The Problem of Sovereignty

1923 ◽  
Vol 17 (3) ◽  
pp. 404-414 ◽  
Author(s):  
Baron S. A. Korff
Keyword(s):  
International Law ◽  
The State ◽  
The Other ◽  
General Idea ◽  
The Political ◽  
Modern Theory ◽  
Theoretical Problem ◽  
Equal Importance ◽  
The One ◽  
Political Question

One of the most difficult problems of modern political science is that of sovereignty. The commonly accepted theory contains many elements that seem to be in obvious contradiction to our ideals of democracy; some of them do not fit into the present-day conception of state and government, while others are plain remnants of feudalism and autocracy. One should keep in mind, however, that it is not only a purely theoretical problem closely associated with the general idea of the state, but that it is also an eminently practical one, as it necessarily involves the political question of limitations on the state's powers. Those limitations are of equal importance internally, in the relations between state and citizen, and externally, in the domain of international law.As often happens in cases where political questions are involved, the theory of sovereignty has two extreme wings of proponents. On the one hand there are theorists who defend an all-powerful state and make of the idea of sovereignty the emblem and symbol of the all-powerful state authority. On the other hand, there have appeared recently many writers, who believe that dangers lurk in the views of the first-mentioned school and who are loath to admit that any power, state or personal, may be unlimited; they distrust the theory of sovereignty, because of its association with unlimited power; consequently, they deny the existence of sovereignty altogether, asserting that it has no place whatever in the modern theory of the state.

Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth

2021 ◽  
pp. 1-20
Author(s):  
José Duke S. Bagulaya
Keyword(s):  
Civil War ◽  
International Law ◽  
Legal Discourse ◽  
The State ◽  
The Other ◽  
State Of Exception ◽  
Utopian Vision ◽  
The World ◽  
Realistic Representation ◽  
The One

Abstract This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.

Act of State Doctrine

2020 ◽  
Author(s):  
Alfonso Iglesias
Keyword(s):  
International Law ◽  
Separation Of Powers ◽  
General Rule ◽  
Executive Branch ◽  
The State ◽  
The Political ◽  
Sovereign State ◽  
National Courts ◽  
Foreign State ◽  
Political Question

According to the act of state doctrine, national courts must refrain from prosecuting the validity of official acts carried out by a foreign state within its own territory, except if it commits violations of international norms with broad consensus of international society, such as, for example, a case of genocide. Both its judicial self-restraint character and its reflection in the judicial deference to the executive branch would justify the ex officio application of the act of state doctrine by the courts. This doctrine is neither a rule nor a legal obligation required by international law, although it arises from the relevance of the international rule of territorial sovereignty of the state. It was not introduced by a constitutional or legislative provision, but is a common law principle developed mainly by Anglo-Saxon jurisdictions on the basis of considerations of international comity, respect for the principles of sovereign equality and non-intervention in the internal affairs of other states, separation of powers, and the choice of law freedom. To some extent, the legal basis of the doctrine of immunity for acts of state was analogous to the basis of immunity granted to the foreign sovereign state and its agents. The underlying rationale of this doctrine consists in preventing domestic courts from issuing adverse judgments against foreign governments that could embarrass international relations and interfere with the conduct of foreign affairs by the executive branch power. The doctrine of the act of state (and that of the political question) has important differences with the immunity of the foreign state: (1) This immunity is per se a general rule of public international law of a customary nature accepted and applied universally—in addition to being regulated in various international conventions, one of them of universal vocation—unlike the doctrines cited, which are not regulated by national legislations or by international codification efforts. (2) The moment of operation is also different, since the immunity of the foreign state functions ex ante as a procedural exception to the exercise of jurisdiction by the court of the territorial state (or court of the forum), which for that reason is obliged to recognize its lack of competence to try the case before it, while the doctrines of the state act and the political question act later—only if the defendant does not enjoy immunity—when the court is already exercising its competence and knowing the merits of the case. (3) The application of the immunity of the foreign state requires that the foreign state be sued before the courts of the forum, whereas the act of state doctrine does not require that the foreign state itself be a party to the proceedings, but it is sufficient to question the validity of an internal act of the foreign state during the judicial proceedings.

Hegel as a Theorist of Secularization

2013 ◽  
Vol 34 (2) ◽  
pp. 223-244
Author(s):  
Espen Hammer
Keyword(s):  
Philosophy Of Religion ◽  
The State ◽  
The Other ◽  
The Political ◽  
Adequate Account ◽  
Religious Development ◽  
End Point ◽  
Religious Thinking ◽  
The Absolute ◽  
The One

Hegel's philosophy of religion is characterized by what seems to be a deep tension. On the one hand, Hegel claims to be a Christian thinker, viewing religion, and in particular Christianity, as a manifestation of the absolute. On the other hand, however, he seems to view modernity as largely secular, devoid of authoritative claims to transcendence. Modernity is secular in the political sense of requiring the state to be neutral when it comes to matters of religion. However, it is also secular in the sense of there being no recourse to authoritative representations of a transcendent God. Drawing on Charles Taylor's view of secularization, the article focuses on the second strand of his religious thinking, exploring how Hegel can be thought of as a theorist of secularization. It is claimed that his dialectic of religious development describes a process of secularization. Ultimately, Hegel's system offers a view of the absolute as immanent, suggesting that an adequate account of religion will necessarily have to accept secularization as the end-point of spirit's development. This is how the tension between religion and secularization can be resolved.

Critical legal studies

2018 ◽  
Author(s):  
Emilios Christodoulidis ◽  
Johan van der Walt
Keyword(s):  
Political Economy ◽  
Legal Theory ◽  
The State ◽  
The Other ◽  
The Political ◽  
Legal Tradition ◽  
Social Production ◽  
Legal Studies ◽  
Critical Legal Theory ◽  
The One

This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.

Politicising law or legalising politics? Justiciability and the “political question” on the examples from international justice

2020 ◽  
Vol 10 (4) ◽  
pp. 45-58
Author(s):  
Mikhail Gal'perin
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Separation Of Powers ◽  
The Other ◽  
The Political ◽  
Resolution System ◽  
International Dispute ◽  
International Tribunals ◽  
Political Question ◽  
Dispute Resolution System

Author is pointing out the problem of interaction between the political nature of the dispute concerned and the competence of international tribunals. To assess such legal interaction the “justiciability” concept is used. This concept, well known from the US and the UK jurisprudence, allow national courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other branches and the public. Despite the fact that the concept initially appeared in the national law, it became equally important for the international dispute resolution system. Using some remarkable recent cases from the supreme national and international tribunals’ practice author concludes that international tribunals are increasingly expanding their own competence to cover issues traditionally reserved for national authorities and/or lying exclusively in the diplomatic realm. The “evolutive” interpretation of provisions of international law adapted by some international tribunals (and other international organs) contradicts their literal meaning as originally intended by the states, is becoming a persistent trend. This entails a natural reaction of national legal systems represented by higher courts: on the one hand, they avoid direct confrontation through maintaining the classical paradigm of respect to international law, and, on the other hand, draw “border lines” designed to limit the jurisdiction of international courts and arbitration tribunals. The politicization of international arbitration is a question that should not be embarrassingly swept under the carpet or considered marginal. Otherwise, there is a risk that it would destroy the international dispute resolution system and, as a consequence, undermine the mechanisms of international law. At the same time, no peaceful resolution of the conflict of jurisdictions is possible without understanding the problem in the legal plane, without joint determination of which cases are justiciable in the international process, and which questions should be considered “political”. Author made the attempt to give a legal definition of the “political question” in the international procedure and formulate legal tests which could help international judges and arbitrators to define, whether they are ready to and whether they should consider the particular case, related to the “political question”, on the merits (and not to recognise it inadmissible on procedural grounds).

Leibowitz, Yeshayahu (1903–94)

2018 ◽  
Author(s):  
D. Hartman
Keyword(s):  
The State ◽  
The Other ◽  
Israeli Society ◽  
Modern World ◽  
The Political ◽  
Religious Thought ◽  
Political Reality ◽  
Religious Law ◽  
The One ◽  
State Of Israel

Unlike the major intellectual currents that shaped religious thought in the modern world, Leibowitz’s thought is deeply anchored in the Israeli context. Both as philosopher and activist, Leibowitz lived and articulated the paradoxes of modern Israel where he lived and was best known. His reputation as a Socratic gadfly to the establishment reflected his ongoing critique of both Israeli society in the light of Judaism, and Judaism in the light of the revolutionary implications of the creation of the State of Israel. On the one hand, he was a Jewish patriot, a fighter for Jewish independence from all forms of foreign rule; on the other hand, he was a harsh, relentless critic of national and political expressions of chauvinism in the Israeli establishment. A strictly observant Jew, Leibowitz had less impact on traditional religious Jews than on secular Israelis. His central message is that what makes Jews distinctive as a group is neither their theology nor their Bible, but the system of law with which they regulate their lives. Judaism is a communal concept, and there is no point in religious Jews ignoring the State of Israel, or expecting others to bear their civil burdens for them. Religious law has to be reconciled with life in the political reality of the state, and this necessitates changing those attitudes to the law which reflect the historical conditions of life in exile.

Representation and participation in the changing world of party politics

1998 ◽  
Vol 6 (2) ◽  
pp. 161-174 ◽  
Author(s):  
Peter Mair
Keyword(s):  
20Th Century ◽  
Party Politics ◽  
The State ◽  
The Other ◽  
The Political ◽  
Processes Of Change ◽  
Other Hand ◽  
Mass Politics ◽  
The Future ◽  
The One

The 20th-century has been the century of mass politics, and the mass parties that emerged at the beginning of this century became deeply rooted within wider society. The passing of this golden age of the party has now been marked by two distinct processes of change. On the one hand, parties have become more distant from society and more closely linked to government and the state. On the other hand, there has been a decline in the political identities of the parties, such that voters now find it increasingly difficult to distinguish between them. These changes, and the related transformation of politics into administration, have led to a growth in popular indifference to parties and to politics in general, as well as to a declining sense of engagement. Should this trend continue, it is mass spectacle rather than mass involvement that is likely to characterize the future of mass politics.

scholarly journals Reputation, Self-Esteem, and Competitive Rewards

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 210-215
Author(s):  
Rachel Brewster
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Self Esteem ◽  
Third Parties ◽  
The Other ◽  
Third Party ◽  
The Political ◽  
Pareto Efficient ◽  
The One

In Rewarding in International Law, Anna van Aaken and Betül Simsek organize and refocus much of the existing literature on international cooperation and compliance highlighting the set of positive and negative tools available. In this essay, I extend the Rewarding framework, making some additional distinctions between the concepts, which both highlight the possibility of rewarding in international law and sketch the limits for such analysis. The first part differentiates rationalistic conceptions of reputation, on the one hand, and behavioral notions of self-esteem, on the other, as analytically distinct mechanisms for rewarding. By pulling these concepts apart, this essay emphasizes the different causal paths for influencing government actors and makes the case for an independent place for self-esteem in the Rewarding framework. In the second part, this essay questions whether rewards are always positive (and thus Pareto efficient) in light of third-party effects. Some rewards are competitive; a reward to one party is a relative punishment to third parties who are competitively disadvantaged by an exclusion from the reward. The incorporation of third-party analysis underscores the political limits of rewarding stemming from third-party resistance to rewarding or, alternatively, demands for additional rewards from third parties that can create capacity concerns for rewarding states.

scholarly journals Den filosofiske politiker – Frederik den Store og statsræsonen

2018 ◽  
pp. 55-70
Author(s):  
Mathias Hein Jessen
Keyword(s):  
The State ◽  
The Other ◽  
The Political ◽  
Military Force ◽  
Political Reality ◽  
The Enlightenment ◽  
Other Hand ◽  
Reason Of State ◽  
The One ◽  
Political Thinker

Frederick the Great (ruled 1740-86) is one of the main figures of Enlightened Absolutism. Frederic was on the one hand an enlightened philosopher deeply inspired by the ideals of the Enlightenment. On the other hand he ruled one of the most autocratic states in history and commanded the strongest and most disciplined military force of his time. Despite his many writings, however, Frederick is rarely investigated as a political thinker. The article focuses on the political writings of Frederick the Great and more specifically on his use of the concept of reason of state to legitimize his rule, not least with regard to his enlightened ideals. In this struggle for legitimacy, Frederick abolishes the concept of a personal ruler, and in doing so becomes a fascinating figure in the transition from a personalized government to the abstract, depersonalized concept of the state that still dominates our political reality today.

Whose Mistake? The Errors of Friendship in Cicero, La Boétie, and Montaigne

2018 ◽  
Author(s):  
Marc Bizer
Keyword(s):  
The State ◽  
The Other ◽  
The Political ◽  
Wars Of Religion ◽  
Political Extremism ◽  
Other Hand ◽  
French Wars Of Religion ◽  
It Support ◽  
The One

Focusing on Montaigne’s adaptation of Cicero’s De amicitia within his own essay “On Friendship,” this chapter reveals Montaigne’s complex reception of the “Roman error” of putting friendship before the needs of the state. Drawn to such matters in part by his friendship with Étienne de La Boétie, Montaigne, in effect, disagrees with Cicero over how to react to this error. Cicero (through his Laelius) opts to condemn it, while Montaigne finds in it support for his view of friendship, one that in turn sustains Montaigne’s moderation amid the political extremism of the French Wars of Religion. Montaigne’s rejection of Roman friendship as error on the one hand reflects his questioning of the value of ancient models for understanding the present. On the other hand, however, his characterization of ideal friendship as autotelic and autonomous can also be seen as a tacit acknowledgment that friendship among the elite is inherently political.

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