Democratic Self-determination Research Articles

Dreaming Differently

Dreaming Differently

Free states for free citizens!? Arguments for a republicanism of plural polities

The paper assesses the questions if and, if yes, how the republican conception of free statehood can and should inform a compelling understanding of a legitimate post-Westphalian political order. To answer these questions, it, first, reconstructs the foundational arguments of republican internationalists in favour of free states and, second, assesses the points of contention republican cosmopolitans raise. Third, it develops an alternative approach, a republicanism of plural polities: Based on a relational and multi-dimensional understanding of citizenship, the paper questions the strong internationalist reliance on the citizenship-state-nexus and on statehood in general, but also takes issue with cosmopolitans’ neglect of the boundedness of democratic self-determination. A republicanism of plural polities as a multi-perspectival approach to democratic institution-building in and beyond the state is open to constellations of plural polities of different forms and on different political levels while simultaneously recognising the particularity of each ‘free polity’. It thereby adds a new dimension to debates on the political forms legitimate institutions can assume under post-Westphalian conditions and opens avenues for research on inter-polity relations, on more complex constellations of self-rule and shared rule as well as of multilateral decision-making, on sovereignty and independence. The latter are exemplified by reference to the European context.

Campaign Speech and the Universal Dilemma in the Common Law of Elections: A Lesson from the Anglo-American Divide

On first – or second, or third – glance, the courts of the United States and the United Kingdom have adopted hyperbolically divergent responses to state regulation of campaign speech. In both nations, highest levels of government have variously sought wide-ranging control over campaign practice. Courts have subsequently had to weigh how such legislation can be reconciled with individual speech rights and legitimate democratic process. While the House of Lords and Supreme Court in the UK (hereinafter, the UKSC) has declined to strike down campaign speech legislation, the US Supreme Court has so aggressively intervened that one leading election law scholar has characterized the result as “a regulatory structure created by the Court.” The scholarship offers a diverse array of explanations for this trans-Atlantic divide, ranging from constitutional doctrine to differing cultural commitments. Yet through a close analysis of select cases from each jurisdiction, this chapter argues that investigation of the underlying doctrinal divergence reveals a deeper conceptual parallel: democratically determined electoral procedure may pose certain insoluble paradoxes for judicial review. The extensive, norm-peddling approach of American campaign finance law and the legislature-trusting reluctance of the UKSC to strike down campaign regulation both reveal a basic problem that courts confront when reviewing democratically selected law. Where legislation does not grossly contravene a higher constitutional instruction, courts can only strike down electoral legislation through ultimately adverting to normatively independent principles. Advancement of such principles extends beyond the legal analysis that is characteristic of constitutional interpretation. The divergent reactions of the UKSC and Supreme Court to this problem affirm its centrality to electoral regulation in general and campaign speech in particular. The interventionist posture of the US Supreme Court has taken the form of a (critically savaged) assessment of the corrupting effects of campaign financing. Leaving aside the wisdom of transmuting the campaign finance query into a corruption query, this chapter observes that this analytic framing simply confirms that robust engagement with the regulation of campaign speech necessarily involves advancing stand-alone normative principles. By approaching the topic through a reflection upon corruption – a richly political concept that expresses substantive moral commitments – the Supreme Court affirms the richly normative character of the endeavour. Conversely, the UKSC has been perhaps more plaintive in recognizing the fundamental challenge posed by a standing government advancing a vision of how future campaigns should unfold, but has declined or evaded robust engagement with the problem. The UKSC’s retreat to the narrowest doctrinal grounds to resolve disputes reveals its aversion to normative engagement regarding foundational democratic principles. Ultimately, both courts reveal the judicial discomfort with engaging in core democratic reasoning, even if they adopt differing strategies of reframing or declining. Neither approach can resolve the incompatibility between the electorate’s autonomy to set procedures for its own governance and the judiciary’s obligation to review such terms; and both courts are haunted by this tension. This chapter explores this problem by first establishing the differing characters of judicial approaches to campaign finance speech. It then considers the obvious explanations for the differences between the US and UK treatments of constitutional speech and observes that such explanations cannot explain the divergent qualities of the jurisprudential traditions. Finally, it considers the broader tension between the legal interpretation and democratic self-determination to explain the presence of maximalist and minimalist development in the two jurisdictions.

Poetics of the People: The politics of debating local identity in Hong Kong's Umbrella Movement and its literature (2014–16)

AbstractThis article scrutinizes the negotiations with, and discursive refashioning of, Hong Kong identity during and after the Umbrella Movement (2014–16). I argue that these discursive experimentations borne out of the Umbrella Movement bring to light Hong Kong's uniquely cultural formulations of democratic self-determination that exceed the traditional analytic framework of Hong Kong cultural studies. The article analyses literary works as a hitherto neglected facet of the ‘Umbrella culture’ that, as a whole, acts as a discursive laboratory for multiple reflexive theorizations of Hong Kong identity and democratic subjectivity to be devised and debated. Cases studied here include the protesters’ on-site cultural expressions and two major Hong Kong literary authors: Dung Kai-cheung and Wong Bik-wan. This article examines social-movements artworks and literary works in terms of their performative and ethnographic dimensions, arguing that they are important intellectual and cultural-political processes to produce new knowledge about collective identity. This article first demonstrates how the Umbrella artworks repurpose the performative and the ethnographic strategies in Saisai's canonical novel, My City (1975), often cited as the ur-text of Hong Kong identity, to proclaim themselves as ‘we the Hong Kong people’. After reading Dung's and Wong's Umbrella-related works, I then show in this article that the performative and the ethnographic can open up spaces to reconfigure collective identity beyond its existent discourses. Putting theories of performativity into dialogue with critical ethnography, I consider the politics of negotiating and debating cultural identity in literature and protest arts as integral to postcolonial democratic action.

The Democratic Impact of Strengthening European Fundamental Rights in the Digital Age: The Example of Privacy Protection

AbstractIn times of digital pervasion of everyday life, the EU has strengthened a normative idea of European fundamental rights, especially by referring to a strong notion of privacy protection. A normative corridor is evolving with the “right to privacy” at its heart, a right that will be instrumental in shaping the European legal architecture’s future structure. In this Article we argue that the constitutional protection of privacy rights is not only of individual relevance but also of major democratic significance: it protects the integrity of the communication structures that underpin democratic self-determination. The debate on privacy protection, however, often lacks a democratic understanding of privacy and misses its public value. Following an interactionist understanding of privacy and a discourse-theoretical model of democracy, our argument puts forward a conceptual link between privacy and the idea of communicative freedom. From this perspective, the substantiation of a European fundamental right to privacy can be seen as a possible contribution to promoting European democracy in general.

Self-Determination as the Ground and Constraint for the Right to Exclude in advance

In this article, I show how the principle of democratic self-determination can answer the boundary problem by both grounding and constraining a people’s right to exclude potential immigrants. I argue that a people has the qualified right to exclude insofar as it respects the self-determination claims of outsiders. I analyze the concrete implications of the requirement to respect the self-determination claims of outsiders in the cases of (a) long-term residents, (b) refugees, and (c) brain drain. Sometimes the only way for a people to respect the self-determination claims of outsiders will be by including, rather than excluding, them as members.

Human rights and democracy in economic policy reform: the European COVID-19 response under scrutiny

ABSTRACT This article argues that the impact of economic policy reforms on democratic institutions might compromise the enjoyment of human rights, especially economic, social, and cultural rights (ESC rights). This impact is twofold: First, economic reform policies driven by international and supranational institutions compromise democratic self-determination. Second, economic reform policies driven by the need to reduce public expenditure might put marginalised groups at risk and hamper their democratic participation. Since the realisation of ESC rights requires a framework for legitimate redistributive decisions, any such impairment of democratic institutions poses a risk to the realisation of ESC rights. Courts are unlikely to fully compensate for this risk. The Guiding Principles on Human Rights Impact Assessments of Economic Reforms (the Guiding Principles) devise a way for jointly strengthening human rights and democracy. Crucially, they urge states to subject economic policy reforms to democratic control. Human rights impact assessments may empower the public sphere and shift economic policy reforms from the Arcanum of high-level international negotiations back to democratic processes. Moreover, the Guiding Principles oblige states to design comprehensive and participatory economic policy reforms. The article shows the potential of the Guiding Principles by probing the European Union's response to COVID-19 and suggests improvements.

Value Constitutionalism in the European Union

AbstractEuropean constitutional thinking is still alive and is being shaped by the European Court of Justice into a value constitutionalism. Not only the Treaties, but also constitutional principles derived from EU law, are the common standard of review. Autonomy and constitutionality merge. In the light of this situation the Federal Constitutional Court’s PPSP-judgment with its insistence on limitations of competences and on democratic self-determination appears outdated. However, for the time being, Member States agreed to cooperate in a treaty based political union and do not have a consensus on a “good order” in organized Europe. The Court should abstain from the temptation to operate with values because presumably it would not be able to achieve the substantiation and the creation of a value hierarchy with the necessary acceptance.

Privacy in Public: A Democratic Defense

AbstractTraditional arguments for privacy in public suggest that intentionally public activities, such as political speech, do not deserve privacy protection. In this article, I develop a new argument for the view that surveillance of intentionally public activities should be limited to protect the specific good that this context provides, namely democratic legitimacy. Combining insights from Helen Nissenbaum’s contextualism and Jürgen Habermas’s theory of the public sphere, I argue that strategic surveillance of the public sphere can undermine the capacity of citizens to freely deliberate in public and therefore conflicts with democratic self-determination.

The Democratic Case for Immigration

In this essay I present three challenges to the view that democratic self-determination justifies immigration control. I propose, first, that the reason democratic states can claim immigration control powers is not that they are democratic, but that they are independent states. Exercising this power is legitimate when immigration control is needed to preserve the conditions for democratic self-government. Second, I argue that democratic norms provide positive reasons for promoting free international movement and admission claims for family migrants, labour migrants, and refugees. Third, I suggest that current disputes over immigration policy in the European Union reflect deeper conflicts between open and closed conceptions of democracy. If this is correct, then choosing closure over openness may put the future of democracy itself at risk and should thus not be regarded as an issue of democratic self-determination.

Just what’s wrong with losing citizenship? Examining revocation of citizenship from a non-domination perspective

ABSTRACTNormative theorists have not established firm grounds on which to reject states’ powers to revoke citizenship. State sovereignty over membership or democratic self-determination may seem to justify such powers. Liberal arguments of contract or conditionality of citizenship may also seem to allow revocation on many of the grounds increasingly invoked. I argue that a republican non-domination perspective, aiming to minimise domination – subjection to arbitrary interference – provides a strong presumption against states’ powers to revoke citizenship of those subject to their authority, even where this does not render them stateless. Here the fundamental rationale of citizenship status is secure protection from domination. Losing citizenship removes a person’s security against many kinds of state interference, exposes them to an increased risk of private domination by other agents, and constitutes an exercise of arbitrary power, imposing a new and unequal status of alien, and reducing the security of citizenship itself.

Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison

AbstractDemocracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law. Both in Germany and the United States, skeptics and opponents of the Europeanization or internationalization of domestic constitutional law repeatedly raise democratic concerns. From a comparative perspective, this Article examines the German and American democratic arguments against an overreliance on international and foreign law in constitutional interpretations. In exploring the democratic concerns expressed in German and American discussions, this Article focuses especially on the contrast between German dualism on the one hand and American exceptionalism on the other hand. This Article shows that, while the German dualists and the American exceptionalists base their arguments on different understandings of democracy, they share the viewpoint that democracy can only be realized on the national level, whereas international law aims at uniformity und thus inevitably runs counter to democratic self-governance and self-determination of the states. Precisely in this sense, it can be said that there is no qualitative, but rather only a quantitative distinction between German and American democratic arguments. Thus conceived, the alleged contrast between the principle of open statehood emphasized by German constitutional law scholars and the Constitutional Court and the idea of American exceptionalism embraced by a number of critics of the use of foreign law lies only in the extent to which the reference to international or foreign law in interpreting the domestic Constitution is deemed legitimate and justifiable.

Democratic Self-Determination and the Intentional Building of Consensus

This paper defends two fundamental but under-theorized insights coming from the theory of deliberative democracy. The first is that consensus is valuable as a precondition of democratic collective self-determination, since it ensures that democratic decisions display an adequate degree of integrity and consistency and therefore that the polity can act as a unified agent. The second is that consensus in this integrity-building role is essential if citizens need to act as decision-makers; it ensures that the decisions that issue from the exercise of their political rights are meaningful, and that they are so as the intended result of their joint agency.Aggregative approaches, which do not acknowledge this role of consensus, offer an atomistic account of voting and other political rights, and model the outcomes of democratic decision-making as unintended aggregative consequences of individual votes. In these models, democratic political agency and the decision-making power of citizens are curtailed, because citizens do not exert any intentional control on the final outcome of the decision-making process in which they participate.Although the insight on these shortcomings comes from the deliberative camp, I show that the most prominent accounts of how deliberation is supposed to further consensus in its integrity-building role can be subject to the same criticisms. In fact, in these models consensus is achieved as a by-product of people's engaging in deliberation. Although interactive, these approaches are still atomistic and unintentional. As an alternative, I propose a model of democratic decision-making that acknowledges the role played by the citizens' intentional consensus-building through the strategic use of their political rights.

Enacting a parallel world: Political protest against the transnational constellation

Global capitalism is a transnational “operational space” (Sassen) which is (re)produced by the practices of states, policy- and issue-specific government networks, and private organizations such as transnational corporations, global law firms, and standard-setting agencies. This “operational space,” which I call the transnational constellation, works through and beyond distinct spatial settings (i.e. local, glocal, national, global), endowing them with a global financial capitalistic logic and limiting the scope of democratic self-determination. In the second section, I analyze political protest against this transnational constellation in terms of democratic theory. I argue that transnational protest and activism have to be appreciated for their reshaping of spaces of the political, for developing and delivering a genuinely global perspective on political problems, and for their politicization of the transnational constellation by revealing and contesting structures and strategies of domination. However, it would be misleading to conceive of protest against the transnational constellation as constituent power. Instead, as I argue in the third part of the article, this kind of protest enacts a parallel world which very often lasts only for a fleeting moment, but where alternative political and social life forms are exercised and experienced. Perhaps their time is yet to come.

Sovereignty, Self-Determination, and Human Rights from Walzer to the Responsibility to Protect

This essay explores the intellectual context and conceptual foundations of R2P. Michael Walzer reinitiated debates about humanitarian intervention by grounding sovereignty and non-intervention in individual human rights and communal autonomy (self-determination). Liberal cosmopolitan critics of Walzer highlighted the tension between these two values, and proposed that sovereignty should rather be grounded in individual rights and democratic self-determination. In the post-Cold War era, international lawyers and international relations scholars came to endorse the idea that state sovereignty is qualified by the most basic human rights. High ranking UN officials further proposed that state sovereignty should be redefined as the sovereignty of the people, which, however, was seen as coextensive with the protection of the fundamental individual rights, and as such could be shared by the ‘international community’. R2P adopted a similar approach, glossing over the potential tensions between sovereignty, self-determination and human rights.

World War I and Its Aftermath, 1919-1920: The Post-War Effort to Reconstruct Europe Thwarted by Confusion between the Nature of Democratic Power and Royal Power, and by the New Concept of 'Popular Self-Determination' of Peoples.

The fact that the ending of World War I entailed the dissolution of the central government of the Austro-Hungarian Empire meant that in 1919 and 1920, as the victors convened a Peace Conference, the peoples across all of “mid-Europe” embarked on the creation of new governments within new borders. The “Big Three” of the Peace Conference, Britain, France, and the United States, presuming that these people had “fallen into their laps,” undertook to direct this process, but rapidly encountered insurmountable problems. The “thwarting factors” arose from the three-way conflict between (1) ancient historic Royal and Imperial boundaries of regions, (2) defendable boundaries encompassing economically-sound regions, and (3) democratic self-determination of peoples who live inside regions. A further difficulty was the unrecognized difference in the comprehensiveness of “government power” within a “Royal” government, as compared to the more limited suite of government powers that could be vested legitimately in a government “of the people, by the people, and for the people.” The latter form, exemplified by America, is inherently limited by the “unalienable” individual rights of the people. The author, as outside pro bono “co counsel” to the National Endowment for Democracy under “lead counsel Kenneth Juster, now (since late 2017) U.S. Ambassador to India, saw the practical problems of encouraging democracy world-wide during a span of seven years, late 1998 through the end of 2005, including the first five years of the “Bush II” administration, when international pro-democracy was a top priority of the U.S. Federal government. In this paper, the author looks back to the first effort by the United States, in 1919-1920, led by President Woodrow Wilson, to promote democracy abroad. In detail, the paper presents the multitude of reasons why Wilson’s efforts mostly failed – which is why the paper is subtitled “World War I and the Failure of the Peace.”

Democratic Self-Determination through Anarchic, Public Will-Formation

Democratic Self-Determination through Anarchic, Public Will-Formation

Justice in migration

AbstractThe movement of people across borders is one of the most pressing issues of our time. Yet it is still unclear how migration should be regulated to be fair to the sending societies, the host societies and the individual migrant. What is at issue? Are we discussing migration from an ethical or from a political philosophical perspective, or both? Are we discussing migration from a global justice perspective or social justice perspective? Do we consider political legitimacy and democratic self-determination as part of our analysis? How should we balance demands of justice in immigration compared to those of emigration?

The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University

This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

On the ecological blindspot in the territorial rights debate

ABSTRACTThis article examines the recent debate about the basis for claiming jurisdictional rights over territory. It contends that the debate as a whole misses a crucial feature of what makes territorial rights important – their role in protecting and maintaining distinct socioecological systems. This ‘ecological blindspot’ is shown to pertain to three main justifications for territorial rights – the nationalist, proprietary and populist justifications. These justifications view territoriality as connected to national identity, private property rights or democratic self-determination. In each case, while territoriality is only contingently related to these ideas, it is conceptually connected to peoplehood, which requires a place-based and environmentally distinct location in order to exist. A formulation of a territorial right that establishes this connection and highlights the ecological dimension of territoriality is given.