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A growing number of political activists and scholars defend the idea of state-based or political-institutional civil disobedience: they locate civil disobedience's agency in state rather than civil society–based actors. Diverging from older ideas of civil disobedience as directed against government, the concept of institutional disobedience raises tough questions its exponents have not yet fully answered. Civil disobedience has usually referred to politically motivated lawbreaking that is morally conscientious, nonviolent, and demonstrates basic respect for law. Because of the modern state's normatively ambivalent traits (e.g., its monopoly on legitimate coercion), political-institutional disobedience is incompatible with minimally acceptable interpretations of civil disobedience's core components. Political-institutional civil disobedience's advocates mischaracterize what they in fact are proposing, namely, disobedience to the law by individual state officials. Such offiical disobedience poses challenges distinct from and probably greater than civil society–based disobedience.
Jean L Cohen’s impressive new volume argues that the existing global order’s own internal attributes point the way to the possibility of attractive as well as realistic institutional reforms. Global dualism, she argues, suggests the advantages of constructing non-statist global federations, in which sovereign states would cooperate in far-reaching ways to tackle common problems, in conjunction with a ‘low-intensity’ – yet potentially path-breaking – constitutionalization of global governance. If properly achieved, such reforms could produce a global order better able to preserve legality, protect rights, and allow for far-reaching political autonomy. This review chiefly focuses on the author’s attempt to link her normative and political ideas, and especially her ideas about constitutional pluralism and global federations, to her analysis of the existing global order. Despite the many virtues of her reform ideas, they sometimes embody unfairly hostile views of cosmopolitan political and legal aims. Unfortunately, Cohen has not sufficiently responded to political and institutional cosmopolitans who seek potentially more far-reaching alterations to our global order than she deems desirable.
Political cosmopolitanism comes in many different shapes and sizes. Despite its intellectual diversity, cosmopolitanism typically agrees on one crucial matter: any prospective global democracy is best envisioned not in terms of a hierarchical world state, but instead as a multilayered system of global governance resting on an unprecedented dispersion of decision-making authority. In discarding traditional ideas of world government, cosmopolitans typically succumb to a series of mistakes. First, they presuppose unfairly dismissive accounts of world government. Second, they misleadingly contrast their own multilayered and (allegedly) institutionally novel vision to early modern (for example, Hobbesian) ideas of sovereignty, or to Max Weber's influential definition of the modern state. They thus obscure the fact that the modern state's diverse manifestations can only be partly grasped by ideal-types drawn from either Hobbes or Weber. Consequently, they depend on straw person accounts of the modern state. Third, envisioning their proposals as building on the familiar ideal of institutional checks and balances, they misconstrue the contribution that checks and balances can make to global-level democracy. Their hostility to statist ideas about global democracy notwithstanding, their proposals sometimes mimic core attributes of traditional statehood, and they tend inadvertently to ‘bring the state back in’ to global democracy.
This volume's provocative title recalls a substantial early-twentieth-century literature, spawned by interwar economic instability and the ascent of seemingly thriving authoritarian systems (e.g., fascism and Stalinism), which struggled to explain the fragility of liberal political and economic ideals both at home and abroad. Taking right-wing (e.g., Carl Schmitt's Crisis of Parliamentary Democracy ) as well as left-wing (e.g., Harold Laski's Democracy in Crisis ) forms, that genre combined insights from the latest social scientific scholarship with perceptive and oftentimes prescient political observations. Although we now know that it too often understated liberalism's potential for reform and renewal, abandoning sound analysis for apocalyptic aperçus, that literature sometimes creatively identified liberalism's own internal contradictions as the source of what was then frequently described as “the crisis of our times.”
One of the many strengths of Professor Sørensen's thorough critical response to my book is that it underlines the ways in which I tried to challenge what passes for conventional wisdom among IR scholars about realism. I readily confess to an interest in reviving heterodox thinking.
This article reexamines the question of how best to restrain executive power in a political and social context that seems to favor its dramatic expansion. Modern interventionist government amidst a dynamic social environment, where the executive faces a seemingly endless series of “crises” or “emergencies,” provides a heightened scope for executive discretion. At the same time, the US-style separation of powers, in which an independent president faces a potentially obstinate Congress, offers executives many incentives to exploit crises, real or otherwise. The works examined in this article confront, with varying degrees of success, the seemingly inexorable expansion of executive power within the US version of liberal democracy. We can only hope to deal with the many intellectual and political tasks posed by the symbiotic nexus between executive-centered and crisis-oriented government by confronting some tough questions about US constitutional design and the possibility of radical institutional reform. Unfortunately, even those scholars who provide plausible accounts of the US system's fragilities seem hesitant to do so.
Jurgen Habermas's crucial early contributions to political theory should be grouped alongside a handful of other influential works from the same historical juncture, each of which was driven by a strikingly parallel interest in salvaging the political and, even more specifically, a vision of political action capable of countering the ominous authoritarian and totalitarian options widely embraced in the twentieth century. Schmitt is a key target not only in Habermas's early political writings but also in his latest discussions of globalization and the prospects of post-national democratization. The systematic attempt in Between Facts and Norms to draw integral links between and among radical democratization, the rule of law, and a reflexive welfare state contains significant remnants of Abendroth's original critical response to post-war German Schmittians who sharply juxtaposed the rule of law to an ambitious model of the welfare state, seeing the latter as necessarily incongruent with the former.
Most Realists today oppose far-reaching global reform on the grounds that it represents unrealistic and potentially irresponsible ‘utopianism’. An earlier generation of mid-century Realists, however, not only supported serious efforts at radical international reform but also developed a theoretically impressive model for how to bring it about. They considered the possibility of post-national political orders and ultimately a world state as desirable long-term goals, but only if reformers could simultaneously generate the thick societal background (or what they called ‘supranational society’) required by any viable order ‘beyond the nation state’. As they fail to engage constructively with proposals for global reform, present-day Realists betray their own intellectual tradition. By reconsidering the subterranean legacy of Realist reformism as advanced by mid-century international thinkers (e.g. E.H. Carr, John Herz, Hans Morgenthau, Reinhold Niebuhr, and Frederick Schuman), the essay provides a revisionist reading of the history of twentieth-century international theory, while also highlighting its significance for ongoing debates about global reform.
Liberal democracy comes in many different shapes and sizes. We find presidents and prime ministers, strong courts outfitted with constitutional review authority as well as weak courts deferential to the legislature, written and unwritten constitutions, bicameralism and unicameralism and a seemingly infinite variety of complex institutional mixtures and compounds. Does this matter for emergency government? Of course it does. Has the post-9/11 debate about emergency power paid proper attention to institutional diversity within contemporary liberal democracy? Probably not. Too many recent attempts to formulate convincing liberal democratic models of emergency law neglect the special challenges posed by presidentialism. Especially in presidential systems, the executive possesses strong incentives to exploit, perpetuate and sometimes even manufacture crises. Any plausible model of emergency government not only must acknowledge the fundamental institutional dynamics of presidentialism, but also needs to figure out how to counteract their potentially deleterious consequences for the rule of law (11.1). Unfortunately, the otherwise provocative ideas of two of the most creative contemporary theoreticians of emergency government, Oren Gross and David Dyzenhaus, fail on this score (11.2, 11.3). Their critical and at times unfairly dismissive responses to those scholars who have at least begun to tackle the challenges of presidentialism obscure some of the crucial questions at hand (11.4).
Let me confess at the outset to at least a certain amount of intellectual and political parochialism.
The commonplace view that the intellectual roots of Hans J. Morgenthau’s Realist theory lie in conservative central European political traditions (such as Bismarckian Realpolitik) requires modification. The young Morgenthau was a protégé of one of Weimar Germany’s most prominent left-wing legal thinkers and barristers, Hugo Sinzheimer, a committed Social Democrat who influenced many young jurists who hoped to pursue a peaceful, legally-based transition to democratic socialism. Although Morgenthau’s biographers have acknowledged his close personal ties to Sinzheimer, they have ignored the ways in which his early work was directly influenced by Sinzheimer’s left-wing legal sociology. Morgenthau’s initial rendition of Realism took the form of a critical-minded sociology of law, inspired by Sinzheimer, which aimed to bring about fundamental reforms to the international system. Only after the demise of the democratic Left did Morgenthau begin to shed his reformist faith in the possibility of legally based global reform. His mature version of Realism can be interpreted as a response to his disillusionment with the politically progressive and socially reformist vision of law championed by the interwar democratic Left.
The Powers of War and Peace: The Constitution and Foreign Affairs
After 9/11. By John Yoo. Chicago: University of Chicago Press,
2005. 378p. $29.00 cloth, $19.00 paper.
Most readers of this journal will recognize the name of John Yoo,
legal architect of the Bush administration's most controversial
policies in the war on terror. In the aftermath of the 9/11 attacks,
Yoo played a decisive role in the Office of Legal Counsel to the U.S.
Department of Justice, where he regularly defended the most extreme legal
options under consideration by the administration. In August 2002, he
penned a memo arguing that both international and domestic legal
prohibitions on torture represent illegitimate restraints on presidential
power. His legal views rapidly gained the upper hand because they told the
president what he wanted to hear: As commander in chief, the president can
do pretty much whatever he wants in order to protect the American