Blockchain Papers

Loren King

Forms of informal cooperation, coordination, and action that embody mutuality without hierarchy are the quotidian experience of most people. Only occasionally do they embody implicit or explicit opposition to state law and institutions. Most villages and neighborhoods function precisely because of the informal, transient networks of coordination that do not require formal organization, let alone hierarchy. In other words, the experience of anarchistic mutuality is ubiquitous. Subsidiarity frustrates. Emerging from Catholic roots to become an explicit part of EU law,1 the principle admits of clear articulation as an ideal (‘vest authority as close as feasible to those most affected’) but then invites conflicting interpretations and elaborations. As a workable principle, subsidiarity founders seemingly when we need it most: when we ask what, precisely, that principle regulates. Andreas Føllesdal has shown that distinct interpretations of subsidiarity have strikingly incongruous political implications, with any “apparent consensus … gained only by obfuscation” (Føllesdal 1998, 190). And as a moral precept, subsidiarity promises a politics sensitive to diverse needs and responsive to local knowledge; yet in practice, any implementation of the ideal pulls us back toward an authoritative center to regulate disputes and coordinate all of this local wisdom. Jenna Bednar describes subsidiarity as “the soul of federalism” (Bednar 2014, 231) and she has in mind two complementary rationales: ensuring that political power is close to the people affected, while also finding efficient ways to satisfy diverse preferences. Of particular interest in Bednar's account is the epistemic role for subsidiarity in bringing a wider range of perspectives to bear on judging new policies than might otherwise be the case in a more centralized system. Here, then, the justification of subsidiarity appeals to efficiency and accountability, not simply for any given snapshot of needs, interests, and associated policies, but also (and more critically) to the constitutional and administrative system as a whole.2 Still, these epistemic hopes for subsidiarity seem to assume, as Jacob Levy puts it, “a fantastic level of competence, knowledge, and disinterestedness on the part of the body that allocates decision-making authority in each case—itself usually one of the contenders for the authority at stake” (Levy 2007, 462). I love subsidiarity for these frustrations and ambiguities. In this respect, it is the perfect moral maxim for the real worlds of political institutions and practices, where most of us, most of the time, muddle through the messy day-to-day complexities of living together, while leaving space for dissent and resistance. Levy argues that subsidiarity “fails as an institutional decision rule,” but he prefaces that indictment with the thought that it “may offer a useful critical language” (Levy 2007, 462). That, I think, is a thought worth pursuing. Perhaps we will be less frustrated with subsidiarity if we see it not primarily as a decision rule or principle of institutional design, but also, and perhaps more importantly, as an essential challenge to the dominant vocabulary of the sovereign territorial state? To be sure, subsidiarity labors under the long shadow of the Westphalian imaginary, a vision of politics anchored in justifying coercion over a bounded territory. Sovereignty and rights are the coins of that realm. If subsidiarity is to be a critical lens, then it will be laboring against that imaginary, and our settled moral and legal vocabularies so firmly entrenched therein. To make my case, then, this is the labor I will undertake here. On a rather cold and unfriendly morning in October 1625, Rudolph Christian, the newly enthroned count of Eastern Frisia, arrived at the city gate of Emden, expecting that the city would welcome him and immediately start with the traditional ceremonies during which it had to pay homage to its new sovereign. But nobody met Rudolph Christian at the gate, and only later in the day a delegation of the city council appeared at the count's residence, telling him to his great surprise, that it had not been possible to meet him at the city gate because it had not been known through which of the several gates he had wished to enter (Hueglin 1979, 9). Centuries later and half a world away, Clifford Geertz (1980) offers the following story to set the puzzle of his remarkable account of politics and ceremony in precolonial Bali. Dutch administrators, seeking to establish clear designations of local authority and ownership, wished to establish the boundary between two hostile princedoms. The princes agreed that the boundaries were, respectively, wherever one could see the sea, facing outward, or the marshlands, facing inward. Perplexed, the administrators asked if there hadn't been past conflicts over such a murky division: didn't they fight over this territory? “Mejheer,” one of the old leaders replied, “we have much better reasons to fight than these shabby hills” (Geertz 1980, 24–25). Ultimately, things end poorly for the Balinese order. Geertz recounts one of the final encounters of that regime with Dutch forces in 1908, at “Klungkung, the nominal ‘capital’ of traditional Bali” where “the king and court again paraded, half entranced, half dazed with opium, out of the palace into the reluctant fire of the by now thoroughly bewildered Dutch troops. It was quite literally the death of the old order. It expired as it had lived: absorbed in a pageant” (12–13). What binds these two accounts? In each, older forms—and animating symbols and rituals—of political order fall before the imperatives of sovereignty and its most central ordering feature: coercion. Violence. Max Weber's (in)famous claim to monopoly over legitimate coercion within a clearly delineated territory (Weber 1919, 78). In the case of the Balinese order, Geertz means to highlight what our Westphalian-inflected conceptions of politics and the state tend to obscure: “the ordering force of display, regard, and drama” (Geertz 1980, 121). If we invoke our favored analytic categories and causal explanations to reduce the semiotic core of Balinese politics to “the worn coin of European ideological debate” we “allow most of what is most interesting about it to escape our view. Whatever intelligence it may have to offer us about the nature of politics, it can hardly be that big fish eat little fish, or that the rags of virtue mask the engines of privilege” (123). When the homage was finally paid two years later, on the 28th of June 1627, the relation between city and sovereign had indeed been radically changed. In the place of the unilateral obligation of the city, there now was a mutual contract: in exchange for the city's oath of loyalty, the count had to guarantee the city's privileges by an equally binding ‘declaration of rights’. Especially the oath-formula itself appeared fundamentally altered. Where the old oath had spoken of obedience according to customary law between vassals and hereditary sovereign, the new text only spoke of faith between count and city according to mutual contract and in consideration of the city's privileges (Hueglin 1979, 9-10). At the dawn of the sovereign territorial state, then, and sharing so much by way of law and culture, Althusius could negotiate favorable terms of Emden's submission with the fading relevance of local sovereigns. Two centuries later, no such space was possible for the Balinese, and for countless other peoples with distinctive ways of ordering their public lives together. History is littered with peoples who had better reasons to fight than their shabby hills, or who might sometimes fight over shabby hills that they only saw and settled on every few years, before moving on. These peoples lost out to others, whose understandings of use, possession, property, territory, and place were grounded in a particular notion of a right: powers and entitlements to exclude, ultimately grounded in the violence of the sovereign territorial state. The imperatives of territorial sovereignty are distinct from mere control: Henrik Spruyt (Spruyt 1994, 34–35) notes the fundamental novelty of what happens in the decades and centuries after the encounter Hueglin describes. Human territoriality is a deep fact of social life, to be sure; and claims of exclusive and absolute authority are familiar throughout history. The latter, however, were typically made by priests, emperors, and kings, and those claims were over people (bodies and souls), resources, and activities. Territorial jurisdiction was incidental to these desirada, and indeed unimportant insofar as the final authority of divine edict—and of the king or emperor sanctioned by the mandate of heaven—was universal and undifferentiated. In the medieval West, the idea of sovereignty, while a part of medieval thought and law at least from Bodin's famous reflections,3 took a long time to become politically important because it was not clearly differentiated in space: there were no borders delimiting God's power. Spruyt puts the point succinctly: “Church and empire were universalist forms of organization” (1994, 35). This is not to say that claims of territorial jurisdiction were uncommon in human history, but most often they were not claims of exclusive and final authority over clearly bounded physical regions. More often, jurisdictional claims were limited to particular times, people, and activities. Territorial control was incidental to, and derivative of, authority over peoples, activities, and resources. So, what is possible for Emden and some other cities fades as territorial jurisdiction becomes wed to the idea of sovereign territorial states. Possibilities for understanding and implementing complex and overlapping configurations of negotiated, provisional sovereignties become foreclosed under the emerging logics of capital (commerce, exchange, exploitation) and coercion (violence, control, domination), a historical dynamic beautifully elaborated by Charles Tilly (1993).4 Against that history, we so often find ourselves chafing at the legacy of the sovereign state system. Scholars wrestle with how regionally concentrated—and often historically oppressed or marginalized—groups can be fairly and within and most or when those might it from sovereign territorial Scholars with the of and the by peoples, in the and the world has with and if sovereign territorial may and more coercion at borders And and that state and perhaps most us to the of state sovereignty and the of how institutions in fact to with these complexities the of and legitimate coordination with to and indeed the and of the idea of and These are all indeed and I if we might do to some of those ways of ordering public that have been or under the that sovereignty has over Perhaps the of from such us to an understanding of subsidiarity at its a of against that as much as a rule of for What it to subsidiarity not primarily as a principle and an authoritative as a moral principle and but as a of against the dominant vocabulary of territorial sovereignty, and rights of jurisdiction and is as a and not a to and of the old order. after much to in the world we find ourselves have a and moral vocabulary that we can and and that admits of important and But how we the between peoples, and without some idea of And if we that to be a then we can with for the sovereign territorial state as and those This is also to however, that by the between peoples and as a of who has a to territory, we are these in a a and legal that to the idea of a over or and of and are institutional means to those and within a This is the of much by and who has a to what territory and its who as a distinct When and are these claims and what do those rights by way of resources, within a territory, and borders against to These are important and in a and with and our need for and on these is Still, these and labor firmly within the and vocabularies of the Westphalian sovereign state, and a dominant of that realm. are a and we can as engines for and we can territorial of claims of legitimate and of terms of rights ownership, and These are not the only such however, and we perhaps as the principle of to our and not force and political on other other ways of the between and peoples, territory and To this a might what could our to resources, and people other than one of This after the world we find ourselves have a and moral vocabulary from the past can and that and we offer important and to these in of the and of those past But on ways of understanding these if we were to in that what would be the as political those to and the most of ideal do not we long in the of at do not there and claim the of with we not only to our practices, but also to be in and in a world where where such to and where territorial the only feasible way to those rights through and I claim that she is such a but in on territorial sovereignty, an of the historical to the sovereign territorial these historical to the territorial system not because they real for us for the most they social and that no and they In on to that these historical complexities make clear it may be at the territorial system is not a or an political Still, so other in this of a given that we do in fact in a world of sovereign territorial (and associated is she moral justification for our world as a of jurisdictional we see this of political as a firmly historical are there that might or legitimate I not a I with and that state political authority can indeed be least given some of the by I to the on offer by such as and others, claims of for peoples to be on particular but also that the familiar state system is and in critical and that state claims of sovereign control over peoples and claims to in to moral and of that however, I that of I have more of the I what by the fact and our categories and the of authority so often toward the world in a particular and to that world according to their administrative logics and of and I also not a but in this I those have the can about and of political or that state but at the end of the if of a state and then it is a that its and at or use, this is what their their core their most I by as (and the vocabulary of rights when about the of politics, we may be that moral about coercion what so a that state is the or limited to Westphalian and or it to of or it is and its and according to the imperatives of analytic and of not they useful in understanding how our world and in I the territorial rights ultimately in the Westphalian imaginary, this these and and where it is Still, it is how our of, territorial rights in and in or ultimately to so much in moral vocabulary of and territorial jurisdiction a particular that those entitlements to regulate of and in so other not as a deep point of but as a yet historical fact about our and I not for of a territorial state system by the privileges of state and then by that those need be “the we are familiar with in authoritative of public but she that decision-making by and would count as on this would local that typically on a much than famous local for resources, such as local or to the But the of how those and local would be is the of the of territorial sovereignty are to politics, and I we escape that simply by some or the messy but local and that so in of and and the of occasionally in of a centralized To see the more in these of be to a that for their peoples and would this the the other in our world on terms that they would have historically for In that at the they can be our are in and a or ways that their understandings and would have without the of European to our understanding of and legitimate not us to And this the old that we simply their their conceptions of and to Of we and they But for all of our of and and we to in ways that make those the in through the complexities of use, and territorial on and the that are now I think, the only in these to only to while and this not the that is the The one other in in when the of rights is with of how to and place are I between and two this is more than the any other way of life, have in political and These and foreclosed for and the quotidian of and social life, on the that have to the hopes and of and and yet that sovereign have in and in the ways The of these I and and moral and then perhaps of our and ask if our favored ownership, use, jurisdictional territorial be in ways that are not so to the idea of and more to the legacy of that that that our understandings of and and that so for politics and and resources. can the and of the Westphalian on a bounded sovereign authority over territory, and then with our and their or we can that and its at least to some useful we can do the by and and are and in through who has rights to territory, when and and how we about and and But they are much within the Westphalian a little against the and historical of that we do when we ask about the of ways of within these and we find ourselves and often So, we need and moral within the and political we have but we also at those where the and and need not and It may be that we the ways that other other can us the and of at its can be such a a principle of through in ways that against rule by others, while the that we are often with those I of the to the at of this when they to their with the messy of politics as it is in and and villages and neighborhoods and and overlapping that quotidian against a of subsidiarity for and other within sovereign states. In other has as that sovereign territorial can be yet also then consideration (and to the of how a principle of subsidiarity might an institutional “a of by their to of a world but where subsidiarity more coordination at the level is with more local argues for a of control over when that control is to in but those can be by the more fundamental of When claims on and of which subsidiarity is an In a that and the justification of borders against the of than and and the notion that political order and peoples who claim sovereignty over a particular to through sovereignty on a on complex and of deep people, such as and which she terms In through how these of and but also and in of territorial rights and state sovereignty, appeals to an account of I the of account of territorial and on point us to about and in terms that the vocabulary of the sovereign territorial state. The of of what and where and as by and and typically the of of resources. of this is perhaps the story to of complex that few have the and on the by and the Emerging from a between two sovereign the has into a but of and that and that state, and policies to that at least people one and of two sovereign If there is one that what the day-to-day and formal the and and the to of would have to be decision is made that not make to those the of and most importantly, of is to local and and and The in some ways a point about of subsidiarity that are typically as a that any workable implementation of subsidiarity under of social and will require coordination and at of organization, and that the (and on such will be To the that any principle of subsidiarity of to that mandate will require a coordination of diverse of which require that are by as and which authority back toward a one of subsidiarity in the European at of that while subsidiarity has been by as a challenge to more with to it has to be an which some political not least the have to more and 2014, with that might be thought to that in of is not and that “the on are not however, on to that perhaps is better as a for with less on the in of On my favored of subsidiarity as a for critical these simply are not of subsidiarity as a moral and critical do a close between subsidiarity and of the between the epistemic and of subsidiarity within And I this to territorial anchored in what she a of most clearly by of the through with the of and authority in I do however, we need to these in of and overlapping jurisdictional and rights within a sovereign territorial state? If the is that politics is about and our then perhaps subsidiarity can be the core moral rather than sovereignty and rights of jurisdiction and perhaps more as the critical been subsidiarity is a that sovereignty, and control rights from and of the and in which so much of our most What of the at the by Andreas Føllesdal and several others, that interpretations of subsidiarity authoritative of the principle to to be a not with subsidiarity and not with subsidiarity as a critical lens, but with constitutional that the of their frustrations of by of human and the of politics as the of particular sovereign territorial states. to consensus on interpretations of political we claim to In such an however, constitutional and may not be a but a subsidiarity is as much about through in as it is a to challenge sovereign imperatives and their dominant In a world that has the of Westphalian territorial sovereignty, the imperatives of and which to toward the of with a critical have a that is perhaps If a on subsidiarity can us then it is The is to and for their on these and for their two on and subsidiarity at the of This from with and with at the Subsidiarity from two with this and in particular from by and Andreas Føllesdal on the of On the for to the dominant vocabulary of state sovereignty, I have much over the years from Hueglin and the The no conflicts of

Joakim Sandberg, Lars Lindblom

Abstract This chapter discusses the justification of Bitcoin from the perspective of political philosophy. Bitcoin is a form of digital money that is not tied to a central bank or government and that primarily facilitates anonymous economic transactions on the internet. The chapter suggests that the Bitcoin movement to a large extent has been driven by a libertarian framework, stressing the right of individuals to choose their own means of transaction without government interference or oversight. However, it argues that the libertarian case ultimately is unconvincing. A better case for Bitcoin can be formulated by using an egalitarian framework, more specifically, concerns about unequal distribution of power and resources. In the end, however, the chapter makes the claim that the justification also must depend on the political and economic context, and that this seems to speak against the use of Bitcoin in reasonably well-ordered societies.

Joseph Heath

The problem with police is not that they are fascist pigs but that our country is ruled by majoritarian pigs. Ta-Nehisi Coates To change the police without changing the police role in society is as futile as the labors of Sisyphus. John van Maanen This question is, I will argue, of considerable importance to political philosophy, because it exposes a tension in the liberal project as a whole. It has, unfortunately, been subject to relative neglect; there has until recently been very little philosophical or normative literature on policing, much less the policing of minorities.3 There are two reasons for this, both of them based ultimately on the perception that the problem is theoretically straightforward, and so does not raise any philosophically difficult questions.4 With respect to policing in general, many political philosophers appear to believe that the police are uninteresting, because they serve the purely instrumental role of enforcing statutory law. And with respect to minorities, widespread acceptance of the fascist pig theory leads to the perception that the problem is also normatively straightforward. If tensions between police and minorities are caused by the police being racist, then the solution is obviously for the police to become less racist. These two views, when combined, generate a highly simplistic account of the problem of policing minorities.5 It suggests that, since the police are there to enforce the law, all they need to do is enforce the law in a non-discriminatory way, treating all citizens equally, and the problem should go away. The argument, however, rests on a false premise, since the police do a great deal more than simply enforce the law, and it is primarily these other activities that give rise to problems. My preliminary contention in this article will be that both of the underlying theories about policing are false or misleading. Obviously, the police do enforce the law, but as several decades of work in the sociology of policing have shown, this is not all that they do, and, indeed, this does not even add up to a substantial fraction of what they do. And equally obviously, there are some police who are racist, both consciously and subconsciously, but this goes only part of the way to explaining the seriousness of the difficulties that practically every major police force experiences in its relations with particular a great deal of the for the in in on the subject in the that the on or has the of in many to the of the I will argue, it is to that policing is The is that who are to a subject to of and of that of the they I to this, Ta-Nehisi as the theory of to the that it a only on statutory law, is to this problem is the policing of minorities a in liberal To the in highly even when the is society is and the in to be are to society The article as I by two very normative of policing, about the of police The I to as the of policing, rests on the that police should be to law is to in and who have the to this, I will what I to as the of policing, the of statutory law as with of the The of the on this the of law to a of the of to The as a of policing is what the widespread for more as a to It is not difficult to however, that this a of normative difficulties in a The tension the on the part of the liberal to a on the of force only that a of The is that the police are subject to the for that the of law. this tension be by a and the activities of the police to law I will the by several reasons I this be I do not have any to to the underlying I do, however, that a of the of the problem is has been the subject of a great deal of in has of policing as not in the but many as This has many of is to the the police to as and in them with to normative The of the a of the of the problem and the to police are being to to in the in the they the to that they what the police do of the or it is the police that are they that statutory law a fraction of what the of the this what the police do, there any about the of is that they are of the who are to It is also liberal that this to force is or but also and law, and and in some law. 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become in until the of the to that, the by the as a to the of in the the of as the The not to this of until the a that in with the of this of should with the rise of policing is since the only to it has the not to but to a is a has so to all This that when the of and appear to the of that the are of the will be to fraction of is not but in to a the police are subject to two there are and other who that the police enforce there are of who as a of to in of This is what for the that the the of statutory law, also to this police in the between the and other of in the to have two in they without or there the of and the of and there the the of the the of the and the of and to the of and of in part because the as the for to be as the only of This to a of the importance of statutory law, the of the to the of has been The police however, to its as police a of The that the police enforce not but also the and so it is to be about its in the simply to the of the citizens the of what be the that are to and, in when they the of what be without to they the the this of a between a and that is to of to in a that has up the to a of in the to a who is to to deal with a who is a the of police the police are to force in these they to statutory law in to that of the that the they are or the reasons for they are are to that is in any a policing up of that is of the reasons that police all the of are only police is in by of the is to the that in of force has of by who for the The to or the of has a on other much of simply when it in force to be as a there is a about policing in the that, because there is substantial between the by police and the be by the The problem is not that and have the to It is also that the of to force a of in that is difficult to The of and is that it go on some however, and be citizens police in to deal with that for police is for that the police are in all of the underlying of the of these of the the police in of with the that they the the of and the of the 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Derrick Darby

A central idea in John Rawls's theory of justice as fairness is that basic political liberties should be afforded fair value in a just liberal democratic society.1 In this article, I argue that an important guideline for guaranteeing the fair value of voting rights, that is, the usefulness to citizens of their right to vote, is to make it easier not harder to exercise this basic political liberty.2 This entails that just societies with a constitutional commitment to equal protection, and the value of equality more broadly, have a duty to secure unencumbered access to the ballot absent narrowly tailored compelling state interests for restricting it (hereafter Unencumbered Access). Where there are such interests—and this is important—the burden imposed on voting must accord with the basic priority of voting rights. This argument shifts the burden of justification from liberals to present sufficient evidence of voter suppression to conservatives, who are currently pushing restrictive voter ID and other laws, to produce compelling evidence supporting their reasons for doing so (chief of which is fraud prevention and deterrence). They must also demonstrate that these laws are carefully crafted to remedy the alleged problem. Because these conditions have not been met these laws are unjustified.3 John Rawls affirms the importance of political liberties as a normative ideal in the abstract by including them on the list of equal basic liberties along with the liberties of thought, conscience, association, and those associated with the rule of law in his liberal egalitarian conception of justice as fairness. However, less abstractly, the principle of equal political liberty is also identified with the principle of equal participation within the constitutionally defined political process of a just democratic society. Rawls has been criticized for not being entirely clear about why political liberties are included on this list,4 and for failing to offer a detailed argument for their special status and a proposal for how it can be captured institutionally.5 Yet there is no question that the liberty to political participation on equal terms is meant to carry the abstract normative commitment to equality modeled in the original position—where parties are selecting common principles from a position of equality—to the constitutional stage where they collectively participate in “the highest-order system of social rules for making rules” by participating in the vital political process of lawmaking.6 Taking the constitution to be foundational, as the highest-order system of rules regulating and controlling all other institutions of society's basic structure, Rawls concludes that satisfying the principle of equal participation in practice affords all persons with access to the political process “common status of equal citizens.”7 Having affirmed the importance of equality within an institutional context, Rawls further contends that a just constitutional democracy should endeavor to “enhance the value of the equal rights of participation for all members of society.”8 Such participation can take different forms: serving as an elected representative of the people, making financial contributions to political campaigns, participating in public debate about the issues and the candidates for office, and casting a vote for government representatives and for ballot measures. These are all ways of determining the results of the constitutionally proscribed means of making the laws that bind us and shape our lives from cradle to grave. The appeal to equal participation to ground a normative defense of voting rights trades, in part, on the intrinsic or noninstrumental value of equal political liberties, which are, in many ways, a good for citizens. As Rawls puts it: “These freedoms strengthen men's sense of their own worth, enlarge their intellectual and moral sensibilities, and lay the basis for a sense of duty and obligation upon which the stability of just institutions depends.”9 But in addition to this, Rawls offers an instrumental justification of equal political liberties that is also germane.10 It proceeds as follows. Other basic liberties, for example, speech, association, and thought (which some may take to be more fundamental), are protected by the principle of equal participation, and lose their value when citizens do not have meaningful opportunity to determine outcomes of the political process in an appropriate fashion.11 The haves, that is, citizens with more income, wealth, and other resources, can leverage these resource inequalities to be better informed about issues, to more accurately assess policy proposals and how they bear on their interests, and to more effectively add ones to the political agenda that advance these interests and their conception of public welfare. All of this will result in the resource-rich having disproportionate influence over lawmaking and settling social issues.12 It is patently unfair for the equal basic liberty to political participation to be of greater usefulness to the resource-rich than to the resource-challenged. While resource disparities in income and wealth may be justified and tolerated on grounds that they maximize the primary goods enjoyed by the least advantaged, if indeed they do, we reject the prospect that such disparities should affect the usefulness of citizens' political liberties, which explains why Rawls rightly insist upon securing their fair value. This normative imperative requires that their worth be sufficiently equal to allow all citizens a fair opportunity to influence outcomes of the political process. Specifying how exactly a just constitutional democracy might enhance the fair value of political participation is, as Rawls admits, a complex matter that goes beyond the scope of philosophy. And this is true whether we are focused on free speech or on voting which are distinct ways of influencing political outcomes. Settling upon the necessary arrangements and regulations requires, among other things, the requisite historical experience and knowledge. But philosophy is not altogether useless for this pursuit. It can offer, endorse, and defend possibilities that seem compatible with the normative principle of equal participation.13 Rawls, as we know, was particularly interested in the adverse effects of private money and wealth disparities on equal political participation in a private-property democracy.14 So, he proposed as a guideline for guaranteeing the fair value of political liberties, and as compensating steps to offset resource disparities that make them less useful to the resource-challenged, that political parties in a constitutional democracy operate as independently as possible of large concentrations of private economic interests. He also called for adequate government funding of public elections to prevent candidates from having to rely on private money and thereby risk being beholden to their private benefactors when making laws.15 Failure to take such steps will, Rawls argues, not only diminish the worth of political liberty for the have nots thus depriving them of fair opportunity for political influence; moreover, it will risk alienating them and facilitating their complete withdrawal from the political process due to apathy and resentment. And though he does not make this point, it can be added that a withdrawal of the resource-challenged from the political process would also diminish the character of American democracy. To be sure, this proposal seems quite impractical now in view of how expensive running for office has become. Still, these are plausible suggestions for the kind of reforms needed to bring the United States more in line with the principle of equal participation given a certain form that it might take.16 What about the right to vote? This is arguably the most recognizable and coveted form of democratic participation. What concrete guideline might ensure its fair value to citizens?17 Separating big money from politics and campaign finance reform do not directly speak to what might be done to enhance the usefulness of equal participation made possible by the exercise of this basic political liberty. One general prescription for realizing the fair value of the political liberty to vote, namely, Unencumbered Access, is to ensure that social arrangements and legal regulations governing voting should as much as possible and subject to certain constraints aim for maximal citizen participation in determining political process outcomes. Hence, a constitutional democracy committed to the principle of equal participation and to ensuring its worth to citizens should make access to the ballot easier not harder in the absence of compelling reasons for doing otherwise. For the United States, which is a paradigm exemplar of a constitutional democracy on paper, if not always in practice,18 Unencumbered Access imposes a prima facie duty upon the government to take meaningful steps to ensure that all citizens irrespective of their allotment of income and wealth and other basic goods, for example, education, are able to participate on equal terms in the democratic project of voting. This normative principle of participation imposes on society a duty to make sure that the political liberty to vote is thus substantively and not merely formally guaranteed.19 Of course, this principle does not require that citizens vote, nor does it entitle them to equal results at the ballot box. They may vote and their preferred candidate may not win. What is at stake, however, is the fair opportunity to have a shot at influencing political outcomes rather than having particular voting outcomes secured. Hence, fair equality of opportunity to determine the political outcomes at the ballot box necessitates that income, wealth, and education among other basic goods unevenly distributed across the population of citizens are neither obstacles nor facilitators to the meaningful exercise of the right to vote. In a well-ordered society where there is compliance with the principles of justice, we might be justified in restricting our philosophical attention only to the ways in which disparities in income and wealth might interact with the exercise of voting rights to generate injustice. But under less favorable conditions, of the sort that have endured throughout United States history, we must also attend to the ways in which other basic goods like education as well as features of persons such as their race and gender might also bear on their fair opportunity to participate on equal terms in affecting the political process.20 Calling for the separation of money from politics, as Rawls does, and proposing restrictions on corporate speech in public elections and for campaign finance reform presumes that political mischief will result in their absence. Likewise, calling for unencumbered access to the ballot, as I do here, presumes that political mischief is at work when access is made more difficult. This is not a matter of idle and uninformed philosophical speculation. We can consider the infamous history of black voting rights in America. Historically, as Rawls notes, “one of the main defects of constitutional government has been the failure to insure the fair value of political liberty.”21 This has unquestionably been a profound failure in America. The United States has not been well-ordered: race has long played a role, directly and indirectly, in determining participation in the political process through voting. Some states have historically made it excessively burdensome for black Americans to vote.22 For example, after the Civil War many more blacks than whites were illiterate and some southern states exploited this to negate the fair value of black voting rights. For example, in 1882, the South Carolina general assembly adopted an “eight-box” ballot law. Voters were required to put the correct ballot in each of eight boxes, one for each office up for election. The boxes were then continuously shuffled so that election officials could not assist illiterate voters. This indirect literacy test—which exploited racial disparities in education to diminish the worth of blacks' right to vote—was a precursor to more direct ones like requiring citizens to read or recite a section of the constitution before they could register to vote. Such tests were among the many cunning ways some states curtailed the fair value of black citizens to influence the political process and to influence democratic governance on equal terms with whites. Other methods included poll taxes, moral character standards, and property requirements.23 At the time, some critics complained that each method had the shortcoming of targeting poor and illiterate whites, and not just blacks. So, in response, states such as Oklahoma, Louisiana, Virginia, and Georgia addressed this complication with grandfather clauses that deemed citizens qualified to vote only if they, their father, or grandfather were eligible to vote before 1866.24 It is no surprise that during these times, and long after them, substantial racial disparities in political influence prevailed and that the basic political liberty to vote was of little or no worth to black citizens. They had a constitutionally recognized right to vote (thus their right was formally guaranteed) but their enjoyment of it was seriously constrained by social institutions and practices (thus it was not substantively guaranteed). From the post-Reconstruction period well into the 20th century, southern states—sometimes without but mostly with the support of the courts—found crafty ways to diminish the worth of the black vote in local, state, and federal Hence, it is that states have different with the and of to voting to black citizens of their liberty to vote along with a fair opportunity to influence the of the political process. The of our historical experience in the United States and our of where voting rights have not been their usefulness for philosophical about what it would take to the fair value of voting rights on the historical of and the intrinsic and instrumental importance of the right to vote, Unencumbered Access is an for maximal citizen participation in the political process is the of Unencumbered Access, there are important constitutional and that the right to vote. rights have a special status in constitutional law. that on them To this a law must a compelling state and must be narrowly or to advance this It should as no surprise that over the historical importance of liberty interests in the United States and so over which liberties rights. no of law this than the voting rights the most is in which the a affirmed a not to to an law requiring to present at the in the and called for a in which on the right to vote are state interests so that the the burden the the interests must and the the burden the less compelling the interests must and a in which only on the right to vote that is, ones that beyond the merely And in their and recognized the right to vote as but that the burden imposed had to be in that the was on to that its voter ID could The has to speak with a a on whether and when laws the right to vote the on whether and when government on the right to vote require its status as a constitutionally protected right Still, if it is it is not an to the United States certain state interests can on The certain political participation to the In addition to the conditions under which the right to vote may be the of political representatives and how they are states also have primary for determining To be sure, guaranteeing the fair value of equal political participation rights is not meant to these as Rawls puts may be of and so which states on serving as an elected representative as well as on voting for But the ways in which states exercise this must not on political participation that citizens and that are not by all in the of In addition to its states to make access to the ballot harder have further interests including to prevent election and and voter and voter However, a with voter fraud has been the most justification for doing and voter ID laws have been the for realizing this These laws allow resource disparities to affect the fair value of political liberty for black Americans and for many other citizens. certain of ID to vote such as and which the to leverage resource inequalities to easier access to the than the have The and such laws on have been well have been made of the in voter which necessary for example, and to to from work or as well as possible legal and to While some state have to resource and so may be more just in how they elections than other to offset them have not been into for example, free ID necessary for being able to the ID in that resource-challenged must on a basis and requiring of ID that they are more to failure to resource disparities that fair opportunity to influence political outcomes at the ballot box will have to not doing so in the of political it is clear that the justification for guaranteeing the fair value of political speech here, and that certain compensating steps are also required in this The of these steps is to secure the fair value of voting rights by making voting easier not harder in with Unencumbered Access which is in the principle of equal principle that has intrinsic as well as instrumental argument to the burden entirely on states to making voting While fraud has been the main justification for this burden on the right to vote, and making access to the ballot the evidence of fraud at the is it is much to making access to the ballot more in the which restrictive voter ID the that the state had evidence of such fraud in at in its it this by that evidence of voter in the sufficient grounds for fraud prevention law. the justification for the right to vote from not only which there is fraud for the of the public But this is a problem. all other basic liberties, the right to vote and the of its fair be merely doing so might some social For example, that the United States would be better if there was less in as this would to and and more And further that this would be good for society as a and this good could be by one political a on political that this could be if persons to vote for including and the poor had their them from the persons they support into or they to it their on election that the fair value of the right to vote has priority entails that it be for reasons having to do with the public good or some other basic liberties this right imposes a normative on the of outcomes. the usefulness of voting rights to citizens be for the public good does not however, that the right to vote can be As I it is not an all other basic liberties, the right to vote and the of its fair value can be for other basic that we to rules within the basic of society that within a system of rights the political liberty to vote and the liberty of thought and political other basic that the liberty of some to in speech political candidates just to an election the right of access to their vote to their preferred candidate in This which might bring to the in would not be as it a of a basic liberty for the of basic liberty and not for the greater social Such of rights for the of other rights, on other is with basic political liberties and their of fair value normative One of that the right to vote is not is that it of the that social conditions necessary to its exercise could in ways that required this right to within an adequate with other basic for example, social conditions so that voter fraud had indeed or made it possible to voter fraud with then the right to vote, by making it harder to vote by more might be in for the of one or more basic Of course, we would have to be clear about what these other liberties are, and the for the in social conditions would have to be compelling to such But as the right to vote and the of its fair value has we could not this right merely by a with public in possible voter or of the public reasons that have been thus it would not as an of the right to vote and the of its fair value for a state to the time, and of to it by the Such rules are necessary for ensuring the of voting and the exercise of the right to vote. can vote at or in the so it is necessary to for and the voting process to bring about the aim of citizens the and equal opportunity to influence the political process. It is important to be however, that all such must be in the of realizing or the right to vote and its fair that is, it from an abstract ideal to a concrete of We might this such does not to an on the right to vote, to the priority of this basic on voting that beyond what is necessary for making the exercise of voting or for its can only be justified for the of one or more other basic So, one may be to that one is to vote at a particular as of ensuring the exercise of the right to vote, it is for these to that one of or a kind of state a rather than a ID Such a rule would be These ID which to make the resource-challenged and resource-rich could only be justified in a society where the priority of the right to vote and its fair value was affirmed if access to the ballot was being for the of some other basic liberty. And there is no evidence that this has been the in the United I have that the fair value of the right to vote a concrete of a commitment to the ideal of equality not merely in the abstract but within the of our participation in the political which is among the social institutions that shape our on fair the political liberty to vote is an for participation in the political process. commitment to equality is not if citizens not to vote. is it if they vote but their candidate does not of the voting process is by or vote that some have a much of their candidate in However, if it like education, or to exercise this basic political and these are unevenly distributed across the of then the commitment to equal participation in the political process is such the value of the right to vote is only for citizens who have the To making the right to vote in ways that are unfair to all citizens of but for black citizens as a who are more resource-challenged to we should a duty to secure unencumbered access to the This is on a of A We to I for of this with at a of John Rawls, and to and for the to it in this special is of at The of He is the of the most is A We to For more to

Lluís Pérez-Lozano

Like most theories of democracy, democratic republicanism has usually taken for granted who the demos is. However, precisely one of the most frequent sources of political conflicts in contemporary history is the determination of its boundaries, particularly –though not only– in secession conflicts. This article aims to answer a related question: what kind of right to secede from a modern democratic state,1 if any, can be acknowledged from a democratic republican viewpoint? By answering this question, I hope to make a contribution both to republican literature (in which secession has barely been analyzed) and also to the normative literature on secession (in which republicanism has very rarely been used as a normative framework). The core tenet of the republican theory of secession developed here is the recognition of a non-unilateral2 right of secession for any democratic secessionist community within a democratic state, coupled symmetrically with a non-unilateral right to territorial unity for that democratic host state. The rationale behind this theory is to deny both sides the power to impose their will without having to consider the interests and opinions of the other side; that is, to deny arbitrary power, which in republican terms is synonymous with domination. As we will see, this in turn minimizes the chances of permanent majorities and powerful minorities achieving arbitrary power in center-periphery conflicts. This article does not discuss secession as a general phenomenon, but focuses particularly on secession conflicts where both secessionists and the host state (and the unionists within it) are peaceful3 and democratic. The rationale behind this analytical choice is to minimize what we might call normative noise, i.e., normative issues that distract our attention from the ones that we initially intended to discuss. Modern democracies, however imperfect they may be, are the closest polities to democratic republican ideals that exist in our contemporary world. Thus, when neither the host state nor the potentially seceding territory are attempting to move away from this political model in a non-democratic direction, secession appears normatively “naked” in democratic-republican terms. I am not trying to find out whether democratic secessionists are legitimated in seceding from undemocratic states, nor whether democratic states are legitimated in suppressing an undemocratic secessionist attempt. The article presents this theory over eight sections: (1) a review of current theories of right of secession, pointing out why republicanism can be a useful framework to overcome their weaknesses; (2) an overview of the main tenets of republicanism, explaining why (and how) republicanism must analyze secession conflicts as a type of factional conflicts; (3) the presentation of the normative core of my republican theory of secession, based on non-unilateralism; (4) the outline of a non-unilateralist framework for secession conflicts; (5) an outline of three problematic scenarios for the theory, and of the role that unilateral mechanisms can play in order to tackle one of them; (6) an exploration of the strengths and weaknesses of two possible institutional translations of this theory (constitutionalization and internationalization); (7) a discussion of some foreseeable criticisms of the theory; and (8) a summary of my conclusions. For the purposes of this article, a secessionist movement is a group of people that seek secession for a broader group of people, namely the target group. When secessionists are a clear majority within the target this group as a secessionist of a secessionist movement is this is not of secessionist when a secessionist community to a modern democratic state as a democratic secessionist secession is as of for of of right of secession are usually three on who they to i.e., i.e., that are and the state, particularly not in terms of i.e., The two of secession as a i.e., a right to which some of people are a with to their the the of which are to this right are usually as an (1) i.e., to and to (2) the i.e., the of minorities the power to the can be (3) its is to an of the that a group of people must in order to be a and (4) the of who in the territory of the group that is to secession, but who not its might to be as and be from the on secession, from to some of which secession as a in the of are is a of but on some as of However, theories been as the they the of current and the of on This is problematic most are the of that are from the democratic that theories an answer to this as as states are are However, in a of states, minorities and are of permanent which are usually the sides in on issues related to state the territorial of political to that they must this of a in the for Thus, that current are in some for unionists I that the behind this is that current an a in secession that is to the territory make this choice of a of as as a state is secession is and and on the other make the choice of theories of that are not based not based on order to their I this is to and is of what be political the that is, what the of political and is of who make the political and that to this of and they this the as a of I that when we political and two the people who we to we their of may not be the people who we consider legitimated to For we may a of to the we can a with a as as as has power we as and I the is to as an of the is to As we a the of and who are to and for the who are are to from that However, the with a and is that political conflicts to to very and on the of when our interests are This is, one of the main why we and that we to that is, in the and if we that the who is who has the on is the who we will be in and not the This is why political and that to and make in a that can be as who that and are other political and in order to political conflicts of in a I that and are right not to a and secessionist The is that they the of over the my the is the of the of is When the and in the on the of who is the to power in polities a of and to tackle political conflicts without to a is not a to the might does make This is the of that the of of in is also the of most secession conflicts. For who is right in secession a and be a theory that out a institutional framework for secession conflicts. to be a theory that be within a turn that is in the an a of a unilateral right to secession, are and mechanisms which secession conflicts be this who a very and I will that democratic republicanism can for a This article is based on the contemporary of the republican developed on the of this is the in current republican to this (1) for as (2) as the arbitrary power of the group over the group i.e., as a power that can be over without having to consider interests and opinions (3) in order to republican sources of power must be and the (4) in order to the state from a must be as a with its and in and the of and (5) that and are democratic as to (6) for republican to as people as possible Thus, and as are the main of democratic in this republicanism as to but a is, a of political on as as on not in the of but also in that of this a in republican is the (and the of factional conflicts when to political political political conflicts in a that can power over the The of power is not to but also to the of a factional also this of power to has not with that are to secession in which the neither seek to power within a state, nor to power for a state, but to a state out of one to group with an to republicanism, as not used republican and in their on secession when on secession from a republican of they in a usually as a within broader on as the republicanism and but on on has some of potentially secessionist in one Thus, is to be in a democratic republican my as I a secession can be as a of factional is usually the of a a permanent majority and a permanent both of the of permanent on the state be and in terms of its territorial territory the territorial of political and this a secession may in democratic republican terms. The one is the of i.e., the that some people who be the of the seceding may be from on the of secession, from of the This in my is one of the of if the group with a right to secede is one who not may be from the of on in they may be from of the state, they are not of The is in the of of achieving unilateral secession an which to be particularly powerful of its be in a to the of the of the with to consider interests and opinions arbitrary power over This is a that but for they are of people seceding two of and republican to I as to a that of arbitrary permanent that secessionists must the of the to permanent who may what of they will to permanent This a may be with the the of a democratic For a to the republican of its its be in a to to the interests and opinions of the is a (and a be the democratic republicanism majority The of (in democratic republican is not to but to to in to be to people and majorities Thus, in a democracy, we can to be in a majority and in a for I am a I will be a in a and I will be a if I am a This of majorities majority the imperfect to to the interests and opinions of However, in center-periphery conflicts and the majorities is to the without for the interests and opinions of permanent if their are with democratic For a permanent majority can the of but democratic to the of the of a permanent from This does not that they will but that they are to in republican this is a i.e., a of arbitrary are two that been developed in order to overcome this arbitrary permanent (1) the of of and (2) the within the of for secession, of of recognition However, neither of the of arbitrary permanent both are is that the host state must of center-periphery without that the of a for a center-periphery is precisely the very of that this is a that can be on a in the in the will usually be the permanent both the they are trying to that the of to the to permanent majorities permanent make to their one of the two of is to be the other to the for democratic republican i.e., of secession conflicts not is to domination. I developed this republican of current my in order to overcome democratic republicanism a based on a non-unilateralist I will the to this I that a democratic republican non-unilateral without unilateral This non-unilateralist is both secessionists and the host state to their the to the interests and opinions of the other which is to permanent majorities and permanent in center-periphery to interests and opinions can this in the of and in the and the The out two in the secession the right to unilateral secession, within the but the acknowledged that the the to with a secessionist in if a clear majority of to a clear The both the and the and the of the to in can why a question: what if the not to in the of a that the secession of been in terms. However, this is not the the that they not to within the will of but to the of unilateral secession what the the secessionists who initially been for the to a role in the I may be to to the I may be the of without with in any of my may that my is of a and may that I am to be to away with I in the to its without the interests and of the other the the chances of in both that this in this appears to be and to both be for of to with as a and in the of both this be a in terms of political and is out in the aims to of in order to of aims to political conflicts an institutional framework in which (1) a and are from and (2) as a of the political to away from Thus, republican and political in secession conflicts within modern democracies, this be in my a framework in a non-unilateralist to that of the the I outline what this framework my a democratic republican framework for secession conflicts be based on three (1) a non-unilateral of secession for any democratic secessionist coupled with a non-unilateral right to territorial unity for its democratic host (2) a unilateral right of secession for in which democratic secessionist are with an and (3) a unilateral right to territorial unity for in which democratic host states are with an secessionist The of three the of a non-unilateral framework to secession which the in the (1) a democratic the of the secessionist target with a clear secession, in order to find out whether they are a secessionist and (2) in the of a clear a in the host state and the secessionist this framework the secessionist community the right to secession, also the host state the right to its territorial Thus, the will both and normative will find out whether the target group is a secessionist and will (1) a for its to secession, in with the host state, and (2) an for the host state to with in this the of who a and the framework as a we will to that in For in order to a of this non-unilateral right of secession we must discuss the what is a clear can a be what is a clear and a in unionists and secessionists the the on secession must be in is not a for will be to that the in the the in the the be and the majority be clear in order to make that we are a secessionist The of the has to with in order for to be a the of the majority has to with in order to that we are with a democratic secessionist The of the has two territorial territory is potentially seceding in of a and in the the territorial I is to secessionists the territory that will potentially where the be This a must be based on a that This has some problematic that I will discuss in for that in the territory out secessionists for a a The not be the for the of a on the of a state, the of democratic republicanism a the right of who be the of that state to this in that without other possible on the the of the majority the what and for the is in order to consider that has been a clear secessionist my this is However, I that we can two the the the of the target group as a political the the the and the target group is, the the to two the for a in and in the of and be in The rationale behind is that in secessionist are as an (1) based on in can be to play a role in in and (2) the of minorities can be particularly in of two can be within one in a secession the the secessionist target group can be a people (in terms of and the the for a clear I call this the people This might to that my to secession is based that is not one and on what a is. However, this is not the current the people is not based on a of what a is as a of aims to an that in as a of the of a and of what is, is to be of the of a from a of the of a to a state. The people does not deny a to secession, but for of the and of their secessionist is who be to call the my be an democratic that the target this is the in target as within modern democratic However, this will not be the the target group may to a state. that the host state has for the target group with some kind of in order to call a secession if secessionists clear democratic in order to call the this of that they be a clear majority in the they also an of over that we can be that has a its this be in with the people that a secession has been in a that has been in with the I and that has in a clear this not to any the target group be to arbitrary permanent that on the other to to unilateral secession, this make the host state to this in order to both both sides an to in I we can state that two in when both their the and trying to in a For if the potentially seceding territory a that to be for the host neither over the a they seek some kind of in order to an in and from the The that a a secession is a arbitrary permanent the other the that a in a is a does not make to the host state with secession in order to if the to secession is a with that host state. However, an this institutional framework has the secession and its also the of a secession and the a The here is the host state this two (1) to the terms of and (2) to and a unity that is to the secessionist within the host state, that to be secessionist in the the the in the we a my this we the the secessionist non-unilateral right of secession, on the one and on the the host non-unilateral right to territorial to the this both to their and the their the host state the this will that to make a for territorial unity this is the of a in which the host state and the secessionist with neither particularly are both very to their to this be to an to this with other democratic in order to For if the host state in for the and neither the secessionist are to nor the host state to (and a be in the secessionist in this be to whether they secession if they what the host state is The if is very be taken in order to a The and the secessionist community to in its for secession, the be for the host state to but to a also a question: the secessionist that has the the power to call my secessionists to call as as they they will the host state the of a on the will the secessionist target group the of arbitrary permanent Thus, in with this theory to secessionist to call for a a but a The of this to be the of an and be the that can their For the of we that when this general is to if to the might three problematic (1) one of the territory secessionists as potentially seceding is not of the political in which the secessionist movement the democratic power to call for a in the of an secession in the (2) one of the territory secessionists as potentially seceding is, in a majority of people who secession the of and (3) one of the two of the this non-unilateralist the I be not to the territory in the secession the of that territory to be democratic The can be I the very of non-unilateral The of this to this be on the democratic republican that its to the secession However, I that we must this two a majority of the to secede from the broader a majority of the to secede from the broader territory if the broader territory to secede from the host state. I the for a majority be in the in the The rationale behind this is the people an will that is of the secession of the broader territory a on the of the as a people if they to in the of the broader territory seceding from the host state. the that one of the two is attempting to impose its the of the democratic host state, I that this is (1) secession a of of minorities the potentially seceding territory (2) the target group be, any a secessionist i.e., of a (3) the secessionists are attempting to secede in the unilateral secession a democratic secessionist community be (1) is the host state (in the (2) the host state is a (3) the host state is to its territorial unity and a secession in the Thus, the for having a right to be for both they this right if the to be be that this non-unilateralist when to to out but a (1) on the we other the secessionist (2) what be the for a clear (3) in the of a clear can be whether the host state and the secessionist community are in (4) can be whether the host state the secessionist community are any of the scenarios that The to be Thus, we to who answer i.e., who be the of the and what and political framework that are two possible of (1) and (2) the is usually that and secession are synonymous the of a right of secession has the attention of to to but of the has been out from the of of democratic The of this right that the of this non-unilateralist framework be a the in state, with the of i.e., the host state its its on the my this a a right of secession, in terms of and will be the that the of will be, in the one of the to the host that is, a power to one of the does not that this power will be to be the but in terms of this However, the of and secession, in the is I is a possible institutional of this republican its non-unilateralist be taken within the a of and to democratic states, as as and democratic secessionist to This outline an institutional framework for a non-unilateralist of secession political conflicts. the in this framework be a the with the of the the of this non-unilateralist framework within the a This be in with the in their to current republican within usually for a (1) democratic and (2) the of and and the of a state the to this and a state. to an is to and of of and two The of republican in the that of the to republican and a of republican the they are two that republican for a (1) the of and (2) that is not to a state. However, has been on the of the of the republican who with secession, an for the to be the is states, be in the we an to be a is that is not a is states, the in one secession are not states one secessionist but one state one secessionist to that an be to be an as the host state. a the be to that the of of is that they are the states that are to be they are usually a of one state that an institutional of this republican be an framework to secession conflicts. if the be problematic of the of a the be problematic is states, democratic to be of their over their the when they in their with secessionist in the the most for the of this republican (1) to as democratic as possible state and of the of this non-unilateralist to secession that they to when secessionist and (2) to for the of this both in as as in when and where I that main criticisms can be this democratic republican republican and two The republican be a to as an factional not be for a democracy, the to a right of if majority are a in the host state, this is they a factional my factional does not nor is that is the other an institutional that factional arbitrary power in will to discuss and other The republican namely that of of that republicanism to to in of the This can from a with the political secession can this and a republican secession in very As in the I this one and secession conflicts precisely when this kind of is people to a state does not in any that they are to to we that this be based democratic we that that two the is not particularly their to the of and the of the and and the in the this the of a non-unilateralist framework for a secession can two (1) an to a (2) an for unity and the the host state, as as the seceding will political the host state to in the the host state will the secessionist community that to be secessionist in the Thus, is to that this democratic republican if will be in terms of political which are to their republican be that of The be that this precisely the of in are some people a right to secede from a modern democracy, a non-unilateral (1) to some people over a that the political and (2) to the of the political community as i.e., as my both of this be the we can consider that secession political if we for granted that political one is the host state, which be secession the host state in the as taken the of the host state its this is an secession, be an the of the host state. this a for the host state and its in a non-unilateral framework for secession conflicts. not the of this secession does not the people the other of the in the in for from in the the a in which been to and if are to the the people of the of not be any from they are from the in any they be from the but not from which the of the will to be of a democratic The territorial of their will be their within that will republican one of as the republican to that will in Thus, secession will be to any republican However, I this is The that and modern as in the of and the related of and on the one and of on the the what for democratic republicanism is to and as as to may the the one that this theory, if in be in terms. Modern democratic states are states, and as they to their not to However, for The of the as having a of the of the a useful in order to the of the states their its in an framework has not been in order to that states but (1) has a to and (2) to has an of power for I hope the in this republican if they a on the of states and The the for for center-periphery However, I (1) my theory does not the of (2) secession for any a over the a majority with its state, that an for its and (3) is some that the very of a secession the and of Thus, the of a secession and not in the of is also a for a permanent to a permanent majority from an The democratic republican developed here can be as (1) secession conflicts must be as factional ones (in as the the of center-periphery (2) a democratic republican framework for secession conflicts within modern be based on a non-unilateralist that be a non-unilateral right of secession for any democratic secessionist a non-unilateral right to territorial unity for its democratic host state, a right for both sides to when the to be and (3) the and of the framework be institutional is that are that out of the of this article, but which to be in order to this are two main of issues that to be (1) the of the of the theory what a on secession we an for secession be the of an to a in a on and (2) the of this theory on its be to non-democratic they be to other territorial as I secession conflicts as not having a based on answering the the demos question, to current I that is clear answer to this question, in in the has to be if states are to be demos if also is whether this of power the main of a democratic republican theory is not to is but to that are to and I to and for their and useful and the and the to this I conflicts of to is an the of and as as a of its interests are theories of and its its and its and its and weaknesses in with normative issues in modern

Kurt Holukoff

In this dissertation, the author argues that constructivist foundations of political liberalism require a rarely recognized sort of pluralism—not only the familiar pluralism between ideas about how we ought to live that are the stock in trade of standard accounts of liberalism, but a pluralism about political foundations as well. The author argues that making sense of this requires revision to the way we sometimes understand key concepts (such as obligation), and develops an inconsistency-tolerant, pluralism friendly deontic logic for this purpose. 
\n A pluralist friendly obligation is argued to be one that represents moral and political principles in contrastive terms (analogous to contrastive explanation from Bas Van Fraassen), in virtue of the need to order acting upon prescriptions. The author develops a class of mathematical objects choices to model answers to why we should choose one policy over alternatives.
\n Constructivist foundations also turn out to be prima facie pluralist foundations, in virtue of the nature of the norms guiding abstraction. This leads to a proof that, in a weakest base logic, legitimate moral or political codes in a pluralist context must reference each other. Upon explicating the distinction between perspectives that could consider unrealizable plans and perspectives that are themselves unrealizable, the author proves that in our world liberalism is itself an unrealizable plan. These results clearly illuminate what is at stake when justifying foundations for a liberal state.

Michael Otsuka

HERE I present a challenge to prioritarianism, which is, in Derek Parfit's words, the view that ‘we have stronger reasons to benefit people the worse off these people are’.1 We have such reasons, according to this view, simply by virtue of the fact that a person's ‘utility has diminishing marginal moral importance’2 —i.e., that equal improvements in a person's well-being matter less, morally speaking, the better off she is in absolute terms. It follows, from this view, that one might have stronger reason to benefit someone who is less well off rather than someone who is better off, even when this benefit would amount to a lesser increase in utility than a benefit to the better off person.3 In discussions of prioritarianism, it is often left unspecified what constitutes a greater, lesser, or equal improvement in a person's utility. In his own defence of prioritarianism, for example, Parfit explicitly prescinds from ‘difficult questions … about what it would be for some benefits to be greater than others’ and ‘simply assume[s] that we can distinguish between the size of different possible benefits’.4 Parfit just stipulates numerical benefits of different magnitudes that comprise intervals along a whole number cardinal scale that is meant to represent the absolute levels of people's utility in linear fashion.5 We are supposed to assume that this scale provides an accurate representation of people's utility. But we are not offered an account of what constitutes the measure of the size of the units on this scale. I shall argue that prioritarianism cannot be assessed in such abstraction from an account of the measure of utility. Rather, the soundness of this view crucially depends on what counts as a greater, lesser, or equal increase in a person's utility. In particular, prioritarianism cannot accommodate a normatively compelling measure of utility that is captured by the axioms of John von Neumann and Oskar Morgenstern's expected utility theory. Nor can it accommodate a plausible and elegant generalization of this theory that has been offered in response to challenges to von Neumann and Morgenstern. This is, I think, a theoretically interesting and unexpected source of difficulty for prioritarianism, which I shall explore in the remainder of this article. In presenting this challenge, it will be useful for me to begin with a case that is closely modelled on one that Thomas Nagel presents in his essay ‘Equality’6 —and with which Derek Parfit opens his Lindley Lecture ‘Equality or Priority?’7 Imagine that you are the parent of thirteen-year-old twins. For the sake of interpersonal comparability, let us assume that they are identical twins with identical preferences. They differ, however, in the following crucial respect: one of them has recently been diagnosed with a condition that will soon give rise to a severe mobility-impairing disability, but the other has been given a clean bill of health. You need to change jobs and must therefore choose whether to move your family to cramped urban accommodations in an unpleasant and dangerous neighbourhood or to the and of a would be as your own well-being is But they would not be as the well-being of of your is you move to the your who and will be in and but your will have to that will but from the of his you move to the your will but your will not this marginal benefit to the of a move to the I shall be greater than the marginal benefit to the of a move to the It that a would for the Nagel would that you have reason to move to the Parfit would that you have reason to move to the but would that this reason is rather than In other words, Parfit would that you to move to the simply on account of the fact that improvements in well-being matter the worse off someone is in absolute terms. of such to the worse off is Parfit an the is as well off someone is in to someone to be a matter of moral that on the view, is well off people are in absolute the worse off they the well-being It not and well off they are in to In of this view, Parfit that would be just as to benefit the even who better the following of case a case in which you have a this thirteen-year-old has recently a that is a that will soon the severe and a that will that you must for the in the or the it is whether your will the the marginal benefit to your of a move to the in would be greater than the marginal benefit to of a move to the the and to the view just as a reason to move to the in this case as one has in the this prioritarianism for a of of expected the in is utility. It for the of the of the of possible that might be the of this the the of such is by the that it will utility of given is the of utility in that person's utility has been the but marginal moral in the of by simply by this by the that this will such a expected the of a reason to move to the rather than the will be just as in the case as it is in the In of the Derek Parfit a and to than the one just the that Parfit a the expected of the in just the a But in to in such Parfit that the to the of are simply expected the on Parfit's to these well as to the a person's expected the greater the moral of a marginal increase of a given size to his expected In other words, not are the levels of a person's utility that are the different possible of a morally in a that the but is a person's expected of utility that is with a given in a person's expected utility and his utility and to it a with with a with I shall this Parfit's of Parfit this view by just as such as are to about the of people's of as well as the of the they can and have for people's for utility as well as for of utility prioritarianism less reason to move to the in the case as with the the will that the parent to move to the in the and it would be to move to the prioritarianism therefore the what one to move to the the of prioritarianism that to to of prioritarianism, the I shall in this is simply in along the of the other than between the possible of a you are simply to this person's expected rather than to to prioritarianism in or it is therefore to for the in the following is a of defence of this one as I that are one that will the measure of a person's such will to axioms of expected utility theory. It that you will this with an other than that which it is in his to you to his expected utility. fact provides you with reason to his expected utility rather than to this reason is not by reason that you or for example, or that in of to other than what is in this In this are that might from the of a It is for the to the in from of to you not have you are to your expected utility in this case on that this is what it would be for to is the of prioritarianism in or In this I have to a case a parent and a a case is useful it that the of the parent to this a for the of this will in to They a of the to the and other of this one in from the and of They therefore us with a case of prioritarianism than one in which an is by and is, however, an of the that it for these parent is the of his the of a is someone who is to the of a parent has a reason to that This reason will to to other of who are whether they benefits to they are not even I to the that the parent the expected utility of his one this might from his and to a of prioritarianism as on of to with case that better would be one that that to the to a rise to reasons to on of the of a that are to or other such as that of an who is to let us in the to that who must the the move to the or the are the rather than his This in the to you as your or and is to You are however, his parent is the it that parent is an of a of which you are a but someone to you have of or the parent is a you not of the the parent is has and you must whether to the parent to in a or in a as the of the parent and of the are for of these are it is for you to just on the in which this on the of your one and In this I would argue even the view that you you are to the parent in a that the expected utility of the I shall argue in you are to on that this is what it is for to I argue that you are to on that this is what it is for your to I will not your to in what to with different of reasons from to with preferences. We often have reasons to what someone even when such from what it would be for to We for example, have such reasons not to in I have of what the or what would I shall that the has such a move are to his you cannot the to his This is you must a to the parent to the or the you not will of these with from a different and the parent will be of a to your to of the this the of not in of the the or They not therefore in of or what it would be for the to as I shall in is a move to the we have to some on someone and we this would us to we that we to be or this plausible and view, it would be to on this person's some of the that this choose to or she this for we to give to possible in which this would be worse In this I shall I Parfit's on of prioritarianism in the In this Parfit of the view that it be for you to on of that it would be for you to choose for This view a of in which own to is not as to be But the view to which Parfit is that it be for you to on of that it would be for to choose for This view is a less plausible than the It is to it might be for you to on someone in a that would be for to choose than it is to it might be to on someone in a that would be for you to we assume that one to be to on of such an not a rather than a of the of it the for example, that you a in the has just an You have you that this has an equal of in or You can or a This would benefit by the of his in the that But it has the following it would by a in the that that the in utility between and the is greater than the in utility between the severe and you are a you will rather than this as is what the person's expected utility. however, you are a who greater moral to in utility the absolute you will this that a of a rather than is what the person's expected In this an who is to on of will what rather than prioritarianism as in this you you will this to the in which you in the You will however, be on his you rather than the we not on of in by to to might this but that what is is a in that on the of such to as well as on the in the utility of is an of This is a moral of utility is captured by a the utility and the the morally of that utility. For utility is captured by such a it from the measure of the to which someone has a or a that such a of that I would the that such the utility of a and to be Rather, it is that in of in are other than in the they are for the of the of as this is the Parfit will not be to such in of a of utility. This is as I have just with the example, such will move one to what rather than prioritarianism in that a that one not be the of that might will move one to as the would prioritarianism would one to the rather than I the of the Parfit that a is by a of or to a rather than a person's In the remainder of that I this In this I shall the following difficulty with Parfit's that one to in rather than in such as the the urban or the of difficulty is given the soundness of expected utility what prioritarianism in such to what it would be for the to the and of expected utility which to von Neumann and a cardinal scale of a person's utility is of that to axioms of and a and an but the of these axioms have been as of is a that a these axioms has a utility an of which is that the expected utility of one is greater than that of and the is to the of an will often to of these they them it would not that the von utility would a measure of the well-being of the in is to that to which the moral well the 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Agustín José Menèndez

In this troubling and wise book on the European Union (EU), Alexander Somek puts forward a provocative reconstruction and assessment of the jurisprudence of the European Court of Justice (ECJ) and of the policy advocated by the European Commission. The core claim of Individualism is that magistrates and Eurocrats are slowly but steadily driving European polities away from the basic tenets of the democratic Rechtsstaat and into forms of inverted authoritarianism. Through a handful of leading cases and through a myriad of “soft law initiatives,” the idea of a government of laws and the normative dignity of a constitution authored by the people is being subverted. Indeed, the democratic constitution is in the process of being replaced by a congeries of norms aimed at the pragmatic realization of the ideal of a free market inhabited by apolitical individuals. This is the peculiar European road to Tocquevillian individualism through the mirage of absolute freedom, through liberty unencumbered by political ties and loyalties toward a particular national community. At some points, the reader senses that this is a detail in what the author conceives of as the larger fresco of the history of modernity (or to be more precise, of how modernity has gone awry). Indeed, the logical conclusion of the book (even if not physically at the text's end) is the extremely somber passage in which Somek claims that “[t]he ideas of the French Revolution finally seem to be lost in Europe. The age of modern constitutional law is coming to its conclusion” (p. 243).1 Striking a very dissonant note, the author thus claims that the usual Kantian optimism about the emergence of a “new” and “cosmopolitan” European order is, at best, delusionary. There is a very dark side to European integration besides the rough and tumble of referenda. This grand argument is rendered powerful by the gusto with which the author moves across disciplinary borders. Indeed, the book is at least three things at the same time, namely: (1) a politico-theoretical assessment of the basis of legitimacy of European constitutional law, as it stands; (2) a constitutional and normative assessment of European policy making, with a special focus and emphasis on the Commission; (3) a critical and original legal-dogmatic reconstruction of some of the leading constitutional cases of the European Court of Justice. The core of the disheartening thesis of Individualism is that the judges sitting in Luxembourg and the Eurocrats mingling in the Bruxellois buildings of the Commission would transform not only the concrete substance of supranational and national fundamental laws (as the standard narrative goes) but also the very structure of social integration in the old Continent. While the Court's rulings and the Commission's enactments have retained the form and appearance of a legal-constitutional discourse,2 the leading judgments of the men in robes and the myriad policy initiatives by the fonctionnaires have mutated the fundamental law of the Union into a dubious body of “dissonant” law,3 no longer informed by the normativity of the self-government proper to democratic constitutional law but by that of (neoliberal) “approximation.” The latter would sever the connection between law and critical practical reason by dissolving the very idea of the legal system as a normatively coherent whole and replacing it with the “pragmatic” reduction of law to a casuistic logic of appropriateness. It would also make political power vanish by negating the political condition and pretending to bring about a full decentralization of sovereignty, which Somek describes with poignant irony in chapter 11. On the one hand, Somek places considerable emphasis on the regulatory inventiveness of the Commission. In chapters 5 and 12, for example, he peers behind the jargon used by the Commission in explaining itself, providing a crucial diagnosis of how individualism is tied to a peculiar form of “cradle to grave,” inexpensive, and paternalistic welfare state (a kind of welfare state on the cheap). Instead of classical and expensive redistributive measures involving personal taxes and personal benefits, the inexpensive European welfare state would seem to be about the zero-cost policing of personal habits. Thus, the obsession with initiatives aimed at rectifying the smoking, drinking, eating, and exercising habits of the population. Add to this the further twist of grounding such initiatives on the need to realize the internal market, and you must agree with the author's sarcasm: “Apparently, regulatory difference causes melancholia” (p. 250) and justifies the exercise of a liberal priesthood on the side of European institutions (p. 255). But the most intriguing part of the argument is Somek's discordant interpretation of the case law of the European Court of Justice. By a skilled dissection of the leading cases concerning, on the one hand, the division of competences among the Union and the member states and, on the other, citizenship in the Union—or, to be more precise, the free movement of workers relabeled as the free movement of citizens by the Court itself—Somek reveals the extent to which the Court has radically altered the relationship between economics, society, and law on the old Continent. Rulings concerning the powers of the Union and, very significantly, the key Tobacco Advertising decision,4 have, he claims, consecrated a radical shift in the understanding of what the “internal market” is about. While seeming to “rein in” the power of the Union, the Court, in truth, has abandoned any attempt at limiting the societal sphere of the single market and the radiating normative force of economic freedoms. In particular, the Court has reversed its old limiting jurisprudence according to which the Union's competence was to be determined by the “center of gravity” approach or, what is the same thing, by pinpointing the regulatory interest of a measure and determining whether it was about creation of the internal market or achievement of a socioeconomic objective (the latter being reserved to member states). From Tobacco Advertising onward, the “internal market” has trumped other interests—that is, any measure that removes a sufficiently serious obstacle to an economic freedom is held by the Court to fall within the competence of the Union, even if its regulatory center of gravity lies in an area of national competence, such as protection of health, promotion of education, or combating tax fraud. As a result, the ECJ has abandoned the so-called liberal market paradigm—which regarded economic integration as a way to achieve wider political goals—and replaced it with a supposedly holistic market understanding that looks upon the four economic freedoms5 as the ultimate objective to which the organization of all of society must be subordinated. Thus, all socioeconomic norms are consequently viewed with suspicion as potential obstacles to economic freedoms.6 Once envisaged as a means of realizing openly political goals, economic freedoms have become the core of the material constitution of the Union. They are now at the heart of the conception of politics and society as enshrined in positive European constitutional law, a conception that, while well known in European constitutional history, is somewhat at odds with the one endorsed by postwar national constitutions. Meanwhile, the line of cases led by Martínez Sala7 and Baumbast8 threatens to redefine the very understanding of European citizenship. On the face of it, these cases might seem to have replaced the “market” denizen of Community law with a “political” European citizen by extending the number of holders of the Community right to free movement beyond the rank and file of workers to the general class of nationals of a member states and, perhaps, even more widely to permanent residents of a member state. However, such rulings have far less benevolent implications, because the practical effect of this kind of rights discourse is to expand the possibilities for the ECJ to review any national law on the ground that it violates economic freedoms. The upshot of the Commission's regulatory activities and the courts’ deregulatory activities is a full recalibration of Community law, which is softened, regarding the strong parties in socioeconomic relations even as it is hardened into abrasive forms of “liberal paternalism” that “nudge”9 us for our own good and purported freedom. The overall political result is the decadence of citizenship, which becomes a hollow category, inadvertently superseded—by what, we cannot be sure. The weak pulse of European constitutional and ordinary politics only amplifies the consequences of these developments. The complex blend of intergovernmentalism and supranationalism that lies behind the institutional structure of the Union is, indeed, an impediment to the interconnection of national political debates. Consequently, both the Court and the Commission lack democratic reference points by which to orientate their decisions. As a result, the active citizen is being superseded by the oxymoronic “individualistic” citizen (chapters 10 and 12), who is persuaded that it is in her own interest to become a docile subject delegating all power to rulers. It is because politics has vanished from the picture that political strife can be presented as a distraction or a threat, from which the really free individual has to be liberated by proper men in the know, or, put differently, by the selected few capable of handling and, above all, managing the restless many. All these major transformations would account for—among other things—the infatuation with a range of new and fanciful political idioms: no longer government, but “governance.” No longer capitalists, but “stakeholders.” No longer democratic confrontation, but arcadic “partnerships.” Somek takes considerable pains to show that, while the terms may be new, this is not uncharted territory but, rather, a political involution toward a mixed constitution of sorts, guided by the neoliberal mirage of absolute individualistic freedom. The form of law is kept but put to the service of a rather Lenin-inspired regulatory politics, limited to the administration of things (chapters 10 and 13). Both the legal-dogmatic reconstruction of the ECJ's case law and the normative assessment of the EU's legitimacy seem more than “disturbingly plausible,” to quote a blurb printed on the book's cover. However, what seems to be absent from the train of reasoning of Individualism, unfortunately, is a proper consideration of the temporal dimension of European integration. A question that might be raised is whether the “post-constitutional” and “individualistic” drives that Somek describes are intrinsic to European integration, or whether they result from a mutation caused by political and judicial decisions. The point is not only of historical interest but is extremely salient in pragmatic terms. Indeed, the reader is left pondering whether European Union and Community law are doomed—is European law, indeed, postconstitutional in character?—or whether they can be redeemed and their normative promise realized. And if they can be, what is to be done to extricate the Union from its present fix? In that regard, the author seems to point in conflicting directions (in the affirmative, on pages 31, 241, or 267, and, in the negative, on pages 121 and 123). One can only guess that somebody who devotes time and effort to write a brilliant book about European integration is likely to find some promise in a federal Continental union. Be that as it may, it seems to me that Somek's thesis needs to be tested by going further back in time. It was in the early and mid-’80s when a major turn in the perception of the relationship between politics, economics, and law took place both at the national and at the supranational level.10 This event consisted in the massive albeit slow transformation of the understanding of both national and constitutional law. At the European level, the rulings in Cassis de Dijon11 (certainly following the opening in Dassonville);12 the policy decisions reflected in the White Paper on the Completion of the Internal Market of June 1985;13 and the constitutional option for the Single European Act14 were conducive to the rise of what Somek labels “market holism” and “hollow” European citizenship. This turn of events is also reflected in the substantive shifts from the common to the single market15 and from the understanding of economic freedoms as a way of operationalizing the principle of nondiscrimination (and thus reconcilable with autonomous national socioeconomic policies) to their characterization as realizations of European citizenship. Individually, each of these shifts may be supported by reasonable arguments; however, as a whole, they provided cover for “privatizing” our understanding of freedom, and for the recharacterization of national welfare and tax norms as obstacles to economic freedoms. If this is correct, we could claim that it was these decisions that changed the structural and substantive genetic code of the Union and of its law. These decisions, and not some intrinsic features of Community law, are to blame for the progressive erosion of the socioeconomic preconditions for meaningful national socioeconomic policies. Thus, if there is nothing intrinsically rotten in the state of Europe and in its legal order, Individualism perhaps should be read less as a diagnosis of the unavoidable fate of the Union, of its institutions and its laws, than as a dystopic projection of what can go wrong if we keep on treading our present path. Furthermore, it seems to me that Individualism merely suggests, without fully developing, the links between integration through postconstitutional law and the emergence of the so-called governance paradigm. Indeed, the Panglossian description of radically innovative procedures of collective will-formation through governance, such as the Open Method of Coordination,16 which, with little critical research underpinning it, nonetheless attracted wide comment, or the more esoteric mechanism of coordination of economic policies in Euroland through the Eurogroup seem to point in the same direction—that of overriding constitutional law. To use words that were very popular in policy circles in the ’90s, European governance should become the new grammar of European law. In more pedestrian English, this means replacing supposedly quaint or obsolete constitutional law, tainted by its relationship with the nation-state, with a new array of procedures and institutional formations; it will be through that the collective will may be formed. That sounds very similar, indeed, to the “dissonant law” that Somek reads into the jurisprudence of the European Court of Justice and the policy initiatives of the Commission. Still, it is ultimately uncalled-for to criticize an author for what was not done in a book that is as rich and suggestive as Somek's Individualism.

Leif Wenar

The twentieth century saw a vigorous debate over the nature of rights. Will theorists argued that the function of rights is to allocate domains of freedom. Interest theorists portrayed rights as defenders of well-being. Each side declared its conceptual analysis to be closer to an ordinary understanding of what rights there are, and to an ordinary understanding of what rights do for rightholders. Neither side could win a decisive victory, and the debate ended in a standoff.1 This article offers a new analysis of rights. The first half of the article sets out an analytical framework adequate for explicating all assertions of rights. This framework is an elaboration of Hohfeld’s, designed around a template for displaying the often complex internal structures of rights. Those unfamiliar with Hohfeld's work should find that the exposition here presumes no prior knowledge of it. Those who know Hohfeld will find innovations in how the system is defined and presented. Any theorist wishing to specify precisely what is at stake within a controversy over some particular right may find this framework useful. The analytical framework is then deployed in the second half of the article to resolve the dispute between the will and interest theories. Despite the appeal of freedom and well-being as organizing ideas, each of these theories is clearly too narrow. We accept rights, which do not (as the will theory holds) define domains of freedom; and we affirm rights whose aim is not (as the interest theory claims) to further the interests of the rightholder. A third theory, introduced here, is superior in describing the functions of rights as they are commonly understood. Will theorists and interest theorists have erred in adopting analyses framed to favor their commitments in normative theory. This has turned the debate between them into a proxy for the debate between Kantianism and welfarism. Yet that normative dispute cannot be resolved through a conceptual analysis of rights. The third theory presented here is not fashioned to fortify any normative position. Rather, it is offered as a vernacular standard against which to measure the interpretations of rights that various normative theories press us to accept. The ambitions of the article are thus principally descriptive. The first half of the article shows what kinds of things rights are (i.e., all rights are Hohfeldian incidents). The second half shows what rights do for rightholders (i.e., which Hohfeldian incidents are rights). The two halves together complete an analysis of the concept of a right. The analysis here is general. It holds for all rights of conduct: moral rights, legal rights, customary rights, and so on.2 The analysis aims to reveal the logical structure underlying our assertions of rights, while remaining faithful to an ordinary understanding of what rights there are, and of the significance rights have for those who hold them. The first half of the article sets out a modified Hohfeldian framework for explicating the meanings of rights assertions. The thesis of this section is that all assertions of rights can be understood in terms of four basic elements, known as the Hohfeldian incidents.3 There are two fundamental forms of rights assertions: “A has a right to phi” and “A has a right that B phi,” where “phi” is an active verb. We begin by connecting these two fundamental forms of assertion to the four Hohfeldian incidents: the privilege, the claim, the power, and the immunity. In the process it will emerge that each of the two fundamental forms of assertion can also indicate complex “molecular” rights, whose structure will be resolvable into combinations of the four “atomic” incidents. Finally, at the end of this section we show how rights assertions that lack active verbs can be translated into active-verb form. We will then have covered all forms of rights assertions, and will have shown that all rights assertions can be understood in terms of the Hohfeldian incidents. We begin with those rights assertions of the form “A has a right to phi” that indicate the privilege, the first of the four Hohfeldian incidents. A sheriff in hot pursuit of a suspect has the legal right to break down the door that the suspect has locked behind him. The sheriff's having a legal right to break down the door implies that he has no legal duty not to break down the door. For rights like the sheriff’s: “A has a Y right to phi” implies “A has no Y duty not to phi.” (where “Y” is “legal,”“moral,” or “customary,” and “phi” is an active verb)4 The type of right here is what Hohfeld called a “privilege,” which is also called a “liberty” or a “license.”5 The sheriff's right is a single privilege. A right that is a single privilege confers an exemption from a general duty. While ordinary citizens have a duty not to break down doors, police officers have a privilege-right [no duty not] to break down doors. When President Nixon asserted that he had a legal right not to turn over the Watergate tapes, he was asserting “executive privilege.” Ordinary citizens have a legal duty to turn over evidence when subpoenaed. Yet Nixon alleged that because he was President he had a legal right [no duty not] not to turn over his evidence. James Bond's license to kill is also an exemption from a general duty. Bond's (alleged) right exempts him from a duty not to do what civilians emphatically have a duty not to do, viz., to kill. Similarly, your driver's license gives you the right to drive. This right exempts you from a duty not to do what you would otherwise have a strong duty not to do—to operate dangerous machinery at high speeds. We can represent a right that is a single privilege, such as your right to drive, in graphic terms as seen in Figure 1. . The Right to Drive as a Single Privilege In Figure 1 your right to drive a car is displayed as a single privilege. This single privilege is classified according to its function (a single privilege is a right of exemption), and according to the form of its assertion (a single privilege is asserted by expressions of the form “A has a right to phi”). Some assertions of the form “A has a right to phi” indicate not a single privilege, but a paired privilege. A paired privilege is composed of two privileges. The holder of a paired privilege has a privilege [no duty not] to phi, and also has a privilege [no duty not] not to phi. That is, for a right that is a paired privilege: “A has a Y right to phi” implies both “A has no Y duty not to phi” and “A has no Y duty to phi.” (where “Y” is “legal,”“moral,” or “customary,” and “phi” is an active verb) A person vested with a paired privilege is entitled to perform some action, or not to perform that action, as he pleases. For instance, a chess player has the right to capture his opponent's pawn en passant. This right is a paired privilege: the player has a right [no duty not] to take en passant, and a right [no duty not] not to take en passant. The player may take his opponent's pawn, or not, as he thinks best. The function of a right that is a paired privilege is to endow its bearer with discretion, or choice, concerning some action. The chess player's right gives the player discretion over whether to take his opponent's pawn, or to leave that pawn on the board. Paired privileges can be enormously important. For instance, each person has extensive (if not unlimited) paired privilege-rights to move her body, and to use her property. In a liberal society each citizen also has extensive (if not unlimited) paired privilege-rights regarding her speech, association, and religious practice. These paired privilege-rights all entitle the rightholder to choose how to act within some domain: that is, they all specify what the rightholder has no duty (not) to do. It may be noticed that while a paired privilege is composed of two privileges, the function of a right that is a paired privilege is not related to the function of a right that is a single privilege. The function of a single privilege-right is to confer an exemption from a general duty. Yet neither of the privileges that make up a paired privilege need confer an exemption from a general duty. Rather, the function of the two privileges in a paired privilege-right is together to endow the rightholder with discretion concerning some action. The function of the single privilege-right (exemption) and the function of the paired privilege-right (discretion) are entirely independent.6 We can represent the chess player's right in the same space as we represented your right to drive, so long as we indicate that the rights which occupy this space may have either of two distinct functions (Fig. 2). . A Chess Player's Right as a Paired Privilege In Figure 2, “Privileges (not) to capture a pawn en passant,” indicates the paired privilege to capture and not to capture a pawn. This paired privilege-right is classified according to its function (a paired privilege-right is, unlike a single privilege-right, a right of discretion), and according to the form of its assertion (a paired privilege-right is, like a single privilege-right, asserted by expressions of the form “A has a right to phi”). We assert not only that “A has a right to phi,” but that “A has a right that B phi.” This second fundamental form of rights-assertion often implies not a lack of a duty in the rightholder A, but the presence of a duty in a second party B. In such cases: “A has a Y right that B phi” implies “B has a Y duty to A to phi.” (where “Y” is “legal,”“moral,” or “customary,” and “phi” is an active verb) Ignoring the domain restriction “Y,” let us examine the simple assertion “A has a right that B phi” when this implies “B has a duty to A to phi.” The Hohfeldian incident here indicated is the claim. For every claim in A there is some B who has a duty to A. Your right that I not strike you correlates to my duty not to strike you. Your right that I help you correlates to my duty to help you. Your right that I do what I promised correlates to my duty to do what I promised.7 As these examples suggest, rights that are claims can have three different functions. A claim-right can entitle its bearer to protection against harm or paternalism, or to provision in case of need, or to specific performance of some agreed-upon, compensatory, or legally or conventionally specified action. Claims, like privileges, can be of signal importance. Your right against assault, and a child's right to a decent education, and an employee's right to his pay are all examples of rights that are claims. Some rights are privileges, and some rights are claims. Many familiar rights are combinations of both of these Hohfeldian incidents. For example, in the United States arrestees have the right to remain silent. This is a “molecular” right made up of a privilege and a claim. The arrestee's privilege is a single privilege [no duty not] not to speak, which exempts the arrestee from the general duty to obey police instructions. The arrestee's claim correlates to the police officers’ duties not force him to speak, which protects the arrestee from the police (Fig. 3). . The Right to Remain Silent as a Privilege and a Claim Figure 3 displays an arrestee's molecular right to remain silent. On the left is the single privilege: a right of exemption of the form “A has a right to phi.” On the right is the claim: a right of protection of the form “A has a right that B phi.” The privilege and the claim together make up the arrestee's right to remain silent. “A has a right to phi” often implies a privilege, and “A has a right that B phi” often implies a claim. These implications hold often—not always—because each of these forms of rights-assertion can also indicate a different, “higher-order” Hohfeldian incident. We have not only privileges and claims, but rights to alter our privileges and claims, and rights that our privileges and claims not be altered.8 The higher-order incident indicated by “A has a right to phi” is the power. To have a power is to have the ability within a set of rules to alter the normative situation of oneself or another. Specifically, to have a power is to have the ability within a set of rules to create, waive, or annul some lower-order incident(s). I have a right to promise to give you my fortune. Before I exercise this right I have no duty to give you my fortune, and you have no claim that I do. In exercising my power by making the promise, I create in you a claim to my fortune and thereby create in myself the duty to give it to you. Similarly, a judge has the legal right (power) to sentence a criminal to prison, meaning that a judge has the ability to annul the criminal's privileges of free movement. Or again: in a restaurant you have the customary right (power) to waive your claim to be served a sample of the wine before the bottle is poured, thereby annulling the waiter's customary duty to serve you this sample. The power, like the privilege, is indicated by propositions of the form “A has a right to phi.” All rights that are powers confer authority. Rights that are single powers confer nondiscretionary authority. For example, a judge's right to sentence a convicted criminal under mandatory sentencing laws is a single power. The judge's right authorizes her to annul the criminal's right to free movement. Yet this is a single power because the judge has no discretion under the sentencing laws: she must use her authority to sentence the criminal to a specified term of years. A right that is a paired power confers discretionary authority. For example, you have the power to waive, and the power not to waive, the waiter's duty to serve you a sample of wine. Rights that are paired powers, like rights that are paired privileges, endow their bearers with discretion concerning some action. Rights that are paired powers are thus both authorizing and discretionary.9 The rights that are indicated by the form “A has a right to phi” have, in sum, three possible functions: single privileges mark an exemption from a general duty; both paired privileges and paired powers mark discretion within a certain domain; and both single powers and paired powers mark authority to alter the normative situation in some way. Powers can range over the rights of others. Clearly such powers must not be unlimited. The fourth and final Hohfeldian incident is the immunity. One person has an immunity whenever another person lacks the ability within a set of rules to change her normative situation in a particular respect. The immunity, like the claim, is signaled by the form “A has a right that B phi” (or, more commonly, “. . . that B not phi”). Rights that are immunities, like many rights that are claims, entitle their holders to protection against harm or paternalism. A professor has the right to teach and research at her university. A tenured professor has the right that her university not annul her rights to teach and research. The right of tenure is an immunity. The tenured professor's right corresponds to the university's lack of a right (power) to fire her. Similarly, an American's right that Congress not restrict her privilege of free speech protects her against the general power of Congress to impose duties upon her. A witness granted a right against prosecution gains an immunity against being indicted for certain crimes. A defendant who desires to be punished may invoke a right against being required to present evidence that might lead to his acquittal. All of these rights are immunities, and all protect the rightholder from harm or paternalism.10 Figure 4 displays all four Hohfeldian incidents working together within a complex right that you have over your body. This complex right comprises both first-order incidents (a paired privilege and a claim) and second-order incidents (a paired power and an immunity). On the first order, the paired privilege endows you with the discretion to move your body, or not to move your body, as you see fit. The claim on the first order affords you protection; it correlates to a duty in each other person not to touch your body. On the second order are your rights regarding the alteration of these first-order rights. Here we see the paired power that gives you the discretionary authority to waive your claim against others touching your body: your right, that is, to authorize others to touch your body. Also on the second order is your protective immunity against other people waiving your claim not to be touched: your right, that is, against anyone else authorizing others to touch your body. . A Complex Molecular Right As Figure 4 shows, the four incidents are positioned in the diagram according to their attributes. Rights over objects such as one's body are first-order privileges and claims. Rights over rights are second-order powers and immunities. As for the two columns, A's “active” rights on the left are privileges and powers, while A's “passive” rights on the right are claims and immunities. Privileges and powers are exercised, while claims and immunities are not exercised; they are merely enjoyed.11 Moreover, there is an overlap in function between privileges (exemption, discretion) and powers (discretion, authorization) on the left; and an overlap in function between claims (protection, provision, performance) and immunities (protection) on the right. Most rights are complex molecular rights like the one in Figure 4: rights made up of multiple Hohfeldian incidents.12 Molecular rights indicated by the form “A has a right to phi” (where phi is an active verb) will always contain an incident from the left side of the diagram—a privilege or power—although they may contain incidents from the right side as well. Thus the right to move freely is a molecular right that contains privileges (not) to travel about the country; and the right to lead a meeting is a molecular right that contains the power to close a debate.13 Molecular rights indicated by the form “A has the right that B phi” will always contain an incident from the right side of the diagram—a claim or immunity—although they may contain incidents from the left side as well. Thus the right that others respect one's privacy is a molecular right containing a claim against unwanted surveillance; and the right that the government not take one's property without due process is a molecular right containing an immunity against sudden expropriation.14 We have shown how the two fundamental forms of rights assertions can be understood in terms of the Hohfeldian incidents. In both of these fundamental forms of rights-assertion “phi” is an active verb. Assertions of rights in which “phi” is not an active verb but a noun (“Workers have the right to a decent wage”) or in which “phi” is a passive verb (“Children have a right to be educated at state expense”) are easily transposed into active verb forms. Workers have a right that their employers pay them a decent wage, and children have a right that the state pay for their education.15 Explications of assertions of rights containing nouns and passive verbs merge in this way into the explication of the two fundamental forms of rights-assertion. Finally, assertions of broad or indeterminate rights—such as the “right to free expression”—can be specified in several different ways into complexes of Hohfeldian incidents. The different specifications will correspond to different understandings of the right at stake. Indeed one of the virtues of the Hohfeldian framework is its capacity to display in exact terms various interpretations of what people might mean when they assert a broad or indeterminate right like the right to free expression. For example, should a controversial author assert that his right to free has by a to his a Hohfeldian explication will show that the author is not asserting the privilege-rights to by protective claims and immunities. is asserting a claim-right that others the of his expression. This Hohfeldian explication will be in the of the assertion that his right to free has The framework for explicating rights assertions into assertions about Hohfeldian incidents is Any assertion of a right can be translated into an assertion about a single Hohfeldian or into an assertion about a complex of or into a set of assertions about such incidents. All rights are Hohfeldian incidents. The of this thesis is In sample rights, we have Each right can be with one or more of the Hohfeldian and Each right has one or more of the specific functions (exemption, discretion, provision, The is to All rights are like All rights can be into Hohfeldian in this will as we more and more rights with the Hohfeldian and as we to find The may to or that in this is and may to the framework with more sample rights. The a of rights from a which may be for the of that the ordinary of rights is or Yet there is with ordinary The in ordinary is merely like many other such as Assertions of rights can to various Hohfeldian incidents. these incidents have different logical may into they do not the implications of their assertions. For example, it is not for a to assert a right that can only be a privilege, and then on to from this assertion that him a duty. Yet this of is not the of a in ordinary It is a in the understanding of the various meanings of the Ordinary can be entirely and that how assertions of rights the Hohfeldian incidents. The Hohfeldian framework shows that the of rights is not a simple it is the of composed of the of the and the concept of and range over and the concept of and range over lower-order incidents. and are exercised, and overlap in their functions. and are and their functions also All of the rights that we know are from these elements, in ways by the of the All rights are Hohfeldian incidents. all Hohfeldian incidents That is, would any of the four Hohfeldian or any of as A's right it to We might the theory that this the theory of rights. of the theories of the functions of will theory and the interest this theory. to the will theory and the interest theory, some Hohfeldian incidents do not as rights because they do not perform the function that all rights The will theory that only those combinations of incidents that give their holders certain kinds of are as rights. The interest theory the term to those incidents that further their well-being. The will and interest theories are each theories of rights. to these theories all rights have some single the two theories as to what that function theories would the explication of rights assertions in the first of this in which rights have distinct The long and between these two theories through interest and (a will into the In the twentieth century the between of the two theories ended in I as is often the case with this situation is by each side a of a Here I will the to each theory in order to show how each is too as an of the functions of rights, and to indicate how the of each theory is the of the A I is what might be called the several functions theory of rights. The several functions theory what is in the will and interest because it not that all rights have some single function it the of The of a theory of the functions of rights is how it our ordinary understanding of what rights there are and what significance rights have for rightholders. The several functions theory is, I will to both the will theory and the interest theory on these The will theory of rights that the single function of a right is to give the rightholder discretion over the duty of another. A has a right, for instance, because he has the power to waive or not to waive the duties that others have not to his A has a right because she has the power to performance of the or to waive as she As the thesis of the will theory, who has the right is a to the duty is The of the will theory is that it for rights the of over of action. Many rights do endow rightholders with this of discretion, and so serve the freedom of those who hold them. The between rights and so in is for will theorists a of the will on a certain of freedom what he as a right. The will theorist as a right only those Hohfeldian incidents that confer on their bearers the discretion to alter the duties of others. Thus the will theorist as rights only those molecular structures that a paired power (not) to create, waive or annul a claim that one person has against This of the function of rights also a restriction on the of rightholders. The will theorist as rightholders only those that have certain the to exercise powers to alter the duties of others. These the will theory narrow. This is in the range of rights that the theory Many rights, such as the complex right in Figure do a paired power to alter a claim. many do For example, you have no legal power to waive or annul your claim against being or your claim against being to The will theory not that you have a legal right against being or against being to Yet would these claims as rights, as the more rights that Will theorists have to this of in two The first is to restrict the of the theory to a this that the will theory is at the of the with the working of the and is not adequate to rights at the of The second is to to the incidents in as rights by who have discretion with to such as a government who has discretion over whether to a Yet this for always the would with an ordinary understanding of rights. For here the will theory is to that you have no right against being Rather, the right that you not be would be the right, the is the person with the The of the will theory are also in its to for the rights of and of The will theory can rights only in those to exercise powers, which and children are and children cannot on this have This is a at with ordinary would that it is for example, for children to have a right against The will theory in many rights that there Yet where the will theory the interest theory The interest theory holds that the single function of rights is to further their rights are those incidents whose is to the well-being of the As