Rocheton: Among the Voices of the French Revolution: Olympe de Gouges' Political and Legal Pamphlets

Julie Rocheton, Max Planck Institute for Legal History and Legal Theory, has published Among the Voices of the French Revolution: Olympe de Gouges’ Political and Legal Pamphlets as the Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 2025-11. Here is the abstract.

This article explores the often overlooked political and legal pamphlets of Olympe de Gouges, a French revolutionary thinker whose contributions extend far beyond her renowned Declaration of the Rights of Woman and the Female Citizen. In her prolific writings between 1788 and 1793, de Gouges crafted a nuanced blueprint for social justice aimed at protecting vulnerable populations, advocated for women’s rights, and proposed progressive reforms in family and criminal law. Her work consistently foregrounded themes of equality, civic responsibility, and the moral obligation of the state to support its citizens, particularly those marginalized by poverty, gender, and social hierarchy. Throughout her writings, de Gouges was both ahead of her time and constrained by it. Her proposals embodied an Enlightenment-inspired belief in “natural law,” which she used to validate her ideas in the face of societal limitations on women’s intellectual contributions. While she championed equality, her moral framework sometimes restricted the inclusivity of her proposals, particularly in her critique of women. As a political thinker, her stance towards the monarchy was complex, sometimes even paradoxical. She initially advocated for a constitutional monarchy but adjusted her views as the revolution progressed, mirroring the complexities of the French population’s loyalties and the radical shifts of the revolutionary era. This study brings de Gouges’ political and social philosophies to light, assessing their historical impact and looking at her pamphlets as a coherent body of work in order to underscore her lasting legacy as a pioneering thinker.

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Mutua on The Fraud of John Locke: Subnational Challenges to Democratic Theory @makaumutua

Makau W. Mutua, SUNY Buffalo Law School, is publishing The Fraud of John Locke: Subnational Challenges to Democratic Theory in Comparative Election Law (James A. Gardner, ed. Edward Elgar Publishing 2022). Here is the abstract.

In this chapter, I focus my attention on some of the most poignant limitations of the idea and practice of democracy. Democracy is challenged by some of its central imperatives—individualism, elections, anti-discrimination and equal protection norms, and nationalism, including subnational identities. Often, it can appear to be nonsense on stilts. I argue here that the very norms that make democracy attractive are its Achilles heel. In particular, I question the potential for democracy to contain certain identities, especially racial and ethnic, to create the society that embraces all—both majority and minority. In this context, I ask this question—is it time to revisit Locke’s and liberalism’s central theses? Is the political experiment of democracy on its deathbed because of the resilience of nationalism and sub-nationalism? In a word, was Locke’s genius an unwitting fraud on its theorists and practitioners? In the political furnace of these nativist cross-winds, democracy as expressed through open and free elections—the one essential and indispensable element of political democracy—is open to capture by the vilest of majorities. Suddenly, the pivot of the idea of democracy becomes its enemy. Majorities then use democracy itself to attack, or end, it. This chapter contends that there is no defense against the capture of the democratic state by hateful majorities. Not only can they use elections to gain and husband power, they can deploy their control to rewrite the character of the state while leaving a veneer—an empty husk—of the liberal state in place. In the circumstances, thinkers need to contemplate whether the clock of history has run out on liberalism. Can it be rescued from the clutches of fatigue and populist nativist, and often racist, uprising in the most advanced democracies? Are there any failsafe tools— normative and structural—that can snap democracy from the precipice?

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Coffee on Catharine Macaulay and Edmund Burke @KCL_Law @OxUniPress

Alan Coffee, King's College London, The Dickson Poon School of Law, is publishing Catharine Macaulay and Edmund Burke in Reconsidering Political Thinkers (Manjeet Ramgotra and Simon Choat, eds., Oxford: Oxford University Press, 2023). Here is the abstract.

This chapter examines the rival and contrasting political philosophies of Catharine Macaulay and Edmund Burke. The two were almost exact contemporaries in the eighteenth centuries and clashed on their understandings of the fundamental nature of political society and the correct the approach to take on reform. Macaulay and Burke were opposites in many ways. As a woman, Macaulay was a political outsider while Burke was a successful politician. Macaulay was a radical and revolutionary republican who based her ideas on a few clear, immutable philosophical truths, while Burke was a cautious and conservative thinker who valued stability and continuity, appealing to tradition rather than speculative principle. In the first section, I introduce Macaulay’s philosophy based around the core ideal of freedom as independence from arbitrary control. In the second, I present Burke’s contrasting organic, contextual and pragmatic approach. Finally, I consider some of the weaknesses in each philosopher’s work, particularly from the perspective of securing the equal citizenship rights of women and the members of minority social groups.

Download the essay from SSRN at the link.

Sultany on Revolution in the Cambridge Handbook of Constitutional Theory @NimerSultany @CambridgeUP @rpbellamy1

Nimer Sultany, University of London, School of Oriental & African Studies, School of Law, is publishing 'Revolution', in The Cambridge Handbook of Constitutional Theory (Richard Bellamy and Jeff King – eds, Cambridge University Press) (forthcoming).

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena despite the conceptual contestability of the revolution, whether in respect to its applicability to particular realities or the emphasis on continuity with, or rupture from, the extant order. It ignores the revolution’s dialectical nature by separating its assessment from the counter-revolution and thus exaggerates the role of violence in revolutions it disfavours, whereas it obscures the role of violence, slavery, and colonialism in the revolutions it favours. Finally, it presents a certain type of revolutionary constitutions (that are “political” not “social”) as ones that legitimate the polity despite the contestability of the revolutions that generated them, and notwithstanding the incoherence and instability of these constitutions. Moreover, this paradigm elevates counter-majoritarian revolutionary constitutions to be a product of an exceptional act of founding that need not be repeated (or radically revised) despite the constitutional order’s deficiencies, instability, and injustices.

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Pier Giuseppe Monateri, Political Sublime and the World Order (Hart Publishing, 2018) @hartpublishing

New from Hart Publishing:

Pier Giuseppe Monateri, Professor of Law, University of Torino, Dominus Mondi: Political Sublime and the World Order (2018).

Here from the publisher's website is a description of the book's contents.

This monograph makes a seminal contribution to existing literature on the importance of Roman law in the development of political thought in Europe. In particular it examines the expression 'dominus mundi', following it through the texts of the medieval jurists – the Glossators and Post-Glossators – up to the political thought of Hobbes. Understanding the concept of dominus mundi sheds light on how medieval jurists understood ownership of individual things; it is more complex than it might seem; and this book investigates these complexities. The book also offers important new insights into Thomas Hobbes, especially with regard to the end of dominus mundi and the replacement by Leviathan. Finally, the book has important relevance for contemporary political theory. With fading of political diversity Monateri argues “that the actual setting of globalisation represents the reappearance of the Ghost of the Dominus Mundi, a political refoulé – repressed – a reappearance of its sublime nature, and a struggle to restore its universal legitimacy, and take its place.” In making this argument, the book adds an important original vision to current debates in legal and political philosophy.

 

Galston on the Puzzle of Alfarabi's Parallel Works

Miriam Galston, George Washington University Law School, has published The Puzzle of Alfarabi's Parallel Works at 77 Review of Politics 519 (2015). Here is the abstract.

Scholars disagree about the correct interpretation of Alfarabi’s Political Regime and Virtuous City, treatises that have striking similarities, yet notable differences. For some, the treatises encapsulate Alfarabi’s philosophy; for others, they express only politically salutary opinions. Both interpretations fail to explain why he wrote parallel works. If both reflect Alfarabi’s genuine philosophic doctrines, why did he compose separate but parallel treatises, both written when his philosophy was mature? Alternatively, if the treatises are political or rhetorical, why did Alfarabi compose two versions, and why did he choose these two accounts rather than others? To answer these questions, I discuss several overarching differences between the treatises, concluding that each work has an inner coherence and develops a distinctive narrative. I offer suggestions to account for the works’ distinctive orientations, both to persuade doubtful readers of their philosophic significance and to suggest to both groups of scholars reasons for their systematic differences.

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Political Authority and the Accommodation of Minorities

Alex Schwartz, Queen's University Belfast School of Law, has published Authority, Nationality, and Minorities at 28 Ratio Juris 354 (2015). Here is the abstract.

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups — such as territorial self‐government or power‐sharing — are justified insofar as they might offset this disadvantage.

The full text is not available for free from SSRN.

Defining "The People" In Constitutional and Political Theory

Roman J. Hoyos, Southwestern Law School, has published Who are 'the People'?. Here is the abstract.

The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined. The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere. One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.

Download the article from SSRN at the link.

Machiavelli, Guicciardini, Democracy, and the Rule of Law

Cesare Pinelli, Sapienza University of Rome, has published Machiavelli, Guicciardini and the 'Governo Largo' at 28 Ratio Juris 267 (2015). Here is the abstract.

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.

The full text is not available from SSRN.

Spinoza and Legal Theory

Hans Gribnau, Tilburg University, Fiscal Institute and the Center for Company Law, Leiden University, is publishing The Power of Law: Spinoza's Contribution to Legal Theory in Spinoza and Law (A. Santos Campos, ed., forthcoming). Here is the abstract.

In seventeenth century, the constitutional idea of the rule of law was recalibrated in the Republic of the United Provinces. Spinoza was one of the major figures in the Low Countries theorising about the optimal state and its constitutional foundations. He designs a dynamic system of checks and balances in the distribution of powers.

Spinoza’s naturalistic and descriptive approach of the relationship between law and power shows that the exercise of state power on that basis - within the constitutional constraints – may be formally almost unlimited, but, indeed, materially there are limits. The ability of government to regulate society has its limits which are inherent in the existence of the state.

Legal positivism can welcome Spinoza as a kindred spirit – although by no means unconditionally. Indeed, effectiveness is a constitutive requirement for positive law. However, effectiveness implies that citizens comply with the (civil) law not only for fear of reprisals, but also out of respect for commonwealth’s authority. Therefore, notwithstanding the conceptual separation between law and morality, positive law has to take into account the interests and moral convictions of the people.

Finally, Spinoza gives an answer to the key question of political philosophy, viz. the issue of sovereignty. Only a government that embodies the unity of the cooperating citizens has the exclusive (absolute) power to determine the bonum commune. Hence, government should permanently create a substantial loyalty of its citizens, on the one hand, but citizens must actively support the state because of their interest in the existence of the state, on the other hand.

In addition, citizen’s criticism of the political order should be based on obedience to the law. As a rule, obedience to the law should not be dependent on the substantive agreement with the law, which actually would undermine the democratic order. Otherwise, the legal order degenerates into a civil war.

Download the essay from SSRN at the link.

Hannah Arendt and Genocide

David Luban, Georgetown University Law Center, is publishing Arendt on the Crime of Crimes in Ratio Juris (forthcoming). Here is the abstract.

Genocide - the intentional destruction of groups “as such” – is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her systematic philosophy refers to the multiplicity of unique human individuals, never of groups. Indeed, Arendt is famously skeptical of views that subordinate individuality to group identity. That makes her theorizing an instructive test case of whether individualism can yield an account of why groups matter.

The paper analyzes several possible approaches to the problem of explaining the special value of groups, beginning with Raphael Lemkin’s theory of groups as contributors to universal civilization, and then turning to Arendt’s efforts. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept. For Arendt, group identification makes sense solely as a political act of resistance to persecution. In the conclusion, the paper examines a remarkable moment during the trial of Radovan Karadzić, when a defense witness explained his conversion to radical nationalism by quoting “Mrs. Hannah Arendt, a prominent philosopher.” The moment illustrates how hard it is to maintain the stance of humanity while assigning political value to group identity.

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Carl Schmitt, Natural Law, and Political Ontology

Tomas Berkmanas, Vytautas Magnus University, Faculty of Law, has published Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation at 7 Baltic Journal of Law & Politics 119 (2014). Here is the abstract.

The article explores the possibility of comprehending natural law, together with an alternative to the Schmittean political, through an inquiry into the layers of professional philosophy with a special focus on epistemology and analytic philosophy. The starting point of the research is the controversy surrounding the ideas of Carl Schmitt, in which it is unclear what lies at the origin of law and the political — sovereign decision or the situation (Part I)? The latter possibility directs the inquiry to the conceptual field related to natural law and epistemology. Proceeding via both diachronic and synchronic perspectives, the inquiry further analyses what has happened to natural law in modernity, and what its current status is, theorizing both streams of inquiry under the concept of political exile (Part II). The Schmittean political happens to be very much at home in this context, opening up the coherent ideological framework that may be called modern political ontology, which at first appears to camouflage Schmittean antagonistic political praxis (Part III). However, through inquiry into ideas mostly attributable to analytic philosophy (or philosophy of language), this ontology is also shown to function as an ‘anti-onto’-logy — that is, as a direct (i.e. open, not hidden) ideological basis for modern political praxis. The analysis here also discloses the rivalry inside professional philosophy in relation to ‘anti-onto’-logy, the latter finding its disciplinary origin(s) in language itself. It shows that at the level of professional philosophy there is a general trend that could be helpful in the attempt to revive natural law (Part IV).

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A New Book On Alexis de Tocqueville's Thought

Scholars Zbigniew Rau and Marek Tracz-Tryniecki of the University of Lodz have co-edited a new book on my favorite nineteenth century political philosopher, Alexis de Tocqueville.

Tocquevillian Ideas: Contemporary European Perspectives (University Press of America, 2014) includes Zbigniew Rau and Marek Tracz-Tryniecki, Tocqueville and Europe: What Can We Learn From Him About the Past, the Present and the Future of the Old Continent?,Cengiz Çağla, Tocqueville: A Thinker of Freedom, Ewa Atanassow, Patriotism in Democracy: What We Learn From Tocqueville, Marinus R. R. Ossewaarde, Tocqueville on Citizen Participation, Attila K. Molnár, Tocqueville and the Democratic Churning, Oliver Hidalgo, Religion, Virtue, and the Ennobling of Democracy: Tocqueville's Vision of Civic Society, Marek Tracz-Tryniecki, Human Dignity Versus Goodness: Tocqueville's Dilemna, and William R. Stevenson, Jr., The American Melting Pot as Reductionist Kettle: Religious Liberty's Worrisome Condition.

Thoughtful coverage by well-known scholars of an important figure in European and U.S.philosophy and political science.