Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations. This is what Alexander Somek argues is the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world.
This introductory series of books provides concise studies of the philosophical foundations of law, of perennial topics in the philosophy of law, and of important and opposing schools of thought. The series is aimed principally at students in philosophy, law, and political science"--
This innovative study examines the authority constituting the European Union. It claims that the type of power constituting a transnational regime transcends traditional forms of constitutional legality. It argues that the European constitutional project is out of step with the normative make-up of such a regime. It is to be feared, indeed, that the adoption of a Constitution for Europe would create a smokescreen obscuring a new and disturbing reality. Drawing on the ancient tradition of linking different types of political power with the composition of the citizen's soul, the book explains that a transnational regime is based on an understanding of citizenship that is different from that underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon the larger society to itself and pursue their good in the private sphere. In place of trust and reliance in their own power to bring about change through common action, they hope to benefit from entrusting "problem-solving" to international networks of expertise. Essentially, citizens of this kind exhibit a strong commitment to individualism. The book shows how individualism is reflected in the regulatory authority that the Union claims for itself, in particular as regards the regulation of the internal market.
This book provides a selective and somewhat cheeky account of prominent positions in legal theory, such as American legal realism, modern legal positivism, sociological systems theory, institutionalism and critical legal studies. It presents a relational approach to law and a new perspective on legal sources. The book explores topics of legal theory in a playful manner. It is written and composed in a way that refutes the widespread prejudice that legal theory is a dreary subject, with a cast of characters that occasionally interact in order to illustrate the claims of the book. Legal experts claim to know what the law is. Legal theory-or jurisprudence-explores whether such claims are warranted. The discipline first emerged at the turn of the 20th century, when the self-confidence of both legal scholarship and judicial craftsmanship became severely shattered, but the crisis continues to this day.
In an age of widespread cutbacks on social spending, the prospects of social policy generally appear to be grim. If noticeable progress has been recently made in the European Union, then it is in regard to rooting out discrimination. Indeed, anti-discrimination law and policy appears to be the one sphere of social policy whose success is causally connected to the European Union. But how successful can anti-discrimination law be? This book uses legal analysis in order to expose the intrinsic shortcomings of common approaches. Anti-discrimination law fails to provide adequate legal guidance and therefore invites constant supplementation by pedagogical projects of social engineering. This book offers a genuinely leftist critique on anti-discrimination law, and concludes with a discussion of alternative models of solidarity in the Union.
This book presents an original picture of the legitimacy underlying the European Union. Drawing on ancient and modern political philosophy, the book argues that the transnational regime is rooted in an individualist social and intellectual culture, and depends on an apolitical, isolated citizenship.
In an age of widespread cutbacks on social spending, the prospects of social policy generally appear to be grim. If noticeable progress has been recently made in the European Union, then it is in regard to rooting out discrimination. Indeed, anti-discrimination law and policy appears to be the one sphere of social policy whose success is causally connected to the European Union. But how successful can anti-discrimination law be? This book uses legal analysis in order to expose the intrinsic shortcomings of common approaches. Anti-discrimination law fails to provide adequate legal guidance and therefore invites constant supplementation by pedagogical projects of social engineering. This book offers a genuinely leftist critique on anti-discrimination law, and concludes with a discussion of alternative models of solidarity in the Union.
What is law? The usual answer is that the law is a system of norms. But this answer gives us at best half of the story. The law is a way of relating to one another. We do not do this as lovers or friends and not as people who are interested in obtaining guidance from moral insight. In a legal context, we are cast as 'character masks' (Marx), for example, as 'buyer' and 'seller' or 'landlord' and 'tenant'. We expect to have our claims respected simply because the law has given us rights. We do not want to give any other reason for our behavior than the fact that we have a legal right. Backing rights up with coercive threats indicates that we are willing to accept legal obligations unwillingly. This book offers a conceptual reconstruction of the legal relation on the basis of a critique of legal positivism.
This book provides a selective and somewhat cheeky account of prominent positions in legal theory, such as American legal realism, modern legal positivism, sociological systems theory, institutionalism and critical legal studies. It presents a relational approach to law and a new perspective on legal sources. The book explores topics of legal theory in a playful manner. It is written and composed in a way that refutes the widespread prejudice that legal theory is a dreary subject, with a cast of characters that occasionally interact in order to illustrate the claims of the book. Legal experts claim to know what the law is. Legal theory-or jurisprudence-explores whether such claims are warranted. The discipline first emerged at the turn of the 20th century, when the self-confidence of both legal scholarship and judicial craftsmanship became severely shattered, but the crisis continues to this day.
Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations. This is what Alexander Somek argues is the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world.
The Philosophy of Living Experience is the single best introduction to the thought of Alexander Bogdanov (1873–1928), a Russian polymath who was co-founder, with Lenin, of the Bolshevik Party. His landmark achievements are Empiriomonism (1904–6), a philosophy of radical empiricism that he developed to replace what he considered to be the crude materialism of contemporary Marxists, and Tektology: Universal Organisational Science (1912–17), a precursor of cybernetics and systems theory. The Philosophy of Living Experience (1913) was written at a transitional point between the two; it is a final summing up of empiriomonism, an illustration of his theory of the social genesis of ideas, and an anticipation of Tektology.
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