Sovereign People Research Articles

Que desastre? as implicações legais e práticas da Lei de Sigilo do Japão na gestão e segurança de desastre

The Fukushima accident transpired more than three years ago, but the risks that surround the stricken TEPCO nuclear reactors are far from being finally settled. As the Japanese Government, along with the nuclear operator, continues with crisis management and combined efforts to stabilize the nuclear situation in Fukushima, people, both in Japan and in other parts of the globe, are left awaiting reports on safety issues. The article explores the public nature and significant role that information and journalistic reports play, following the occurrence of a disaster, in particular the Fukushima nuclear disaster. How States deal with regaining control over and establishing order in the national situation, more often than not, affects the sovereign people and has repercussions on the natural environment. Thus, notwithstanding the complexities of post-disaster management, people’s rights to a healthy environment and to public information regarding events that affect them and their way of life should be upheld.

Do Constitutional Amendments Matter?

Article V of the Constitution specifies how the Constitution may be amended. Notwithstanding all the attention that constitutional amendments receive, however, our constitutional order would look little different if a formal amendment process did not exist. At least since the first few decades of the Republic, constitutional amendments have not been an important means by which the Constitution, in practice, has changed. Many changes have come about without amendments. In some instances, amendments were rejected, but the law changed in the way the failed amendment sought anyway. Several amendments, thought to be important, in fact had little effect until the society changed by other means. Other amendments did little more than ratify changes that had already come about in other ways. If this thesis is correct, it suggests that the text of the amended Constitution is much less important than is generally thought; that political activity, in general, should not be focused on proposed constitutional amendments; and that American constitutional law should be thought of as the result of a complex, evolutionary process, not of discrete, self-consciously political acts by a sovereign People.

Chiricahua and Janos: Communities of Violence in the Southwestern Borderlands, 1680-1880

Lance Blyth revisits the Chihuahua– Arizona– New Mexico area at the center of William B. Griffen’s Apaches at War and Peace: The Janos Presidio, 1750 – 1858 (1988), employing the concept of communities of violence and informed by the work of James Brooks, Pekka Hämäläinen, Brian DeLay, and Juliana Barr, among others. According to Blyth, since “violence is instrumental in establishing, maintaining, and changing relationships both within and between communities,” it can be seen as a tool in the “human survival toolkit” (p. x). Studying how communities used and accommodated violence in the past, the author argues, has merit for understanding how violence fulfills similar purposes today. He consequently attempts to tell the story of Indian and Hispanic communities in a balanced way, and for most of the book he succeeds in that effort.The Janos of the title refers to the presidio community of San Felipe y Santiago de Janos in northern Chihuahua, near the present border with New Mexico and Arizona. In 1580 Franciscans began working with the local Jano and Jocome Indians, but the mission was destroyed in 1680 by Apaches during the Pueblo Revolt. Blyth’s book begins with the establishment of a presidio at the site of the former mission settlement during Spanish efforts to reassert control over the area. Nearby, along the Mimbres and upper Gila Rivers, lived bands of Athapaskan-speaking people who came to be known as Chiricahua. Like the Spanish settlers at Janos, they too were not native to the region, having arrived in the area sometime in the seventeenth century. Also like the Spanish colonials, they incorporated local Janos, Jocomes, and other band peoples into their communities, which led to the disappearance of the aboriginal groups in the course of the eighteenth century.The early part of the book effectively illustrates how violence was used by both Hispanics and Chiricahuas to accomplish their particular economic and social ends. Raiding provided resources that could not be acquired otherwise, particularly human resources in the form of captives. Violence could also serve as a prelude to negotiations that resulted in long-term truces. Among Chiricahuas violence was a necessary aspect of the rite of passage to adulthood and, therefore, the acquisition and maintenance of a family. Similarly, for Hispanic males military service, with its acceptance of violence, provided employment and thereby the ability to support a family.The middle part of the book focuses on how the Spanish colonial state, lacking the necessary resources to eliminate the Chiricahuas, settled on a carrot-and-stick policy of peace establishments. Apaches willing to settle down near Hispanic settlements such as Janos would receive rations and gifts and be given wide latitude; those at war with the state would be persecuted to extermination. In the long run, the policy proved unworkable, and both sides escalated violence to carry out community goals. During the first decades of Mexican independence, the new state government of Chihuahua even attempted a bounty system to deal with noncompliant Apaches that attracted American scalp hunters.In the latter part of the book Blyth introduces a new factor affecting relations between Janeros and Chiricahuas: the creation of a United States– Mexico border that effectively bisected what might be called the Chiricahua homeland. The author does not present Americans as part of a full-fledged community of violence, and that is disappointing, since Blyth makes reference to both Apache raids on American settlements, ranches, and stagecoaches and American campaigns against Chiricahua groups. Analyzing American attitudes toward violence would have provided a clearer understanding of how Apaches came to be caught between Mexican and American national states that between them broke down the Chiricahuas’ ability to resist. As presented, the final chapters of the book become a rushed recitation of Apache movements north and south of the US border and onto and off reservations as Chiricahua leaders attempted to preserve autonomy of action.Built on solid archival research and making good use early on of Chiricahua oral tradition, Chiricahua and Janos adds to the growing body of United States– Mexico border lands studies focused on indigenous autonomy of action. Blyth presents the symbiotic relationship based on violence between the people of Janos and the Chiricahua as both natural and rational. And, he asserts, there lies a lesson for understanding today’s communities of violence in the region: drug cartels. The vengeance and retaliation that drove much Chiricahua and Hispanic violence in previous centuries are at work today among and between narco-syndicates and the Mexican state. Blyth’s communities-of-violence approach thus offers a valuable analytical framework for addressing the tangled interrelationships of sovereign peoples operating in the same geographical space.

Gaddafi and Grotius: Some Historical Roots of the Libyan Intervention

It is increasingly well understood that concepts of ‘humanitarian intervention’ and the ‘responsibility to protect’ enjoy a long and rich history. Nevertheless, it is surprising how plainly the arguments offered by states seeking to justify intervention in Libya in 2011 echo those used by theologians, jurists, and philosophers to justify intervention in the sixteenth, seventeenth, and eighteenth centuries. Those advocating intervention in Libya drew not just on the language of ‘human rights,’ that emerged relatively recently, but on a wider and much older range of idioms and ideas to make their case. In this article, I identify three key arguments that were employed by states in support of the intervention and I demonstrate their parallels with three principal arguments that have been advanced to justify intervention in response to tyranny since the sixteenth century. The three arguments are: the need to protect ‘innocents’; the need to hold ‘tyrants’ to account; and the need to defend the will of a sovereign people. After exploring each argument, I conclude by noting that the claim often heard today, that intervention is under certain circumstances a responsibility rather than merely a right, also has deep roots in early modern thought.

The Legality of Liberal Revolution

Since the fall of communism, liberals have sought to reclaim the mantle of revolution. This new age of liberal revolution, they argue, culminates in a transformative ‘moment’ when the people unite to throw off their shackles and establish a democratic constitution. These founding moments are therefore extraordinary periods of unconstrained politics, where the sovereign people transcend the formal borders of institutionalized politics and legality to draft the constitutional boundaries of their new liberal order. Russian President Boris El’tsin placed his violent and illegal dissolution of the Russian Parliament and period of authoritarian dictatorship within this tradition of liberal revolution. Throughout 1993, El’tsin justified his decision to disband Parliament as the necessary action of an agent of the people in a period of extraordinary (and extralegal) politics. Western commentators have generally placed Russia’s constitutional foundation within this revolutionary paradigm of extraordinary politics. In Russia, however, both El’tsin’s methods and this revolutionary tradition are increasingly viewed with suspicion. This viewpoint is best expressed in the writing of the Chairman of the Russian Constitutional Court, Valerii Zor’kin. Steeped in the anti-revolutionary ideology of the late tsarist Russian constitutionalists, Chairman Zor’kin argues that El’tsin’s actions at the Russian founding helped spawn a culture of lawlessness that has undermined Russian democracy. Although Zor’kin’s approach is flawed, it is an important reminder for liberal constitutional thinkers to reexamine the concrete effects of a desire for a democratically pure founding moment.

Nation and State in Latin America: Political Language during IndependenceFundamentos intelectuales y políticos de las independencias: Notas para una nueva historia intelectual de Iberoamérica

Nation and State in Latin America: Political Language during IndependenceFundamentos intelectuales y políticos de las independencias: Notas para una nueva historia intelectual de Iberoamérica

Constitutional (Re)Vision: Sovereign Peoples, New Constituent Powers, and the Formation of Constitutional Orders in the Balkans

Constitutional (Re)Vision: Sovereign Peoples, New Constituent Powers, and the Formation of Constitutional Orders in the Balkans

Rousseau's Legacy in Two Conceptions of the General Will: Democratic and Transcendent

AbstractThis paper explores the contrast between two conceptions of the general will to be found in Rousseau's work, especially in theSocial Contract. The first of these identifies the general will with the decisions of the sovereign people as they legislate together; the second conceives of the general will as a transcendent fact about the society which may or may not be reflected in actual legislative decisions. Though these conceptions may be capable of reconciliation in Rousseau's own work, the tension remains and is reflected both in Rousseau's own ambivalence towards democracy and in the different ways his thought has been received and adapted in philosophy and politics.

Das Problem des Populismus im Rahmen der europäischen Geschichte

Abstract Populism was treated as a special subject and in a certain way connected to the concept of demagogy. It was presented as a sort of cancer inside the constitutional and democratic - oriented political systems of 19th and 20th centuries. The essay shows how in some sense the appeal to the people is deeply included in the roots of modern constitutionalism. Based on the idea of the sovereign people, modern constitutionalism can not avoid the challenge from subjects claiming that its actual form has betrayed the faith of the true people. This challenge is not necessary produced in order to defeat the democratic constitution, but, of course, an evil always existing. The border line be - tween a good and a bad populism is very thin and to govern these boundaries is a heavy job for a political system looking for its balance. The duty for the leaders of making political speeches, party platforms as means to fight elections and in the end the uprising of television as a communicative medium als...

Romance and Riot: Charles Chesnutt, the Romantic South, and the Conventions of Extralegal Violence

Romance and Riot: Charles Chesnutt, the Romantic South, and the Conventions of Extralegal Violence Andrew Hebard (bio) In a chapter cynically titled “How Not to Stop a Lynching,” William Miller, the African American paragon of civic virtue in Charles Chesnutt’s The Marrow of Tradition, runs through a number of options to stop the impending lynching of a black man: “go to the sheriff . . . telegraph the governor to call out the militia . . . call on the general government.” Predictably, none of these options offer solutions. The sheriff has a “white” liver, the “whole machinery of the state is in the hands of white men,” and the federal government can only intervene under certain “conditions” (192). Based on the 1898 race riot in Wilmington, North Carolina, the novel accurately registers the government’s historic failure to intervene in extralegal racial violence. Carefully planned by a group of wealthy white citizens, the 1898 riot overthrew a democratically elected and racially mixed city government. Government authorities never intervened. Nor did they subsequently punish its organizers or reinstate the displaced local officials. Despite the novel’s historically grounded cynicism, African American characters repeatedly respond to extralegal violence with the hope that “De gov’ner er de President is gwine ter sen’ soldiers ter stop dese gwines-on” (300). By inserting the regulative expectation that the government should intervene, the novel supplements the question of how to stop a lynching with a more fundamental one about why such extralegal violence is permitted in the first place. The state should, after all, maintain a monopoly over the legitimate forms of violence within its territory.1 Lynching is not only illegitimate violence, but it also threatens the very legitimacy of the state. As one turn-of-the-century commentator noted, “Lynch law is actual and concrete anarchy; the one complete form in which anarchism appears in our midst. The United States cannot afford to tolerate it within the national domain if the power of prevention exists” (Pillsbury 707). So why do the soldiers fail to arrive? More pointedly, does this novel reveal a cultural logic that allows the state to abandon African Americans?2 One answer to these questions is simply that the “power of prevention” doesn’t exist. By pointing out that the “the whole machinery of the state is in the hands of white men,” the novel initially blames the weakness of a state corrupted by racism. The state does not permit mob violence; it just cannot prevent it. While this version of the weak state thesis was often forwarded to explain lynching, the novel quickly complicates it by introducing a quasi-legal justification of mob violence that was in wide circulation during the period. Responding to a group of African Americans seeking government intervention, Judge Everton “admitted that lynching was, as a rule, unjustifiable, but maintained that there were exceptions to all rules,—that laws were made, after all, to express the will of the people in regard to the ordinary administration of justice, but that in an emergency the sovereign people might assert itself and take the law into its own hands, —the creature was not greater than the creator” (193). Positing a form of popular sovereignty, Everton refers simultaneously to “the ordinary administration of justice” and to the exceptional power to suspend ordinary law in “an emergency.” While Everton conceives of sovereignty according to its common definition as a supreme power (“the creature was not greater than the creator”), he also conveys something akin to Carl Schmitt’s “state of exception,” wherein the [End Page 471] “[s]overeign is he who decides on the exception” (5). Everton’s “sovereign people” are not so simply because they are the supreme power, but because they decide when the ordinary legal order can be suspended. Lynching, for Everton, is not a transgression of the law that the state is too weak to repress; it is instead a suspension of the law that paradoxically makes the legal order possible. As Giorgio Agamben explains in his reading of Schmitt: “Through the state of exception the sovereign ‘creates and guarantees the situation’ that the law needs for its own validity” (Homo Sacer 17). The recent critical interest in Schmitt...

"Machiavellian Democracy," Differentiated Citizenship, and Civic Unity

"Machiavellian Democracy," Differentiated Citizenship, and Civic Unity Rogers M. Smith (bio) If it had appeared at any time, John McCormick's Machiavellian Democracy would merit recognition as a major contribution to democratic theory. Its publication in 2011, as leaders of reeling and sharply inegalitarian economies in the U.S. and Europe seemed to find it impossible to contemplate any remedies that did not reinforce the advantages of the wealthy, has proven particularly apt. McCormick's core argument—that the modern democratic emphasis on treating the members of a political community as an "absolute, indivisible, and unitary . . . 'sovereign people'" often operates to permit the wealthy few to shape policies in their interests, against those of most of the populace—is being abundantly illustrated at every turn.1 As he acknowledges, it may be debatable whether all or some of McCormick's proposed institutional remedies, including lotteries, class-specific institutions such as reserved seats in legislative assemblies and popular tribunes, and popular political trials, are desirable in modern constitutional democracies like the United States. But his work pushes those questions squarely onto the agenda of modern democratic theory. Rather than attempting a definitive evaluation of these proposals here, I wish to contribute to reflection on them by highlighting two pertinent features of the politics of citizenship that I see as central for modern democratic theory. These are first, the challenge of achieving forms of differentiated citizenship that help realize meaningful civic equality instead of systemic subordination, oppression, and exclusion; and second, the challenge of fostering senses of civic unity sufficiently strong to facilitate [End Page 240] many forms of human fulfillment, without either spurring vicious political chauvinism or unduly privileging the interests, preferences, and identities of some members over others. I argue first, that the class-based proposals of McCormick's "Machiavellian democracy" represent calls for forms of explicitly differentiated citizenship that are clearly valuable for some purposes, but not so clearly more desirable than all other forms of differentiated citizenship, as he sometimes appears to suggest; and second, that their advocacy requires more of an answer to the unavoidable task of promoting senses of shared civic identity and civic unity than McCormick has elaborated. These arguments do not suggest that the path McCormick lays out should not be pursued. Instead they specify two rather treacherous bridges that would have to be crossed along the way. The question of differentiated citizenship was first raised most forcefully in the works of McCormick's late colleague, Iris Young, as part of normative arguments for granting institutional recognition to a wide range of categories of people she saw as oppressed, including, "women, Blacks, Hispanics, gay men and lesbians, old people, and other marked groups."2 Differentiated, or "semi-citizenship," has also recently received valuable analytical elaboration from Elizabeth Cohen, who sets normative considerations aside and instead stresses the political "inevitability" of the structuring of citizenship in different ways for different sets of persons, including children, the disabled, and the naturalized, as well as other, "recognizable identity groups."3 I have contended similarly that, "most American governing officials and most American citizens still believe that people (and corporations) have many different characteristics that the law, including laws defining access to citizenship and the rights and duties of citizenship, must somehow recognize—even if Americans disagree about the forms such legal recognition should take."4 American law does not really define citizenship uniformly and is never likely to do so. As a result, America today, along with other 21st century democracies, faces what might be termed "the problem of the [End Page 241] difference lines"—the continuing challenge of deciding when extending to some groups particular legal rights and obligations that are not assigned to all represents a way of promoting rough civic equality in the face of actually differing resources, opportunities, and aspirations, and when doing so instead imposes on some groups inappropriately subordinated or marginalized civic statuses.5 McCormick's proposals represent explicit forms of class-based "differentiated citizenship." He suggests, among other ideas, the creation of "people's tribunes," who might have limited but meaningful powers to veto congressional legislation, executive orders, and Supreme Court decisions, to call national referenda, and to impeach federal...

Autoritat, opinió i mobilització a l’Oriola del Trienni: una aproximació als significats del liberalisme

Los enfoques sociales muestran que los analisis teoricos de los discursos y practicas politicos son inadecuados. Se necesita, por tanto, comprender social y culturalmente las formas en que se adoptaban y se llevaban a la practica los conceptos y actitudes politicas. Este trabajo estudia los tensos enfrentamientos que tuvieron lugar en Orihuela, en el sur del Pais Valenciano, durante el Trienio constitucional de 1820 a 1823, cuando fue sustituido el obispo antiliberal. Esta situacion condujo a una division de la opinion publica, en la que surgieron dos significados contrapuestos de «el pueblo soberano» y «la ley y las normas». El consiguiente giro antiliberal debe entenderse en el contexto de las redes sociales que formaban los liberales en la ciudad.

Eighty-Nine Divided by Seventy-Six

valuation” [145]). 6. See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (1998), trans. Daniel Heller-Roazen. 7. Jacques Ranciere has suggested, instead, that we resist identifying the supplementary category of the people with any particular class or category, even those who seem to be excluded from political and economic power: “the demos—or the people—does not mean the lower classes. Nor does it mean bare life. Democracy is not the power of the poor. It is the power of those who have no qualification for exercising power” (304). 8. For an invaluable study of the enigma of sociality, especially as it pertains to Poe’s place in the nineteenth-century American political landscape, see Elmer: “The impermeable self and the figures of the social—the masses, the nation, the sovereign people—are reciprocal constructions, mutually determining fictions” (14).

Local forms of governance in Denmark: the revenge of the supplement

The proliferation of local forms of governance problematizes the well‐established and highly normative idea that power and democracy in Denmark are organized in terms of a ‘parliamentary chain of government’, according to which the sovereign people elect the parliament, which in turn controls the government that governs the public administration through bureaucratic control. Consecutive waves of devolution have decentralized the Danish welfare state, and the power of local governments is now being challenged by the emergence of new forms of local governance that involve a plethora of private stakeholders, such as business firms, interest organizations, community groups and individual citizens, in the formulation and implementation of public policy. This article argues that participation of private stakeholders in public policy‐making cannot be reduced to an inferior supplement to traditional forms of representative democracy. The supplement is taking its revenge as the interactive policy arenas are expanding and the role of elected politicians is being transformed from sovereign rulers to meta‐governors. This development poses important challenges to the demand for effective and democratic governing of society and the economy.

Representing the unrepresentable: Rousseau's legislator and the impossible object of the people

Rousseau's paradox of how a multitude wills itself into the status of a sovereign people, by deciding to join the contract before existing as a people, with a general will to make that decision, presupposes the absence of any ultimate social grounds and the contingency of identities and structures. These presuppositions make Rousseau an unacknowledged precursor of Laclau's post-structuralist politics, refuting the view that Rousseau's politics seeks a totally transparent and harmonious state beyond the questioning and ambiguity defining the political. The people's will grounds the social contract's legitimacy but that will lacks any pre-constituted form and clear guidelines for discerning it. It provides a groundless ground. Rousseau's legislator supplements that lack, representing the people in its absence, helping it frame suitable legislation. The people only requires the lawgiving representative because of its constitutive incompleteness: it thus resists full representation. If it already possessed a common will and identity, the lawgiver and the contract would become irrelevant. The undecidability of autonomy/heteronomy, representative/represented, fiction/reality highlighted by Rousseau's legislator affirms the impossibility of political closure as the condition of freedom and change. The people's incompleteness supports rather than jeopardises its sovereignty, allowing it to reconstitute itself in the open-ended quest for democracy. Contemporary Political Theory (2010) 9, 393-413. doi:10.1057/cpt.2009.41

The Artless Art: Leadership and the Limits of Democratic Rhetoric

Persuasion is vital to the practice of democratic leadership, making speech and communication of fundamental importance. Yet, democratic citizens habitually suspect political rhetoric as being either deceitfully empty or dangerously subversive. Rhetoric is thus central in democracy while paradoxically appearing either useless or pernicious. A consequence of this paradox for democratic leaders is that they are forced to avoid fine oratory in favour of a rhetorical style that sounds un-rhetorical, seeming to be plain factually-informative speech. This unique democratic form of rhetoric, which we have called an artless art, seeks to instil trust and to avoid appearing to talk down to the sovereign people. It is both helped and rendered problematic by the media, the essential communicative means in modern society, whose current dominance presents ever-new challenges and opportunities to democratic leaders.

Il legislatore nel Contrat social

A controversial issue in Rousseau’s philosophy is the relationship between the people as a whole, who want the good but cannot see it, and individuals, who see the good but do not want it. This predicament has to be overcome by the Legislator, whose characteristics seem however to be inconsistent with the theory propounded in the first book of the Contrat Social. The aim of this paper is to contribute to the current debate by exploring three possible functions of this key figure, which are 1. to formulate the content of constitutional law; 2. to make the people aware of their sovereignty by bringing to light the rules underlining the social contract; 3.to mediate between the political and the socio-economic sphere, that is between the sovereign people’s efforts to bring about the general will and individuals’ efforts to advance their own particular interest. Being structurally different from the first two, this last hypothesis need not be seen as conflicting with either of them.

Psychiatrists shall prevail

Psychiatrists shall prevail

Talking Europe — the Dilemma of Sovereignty and Modernization

There is a significant amount of scholarly literature produced on the topic of the alleged legitimacy deficit of the European Union (EU). This article is based on the assumption that the legitimacy of the EU is shaped largely by the domestic discourses on European governance. Therefore the stories of the individual countries are crucial for our understanding of EU legitimacy as a whole. The article is an analysis of how the legitimacy of the EU is constructed and shaped in the Czech and Swedish political discourses. It is based on discourse analysis and the constant comparative method of grounded theory, and suggests that the discourses on European unity in the two countries are structured around the nexus of modernization and sovereignty. Based on different constellations of this nexus, three ideal types are outlined: sovereignty unchallenged, sovereignty challenged and modernization unchallenged. In conclusion, it is suggested that the EU has been legitimized primarily as an instrument for modernization. Critics, however, base their argumentation on an underlying discourse on the sovereign people and on an understanding of the EU as a hindrance to progress. The advocates thus emphasize output-oriented legitimacy, while the critics are more concerned with input-based legitimacy.

A Political Philosophy of Constitutional Founding: Identity of the Sovereign People and the Legitimacy of Popular Sovereignty

A Political Philosophy of Constitutional Founding: Identity of the Sovereign People and the Legitimacy of Popular Sovereignty