Deliberative constitution-making in Luxembourg

Scientific Conference (2021, February 26)

Luxembourg is a small constitutional monarchy and parliamentary democracy. Since its 1868 ratification, the Constitution of Luxembourg has been amended 35 times, so the document resembles more and more a ... [more ▼]

Luxembourg is a small constitutional monarchy and parliamentary democracy. Since its 1868 ratification, the Constitution of Luxembourg has been amended 35 times, so the document resembles more and more a patchwork quilt of basic institutions. Yet the past twenty years have seen a consensus amongst Luxembourg’s constitutional players on the need for modernization, motivated by the desire for a more coherent constitution. Article 114 vests the Chamber of Deputies with the power to initiate and to approve constitutional amendments in a two-step process. This has several consequences for deliberation. First, it is largely restricted to political elites because formal amendment powers rest solely with the Chamber. Second, there is little to no empowered maxi-public deliberation unless the Government supports a citizen consultation. Following the 2013 parliamentary elections, the new Government planned a two-part referendum on constitutional reform in summer 2015 and in winter 2015. The first referendum was intended to seek popular input on four proposals which voters rejected by large margins, and the second referendum was later scrapped. Nevertheless, this reform process has seen some participatory and deliberative experiments. For the purposes of the present COST Action, three events are of interest. First, charged by the Chamber of Deputies, the UL’s Parliamentary Studies Research Chair at organized in May 2014 CIVILEX, a citizens’ forum modelled along the lines of a 21st century Town Meeting to discuss each of the four referendum questions. Researchers found that group discussion sometimes produced significant shifts in opinion between the pre- and post-deliberation questionnaires. Furthermore, once experts had cleared up certain misunderstandings, citizens ably discussed the referendum proposals. Despite these largely positive experiences, this deliberative experiment remained an isolated experiment and was not renewed during the campaign leading up to the June 2015 referendum. Second, given the first referendum results, the Chamber made a renewed effort in 2015 to involve citizens in the constitutional reform process, so it collected proposals via a new web portal - www.ärvirschléi.lu (Your Recommendation) – and subsequently held a public hearing with those who had initiated proposals. The process yielded some participatory and deliberative outcomes, including the elaboration of several constitutional amendments. For instance, Chamber members reached consensus on strengthening the rights of children and of animals compared to their original text. Nevertheless, the webportal was not developed as an online deliberative forum and saw limited, self-selected participation. Consequently, though this was the only concrete involvement of citizens in the constitutional reform, it was the least deliberative of the three exercises. Third, since the Government had still planned to call a second referendum to vote on the constitutional reform as a whole, the Chamber again tasked the Chair with gauging public opinion. So, in July 2016, the Chaire organized CONSTITULUX, a new citizens’ forum to discuss the entire draft constitution. Citizens i.) raised pertinent questions, ii.) identified short- and long-term concerns and iii.) suggested improvements to the draft articles. One striking output was that participants were more supportive of the proposed constitutional reform. Like CIVILEX, it generated little concrete action from the Government. Moreover, the incidental and experimental nature of these events again meant that there was little maxi-public engagement. Following the draft constitution’s abandonment in November 2019, it remains to be seen what the future holds for deliberative democracy and constitution-making in Luxembourg. [less ▲]

Le concept de concept dans la philosophie de Deleuze : Polymorphisme(s) et pluralisme(s)

Book published by L'Harmattan (2021)

Qu’est-ce que la philosophie ? Pour Deleuze, il s’agit de la création de concepts qui répondent chacun à un problème précis. Selon la théorie du concept deleuzienne, les concepts philosophiques partagent ... [more ▼]

Qu’est-ce que la philosophie ? Pour Deleuze, il s’agit de la création de concepts qui répondent chacun à un problème précis. Selon la théorie du concept deleuzienne, les concepts philosophiques partagent en plus une certaine forme : une multiplicité de composantes, un volume absolu, des variations intensives, un ordre de voisinage. Or, cette interprétation de l’activité philosophique est à son tour un concept : « le concept de concept. » Comme tout autre, ce concept répond à un problème – « quel est le propre de la philosophie ? » – et il recèle une multiplicité, un volume, des variations, un voisinage. Même si le concept de concept saisit l’essentiel de l’activité philosophique, on pourra alors croire qu’il est d’une portée limitée et voué à être dépassé comme n’importe quel autre concept. Sinon, il encourt le risque d’auto-réfutation : vrai sur le fond mais faux dans la forme. L’étude présente demande sous quelles conditions la théorie du concept deleuzienne peut échapper à ce sort et propose une lecture transcendantale selon laquelle le concept de concept est la condition de l’expérience et du discours philosophiques. [less ▲]

Deliberative constitutionalism, popular sovereignty and alternative forms of government

Scientific Conference (2020, September 09)

Although deliberative democratic theory has traditionally positioned itself as a complement or corrective to representative bodies making ordinary law, it has recently expanded to the field of ... [more ▼]

Although deliberative democratic theory has traditionally positioned itself as a complement or corrective to representative bodies making ordinary law, it has recently expanded to the field of constitution-making and bodies formulating higher law. Yet this ‘deliberative constitutionalism’ has yet to confront two difficulties. First, ‘constitution- making’ is ambiguous between the process of drafting a constitution (‘making’), and the drafted system of institutions for collective action (‘constitution’). Thus far, scholarly attention has been squarely on the former, meaning that there is at best only a sketchy picture of a properly deliberative constitutional regime as an alternative to existing representative democratic constitutional regimes (see Parkinson 2016). Second, and as a direct consequence thereof, deliberative constitutionalists have not explored which alternative forms of government might be warranted by different deliberative constitutional regimes. In this paper, I tackle both these difficulties by modelling four different deliberative constitutional regimes – ‘deliberative containment’, ‘deliberative co-articulation’, ‘deliberative potential’, ‘deliberative ‘irritant’ (inspired by Loughlin and Walker 2007) – and by illustrating their characteristic institutional mechanisms, including such alternative institutions as one-shot or continuous sortition bodies, deliberative polls and maxi-public combined with varieties of plural voting, amongst others. In this way, I propose a clearer systemic vision of not just what alternative forms of government may be found under different deliberative constitutional regimes but which such regimes, with their expressed basic values, are liable to justify those alternative institutions. [less ▲]

Epistemic feasibility and interdependence in normative theorizing

Scientific Conference (2020, August 25)

If most agree that normative theorizing is constrained by an ‘ought implies can’ proviso and that feasibility consists in ‘overall human agential possibility’ (Valentini 2017: 24), widespread disagreement ... [more ▼]

If most agree that normative theorizing is constrained by an ‘ought implies can’ proviso and that feasibility consists in ‘overall human agential possibility’ (Valentini 2017: 24), widespread disagreement persists regarding different kinds of feasibility. One distinguishes between ‘hard’ and ‘soft’ limits on feasibility (Gilabert and Lawford-Smith 2012) but also between ‘binary’ and ‘scalar’ conceptions (Lawford-Smith 2013). Although philosophers have used such tools to explore logical, metaphysical, cultural and psychological species of feasibility, they have neglected epistemic feasibility. I attempt to close that gap by asking whether epistemic feasibility i.) sets stringent conditions on normative theorizing and ii.) takes priority over other feasibility conditions. In answer, I first elaborate an objection to normative theories presupposing expansive epistemic limits. I then show why that objection fails to heed the interdependent character of epistemic feasibility. The objection holds that there exists a disanalogy between epistemic feasibility and other species. Unlike institutional, cultural or motivational resources, human epistemic resources are fallible and fixed, leaving it unclear how and how far limits on cognitive and rational capacities are removable (Dipaolo 2019). The objection concludes that facts about cognitive and rational capacities must be taken for granted in normative theorizing. Evolutionary processes and AI advances are unpredictable in terms of correcting fully for cognitive and rational fallibility. Genetic engineering or neural reprogramming seem ethically fraught, unreasonable means for correction. Either way, human access to improved informational outputs would still be mediated by fallible epistemic processes. Wherefore two refined provisos for normative theorizing. First, if ‘ought implies epistemic can’, theories presupposing expansive epistemic limits cannot guide individual or collection action. This discounts such approaches as theories of justice supposing impossible perspectives or perfect information, theories of governance entailing centrally planned economies or global states with perfect information, etc. Second, if ‘epistemic ought implies can’, philosophers must avoid elaborating and justifying normative theories presupposing expansive epistemic limits. Nevertheless, the objection fails by focusing exclusively on individual epistemic feasibility and ignoring epistemic interdependence qua distributed epistemic feasibility. Philosophers understand epistemic limits expansively because the world (as accessible to humans) resists representation in a single picture of the world. Those limits necessitate abstraction from certain real-world conditions to find a model suitable for a specific problem. Comparing different models – each suited for a specific problem – may generate a more adequate overall picture. If epistemic limits condition working with multiple pictures (i.e. epistemically perfect agents could not) and multiple pictures are necessary to navigate the environment, epistemic feasibility is distributed across interdependent epistemic agents. Philosophers count on others to assume away different epistemic limits which complement her normative theorizing’s assumptions. Analyzed as a set, their assumptions cancel one another out, and epistemic feasibility obtains collectively. Thus, epistemic limits are assumed away because epistemic feasibility itself requires expansive limits. Although there may be a disanalogy between epistemic feasibility and other species, the objection is mistaken about its nature. Epistemic feasibility just is a matter of epistemic interdependence. [less ▲]

The real problem with Rawlsian reasonableness

Scientific Conference (2019, September 17)

In The Law of Peoples, Rawls states that, if “political liberalism offers no way of proving that this specification [of reasonableness] is itself reasonable”, this is no great loss, for “it is simply ... [more ▼]

In The Law of Peoples, Rawls states that, if “political liberalism offers no way of proving that this specification [of reasonableness] is itself reasonable”, this is no great loss, for “it is simply politically reasonable to offer fair terms of cooperation to other free and equal citizens, and it is simply politically unreasonable to refuse to do so” (Rawls 1999: 87-8). While Rawls is undoubtedly right that public reason liberalism analytically requires some standard of reasonableness, it is less obvious this standard must take Rawls’s preferred form. Yet criticisms of Rawlsian “reasonableness” as “loaded” (Stout 2004: 184), “chimerical” (Young 2005: 308) or “entirely circular” (Mulhall and Swift 2003: 483) often equivocate on the meaning of reasonableness and so fall afoul of the “equivocation defense” (Freeman 2004: 2063-5). In this paper, I improve on those earlier criticisms by means of a narrow, immanent criticism whereon the two basic aspects of reasonableness – (A1) proposing and abiding by fair terms of cooperation and (A2) recognizing the “burdens of judgment” (Rawls 1996: 54-8) – may plausibly conflict: in some instances, accepting (A2) may give persons reason to disagree over the need to accept (A1). To show this, I first restate two aspects of reasonableness as a biconditional: a person is reasonable iff (A1) and (A2) obtain. I then examine whether Rawls’s burdens give reason to doubt the requirement in (A1). Insofar as the third, fourth and fifth burdens give reason to doubt just this requirement, I conclude that Rawlsian reasonableness should be reformulated. This reformulation preserves what Rawls gets right about reasonableness – namely, the burdens – but replaces the old standard with “reasonableness pluralism”, from which it follows that public reason cannot represent all the necessary conditions of political justification under circumstances of reasonable pluralism. [less ▲]

The real problem with Rawisian reasonableness

Scientific Conference (2019, June 26)

Reactions to Rawlsian “reasonableness” range from its being “loaded” (Stout 2004: 184) or “chimerical” (Young 2005: 308) to “entirely circular” (Mulhall and Swift 2003: 483). Yet more critical reactions ... [more ▼]

Reactions to Rawlsian “reasonableness” range from its being “loaded” (Stout 2004: 184) or “chimerical” (Young 2005: 308) to “entirely circular” (Mulhall and Swift 2003: 483). Yet more critical reactions often employ external standards or equivocal senses of reasonableness to their detriment (Freeman 2004: 2045, 2063-5). In this paper, I put forward a narrow, immanent criticism whereon the two basic aspects of reasonableness are shown to be in tension: the “burdens of judgment” may give the person reason to disagree over the need to propose and to abide by a common basis of fair terms of cooperation. I proceed in two steps. First, I shall recall the two aspects of reasonableness and hold that their conjunction is necessary for a person to qualify as “reasonable”. In particular, this involves showing a biconditional: a person is reasonable if and only if the two basic aspects of reasonableness obtain. Secondly, I shall examine whether any burden gives reason to doubt the need to propose and to abide by a common basis of fair terms of cooperation. I find that each of the burdens, in its own way, leaves room to doubt whether reasonable persons in a well-ordered society would assent to such a need. For the first burden (complexity of evidence), the evidence backing the requirement of shared terms of cooperation defined ex ante is not obviously less complex than that contained in reasonable comprehensive doctrines. Regarding the second (relative weight of reasons), even supposing agreement on which reasons are relevant to deciding questions of justice, there may be still be disagreement over the relative priority of those reasons in deciding a given question. As to the third (conceptual indeterminacy and hard cases), such concepts as justice and fairness, cooperation and equality are all subject to the difficulties of identifying hard cases and probing a concept’s limits. Of the fourth (divergent total life experience), it is clear that, through her life experience, a person acquires a set of beliefs (political, moral, epistemological, religious, etc.) which could give the person reason to doubt or otherwise reject the first basic aspect of reasonableness, especially given its significant complexity. Finally, for the fifth burden (conflicting distinct normative considerations), persons may disagree over whether the first basic aspect in fact realizes these different considerations, the priority ordering to be fixed for such considerations and whether a common currency might be found so as to make such considerations commensurable, any of which may suffice for persons to be unable to reach agreement on the requirement, not simply on the reasons why it holds, but also on whether it holds at all. Thus, I parallel Clarke’s (1999: 639-41) claim that the burdens of judgment apply both to contractarianism’s “reasonable rejection procedure” and principles but do so from narrower, immanent grounds. This analysis yields two striking conclusions. First, public reason becomes looser and shifts to the domain of politics where one sees what public reasons others may in fact accept (Laden 2001). Seen from a different angle, one need not accept the idea that the first basic aspect and, hence, Rawlsian reasonableness are necessary conditions of political justification under conditions of reasonable pluralism (contra Krasnoff 2014: 696-7): rejecting this aspect and reasonableness in no way means that there can be no political justification under conditions of (reasonable) pluralism. Second, when conceiving justification and discourse, Rawls may be committed, despite himself, to accepting “reasonableness pluralism”, i.e. the view that there exist distinct, possibly irreconcilable accounts of reasonableness to which one may appeal when conceiving justification and discourse. Their combination may lead to a public reason liberalism framework which is at once looser and more actionable. [less ▲]

The real problem with Rawlsian reasonableness

Scientific Conference (2019, February 16)

Rawlsian “reasonableness” has been the object of considerable and varied criticism. Reactions range from its being “loaded” (Stout 2004: 184) or “chimerical” (Young 2005: 308) to “entirely circular” ... [more ▼]

Rawlsian “reasonableness” has been the object of considerable and varied criticism. Reactions range from its being “loaded” (Stout 2004: 184) or “chimerical” (Young 2005: 308) to “entirely circular” (Mulhall and Swift 2003: 483). Yet more critical reactions often employ external standards or equivocal senses of reasonableness to their detriment (Freeman 2004: 2045, 2063-5) or marshal apparently conflicting materials from Rawls’s broader theory (Young 2005, 2006). In this paper, I put forward a narrow, immanent criticism whereon the two basic aspects of reasonableness are shown to be in tension: the “burdens of judgment” may give the person reason to disagree over the need to propose and to abide by a common basis of fair terms of cooperation. My aims in doing so are threefold. First, I try to make sense of and set on firmer ground Stout’s (2004) critique of reasonableness as being epistemologically untenable. My second and third aims stem from the first. The second consists in carving out a middling conceptual space wherein the negation of Rawlsian “reasonableness” is not merely “unreasonable” in the sense of being willing to impose one’s comprehensive doctrine on others as the terms of political justification and coercion (Rawls 1996: 60-1; Freeman 2004: 2049) nor “unreasonable” in the sense of persons’ culpably endorsing a doctrine inconsistent with acceptance of the burdens of judgment (Rawls 2001: 184, 190; Freeman 2004: 2064) but, instead, “reasonably unreasonable” in the sense of the person’s nonculpably or justifiably rejecting the requirement to offer and to abide by fair terms of cooperation in view of the burdens of judgment. Third, I attempt to salvage a minimal core of reasonableness from the two-conjunct Rawlsian reasonableness, a core which contemporary political philosophers are hard-pressed to do without: the second conjunct consisting in the person’s acknowledgement of the burdens of judgment (Rawls 1996: 54-8). To that end, I proceed in two steps. First, I shall recall the two aspects of reasonableness and hold that their conjunction is necessary for a person to qualify as “reasonable”. In particular, this involves showing that a biconditional obtains: a person is reasonable if and only if the two basic aspects of reasonableness obtain, i.e. if and only if she is willing to propose fair terms of cooperation and she is willing to recognize the burdens of judgment. I also briefly define the site wherefrom one checks a person’s reasonableness: the “you and me” standpoint (Rawls 1996: 28). Secondly, I shall examine whether any burden gives reason to doubt the need to propose and to abide by a common basis of fair terms of cooperation. I find that each of the burdens, in its own way, leaves room to doubt whether reasonable persons in a well-ordered society would assent to such a need. For the first burden (complexity of evidence), the evidence backing the requirement of shared terms of cooperation defined ex ante is not obviously less complex than that contained in reasonable comprehensive doctrines. Regarding the second (relative weight of reasons), even supposing agreement on which reasons are relevant to deciding questions of justice, there may be still be disagreement over the relative priority of those reasons in deciding a given question. As to the third (conceptual indeterminacy and hard cases), such concepts as justice and fairness, cooperation and equality are all subject to the difficulties of identifying hard cases and probing a concept’s limits. Of the fourth (divergent total life experience), it is clear that, through her life experience, a person acquires a set of beliefs (political, moral, epistemological, religious, etc.) which could give the person reason to doubt or otherwise reject the first basic aspect of reasonableness, especially given its significant complexity. Finally, for the fifth burden (conflicting distinct normative considerations), persons may disagree over whether the first basic aspect in fact realizes these different considerations, the priority ordering to be fixed for such considerations and whether a common currency might be found so as to make such considerations commensurable, any of which may suffice for persons to be unable to reach agreement on the requirement, not simply on the reasons why it holds, but also on whether it holds at all. In reaching these findings, I parallel Clarke’s (1999: 639-41) claim that the burdens of judgment apply both to contractarianism’s “reasonable rejection procedure” and principles but do so from narrower, immanent grounds rather than the stronger claim that Rawls’s approach must be committed to substantive epistemological positions. This analysis yields two striking conclusions: First, public reason – the demand to present others with reasons which the person could reasonably expect them to accept – becomes looser and shifts to the domain of politics where one sees what public reasons others may in fact accept (Laden 2001). Seen from a different angle, one need not accept the idea that the first basic aspect and, hence, Rawlsian reasonableness are necessary conditions of political justification under conditions of reasonable pluralism (contra Krasnoff 2014: 696-7): rejecting this aspect and reasonableness in no way means that there can be no political justification under conditions of (reasonable) pluralism. Second, when conceiving justification and discourse, Rawls may be committed, despite himself, to accepting “reasonableness pluralism”, i.e. the view that there exist distinct, possibly irreconcilable accounts of reasonableness to which one may appeal when conceiving justification and discourse. Their combination may lead to a public reason liberalism framework which is at once looser and more actionable. [less ▲]

Rigor or rhetoric: Public philosopher and public in dialogue

in Perspectives: International Postgraduate Journal of Philosophy (2019), 9(1), 1-10

Brian Leiter (2016) throws down two gauntlets to philosophers engaged in dialogue with the broader public. If, with the first, public philosophers recognize that they cannot offer substantive answers but ... [more ▼]

Brian Leiter (2016) throws down two gauntlets to philosophers engaged in dialogue with the broader public. If, with the first, public philosophers recognize that they cannot offer substantive answers but only sophisticated method, they nevertheless fail to realize that said method does not resonate with the very public whom they purport to help. For, with the second, that method does not engage the emotivist and tribalist cast of contemporary public discourse: emotivist because a person’s moral and political beliefs are a function of emotional attitudes or affective responses for which she adduces reasons post hoc; tribalist because the person tracks not the inferential relation between beliefs but her similarity with interlocutors. In order to understand the full extent of this critique, it is necessary, first, to parse strands of public philosophy, distinct discursive sites, and pictures of philosophical practice and, then, to probe the critique’s empirical groundedness and intended scope. These elements in place, it is then possible to sketch public philosophy reconceived along Leiter’s lines as equal part rigor and rhetoric. That sketch may be somewhat filled out through two tactics employed in Jeffrey Stout’s (2004, 2010) work. These form part of a toolkit for philosophical dialogue whereby philosophers get a discursive grip on non-discursive factors underlying public discourse and push back on Leiter's dilemma. [less ▲]

Identity and Rawlsian points of view

Scientific Conference (2018, September 11)

Does political liberalism’s outwardly universal appeal in fact trade on a liberal theory of standpoints and identities parallel to that found in feminist and Marxist epistemology? Answering this question ... [more ▼]

Does political liberalism’s outwardly universal appeal in fact trade on a liberal theory of standpoints and identities parallel to that found in feminist and Marxist epistemology? Answering this question hinges on how seriously one takes Rawls’s talk of “points of view” (Rawls, 1996: 172; 1999: 28) or “standpoints” (Rawls, 1996: 58, 150; 1999: 175). Do these play a vital role in the exposition of justice as fairness and evince sufficient proximity to the structural features of a “standpoint”? For our purposes, we define these features as: being pinned to a social location or identity, defined as a type, limited in scope and possessing epistemic privilege over other defined standpoints. In this exploratory paper, we outline two cases for this approach, one strong, one weak, and conclude in favour of the weak. We begin by combing Rawls’s work for talk of points of view or standpoints and focus particularly on his discussion of the “you and me”, “representative party” and “citizen in a well-ordered society” standpoints. Moreover, we further break the last two down into “sub-standpoints”, defined along the lines of the four-stage sequence (Rawls, 1999: §31) and the three-part justification of the political conception (Rawls, 1996: 385-389). A case for Rawls as theorist of standpoints and identities is strong when all of the structural features cited above are to be found in Rawls’s points of view as well. On the contrary, should some, but not all, such structural features underlie Rawls’s points of view, then we have reason to speak only of a weak case. As we shall see, the majority of Rawls’s standpoints isolate themselves (“representative party”) or are at a theoretical remove (“you and me”, “citizen in a well-ordered society”) from the richly informative social locations or identities which furnish conventional standpoints their epistemic privilege within a field. That being said, some sub-standpoints are not so isolated or removed (e.g. that associated with full justification of the political conception). In fairness to Rawls, the aforementioned points of view are nevertheless keyed to artificial social locations, set up such that they accrue epistemic privilege over differently situated standpoints. Finally, these points of view manifest other structural features more in keeping with theories of standpoints and identities: type-definition, link with an aspect affording epistemic privilege, limited scope and privilege over other defined standpoints. The combination of the above speaks in favour of the weak case, yields a view on which Rawls puts forward a species of standpoint and identity and offers a fresh look at how we might make sense of Rawls’s reported “conviction that justification is always justification to a particular other” (Laden, 2003: 385). [less ▲]

Are we post-justification? Stout's case for self-knowledge, political justification and public philosophy

in Ethics, Politics and Society (2018), 1

Must the participant to public discourse have knowledge of her beliefs, attitudes and reasons as well as belief-formation processes to have justified political belief? In this paper, we test this question ... [more ▼]

Must the participant to public discourse have knowledge of her beliefs, attitudes and reasons as well as belief-formation processes to have justified political belief? In this paper, we test this question with reference to Jeffrey Stout’s (2004) approach to public discourse and public philosophy. After defining self- knowledge and justification along the lines of James Pryor (2004), we map thereon Stout’s view of public discourse and public philosophy as democratic piety, earnest storytelling and Brandomian expressive rationality. We then lay out Brian Leiter’s (2016) naturalistic critique of public philosophy as “discursive hygiene” to see whether Stoutian public philosophy survives the former’s emotivist-tribalist gauntlet. Lastly, we find that Leiter’s critique proves less radical than it may appear and requires the moderating influence of a public philosophy like Stout’s. All in all, Stoutian public discourse and public philosophy powerfully illustrates a strong, necessary connection between self-knowledge and political justification. Post-truth is not post-justification. [less ▲]