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Carl Schmitt and the Critique of Lawfare
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Case Western Reserve University School of Law Case Western Reserve Journal of International Law Volume 43 | Issue 1 2010 Carl Schmitt nda the Critique of Lawfare David Luban Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation David Luban, Carl Schmitt na d the Critique of Lawfare, 43 Case W. Res. J. Int'l L. 457 (2010) Available at: https://scholarlycommons.law.case.edu/jil/vol43/iss1/26 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. File: Luban 2 Created on: 12/27/2010 2:26:00 PM Last Printed: 4/5/2011 8:10:00 PM CARL SCHMITT AND THE CRITIQUE OF LAWFARE David Luban “Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law—lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. -
The Method of Antinomies: Oakeshott and Others Others and Oakeshott Antinomies: of Method the VOLUME 6 | ISSUE 1 + 2 2018 6 | ISSUE VOLUME
University of South Florida Scholar Commons Philosophy Faculty Publications Philosophy 2018 The ethoM d of Antinomies: Oakeshott nda Others Stephen Turner University of South Florida, [email protected] Follow this and additional works at: https://scholarcommons.usf.edu/phi_facpub Scholar Commons Citation Turner, Stephen, "The eM thod of Antinomies: Oakeshott nda Others" (2018). Philosophy Faculty Publications. 309. https://scholarcommons.usf.edu/phi_facpub/309 This Article is brought to you for free and open access by the Philosophy at Scholar Commons. It has been accepted for inclusion in Philosophy Faculty Publications by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. The Method of Antinomies: Oakeshott and Others STEPHEN TURNER Email: [email protected] Web: http://philosophy.usf.edu/faculty/sturner/ Abstract: Michael Oakeshott employed a device of argument and analysis that appears in a number of other thinkers, where it is given the name “antinomies.” These differ from binary oppositions or contradictories in that the two poles are bound to- gether. In this discussion, the nature of this binding is explored in detail, in large part in relation to Oakeshott’s own usages, such as his discussion of the relation of faith and skepticism, between collective goal-oriented associations and those based on contract, and between a legal regime based on neutral rules and one oriented to policy goals . Other examples might include Weber’s distinction between the politics of intention and the politics of responsibility. Moreover, such ambiguous concepts as “rights,” have antinomic interpretations. In each of these cases, the full realization of one ideal led, in practice, to consequenc- es associated with the other: in political practice, neither polar ideal was realizable without concessions to the other. -
The Method of Antinomies: Oakeshott and Others Others and Oakeshott Antinomies: of Method the VOLUME 6 | ISSUE 1 + 2 2018 6 | ISSUE VOLUME
The Method of Antinomies: Oakeshott and Others STEPHEN TURNER Email: [email protected] Web: http://philosophy.usf.edu/faculty/sturner/ Abstract: Michael Oakeshott employed a device of argument and analysis that appears in a number of other thinkers, where it is given the name “antinomies.” These differ from binary oppositions or contradictories in that the two poles are bound to- gether. In this discussion, the nature of this binding is explored in detail, in large part in relation to Oakeshott’s own usages, such as his discussion of the relation of faith and skepticism, between collective goal-oriented associations and those based on contract, and between a legal regime based on neutral rules and one oriented to policy goals . Other examples might include Weber’s distinction between the politics of intention and the politics of responsibility. Moreover, such ambiguous concepts as “rights,” have antinomic interpretations. In each of these cases, the full realization of one ideal led, in practice, to consequenc- es associated with the other: in political practice, neither polar ideal was realizable without concessions to the other. But these features are rooted in the deep history of institutions. They are contingent, not philosophical. They nevertheless preclude con- ventional approaches to political theory. Keywords: Michael Oakeshott, antinomies, meta-politics, democratic theory, Max Weber, Hans Morgenthau, genealogy 54 COSMOS + TAXIS COSMOS Several of Michael Oakeshott’s writings, including On vision of politics is different from relativism in any simple Human Conduct ([1975] 1991), employ an argumentative sense of this term. It is specifically distinct from, and op- device that is shared with several other twentieth century posed to, the idea that there can be an ideological “solu- thinkers, but which has not received much attention on its tion” to the antinomies in question. -
The Restless Liberalism of Alexis De Tocqueville
FILOZOFIA ___________________________________________________________________________Roč. 72, 2017, č. 9 THE RESTLESS LIBERALISM OF ALEXIS DE TOCQUEVILLE JAKUB TLOLKA, London School of Economics and Political Science, London, UK TLOLKA, J.: The Restless Liberalism of Alexis de Tocqueville FILOZOFIA, 72, No. 9, 2017, pp. 736-747 This essay attempts to contextualise the purported novelty of Alexis de Tocqueville’s particular brand of liberalism. It regards the author not as an heir or precursor to any given political tradition, but rather as a compelled syncretist whose primary philosophical concern was the moral significance of the democratic age. It suggests that Tocqueville devised his ‘new political science’ with a keen view to the existential implications of modernity. In order to support that suggestion, the essay explores the genealogy of Tocqueville’s moral and political thought and draws a relation between his analysis of democracy and his personal experience of modernity. Keywords: A. de Tocqueville – Modernity – Liberalism – Inquiétude – Religion Introduction. Relatively few authors in the history of political thought have produced an intellectual legacy of such overarching resonance as Alexis de Tocqueville. Even fewer, perhaps, have so persistently eluded ordinary analytical and exegetical frameworks, presenting to each astute observer a face so nuanced as to preclude serious interpretive consensus. As writes Lakoff (Lakoff 1998), ‘disagreement over textual interpretation in the study of political thought is not uncommon’. However, ‘it usually arises around those who left writings of a patently divergent character’ (p. 437). When we thus consider the ‘extraordinarily coherent and consistent nature’ of Alexis de Tocqueville’s political philosophy, it appears somewhat odd that the academic consensus surrounding that author relates almost exclusively to the grandeur of his intellectual achievement (Lukacs 1959, 6). -
Michael Oakeshott 'On Being Conservative'
Podoksik, Ephraim. "Michael Oakeshott ‘On Being Conservative’." Conservative Moments: Reading Conservative Texts. Ed. Mark Garnett. London: Bloomsbury Academic, 2018. 67–74. Textual Moments in the History of Political Thought. Bloomsbury Collections. Web. 2 Oct. 2021. <http://dx.doi.org/10.5040/9781350001565.ch-009>. Downloaded from Bloomsbury Collections, www.bloomsburycollections.com, 2 October 2021, 23:12 UTC. Copyright © Mark Garnett 2018. You may share this work for non-commercial purposes only, provided you give attribution to the copyright holder and the publisher, and provide a link to the Creative Commons licence. 67 CHAPTER NINE Michael Oakeshott ‘On Being Conservative’ Ephraim Podoksik The self- government of men of passionate belief and enterprise is apt to break down when it is most needed. It often suffi ces to resolve minor collisions of interest, but beyond these it is not to be relied upon. A more precise and a less easily corrupted ritual is required to resolve the massive collisions which our manner of living is apt to generate and to release us from the massive frustrations in which we are apt to become locked. The custodian of this ritual is ‘the government’, and the rules it imposes are ‘the law’. One may imagine a government engaged in the activity of an arbiter in cases of collisions of interest but doing its business without the aid of laws, just as one may imagine a game without rules and an umpire who was appealed to in cases of dispute and who on each occasion merely used his judgment to devise ad hoc a way of releasing the disputants from their mutual frustration. -
THE REPUBLICAN PARTY's MARCH to the RIGHT Cliff Checs Ter
Fordham Urban Law Journal Volume 29 | Number 4 Article 13 2002 EXTREMELY MOTIVATED: THE REPUBLICAN PARTY'S MARCH TO THE RIGHT Cliff checS ter Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Accounting Law Commons Recommended Citation Cliff cheS cter, EXTREMELY MOTIVATED: THE REPUBLICAN PARTY'S MARCH TO THE RIGHT, 29 Fordham Urb. L.J. 1663 (2002). Available at: https://ir.lawnet.fordham.edu/ulj/vol29/iss4/13 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. EXTREMELY MOTIVATED: THE REPUBLICAN PARTY'S MARCH TO THE RIGHT Cover Page Footnote Cliff cheS cter is a political consultant and public affairs writer. Cliff asw initially a frustrated Rockefeller Republican who now casts his lot with the New Democratic Movement of the Democratic Party. This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol29/iss4/13 EXTREMELY MOTIVATED: THE REPUBLICAN PARTY'S MARCH TO THE RIGHT by Cliff Schecter* 1. STILL A ROCK PARTY In the 2000 film The Contender, Senator Lane Hanson, por- trayed by Joan Allen, explains what catalyzed her switch from the Grand Old Party ("GOP") to the Democratic side of the aisle. During her dramatic Senate confirmation hearing for vice-presi- dent, she laments that "The Republican Party had shifted from the ideals I cherished in my youth." She lists those cherished ideals as "a woman's right to choose, taking guns out of every home, campaign finance reform, and the separation of church and state." Although this statement reflects Hollywood's usual penchant for oversimplification, her point con- cerning the recession of moderation in Republican ranks is still ap- ropos. -
'Indian Career' of John Stuart Mill a Review-Arti
Organic Conservatism, Administrative Realism, and the Imperialist Ethos in the 'Indian Career' of John Stuart Mill a review-article by Vinay Lal* Lynn Zastoupil. John Stuart Mill and India. Stanford, California: Stanford University Press, 1994. viii + 280 pp. "I was born in London, on the 20th of May, 1806," wrote John Stuart Mill in his autobiography, "and was the eldest son of James Mill, the author of the History of British India." James Mill had acquired considerable fame as a philosopher of utilitarianism and as an authority on India; and if it is remarkable that John Stuart Mill, who would eclipse his father, described himself, on the opening page of his autobiography, as the son of the "author of the History of British India", it is just as revealing that he virtually obscured his own life-long association with India. It is not commonly known that John Stuart Mill, philosopher of classical liberalism, theorist of political economy, proponent of women's rights, and one of the shapers of modern English prose, spent nearly the entirety of his adult working life drafting "despatches" or official documents on British policy in India. A few terse lines, to which he had practically nothing else to add in his autobiography, describe his association with India: "In May, 1823, my professional occupation and status for the next thirty-five years of my life, were decided by my father's obtaining for me an appointment from the East India Company. immediately under himself." Thus was John Stuart Mill's connection with India assured until the demise of the East India Company in 1858. -
Property and Sovereignty: How to Tell the Difference
243 Property and Sovereignty: How to Tell the Difference Arthur Ripstein* Property and sovereignty are often used as models for each other. Landowners are sometimes described as sovereign, the state’s territory sometimes described as its property. Both property and sovereignty involve authority relations: both an owner and a sovereign get to tell others what to do — at least within the scope of their ownership or sovereignty. My aim in this Article is to distinguish property and sovereignty from each other by focusing on what lies within the scope of each. I argue that much confusion and more than a little mischief occurs when they are assimilated to each other. The confusion can arise in both directions, either by supposing that property is a sort of stewardship, or that sovereignty is a large-scale form of ownership. One of the great achievements of modern (i.e., Kantian) political thought is recognizing the difference between them. INTRODUCTION Property and sovereignty are often used as models for each other. In introducing his account of rights, H.L.A. Hart describes a right-holder as a “small-scale sovereign.”1 So, too, discussions of sovereignty often appeal to proprietary metaphors of ownership. These parallels are unsurprising, both historically and conceptually. Historically, early modern discussions of sovereignty, such * University Professor and Professor of Law and Philosophy, University of Toronto. I am grateful to David Dyzenhaus, Larissa Katz, and Douglas Sanderson for comments and discussion, to audience members at the Property and Sovereignty Conference at Columbia Law School, September 2015, and at the North American Workshop on Private Law Theory in Toronto, October 2015. -
De Tocqueville's Democracy in America: a Sociology of Knowledge Perspective
Journal of Political Science Volume 12 Number 1 Article 4 November 1985 De Tocqueville's Democracy in America: A Sociology of Knowledge Perspective Eileen L. McDonagh Follow this and additional works at: https://digitalcommons.coastal.edu/jops Part of the Political Science Commons Recommended Citation McDonagh, Eileen L. (1985) "De Tocqueville's Democracy in America: A Sociology of Knowledge Perspective," Journal of Political Science: Vol. 12 : No. 1 , Article 4. Available at: https://digitalcommons.coastal.edu/jops/vol12/iss1/4 This Article is brought to you for free and open access by the Politics at CCU Digital Commons. It has been accepted for inclusion in Journal of Political Science by an authorized editor of CCU Digital Commons. For more information, please contact [email protected]. De Tocqueville's Democracy in America: A ociology of Knowledge Perspective* EiLL EEN L. McDo AGH ortheastern University •The author thanks Whitney Pope, H. Douglas Price, and David Riesman for their constructive criticisms and suggestions. Alexis de Tocqueville is accepted as one of the most insightful and im portant commentat ors on American democracy. 1 He explores at length in hi seemingly timeless treatise, Democracy in America, enduring and domi nant characteristics of American democratic society: the tyranny of the ma jority, the social and economic equality of the American people, the predominant materialism of American culture, and finally the importance of manners and mores in setting the character of a political society. In fact, de Tocqueville is viewed by some as the author of the "first sociological tudy of American society," and often is ranked with .Marx for the persist ent relevance of contributed insights and ideas . -
Freedom of Expression and the Civic Republican Revival in Constitutional Theory: the Ominous Implications
California Law Review VOL. 79 MARCH 1991 No. 2 Copyright © 1991 by California Law Review, Inc. Freedom of Expression and the Civic Republican Revival in Constitutional Theory: The Ominous Implications Martin H. Redisht Gary Lippmant A modified form of civic republicanism has seen a recent revival in constitutionaltheory. The authors critique this "liberal" version of repub- licanism, specifically, its implicationsfor free expression. Though scholar- ship on the intersection of republicanism andfree expression is sparse, the authors extrapolatefrom the "communitarian determinative" model and the "external objective" model of republicanism and apply them to free speech. They argue that even those branches of modern republican theory that privilege communitarian self-determination over externally derived truths present extremely disturbing implicationsfor the viability of free speech theory in many of its traditionalapplications. INTRODUCTION: CIVIC REPUBLICANISM, AMERICAN DEMOCRATIC THEORY, AND FREEDOM OF EXPRESSION With a rush of celebratory rhetoric about the values of civic virtue, communitarian deliberation, and the preference for the common good t Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University. A.B. 1967, University of Pennsylvania; J.D. 1970, Harvard University. This Article formed the basis for a lecture delivered by Professor Redish as the Lorene Sails Higgins Distinguished Visitor at Lewis & Clark School of Law in March, 1991. T A.B. 1984, Rutgers University; J.D. 1990, Northwestern University. The authors would like to thank Ronald Allen, Randy Barnett, Linda Hirshman, Jane Larson, Gary Lawson, Larry Marshall, Michael Perry, Stephen Presser, and David Van Zandt for their comments on an earlier draft. The Article also benefitted from a faculty workshop at Vanderbilt University School of Law. -
Interrogating Illiberalism Through Chinese Communist Party Regulations Samuli Sepp¨Anen†
\\jciprod01\productn\C\CIN\52-2\cin202.txt unknown Seq: 1 1-MAY-20 11:13 Interrogating Illiberalism Through Chinese Communist Party Regulations Samuli Sepp¨anen† Can the exercise of political leadership, which is meant to transcend laws, nevertheless, be governed by formal rules? This Article examines the relationship between the illiberal governance project and rule-based gov- ernance in the context of the Chinese Communist Party’s internal “intraparty” regulations. In the past few years, Chinese Communist Party leaders have sought to strengthen the Party’s political leadership by extending its discipline inspection mechanisms further into Chinese state organs. The Party leaders have also sought to regulate Party cadres’ uses of power more closely through intraparty regulations. The efforts to strengthen the Party’s political leadership through improving intraparty regulations point to a number of puzzling contradictions and even para- doxes in the illiberal governance project. Rules make the Party more gov- ernable and at least potentially limit space for corruption and other unsanctioned personal projects; but at the same time, they provide oppor- tunities for resisting Party leadership and divide the Party into organiza- tional departments with conflicting interests. This Article discusses such contradictions and paradoxes within the context of global illiberal political thought and argues that prominent solutions to the tension between illib- eral political leadership and rule-based governance mask uncertainty about what illiberal political leadership actually entails. Introduction ..................................................... 268 R I. Rules and Political Leadership in Illiberal Political Thought .................................................. 273 R A. Privileging the Political ................................ 274 R B. Appealing to the Irrational ............................ 278 R II. -
Edmund Burke's German Readers at the End of Enlightenment, 1790-1815 Jonathan Allen Green Trinity Hall, University of Cambridg
Edmund Burke’s German Readers at the End of Enlightenment, 1790-1815 Jonathan Allen Green Trinity Hall, University of Cambridge September 2017 This dissertation is submitted for the degree of Doctor of Philosophy. Declaration This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaborations except as declared in the Declaration and specified in the text. All translations, unless otherwise noted or published in anthologies, are my own. It is not substantially the same as any that I have submitted, or, is being concurrently submitted for a degree or diploma or other qualification at the University of Cambridge or any other University of similar institution except as declared in the Declaration and specified in the text. I further state that no substantial part of my dissertation has already been submitted, or, is being concurrently submitted for any such degree, diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Declaration and specified in the text. It does not exceed the prescribed word limit for the Faculty of History Degree Committee (80,000 words). Statement of Word Count: This dissertation comprises 79,363 words. 1 Acknowledgements Writing this dissertation was a challenge, and I am immensely grateful to the many friends and colleagues who helped me see it to completion. Thanks first of all are due to William O’Reilly, who supervised the start of this research during my MPhil in Political Thought and Intellectual History (2012-2013), and Christopher Meckstroth, who subsequently oversaw my work on this thesis.