Dr Pablo Marshall (Universidad Austral de Chile) will give a seminar entitled Disenfranchisement as Internal Exclusion: Politics Beyond Human Rights and Democracy.
Venue: Neil MacCormick Room, David Hume Tower
The abstract of his presentation is as follows
This article investigates the political philosophical foundations of the electoral exclusion of convicted prisoners in modern liberal democracies. It considers the three main justifications of disenfranchisement as a principled exception to universal suffrage: (i) disenfranchisement is a democratic form of punishment, (ii) the franchise requires moral capacity or civic virtue, and (iii) it is meant to protect the integrity of the electoral process. I argue that all three justifications on their own fail to explain the practice of disenfranchisement and that they depend on assumptions that are unlikely to be reconciled with the principles of political equality and liberty that underlie universal suffrage: (i) disenfranchisement constitutes a contradictory form of democratic punishment because it destroys the link between the convicted person and the community; (ii) this practice treats convicted prisoners unfairly, demanding of them capacities and virtues that are not demanded of other enfranchised citizens; and (iii) disenfranchisement causes much more damage to electoral integrity than protection. I conclude that a justification of disenfranchisement in a framework that considers democracy and human rights as bases of legitimacy is an impossible task, and I recommend a departure from the justificatory paradigm to focus the analysis on the positive function(s) that disenfranchisement may perform in a political community. I explore the particular function of drawing internal boundaries using the critical idea of internal exclusion, the position of disempowerment of those that belong but are not included or represented. I argue that the electoral exclusion experimented by convicted prisoners may be better explained as a powerful symbolic complement of the physical, political and social exclusions that redundant subjects also are likely to experiment. Focusing on the political function rather than on the justification of disenfranchisement may serve two important critical tasks: (i) expose the democratic problem of internal exclusion and open the field to the organization of resistance and contestation strategies against the exclusionary politics underlying disenfranchisement; and (ii) expose the shortcomings of the constitutional framework of liberal democracy in terms of fully grasping the consequences of excluding somebody from citizenship, this is, the failure to understand a clear deployment of the exclusionary politics of a community that is looking to constitute and affirm its identity against the otherness of the convicted prisoner.
We are quite happy to announce our Autumn 2017 programme. To find our programme, please do click here.
We will be hosting our traditional seminar series. We will host joint seminars with the Law & Polity Project and the Legal Theory Research Group as well. Finally, the 1st Oxford/Edinburgh Colloquium in Constitutional Law will convene on the 29th September.
Elena Brodeala (European University Institute)
Constitutional and Legal Debates on Reproductive Autonomy in post-Socialist Eastern Europe – A Case Study on Romania
Venue: Ochil Room (Rm B1.11), Charles Steward House Click here for a Map
Issues related to human reproduction have always been the subject of strong controversies and the laws affecting this field seem to be under constant scrutiny. One of the widest changes in the regulation of reproductive rights took place with regard to abortion in Central and Eastern Europe after the fall of State Socialism. With the notable exception of Romania, abortion on request in Eastern Europe during State Socialism was generally legal. However, after the fall of the regime it was not only Communism as an ideology that was being rejected but also many of its laws and policies including the laws and policies promoting gender equality. This had a great impact on the way post-communist law-makers and courts approached matters like abortion. While in many Eastern European countries abortion was generally restricted, it was only in Romania that democracy brought a dramatic liberalization of reproductive rights and a general retreat of the State from the private lives of its citizens. This is due to the strict pro-natalist policies of the Romanian Communist leader Nicolae Ceausescu (1966-1989) during which around 10.000 women died because of illegal abortions, 2.000 were imprisoned and many others faced serious health problems for the same reason. This paper aims to explain more into depth what was the impact of the fall of State Socialism in Eastern Europe on the legal and constitutional debates on reproductive autonomy in the region with a special emphasis on Romania. Romania was selected as a case study because of its peculiar situation in the region and because it best illustrates how history and social background shape the legal and constitutional conversations on matters that are so contextually-bounded like reproductive rights. After explaining the general Eastern European situation and the way in which the Constitutional Courts from Poland, Germany and Slovakia have adjudicated different cases on abortion, the paper will focus on the special case of Romania. The paper will primarily focus on the peculiar history of abortion in Romania (i.e. Ceausescu’s “draconian anti-abortion legislation”, probably one of the most restrictive anti-abortion legislations in the history of Europe) and how it influenced the constitutional and political debates that took place after the fall of the regime in comparison to the other post-Socialist jurisdictions. Moreover, the paper will underline how Romania’s history of repressing reproductive autonomy hinders the pro-life voices and campaigns promoted in Eastern Europe mainly by U.S. organizations. The paper, however, will not be limited to abortion, but will also focus on assisted reproduction that started being practiced in Romania shortly after 1989. Assisted reproduction will be included in the discussion for two reasons. First, because the legacy of State Socialism in Romania led to a general lack of regulation and State intervention in this field as well, which, as it will be discussed in the paper, left space for serious abuses. Secondly, because when talking about reproductive autonomy, one has to bear in mind that this does not refer only to the idea of not having babies (i.e. abortion) but also to the right of having a baby when one cannot or does not want to do so “naturally”. In other words, within the purpose of this paper reproductive autonomy should be considered according to the definition provided by The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in Article 16 (1) (e) as encompassing “the […] rights to decide freely and responsibly on the number and spacing of […] children […]”.
Tomorrow 28th February at 3pm, professor Roger Masterman (University of Durham) will deliver the MacCormick Seminar. It is entitled “Constitutional Adjudication and the Common Law”.
Venue: Room 1.206, Meeting Room, 7 Bristo Square.
There is a paper for pre-read purposes. If you are planing to attend the seminar, please email us to email@example.com and ask for the paper.
Round Table discussion on R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union (The Brexit case)
14th February 3-5pm
Professor McHarg (University of Strathclyde)
Professor Mullen (University of Glasgow)
Dr Elisenda Casanas-Adam (University of Edinburgh)
Dr Cormac Mac Amhlaigh (University of Edinburgh)
Venue: 1.434 Teaching Room 7, Doorway 3, Medical School, Teviot Place. Please click here for a map
If you are interested in attending, please email us firstname.lastname@example.org
Dr Alex Latham (University of Sussex), “The Circumstances of Politics: Disagreement, Collective Action and the Sphere of the Political”
31st January 3-5pm. Venue: Rm 1.18, David Hume Tower
Jeremy Waldron has argued that much contemporary political philosophy fails to take adequate account of what he calls the ‘circumstances of politics’, namely: (i) the felt need for a decision on a common course of action, notwithstanding (ii) disagreement about what that course of action should be. While the idea is often cited, Waldron’s actual use of the circumstances of politics has been subject to little analytical attention. This article looks to remedy this deficit. I identify two categories of arguments that Waldron makes from the circumstances of politics: ‘toleration-arguments’ and ‘legitimacy-arguments’. These two types of argument invoke the circumstances of politics differently: the toleration-arguments stress the fact of disagreement, while the legitimacy-arguments emphasise the need for collective action. Armed with this basic typology, I argue that Waldron’s defence of legislation by assembly is an example of a successful combination of the two types of argument, whereas his ‘core case’ against judicial review over-emphasises the significance of disagreement to the exclusion of the felt need for joint action. In the final section I consider whether the analogy that Waldron claims between the circumstances of politics and Hume’s ‘circumstances of justice’ actually holds. I conclude that disagreement about justice can only feature as a basic presupposition of politics if one has a Lockean conception of justice as a ‘pre-political’ virtue, a position those ‘political realists’ who have praised Waldron’s work are unlikely to accept.
Dear all, a copy of this semester’s 2017 program (January – June) can be downloaded here.
The CLDG roundtable on Miller v Secretary of State for Leaving the EU due to take place on Tuesday 17th January has been postponed due to delays in issue of the UK Supreme Court decision.
The event will now take place on Tuesday 14th February 2017, and further details will appear nearer the time.
Professor Johanne Poirier (McGill University) will be speaking on “The Tension between Parliamentary Sovereignty and Cooperative Federalism in the case law of the Canadian Supreme Court”.
Venue: Room 2.14, 50 George Square. 3-5pm
From Political to Ethnic Community: The Hungarian Fundamental Law on the Ethnic Nation’s Will
Dr Balazs Majtenyi (Hungarian Academy of Sciences – Eötvös Loránd University)
Through the review of the illiberal constitution of Hungary the presentation examines the conflict between the universal values of human rights and the particularistic national identity of political communities. There are no international and European standards directly applicable to questions concerning the national identity of political communities like, for example, the concept of the nation or ideological references used in a constitution by defining political community. The national identity of political communities, at the same time, might cause legitimate concerns for liberal democracy. The presentation analyzes the process by which the neutral (in the dominant universal and cultural sense) Hungarian constitutional identity moved toward one of cultural particularism, ethnically-based political community. It examines how an antiegalitarian version of the ethnic concept of nation has been given primary role in the Hungarian constitution (Fundamental Law, 2011).
The move to the primacy of particularistic values in Hungarian public law is examined in the context of the legal system of the European Union, acknowledging that the liberal model of constitutional democracies (as supported by the EU) is based on human rights, the rule of law, equality before the law, and procedural values. The presentation tries to answer the question what (if anything) can limit the identity-building project vis a vis universal values in public law.