DSpace Community:https://hdl.handle.net/20.500.12202/132024-03-29T15:22:12Z2024-03-29T15:22:12ZHabermas at 90: A personal and professional tribute.Rosenfeld, Michelhttps://hdl.handle.net/20.500.12202/100812024-03-28T21:19:57Z2019-10-01T00:00:00ZTitle: Habermas at 90: A personal and professional tribute.
Authors: Rosenfeld, Michel
Abstract: As I reflect on Habermas’s contributions to the fields in which I have labored, I am
certain that his theories will endure well beyond our own times. In this respect, the
analogy between Habermas and Kant strikes me as particularly apt. Kant’s categorical
imperative is exemplary though impossible. In a world in which none of us are
self-sufficient, we cannot but rely on others as means. And precisely because of that,
we should be mindful of the moral ideal according to which every one of us is an end
in him/herself. Similarly, in the case of Habermas, pure procedural justification, consensus,
and universalization will always remain beyond our horizon, but we should
incessantly strive toward them in order to coexist fairly and peacefully in our increasingly
pluralistic settings. Finally, constitutional patriotism may never stand alone, but
its essence should always remain within our compass. (from Conclusion)
Description: Scholarly article / Open access2019-10-01T00:00:00ZLaw against justice and solidarity: Rereading Derrida and Agamben at the margins of the one and the manyRosenfeld, Michelhttps://hdl.handle.net/20.500.12202/100792024-03-28T20:29:39Z2017-09-06T00:00:00ZTitle: Law against justice and solidarity: Rereading Derrida and Agamben at the margins of the one and the many
Authors: Rosenfeld, Michel
Editors: Rosenfeld, Michel; Goodrich, Peter
Abstract: Law and justice are in crucial ways against nature as well as against solidarity. As David Hume famously proclaimed, justice is an “artificial virtue” in contrast to the social bonds of family and community which are affectively grounded in solidarity and manifestations of mutual sympathy. Law is also artificial much in the same way as justice. Indeed, to the extent that law is conceived as a self-standing normative order propelled by its own inner logic, it tends to remain too abstract to command heartfelt internalization or commitment. Moreover, law often stands against justice as some laws are unjust and law can rarely if ever deliver full justice. The above insights pose difficult questions for proponents of critical jurisprudence and the respective contributions to legal theory by Derrida and Agamben enrich the debate and open fruitful perspectives in relation to the relation between law, justice and solidarity in the context of the nexus between the singular, the universal and the plural. For Derrida, law must pursue justice, but always falls short as there is tragically no way to ever reconcile the universal and the singular. For Agamben, in contrast, while reconciling law, justice and solidarity may be as elusive as it is for Derrida, it becomes masked by a ceremonial spectacle of religiously inspired mysterious harmony leading to consensus acclamation by those subjected to law combined with an unbridgeable gap between law and administration.
This chapter places in context and compares Derrida’s deconstruction of law with Agamben’s reconstruction and inquires whether these two theorists complement one another and whether there are any solutions to the problems they confront that may open a way beyond despair or artifice.
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Description: Scholarly article / Open access2017-09-06T00:00:00ZJudicial politics versus ordinary politics: Is the constitutional judge caught in the middle?Rosenfeld, Michelhttps://hdl.handle.net/20.500.12202/100782024-03-28T20:08:31Z2019-01-01T00:00:00ZTitle: Judicial politics versus ordinary politics: Is the constitutional judge caught in the middle?
Authors: Rosenfeld, Michel
Editors: Landfried, C.
Abstract: Democratic politics are built upon the majority principle, but no contemporary constitutional democracy can live on that principle alone. To sustain key anti-majoritarian pillars of democracy, such as fundamental rights, it is often necessary to override majority politics through deployment of an anti-majoritarian institution—typically, the Constitutional or Supreme Court. In certain countries, like the US, all major divisive political issues, such as abortion and same-sex marriage, typically end up before the courts. Reactions to judicial decisions on these issues being usually highly political, courts figure prominently in politics thus triggering a shift from majoritarian to anti-majoritarian politics. Courts cannot avoid being in politics, but are judicial politics similar to ordinary politics? Is the nature of the politics involved the same and only its locus different? Or are judicial politics altogether different from ordinary politics, hence safeguarding salutary checks and balances against potential excesses stemming from the latter?
I defend the thesis that judges have a politics of their own that is distinguishable from ordinary politics, but that often blends and overlaps with the latter. Judicial politics concern the ideals, ideology, practices and procedures of adjudication. Reasonable judges may disagree as to which of various positions within this ambit is preferable. For example, in the US there is a controversy between originalists and adaptionists, but neither of these positions necessarily aligns with any particular position within ordinary politics. In some exceptional cases, such as Bush v. Gore, judges stray from their judicial politics and lapse into ordinary politics. Far from undermining the thesis I defend, such latter cases reinforce it by highlighting the bounds between what ought to be judicially permissible and what would cross the line of legitimate judicial politics.
Description: Scholarly article / Open access2019-01-01T00:00:00ZPluralist justice and liberal constitutionalism: A reply to criticsRosenfeld, Michelhttps://hdl.handle.net/20.500.12202/100772024-03-28T19:50:11Z2024-02-28T00:00:00ZTitle: Pluralist justice and liberal constitutionalism: A reply to critics
Authors: Rosenfeld, Michel
Abstract: In my book, A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism (OUP 2022) I advance the thesis that liberal constitutionalism must satisfy a minimum of distributive justice in its three dimensions of material welfare, identitarian recognition, and democratic representation. I label this minimum the “justice essentials” drawing on Rawls’s concept of “constitutional essentials”, and defend it within the ambit of my theory of comprehensive pluralism. In this writing, I reply to the comments and criticisms of five scholars and further clarify and elaborate my theory. Specifically, I clarify how my theory impacts on the dichotomy between constituent and constituted powero and on that between political and constitutional theology. I defend the justice essentials as not amounting to one competing conception of justice against others. I stress that the dialectical dimension of comprehensive pluralism clearly distinguishes my theory from that of Rawls’s in his Political Liberalism. I respond to the claim that my theory does not properly account for constitutionalism in the Global South. And finally, I grapple with the way my theory is suited to handle the inherently inclusionary and exclusionary dimensions of all universals
Description: Scholarly article / Open access2024-02-28T00:00:00Z