The Public's Law

2019 ◽  
Author(s):  
Blake Emerson
Keyword(s):  
Social Services ◽  
Max Weber ◽  
Chief Executive ◽  
Normative Theory ◽  
The State ◽  
Carl Schmitt ◽  
Constitutional Theory ◽  
Economic Regulation ◽  
Administrative State ◽  
The People

The Public’s Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers—such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson—developed a democratic understanding of the state from their study of Hegelian political thought. G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel’s view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946. The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning.

scholarly journals KONSEP WELLFARE STATE DI INDONEISA

2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Winda Roselina Effendi
Keyword(s):  
Social Security ◽  
Welfare State ◽  
Social Services ◽  
The State ◽  
The Public ◽  
The People ◽  
Role Of The State ◽  
Market Economy System ◽  
Economy System

Walfare State concept born in the era of the 20th century as a correction of the development of the concept of the country as night watchman, the phenomenon of economic capitalism that gradually leads to lameness in the distribution of sources of prosperity. In the Walfare State concept, the state is required to extend its responsibility to the socio-economic problems facing the people. The functions of the state also include activities that were previously beyond the scope of state functions, such as extending the provision of social services to individuals and families in specific matters, such as social security. The role of the state can not be separated with Welfare State because the state that plays a role in managing the economy which includes the responsibility of the state to ensure the availability of basic welfare services in certain levels. Welfare State does not reject the existence of a capitalist market economy system but believes that there are elements in the public order that are more important than market objectives and can only be achieved by controlling and limiting the operation of such market mechanisms.Keywords: walfare state, country, economic systemKonsep Walfare State yang lahir di era abad ke-20 sebagai koreksi berkembangnya konsep negara sebagai penjaga malam, gejala kapitalisme perekonomian yang secara perlahan-lahan menyebabkan terjadinya kepincangan dalam pembagian sumber-sumber kemakmuran bersarma. Dalam konsep Walfare State, negara dituntut untuk memperluas tanggung jawabnya kepada masalah-masalah sosial ekonomi yang dihadapi rakyat. Fungsi negara juga meliputi kegiatan-kegiatan yang sebelumnya berada diluar jangkauan fungsi negara, seperti memperluas ketentuan pelayanan sosial kepada individu dan keluarga dalam hal-hal khusus, seperti social security, kesehatan.  Peran negara tidak bisa dipisahkan dengan Welfare State karena negara yang berperan dalam mengelola perekonomian yang yang di dalamnya mencakup tanggung jawab negara untuk menjamin ketersediaan pelayanan kesejahteraan dasar dalam tingkat tertentu. Welfare State tidak menolak keberadaan sistem ekonomi pasar kapitalis tetapi meyakini bahwa ada elemen-elemen dalam tatanan masyarakat yang lebih penting dari tujuan-tujuan pasar dan hanya dapat dicapai dengan mengendalikan dan membatasi bekerjanya mekanisme pasar tersebut. Kata Kunci: walfare state, negara,sistem ekonomi 

Origins of Progressivism

2019 ◽  
pp. 23-60 ◽  
Author(s):  
Blake Emerson
Keyword(s):  
Twentieth Century ◽  
Legal Theory ◽  
Max Weber ◽  
State Theory ◽  
The State ◽  
Legal Positivism ◽  
Carl Schmitt ◽  
Constitutional History ◽  
German State ◽  
Normative Concept

This chapter describes German state theory in the nineteenth and twentieth century. It describes this tradition in order to clarify the relevance of German ideas to the American context. American political scientists and legal scholars frequently rely on German thinkers such as Max Weber and Carl Schmitt to understand the state. But these divergent assessments lack a grounding in the longer trajectory and the institutional dilemmas of German legal theory. The chapter provides that broader context and directs readers’ attention to the most promising strand of German thought: the philosophy of G.W.F. Hegel. Hegel would have formative significance for the Progressive thinkers who developed the American administrative state. Hegel understood the state’s purpose to be the advancement of freedom. The chapter contextualizes this idea and shows its influence throughout the nineteenth century, in the Rechtsstaat theories of Robert von Mohl, Lorenz von Stein, and Rudolf von Gneist. It then shows how this normative concept of the state was emptied out with the turn to legal positivism at the end of the century. Weber’s formal-rational conception of bureaucracy then arrived at a particularly unstable moment in German constitutional history, in the transition from monarchy to democracy. Weber’s bifurcated conception of legal and charismatic authority paved the way for Schmitt’s proto-totalitarian theory of the state. The chapter concludes by showing how German theorists in the second half of the twentieth century, such as Jürgen Habermas, continued to rely on Weber’s instrumental conception of bureaucracy.

The Concept of the Political: A Key to Understanding Carl Schmitt's Constitutional Theory

1997 ◽  
Vol 10 (1) ◽  
pp. 5-19 ◽  
Author(s):  
Ernst-Wolfgang Böckenförde
Keyword(s):  
The State ◽  
Carl Schmitt ◽  
The Political ◽  
Constitutional Theory ◽  
Personal Memory ◽  
Political Aspect ◽  
Legal Fiction ◽  
Political Unity ◽  
Legal Perspective ◽  
Law Student

The focus of this paper is not on the person, but on the work of Carl Schmitt, in particular the significance of Schmitt's concept of the political for an understanding of his legal and constitutional theory. Let me start with a short personal memory. When I was a third year law student, I read Carl Schmitt's Constitutional Theory. I came across the formulations that the state is the political unity of a people and that the rule of law component in a constitution is an unpolitical component. I was puzzled by these two remarks. I had learned from Georg Jellinek that the state, from a sociological perspective, is a purposeful corporative unit and, from a legal perspective, represents a territorially based corporation. I had also gathered some knowledge about “organic” state theories, especially that of Otto von Gierke who considers the state an organism and a real corporative personality rather than a mere legal fiction. On the basis of these theories, I felt unable to understand Schmitt's point that the state is the political unity of a people, because in those theories the political aspect is largely missing. It was only later that, by reading and studying Carl Schmitt's essay The Concept of the Political, I gradually learned to make sense of the above remarks. Thus I have discovered that that essay, and the understanding of the political elaborated in it, contains the key to understanding Carl Schmitt's constitutional theory in general. I would now like to explain this.

The State of the Political

2003 ◽  
Author(s):  
Duncan Kelly
Keyword(s):  
Intellectual History ◽  
Legal Theory ◽  
Max Weber ◽  
Political Representation ◽  
Historical Context ◽  
The State ◽  
Carl Schmitt ◽  
Political Criticism ◽  
History Of ◽  
Franz Neumann

This book offers a broad-ranging re-interpretation of the understanding of politics and the state in the writings of three major German thinkers, Max Weber, Carl Schmitt, and Franz Neumann. It rejects the typical separation of these writers on the basis of their allegedly incompatible ideological positions, and suggests instead that once properly located in their historical context, the tendentious character of these interpretative boundaries becomes clear. The book interprets the conceptions of politics and the state in the writings of these three thinkers by means of an investigation of their adaptation and modification of particular German traditions of thinking about the state, or Staatsrechtslehre. Indeed, when the theoretical considerations of this state-legal theory are combined with their contemporary political criticism, a richer and more deeply textured account of the issues that engaged the attention of Weber, Schmitt and Neumann is possible. Thus, the broad range of subjects discussed in this book include parliamentarism and democracy in Germany, academic freedom and political economy, political representation, cultural criticism and patriotism, and the relationship between rationality, law, sovereignty and the constitution. The study attempts to restore a sense of proportion to the discussion of the three authors' writings, focusing on the extensive ideas that they shared rather than insisting on their necessary ideological separation. It is a detailed re-appraisal of a crucial moment in modern intellectual history, and highlights the profound importance of Max Weber, Carl Schmitt and Franz Neumann for the history of European ideas.

Who’s Afraid of Suprastate Constitutional Theory?

Legitimacy ◽  
2019 ◽  
pp. 182-205
Author(s):  
Cormac Mac Amhlaigh
Keyword(s):  
Normative Theory ◽  
The State ◽  
Constitutional Theory

This chapter is a reply to critics of attempts to ground the legitimacy of suprastate institutions in constitutionalism. More specifically, it responds to the objection that suprastate constitutionalism is idealistic due to the improbability of a demos beyond the state. Two points are made: first, the objection relies on a normative understanding of the idea of a demos that is itself potentially idealistic and, second, the objection assumes that idealism in normative theory is problematic, which might be doubted. The chapter concludes that we should be more sanguine about the contribution that constitutionalism in all its forms can make to addressing the challenges of legitimacy faced by contemporary suprastate law and governance.

Hostis not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt

1997 ◽  
Vol 10 (1) ◽  
pp. 35-47 ◽  
Author(s):  
Ellen Kennedy
Keyword(s):  
General Theory ◽  
The State ◽  
Carl Schmitt ◽  
Constitutional Theory ◽  
The Public

Der Krieg ist durchaus nicht Ziel und Zweck oder gar Inhalt der Politik, wohl aber ist er die als reale Möglichkeit immer vorhandene Voraussetzung, die das menschliche Handeln und Denken in eigenartiger Weise bestimmt und dadurch ein spezifisch politisches Verhalten bewirkt.In an early review of the Verfassungslehre (1928), Margit Kraft-Fuchs criticizes Carl Schmitt's argument as circular and illogical. While claiming to establish an entirely new constitutional theory, not a general theory of the state, Schmitt in fact relies on a tautology and derives “an is from an ought”. Quoting Schmitt's argument in Der Wert des Staates und die Bedeutung des Einzelnen (1914) that “The mere actuality of power at no point provides a justification unless it assumes a norm by reference to which its claim is legitimated”, Kraft-Fuchs concludes that it is “astonishing he has forgotten this basic logical insight between 1914 and 1928.”

Price Fixing and the Political Community, 1778–1779

2018 ◽  
Author(s):  
Kenneth Owen
Keyword(s):  
Political Culture ◽  
The State ◽  
Political Community ◽  
Popular Sovereignty ◽  
The Political ◽  
Economic Regulation ◽  
State Constitution ◽  
The People ◽  
The Right

In 1779, Pennsylvanians undertook a bold experiment in economic regulation—forming price-fixing committees to reverse wartime inflation. This chapter analyzes the committees’ structure and the context in which they were created. Winter 1778 saw great political turbulence: the evacuation of Philadelphia, treason trials, and an attempt to rewrite the state constitution. By 1779, defenders of the constitution were using price-fixing committees as a means of defending a Constitutionalist vision of government in which the people held the reins of power and the right to shape that government. Though the committees struggled to establish universal legitimacy, they helped legitimate a robust participatory political culture based upon popular sovereignty. This culture, though, remained turbulent, as in the Fort Wilson Incident of October 1779, in which militiamen surrounded the house of Republican politician James Wilson. This chapter investigates how Constitutionalists defended their vision of political culture even during periods of great upheaval.

Public Law in the State Courts in 1927–1928

1928 ◽  
Vol 22 (3) ◽  
pp. 617-636
Author(s):  
Robert E. Cushman
Keyword(s):  
Supreme Court ◽  
Chief Executive ◽  
Federal Courts ◽  
The State ◽  
Constitutional Amendment ◽  
Special Session ◽  
Constitutional Amendments ◽  
State Supreme Court ◽  
The People ◽  
The Supreme Court

Special Session—Power to Propose Constitutional Amendments Not Included in Governor's Call. In 1926 a special session of the Pennsylvania legislature proposed an amendment to the state constitution in the form of a new section, although the subject-matter of this amendment was not referred to in the governor's proclamation calling the session. In a taxpayer's action to prevent the submission to the people of this proposal it was alleged that the proceeding was in violation of Art. 3, Sec. 25, of the constitution of Pennsylvania, which provides: “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session.” In Sweeney v. King the state supreme court held that a resolution proposing a constitutional amendment is not “legislation” within the meaning of this clause. In reaching this conclusion it relied heavily upon its earlier decision in Commonwealth v. Griest in which it had held that a constitutional amendment is not “legislation” which must be submitted to the chief executive for his approval, a doctrine well established both in state and federal courts. An opposite result on the principal question was reached by the supreme court of California in People v. Curry. Here the restriction upon a called session of the legislature was held to preclude the proposal of a constitutional amendment. The purpose of the restriction was declared to be to regulate the duration of the session and keep down expenses, and this purpose, it was held, ought not to be defeated by a strained or highly technical interpretation.

Sovereignty: Seventeenth-Century England and the Making of the Modern Political Imaginary

2020 ◽  
Author(s):  
Feisal G. Mohamed
Keyword(s):  
Seventeenth Century ◽  
Legal History ◽  
The State ◽  
Carl Schmitt ◽  
Andrew Marvell ◽  
First Order ◽  
The People ◽  
The Status ◽  
Political Imaginary

Sovereignty is the first-order question of a politics attaching itself to the state, and seventeenth-century England provides an important case study in the roots of its modern iterations. With these central claims in view, this book explores the thought of Thomas Hobbes, John Milton, and Andrew Marvell, as well as lesser-known figures, such as William Fiennes, Lord Saye and Sele, and John Barclay. In addition to political philosophy and literary studies, it also takes account of the period’s legal history, such as the exercise of the crown’s feudal rights through the Court of Wards and Liveries, the status of corporations and contracts, debates over habeas rights, and the contested jurisdiction of prerogative courts. Theorizing sovereignty in a way that points forward to later modernity, the book critiques key concepts in the thought of Carl Schmitt: the mechanization of the state; land appropriation and legal order; the concept of the “people”; the pluralist state; and the protection–obedience axiom.

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