Who, the people? Rethinking constituent power as praxis

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism.

The Functions of Principle as the Basis of Court Decision in Hard Cases

The task of court is to produce just decisions. A court decision may be just if it coheres moral. Principle is praxis of moral. This article is to articulate that principle has significant meanings in court’s decisions. This is because principle is a moral standard that serves to be a reference for Court to settle hard cases equitably. In this writing, case approach is employed. In addition, it also uses comparative approach, in which court decisions of different countries are presented. The purpose of using comparative approach is to find similarities in referring to principle despite different jurisdictions and even different legal systems. From this study, it is found that principle may serve four functions to the court to reach equitable decisions. First, it may be a legal basis for the court to settle a case equitably in the absence of legal rule. In fact, not all human conducts are prescribed by law. It is frequently presumed that what is not prohibited is permitted to do. In this study, it is found that what is not forbidden is not necessarily permissible. The corner stone of determining whether or not it is permissible is principle. In this case, principle served to be legal basis directly applied by the court to avoid producing unjust judgment. Second, the principle has the derogatory function to supersede a statutory provision. In this case, applying such a provision may result in decision contrary to moral. This, certainly, contradicts the idea of the establishment of court of justice. It is justified, therefore, referring to the principle, the court supersedes such a statutory provision to bring about a just decision. Third, the principle serves to be a basis for the court to interpret obscure statutory provision governing the case. It is not unusual that statutory provision is obscure or ambiguous. Such a provision is hard to understand. Settling the case governed by such a provision appropriately, the court should interpret the provision sensibly.

Criminal Juries in the 21st Century

The jury is often celebrated as an important symbol of American democracy. Yet much has changed since 1791 when the Sixth Amendment guaranteed all citizens the right to a jury trial in criminal prosecutions. Psychological and legal scholars have empirically evaluated many claims about the strengths and limitations of the jury system. Now, scientific attention is focusing on new challenges that contemporary juries face. The authors of the chapters in this volume consider myriad legal issues that arise when jurors decide criminal cases while reviewing cutting-edge psychological research and ways that this research can improve the experience and performance of the modern criminal jury. The first part of this book reviews recent societal shifts in attitudes and their potential impact on the demographic and ideological composition of the criminal jury and, in turn, the jury’s ability to make fair and just decisions. The second part of the book considers how recent technological advances have generated new sources of influence on jurors’ evaluations of evidence and decision-making. The final part of the book examines how emotions impact the jury decision-making process and individual citizens’ experiences of serving as jurors. Each of these sets of issues is relevant to understanding the structure, functioning, and performance of today’s juries. This volume offers a unique and broad view of criminal juries, drawing attention to a wide range of issues that impact jurors’ decision-making in the 21st century and, thus, are in need of theoretical, scientific, and legal attention.

National identity and distrust in the police: The case of North West Wales

Trust in the police, as defined by perceived procedural fairness, just decisions and effectivity, may be impacted by deep political divisions among the population, especially where citizens adopt opposing national identities. In Europe, North West Wales is one such area. Nationalism is intensified by language issues (Welsh vs. English) and historical experiences of UK institutions. A sample of 207 residents living within the local authority of Gwynedd were asked to take part in the study. A questionnaire survey addressed how much trust in the police ultimately depends upon national identity as expressed by preference for the Welsh language, trust in UK institutions and attitudes towards political symbols. Other factors tested included personal experience of the police, the influence of news reports and police TV series, as well as the perceived effectiveness of the police in addressing crime. Trust in UK institutions, preference for the Welsh language and news reporting were found to have most influence on trust in the police.

Court of Blood: Treason and Terror under Paraguay's Francisco Solano López

Treason during wartime inspires some of the worst features in the human character. Not only does the traitor besmirch his own reputation in the eyes of his countrymen, but those near him are frequently polluted by association. Worst of all, the desire for vengeance that is unleashed through treasonous acts frequently brings excesses that dwarf the original crime. It is for this reason that magistrates and systems of law in Western democracies have traditionally tried to leech the passion out of individual cases of treason as they attempt to render equitable and just decisions.

Deciding The Undecidable A Few Things Post-Modernism Might Have to Offer Public Administration

Despite its irritating apparent refusal to answer public administrators' need for help in understanding complex situations and making tough decisions, post-modem thought actually has some rather practical observations to offer. Using Robert Frosts poem, "Mending Wall," as a catalyst for reflection, this brief essay considers central post-modem questions like the power-knowledge nexus and the impossibility of closure, in order to suggest the possibility that just decisions might be grounded in a recognition of undecidability, that is, the openness that otherness constitutes.

Sen, Marx and justice: a critique

Purpose The purpose of this paper is to offer a critique of Sen’s utilisation of aspects of Marx’s thought that inform his idea of justice. Marx’s ideas appear in four main areas of discussion: Sen’s positioning of Marx in relation to the other thinkers in his approach to justice; Marx’s fluid notion of identity and its relation to social choice; the problem of going beyond a subjective perspective to consider objective concerns by considering the impact of what Sen calls “objective illusion”; and the issue of just redistribution. Design/methodology/approach The author utilises a Marxian framework of analysis that engages in immanent critique of Sen’s use of Marx in relation to his theory of justice. This is accomplished through textual analysis and by critical assessment of the analytical Marxist tradition that Sen can be seen as using in his own theories with all their inherent weaknesses. Findings Sen’s attempt to use Marx’s ideas to inform his theory of justice founder because: he groups Marx with thinkers that would not accept his desire for the abolition of capitalism and a more just society beyond it. He reduces Marx to the analytical tradition with all its inherent weaknesses. He resorts to a methodological individualist approach of choice that Marx rejects. His search for positional objectivity is undermined by the power of capitalist ideology and ruling class interest. His discussion of just redistribution ignores how Marx’s approach can overcome the arbitrariness that Sen thinks is inevitable when making just decisions. Research limitations/implications Theoretically, the paper suggests that, based on immanent critique and textual analysis, Sen’s use of Marx’s idea of justice is problematic most notably because Sen keeps his analysis within the framework of capitalism that Marx would reject. The implication for further research is the development of Marx’s own arguments on what constitutes a just society. Practical implications Practically, the paper raises questions about the capacity for justice to be achieved within the capitalist system for the reasons discussed in relation to Sen. Social implications Socially, the paper implies that far greater measures to tackle the injustices of the world are necessary than seem to be admitted to by justice theorists such as Sen. Originality/value The author shows that the use of Marx’s theories to inform Sen’s notion of justice, while to be welcomed, lose their efficacious power to expose the full injustice of capitalism and the need for its transcendence.

LEGAL HUMANISM AND LAW-AS-INTEGRITY

According to Ronald Dworkin, all judges are by necessity philosophers, and no judge is a better philosopher than Hercules. This superhuman jurist understands that law's empire embraces not just decisions about rights made in the past, but also rights implicit in the theory of political morality that those decisions presuppose. He is able to survey all of the diverse laws within a system and then construct a comprehensive theory of political morality that shows those laws to be as coherent and unified and just as they can be. From this theory not only will right answers in hard cases emerge, but the value of integrity-the value of extending to everyone the rights extended to some so that equal concern and respect is secured for all-will be honoured. In contrast, Herbert, the judge Dworkin introduces as Hercules' nemesis, thinks that law ends just at the point where hard cases begin. Herbert is intellectually flatfooted in the face of legal challenges that Hercules can handle adeptly and accurately.

Equality of Arms – Defining Human Rights in the Jurisprudence of the International Criminal Tribunal for the former Yugoslavia

The success of the International Criminal Tribunal of the former Yugoslavia in fulfilling its mandate turns on the justness of the decisions it renders. To ensure that its judgements are accepted by the international community as just decisions the Tribunal is directed by the Report of the Secretary-General to adhere fully in its criminal proceedings to internationally recognized human rights standards. This directive suggests that the Tribunal should adhere to the interpretation of human rights principles as understood by other jurisdictions. However, in some instances the Tribunal has, by virtue of its statutory requirements, been unable to follow those standards as understood by other jurisdictions and it has justifiably adopted a contextual approach to the application of certain human rights principles to its criminal proceedings. In other instances, however, the Tribunal has purported to adhere fully to certain human rights principles as adopted by other jurisdictions. This has occurred with respect to the Tribunal's adherence to the principle of equality of arms. In this instance, however, the Tribunal's purported adherence to that principle has led to a situation where that adherence has had a negative effect on the justness of the decisions it has rendered. In the following it is argued that with respect to the application of the principle of equality of arms the Tribunal should adopt a contextual approach if the decisions it renders are to be just decisions and are to have the appearance of being just decisions.