Philosophy & Social Criticism

Alessandro Ferrara’s argument in Sovereignty Across Generations takes shape within a broadly Rawlsian ‘political liberal’ framework of thought about moral underpinnings for a constitutional-democratic practice of politics. Where, exactly (I ask here), is the place within that thought for concern about occurrences in a country’s past of popular constituent power? If the country’s currently established constitutional regime is fully democratic (and is otherwise morally in order) by whatever operational measures you and I might think to apply, why should we or anyone care about how or by whose authority the regime got set up and running in the first place? By Ferrara’s Rawls-inspired teaching in Sovereignty Across Generations, the answer to that question will come from a certain conception of political legitimacy. But then a potent objection comes from those who press the question of how to reconcile a democratic conception of legitimacy with a subjection of current (say) deliberative-majoritarian rule to antecedently imposed terms of constraint. Under Rawlsian and Ferrarian stimulus, I look into the possible relevance here of H.L.A. Hart’s proposition of a complementarity or fusion, in our concept of law, of an ‘internal’ with an ‘external’ perspective that those involved may adopt toward the coercive social practice in question. Underlying the Rawlsian constitutional proposition on legitimacy, I end by suggesting, is the thought that, in order for a person to live in freedom under law, that person will have to sustain simultaneously an internal attitude of bonding to their society’s own ongoing project of legality and an external attitude of critical judgemental of that project as reasonably and rationally acceptable to free and equal citizens in conditions of reasonable pluralism.

I am intrigued by the use of the words ‘embedded’ and ‘capacity’ as they appear in what I take to be the strategy of Sovereignty Across Generations where these words are used to make what is evidently implicit within John Rawls’s political liberalism explicit, that is, a normative account of ‘the justice and legitimacy of political orders’. If I am correct about this strategy, my question is quite simple: is something lost in translation in this transition from Rawls’s more historical to this normative orientation? I conclude with a positive comment on the potential that a theory of temporality has for the development of a notion of political self-constitution as it pertains to the transition from ethnos to demos.

The Rawlsian conception of constituent power in Alessandro Ferrara’s Sovereignty Across Generations is burdened by a deep contradiction that renders the central argument in the book highly questionable. On the one hand, Rawls is (correctly in my view) presented as the thinker that confronted contemporary political theory with the problem of divisive pluralism. On the other hand, Rawls is also presented (incorrectly in my view) as the thinker who then suddenly found a solution for this divisive pluralism in the ‘common values’ that all the members of these divisively pluralist societies share ‘unproblematically’. The combination of these two moves leaves one with the sense that Rawls rather frivolously put up the problem of divisive pluralism like a strawman that he could shoot down again without much ado. This article proposes a different reading of Rawls that considers him a serious thinker who did not amuse himself and his readers with strawman-problems. For this reading of Rawls, guidance is drawn from Hans Kelsen, the very thinker whom Sovereignty Across Generations casually dismisses for failing to grasp or appreciate the ‘common values’ that pluralist societies share so ‘unproblematically’.

‘Sovereignty’, Arendt says, ‘is contradictory to’ the human condition. It is not, in any event, the kind of thing that can be shared across generations. Subsequent generations lack sovereignty to the precise degree that they are bound by the decisions of their predecessors. It is no answer to say that contemporary citizens participate in the sovereignty of a whole, transgenerational people. To paraphrase de Tocqueville, later generations are not free because they are not entirely equal, and they are not equal because they are not entirely free. Where ‘sovereignty’ is a metaphysical concept that transcends time, recognition is an act of the imagination that extends empathy diachronically in both directions. An earlier generation treats its successors with recognition and respect by bequeathing the best system it can manage and entrusting later generations to exercise the same freedom that it enjoyed. Democratic law can exist across generations only through negation. Later citizens may accept as valid the law made by their predecessors. But, in doing so, they implicitly affirm their right to alter, amend, or abolish what came before. Only by freely affirming the choices of their predecessors can current citizens participate in something approaching freedom.

In Sovereignty across Generations, Ferrara attempts a dual feat. He demonstrates that political liberalism needs a nuanced doctrine of constituent power to be brought in line with traditional democratic concerns. At the same time, he argues that political liberalism is capable of making constituent power safe for democracy, in reining in its unruly and unbound character. By distinguishing between ‘the people’ and the electorate, Ferrara develops a transtemporal conception of the constituent subject, allowing moderate transformation but in effect binding all future time-slices of the people. In my comment, I address two issues with this. First, I ask how such accounts deal with the fact of immigration. It is not clear whether a historically indexed constituent subject has the normative power to bind new citizens arriving with quite distinct historical baggage. A second question is whether Ferrara’s Rawlsian-Michelmanian take is different from, and superior to, the Habermasian account of constituent power, especially to Habermas’s constructive views on supranational constitution-making. Both questions address whether Ferrara’s historically indexed account is sufficiently open to future developments.

What recourse do democrats have if a present generation uses democratic legal procedures to abrogate constitutional essentials, dissolving past commitments and denying future generations the fundamental freedoms and equalities it currently enjoys? In Sovereignty across Generations, Alessandro Ferrara responds to this issue by re-examining key concepts related to democracy, including sovereignty, constituent power, liberalism and constitutionalism. This review analyses Ferrara’s theory of ‘sequential sovereignty’, which reconceives ‘the people’ as a body spanning generations and grounds it in the ideal of vertical reciprocity. Ferrara provides a sound normative framework for understanding transgenerational obligations and the unamendability of constitutional essentials. However, this review also identifies some limits to Ferrara’s approach: his focus on implied unamendability risks creating a dissonance between legality and legitimacy, and his reluctance to fully engage with ‘containment’ creates a blind spot in democracy’s self-defence. The review concludes that explicit unamendability and containment are consistent with Ferrara’s theory of sequential sovereignty and provide a better safeguard for democracy across generations.

The paper comprehensively responds to critical comments by F. Michelman, D. Rasmussen, J. van der Walt, S. Winter, P. Niesen, and B. Schupmann on Sovereignty Across Generations. Constituent Power and Political Liberalism. The themes debated include: whether Rawls’s dualist view of democracy, including his idea of legitimation by constitution, intimates or calls for a concretistic view of a subject of constituent power as creator of the constitutional order (Michelman); the relation of the normative to the historical in political liberalism and whether Plato’s allegory of the cave is helpful for elucidating the meaning of the ‘most reasonable for us’ (Rasmussen); Rawls’s stance vis-à-vis the unbridgeable divisiveness of pluralism, the virtuality of overlapping consensus, and the dissolution of constituent power into a panoply of constituent powers (Van der Walt); democratic sequential sovereignty contrasted with serial sovereignty, the sensibleness of distinguishing legal principles from the cognitive assumptions undergirding their application, the justification of sequential sovereignty, and the nexus of vertical reciprocity and freedom across generations (Winter); the implications of the gap between ‘the people’ and the population for constitutional legitimacy, and the distinct prospects for a Habermasian and a political liberal conception of constituent power to be applicable at a supranational level (Niesen); the cogency and effectiveness of ‘implicit unamendability’ for safeguarding constitutional essentials compared with entrenching them via eternity clauses, the extent to which measures of militant democracy are compatible with political liberalism (Schupmann).

For all of Brandom’s self-professed allegiance to Hegel, there is something perplexing about his fixation on semantic and epistemological issues at the expense of the type of social and political considerations that are at the heart of Hegel’s system. However, and although Brandom himself concedes that his work is circumscribed to a number of highly specialized and technical issues in the philosophy of mind and language, the truth is that his views often radiate to other philosophical fields, if not always explicitly. My claim in this article is that at the heart of Brandom’s semantic theory, there are elements of a critical project, one that offers a normative standpoint to judge and improve our current practices. Moreover, these progressive features of Brandom’s normative pragmatics should be seen in the light of his adoption of a series of hermeneutic themes, ultimately culminating in his recollective conception of rationality and his edifying view of semantics.

In this research, I advance an interpretation of Machiavelli’s philosophy for constitutional change. I suggest that Machiavelli’s reading of Polybius’s theory of anacyclosis (circular theory of political change) opens up a new vision for political action and historical transformation. Machiavelli subjects the inherited metaphysical conception of constitutional change to a secular view, one characterized by virtue of action and uncertainty of outcomes (Virtù/Fortuna), social divisions (nobility/plebeians), and political ideals (Republicanism). The interpretive suggestion put forth here is that Machiavelli’s innovation of the ancient theory of constitutional changes can be appreciated in terms of an oscillating pendulum rather than as a cycle, thereby fictitiously referring to the pendulum as an instrument mimicking the ‘truth of the matter’ (verità effettuale) of a perpetual shift between principalities and republics rather than as an esoteric rite to foresee the future.

This article examines the different approaches to the relation between law, state and economy in the works of Hans Kelsen, Carl Schmitt and Evgeny Pashukanis. It begins with Kelsen’s depiction of law as a dynamic and ‘self-regulating’ system of norms, founded on his rejection of ‘dualist’ separations of state and law, before turning to Schmitt and Pashukanis’s respective critiques. For all their differences, both agree Kelsen ignores the historical basis of the law – for Schmitt, the sovereign power of ‘the political’, for Pashukanis, the social relations of commodity exchange. The article responds to these criticisms in a most un-Kelsenian manner, drawing upon historical sociological literature on early modern state formation to cast doubt on both Schmitt and Pashukanis’s historical accounts. It argues that the forms of political power and commodity exchange upon which Schmitt and Pashukanis’s theories rely were historically specific possibilities opened up by the same process of generalisation and depersonalisation of power relations that allowed for an autonomous ‘public’ system of legal norms. Thus, rather than the fixed causal ground for the development of modern law, ‘the political’ and exchange between equals exist in a relation of ‘difference-in-unity’ with the law. The article concludes that Kelsen’s notion of the Grundnorm is best explained as an attempt to capture the new possibilities and responsibilities opened up a normative system whose ultimate justification now lies only within itself.

Looking at current theoretical approaches to democracy and the city, this article deepens our understanding of the democratic relevance of cities. It suggests four ideals of the democratic city which are labelled the city as a school of democracy, the urban cosmopolis, the city as a commons and the sustainable city. Tracing commonalities between the ideals, while avoiding their pitfalls, the article develops an argument for understanding the democratic promise of the city by linking John Dewey’s concept of democratic action as experimental problem-solving to the spatiality of the city. Building on Dewey, the article introduces the concept of urban experimentalism and points out prospects for a spatialized understanding of democracy and pathways for democratizing urban space.