George Duke

Strong popular sovereignty and constitutional legitimacy

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper, I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint.

The Distinctive Common Good

This paper defends the traditional distinctive notion of the common good against the claim that it is normatively redundant on the aggregative conception. The first two sections of the paper outline the different candidate conceptions of the common good and the normative role of the common good within natural law theories. The paper then considers some difficulties faced by the instrumental and aggregative conceptions, before developing an Aristotelian account of the distinctive conception of the common good and demonstrating its normative significance for a natural law account of political and legal authority.

FINNIS ON THE AUTHORITY OF LAW AND THE COMMON GOOD

This paper seeks to elucidate the role played by the common good in John Finniss arguments for a generic and presumptive moral obligation to obey the law.1 Finniss appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finniss account of the relationship between basic goods, the common good, and the authority of law. Section II demonstrates how Finniss emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Razs objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Razs critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finniss work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust—and hence also more contentious—account of the common good.

Political Authority and the Common Good

This article argues that the natural law common good is the best candidate value to ground a direct justification of political authority. The common good is better placed than rival values to ground a direct justification for three related reasons. First, the common good is the right kind of value to serve in a justification of political authority insofar as it is a reason for action which provides a convincing answer to the fundamental question ‘why have authority at all?’ Second, the common good allows for a justification of political authority that pertains to a complete political community rather than subjects taken individually. Third, the common good allows for a reconciliation of two apparently conflicting features of political authority: (1) its ultimate role is to promote the good of individuals and (2) it can require the subordination of the good of the individual to the good of the community.

Popular sovereignty and the nationhood power

The principle that the constitution derives its ultimate authority from the sovereignty of the people and the nationhood power were both developed by the High Court in the context of Australias emergence as an independent nation. Although this shared provenance suggests the possibility of a more significant connection between the two doctrines, such a connection has not been developed in Australian constitutional jurisprudence. The heavily criticised judgment of French J in the Tampa decision appears to allude to such a connection, but the relevant reasoning is ambiguous and either left undeveloped or implicitly rejected in subsequent High Court cases. This paper critically examines the relationship between popular sovereignty and the nationhood power on two levels. In the first instance, the paper investigates whether it is even coherent to seek to provide a normative ground for the nationhood power in popular sovereignty. The paper then considers whether such a justification is consistent with Australian constitutional doctrine. Unsurprisingly, the weight of constitutional principle and doctrine supports the general subjection of the executive to prior legislative authorisation, rather than a robust non-statutory executive power grounded in popular sovereignty. While this conclusion is predictable in an Australian context, a detailed examination of the relationship between the weaker conception of popular sovereignty operative in the reasoning of High Court and the nationhood power nonetheless reveals some important underlying assumptions of current doctrinal orthodoxy.

Dummett, the Frege-Husserl Exchange and the Analytical Tradition

According to Michael Dummett, the ‘fundamental principle of analytical philosophy is the priority, in the order of explanation, of language over thought: the only route to a philosophical account of thought is through an analysis of its expression in words or symbols, that is, a theory of linguistic meaning’ (1991a, p. 17). In Frege: Philosophy of Mathematics (1991a) — and to a lesser extent in Origins of Analytical Philosophy (1993) — Dummett helps to build the case for this characterization of the analytical tradition through critical engagement with the Frege-Husserl exchange on number and arithmetic. My intention in this chapter is to demonstrate the significance of the Frege-Husserl exchange for Dummett’s understanding of the analytical tradition in philosophy. The first section, ‘Frege’s great leap forward’, places Dummett’s advocacy of Frege’s critique of Husserl in the context of Frege’s three fundamental principles from the introduction of the Grundlagen (1884). In the second section, ‘Husserl’s project in the philosophy of mathematics’, I attempt to demonstrate that Husserl’s early work on number and arithmetic is concerned with a closely related, but also in some ways divergent, set of concerns from those found in Frege’s contemporaneous work. This sets the scene for an assessment, in the third section, ‘Dummett’s critique of Husserl’s philosophy of arithmetic revisited’, of the significance of the Frege-Husserl debate on arithmetic and number for Dummett’s interpretation of the analytical tradition.

The Search for the Nature of Law

Most of the 14 essays in this collection derive from a conference on the philosophical foundations of the nature of law held at McMaster University in May 2011. The philosophical foundations of the nature of law is a broad and demanding theme and, to help orient the reader, editors Wil Waluchow and Stefan Sciaraffa have written a helpful introduction and grouped the papers into four topics (Furthering Debates between Leading Theories of Law; The Power of Legal Systems; Conceptual Analysis; and New Directions). In moving from one essay to the next it is nonetheless difficult at times to keep in mind the overarching rationale for the collection, not only because the 14 authors often approach the theme of the nature of law with different sets of methodological and conceptual assumptions, but also because many of the essays only address the question of the nature of law in an oblique manner. Despite this, the essays are of high quality and confront important issues in contemporary jurisprudence. In this review I focus most closely upon those essays that provide direct responses to the question of the nature of law. To the jurisprudential novice, talk of the ‘nature’ of law may seem surprising. Of course, philosophers often talk of an investigation into the ‘nature’ of something to denote the search for its essential properties, or perhaps its necessary conditions. In this context, as Raz argues, an investigation into the nature of law can be thought of as a form of enquiry which seeks necessary truths about law that also explain it.1 Yet the law seems more safely characterised as a social or artefact kind—one dependent upon human social practices, conventions and language—than as a natural kind. This starting point also seems consistent with the dominant legal positivist approach, according to which the existence conditions

Aristotle and the Authoritativeness of Politikē

This paper explores the normative implications of Aristotles concept of politikē and demonstrates its relevance to contemporary debates on legitimate political authority. Section one of the paper provides historical and interpretative background on Aristotles conception of politikē. The second section examines the central normative role that the common good plays in Aristotles account of politikē and claims that its capacity to play this role points in the direction of a less exclusionary politics than is suggested by Book 1 of the Politics. Finally, in the third section, with reference to work by Andres Rosler and David Estlund, I consider what Aristotles account can tell us about contemporary debates on the relationship between political authority, legitimacy and expertise.

Dummett on abstract objects

Series Editors Foreword Acknowledgements Introduction The Fregean Notion of an Object Psychologism and Objectivity The Context Principle A Problem about Reference The Concrete-Abstract Distinction Tolerant Reductionism Mathematical Objects Conclusion References Index

Psychologism and Objectivity

Frege’s introduction of the new logical notion of an object considered in the previous chapter is concomitant with a rejection of both empiricist and psychologistic approaches to the philosophy of arithmetic. This rejection accordingly suggests an alternative construal of the status of mathematical objects as non spatio-temporal, yet objective. In the first section of the current chapter I engage in a detailed consideration of Husserl’s early philosophy of arithmetic in an attempt to disentangle some important strands in Frege’s critique of late nineteenth century psychologistic theories of abstraction. My argument is that the early Husserl’s tendency to conflate the subjective presentation of content with objective content should be clearly distinguished from his project to uncover the role played by meaning-constitution in the mathematical sciences. This account sets the scene for a critical analysis of Frege’s notion of objectivity in the second section of the chapter – an analysis which culminates in the claim that Dummett’s critique of Frege’s third realm itself suggests the need for an account of meaning-constitution along the lines of that provided by Husserl.