Etica & Politica / Ethics & Politics (2021) XXIII/3

This is a review of Joel Colon Ríos’ book “Constituent Power and the Law”. The review considers Colon Ríos’ book as the most important contribution so far examining the theory of constituent power, the doctrinal discussions around the subject, and the legal implications of the theory. The review examines some problems that are present in the book, related to (what it calls) the problem of “mediation” (who takes the place of “the people,” in actual practice?); the problem of “interpretation” (who interprets the “will of the people”, in actual practice?) and the problem of “historic abstinence” (which suggest exploring the theoretical discussion on the notion of constituent power in light of the political and social context where those discussions emerged).

In this work I move from a precise critical review of Adriano Fabris’ work Etica e ambiguità. Una filosofia della coerenza (Morcelliana, Brescia 2020), with special reference to the notion of ambiguity as he introduces and discusses it. I particularly concentrate on the definition of “philosophy” given in the work and the reconstruction of its fundamental difficulties. My aim is to show that in order to overcome such difficulties, an alternative picture of philosophy should be finally given, moving from a clear awareness of the fundamental misunderstanding from which its usual definition originates. I also give some hints as to the ethnocentric character of (Western modern) philosophy, also concealed in its pretension to universality.

This essay begins by offering a brief, but perhaps needed, biographical sketch of John Rawls, so as to foreground very unique personal dimensions of his approach to the question of justice as fairness in terms of the “sense of justice.” It is argued that Rawls philosophical motivation was guided by an embodied and felt sense of justice. Then, the author discusses four striking aspects of A Theory of Justice in light of the most recent scholarship on Rawls’s development and historical background. The author then discusses the Kantian sources of Rawls project, but also how the both differ. The essay concludes with a consideration of Rawls’ claim that A Theory of Justice should be understood as “a philosophical conception for a constitutional democracy.” Should we read A Theory of Justice as a theory of justice tout court, or merely as a philosophical explication of the principles that guide constitutional democracies?

In Etica e ambiguità, Fabris dedicates some pages to the theme of nihilism and the dismay it entails: the fear that everything can be annihilated and that everything tends to be nothing in itself, and has neither consistency nor value. This paper first distinguishes a dramatic nihilism and a ‘ludic’ one and argues about the possible ethical fruitfulness of the nihilism’s dismay. Then it reflects on the anti-nihilist consequences of the perspective of creatio ex nihilo, that does not presuppose anything.

Etica & Politica / Ethics & Politics is an open access philosophical journal, being published only in an electronic format. The journal aims at promoting research and reflection, both historically and theoretically, in the fields of moral, political and legal philosophy, with no preclusion or adhesion to any cultural current or philosophical tradition. Contributions should be submitted in one of these languages: Italian, English, French, German, Portuguese, Spanish. The editorial staff especially welcomes interdisciplinary contributions with special attention to the main trends of the world of practice.

I address in the following pages the decisive question of "after Rawls", of the legacy of his work and (brutally said) of what will happen to the Rawlsian paradigm. I devote Section 2 to the moralism-realism opposition in political theory. I then discuss - in Section 3 - a complex trend in contemporary philosophy constituted by the postmodern climate and by what I call the new metaphysics. This trend tends, together with the political crisis of liberal-democracy, to make the traditional conception of normativity impossible. This is followed, in Section 4, by an argument that both philosophical-political approaches discussed here, the moralistic and the realist, ultimately need some conception of normativity. But, it is said in Section 5, in light of contemporary criticism, such a conception has to be different from the top-down conception of the past. The last Section 6 is finally devoted to some inconclusive conclusions about the future of political theory and the possibility of reformulating within it a conception of the normative bottom up.

In this paper, I analyse some implications of Rawls’ notion of desert and legitimate expectations in order to show how some communitarian criticism of his individu-alism can be answered from a quasi-communitarian perspective which can be found in A Theory of Justice.

According to the familiar interpretation, A Theory of Justice (TJ) develops a strong Kantianism. Rawls himself understand his own theory in Kantian terms, and basic components of TJ, such as the original position and reflective equilibrium, have been understood as relying on Kantian practical reason. Meanwhile, the consensus concerning Political Liberalism (PL) is that this book is less Kantian. Even, for some, the later book is not Kantian at all. Rainer Forst argues against the later claim, developing a Kantian reading of PL. In this interpretation, the key concept in the development of Rawls’s view is a Kantian notion of practical reason. This component is essential in Rawls, and not only concepts such as the original position and reflective equilibrium have to be understood from this foundation, but also others such as the overlapping consensus of comprehensive doctrines. This article maintains that PL is less Kantian than Forst argues, and that is better to understand this theory as postkantian. I examine in positive terms this feature of PL, arguing that Rawls is a sui generis thinker. This shows among other things his substantive contribution to the development of political philosophy.

The paper attempts to respond to a number of objections that have been formulated in the book Ethics and Ambiguity (Morcelliana, Brescia 2020). The objections are overall analysed in their underlying strategies. The answers are addressed to the individual authors who formulated them.

Whether or how a constitution’s guarantees respecting basic right and liberties are to take effect in “horizontal” cases, those involving relations among persons and groups outside of government, has been and remains a matter of debate in liberal-democratic societies. The liberal political philosophy of John Rawls has sometimes been charged with a normative tilt against full extension of the guarantees to these “private” relations. I find the opposite to be true. Given Rawls’s conception of the constitution as a society’s higher-legal framework for assurance of fairness in its basic structure, along with the justificatory function that Rawls assigns to the guarantees in a constitution thus conceived and the idea of these guarantees comprising a unified “scheme of liberties” guaranteed equally to all, it follows that norms of private law allowing constriction of basic of liberties of some by acts of others in civil society should be subject to review for proportional justification. But not every liberty-hostile exercise of a protected basic liberty will come under the scope of such review. For those that do not, liberalism must find some other response.

The paper critically addresses A Theory of Justice. It is first illustrated that Theory implies a paradigm shift at the time of its publication. This is followed by a critical analysis of central aspects of Theory, especially the reflexive equilibrium and the difference principle. The paper then reconstructs Rawlsian work. First by showing the continuities and discontinuities between Theory and Political Liberalism and by critically examining “overlapping consensus” and “public reason”. Subsequently, by examining A Law of Peoples and its idea of tolerance and the rejection of global distributive justice. Finally, the paper addresses Rawls's role as a public intellectual.

My aim here is to provide a context within which we can develop an applied ethical criticism of narrative art – one which has a public relevance and is not limited to philosophical discussions characterized by value-interaction debate or conducted under the theoretical banner of aesthetic cognitivism. In the first part I reinforce the challenge of finding empirical evidence which either corroborates or denies the cognitivist’s claim regarding the causal impact of art on the audience, and I argue, in the second part, that such evidence is needed in order to determine the possibility of moral corruption and/or moral enhancement via art. Taking cues from Ted Nannicelli, I end by offering pointers on domains of research we should incorporate into our ethical criticism of art, so as to come up with an informed understanding of an artwork and of spectators’ engagements with it.

The paper searches for the systematic link between the psychological doctrine of Plato’s Laws and its theory of punishment. This link can be seen in the ability of emotions (i.e., pleasure and pain) to be harmonized in an individual soul; this ability forms the precondition for the soul’s compliance with education and punishment. The penal law contributes to the proper individualization of the soul by unifying emotions of pleasure and pain; in the case of the rare philosophical nature, however, there is no need of punishment at all since it already presents a well-ordered unity.

The political benefits of deliberation are increasingly cited, but not well understood. Neither are the processes involved in arriving at deliberative politics from pluralism and inclusion. This research reviews the available literature on political impacts related to deliberation following the empirical turn taken in deliberative democracy in recent years. The analysis of a specific case reveals that before deliberation the arguments presented gave rise to a deep fracture in the consensus. The deliberative process served to structure the consensus in pluralism helping citizens to formulate their own judgments. The findings suggest a renewed and complementary approach with the classical notion of deliberative democracy in the terms formulated by Jürgen Habermas in ecological and social terms in the line opened by various authors and assumed by Habermas himself in Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, 1992.

In this preface, we briefly explain A Theory of Justice’s importance for political philosophy, which is the reason that justifies this collection. Adjunctively, we sketch in very broad brushstrokes some of the components of this theory: the Kantian turn, the rehabilitation of contract theory and the defense of egalitarian liberalism. Finally, we describe the articles of this collection. We distinguish three axes: Rawls’s legacy, philosophical influences on Rawls, and specific problems regarding Rawls’s philosophy.

In this paper, two most valuable aspects of Rawls's legacy in the 21st century are argued to consist of a) his post-1980 situated normative standard captured by the phrase “the most reasonable for us” and b) his view of liberal-democratic legitimacy as centered around consent on the constitutional essentials (“legitimation by constitution”). The normative models and assumptions undergirding A Theory of Justice and Political Liberalism are contrasted, the rationale for rethinking liberal legitimacy is reconstructed, and the originality of Rawls's new normative standard is highlighted with reference both to classical political philosophy and the post-Wittgensteinian philosophical horizon.

In my discussion of Adriano Fabris’ Etica e ambiguità [Ethics and Ambiguity], I will consider three main objections. 1) Firstly, I will discuss Fabris’ attempt to criticize and reshape the Aristotelian ἔλεγχος, as it appears in the fourth book of Metaphysics, from a performative perspective, showing that it already falls within, and is substantially invalidated by, the semantic domain of Aristotle’s distinction between “contradiction” and “self-contradicting”. 2) Secondly, since Fabris invokes a reform of Western philosophy’s general attitude towards action and relation, I will show how classic ontology (notably Plato’s notions of being, as opposed to Parmenides’, and dialectics) already provides a robust example of a deeply relational (though admittedly not performative in the sense highlighted by Fabris) notion of being. 3) Thirdly, I criticize Fabris’ notion of relation, because it indifferently refers both to ontology and ethics, whereas a proper ethical consideration of it, while necessarily involving ontology, should be treated as distinct from the former.

In times of crisis it is necessary to revisit the theorization of radical change and the mechanisms through which it can be realized in a peaceful and orderly manner. Joel Colón-Ríos’s Constituent Power and the Law is a timely book that promotes our understanding of the concept of constituent power as well as of its juridical application. Despite its contributions, in this critical review I claim that, because the book is thought through an elitist democratic theory framework that presupposes the unitary nation-state, it excludes the republican theory tradition that is premised on the socio-ontological division between the powerful few and the many, and that conceives the periodic exercise of constituent power by the people as necessary to keep a republic uncorrupted. In addition, I take issue with Colón-Ríos’s interpretation of Rousseau as a supporter of the direct exercise of foundational constituent power by the people in (silent) primary assemblies, and the resulting reduction of the people’s exercise of constituent power to mere authorization and ratification—to the detriment of processes involving popular deliberative decisionmaking that lead to a mandate. Finally, I critically engage with his conceptualization of the ‘material constitution,’ arguing that the definition he applies is too broad to be useful. Including formal and substantive ordering rules and principles as part of the strictly material interpretation of the constitution, which emerges from power relations, conceals the specific contributions that the material framework brings to the study of constitutions and the law.

Rather than to critique the substance of Joel Colón-Ríos’s indisputably important contribution to the scholarship on constituent power, the aim of this essay is to put in question the historiographical mode of theoretical engagement which prevails in the contemporary debates about this important concept, as well as to question its ostensible present-day significance—especially to the politically engaged projects such as Colón-Ríos’s—which, at the very least, deserves to be discussed more directly, explicitly, and systematically.

This paper discusses Colon-Rios's reconstruction of the idea of constituent power in relation to his interpretations of Rousseau and Schmitt. It distinguishes a republican reading of constituent power as immanent to the juridical order from Schmitt's attempt to join constituent power with dictatorship.