​ It’s distinct from “the personal” and “the familial” (it’s distinct from the affectionate areas of society) ​ The “political” is just needed to ​ 3) The “political” (nature) ○​ Schmitt: The “political” is STATIC (the distinction between insiders and outsiders CAN’T change) ​ Changing your mind doesn’t count ○​ Constitutional consensus = when we agree on rights without agreeing on the implications of rights ​ You agree on the rights but not the consequences ​ Ex.) US Constitution: Equal protection of the laws ○​ The US supreme court upheld racial segregation (in the past) ​ “Separate but equal” ○​ Rawls: The “political” has an intrinsic dynamic (the distinction between insiders and outsiders CAN change) ​ What drives the deepening of consensus is the need to look for common ground to get a majority (speaking their language, addressing their worries, talking to them, etc.) ​ There’s an internal tension toward enlarging consensus ​ Overlapping consensus = agreeing on rights AND their consequences ​ 4) Reasonableness ○​ Schmitt: Some people praise him for being reasonable and criticize Rawls for being liberal ○​ Rawls: “Reasonableness” is not simply a liberal virtue (it’s a basic concept that needs to be used in the constitution making process) ​ Overlapping consensus = what reasonable people agree on ​ “Reasonableness” ISN’T intrinsically liberal ​ It includes things that no liberals can accept, too ​ 5) Containment ○​ Schmitt: It’s the normal way of handling outliers ○​ Rawls: It’s a last resort ​ There’s no strict distinction between “reasonable” and unreasonable” (allows degrees of reasonableness) ​ 6) Stability ○​ Schmitt: Success in stabilizing the political is self-validating ​ The “friends” manage to resist the enemy are the ones who create stability ​ Kelsen: Legal self-validation ​ Schmitt: Political self-validation (similar to Austin’s ideas) ​ Schmitt: The sovereign has managed to remain the sovereign (hasn’t been toppled), so what he says is still the law ​ Austin: The sovereign is just there as a fact ​ BUT neither Kelsen or Schmitt distinguish stability from “stability for the right reasons” ​ Schmitt’s framework is a victim of its own subjectivism ​ If it is a sovereign who draws a line between friends and enemies and establishes the political, what prevents a NEW (more powerful) sovereign from doing the same thing? ○​ Rawls: Stability VS “stability for the right reasons” ​ “The right reasons” = the actual endorsement of an overlapping consensus among reasonable people, converging on limited things (like the political conception of justice, rights and liberties, etc.) ​ Ex.) Simple stability (20 year-long Fascist regime) ISN’T necessarily for the right reasons ○​ There wasn’t an overlapping consensus ​ Responds to the question, “How is it possible to have a stable society between people with different standpoints” ​ 7) Constituent power (power to shape the soul of the constitution) ○​ Schmitt: Constituent power = ABOVE law (it’s the SOURCE of law) ​ There’s a sovereign who decides on the exception ​ Similar to Hobbes’s view: the constituent power (sovereign) is the source of the law and ISN’T subject to the law ​ Constituent power = lawmaking without being based on law ​ Ex.) Climate protection policies might not be in line with democracy (it might not be able to gain an overlapping consensus) ○​ So there might need to be an authority that’s not based on the law to pass climate protection laws ​ The state presupposes the political ​ The division between those who want to solve the problem AND those who don’t comes before the law ​ The administration of the political rests on this division ○​ Rawls: Constituent power = UNDER law (subject ot law) ​ [Under law ≠ under THE law] (???) ​ Which law? ​ Locke: Natural rights ○​ Aligns with comprehensive (NOT political) liberalism) ​ Rawls: The MOST reasonable view of justice for us (us = the people who are about to create a legal order); it’s a normative construct that includes the rational AND the reasonable ○​ NOT natural law (that would go against political liberalism) ○​ ALSO NOT justice as fairness (Footnote 7 of lecture 2- page 53) ​ Plato’s Allegory of the Cave: ​ Summary: ○​ People look at a cave wall and see only shadows from candlelight ○​ One person goes outside and realizes that he had just been seeing shadows from real objects ​ The sun is the source of light that allows us to see things as they are (not just as shadows) ○​ He goes back and tells everyone else but no one believes him ​ The person who went out of the cave represents the epistemic claim of knowing “the truth” ​ Something is right because it reflects something true ​ Applying the allegory: ○​ Suppose a bunch of prisoners (not just one) went out and prepared themselves to rule the cave based on the truth they gained ○​ They would have overlapping perceptions (BUT not exactly the same perceptions) of the truth ○​ They need to agree on one report of what they saw and leave their disagreements for future elaboration ​ BUT what if they couldn’t find one overlapping report? ​ They’d agree that the coercive power of law can be used legitimately if it’s backed on shared (overlapping) perceptions ○​ What are they doing by reasoning like this?  ​ Rawls’s answer: Public reasoning ​ Constituent power acts legitimately when it operates in accordance with the “most reasonable” view of justice ​ 2 things that make something most reasonable: ○​ 1) Its congruence with our deeper understanding of ourselves ○​ 2) Our aspirations ​ Prevents 1) from becoming the Volksgeist ​ Aspirations = reflections about how things SHOULD be ​ The legislator should propose laws that are “fit for us” without reducing it to “the law we want” ​ The normativity that constituent power is under ISN’T detached, but brings the 2 worlds (understanding of ourselves + our aspirations) together 20 / 11 / 2024 Ginevra’s Question: Pluralism VS Reasonable Pluralism? ​ Reasonable Pluralism: The existence of many different reasonable views (like Catholicism, liberalism, social democratism, etc.) ○​ What makes a concept reasonable? ​ The fact that it could be endorsed by a reasonable person ​ Reasonable person = someone who is willing to propose, respect, AND ABIDE by reasonable rules (and “burdens of judgement) given that others also abide by them ​ Pluralism: The existence of many different views that don’t necessarily have to be reasonable (could be Nazism, Stalinism, Maoism, etc.) Rawls VS Locke VS Utilitarian Constituent Power: ​ Rawls: Under law ○​ The law still needs to be made ○​ What constitutes what is determine by the minutes of the meetings of the constitutional assembly ​ Ex.) Italy: Labor constitutes property ○​ The constituent power is bounded by reason (of interpreting a certain way of being)  ​ Ex.) They can’t just write, “Italy is a democratic republic founded on leisure” even if they somehow gain a majority for that ​ Locke: Under the law (natural law) ○​ Natural rights ○​ Laws can’t violate natural rights ​ Utilitarians (Bentham, Austin, Hume): Under utility ○​ Utility is the norm ○​ Natural rights are beneficial so long as they lead to utility (greatest benefit for the greatest number of people) Constituent Power and the People: The People: ​ Most authors (Rose-Ackerman, Habermas, etc.) take for granted that there’s “a people” who are self-governing ​ Some authors think that “the people” is a fictional concept; “the people” are established by the law ○​ BUT “we the people” is the opening phrase of the US Constitution and 52 other constitutions in the world ○​ Italian Constitution Article 1: “Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the constitution” ○​ Most European constitutions say that sovereignty belongs to the people ​ Over 90 constitutions worldwide mention it ​ So it seems like “the people” is a real concept ​ Plato: The person is based on reason ​ Hobbes: The person is based on passion (?) Rawls’s Concept of the People: ​ He never gives a political conception of the people ​ The people = a special human grouping that is set apart from other human groups by 2 basic capacities that mirror the moral power of a person: ○​ 1) The capacity for collective political action (at least in the sense that some political collective action can be imputed to it) ​ Politics = the practice of setting priorities among collective goals that can’t all be achieved due to scarcity of resources ​ The people at least have the capacity to decide on priorities ○​ 2) The capacity for self-regulating its own political action through constitutive rule (like the rules in