Modern Liberal State Research Articles

Confucianism and Public Political Discussion

Abstract What role, if any, should Confucianism play in the politics of our time? In some of my previous works, I claimed that modern liberal states should not seek to promote Confucian values on the basis of their intrinsic merits. Yet, drawing insights from Joseph Chan’s moderate state perfectionism and John Rawls’s wide view of public political culture, I proposed the “wide view of moderate perfectionism.” According to this view, in public political discussion, citizens should be allowed to deliberate whether and how Confucianism, among other reasonable moral doctrines, can make positive contributions to their social and political thinking and public policymaking, provided that certain conditions are met. This view has been criticized by some scholars, in particular Zhuoyao Li. Li argues that the practice of the wide view of moderate perfectionism would inevitably harm civility. In this article, I clarify and develop the wide view, and respond to Li’s criticisms.

A Foundation for a Hegelian Welfare State

In addition to its main theme of freedom, Hegel’s political philosophy addresses the problem of poverty. This article proposes a theoretical foundation for a Hegelian welfare state by demonstrating how its rationale and concepts are derived from Hegel’s political philosophy. Poverty constitutes a fundamental deficiency in the modern liberal state focused on the self-actualization of its citizens. This poverty is not an accidental but a structural factor of modern market society, resulting from economic contingencies. The poor rabble is deprived of the opportunities for self-actualization that market society provides. Therefore, the main task of a Hegelian welfare state is to secure the right of subsistence as a condition of the possibility of self-actualization. Without subsistence citizens are unable to develop and actualize their free will through property formation in market society. Derived from Hegel’s right of necessity and the guiding principle of freedom, the right of subsistence is paramount to the legitimacy of the state. Therefore, it cannot be left to the contingent morality of private charity. The right of subsistence does not only guarantee mere survival, but also includes a minimum of property needed to participate in market society.

Thinking about the crisis of the modern liberal state

Thinking about the crisis of the modern liberal state

Liberalism and the Common Good

AbstractTheorists with strongly communal understandings of the common good frequently criticize the modern liberal state for failing to provide for the common good and for interfering with local communities. These critics, however, are less clear about what role, if any, the state should play in modern life. In order to trace a middle ground between liberal attempts to justify the state and too hasty communitarian condemnations of it, I develop a two-tiered theory of political justification. All political justification is to be seen in relationship to the common good of a community. While only local communities have a common good and a direct claim to political authority, the state can still have an indirect and derivative authority. After examining how this theory applies to thinkers such as Alasdair MacIntyre, Michael Sandel, and Charles Taylor, I propose an appropriate model for the relationship between local communities and the state.

A Study on the Adaptation to the South Korean Society for the Survival of the North Korean Defectors: With a Focus on Job Satisfaction according to the Period of Service of the South Korean Security Police

Purpose: The Korean Peninsula of the Northeast Asia is the only divided country in the world, and unlike South Korea, North Korea is isolated from against the rest of the international community due to the socialist ideology and oppression of its dictatorship, and the human rights of the North Koreans are very serious given the economic sanctions. The number of the North Korean defectors is increasing each day. Hence, through the job satisfaction according to the period of service of the security police, who can directly or indirectly support the North Korean defectors in South Korea, which is the most frequently selected by North Korean defectors, a plan for the North Korean defectors for settling in the South Korean society has been presented. Method: In this study, among police officers in the security department as of 2020 who had experience in work related North Korean defectors, 100 trainees in the Police Human Resources Development Institute were surveyed via self-administration method. Among the collected survey questionnaires, 91 were selected as valid samples, excluding those whose answers were incomplete or missing. Results: First, there is a difference in the job satisfaction according to the total period of service in the police organization. As a result of the analysis performed, Q-3 and Q-4 were high at the 5% level. As for Q-5, 20 years or longer turned out to be higher at 1% level than 6 or longer and 10 years and less and 11 or more years and 15 years or less. Q-3 is a response for “I have considerable discretion in performing my job.” Q-4 is a response for “I think that the division of duties and the relationship of authority and responsibility among the organizational employees are clarified and efficient work assignment is made.” Second, there is a difference in the police’s job satisfaction according to security and service period among police organizations. As a result of the analysis performed, at the level of 5%, as for Q-1, 10 years or longer turned out to be more satisfied with their current job and position as a police officer than 2 years or less. Q-1 is a response for I don t think the salary level is low compared to my job.“ Conclusion: Given the unfortunate political and historical experiences of the South Korean society, there is a critical perception of the security police, and it is necessary to strengthen the capabilities of the security police to support the North Korean defectors. Naturally, there may be criticisms as such, but it is worth considering schol-arly from the point of view of the modern liberal state philosophy such that the state exists to protect the lives and bodies of the people and human security, which has gradually expanded its scope entering the 21st century.

“In a Satisfactory, Organized, and Scientific Fashion”

Sex education in Ontario during the second half of the twentieth century was shaped by two policymaking paradigms: methodological rationalism and incrementalism. Structural transformations occurring within the modern liberal state at mid-century resulted in the emergence of technocratic policymaking, which allowed policymakers to employ a methodology of calculated rationalism. Technocratic policymaking—which intertwined policy formulation with the empirical aspects of socio-sexual problems—allowed educational bureaucrats to produce defensible policy based on quantifiable problems. However, interest group pluralism dictated that they also practice interest-group-directed incrementalism. These two decision-making models allowed the Ministry of Education to introduce sex education progressively between 1955 and 1979 in an attempt to ameliorate socio-sexual problems. As a result, sex education—under conditions of liberal modernity—was cumulatively institutionalized as part of Ontario public schooling.

Modern solidarity and administrative repression

Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law, which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it is firstly and foremost based on “civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.

Ungovernable Eye: Photography, Colonial Governmentality and Irish Insurgency

Framing photography and policing through Michael Foucault’s concept of counter-conducts in his writings on governmentality, this article discusses photography’s provocations within colonial governmentality of the Irish insurgent movements of the mid nineteenth century. In 1866, British authorities legislated for suspension of habeas corpus in response to what they identified as the Fenian threat to the ideals of the modern liberal state. Fenian insurgency was not just an anti-colonial movement but an asymmetrical political fraternity with a trans-Atlantic membership that included retired American Civil War veterans. Mobilised for the identification and surveillance of Fenians traversing across the Atlantic and the Irish Sea, photography was used to arrest the likenesses of individuals whose mobility threatened the security of the state and its colonies. In this process, the photograph’s mass reproducibility and mobility as a material image-object was pressed into action to identify suspected insurgents. Exploring the entwined histories of photography, policing and the Fenian Irish, the article discusses how photography simultaneously contributed to and undermined colonial governmentality.

The Endurance and Evolution of Afghan Customary Governance

The two-decade effort by the United States and its NATO allies to build a modern liberal state in Afghanistan envisioned electoral democracy replacing village councils and other forms of customary authority. But citizens still rely on these community-based bodies to resolve disputes, provide small-scale public goods and services, and broker relations with local government. Customary institutions may also provide protection against predatory government officials. Although the international community has largely overlooked customary authority, US and NATO military forces eventually recognized their importance. Throughout history, Afghan rulers have regarded customary authorities as threats to their power, and they have been largely excluded from ongoing peace talks among the United States, the Afghan government, and the Taliban.

Wolność działalności gospodarczej — rozważania na kanwie sprawy „drukarza z Łodzi”

Artykuł poświęcono problematyce wolności działalności gospodarczej w prawie polskim. Analiza skupia się wokół rozważań Trybunału Konstytucyjnego, Sądu Najwyższego oraz sądów powszechnych związanych ze sprawą „drukarza z Łodzi”, stanowiącą przedmiot ożywionej debaty publicznej w ostatnim czasie. W ramach uwag wprowadzających zaznaczono, jak istotna dla współczesnego państwa liberalnego jest wolność działalności gospodarczej. Wskazano też, jakie zagrożenia niesie z sobą pełna liberalizacja rynku. Uwagi szczegółowe podzielono na pięć części.Pierwsza część poświęcona została regulacjom konstytucyjnym. Podkreślono przewodnią rolę wolności działalności gospodarczej pośród elementów społecznej gospodarki rynkowej jako modelu, na którym oparto ustrój gospodarczy Rzeczypospolitej Polskiej. Wskazano też przesłanki dopuszczalności ograniczenia tej wolności.W ramach rozważań ujętych w drugiej części wyróżniono dwie swobody działalności gospodarczej — w ujęciu formalnym i materialnym. Stwierdzono, że ze względu na specyfikę każdej z nich ewentualne ograniczenia powinny mieć przede wszystkim charakter odpowiednio: publicznoprawny albo prywatnoprawny.W trzeciej części uwag szczegółowych przedstawiono stan faktyczny, na podstawie którego zapadły orzeczenia w sprawie „drukarza z Łodzi”. Wskazano też twierdzenia sądów, do których odnoszą się dalsze rozważania. Wynika z nich, że samo prowadzenie działalności gospodarczej obliguje przedsiębiorcę i jego pracowników do spełniania świadczeń na rzecz osób zainteresowanych dobrami lub usługami dostarczanymi przez przedsiębiorcę.Czwarta część rozważań zawiera analizę zasadności konkluzji, o której mowa w części trzeciej. Zasadniczo została ona poddana krytyce. Wskazano, że za jej odrzuceniem w odniesieniu do przedsiębiorców przemawiają sprzeczność przedmiotowego nakazu z istotą konstytucyjnej wolności działalności gospodarczej oraz ograniczony zakres przedmiotowy ustawowych i unijnych przepisów o funkcji antydyskryminacyjnej. Wskazano jednak, że badany obowiązek ciąży na niektórych przedsiębiorcach. Jako przykłady takich podmiotów wyliczono profesjonalistów działają-cych na rynku farmaceutycznym oraz ubezpieczeń obowiązkowych, a także podmioty o pozycji dominującej na rynku właściwym, o ile ich odmowa spełnienia świadczenia jest przejawem nadużycia tej pozycji. Odnośnie do pracowników przedsiębiorców podkreślono, że nie są oni powiązani z klientami pracodawcy stosunkami prawnymi obejmującymi obowiązek spełnienia świadczenia.
 Zauważono, że ewentualnie ciąży na nich powinność wykonywania określonych czynności na rzecz kontrahentów zatrudniającego, ale wynika ona z relacji prawnych łączących ich z przedsiębiorcą.Piąta część uwag szczegółowych dotyczy wyroku, na mocy którego Trybunał Konstytucyjny uznał przepis kodeksu wykroczeń, będący podstawą prawną orzeczeń wydanych w sprawie „drukarza z Łodzi”, za niezgodny z konstytucyjną zasadą proporcjonalności. Wyrażono w niej aprobatę dla stwierdzenia, że ustawodawca powinien wprowadzać sankcje karne jedynie w ostateczności, gdy nie sposób osiągnąć zakładanych celów w inny sposób. Krytyce poddano natomiast zaaprobowaną przez Trybunał tezę, że analizowany przepis kodeksowy mógł stanowić samodzielną podstawę prawną obowiązku spełnienia świadczenia z uwagi na jego rzekomą antydyskryminacyjną funkcję.Artykuł zakończony jest wnioskami. Ogólny kierunek regulacji wolności działalności gospo-darczej w prawie polskim oceniono pozytywnie. Nie wykluczono jednak, że w pewnych obszarach działania ustawodawcy zasługują na ocenę odmienną — wskazano przykład ustawy „apteka dla aptekarza”. Krytyce poddano też spotykaną w doktrynie i judykaturze rozszerzającą wykładnię przepisów ograniczających badaną wolność.

The Politics of Vulnerability ed. by Estelle Ferrarese

Reviewed by: The Politics of Vulnerability ed. by Estelle Ferrarese Sanna Karhu (bio) Estelle Ferrarese ed., The Politics of Vulnerability London & New York: Routledge, 2018; 131 pp. The concept of “vulnerability” has become an academic buzzword over the last few decades in the fields of social theory, political philosophy, and feminist scholarship. The concept is used in multiple ways to address different contemporary political problems ranging from social and economic marginalization and violence to global wars. One of the most well-known theoretical contributions to the concept of “vulnerability” is Judith Butler’s (2004, 2009) famous account of bodily vulnerability as a generalized state of bodily life. While for Butler vulnerability operates as a physical and affective condition for the ethics of nonviolence, for critics of vulnerability, such as Alan Badiou (2001), Bonnie Honig (2010), and Jacques Rancière (1999), the concept risks substituting politics with ethics due to its emphasis on emotions and care. Challenging the idea that vulnerability belongs solely to the ethical sphere, The Politics of Vulnerability seeks to foreground vulnerability as a political question. As Estelle Ferrarese asks in the introduction of the volume: “How could an ineradicable, universal phenomenon pertaining to human nature become the object of a critique, or be the wellspring of emancipation? How does the idea of a fundamental human vulnerability enable us to account for socially produced or configured forms of vulnerability?” (5). Answering these questions is one of the central tasks of the book, which consists of seven essays that were originally published in Critical Horizons (2016). Throughout the anthology, [End Page 280] understandings of and meanings given to vulnerability vary, refusing any clear-cut definition of the concept. For some scholars, it is associated with the question of everyday life, such as practices of care (Laugier, Ferrarese). For others, it refers to the politics of concepts: to injurious speech acts that govern racialized bodies (Michel), or to the urgency of re-politicizing the concept of “victimhood” (Cole). One of the main strengths of the volume lies in the scope of the essays: the question of vulnerability permits a broad range of topics and problems to be discussed under one heading. However, the first three essays, although otherwise important contributions, do not concentrate on the concept of vulnerability or the politics of vulnerability and thus do not directly respond to the main questions of the volume. These essays discuss vulnerability in a more implicit manner, highlighting forms of economic precarity (Castel) and the everyday practices that make some lives more susceptible to violence and death than others (Das and Deutscher). In his essay “The Rise of Uncertainties,” which provides a summary of the main theses of his book of the same name, Robert Castel discusses new forms of economic insecurity related to precarization by analyzing the negative impacts of global finance capitalism on workers (specifically in France). Castel focuses particularly on the emergence of a new class, the “precariat” who work atypical and temporary jobs, and demonstrates how it has become a permanent stratum of the division of labor. With the weakening of worker protection laws and social benefits, the precarization of work has led to the peculiar situation wherein the same individual can be both an underpaid worker and a welfare recipient. As Castel concludes, the degradation of the wage-earner system can marginalize certain populations by making it impossible for them to achieve the status of a “responsible individual”—a normative requirement of modern liberal states. Although Castel does not use the term “vulnerability,” his analysis of precarization powerfully shows that addressing the economic dynamics of the neoliberal state is necessary for any theory of vulnerability. Veena Das’s article provides an insightful reading of J.M. Coetzee’s novels Waiting for the Barbarians and Diary of a Bad Year in light of the Wittgensteinian notion of “forms of life,” interpreted through Stanley Cavell’s work. Whereas for Cavell the meaning of words and concepts depends on particular cultural contexts and shared customs, rules, and habits, that is, on shared forms of life, Das puts more emphasis on the ways in which practices of violence can disrupt the assumption of shared meanings, and thus turn forms of life...

Distinguishing Cultural Property and Cultural Heritage: Technologies of Sovereignty and Reformation

With empirical touchstones from Europe, North America, and Africa, the paper argued that heritage and property represent different approaches to subject formation, produce distinct bodies of expertise, and belong to different rationalities of government in a global patrimonial field: that cultural property is a technology of sovereignty, part of the order of the modern liberal state, but cultural heritage is a technology of reformation that cultivates responsible subjects and entangles them in networks of expertise and management. Recounting Scottish claims to the Lewis Chessmen and Greek claims to the Parthenon Sculptures, the paper explored different nuances in assertions of sovereign power and affirmations of cultural integrity in the face of foreign invasion and foreign rule, globalized markets, and foreign science under the sign of cultural property. The paper contrasted these to the safeguarding of the Jemaa el Fna marketplace in Marrakech and other cases that attempt to organize cooperation and orchestrate social practices under the sign of cultural heritage.

Modernism, Empire, World Literature by Joe Cleary

Reviewed by: Modernism, Empire, World Literature by Joe Cleary Liam Lanigan Modernism, Empire, World Literature, by Joe Cleary (Cambridge: Cambridge University Press, 2021, 326 p., hardcover, $39.99) Studies of the "literary world system" theorize and describe a unified but unequal structure of literary relations spanning the globe, in which national literatures are stratified and compete with one another for prestige and cultural hegemony. This system interacts with, but exists separately from, other world systems such as those of capital and ecology. These theories have challenged definitions of "world literature" that emphasize universal literary values, emphasizing the role of cultural domination, geopolitics, and capital in the creation of literary hierarchies. The most comprehensive theorization is Pascale Casanova's The World Republic of Letters (1999), which described Paris as the center of the literary world system during the nineteenth and twentieth centuries, drawing writers from the literary "periphery" seeking to make a name for themselves and their national traditions. For Casanova, Irish modernism provides a key model for understanding how a literature develops from a position of peripherality to becoming world literary in its ambition and influence. Casanova further notes the role of Irish writers, especially James Joyce, in catalyzing similar literary revolutions in other literary peripheries. Irish literary scholarship has challenged the details of Casanova's work, but largely avoided substantial critique or extension of her thesis. Joe Cleary's Modernism, Empire, World Literature rectifies this, acknowledging that Casanova's work reorients our understanding of how modern literary traditions take shape and intersect, but noting that her model of the world system is "troublingly static." Paris is "extraordinarily fixed and stable" as the center of Casanova's world system. Her theory explains how national literatures secure recognition, but does not allow for major reconfigurations of the system's structure. For Cleary, the unipolar vision of the literary world system centered on Paris overlooks other centers of cultural consecration, especially London, which did not simply challenge Paris for supremacy but propagated and consecrated a different literary aesthetics for the Anglophone world. Cleary historicizes a "crucial moment of rupture" in the literary world system, precipitated by the emergence [End Page 149] of US, Irish, and Caribbean modernisms as the preeminent Anglophone literary traditions of the twentieth century. With these countries long considered cultural colonies of Britain, the emergence of their modernisms transformed the literary world system "more convulsively and with more lasting effect than Casanova's account allows." Cleary reconsiders how the literary world system is shaped by transformations in economic and political systems; Ireland's literary emergence is inseparable from anti-colonial agitation and England's imperial decline, while the rise of the United States is tied to its increasing economic and political dominance and the consolidation of its universities as arbiters of cultural legitimacy. For Cleary the literary world system does not simply describe literary relationships; through readings of key modernist texts, he shows how world-systemic conditions inform their formal and thematic elements, and how they establish new relationships within the literary world system. Alexis de Tocqueville's De la démocratie en Amérique and Matthew Arnold's The Study of Celtic Literature, Cleary argues, help explain the contradiction whereby the United States and Ireland, despite the republican and democratic ideals central to both their political cultures, gave rise to an aristocratic-minded, elitist modernism. W. B. Yeats draws upon Arnoldian essentialism about the Celtic national character while rejecting Arnold's call for political and cultural union with Britain. Tocqueville's America is "a byword for democracy, [and] material progress," a "polar contrast" to Arnold's Celticist Ireland. But both countries share a sense of high culture as out of kilter with liberal-democratic modernity, and as capable of a national "renaissance" in defiance of their cultural peripherality. While Yeats and the Celtic Revival sought out a mythic Irish heritage through which to challenge modernity, Ezra Pound and the Americans embrace a futurist aesthetic; both, though, channel antipathy to the modern liberal state and cultural marginalization within the literary world system. Cleary reads Henry James's The Golden Bowl and T. S. Eliot's The Waste Land in the context of European imperial decline, stressing that they are...

Bodies under the Law: Feminist Artistic Practice and the Struggle to #Repealthe8th

Bodies under the Law:Feminist Artistic Practice and the Struggle to #Repealthe8th* Sinéad Kennedy (bio) Before the Law stands a door-keeper on guard. To this door-keeper there comes a man from the country who begs for admittance to the Law. But the door-keeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed, then, to enter later. "It is possible," answers the door-keeper, "but not at this moment." Since the door leading into the Law stands open as usual and the door-keeper steps to one side, the man bends down to peer through the entrance. When the door-keepers sees that, he laughs and says: "If you are so strongly tempted, try to get in without my permission. But note I am powerful. And I am only the lowest doorkeeper. From hall to hall, keepers stand at every door, one more powerful than the other." franz kafka, "before the law" The parable "Before the Law," later incorporated into Franz Kafka's posthumous novel The Trial, has long served as a powerful metaphor for legal scholars exploring the experience of those subject to the forces of institutionalized law. In the parable the supplicant fails to circumvent and defy the gatekeeper; growing old, the man finds himself approaching the end of his life without ever having achieved the access he so desperately seeks. Just before his death the gatekeeper tells him that the doorway was made exclusively for him and that upon his demise the entrance to the law will be closed (Kafka 197). Intentionally enigmatic, the parable illustrates the profound psychological effect of the law by expressing the duality of how its processes can be experienced. Purportedly objective and impartial, the law [End Page 241] remains remote from the daily life of the man experiencing it as he lives without access, unable to gain entry. The parable also reveals the illusory character of Kafka's law, which requires the man's cooperation and deference to sustain its power. Were we to reimagine Kafka's parable with a female protagonist, our understanding of the experience would differ: the law would again exist as a partisan system with only the appearance of objectivity. But more significantly, regendering the parable's perspective would make visible the hidden structures of domination and exploitation, as well as the ideological work of institutional apparatuses, that define the modern capitalist/liberal state. Women's experiences of the law are often characterized by violent intimacy, thereby disclosing the law's embodied consequences and its intersection with institutional and intimate violence. In other words, unlike the male body of Kafka's parable, the female body occupies a space not before the law, but rather under the law—as subject to its domination. Through the prism of three feminist performances—Sarah Browne and Jesse Jones's The Touching Contract (2016), Speaking of IMELDA's Pro-Choice Proclamation (2015), and Jones's Tremble Tremble (2017), this essay argues that a central theme of women's artistic practice in Ireland envisions the female body as a site of resistance, exposing the law as a force that grants and then restricts access to institutional authority through its power of determination and punishment. Ireland's Constitution or framing legal narrative, Bunreacht na hÉireann, haunts such feminist practice as a structuring presence. Each of the three performances explored below offer possibilities for creating new forms of knowledge and resistance, thereby allowing women to move collectively from a position of bodies under the law to bodies against the law and, finally, toward the possibility of bodies beyond the law. Feminist Theory Redefines the "Body Politic" Feminist theorists have long engaged with questions of embodiment as they confront the female body's relationship to the law and the state. They argue that the identification of women with a corrupted conception of corporeal reality has been central to the construction and maintenance of the modern liberal state. Feminists thus challenge [End Page 242] the foundational premises of western political and legal theory and its symbolic focus on the male body by transforming the metaphor of the...

Los derechos de la naturaleza: un paso adelante, tres atrás

El reconocimiento de la naturaleza como sujeto de derecho que hacen las constituciones de Ecuador 2008 y Bolivia 2009, representa un quiebre civilizatorio que hecha dárdos al corazón mismo del casi extinto Estado liberal moderno. Pese a ser resultado de un proceso social con una data de más de 15 años y no de algún movimiento ilustrado, la Constitución de Montecristi aporta a la teoría constitucional proponiendo nuevos vínculos entre moral y derecho y entre política y derecho, pero también creando nuevas instituciones que hacen posible la convivencia entre vivientes. En tal sentido, el reconocimiento constitucional es a la vez un diálogo y una ruptura con los marcos filosóficos y teóricos sobre los que se ha asentado la relación Estado-sociedad-naturaleza. Desde la segunda mitad del Siglo XX, se han dado dos grandes olas de reforma constitucional referidas a la Naturaleza. La primera que mata a la ´naturaleza` y entrona al ´medio ambiente`, con el objeto de hacer posible la gestión de los recursos naturales. La seguna que revive de las cenizas a la ´naturaleza` y le otorga personalidad jurídica, para hacer posible el mundo de la vida. El reconocimiento de la naturaleza como sujeto de derechos se asienta en un proyecto societal que propugna un “biorepublicanismo”, que rescata las visiones integrales, holísticas y comunitaristas, como ejes de la transformación de la sociedad. Como aspiración histórica, dicho reconocimiento tiene la virtud de reformular los parámetros morales y jurídicos sobre los que se asienta la relación Estado, sociedad y naturaleza.

Distributing Civil Justice

With growing economic inequality, questions of distributive justice have become increasingly prominent in legal scholarship, particularly public law scholarship. Civil procedure scholarship has been no exception, traditionally addressing such questions under the heading of “access to justice.” And yet, despite the ubiquity of the phrase, discussions of access to justice have tended to focus almost exclusively on how procedural resources and opportunities should be distributed and, accordingly, who should receive any given share of those resources and opportunities. Much less attention has been paid to what, exactly, is being distributed—which specific goods access to justice actually comprises. Perhaps because of this vagueness, proponents of access to justice have coalesced around a fairly stable set of policy positions on a wide range of procedural issues. This Article shows that apparent consensus to be much less secure than scholars commonly assume. Only by abstracting from the specific goods associated with access to justice can scholars achieve such widespread agreement about which procedural rules and policies accord with distributive justice. In fact, scholars allude to multiple distinct goods when advocating broad access to justice. Though often treated as interchangeable or even synonymous, those goods, once distinguished, entail potentially conflicting implications for some of the doctrinal and policy issues that currently preoccupy civil procedure scholars, complicating the standard access-to-justice position on each one. Whether a particular policy promotes access to justice and satisfies the demands of distributive justice depends on which specific goods we’re trying to facilitate access to. The unadorned concept of access to justice doesn’t have the fully determinate, unidirectional policy valence that many scholars assume it does. The problem, moreover, runs much deeper than just an ambiguity about the aims of civil justice. For the different goods associated with access to justice can be traced to different—and often conflicting—functions of the modern liberal state. Such conflicts are fundamental, going to the core of liberalism, and so are no more likely to be definitively resolved in civil procedure than they are in any other context. That being the case, we should expose and acknowledge the conflicts between different procedural (and political) goals and restructure procedural rulemaking institutions to better negotiate them, rather than imagine that blunt appeals to access to justice alone can determine civil procedure’s proper response to increasing economic inequality. We shouldn’t expect the task of determining the legal implications of economic inequality to be any more straightforward—or any less contentious—in civil procedure than it has been in public law. And public law, for its part, may end up having to make some of the same kinds of difficult trade-offs that civil procedure scholars have been loath to confront.

Newman and Strossmayer on the Relationship Between the Church and the State (I)

The relationship between the Catholic Church and the state, and between the Church and the state in general, is a very topical issue, and theoreticians at the present time provide various models that render assistance to the comprehension of that relationship. The complexity and extensiveness of the problem necessitates that it should be dealt with in two parts (articles). Basically, our objective was to represent the deliberations of John Henry Newman (1801‒1890) and Josip Juraj Strossmayer (1815‒1905), which we consider to be exceptionally valuable and relevant even today. Through such an analysis, we intended to examine how the deliberations of these two great thinkers of the nineteenth century may contribute to a better cooperation between the Catholic Church and the state in present‐day Europe. In this, the first article, in which we deal with Newman’s and Strossmayer’s perceptions of the relationship between the Catholic Church and the state, at the very outset we feature the context in which Newman and Strossmayer each take a closer look at that relationship. This context is characterized by liberalism, but with numerous negative connotations that suffocate the originally positive meaning of liberalism. A negative context of liberalism is an aggravating circumstance in the comprehension of the relationship between the Catholic Church and the state, and on the other hand, from the position of a modern liberal state, Newman’s and Strossmayer’s comprehension of history, in whose center is the principle of God’s Providence, is also qualified in this way, which simultaneously renders the Catholic Church consistent and authentic, unlike the modern liberal state, which frequently assumes utopian and ideological characteristics. For this very reason, that difference regularly seems insurmountable. Finally, we observe that the issues are additionally complicated by the erroneous notion of the Dogma of Papal Infallibility, which is not understood in the spirit of harmony between the conscience and an Authority.

Socrates, Democracy, and the End of History

ABSTRACTThis article explores the importance of the Socratic turn to Hegel’s conception of reason in the Philosophy of History. In the “Introduction” to his work, Hegel initially argues that Socrates advanced beyond Anaxagoras, attempting to connect universal reason to concrete human particulars by means of his theory of ideas or forms. Socrates thus turns from the study of material nature to the rational human soul as it is drawn to the good. In addition, Socrates believed that provided one philosophized, one could grasp the ideas in any place at any time. Hegel himself, however, must advance beyond Socrates because the latter failed to understand that the universal manifested itself slowly in successive stages in the historical process, only becoming fully actualized at the end of history. Philosophy, therefore, is only possible in modernity. Moreover, universal reason takes concrete form, according to Hegel, in the modern liberal state, and an individual, having his or her end in this state, achieves her highest potential by obeying and thereby internalizing the state’s laws. For Hegel, I argue, Socratic philosophy—which questions the laws and authoritative opinions of the political community on behalf of gods or ideas that are higher or independent of it—having no grounds in liberal modernity must come to an end. Yet, when we turn to analyzing Hegel’s suggestion near the end of the “Introduction” that Socrates is a philosophic World-historical individual—a type of individual who undermines his or her society to bring forth a new order—we can see that Hegel nonetheless considers Socrates as possessing greatness. I conclude by turning to John Stuart Mill’s portrayal in On Liberty of Socratic philosophy. I argue that for Mill Socratic philosophy should not cease, as Hegel implies, but rather that it is crucial to ensure the flourishing of freedom in the modern, liberal democratic order. Mill’s conception of Socratic philosophy, I argue, is a model of the individualism and free expression that Mill advocates and that we have come to associate with liberal democratic practice today.

'His Garden a Wilderness' - The Balance between Equality and Freedom of Religion in Australia and Canada

This paper analyzes Australian and Canadian approaches to rights conflict focusing on challenges between freedom of religion and equality in public life. The first section involves an historical and doctrinal analysis of rights frameworks in Australia and Canada and a comparative analysis of cases that test public boundaries of freedom of religion and equality. This section concludes that the Australian framework is an imperfect mechanism for resolving disputes about freedom of religion. A comparison to the Canadian framework demonstrates that principles of reconciliation and limitation of rights provide a more satisfying answer to challenges between religious freedom and equality rights. The argument put in the second section is that both states assert freedom of religion and equality as fundamental rights but in fact their competing scope remains unresolved. The second section applies political theory to the question of freedom of religion, building on the presumption that neither Australia nor Canada (as modern liberal states) has an agreed public ‘place’ for religion. This thesis proposes a theoretical solution of adopting a more inclusive definition of religion within an egalitarian liberalism framework and prefers the test of ‘ethical independence’ proposed by Ronald Dworkin for responding to claims of religious expression rather than a ‘special rule’ or exemption approach.

‘Proclaim liberty throughout all the land unto all the inhabitants thereof!’ Reading Leviticus 25:10 through the centuries

ABSTRACTThis paper follows the text of Leviticus 25:10 in the Hebrew Bible and in selected works of the exegetical tradition of both Rabbinic Judaism and Western Christianity, in order to provide a lens through which to assess the use of a biblical text which was instrumental during the early modern period in formulating ideas about the Republic and its use in the modern liberal state. The main argument of the paper is that over time the meaning of the text shifted from the socio-economic to the salvific to the political, depending on the context in which it was read. Further, all the authors cited here approached the text as an authoritative normative text, and did not look at the text as a textual artefact. While the move to re-introduce Jewish Sources into the debate in political theory is to be welcomed, it is argued that the results would be improved by balanced reading strategies and by interaction with critical academic biblical scholarship.