Liberal Self-Determination, Discrimination, and the Right to Exclude

This chapter defends one of the building blocks of a complete liberal theory of immigration by defending an account of the state’s prima facie right to exclude that has the resources to explain what is wrong with “discriminatory” exclusion in the area of immigration—that is, exclusion on the basis of morally arbitrary features, such as sex, sexuality, and race. Like other statist accounts, the chapter appeals to a right to self-determination to justify a state’s right to exclude. But unlike these other theories, it does not appeal to the psychological harm of insult. The focus is instead on the liberal aspect of self-determination and the surprising ways in which liberal principles constrain the state’s right to both include and exclude prospective new members.

From the Death to Rebirth of Religion: Evolution of Leszek Kołakowski’s Thought in the Context of the Question: “Who Is Man?”

In his numerous books and articles, Leszek Kołakowski brought up a number of topics in the fields of the history of philosophy and contemporary philosophy. His work offers valuable insights into problems revolving around Karl Marx’s philosophy, social philosophy, and the philosophy of religion, to mention but a few. In all these areas of thought, the Polish philosopher centres his focus on the fundamental question of man. The present paper is aimed at discussing Leszek Kołakowski’s contribution to the philosophical debate on this topic. The evolution of Kołakowski’s views is traced from the Marxist concept of man which, after a certain period, is discarded by the philosopher in favour of a religious concept, to be confronted again with a liberal theory. Kołakowski is not uncritical about any of the conceptions, which testifies to the profound complexity of every attempt to gain insights into the very essence of the human being which, irrespective of the doctrine or perspective taken for interpretation, escapes clear-cut definition. However, despite the lack of unambiguous definitions Kołakowski recognises that the sole point of reference in any attempts to gain an understanding of the human condition in culture is religion.

Legal and Anthropological Approaches to International Refugee Law

This chapter offers an overview of the contribution of anthropology to the study of international refugee law. It starts with a review of the positivist legal approach, which has long dominated the field of international refugee law, with its focus on rules and states, and argues that this approach is unable to fully explain how refugee law is created and how it develops. Two recent strands—the transnational approach and the participatory approach—have criticized the limitations of the positivist approach and emphasized the role of transnational activities and actors in the process of lawmaking. However, these strands remain rooted in a liberal theory of international law, and they do not capture the complexities of the relevant human experiences. The chapter argues that an anthropological approach shifts the focus from states, borders, and citizenship towards the individual by combining and embedding human interpretations, behaviours, cultural contexts, and personal interactions with the law. Moreover, anthropological methods can enrich the understanding of the implementation of refugee law by empirically assessing legal issues. Beyond that, the chapter suggests areas that could benefit from future academic research at the interface of anthropology and refugee law.

Kant’s Political Philosophy as ausübende Rechtslehre

Based on Kant’s own concept of politics, it is possible to construct his political philosophy that is related to but also different from his metaphysics of right. Politics is the practice of realizing the principles of right in experience; therefore, Kant’s political philosophy must explore the general conditions that make this practice possible. These conditions, such as political judgement, publicity and the enlightenment of the people, are indispensable to Kant’s thinking about human external freedom but do not belong to the metaphysics of right. Kant’s metaphysics of right is undoubtedly a liberal theory, but we can also identify some republican elements in his political philosophy. In this way, Kant provides us with a very instructive programme to absorb republican elements within a liberal theory.

How to Read James Fitzjames Stephen: Technocracy and Pluralism in a Misunderstood Victorian

This paper offers a new reading of the political thought of the mid-Victorian jurist and intellectual James Fitzjames Stephen. Contrary to impressions of Stephen as a conservative or religious authoritarian, this article recognizes the liberal character of Stephen’s thought, and it argues that investigating Stephen’s liberalism holds lessons for us today about the structure of liberal theory. Stephen, the paper demonstrates, articulated robustly both technocratic and pluralistic visions of politics. Perhaps more stridently than any Victorian, he put forward an argument for the necessity and legitimacy of expert rule against claims for popular government. Yet he also insisted on the plurality of perspectives on public affairs and on the ineluctable conflict between them. Because both of these facets existed in his work, he fit within the liberal ranks, but he did not show how the two dimensions fit together. The tension that we discover from reading Stephen is, the article concludes, not peculiar to him, but a permanent feature of liberal theories, which always include both technocratic and pluralistic elements.

Autonomy in Transactions

The article presents a ‘critique from within’ of Peter Benson’s book ‘Justice in Transactions’, while sharing its premise that a theory of contract has to be liberal one. It identifies three problems with Benson’s answer to the question of how the relation between freedom and equality in contract law should be understood. It criticizes Benson’s Hegelian metaphysics and claims that a principle of mutual recognition and respect between juridical persons does not require that contracts only allow the alienation and appropriation of different things of the quantitatively same value. It demonstrates that Rawls’s idea of a ‘division of labor’ within principles of justice is more plausible than Benson’s reformulated account, which loses sight of the premise that a liberal theory of contract must locate the normative foundations of ‘contract’ in individual rights, and, in addition, is at odds with Rawls’s project in ‘Political Liberalism’ and its concept of public justification.

Is Constitutional Pluralism (Il)liberal? On the Political Theory of European Legal Integration in Times of Crisis

This Article uncovers the normative political theory underlying the legal doctrine of constitutional pluralism, as it is used in the EU today. Constitutional pluralism, once described as a semi-official legal doctrine in the EU, is now being used by some member states to challenge its authority and rules. By reconstructing the political thought of one of its founders, N. MacCormick, this Article takes issue with two most common interpretations of constitutional pluralism: On the one hand, it has been claimed that the normative political content of constitutional pluralism is virtually identical, or at least compatible, with that of Kantian rights-based cosmopolitanism; on the other, it has been contended, especially with regard to its uses in Hungary and Poland, that it was an inherently dangerous, illiberal, normative theory. This Article offers to move away from current legal debates to go back to the origins of constitutional pluralism. It argues that constitutional pluralism is not a purely liberal theory indeed. But neither is it inherently illiberal. Rather, both liberal and illiberal readings are possible, but partial, interpretations of MacCormickian constitutional pluralism. A more systematic interpretation shows that constitutional pluralism opens a path to move beyond this somewhat archetypical divide.