POLITICAL PHILOSOPHY

(Giulio Azzolini)

1. 15/09/2020: What is Poli cal Philosophy? Norma ve, Realist, Existen alist Approaches.
- Leo Strauss, “What is poli cal philosophy?” (1955):
Philosophy is a form of knowledge who must always prove its legi macy, so we cannot accept a
standard and shared de ni on of the subject. In order to answer ques ons about the status of
philosophy, we should consider the analysis of a certain object with a determinate method.
Philosophy di ers from other science as it uses argumenta ve dialogue and discourses as the
main source of knowledge, based on persuasive processes.
Norma ve ques ons, inevitable and unanswerable ques ons about human nature, is what
philosophy deals with. It is the study of the speci c characteris cs of human behaviour, which
cannot stop to the simple empirical evidence.
Philosophy also answers structural ques ons, which refer to reality and the reason behind the
existence and meaning of a subject.
Poli cal philosophy involves both aspects: structural (what is society?) and norma ve.
How human interac ons are in uenced by power is the ma er of poli cal philosophy.

What does power mean?

Bertrand Russell wrote that power was the fundamental, core concept in poli cal philosophy.
Without a no on of what power, it will be impossible to de ne poli cal thought.

- Robert Dahl, “The Concept of Power” (1957):

Power is the ability of the actor A to make B act in a way that B would never act otherwise.
Power is to determine and regulate the behaviour of other people. It is conceived as power
OVER others’ ac on to dominate. Power is visible, transparent and measurable, it is an a ribute
of individuals and it is a ma er of agency of behaviour. In order to recognise a situa on of
power there should be a clear ght of interests between two parts. Power is a zero-sum game
(because at the start the two agents have the same power and share it in di erent parts); it is
sum game only if we make the other act as we want. Powerful people are the ones in the
decision-making arena.
This was called one-dimensional view of power; this dimension is decision making.
One of the cri cisms addressed to Dahl, made by Peter Bachrach and Morton Baratz.

- Bachrach and Baratz, “Two faces of power” (1962):

They said power has a second phase, because it is not only expressed in direct decision, but
also when a person succeed in in uencing decisions in an indirect way.
Se ng the agenda that leads to decisions one is able to in uence the o cial context using
uno cial means. Power is also de ned in the non-decision-making process.
Visible decisions are not the only way of expression of power, the ability to in uence the culture
of a community and shi the agenda according to it is a clear example of the second face of
power and to be in a dominant posi on. The powerful does not necessarily act.

- Steven Lukes, “Power: a radical view” (1974):

He thought the poten al con ict of power was the most important one, not the visible nor the
invisible but exis ng. This poten al con ict may hypothe cally never actualize but remains
latent and represents the contradic on between two parts exercising power. This is a third
dimension of power.
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 - Antonio Gramsci’s no on of hegemony:
How is it possible for a liberal (fascist) state to have the consensus of the people and their
subjec on? What is the condi on at which people consented to the o cial power?
A real hegemony must have a materialis c basis, which consists on the coordina on of the
material interests of the dominant groups that dominate (obtain consent to its power) over the
subalternate groups, which have di erent material interests. Preference shaming is the ability
to shi the interests of the dominant group to subalterns and make them believe that they are
their same interests.
To recognise power, we require ideology cri cism and not only empirical example.

Rela ons of power are everywhere; in almost all types of social rela ons we can iden fy forms
of power. Does poli cal philosophy deal with every form of power? No.
The most tradi onal line follows only ins tu onal power, but there are heterodox thinkers
which deepen the analysis to other forms of power.

- NORMATIVE APPROACH: studies the problem of the best form of society and state and
consequently the problem of poli cal obliga on

- REALIST APPROACH: how to organize struggle to obtain and maintain power

- EXISTENTIALIST APPROACH: poli cs is a form of ac on which every single individual professes

- Arendt, “The Human Condi on” (1958)

Poli cs can only be understood with a study of human complexions and behaviour, according to
her the human condi on implies at least three types of ac vity. The rst one is labour, basic
reproduc on of material condi on for human life, every ac vity that allows human subsistence.
Work ac vity is slightly di erent from labour because it implies produc on of ar cial work of
commodi es, di erent from the natural environment. Thirdly, she considers poli cal ac on,
which has nothing to do with the rela ons between human being and nature or ar cial things,
but only with the rela ons between human beings themselves. Plurality, natality and
immortality are the basis of poli cal ac on. According to Arendt plurality is the paradoxical
plurality of unique human beings, therefore ac ng through discourse and public debate to clear
their iden ty and a rm who they are. In poli cal life every individual can express his/her
iden ty. Plurality is both equality and uniqueness and goes along with natality and immortality,
everyone has the ability to give birth to something new in reality, so poli cal ac on is the
sphere where the value of natality nds its highest realiza on. The arend an public sphere is a
fundamental concept.
We understand that poli cs not only involves abstrac on, strategic organiza on but also
symbolic cons tu on of the sense of human reality.

2. 16/09/2020: Natural or Ar cial Poli cs? Aristotelian Model and Hobbesian Model.
- ARISTOTELIAN POLITICAL THOUGHT.
Poli cal philosophers who came before the contractual tradi on followed a totally di erent
model, which we can de ne as Aristotelian.
In his Poli cs (things concerning polis) he explained that poli cs forms in the family, which is
the rst form of associa on established for daily needs and reproduc on. The second form is
the village, which is composed by several families and established for subsistence, reproduc on
but also produc on. The nal associa on is the polis established for the “good life” made up by
several villages.
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 He started with an account of the development of the polis from simple communi es.

- Aristotle, “Poli cs”:

Human beings combined in pairs because they could not exist apart, male and female need
each other to reproduce themselves, they join together in order to survive. Master is employed
to rule and slave to o er his work to the master. These two contradic ons raising from
necessity are what forms the family. Human beings cannot live alone in the desert.
The village arouses when many families come together combined to sa sfy further needs.
Polis realises self-su ciency (organiza on that guarantees the good life), it is much more than
the sum of its parts (families and villages) because it guarantees a be er life. Human beings are
poli cal by nature, speech enables humans to communicate concepts like jus ce which are
cons tu ve of poli cal life. Our poli cal method concerns our human a tude to speak, so the
polis should be considered naturally prior to the individual, because individuals who are not
self-su cient cannot sa sfy their natural inclina ons without it. Marsilius of Padua tried to
contest the papal claims to power. He is a good example to test the long and stable in uence of
the Aristotelian model, because even in the Defensor Pacis (1324), Marislius uses the
evolu onary model invented by Aristotle. Poli cal life and living well are the most important
things. When Marsilius had to reason about the origin of the civil community he referred to
Aristotelian evolu on example.
Another example that proves Aristotelian in uence is Jean Bodin because he wrote about the
fact that a commonwealth is a just government with sovereign power of several households.
Bodin is extremely cri cal of some aspects of Aristotelian poli cal theory, he does not
emphasise the passage between family and state but maintains the evolu onary model. The
basic structure of his poli cal thought is Aristotelian, the state is the greatest associa on which
is formed on smaller ones star ng from households.
Origin of the poli cal community is considered on historical terms with a speci c kind of human
society, the second element is that the nature of the poli cal community is a rela on of
con nuity, development, progress star ng from the family and arriving at the polis, the third
element is the structure of the polis, considered in organicist terms: in the natural condi on
human beings are organised in groups, the ci zens is essen ally a MEMBER OF THE CITY, not a
simple individual. The fourth element is a realis c concep on of human beings living in society
subjected one to another in a hierarchical condi on. Finally, the legi ma on of polis is based on
nature or tradi on or God’s will, the principle of legi ma on of poli cal society is NECESSARY.
Being a ci zen leads to a virtuous life.

- HOBBESIAN PARADIGM.

Founded modern poli cal thought. Locke, Spinoza, Kant and everyone a er Hobbes used his
philosophical structure for state theory. The paradigm of a state of nature and a civil state and
the moment of contract between the two moments.
The origin of the state is conceived in ra onalis c terms, the analysis of the social contract
theory begins with a state of nature in which human beings nd themselves before the crea on
of the state. This is the star ng point. The nature of the state is considered as the natural
an thesis to the state of nature, they are opposed one to another, since the state of nature is
apoli cal and de cient in many senses.
The state rises to permit life and the cons tu ve element are primarily individuals. Hierarchical
society of Aristotle becomes an egalitarian non society, composed of free and equal individuals.
The rst feature of the Hobbes paradigm is the legi ma on of the state, which is based on a
contract which is not signed by necessity, it takes places thanks to a VOLUNTARY COLLECTIVE
ACTION ACCEPTED BY INDIVIDUALS. The state is nega on of natural disorder. Hobbes tried to
claim that the state is ar cial, even though at the end he shares Aristotelian point of civil
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 consensus. Their poli cal philosophy is consensualist. Social con ict exists in the state of
nature, but stable order only begins with the OVERCOMING of this disorder.
The Hobbesian paradigm indicates the dissolu on of family as the basic economic and social
enterprise, from the tradi onal organiza on to the contract one (individualis c and atomis c).
Passage from communi es to socie es where individuals are free and equal.

- THE MACHIAVELLIAN ALTERNATIVE.

In the modern world there is another alterna ve to both Aristotle and Hobbes which is
Machiavelli. His poli cal thought does not involve in the contrast between nature state through
consensus, but a poli cal community founded on the suppression of the con ict. The state is
created independently from spontaneous or voluntary consensus. He thought that humankind
could not go back to the state of nature, but only proceed maintaining their savageness in
poli cal life, which at some points may also be useful. Machiavelli was sensible to historical
reality and the con ict between di erent social groups was normal and everlas ng and it is in
this con ict that we nd the reason of free states. Social turmoil and upwards allow liberty to
enter the poli cal sphere.

Is the social contract followed by another contract? For Hobbes and Rousseau, you became at
the same me part of the state and subjected to it. For Hobbes the contract is bilateral,
between the people and the state and between the state and the people.

Once s pulated, may contracts be deceived? For Hobbes and Rousseau not, for Locke yes,
because the power of state is responsible towards the popula on.

Is the object of the social contract par al or total renuncia on of human rights? For Hobbes,
individuals renounce to all rights except from self-preserva on. For Locke, individuals renounce
only the natural right to make self-jus ce. For Rousseau individuals renounce to all rights which
are transferred to the community, the genera goal of the state is to transform the nature of
human beings not only provide freedom.

3. 17/09/2020: What is Arbitrary Power? The State of Nature.

Besides the social and economic breakpoints, there are other watersheds events to consider:
the discovery of America, religion civil wars and the collapse of the Chris an Commonwealth,
moral and scien c revolu on (star ng with Copernicus and Kepler and reaching its highest
point with Galileo). “From the world of the more or less to the universe of precision”, we have
to keep in mind the change in mode of produc on to understand the shi in the poli cal
paradigm. The disorder given by social and economic disrup on must be repaired with an
ar cial order, nature is disordered and must be organized by human geometrical ra onality.

The star ng ques on which gives rise to the state of nature experiment is how to deal with
arbitrary power. A world without legi mate authority is a world of arbitrary powers con ic ng
with one another, which are not limited nor controlled. Wol , page 6, conceiving the state of
nature is fundamental to understand how a state can be jus ed and what forms should be
jus ed and why. Three di erent views of the state of nature:

- HOBBES: it is only with him that the state is considered an an thesis to the state of nature. The
Elements of Law is his rst poli cal book, which he wrote before the Glorious Revolu on, then
he wrote “De Cive” in 1642, in 1651 he published the Leviathan. His poli cal thought has three
versions, even though it remains the same. Poli cs should concern the maintenance of the
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 unity of the state, which is menaced by civil wars, division of power with the Church and
revolu ons. He based his thought on the contraposi on between anarchy and the state, he was
obsessed with the risk of the dissolu on of the state and disintegra on of public authority and
how to prevent it. Insecurity derives from the lack of authority??
His system is the highest defence from insecurity. In order to guarantee the protec on of life,
people need a uni ed state and a strong form of government. A man is a wolf to another man
and the state of nature is a state of war, persistent risk and fear of dying. The problem is the
constant risk to ght, there is no peace that allows the pursuit of economic interest.
The rst part of the Leviathan is dedicated to the study of human behaviour, poli cal
philosophy should be based on a reliable anthropology. The nature of human passions and fears
is crucial to understand poli cal ac on. The body and the scien c method ??
Human beings are animated by psychological elements like violence, sel shness which derive
from Hobbesian materialis c approach. He bases his anthropology on the concept of
preserva on of mo on, human beings are always looking for something, they are never stable.
Felicity is achieving what you desire.

But why does the urge for felicity lead to a ght of all against all?
- First, because of anthropological reasons, in the sense that to obtain felicity one must be
powerful, by seeking felicity everyone seeks power to sa sfy his/her needs and that is why
everyone will try to increase his power. The desire for felicity implies the desire for power, we
have three main desires: desire for material bene t, desire for glory and good reputa on and
desire for safety.
The others may try to kill you to increase their power so it will be ra onal for an individual to
a ack, therefore everyone would a ack anyone appealing to self-defence.
- Second because of the state of nature. Humans are naturally equal, material equality because
in the state of nature they have the same level of strength and anyone is able to kill in the same
way. It is a material, physical, objec ve reality. Even the weakest can kill the strongest.
- Third, because of scarcity of goods. Men become enemies when they desire the same thing and
just one of them sa s es his will.
In the Hobbesian state of nature there are natural rights and natural laws, we could say there is
a li le form of jus ce, but it is not enough because injus ce is the viola on of law, and without
law there would be none. In the state of nature, since there is no common authority nor law,
there is no possibility to violate the law and so no injus ce.
He uses a juridical no on, the one of natural right. The right of nature (ius naturale) is the
ability of each man to use his own power for the preserva on of his own nature. In the state of
nature everything is allowed, there is a right to everything (ius in omnia) but there are also laws
of nature. This is a sort of moral code, theorems derived from reason which are valid because of
their ra onality. It is ra onal to exit the state of nature and sign the contract. The func on of
the laws of nature is to explain than in order to survive we have to build a be er state. He lists
19 laws of nature, but the most important ones are three:
1. «Pax est quaerenda» (we must seek peace)
2. «Ius in omnia est re nendum» (we must renounce the right to everything)
3. «Pacta servanda sunt» (you have to stay with the pacts).
Laws of nature are valid only in foro interno, they are judgeable from the moral point of view,
we have the duty to obey them only under par cular circumstances which are when we know
others will obey them too. Since the state of nature is a condi on of insecurity. The real point is
that the level of mutual suspicion is so high that we can, the state of nature removes the
condi on in which morality counts.

Is it ra onal to follow rights or laws of nature?

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 Hobbes says long term ra onality is linked with laws of nature, whereas the short-term
ra onality is linked to rights. The natural laws are moral and innate, and we choose to follow
them, they are in a sense more ra onal because they represent collec veness.

- LOCKE: the key moment in his life was the Glorious revolu on. In his masterpiece “Two
Trea ses of Government” he defended the claim that all people are naturally free and equal
against Filmer’s claim that individuals are naturally subjected to a monarch. Locke didn’t
provide us with a systema c anthropology as did Hobbes and he believed Hobbes was wrong in
believing that the state of nature was a state of war. He thought the state if nature was a
moment when there is freedom but not license and that the state of nature is a condi on
bounded by the laws of nature.
State of nature is a condi on of abundance of goods, not scarcity.
Natural equality for Locke was not material, but a juridical condi on. No man has the right to
subordinate any other, no one has been appointed as a ruler by God.
Man have natural freedom, but the rights are limited to liberty and property but not license,
because the law of nature obliges everyone. The natural liberty is the freedom condi on of
doing only what the law allows, what is morally permi ed.
Not only everyone has the right to do what he wants but also the right of preserva on of the
rest of mankind, which is to be preserved as much as possible. We have the duty to restrict our
behaviour and not harm others, to respect others’ rights.

What is the validity of the law of nature?

Everyone has the natural right to punish who does not respect the law of nature. The law of
nature requires the natural right of punishment of who does not s ck to it.

Locke says in the state of nature there is place for everyone and abundance of resources, in this
condi on it would be hard to have a con ict with others. But the state of nature could
degenerate in the state of war. The rst source of quarrel is the discordance on how to apply
jus ce and what jus ce is. Once money and capitalism exist it is easy to see how it can
degenerate from survival to extreme accumula on. Capital is pure quan ty and there is no limit
to it, because limit is a qualita ve conceit. Even if the state of nature is ini ally peaceful at the
end it becomes intolerable and people need to establish the civil state (liberal).

- ROUSSEAU: The Discourses on the Origin of Inequality and The Social Contract are his
masterpieces. He is the rst social cri c of the modern society.
Rousseau does not accept the fundamental proposals of the contractual model according to
which the state is the second step of the process. Rousseau’s idea of the state his formed by
unity and individual freedom, he thought the state should be democra c and the community
should have a big role (not authoritarian, nor liberal).
There are three moments to be considered: the state of nature, the civil society which
reproduces some of the features of the Hobbesian state of nature and nally the state, based
on the social contract.
The state of nature is one of primordial innocence and happy isola on, he cri cized Hobbes and
Locke because they have directed the bad characteris cs of human beings (desire for power,
money and success) to savages (individuals before civiliza on), they have given cultural and
historical a ributes, not natural. Rousseau, in the “Discourse on the arts and science” tries to
explain human development through history and says it happened because of (historical)
corrup on. He assumes that human beings are moved by the desire of self-preserva on and
pity. He is of the idea that morality has no space in the state of nature. Natural equality is not a
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 juridical nor moral condi on, according to him savages survive alone and desire only food.
Natural isola on precludes the con ict for power, reputa on and safety.
The savages are not interested in others’ opinion and all the Hobbesian factors of war are
absent in the state of nature described by Rousseau. In his state of nature people
spontaneously decide to help each other. Even when it is not their own harm, humans are
naturally sympathe c to the others. They might be physically o ended by su ering and that’s
why instead of compe ng for existence they o er mutual assistance. Everyone has a natural
repulsion to see another su ering (pity). They do not understand harm as immoral or unjust but
naturally repulse it.
Rousseau’s cri c Voltaire said he failed to explain logically why the state is be er than the state
of nature and his “preference of the state of nature”.
Rousseau stated that it will be impossible for corrupted humans so ened by society to go back
to the uncivilised state. The arts and science corrupt society, the state is a condi on of regret.
The remedy to the corrup on of morality (progress) is in evil (historical reason), not in natural
compassion.

What are the factors that make society transform and evolve from the state of nature to civil
society?
- Pity is not enough to prevent con icts (some mes self-preserva on goes against compassion)
- Free will and capacity of self-improvement mo va ons (not only pity and self-preserva on)
which make the world more comfortable. These tendencies stem out from new non-basic
needs which increase the risk of comparison between people.
- Private property. This is ul mately the reason why the state of nature becomes a state of war
(civil of war).

4. 22/09/2020: What is Legi mate Authority? Contractarians; U litarians; Fair Play Principle Theorists.

- NEGATIVE CONTRACTARIAN PHILOSOPHY.

Sooner or later the state of nature will always decline and become a state of war. The state of
war jus es the state as such, how and why it should be organised as such (democra c,
authoritarian). We have to accept the state because the state of nature is unliveable, so the
jus ca on of the state follows the nega on of the state of nature (nega ve jus ca on).

How can the state be jus ed in posi ve terms?

“A state is that human community which lays claim to the monopoly of legi mate physical
violence within a certain territory (…)”, the state is held to be the sole source of the right use of
violence said Weber. There are two approaches which follow from this a rma on:
- Europe – legi macy theory
- Anglo-Saxon – poli cal obliga on
These two have in common a norma ve horizon, when poli cal authority loses its legi macy
there is no obliga on to follow its rules. The duty to respect the laws persists un l the state is
legi mated. We have the right to resistance.
The problem of poli cal legi macy is the problem of why the poli cal power has to be obeyed.
Contractualist philosophers answer the ques on saying that we should obey to poli cal power
only if all the individuals have consented to it. This jus ca on doesn’t come only in nega ve
terms (because the state of nature is unsustainable), but also in posi ve ones (the contract is a
decision of the ci zens). The state is in a sense a representa on of my will.

CONTRACTARIAN POSITIVE JUSTIFICATION:

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 The problem of the contractarian point of view is that it cannot explain the obliga ons of
people who do not accept the state.
The Hobbesian model sets the founda on of the state to the moment of the ar cial contract,
which is signed thanks to reason. Poli cal authority is legi mized by consent. Contract and
consent share voluntarism (voluntaris c argument). The state is then created on a voluntary
agreement based on universal consent. From the mul tude to the people, through consent, the
system of ci zens is considered as a whole, guided by a common authority that protects them
from internal and external enemies. The state can only bind us if we consent to it.
The core objec on is that you cannot just argue that the state of war is unsustainable, you have
to provide proof that giving your consent is senseful.

How could everyone give the consent?

Most people nd themselves living in a state they did not give consent to. The answer given by
contractarians is either that there is tacit consent (Locke) or hypothe cal consent (Kant – the
social contract is a pure idea of reason).

1) Tacit consent exists in the electoral moment (vo ng), giving consent to electoral process as
such is a form of consent. People tacitly consent to the state while using their bene ts, the
simple act of receiving a bene t from the state is a sign of its legi miza on.

DAVID HUME’S OBJECTION: residence alone cannot be interpreted as tacit consent,

because if we consider it as legi ma on of the state then nothing will show dissent. Only
leaving the country would be a form of delegi ma ng the poli cal power, but it is not easy,
and this would mean that you are obliged to give consent.
Residence is not a great sign of jus ca on and the Lockean argument does not work.
Residence is a sign of it only if you live in a free state and you are in the condi on to
abandon it any me you want to. This op on is complicated because it needs the
establishment of free states everywhere.

2) Hypothe cal consent: contract is just a hypothesis as the state of nature is. If we nd
ourselves in a state of nature, we would ra onally build the state.

CRITICISM.
- To say that the state is be er than the state of nature is not a posi ve jus ca on of the state.
- It is a pseudo-u litarian jus ca on of the state because it comes with the recogni on of the
u lity of the state, making the voluntaris c aspect of the contract less important, which instead
is the core of the jus ca on process.
- This jus ca on is too weak because it based on the assump on that people accept the state
not as such but have a disposi on to a state-organiza on in general. This is not the case for
anarchists, which in fact prefer the state of nature to the state. (incapable to produce poli cal
obliga ons)

- UTILITARIAN PHILOSOPHY.

The primary value is u lity, not independence or autonomy. The state is jus ed only if it
creates more u lity than any other alterna ve solu on, people should obey the poli cal power
because it is the most useful to do. The morally correct ac on is the one that generates the
highest amount of u lity. Bentham said we should obey the state only if it is my interest to do
so and no longer if my interest stops. The jus ca on of the state comes from the crea on of a
higher level of u lity than other forms of government or non-government.
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 The problem with u litarianism is that it accepts the loss of freedom for security without
ques oning. What’s more, we have to consider u lity in the long-term (indirect u litarian
argument).
The best state is the one in which u lity is maximized, therefore we have the moral duty to
obey the state. The general u lity of the state is measured on the e ciency of producing
wealth.

What is the answer if a non-democra c state produces more wealth than a democra c one?
This is a clear weak point of the u litarian framework, just and what is pro t (usefulness) do not
always coincide.

- FAIR PLAY PRINCIPLE THEORY.

The primary value is fairness towards other ci zens. I obey the state power, which is considered
legi mate, because it is fair.
Herbert Lionel Adolphus Hart (The Concept of Law) is remembered today as one of the more
sophis cated theory of poli cal obliga on, di erent from both u litarianism and contractualist
philosophy. The real basis of legi mate authority is what could easily be misunderstood with
tacit consent: the duty of fairness. According to him we owe our obliga on to the state because
it is fair, I cannot bene t from it unless I pay with my fairness. I take advantages in being in a
state, so I must s ck to its laws for the sacri ces made by the ones who build it.
Poli cal obliga on is the essen al costs corresponding the bene ts we obtain living in a state.
The state is built thanks to the sacri ce of other ci zens, we owe it to them. It is not an
absolute defence of the state, but of its ci zens. Poli cal obliga on is the cost corresponding to
the bene ts that we obtain.

CRITICISM.
- “Anarchy, State and Utopia” (1974) by Robert Nozick – neoliberal theorist (libertarian
philosopher). His cri cism rises the ques on: if we receive unwanted bene ts, should we pay
for them? For him the answer is no. Receiving bene ts produces no obliga on. You acquire the
duty of fairness to contribute to the costs of the state only if you accept the bene ts of the
state, rather than merely receiving them. In the case in which you don’t want the bene ts of
the state and s ll receive them, Hart’s argument doesn’t work, because you didn’t accept them.

How can we di eren ate accep ng bene ts from just receiving them? How can we stop the
automa c process of receiving bene ts from the state?
The fairness argument fails to provide a jus ca on to universal poli cal obliga on and so to
jus fy the state.

So far, we have seen posi ve jus ca on of the state by norma ve philosophic approaches (3
main arguments). Even the realist poli cal philosophy tries to jus fy the maintenance of the
state (not the intrinsic legi macy). To have a stable state, for Machiavelli, we need the presence
of regulated con ict between poli cal and social forces. Another possible answer (especially for
the principali es) is that the state is jus ed on fear, sustained on punishment, which allow the
stability of the state.

5. 23/09/2020: What is Liberty? Liberalism; Marxism; Communitarianism.

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 Liberty is one of the two core values on which the states are based (or pretend to be based on).
The Aristotelian model presents a hierarchical society where people are not free, freedom is in
fact a community concept, not a real value.
Freedom anìd equality are the basic modern poli cal values.
The idea of an ordered, desired, happy, useful and just community is what a poli cal
organiza on should be based on. A just society is based on the couple liberty and equity. They
represent stable social ideas, but the problem arises when de ning the concepts.

- Benjamin Constant, The Liberty of Ancients Compared with that of Moderns” (1819) – he was one
of the most important poli cal and legal philosopher and liberal theorist, he could be
considered one of the rst theorist of the liberal cons tu onal regime. He tried to build a
cons tu onal theory to prevent the excesses of the popular will (he has in mind the jacobine
behaviour).
In this conference he re ects on two di erent types of liberty. In the ancient world liberty was
essen ally a ma er of par cipa on to the collec ve poli cal life. The idea of poli cal ac on
given by Arendt was in uenced by the classical world.
According to Constant, liberty in the modern world is considered as a condi on of peaceful
independence.
This dis nc on has been reformulated by Norberto Bobbio and Isaiah Berlin: they confronted
on the two ideas of liberty. They called them nega ve and posi ve liberty.

- NEGATIVE FREEDOM (theorised especially by liberal tradi on): a group of people is free to carry
out an ac on if that ac on is not prohibited by others or interference by laws – individuals
enjoy nega ve freedom if and to the extent that they can carry out ac ons which are not
prohibited by laws in the modern state. If there is silence of law, then you can do whatever you
want. Liberty is treated as the absence, the nega on of a constraint/obstacle/interference.
Hobbesian natural right is one of the rst idea of natural constraint and nega ve freedom.
Opposi on between necessity (law) and liberty (right). Liberty in the sense that the individual
decides his behaviour by himself, we are not constrained by the law of the state.
This type of freedom, according to Hobbes, is inevitable in any state. It would be di cult to
have a despo c state who is able to take all nega ve freedom away from ci zens.
Given that we cannot avoid the poli cal authority, the problem is how much power should the
state have. The liberal tradi on says that coercion should be at the minimum possible. The
ra onal force of liberism is precisely that of minimizing coercion, that is why they have
theorized check and balance (they reduce private and public arbitrary power) between the
state and compe on. Nega ve freedom is the only one we have but it must be the widest
possible. The idea that constraint should be limited to a minimum level is quite modern, it is
acceptable but insu cient. We need to understand where unavoidable coercion ends, and
illegi mate coercion begins.

How to establish a criterion that jus es the interven on of the state?

- John Stuart Mill, “On Liberty”: the response is the HARM PRINCIPLE: «The only purpose for
which power can be righ ully exercised over any member of a civilized community, against his
will, is to prevent harm to others. His own good, either physical or moral, is not a su cient
warrant».
Mill says coercive power can interfere with poli cal analysis only to prevent harm to others.
According to him the ac ons of the individual can be limited even if the risk of causing physical
or moral harm but not in the case that you cause harm to yourself. You are free to take drugs if
you want. The state should regulate and interfere only with OTHER REGARDING ACTION, not in
self-regarding ones.
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 We can move a step forward because he set a criterion for understanding necessary coercion
and so to iden fy illegi mate one.
Mill uses the principle of juridical discourses: “… or rather certain interests which, either by
express legal provision or by tacit understanding, ought to be considered as rights”, the interest-
rights based principle. Another way to determine the spaces of individual nega ve freedom
that cannot be eliminated by the state is to refer to human rights, which all legi mate
legisla on should respect. This is the approach adopted by the Declara on of Rights in modern
states. The liberal rights are linked to this sphere of non-interference.

How do we dis nguish ac ons that harm others from those who don’t a ect others?
It is very hard to nd examples of self-regarding ac on.
Individuals must be allowed to do everything they want in their own sphere of ac on, which
must be as broader as possible.

Is this enough to establish a criterion of state interven on?

For example: are poli cal rights human or social rights? Are they fundamental? The content of
the idea of right is highly problema c. It’s impossible to de ne it unhistorically (once and
forever), so it is impossible to establish a xed content of the idea of right, so it is impossible to
establish a universal criterion for just or unjust state interven on based on rights.
The idea of natural right di ers from one to one, and that is why for Bentham and legal
posi vist Hans Kelsen rights can only be created by legal order. The idea of right is not self-
evident.
Legal naturalism says that you believe in the existence of natural rights, legal posi vism says
that rights are established by the legislator and poli cal authority.

Mill refuses natural rights theory and the idea of conven onal legal rights, because he wants to
defend a theory that derives from his u litarianism.
In order to jus fy a right, we should refer to u lity. Interested are to be considered rights,
because if protected by the state they are able to maximize general u lity.
In the long-run liberty and non-interference will generate the highest level of u lity for
humankind. Progress is one of the core ideas in he 19th century, but there were debates on
what it was and how to realize it. Human beings are capable of learning from experience and
liberty is the basic condi on in order to have experimenta on of di erent ways of life and
thinking, and thanks to these di erent experiences we can progress. Liberty is a value because
it is the best instrument.
One of the deepest worries for Mill is free public sphere (discussion), even if the voices are false
and the opinions wrong, there is no need to silence them and to stop debates. Accep ng errors
and controversies is a form of improvement.

- OBJECTIONS:
We can list many bad behaviours and mistakes which con nue to be present in history, so the
rst possible objec on to Mill’s doctrine is his unlimited faith in progress. Progress is the
cornerstone of his doctrine.
Wol suggests that the weak point of his reasoning is the idea of u lity, which is not so clear
and easily mis understandable. Freedom is jus ed because is the best means to reach u lity,
but if we have a di erent idea of u lity freedom might be a totally di erent value. Wol
suggested to consider liberty as a true value in itself.

- POSITIVE FREEDOM:
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 Nega ve freedom is individual, you are free to the extent you don’t have limita ons by the
state or by others. Posi ve freedom doesn’t mean the absence of coercion, but the fact that
coercion is established by yourself: autonomy. The two great theorists of posi ve freedom are
Rousseau and Karl Marx. Posi ve freedom is democra c and communitarian (individual and
general will) and material.
Rousseau said that to be free means to obey the law we have given ourselves: freedom
represents autonomy. Ci zens are free in the posi ve sense of the term if the laws are not
imposed by an external sovereign but are decided by the ci zens themselves, they are free to
obey the laws that they have democra cally given to themselves. I freely chose the law, the
constraints. Posi ve liberty can be linked with democra c theory and authors like Dahl, Bobbio,
Kelsen and contemporary Taylor and Sandel.

- COMMUNITARIANISM:
They blame liberals for what they consider a bad individualism, which they consider as a form
of atomism. According to communitarians, liberalism conceives people as isolated individuals,
who pursue their own personal u lity based on the nega ve idea of liberty. Individuals have no
deep interac on or special a achment with history, customs and with cultural tradi on.
But, in reality we s ll remain social beings and our iden es are linked with the communi es in
which we live. If we’d nd ourselves in a di erent environment, we would be totally di erent, it
is explicit the reference of Taylor and the rst Sandel to Aristotle. The applica on of even our
nega ve no on of liberty requires background concep ons of what is signi cance. We cannot
understand the meaning of freedom without having in mind the context in which we live.
Human nature is bonded to cultural heritage, people cannot simply get rid of the importance of
community and what’s more it will lead to individual aliena on.
- MARXISM (material liberty): It would be wrong to say that I am free to develop a culture if I
don’t have me or money to do it. Freedom in this sense is the material power to do the
ac ons I want to do, not just the possibility given by the law. I am only free if I have the material
resources to realize my objec ves.

- Marx, “On the Jewish Ques on”: in order to understand and de ne liberty we need to
understand the di erence between human emancipa on and poli cal emancipa on. He
describes liberalism, which is the ideology of the capitalist class, as trying to build a regime of
rights that leads to poli cal emancipa on. In the liberalist framework the main rights are liberty
(the right to be free nega vely and in a private sphere of non-interference), equity (the right to
be treated equally), security (the right to be protected from others) and property (the right to
extend the security area to legi mate possessions and enjoy them privately). To be a ci zen
means to enjoy these rights.
For Marx, poli cal emancipa on is nothing but the demand for equal poli cal rights. This is not
enough; we need a social and human emancipa on. For liberalism, equality is before the law.
Marx’s idea is that individual rights are an obstacle to human emancipa on, they tes fy the
progress of humanity but in the main me are obstacles. Liberalists describe a fake community
of equal ci zens, which obscures the reality of civil society; Marx says reality is based on egoism
and compe on between unequal classes. The liberal rights granted to the ci zens emphasize
the antagonism in the capitalist society. The dominant class, the modern bourgeoise by
possessing the private means of social produc on, exercises its dominion not only on the
workers, over the spheres of produc on but also the ideological, cultural and poli cal spheres.

- Marx and Engels, “The German Ideology” (1846) wrote that the ideas of the dominant class are
in every epoque the dominant ideas. The class which is ruling society is ruling also the
intellectual force. The class which possess material produc on controls the means of mental
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 produc on and everyone is subjected to it. Liberalism would be the ideological jus ca on of
the bourgeois society and the exploita on of the workers by the capitalist class.
Marx thesis could be seen as a simpli ca on of reality, but it raises fundamental ques ons s ll
relevant today. The dominant material rela ons are grasped as ideas.
For what regards the poli cal sphere, Marx wrote «The State is the form in which the
individuals of a dominant class assert their common interests». The state is not based on the
real pursuit of the general interest of the people, but just the expression of the dominant
interest.
Even today, the big capitalists are able to control public and poli cal spheres in many ways:
lobbying, monopolies, regime shopping … and they can even create poli cal par es in order to
defend their par cular interests.

The problem pointed out by Marx is how can we combine the economic power of capitalists
and the role of the ci zens?
Suprana onal arenas di cult to control by ci zens is where decisions are taken.

Marxian idea of posi ve freedom is that in a really emancipated society people see themselves
as fully coopera ve members and are equal from the material and poli cal point of view.
Poli cal emancipa on is very distant from the Communist society, because emancipa on must
extend to civil society. Marx believed this can only be realised through revolu onary ac ons.
- In 1874, discussing the problem of the German social democracy, Marx described a rst phase
of collec vist society founded on the common ownership of the means of produc on and the
distribu on of produc on follows the principle of collec veness (socialist phase). The
consequent phase sees society nally able to organize itself according to a higher principle.
Posi ve liberty will be organized for each according to his abili es, to each according to his
needs (not to each according to his work anymore). Marxist tradi on reserve space also for
social needs.
Marx’s importance lies also in the ques on which concerns the di culty to de ne and
understand the rela onship of poli cal liberty and economic and social liberty.

Which would be a just society? Should it follow nega ve or posi ve liberty?

In our cons tu onal state we have the legacy of both the liberal tradi on (liberal rights, checks
and balances, liberty of par cipa on) and the democra c and socialist tradi on. Today we have
a mix of the di erent two.

6. 24/09/2020: What is Equality? Property and Markets in Liberal, Neoliberal and Marxist Perspec ves.

Equality is the supreme value of a well-ordered poli cal community. Together with liberty,
equality has a posi ve emo onal meaning, it is something to desire. Even though, in the
famous dis nc on made by Bobbio of right and le , he claimed that the basic criterion to
iden fy the right party is the will to base a society on the value of di erence/inequality.
On the descrip ve level, there is a di culty on describing the meaning of equality. While with
liberty the di culty lies in its ambiguity and ambivalence (from or to do something?), in the
case of equality the problem is the abstractness of the term. To claim that two people are equal
without other determinants is meaningless, we need to understand who they are and in what
dimension they are equal. Freedom can be a property of a person or a community, equality is
simply a kind of formal rela ons which can be understood inn di erent ways. Freedom can
de ne the quality of an individual, but equality in itself does not mean anything.
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 Equality is a form of establishing a certain type of rela onship between or among the members
of a social collec veness, equality needs to be speci ed.

There are at least two cases of equality, formal (nega ve idea of liberty) and material (posi ve
liberty) one.
- Formal equality is legal and poli cal equality, while material is social and economic equality. On
one hand equal rights, on the other real equal sa sfac on of human needs. The basic principle
of formal equality, in uenced by the contractarian tradi on, has been expressed in the
Universal Declara on of Human Rights (1948). The main target of equality before the law was
the Ancién Regime, where ci zens were divided in legal categories and the lowest ones did not
have rights. The transi on from it to the liberal state is also a transi on from a society divided in
social and poli cal categories to a society composed by free and equal ci zens.

- Material equality is generally suspicious to the idea of private property (Rousseau, Marx).
Material equality is equality with respect to economic goods. The di culty is how to realize it.
Marx was against the idea of property and also market distribu on of material goods.

PROPERTY RIGHTS JUSTIFICATION.

- Mill’s harm principle: the state protects every ci zen from harm. The most dangerous form of
harm is the damage of private property, that is why property it is a right which should be
protected by the state.
- Locke believed that it is be er to derive a system of property from the evidence of natural
rights: he tried to argue that a society could be just, despite its inequali es, because the
individuals have natural rights to property.
In “The Second Trea se of Government” (1689) he tried to jus fy property rights. He took for
granted that if you are the legi mate owner of a property you have many rights over that same
property, you can use it and transfer it to others by sale or gi . In some sense we can claim that
property is the right to own something and market is the right to transfer something to others,
so here is the link with markets too.
Locke addressed the ques on of the ini al acquisi on of property.

How does an individual develop a right to property in the state of nature?

How can someone gain the right to exclude the others from the use of a par cular object?
Jus ce in the ini al acquisi on of property exists and can be jus ed. There are several levels of
argumenta on in defence of the ini al appropria on of property.
1) The rst level is the survival argument. Lockean natural law said that mankind is to be
preserved as much as possible and preserve the other’s natural rights. The world was
ini ally a common property of all human beings (in the state of nature). If no one could
have taken anything, we would all be dead. It must be permi ed to take what we need in
order to survive, otherwise it would be an o ence and a viola on of the natural law. Private
property is jus ed as a form of respect to the natural law, which prescribes the
preserva on of life above all.
Our appropria on from nature, to be jus ed, must be constrained by some condi ons.
Basically two: we must not take more than we can use, and we must live enough and as
good for the others. The second condi on applies to all Lockean arguments to defend
private property.

The survival argument has some problems. The biggest one is that it jus es the
appropria on of only those objects which we fneed to survive. The fruits of land are
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 jus ed, but not land as such. That’s why Locke added a new argument in the Second
Trea se.
2) The labour-mixing argument for property: every man has a property in his own person and
nobody else has a right in it. The labour of his body and his hands becomes his property:
whatever he takes out of the state of nature becomes his. He had mixed his labour with it,
so something of his own. The private property is jus ed under one condi on: that there is
enough and as good le for others.
This argument starts from two premises. The rst is that you possess your own labour, the
second is that when you work you mix your labour with the object you are labouring. As
long as the object is not already legi mately owned by another, you can own it. The great
advantage of this argument seems to be the jus ca on of the appropria on of land. The
core idea is that those people who are the rst to cul vate a piece of land, should be
en tled to own it.

Possible cri cism can arise even when analysing this argument. First, this type of argument
could be applied only to those who are in condi on to work. Second, Robert Nozick said
that there are cases when mixing your labour with nature is of no gain (example of tomato
juice).
3) There is a third level of argumenta on in Locke’s defence of property: the value-added
argument. Try to consider an amount of goods than can be accumulated from a savage land
and consider the amount of goods accumulated if that land would be cul vated. Locke
es mated that the cul vated land would be 100 mes more produc ve. From this, he
concluded that labour is the factor that increases the value of a natural object. By
modifying land, one increases its value, this value added jus es the appropria on of land.

The weak point is that it seems that labouring en tles you to claim ownership to the land’s
fruit again. The land as such would not be part of the added value, it was there before, and
it would s ll be there even if you had never labour it.

According to Wol and other interprets, the solu on could be referred to distribu ve jus ce
and u litarian terms, not natural rights. Maybe it is wrong to focus on jus ce in the acquisi on
of property as separated from the jus ce in the distribu on of material goods. We have to
consider the system of distribu ve jus ce (we consider together jus ce in acquisi on and
jus ce in distribu on), which involves the problem of private property as one element of a
broader discourse. An a empt to this direc on is the u litarian jus ca on of property rights.
Mill’s jus ca on would be allowing people to a private property and trade it, leave it to
successors, since it would cause the most produc ve use of land. If you have property and free
markets people are mo vated to add value of the land and increase overall u lity.
In terms of result, property and free market should be jus ed.

Free market model described by Wol in four points (Geo rey Ingham “Capitalism”):
1) The presence of property rights
2) The general goal of the market produc on is private pro t
3) All goods are distributed thanks to the market
4) In the market there is free compe on.
From these premises, we can nd at least two di erent liberal approaches to markets: the
regulated market and the unregulated one.
Le liberals (Joseph S glitz) believe that free markets are less despo c but also less ra onal and
emphasize an economic concept called externality. This refers to an unwanted result of an
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 ac on or product of a system and it could be posi ve or nega ve. Pollu on is a nega ve
externality; streetlights are a posi ve one. The thesis of le -liberal thinkers is that capitalist
markets tend to oversupply nega ve externali es and undersupply posi ve ones. The market
favours an egois c type of reasoning. The solu on to this problem is to be found in state
interven on: the state should be the provider of public goods taxing ci zens.
The posi on held by right-libertarians (neoliberal even it’s a rather complicated doctrine) is that
market has at least two great values: price system (a way of spreading informa on regarding
human needs and desires) and pro t mo va on (a reason to respond to the informa on given
by price system). If prices rise in a sector, this means that in that sector pro ts are expected,
and producers try to enter that market. Markets give mo va on to change their behaviour and
change produc on pa erns. The system works because it contains ra onal elements (Adam
Smith) not on human morality. They prefer unregulated markets.
The counterargument was theorised by Marx. Is capitalist market a free market? The Marxist
tradi on was against both property rights and markets.
1) Capitalism is wasteful because:
- Instability that produces recurrent crisis, in which individuals are expelled from
their ac vi es and goods are wasted. Capitalism can never avoid the destruc ve
cycle of growth and recession.
- Contains an enormous number of people who don’t work and so don’t exercise a
produc ve role
- Destroys the environment.
2) Capitalism is also responsible of the aliena on of workers: under capitalist working ac vity
the workers become subordinated to machines and the poten al crea veness and
intelligence is frustrated. Aliena on could extend to society as a whole. (David Foster
Wallace, “This is Water”). In capitalist society, the fact that you inhabit a society is the most
complicated thing to talk about, you consider it natural because of history but not
understand it.
Is aliena on a direct consequence of the capitalist mode of produc on or of human
existence as such or just of technological innova on?
3) Capitalist society is based on the exploita on of workers, which is the extrac on of the
surplus value derived from surplus labour. That is the work which only creates pro t for the
capitalist. Owners take a por on of pro t from workers without working. Those who have
pro ts unpropor onate to their ac vity will exploit and those who create more than they
pro t will be exploited.
Weber and Schumpeter (capitalism is unstable but a posi vely destruc ve process) tried to
jus fy the capitalist class and said they worked too, and they risked their money and
property rights.
Are capitalists en tled to receive a reward from using their property rights? Are they
en tled to own their proper es (which is the only reason why they are di erent from the
workers)?
The worker is the owner of what he/she has produced. Marx cri cized Locke because even
the simplest work is always a social work, a worker alone is unthinkable. The connec on
between the ideological level (that in the state of nature we are free and equal) and the
social level (human beings are poli cal animals) is that human beings can only be
individuated in a society, so Locke’s argument is meaningless. Even in the primordial mes
there was a division of labour among the community. Workers use instruments which are
the product of social coopera on not compe on. For Marx, individuals who are masters of
their work is meaningless.
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 4) Capitalism produces unjust inequali es from the systemic and moral point of view.
Capitalist system is unfair both in the defence of private property and the distribu on of
social work.
Even if constrained by the laws, the capitalist market can generate devasta ng poverty and
inequali es. Great inequali es can modify the democra c regime and reduce freedom for
the poor classes. The right alterna ve to the capitalist model is planning economy, which
contrasts free market.
The essen al features of planned economy are:
1) The state controls the means of produc on (absence of private property rights)
2) The goal of produc on is the sa sfac on of ci zens needs
3) The distribu on is provided by a central alloca on (not trade)
4) The state has the ul mate control over who may produce how much of each good.
The idea that sustained planned economy is that planning from the centre would safeguard and
sa sfy the demands of ci zen.
We can no longer share this con dence in the self-ra onality of planned economy. A empts to
introduce the model of planned economy have failed.
How would the planner know the desires of the customers? Why should the planner make sure
that the customer gets what he/she wants? In order to give answers to the quan ty and quality
of the goods wanted we need to have the power of omniscience and the planner would be not
mo vated by pro t to s ck to demand preferences. The capitalist class needs to sa sfy the
demands of customers because if not it would be replaced by another class.
There have been many a empts to combine the idea of Marxism with the market. Giovanni
Arrighi (The Long 20th century – Adam Smith in Beijing) tried to compare markets in the
distribu on of goods and common goods. “Neosmithean Marxism” tries to combine common
property and market economy as an instrument to serve general coopera on.

7. 29/09/2020: What is Jus ce? Rawlsian model.

What is jus ce? It is the essen al idea in the perspec ve of norma ve poli cal philosophy.
According to John Rawls jus ce is the rst virtue of social ins tu ons and more important than
power.
Rawls begins his poli cal philosophy not with an account of historical poli cal ins tu ons, nor
with an anthropological account of human mo va on, but with an analysis of the concept of
jus ce as an isolated idea. No ma er how useful the arrangement of a community is, the real
problem for the poli cal philosopher is jus ce, society must be just before than useful.
Jus ce has been described di erently according to di erent eras, and even in the same era it
had many meanings. In Plato’s Republic, Socrates tries to contrast the posi on of the sophist
Thrasymachus, which said that jus ce is nothing but what is useful to the strongest, jus ce is
just an ideological term and useful to the strongest to jus fy their dominance. Plato wrote the
Republic in order to contest this a rma on.
In the Aristotelian work we nd the famous dis nc on between commuta ve jus ce and
distribu ve jus ce. Commuta ve jus ce applies to an exchange, in order to consider an
exchange fair, the two commodi es exchanged must be of equal value. It is a type of jus ce
which aims to regulate exchanges propor onally and does not require a complete arrangement
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 of poli cal society. In order to nd examples about this kind of jus ce, we can think about the
judicial ( just penalty = propor onal to the damage) and economic system (the right price
corresponds to the value of the commodity acquired or the just salary correspond to the work
done). It regulates the rela ons between the single private parts (civil society).
Distribu ve jus ce is di erent. Guides public authority in the distribu on of credits and du es,
it regards the rules on how to organize the distribu on of material ad immaterial goods to
countries seen as member as a poli cal community. Everyone should be remunerated based on
di erent criteria. The problem with distribu ve jus ce is to set a criterion according to which
this distribu on should be done. The Communist view of society, we have seen a possible
criterion in order to distribute social goods (to each according to their needs, for each according
to their work). It regulates the rela ons between the world and its members (poli cal sphere).
In the classical world jus ce meant basically “to him his own”. (A ciascuno il suo, Sciascia).
We nd this idea in the codi ca on of the Roman law by Jus nian. The rst jus ce is the
constant and persistent will to give to each person what is due to him or her. But how can we
determine what is due?
In modern and contemporary world, the answer is much more di cult, because humans are
considered free and equal at least from the norma ve point of view. The most sophis cated
and controversial a empt to answer the ques on of jus ce is to be found in Rawls’s “Theory of
Jus ce” of 1971. Equality and freedom are the two underlying concepts of the Rawlsian system
of society and important to understand why he a acked u litarianism and updated the
contractarian paradigm.
He worked at Harvard University, he came from a rela vely wealthy family and this deeply
in uenced his theory because he understood that wealth cannot be the basis for distribu ve
jus ce. You have to jus fy your wealth and even your natural assets like cleverness, which
usually is the complex result of social inequality.
He came from Bal more, and so the sense of immorality of slavery condi oned his poli cal
philosophy. His two heroes were Kant (moral impera ve) and Abraham Lincoln.

Rawlsian core idea is that if we were asked to design a just society, from behind of what he calls
a veil of ignorance (the fact that you know nothing about the place you are going to occupy in
the future just society), we would choose that society where disadvantaged people lived as well
as possible, be er than in all other condi ons.
Rawlsian theory of jus ce can be divided in three main parts:
1) The condi ons under which the hypothe cal agreement could take place (contract)
2) The principles of jus ce which would be selected under such condi ons
3) Explana on of why these principles of jus ce will be necessary for modern democra c
regimes.

1) THE HYPOTHETICAL CONTRACT CONDITIONS.

Rawls is also in uenced by Hart (fairness argument) and re ects on the ideas of mutuality and
reciprocity: in a just society, no one would want to bene t unless all do so.
He tried to update the contractarian hypothe cal contract argument. In order to establish what
society should be like, we have to conceive a pre-poli cal condi on, in which, before the society
was created, we would have an agreement on the issue of jus ce.
To solve the problem of distribu ve jus ce, the hypothe cal contract would take place under some
special condi ons: individuals in their original posi on (Rawlsian state of nature) are placed behind
a veil of ignorance that makes them unaware, uniformed about their condi on in a just society. The
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 contractors are imagined to hypothe cally join together to choose the basic elements on which
they would live together in the future just society.
Rawls assumed this constraint because he believes that jus ce requires impar ality, and this can be
acquired only assuming ignorance. In real life, if we try to agree on the real meaning of jus ce, we
would never reach an agreement. Di erent views of jus ce would be in uenced by personal
interests. People disagree also because they prefer di erent values.
Human beings have di erent concep ons of the good and what makes life meaningful. Individuals
have not only di erent material interest, but also di erent values. There are di erent views about
what a good society should be like, and we have ideal and material con icts.

Rawls tries to nd a good method in order to avoid the quarrel that would be likely to start in real
life. He decides then to update the hypothe cal contract argument. If you want to have an
agreement on distribu ve jus ce, we should abstract from our concrete coexistence and suppose a
hypothe cal agreement which assumes some ignorance. If we imagine a situa on of ignorance
about real life condi ons and the future society, we will nd ourselves in the best posi on to
understand what is just. Original posi on is designed to avoid the in uence of par al and par cular
interests, to understand what public and general interest requires.

- John Rawls, Theory of Jus ce (1971): Among the essen al features of this situa on
is that no one knows his place in society, his class posi on or social status, nor does
anyone know his fortune in the distribu on of natural assets and abili es, his
intelligence, strength, and the like. I shall even assume that the par es do not know
their concep ons of the good or their special psychological propensi es. The
principles of jus ce are chosen behind a veil of ignorance. This ensures that no one
is advantaged or disadvantaged in the choice of principles by the outcome of
natural chance or the con ngency of social circumstances.
Fairness concerns the original posi on and consequently the society which is the result of the
agreement that contractors have. The contractors are somehow forced to be impar al because they
don’t know how to be in uenced in their own favour. The original posi on is built apposi vely for
this. People in the original posi on would agree that jus ce consists in fairness and that fairness
consists in conformity to a complex system of principles, the principles of jus ce. The only possible
and ra onal result of the agreement would be so.
The greatest objec on made to Rawls about this argument is that without the concep on of good,
the contractors cannot recognise the value of jus ce. Rawls replied that all the contractors in the
original posi on have a weak theory of the good, the agents in the original posi on want primary
goods, they don’t have sophis cated concep on of jus ce. He introduced the no on of primary
goods as a consequence of making people ignorant, he had to jus fy the fact that people don’t have
a concep on of Good. He refers to goods that will help in any case (all purposes means) as liberty,
opportunity, income, social basis of respect and so on. The contractors would prefer to have more
primary goods than fewer whatever their project is.
The agents in the original posi on are 1) ra onal (able to understand the most e cient instruments
to realize goals), 2) mutually disinterested (they have no interest in others’ des nies) and 3) not
envious (they would not be o ended by anyone else luck). Rawls is not describing real people, he
knows people are irra onal and envious, but he just created a methodological device to understand
principles of jus ce.
Rawls supposed not only a radical level of ignorance, he also supposed the contractors held a
speci c knowledge about physical (the contractors know that they are deciding about jus ce to
regulate a society in which there would be a condi on of moderate prosperity, “circumstances of
jus ce”), logical (they know that their choice must be logically possible) and formal (publicity – they
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 know that the terms of the contract must be recognised by all par es - and nality – if a contract is
made in good faith, they could not have it revoked just because things change) constraints of their
choice. Every element represents something that we are ready to accept.
2) THE PRINCIPLES OF JUSTICE.
- 1. «Each person is to have an equal right to the most extensive total system of
equal basic liber es compa ble with a similar system of liberty for all.
- 2. Social and economic inequali es are to be arranged so that they are both: 2.a. to
the greatest bene t of the least advantaged, consistent with the just savings
principle, and 2.b. a ached to o ces and posi ons open to all under condi ons of
fair equality of opportunity».
Principle number one is the so-called liberty principle, the number two is the fair-opportunity
principle and the principle number 2.a. is the di erence principle.
Since you don’t know which group you’ll belong to, it is meaningless to discriminate someone or a
piece of society. This is a reason for equal liberty. “The most expensive total system” seems to
follow from the Rawlsian assump on that in the original posi on people want as many primary
goods as possible, it is an automa c and necessity choice. They would not only adopt the liberty
principle but give to it lexical priority. The reason is that we cannot sacri ce liberty for the sake of
anything else. Rawls tries to build an idea of jus ce which could be considered as common and
ordinary: given a moderate prosperity, basic rights and liber es should always be preferred to other
material prosperi es.
For what concerns the di erence principle, Rawls thought that egalitarianism is many mes accused
of being ine cient and irra onal, since it would leave no space for incen ves. Some people will
work much more if they knew they could obtain higher goals. Rawlsian idea is that everyone should
bene t from inequality, which can actually be in the interest of society as a whole and especially of
the poorest ones. The di erence principle says that the distribu on of wealth should be equal
unless inequality would be everyone’s advantage and more speci cally it must be the advantage of
the least advantaged. Rawls believes that the work of highly produc ve people would be able to
produce bene ts for all the popula on, thanks to the crea on of new jobs, tax revenues, … Even the
welfare state is a bene t which comes from inequality. Inequality is unavoidable and also necessary.
Why should such a controversial principle have been translated in another way by neoliberal
thinkers? Why was it used as a jus ca on of trickle-down policies?
Rawls tries to build the original posi on in very abstract terms, avoiding moral assump on and
historical constraints, where the choices made should be ra onal. There are many principles of
ra onal choice suitable for this original posi on and we can take at least three in considera on:
1) The u litarian principle (maximizing expected u lity)
2) The Maximax principle (adopted by op mists) – in this case ra onal choice makes us choose the
op on with the best outcome, however unlikely. The idea is establishing a situa on where the
maximum is maximized
3) The Maximin principle (maximizing the minimum condi on)
To each of these principles corresponds a di erent model of future just society. For example,
Maximax principle supporters are likely to choose a highly unequal form of society (neoliberals).
The nega ve thinkers would choose the Maximin or Rawlsian principle. His idea is that the only real
ra onal principle in the original posi on is the Maximin one. But what are the condi ons that allow
Rawls to say this? The choice in the original posi on is a one-o and unrepeatable o er and if
things go badly a er having chosen a principle, we don’t have another chance.
Is this a reason strong enough to use the Maximin principle?
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 In Wol we nd that the defeat of the u litarian principle is not always a posi ve think for the
Maximin principle. The u litarian argument fails anyway, because in the original posi on we are not
able to decide how much a man needs to make a month, we need a more general principle.

8. 30/09/2020: Jus ce for everyone? Everywhere?

CRITICISM TO RAWLSIAN PARADIGM.
1) Methodological cri cism: the hypothe cal contract argument: if the contrac ve parts in the
original posi on don’t have a real iden ty or plurality of experiences and don’t share a common
life together, why should they make the contract?
This cri cism says that the argument of the hypothe cal contract does not involve real choices,
does not express a real will. It is not a real posi ve or voluntarist argument. The hypothe cal
consent is not a jus ca on for the principle of jus ce: we assume that we can only acquire
poli cal obliga on to jus ce by voluntary acts of consent and in the mean me, we recognise
that the hypothe cal acts of consent are not real. From this seems to follow that this argument
does not sa sfy the contractarian paradigm as such.
In his second masterpiece, Rawls tried to see more completely the general agreement on what
he calls the cons tu onal essen als, the basic principles according to which a community
organize itself. He argues that I pluralist society the contrac ve par es need to formulate an
agreement based on intersec on (beliefs, ideologies).

2) Premises cri cism:

- Communitarian philosophers cri cized the veil of ignorance, because they said it
would express inevitably implicit assump ons from the author. They don’t accept
the liberal approach in Rawlsian theory and believe the design of the original
posi on reveals this liberal approach, because Rawls assumes the individualis c
nature of the contractors. Communitarians believe the real subject is the
community, the individual counts as a member of the community. Assuming the
individualis c nature of the contractors reveals a wrong idea of subjects and a
preference for liberal subjects. According to Rawls, the priority of the idea of jus ce
which corresponds to the idea of fairness as a ra onal value, but
Communitarianism said Rawls was wrong in giving priority to the idea of jus ce as
fairness, because in order to understand jus ce we need an idea of good. Rawls
fails to consider the social and tradi onal context.
- Marxist cri cism: why don’t the contractors choose a society without inequali es?
Rawls presupposes not only liberalism, but also capitalism as the natural system of
society. It could be shown that in order to reach the agreement Rawls included
elements in the original posi on which are not fair, inequality is not fair. Primary
goods are not neutral because they are the expression of a capitalist assump on.
He replied in a book called “The Law of Peoples” (1999), which is an a empt to theorize jus ce in a
much more globalised world. In the rst part he tries to explain be er his general method,
answering to the cri cism addressed to the premises. He said his a empt was considering laws as
they might be but man as they are in a real society, the capitalist one. He said his was a realist
utopia in which there were elements of reality.

3) Rawlsian results cri cism: Nozick cri cized the outcomes star ng from the inviolability of some
basic rights (private property). According to him, the di erence principle would represent a
pa ern principle, so derived from an abstract general model. A good poli cal philosophy should
be historical and non-pa erned. Pa erns can only be realized with great costs to liberty. Nozick
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 said there is a contradic on between the two principles of jus ce, it is impossible to follow
consistently both the liberty and the di erence principle. To give people liberty (nega ve) we
cannot impose any restric on on individual property holdings. The liberty principle rules out
the di erence one (distribu on of wealth), the desire to achieve the ideals of equality and
democra c control can put at risk individual liberty.
Nozick said that principles of distribu ve jus ce need to be defended in a historical way.
Rawls responded that the liberty principle does not distribute liberty as such, it is only concerned
with giving people basic liber es (freedom of speech). Rawls does not say that people should be
absolutely free from interference, so there would be no formal inconsistency between his two
principles of jus ce.
Rawls second reply was that in the abstract it is true that to regulate society with di erent
principles is necessary to reinforce redistribu on of property, but this could be done thanks to tax
revenues.
It is interes ng to note that when “The Theory of Jus ce” was published the world saw the
beginning of The Neoliberal phase. Unfairness and inequali es are persistent characteris cs in our
society, but since the 70s inequali es have grown considerately (Branko Milanovic).

POLITICAL PHILOSOPHY, J. WOLFF – CHAPTER 6 “JUSTICE FOR EVERYONE, EVERYWHERE?”

1) Gender jus ce
2) Racial jus ce
These are two aspects of what has been called iden ty poli cs a er the fall of the wall. Iden ty
poli cs is a kind of poli cs which aims to rehabilitate the iden ty of social groups previously
discriminated. We need to remember at least two features: it involves groups who don’t have the
general mission of transforming themselves into a majority (they don’t have an universalis c
objec ve they just want to end the process of discrimina on directed towards them) and it does
not claim only economic instances because it contains a culture of symbolic damage (feminism).
It would be unfair to claim that there is a pure pluralism of iden ty and not a pluralism of
contradic ons, today’s pluralism is one of interests. What we need to remember is that this type of
pluralism has increasingly taken the form of pluralism of iden ty. Intersec onality says that the
ghts concerning ethnici es, gender or class should be fought together. (Judith Butler)
1) GENDER JUSTICE.
The rst struggle feminism fought was the ba le for equal rights for women. We know that women
were excluded from vo ng in ancient Greece, in Rome up un l the 18th century regimes. The rst
me when women vo ng rights became a ques on was at the end of the 19th century. The ght
was very passionate in the UK and US, but it was only with the rst world war that these rights were
introduced. In Italy women had to wait un l 1945.
The conquest of women rights is recent history: manage money, choose a school, have an
abor on… are all contemporary struggles. Years of feminist ba le inside and outside poli cal
ins tu on were necessary in order to obtain these results. Un l the 1970s a woman in the UK could
not obtain credit without husband’s signature.
In contemporary European states we have formal equality, but what about material equality? It is
not enough to sa sfy demands of legal jus ce; women keep su ering all the forms of
discrimina ons. For what concerns workplaces it is illegal to have di erent pay scales based on
gender, but women s ll have lower wages for the same work with respect to men.
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 For what concerns families, the fact that women are the rst and responsible for the educa on of
young children is taken for granted. The a empt to combine professional career and household
chores has become a problem of double work for women. This contributes to the economic
authority of the husband. The asymmetry between the poli cal level of equality and the social level
of inequality needs to be solved.
Even according to norma ve poli cal philosophers, we need the construc on of the just state but
also a just society. If a policy of equal rights cannot achieve substan al equality, we have a dilemma.
Is it be er to ght for the recogni on of the equality of rights or the recogni on of inequality of
needs?
Dis nc ve rights have some mes failed to be a good strategy because of the fear that the
admission of gender diversity was understood and translated into a sort of gender hierarchy. The
rst feminist movements saw di erence as a nega ve thing. The ba les were fought to obtain
equality. The so-called di erence feminism has claimed that accep ng that a social group has
certain needs is not calling this group weaker, admi ng that women have special needs does not
give to them an inferior status. We then had a third post-feminist movement that ques oned the
features related to women and if they were really linked to biology. A good criterion to answer is
the di erence between gender iden ty, which is a historical and cultural category, and biological
sex. Gender roles can di er in a signi cant measure from society to society, gender di erences are a
ma er of social customs and jus ce. Gender is some mes perceived as a second nature, but there
is nothing natural about it. Gender roles are open to change. The transforma on between
maternity leave and parental leave is an example that social policies can be used to reconstruct
gender roles in di erent ways when these are seen as unfair.
There is another type of ac on from poli cal authority which is a rma ve ac on/preferen al
policies. A rma ve ac on is a general idea which aims to improve material gender jus ce and
means equality of opportunity. There are many interpreters who went against a rma ve ac on
policies because they consider them contradictory, they seem to discriminate even more. In a
meritocra c system every role should be reached by the worthiest, but the great sociologist Pierre
Bordieau teaches us that formal quali ca on is always derived by social condi ons and inequality.
A rma ve ac on should be considered as a way to compensate disadvantaged groups. We can also
claim that the idea of the a rma ve ac on would be a repara on of past injus ces, or we can say
that is a way to symbolize the idea that these groups are welcome.
A rma ve ac on tes es the fact that we live in an unjust world.

2) RACIAL JUSTICE

Even the no on of “race” is a historical no on but unlike the idea of gender, which has been
naturalized, the idea of race is quite a new inven on. In fact, it was invented during the me of serf
trade. If sexual di erence could be considered biological, the concept of race is a pseudo-scien c
no on. Racial discrimina on cannot be ra onalized. The no on of race has a powerful sociological
value, many people s ll act as if race were a signi cant category in society.
How can we deal with racial jus ce? Should our policies be designed as race-blind? Maybe we need
to provide a rma ve ac on policies, because if we remain at the level of formal equality, we would
not have a good level of racial jus ce. We have at least three main approaches to the problem:
assimila on, mul culturalism and integra on.
The assimila onist claim that everyone is welcomed in a state if he/she acts and thinks like people
of that country and respect its laws and customs, even if there are some elements which contrast
with their original culture. The mul cultural approach is more convinced in the fairness of
a rma ve ac on policies, mul culturalist want to pursue culture pluralism as such, they want to
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 welcome also the di erences. The integra onal approach does not focus on group rights for
minori es, but rather a mutual change in prac ces from na ve people and immigrants at the same
me. Integra on requires hard work from both parts.

9. 01/10/2020: Who should govern? Plato’s Epistocracy.

What is the di erence between government and state? In poli cal theory we don’t have a univocal
de ni on of the line that divides government and state, but usually forms of government are
dis nguished from forms of state.
The forms of state consider the rela ons among social classes and between poli cal and civil
society, ideological goals and historical and sociological characteris cs.
The forms of government pay more a en on to power organs which organize public authority and
ins tu ons. We have many forms of government.
1) ARISTOTELEAN POLITICS:
In Aristotle’s text we can nd three good forms of government: monarchy, aristocracy and
politeia. The bad forms are tyranny (degenera on of monarchy), oligarchy (few richest) and
democracy (anarchy or autocracy). The most tradi onal classi ca on depends on the number
of rulers: one in monarchy, few in aristocracy and many in politeia.
In Aristotle we have a descrip ve criterion and a norma ve criterion. This theory of forms of
government implies judgements of values, not only the comparison of di erent forms but also
ranking them. In a prescrip ve approach, the theory of governmental forms needs to
recommend one over another. The best form of government for him was politeia.
2) MACHIAVELLI:
In the rst chapter of the Prince we have the descrip on of two forms of government: republics
(aristocracies and democracies) and principali es (monarchies). In Machiavelli we have many
mixed forms, but he has substan ally a di erent approach. He has a realis c, descrip ve
perspec ve. Governmental forms should proceed from historical exis ng forms of government.
The essen al di erence is between the government of one physical person and the government
of a collec ve or assembly. This assembly should follow the principle of majority and in contrast
in principali es, the will of the one decides.
3) MONTESQUIEU:
He traced one of the rst theories of separa on of powers. He follows another trichotomy:
monarchies, republics and despo sms (government without laws). Even Montesquieu tries to
combine the realist and norma ve approaches. In his work we can nd di erent criteria of
poli cal obliga on, which change according to the di erent form of government present. In
monarchies you should obey the monarch for honour, in republics for virtue and in despo sms
because of fear.
4) GAETANO MOSCA (Vilfredo Pareto, Robert Michels, Weber):
These authors are some mes referred to as Neo-Machiavellians. Mosca founded the elite
theory (doctrine of the ruling class, eli sm) together with Pareto. The government is always
exercised by a minority of people and the dis nc on between the few and the many is the basis
of any poli cal regime. It would be impossible to di eren ate forms of government on the basis
of the rulers’ number; every government is an oligarchic government. We have di erent types
of government dis nguished on the forma on of the rulers and organiza on of the ruling elite.
Star ng from the forma on, we can have open or closed elites (Robinson and Acemoglu, “Why
Na ons Fail”), for what concerns the organiza on we can have autocra c or democra c elites.
Joseph Schumpeter was in uenced by the elite theory and believed that a democra c
government can be iden ed thanks to the con ict/compe on of di erent poli cal elites. The
Marxist idea of elites in Gramsci is another example of the legacy of the eli st theory.
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 Machiavelli was the core example for Gramsci, so he believed the modern prince was the
poli cal party. The elites are organized in par es.

DEMOCRACY.
Since the classical age, democracy has always been de ned one of the ways in which poli cal
authority can be organized. You can dis nguish democracy from other forms of government
because poli cal authority belongs to the people.
A very famous formula on by Lincoln said that democracy is government of, for and by the
people. Government for the people means that the government exists for the interest of the
people, but the problem is that this is not a speci c feature of democracy. Many Enlightenment
philosophers advocated a form of enlighten despo sm. The republican government is that
which aims to favour the community as such, but there is no necessity for democracy (Kant). It’s
possible to have a benevolent dictator or an illuminated monarch who tries to govern in the
interest of the people. We cannot de ne democracy as the government for the people as such.
So, we should say democracy is government also by the people, a form of collec ve self-rule.
Equality of par cipa on is fundamental.
Government of the people which means a government of human beings, not unanimated
beings. Ruling over servants or passive individuals would not be a democracy, it must be a
government of free people.
The posi ve meaning of democracy is only a recent fact, in contemporary poli cs democracy is
an assump on of good government. Democracy has been almost universally hated and
challenged. A recent explosion of democra c theories has changed this view, but for the past
2000 years it was seen as disastrous.
In the ancient Greece the term democracy was invented by the antagonist of the democra c
theorists. It was born as a polemical term; it was used to highlight the violence of this form of
government. The democra c system based on people’s assembly would be a system that
destroys freedom. Democra a (kratos=violence) the excessive power executed by the demos,
which people understood as a violent mul tude. That is why in the Aristotelean democracy is a
degenerated form.

The mot powerful an democra c argumenta on is to be found in Plato. Even Plato worried
about the ignorance and irra onality of the people and did not think they could govern. He
thought about the fact that Socrates was killed by a democra c government. Democracy is
worse than mocracy (mixture of oligarchy and aristocracy) but be er than tyranny. It is the
worst of the good forms and the best of the bad forms.
Plato is considered as an epistocra c thinker. He rejected the rule of many but advocates the
rule of philosophers-kings. In order to defend his perspec ve, he adopts the CRAFT ANALOGY:
governing is a skill aimed to achieve the common good and compare it with the skill of
naviga on. Government in fact derives from a Greek word which means to “guide a ship”.
Leadership is the capacity to guide others in one direc on: you need the ability of
understanding where the community has to go and mobilize it.
If we want to have a ra onal government, only a trained expert can pilot it. Expert rulers can be
found among philosophers who become kings or kings who become philosophers. Philosophical
training is fundamental for ruling. Not everyone can acquire such a skill.

What does Plato mean with the educa on of philosophers?

The cri cs of democracy start from the observa on that even in the most advanced democra c
countries, poli cal knowledge is limited and many mes incorrect. Very o en people
overes mate their informa on. Plus, among voters there is more sympathy for certain types of
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 poli cal op ons. The third point is that voter’s disinforma on is a perfectly ra onal
phenomenon, why should a single voter spend a lot of me to be informed if his or her vote
would have almost no in uence? Would the cost of vo ng be jus ed by the reward derived
from vo ng?
There are many arguments against democracy even today, which are in uenced by Plato’s
epistocracy and an -democra c a tude.
1) Democracy is irra onal
2) A revival of the cra analogy nowadays can be the image of the doctor. The governor
compared to the doctor. If you feel sick you might want to hear a specialist, you won’t
organize an assembly and choose the medicine to take out of the majority’s will. (Croce)
According to this line of thought government should be le to experts
3) Ins tu onal innova ons to revise democracy: plural vo ng, limita on of su rage to
selected voters, epistocra c veto.

- PLURAL VOTING: John Stuart Mill said that the risk of being governed by irra onal
masses can be diminished by introducing the correc on of plural vo ng (not
elimina ng universal su rage). Everyone has the right to vote, but the most
educated should have more than a vote. The problem is: who judges the judge?
Who controls the vo ng system assignment?

- LIMITATION OF SUFFRAGE: Accept as voters only those who possess certain

requirements. Those who use language correctly for example.

- EPISTOCRATIC VETO: proposed by Jason Brennan in “Against Democracy”. The idea

is that councils of competent people should be created and have the veto right on
the resolu on of representa ves, when these decisions are irra onal and
manifestly unscien c.

These examples iden fy the epistocra c trend, which is s ll relevant today.

Karl Popper in “The Open Society and Its Enemies” (1945) pointed at Plato and Hegel as the
enemies of liberal democracy. So, there is an an -epistocra c trend as well.
Plato has at least two great problems. The rst one is how to avoid that guardians tend to be
corrupted and the second problem for which Plato’s system does not give enough informa on is the
selec on of rulers.
1) What is the limit for the guardian from turning the power he has to his own private advantage?
He does not comfort us that we have expert rulers, because they are also experts in
corrup ons, so it will be be er to have a government of incompetents.
The more general ques on is: who controls the guardians? Plato underes mated the problem.
Guardians should be placed in a posi on which minimizes the opportunity of corrup on. In the
design of his Republic, the philosopher-king is not allowed to private property. The posi on of
authority should not be an a rac ve posi on from the material point of view. But if the life of
the guardian is not of great wealth why does he agree to rule? Guardians agree to rule not for
external gains they would obtain, not for the intrinsic value of ruling, they would do so because
they fear of being ruled of the others. They want to avoid democracy, so they accept to govern.
But what happens if the guardians decide to violate the law on private property? What if they
change the law? The idea that the cons tu on can be changed is a menace to the guardians’
ruling. A history of cons tu onalism was built in the 20th century to prevent the excesses of
powers and following the experience of totalitarianisms. Anyway, how are the cons tu onal
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 codes formed? The power derives from the democra c process. Plato’s model does not prevent
the risk of corrup on, there is no assurance.

2) The second objec on to Plato’s program is the ques on of how guardians should be selected.
He said they could be selected from an early age and undergo a serious process that will allow
the selec on of the best. Pierre Burdieau said that a social system can be both meritocra c and
unfair (unjust condi ons, social privileges).

The real weak point of the epistocra c model. Plato defends a system of light dictatorship and
claims that rulers are the only ones who could govern for the people. Even if the dictator wants
to act in the interest of the people, how would he be able to know what those interests are?
Plato believes that guardians are benevolent and also experts in knowing the good for the
community. There are many counterarguments, for example that philosophy is not the type of
knowledge necessary to understand people’s needs.

Let’s admit that governing requires certain skill and that the guardians really want to govern for
the people, in democracy we have the answer. By vo ng, people select the poli cal op on that
they prefer. The cri cs of democracy say that in the electoral moment people do not express
their real interest but manipulated opinions (“Against Elec on”). Even in a non-democra c
system, you can have forms of public consult. The answer in order to defend democracy is not
the vo ng as a means of expression, because it is an instrumental jus ca on. Democracy can
be defended not for its instrumentality of something external to it, but for its core values.
Democracy expresses values, maybe its not good for the results but it has freedom and equality.

10. 06/10/2020: Direct and Representa ve Democracy.

DIRECT DEMOCRACY is the real concrete par cipa on of all ci zens in each poli cal decision. It is
considered impossible, a utopia.
REPRESENTATIVE DEMOCRACY is when people vote for their representa ve who discuss and decide
laws in the name of the na on.

ROUSSEAU.
He considered representa ve democracy as an elected tyranny, because representa veness and
democracy cannot exist at the same me, it is impossible. Rousseau can be thought as a direct
thinker, but in what sense?
He believed the sovereign power (legisla ve) belonged to the people who choose to exercise it
directly in an assembly. The form of state is democra c, not the form of government. He was a
republican theorist. In his words, the de ni on of a republic is a state governed by laws made by
the people. Sovereign power should be of the people and the legisla ve power should be exercised
directly by them. Sovereignty is the legisla ve power directly exercised by the people; sovereign can
act only when people are assembled (popular assembly).

● IDEA OF GENERAL LAW: collec ve will oriented to general/common interests

● GENERAL WILL: oriented to the interest of all/common good VS WILL OF ALL: sum of the individual
par cular wills (egois c perspec ve)
● GENERALITY OF THE GENERAL WILL: consider the object and the source of the will – both the object
(common good) and the source (involving all the ci zens) are general
● VALUES OF GENERAL WILL: equality and liberty.
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 - EQUALITY: social, economic and poli cal equality. Large inequali es must be absent
because class inequali es inevitably lead to opposed material interests, which will
result in no common general will. Luxury is cri cized because it leads to corrup on.
Social classes should not be eliminated but weakened because no one should be so
rich a to be able to buy votes and not as poor as to be tempted to sell it, laws in
favour of rich money in uence the general will. Society must be made by pe te
bourgeoisie (li le property owners). A true egalitarian society enables the
individual to understand the general will.
Rousseau was against par es because he considered them as fac ons pushing
par cular ideas and create an obstacle to the recogni on of the general will.
- UNITY OF STATE and FREEDOM: Rousseau tries to merge the two concepts. He
wants an egalitarian society with no par es where people enjoy POSITIVE
FREEDOM, so they should obey the self-prescribed law and have a certain degree of
self-consciousness.
- EDUCATION: everyone can acquire the proper skills and can take an ac ve role in
the sovereign. People used to learn to consider one another as brother and respect
one another. Civic educa on can be realised through a legislator and a civil religion.
The legislator is a mythical gure which has both a cogni ve and a ec ve func on
(ra onal and emo onal), which role is to clarify the general will and encourage
people to act in accordance to it. Good poli cal ac on presupposes making people
see the objects as they are: understand your real interest which is not your
par cular one. The legislator supervises poli cal life and knows all the human
passions but does not share them.
- GOOD COMMUNITY: good manner, opinion (given by the general will) and costume,
which is the key factor to have good laws.

CIVIL RELIGION.
Every ci zen should believe in some religion in order to transform the object of love in a duty. Atheism is a
danger for the community. How can someone who does not believe in anything be a good ci zen?
Plurality of religion in a community should be tolerated only if the religion in cause is tolerant. Intolerant
religions should be avoided. Religion shows sen ments of social beings.
CRITICISM.
There is a risk of totalitarianism in the idea of general will, which is absent in the liberal tradi on. The
answer given by Rousseau is the consolida on of the concep on already in the community. One can be
forced to be free. Freedom creates a community which is based on ra onality.
ROUSSEAU AGAINST DEMOCRACY.
The separa on of power. The execu on of the laws is not the business of the sovereign but the
government. According to him, a best form of government does not exist because it depends on the
poli cal, historical and cultural condi on of the me being. Aristocracy is an abstract term and situates
between despo c monarchy and impossible democracy. It is best for large state monarchies.
He is fundamentally against democra c government. Representa ve democracy (delibera on which
involve all the community are taken by people elected for this purpose regardless of whether the body of
work is parliament) does not mean parliamentary democracy, because it can also be a presiden al one. The
problem is: how does x represent y? what is x represen ng?
There are di erent answers. Either in the role of delegate or duciary. A delegate has an impera ve
mandate, a duciary no.
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 The deputy or the senator are duciary, with a certain level of independence from the electorate. It tries to
represent the general interest of the community, not a speci c sector interest. The forma on of the
territorial modern state which centralizes public administra on the common believe is that forms of direct
democra c governments were impossible, or par ally possible in small states.
In the US since the mid-19th century we have a representa ve government, which is the de ni on that can
be found in “THE FEDERALIST PAPERS” published under a pseudonymous in 1787 (James Madison,
Alexander Hamilton and John Jay) wri en to convince the people to ra fy the US cons tu on. They use the
same term used by Rousseau but give to it a di erent meaning: they wanted a formal representa ve
government (not a formal direct state). The founding fathers did not want their government to be confused
with the democracy of the ancient. Madison argued against the direct ancient democracies and s ck with
the an -democra c trend. In the federalist n 10, Hamilton considers direct democracy one of the most
chao c forms of government. The di erence is delega on of power and the great sphere of where it could
be extended. There is a necessary link between the republic and the territorial dimension of the state. The
only non-autocra c form of government is representa on. The importance for the modern republic of the
no on of rights of property, where we nd the legacy of Lockean tradi on.
How should the modern representa ve government be organized?
John Stuart Mill and Aleksey de Tocqueville (“Democracy in America”) are two of the mot signi cant liberal
thinkers. They believe that between direct and representa ve democracies there is no opposi on in the
strict sense. Representa ve democracy is the only way in which democracy can survive in the modern
world. What is important is that the power is in the hands of the people, if it’s direct or indirect it does not
ma er.
How can we defend representa ve democracy from a theore cal point of view? Can we do it just for the
impossibility to have direct democracy?
The idea of Mill is that they are to be judged based on their e ects, whether they improve ci zens form a
moral, intellectual and economical point of view. It’s easy to see the advantages of representa ve
democracies compared to good despo sm, because the la er leads to passivity and inac on. In a state
governed by a benevolent despot people do not need to educate themselves. Human and economic
progress is possible only in condi ons of individual independence. All ci zens must play a poli cal role,
since many problems are present even in the representa ve model, because there is the risk of elec ng
un t people. The real interest of people can be mistaken, if the majority rules the risk of errors in the
elec ve process can be very high.
How can we protect democracies from un t rulers? How can we prevent the bad behaviour of the voters?
Many people can be mistaken on what their real interests are.
One idea to prevent this is the public educa on one. Mill believes that educa on to civic virtue does not
occur thanks to civil religion or the legislator, but thanks to par cipa on in public business. Popular jury
service, par cipa on in local governments is an important aspect. In order to become able to self-rule
people need to get involved in poli cal ac on.
Another device that could be used to solve the problem of the un t is the epistocra c veto or the limita on
of the su rage or plural vo ng. Wol notes that there is a sort of tension in Mill’s thought. Mill gives for
certain that people with one vote should accept and understand that they have one vote. But if the majority
is less educated, how can they understand it? Plural vo ng would be unnecessary if people are su ciently
educated or it would be unjus ed if people are not educated at a level to understand it.
The idea of direct democracy has never completely died. It survived in radical poli cal groups of the 60s but
even today. Ilvo Diamante de ned contemporary democracies as hybrid ones, meaning that current
democracies contain elements of both the representa ve and the direct method. The disintermedia on of
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 current poli cal sphere has never been higher, in order to par cipate to the poli cal sphere, you do not
really need the media on of par es, we have social medias.
The di culty to combine the virtues of the two models persists. Direct democracy risks to lead to the
restric on of freedom, whereas representa ve government risk to sacri ce poli cal equality, because of the
presence of par es and oligarchizing of poli cal bodies.

11. 07/10/2020: Sovereignty before/in/a er Bodin.

The no on of sovereignty. The immediate connec on with our daily life is that of right wing sovranists. They
stress the opposi on of na onal sovereign state and forms of suprana onal integra on (EU). This arises
from the su erance given by representa ve democracies and open socie es.
In some ways we can claim that the state is composed by three cons tu ve elements: a subject (people,
their representa ves), an object (territory) and the power rela ons between them. This is called
sovereignty, the supreme legi mate authority. It is easy to recognise the relevance of this no on;
sovereignty is indicated in the rst ar cle of the Italian cons tu on. We have also external sovereignty in
the UN and its interna onal legal order.
The French jurist Jean Bodin said that sovereignty is the supreme legi mate authority, but supremacy in a
given hierarchical poli cal order. The term derives from La n SUBERANEUS, which means something that
stays above something else. It is a very physical term because it de ned the mountains, but also the power
of God. It is only in the 13th century that it acquires a poli cal meaning. The Pope, the Emperor, the King all
received legi macy from God, since God was the unique sovereign the order of sovereignty was strongly
contested. There were serious quarrels. Summa Potestas was God’s authority and secondly shared by
earthly rulers, but it was not con nua ve. Sovereignty did not iden fy an abstract and uni ed concept, in
the Middle Ages there were concrete distributed sources of power. Sovereignty was distributed among
orders. The idea of territory as homogeneous is modern too. No king was superior to the others, nor to the
Pope. People of the same territory could be subdued to various lords and laws.
Summa Potestas was limited. From Giles of Rome the Emperor was limited by the Pope, for Marsilius of
Padua the Pope was limited by the kings, for Dante they both limited themselves and had di erent powers.
Sovereignty was limited by natural and divine law, but limits to poli cal authority were made by customs,
legal a ribu on to classes and parliaments and each poli cal authority had a legal framework to respect.
Poli cal authority had to follow legal guidelines, otherwise there were tyrannical regimes.
The task of the sovereign in the Rousseaunian model is to make universal laws (legisla on), the task of the
medieval ruler was just to interpret the laws. The medieval jus ce just applied the customary law
interpre ng natural law. The law is applied by the sovereign, but not created by him. The func on of
founding the law precedes the func on of inven ng the law. The etymological sense of inven o is nding or
discovering something which already exited.
Historically there were con nuous disagreements over the holders of the sovereign authority. On how to
interpret the limits of the law ecc. The juridical order had the order to re ect the divine order of the
cosmos, the system was God-given and unchangeable. Both protestants and Catholics claimed to be the
only right interprets of the divine truth and they were ready to kill the ones who went against it.
Sovereignty emerged from the collapse of the juridical order of the Middle Ages and from the emergence of
the new poli cal ins tu on called state. Bodin uses the term Republique, not state. The term state was
used by Machiavelli and Guicciardini in the 16th century.
Bodin was born in 1529/30 when the wars of religion started in 1562 un l 1598 (more than 30 years of civil
wars). 1572 Saint Bartholomeus day a wave of Catholics assaulted the Ugonots. There could be only one
public faith. In this context we have to understand Bodin revolu onary thought. The increasing civil con ict
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 lead to the contesta on of the premise that in a state we can have just one faith. He belonged to the
“Poli cians” because they suggest a poli cal solu on to the religious and civil con ict. Bodin was the most
sophis cated among them, for him in order to restore domes c peace against the reality of civil war and
anarchy a new form of poli cal authority was necessary. A secular order that would allow opposing fac ons
to coexist in the same territory by alloca ng faith in the private sphere of the single individuals. Against the
risk of atheism, tolerance was the only solu on.
In 1567 Bodin published the “Six books of the Commonwealth”: his immediate goal is how to obtain
internal peace and unity of the state. To obtain it, Bodin reconceptualises sovereignty as the core concept of
the state. Thanks to him it becomes a rela vely abstract concept, which will become even more abstract
with Hobbes. Plurality of holders of sovereignty was transformed into unity thanks to the decisive
interven on of sovereignty authority. The republic can be founded only thanks to the no on of sovereignty.
For Bodin sovereignty means supreme authority with three main features: perpetual, indivisible and
absolute (but not fully secular).
The perpetuity of the sovereign power lays in the independence of the power from the person who
temporarily embodies it (impersonality).
The indivisibility of government means that the sovereign must be unique, but the form of government can
be whatever you want. What is excluded is a mixed form of government, sovereign must be indivisible,
par al sovereignty is no sovereignty at all. For Bodin, the best form of government was the monarchic one
because it suits best the purpose.
Absolute because the exercise of sovereignty cannot be restrained within its territory by any independent
agent. It is absolute in the sense that ci zens cannot restrain the law, but not absolute in the sense that it is
bounded by natural and cons tu onal laws (which protect private property rights). Bodin s ll belongs to
the classical world.
So, what is the essen al role of the sovereign?
No longer law inven on (interpre ng) in the ancient sense, but law making in the modern sense. The power
of making laws is the main preroga ve of sovereignty, which includes all the other preroga ves. Supress
already exis ng laws and create new ones. No power or laws should be le to the Church. According to him
there are natural and cons tu onal laws which shouldn’t be changed. Absolute sovereignty recognises only
God as above himself.
In order to have a state you need to have monopoliza on of legi mate violence. The state must be just.
HOBBES
What is really important for Hobbes – individual rights are transferred not directly in the sovereign, but in
the state as a juridical person. The state becomes capable of ac on only because it iden es with the
physical gure of the sovereign.
Hobbes’ sovereign is much more irresis ble (it obliges people to obey) than Bodin sovereign. The more the
state is jus ed from below, the more the sovereign power is absolute. The consequence of the
contractualist jus ca on of the state is that the limits of the sovereign disappear. The individuals have
surrounded their natural rights to the sovereign, and none can dissolve the social pact thanks to which the
state has been created. In Hobbes we have both natural rights and posi ve law, which is decided by the
sovereign. The sovereign power is absolute and absolu st but not arbitrary, because state laws are the
outcome of collec ve ra onality aimed at respec ng the supreme value (peace).

LOCKE
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 The idea of supreme sovereignty carries the risk of absolu sm. The liberal tradi on has always looked with
scep cism to the modern concept of sovereignty, liberal thinkers have been worried. They are hesitant and
reluctant in using the term. Even Locke preferred to use “supreme” power instead of sovereign power. The
powers conceived by Locke are legisla ve e, federa ve (power to establish peace or declare war) and
execu ve.
The legisla ve power would be the supreme power of the state because in this power we have the
representa on of the will of the people. He believes supreme power is perpetual in ins tu ons, but not
perpetual in people. he believes the legisla ve func on is divisible and shared between the king and the
parliament. He also believes the supreme power is not absolute but limited and needs limits given by
natural rights of individuals. Security and private freedom are important. If the state violates natural rights
individuals maintain the right of resistance to power.

ROUSSEAU
His goal is to guarantee the unity of the state and poli cal freedom. Sovereignty belongs to the people and
cannot be alienated to a representa ve body. It is the ac ve aspect of that community originated thanks to
the social contract, where the ci zens are both sovereigns and subjects. Since sovereignty is not delegated
to a representa ve the risk of heteronomy (being ruled by others) disappears. Sovereignty expresses
freedom because it is possessed by the people collec vely and directly. It is inspired by the general will.
Sovereignty expresses not only an instrumental u litarian ra onality but a substan al ra onality that
consist in public morality. Because the general will coincides with the will of the community.

12. 08/10/2020: Internal sovereignty. (internal to the cons tu onal state)

Sovereignty is an ambiguous concept because it has an external and internal aspect, it has two faces
directed inwards or outwards.
In Bodin’s work the role of sovereignty is law making, whereas the external func on is peace or war making.
What about the limits? Internal ones are derived from the rela on between rulers and ruled – external
derived from the rela ons among di erent states.
The idea of internal sovereignty linked with the cons tu onal state arose with the two revolu ons:
American and French.
What is the cons tu on? What is its role?
It is the way in which the society regulates the coexistence of di erent public authori es, the
comprehensive regula on of a poli cal community on a few general principles. Since the end of the 18th
century the cons tu on is usually embodied in a wri en document, but for instance in the UK IT is more a
collec ve name for principles established by poli cal development and jurisprudence in a long-accepted
tradi on.
What are the main consequences in terms of sovereignty of the development of the cons tu on in the
forma on of a state? The basic characteris c of sovereignty is supremacy remains una ected by the
transforma on if the state into a cons tu onal one. The two elements which were threatened by the
cons tu onal state advent were absoluteness and indivisibility.
The idea of absolute sovereign changed because the cons tu onal state opened the ques on on the
holders of sovereignty and its division into di erent organs. Sovereignty’s holders are divided from those
who exercise sovereign power, it must be separated. According with the cons tu on in the na on the
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 people are the holders of sovereignty but not its executors. It’s di erent to have popular sovereignty,
na onal sovereignty and state sovereignty.

POPULAR SOVEREIGNTY.
The idea of popular sovereignty is one of the most typical elements of the poli cal discourse of the US.
During the rst part of the 18th century, Aleksey de Tocqueville wrote that if we want to understand US
poli cal system, we need to understand popular sovereignty. Sovereignty is the basic no on of the
cons tu on, which became the law of the laws. The two fundamental documents: Declara on of
Independence and Cons tu on.
The independence of the American colonies was a result from a con ict with UK (“no taxa on without
representa on”). The debate on taxa on raised the problem of the divisibility of sovereignty. Should or not
English and American Parliament claim authority over the same territory? Both answered no. For the
English parliament they had the supremacy, while in the colonies they thought they were the only one with
the right to rule.
Then in 1776 we have the Declara on of Independence in Philadelphia; we assist to the transfer of
sovereignty from the English parliament to the American one. A few years a er, sovereign is rede ned
during the cons tu onal debate. Are the parliaments of the new free American state prepared to delegate
their sovereignty to a stable confedera on? Here we nd the problem of the divisibility of government.
James Madison was the leading mind at the conven on and struggled against the doctrine of the
indivisibility of sovereignty, the US had to make decision binding the member states. According to him, the
outcome could only if the confedera on transformed into a state and give to it a cons tu on. The obstacle
of the forma on of a common conserva on was the idea of sovereignty. The independent and free states
were sovereign states. Should their sovereignty be devoted to the central state?
Madison used popular sovereignty to solve the problem. Sovereignty belong to the people, not to the state.
The people of the united states, of all the free and independent states. Here we have the founda on of the
American people. Madison invented the sovereign American people. now people are the permanent
poli cal agent.
Dividing sovereignty at least in two sense: division between the holder and the executor (public
ins tu ons), and secondly a fragmented sovereignty between the federal states and the central state
(presidency, parliament and supreme court).

NATIONAL SOVEREIGNTY (popular sovereignty in a general sense)

French revolu on had di erent adversaries and di erent goals with respect to the American revolu on,
which was against the English empire to have an independent government.
The French one was on the inside, they wanted to change the legi mate basis of the form of government.
Contractarian theorists an cipated the French revolu on, which eliminated all the exi ng intermediate
bodies and united all the powers in a uni ed state authority.
The problem of holders in the French case: sovereignty was transferred from the monarch to the na on.
Na onal sovereignty is a more abstract concept, a collec ve subject made up by past and present
genera ons. A stable subject who involves all. The idea of na onal sovereignty is focused much more on the
intergenera onal subject which is the na on. It is an extra-cons tu onal idea.
The problem of indivisibility and inalienability remains because it is indivisible, it is in the na on
(Rousseau).
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 Emmanuel Joseph Sieyès formulated an important division between cons tuent power (belongs en rely on
the na on, it cannot be alienated nor transferred) and cons tu ve power. The cons tu on marks the end
of the cons tuent power. Sovereignty is indivisible in the holder, but the holder is conceived as a
cons tuent power, represented by cons tu ve powers. We have a fundamental change in the why in which
the monarchy was legi mized.
The monarch received legi ma on from the cons tu on prescribed by the people, the king is a
representa ve appointed by the cons tu on and parliament. The sovereignty is s ll of the na on. Do we
have another way of the cons tu ve power?
Material limits to the legisla on process: you are en tled to legislate but cannot disrespect some limits. In
French history we have formal limits (separa on of powers). The separa on of powers does not contradict
the indivisibility of sovereignty, because they are just cons tu ve powers which follows the will of the
sovereign, the na on.

STATE SOVEREIGNTY
German and Italian histories represent a special case because the uni ca on took place from above, not
thanks to a revolu on. A er the Congress of Vienna German state gave rise to a confedera on of federate
states. The monarchs were the sovereign within the state but started to write cons tu on voluntarily.
Italian “Statuto Alber no” (process of cons tu onaliza on of the state) of 1848 which later became Italian
cons tu on in 1861 had a similar path. German and Italian monarchs could not revoke the cons tu on
they had redact. They remained sovereigns but they were no longer absolute. They were the holders of
sovereignty, but they freely bounded themselves with the limits of the cons tu on.
With the German 1871 O o von Bismarck preferred to suppress the idea of sovereignty and decided not to
involve it. The German cons tu onalism was founded on it un l the signature of the Weimar cons tu on.
In Weimar cons tu on there is the legacy of a strong debate on the no on of sovereignty. In cons tu onal
regimes sovereignty is always limited.
Italy and Germany were di erent because they cons tuted themselves in unitary states and the process of
uni ca on and cons tu on was realized. They had opposite modali es with respect to France and US,
because the uni ca on takes place from above. Italian Risorgimento was a sort of passive revolu on for
Gramsci. During the uni ca on period in both states there were several princes and areas of in uence.
The holder of sovereignty is the state, the rst thing to take into account is Hegel’s posi on: in 1821 he
published “The Elements of the Philosophy of Right” where he argues that the holders of sovereignty is the
state, his concepts was nothing but an idealiza on of monarchical sovereignty. The monarch should be the
holder of sovereignty because he manifests the power as the state (as a legal person).
The history begins with Hegel, but the meaning of his expression was monarchic sovereignty. In 1857
Edward Albrecht claimed that state sovereignty was a third op on in the con ict between na onal ad
popular ones, because it situated in an abstract posi on. The state is the supreme authority. The state
became a legal person, where the monarch is an order of the state. The development of this idea can be
found in “The General Doctrine of the State”. The third step in the process of conceptualiza on of state
sovereignty was “Allgemeine Staadtslehre” (the general doctrine of the state) and some names Paul Laband,
Georg Jellinek, Vi orio Emanuele Orlando and San Romano. Their aim was to build a new autonomous
discipline and tried to give a scien c quality to the construc on of the state order. Sovereignty understood
as a formal juridical concept is the essence of the state understood as a legal person. Sovereignty is in the
state and from the state.
The idea is best expressed in Hans Kelsen. He agreed with the idea of state sovereignty but for di erent
reasons: he thought the state was not a juridical person but the maximum level of the concept of legal
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 order. Sovereignty acquires the highest idea of abstrac on with him. The Kelsenian idea can be seen in the
jacobine moment. The state in order to be a real one should be just and legi mate.
The ques on of divisibility of sovereignty (Ca aneo) caused a strong debate in Italy and Germany. There
were those who believed that it could be shared between central state and federal ins tu on and those
who wanted to appoint all of it to the state itself. The second posi on held by Georg Jellinek and the former
by Hans Kelsen.
Jellinek believed that sovereignty was not an essen al feature of the state power, but it would have been
unhistorical to eliminate it from public role. Sovereignty is able to guarantee limits to its exercise (individual
rights and territorial rights). State has the monopoly in the use of authority and exclusive capability of self-
determina on, the division of powers (formal limits) even between the central and member states does not
a ect sovereignty. Even if we have this division, sovereignty is a way of self-limita on (legal force). This idea
was developed by Kelsen.
He believed that both the central and member states were par al system which were under a suprana onal
order of state, the federal state. Sovereignty is then the power to distribute public powers, the authority to
distribute public authority. Par al authority to par al system. Sovereignty remains but it is distributed, yes,
it is supreme but, in the sense, that it distributes power.

In cons tu onal states sovereignty remains LATENT. It is not absent but latent. In the cons tu onal state
sovereignty becomes invisible. Today the holder of sovereignty in the Italian cons tu onal state is the
people. Popular sovereignty is not an empirical truth, it’s a juridical ascrip on. The sovereign people remain
an abstract subject in the a ribu on of arms of public authority. It has though a prac cal signi cance,
because it implies that the excesses of public authori es are accounted to the people. Gaetano Mosca
believed that sovereignty was nothing but a means, a poli cal form with whom power elites form their
power.
The most in uen al objec on to this vision of sovereignty has been made by a German jurist member of
the Nazi party, Karl Schmid. He believed that sovereignty could be experience no in normal circumstances
but only in me of crisis. In this case it revealed upon cons tu onal laws. There is a fundamental ambiguity
in his quota on: one interpreta on is that the sovereign decides what the excep onal case is and the other
is that the sovereign decides how to deal with the excep onal case. Some scholars said that Schmidt meant
this ambiguity and that sovereignty means to decide both things. Sovereignty is a cons tu on unmaking
power, a form of des tuent power. He does not give this power to the people because they cannot act in
general and especially in mes of crisis, it belongs to the ruler who legi mize him/herself through
successful ac ons in crisis. This idea is important because he tried to underline that poli cs is not a business
of ra onal calcula on, but a complete crea ve act which builds order out of nothing. It has to do with the
intrinsic irra onality of the world and nihilism.
Schmidt is much more decisionist than Hobbes, Hobbes was the rst poli cal author that reduces poli cal
decisions to the law. Poli cs implies energy according to Schmidt. Poli cs has to do with con ict and
decisions. The in uence of Weber was in the importance of the poli cal con ict in Schmidt’s thought. In
order to obtain success in poli cs you need to ght and made good decisions.
Schmidt’s posi on was relanced in recent years at the end of the 70s by Italian le -wing philosophers like
Maramao, Cacciari and Agamben. According to Agamben ?? would be dispropor onate to the gravity of
Covid-19 and the result of a precise but hidden ra onality. Poli cal control over the popula on is increased
using the Covid-19 as an excuse. Imposing restric on on public freedom can be excused by the sanitarian
protec on. “The state of excep on” implies a concentra on of sovereignty above the cons tu onal laws,
an arbitrariness in the name of necessity. The state of excep on has become the rule for him.
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 Roberto Esposito and other cri cs replied that what we are experiencing is not a state of excep on but a
state of emergency. While excep on is decided by a sovereign will, the emergency is determined b the
objec ve need to protect the country by menace. The state of excep on is used to break the rule and
create a new order, the state of emergency is used to return to normal situa on (Re-establishing the order,
not changing it). The state of excep on presupposes the UNDOING of the cons tu onal system, the other
the stability. The state of excep on provides freedom of means and also ENDS of power, the other provides
power in order to return to normality, the end is established.

13. 13/10/2020: External sovereignty.

Bodin and Hobbes reconceptualized the concept of sovereignty in order to answer to the problem of
religious civil wars. Their philosophy produced an epochal transforma on because it was essen al for the
forma on of the sovereign state.
The idea that the state has at least three fundamental elements: people, territory and sovereignty. Territory
is a state appropriated by poli cal power (“The birth of territory” by Stuart Elden = a territory is the spa al
extent of sovereignty). Every state exists among others in an interstate system. One of the e ects generated
by the forma on of territorial states is the external and internal dis nc on. We can dis nguish between
na onal and foreigners. The sovereign can be considered such if it can be the internal and external
sovereign. It’s not enough to be the highest ruler in the na onal state, but he has to had freedom from
subordina on from other rulers. If both aspects of sovereignty are sa s ed, then we can say we have a real
ruler.
The interna onal legal order is dated to the Trea se of Westphalia in 1638, which closed the 30-years-war.
These trea ses opened the process of forma on of autonomous and independent states whose sovereign
was mutually recognised among all. The current historiography tends to postpone the birth of the interstate
system to the end of the Congress of Vienna. Even if it is quite new, the concept of external sovereignty
remains much more stable than the idea of internal one.
GRIMM, PAGE 62:
1) States are the unique subjects of interna onal law: people and material objects are protected by
the state which they belong to. The modern interna onal law refers to the external rela onship
among states, perceived as a person. These states are all sovereign states unless there is a higher
order above them, which is impossible.
2) States are formally equal to one another: the recogni on of sovereign equality is fundamental.
Scholars tend to speak about domes c analogy, which is that the natural equality in the state of
nature can be transferred to the posi on of the state in the interna onal system. They have the
same right of making war and peace. States in the interna onal arena are equal in sovereignty. We
have to admit that this is more a theore cal idea than the descrip on of a historical reality. It does
not eliminate economic and poli cal inequali es.
3) States are free to exercise their internal sovereignty as they feel like: they have the right of internal
self-determina on. Internal law is not considered in the interna onal order, how they state treats
his subjects is irrelevant in the interna onal level (as to Westphalia peace).
The state is then a unique, equal and free subject of interna onal world. the consequence is that interstate
legal order can be based on the coordina on among di erent sovereign states and not subordina on.
Interna onal law regulates these rela ons between states thanks to custom and tradi ons (that have
become binding) and thanks to reciprocal agreement (interna onal trea ses).
Interna onal law consists in customary law (shared belief on what law is) and laws developed by
interna onal agreements. Contractual bonds are self-imposed, states choose voluntarily to subscribe
agreement with others.
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 There are at least two main legal precepts: PACTA SUNT SERVANDA and INTERVENTION IN DOMESTIC
AFFAIRS IS PROHIBITED. Otherwise sovereignty would be abrogated. If the rst legal precept is not
respected than the second one collapses too. If a state does not respect the agreement, then the
interna onal order is allowed to interfere. This implies right to war. This does not mean that all wars are
lawful. Here we have the theory of JUST WAR.
Historically, this theory was ini ally supported by Saint Augus ne: war can be legi mated (legality and
legi macy of war). In the modern world belligerence was the enemy of this theory. Just war theory is an
intermediate theory between paci sm and belligerence. If you have just wars, you also have unjust wars.
It’s an a empt to establish the legi macy of wars. The condi ons under which states are allowed to start a
war or respond to it. IUS AD BELLUM. The war must not only be legi mate, but also legal (IUS IN BELLO –
managed according to certain rules). Michael Walzer is the most prominent author on just war theory
today.
IUS IN BELLO.
Civilians had the right to be respected and protected. Military a acks must be directed towards military
targets. It is absolutely forbidden to kill an opponent who has surrounded and to use weapons which can
cause super ux vic ms. Torture must be forbidden, and sick prisoners must be cured. Fighters captured had
the right to be respected.
IUS AD BELLUM (legi macy of war).
One is a defensive war and one is the puni ve war. They share a point: they are both the answer to a wrong
(sanc oning the viola on of agreements). This idea is well expressed by the Spanish jurist Francisco de
Vitoria who wrote “there is a single and only just cause for a war and that is a wrong received”. The basic
legi macy of a just war is a just cause. But the theorists of just war have always debated on the nature of
these causes, there are more or less demanding theories. Scholars try then to iden fy addi onal condi ons
for having a just war, which go beyond a cause.
Just causes can be speci ed in many ways, one can be right inten on: when a state has the moral aim to
secure a just cause. The second jus ca on is last resort: they may ght only if they tried all other
diploma c nego a ons, state must demonstrate that they had tried all other ways. A state may not resort
war if it can foresee the solu on of the con ict. The fourth speci ca on is propor onality: only if it is
propor onate to the wrong su ered.
Just war theory has been frequently de ned in the analysis of the judicial process. The war would have the
purpose of re-establishing the o ended rights. Where is the di erence? The judgement on the is entrusted
in the same par es involved in the con ict. This is the di erence between just war and judicial process. The
consequence is that the war could be considered just on both sides, each party can consider the war just at
the same me. Even if we admit that there is no doubt about who is right and wrong the war does not
guarantee victory would be of the right side. Victory is impossible to give to those who are right.
While the judicial process is organized in a way that those who are right tend to win, in war the result is
uncertain and impossible to determine, so the wrong side may win and jus fy the war with the victory.
Using the idea of protec on of humanitarian rights can be a reason to jus fy war.

The di erence between the 2 IURA is clearly expressed in Kant (“Metaphysics of Custom”) and tries to go
beyond the dis nc on theorizing the idea of IUS POST BELLO. He adds a dimension to the idea of just war
theory, that there is a right that arises in the me of peace trea es and it is the right of establishing the
right condi ons under which establish peace and maintain a las ng peace. His cosmopolitan view was
theorised in an essay tled “Perpetual Peace” in 1795 where he argues that in the state of nature
represented by the interstate westphalian system the di erent states would nd themselves a ected by
war. The two iura were not enough because of the risk of domes c analogy, that’s why he tried to outline a
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 program to achieve and preserve peace. There are 6 preliminary ar cles that include the prohibi on of the
right of preparing law and subscribing this, states would form a safe community where the risk of military
con icts would be strongly reduced. The three de ni ve ar cles where he tries to explain the basic
assump on for having stable interna onal freedom and peace:
De ni ve Ar cles of a Perpetual Peace Between States «1st ARTICLE:
1) “the Civil Cons tu on of Every State shall be Republican». The state should have a form of
cons tu onal state where powers are separated and there is equality of ci zens before the law and
despo sm is prevented. He rede ned internal sovereignty.
2)
«2nd ARTICLE: The Right of Na ons shall be based on a Federa on of Free States». It aims to
rede ne external sovereignty. In the Perpetual Peace Kant speaks about a federa on of free states
but other mes he wrote States of Peoples. This ambiguity has generated three interpreta on: one
is that his solu on would be a confedera on of states (a permanent, poten ally universal and
congress), the second is that it would be a world spread federal state and the third is that it would
be an intermediate form between the two. States cannot be the unique actors of the interna onal
system.

3) «3rd ARTICLE: Cosmopolitan Right shall be limited to Condi ons of Universal Hospitality». It
concerns both internal and external sovereignty. He introduces the obliga on of the state to
recognise that every human being has the right to visit a foreign country without being treated with
hos lity. Each human being possesses the legal status of CITIZEN OF THE WORLD. Cosmopolitan law
precedes na onal law. States are not completely free of internal self-determina on because they
have to respect human rights.

14. 14/10/2020: Sovereignty and Human Rights in the Twen eth Century.
The Westphalian order was based on three pillars. The only una ected pillar in the 20th century is the third
one: states will remain formally equal to one another. With the collapse of the internal freedom of states
the idea that interven on in foreign countries is prohibited collapses. We can argue that the theoriza on of
cosmopolitan law (the language of human rights) is strictly linked with the idea of the world Republic
expressed by Kant. Human rights and supra-state organiza on on the other hand.
The UN can be considered as the development of the Kan an idea of cosmopolitan ins tu ons. The main
purpose of UN was to keep interna onal peace and defend human rights.
1) Change in the idea that the states should be the only actors of interna onal order: started to
change in the 19th century. We have many collec ve e orts to establish a condi on of stable
interna onal peace (in 1899 – Hague peace conference, the outcome was the crea on of the rst
interna onal judicial body, the Permanent Court of Arbitra on and 1907 – Hague Conven on for
respec ng the laws and customs of war on land - a new interna onal treaty for peace), but on the
other hand we have the maximum level reached of state sovereignty. Sovereignty established
itself as a formal concept.
In di erent countries historical development marks the decline of monarchical sovereignty (the
monarchs started to lend cons tu ons – from king sovereignty to state sovereignty). The idea of
distribu ve power authority within di erent public authori es within the borders of the state, but in
general the recogni on that people and na on were the legi mated holders of sovereignty. The idea
that individuals are bearers of rights that must be protected. One of the great triumphs and at the same
me collapses in sovereignty history was WWI, which was interpreted as legi mate by a principle of
na onality but generated by the anarchy of di erent sovereign in the interna onal order. It was the
result of European sovereignty and marks it crisis, changing it.
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 The League of Na on of 1922 embodied the evidence that states were no longer the unique actors of
the interna onal order. The member agreed to guarantee the idea of equal sovereignty. In some ways
they begin to interfere with the poli cal freedom of the same members. The League had the right to
impose sanc on to states that did not respect the agreements, thanks to the crea on of the Permanent
Court of Interna onal Jus ce. Its judges were chosen by the community of na on. The jurisdic on of
the court was designed ad hoc from me to me. Only if the states had previously accepted it. The
League did not possess coercive force but could only make unanimous recommenda on for
interna onal peace.
Totalitarian sovereignty like fascism and Nazism coexisted with networks of interna onal agreements,
but there was s ll no possibility to make a state act against its will. The real turning point was the WW2,
a er which internal and external sovereignty were deeply transformed.
We saw the advent of more and more supra-na onal organiza on capable to intervene and limit the
external sovereignty of states. Some of these organiza on, having as a general goal to defend human
rights, signi cantly changed even internal sovereignty. A supra-na onal semi-sovereign public authority
had originated. States tried to build organiza on that reinforced interna onal law, to which states
cannot oppose their sovereignty to. Legal measures that bind states. The members of the UN empower
UN to use even military forces, not only legal ones. UN achieved a share of public authority, which is not
state authority. There is no longer a full equivalence between the state and public authority, state
boundaries become vulnerable to UN public interven on.
The EU is the highest example of this dis nc on. EU 1993 with Maastricht (1992) as a result of a
complex process of integra on carried out in 40 years of ac vity of European communi es (CECA of
1951, EEC, ECAE of 1957). The states are no longer sovereign states, but member states.

2) REDEFINITION OF SOVEREIGNTY THANKS TO THE IDEA OF HUMAN RIGHTS:

In the second ar cle of the League of Na on it is recognised the equal sovereignty of the state, but
it was immediately (a er WW2) evident that in order to prevent totalitarianism ecc sovereignty of
states must be reduced. It was clear that the member of UN had to acquire the right to use force.

The prohibi on of interven on in a airs of other sovereign states had progressively diminished.
Several viola ons of human rights made by states against individuals and internal groups are taken
as a jus ca on for military interven on by external states. Even for one juridical essen al reason:
in 1948 the UN adopted the Universal Declara on of Human Rights and the UN Genocide
Conven on. Members states are obliged to respect these declara ons, otherwise UN can intervene.
There is the priority of human rights over internal sovereignty.
Enforced methods of UN are s ll too weak. Anyway, possibili es for individuals to require judicial
and military assistance in case of viola on of human rights are in development. Human rights
ins tu ons and discourses have been always more present since the end of WW2. We should not
forget about the Cold War though. A er the end of it, in the 1990s, the UN signi cantly changed its
nature (from an organiza on preven ng ius ad bello) and introducing the responsibility to protect.

Secular legal naturalism (Hobbes, Locke and Rousseau) with Kant were the basis for the debate on
human rights. For legal naturalism, human rights must be respected because they are natural, while
for posi ve legalism, rights are so only if established by public authority. We can defend human
rights even from this perspec ve. The idea of responsibility to protect is that sovereignty could be a
resource for this goal. RTP the civilian popula on, internal popula on against viola on of human
rights. The report on interna onal commission on interven on on state sovereignty where the
concept was rst introduced. Between the 90s of the last century to the early 10s of 2000, it has
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 been theorised a passage from a close model of sovereignty to a model of open sovereignty
exposed in the exercise of the surveillance and judgement of interna onal communi es.
It was not an aboli on of the sovereign power of the state, but a rede ni on: not only close to
open, but also transformed from the control of the popula on over a certain territory to
sovereignty as a responsibility towards that popula on and interna onal community. The content
of sovereignty changes.

The impact of the human rights discourse is the rede ni on of sovereignty (Competence
competence). Now the states must protect their own popula on and if they fail to the responsibility
to protect is transferred to the interna onal community. The development of interna onal judicial
bodies is of max importance: ICJ (UN judicial body) and the Interna onal Criminal tribunals. This
could be seen as a weakening of state sovereignty, but in fact it is a way of strengthening it.
Sovereignty is an instrument to protect human rights. State sovereignty aims to be the supreme
moment of poli cal life but becomes an intermediate one.

The most relevant treaty concerning human rights is the European Conven on of Human Rights,
which is recurrently modi ed and updated and was wri en for the rst me in 1950.
Together with the European Court of Human Rights, a judicial body created to reinforce human
rights. They a ected the tradi onal concept of sovereignty and this can be analysed in the ar cles
33 and 34 of the Conven on:
- «ARTICLE 33. Any High Contrac ng Party may refer to the Court any alleged breach
of the provisions of the Conven on and the Protocols thereto by another High
Contrac ng Party».
With this ar cle the European Conven on recognises to each member state the right to take another state
before the court for the viola on of human rights. It is an ar cle that establish the possibility to interfere
with internal a airs of other countries.
- «ARTICLE 34. The Court may receive applica ons from any person, non-
governmental organisa on or group of individuals claiming to be the vic m of a
viola on by one of the High Contrac ng Par es of the rights set forth in the
Conven on or the Protocols thereto. The High Contrac ng Par es undertake not to
hinder in any way the e ec ve exercise of this right».
The European Conven on enables also individuals to undertake a judicial act against member states to
which they belong to.
GRIMM’S SOVEREIGNTY PAGE 88. In the interna onal legal order, there is now space not only for
states but also for individuals and organized groups (organized civil society).
The result of this ins tu onal development is that in the EU human rights have more e ec veness
than in other areas of the world. But what is the price?
Since 1945 the picture is that states have transferred sovereign powers to supra-state en es (EU=
non-sovereign union of sovereign states – at least in the monetary sec on EU is a sovereign).
Even if the transfer of sovereign rights to supra-state organiza ons is essen ally an act of self
determina on thanks to the representa ve process, the result is not precisely autonomy or
heteronomy but a mutual interac on of the two. Self-determina on and external determina on.

15. 15/10/2020: Sovereignty and Democracy in Contemporary Europe.

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 EU is a very strange ins tu onal en ty. There is a greater integra on in Europe than in other supra-state
organiza ons and legal acts and European law are constantly exercised. The EU laws supersede na onal
laws. EU legal acts are directly binding the member states legisla on. Constantly exercise public authority
with direct e ect and superiority over na onal law.
Is the European law also superior to cons tu onal na onal laws? No, even though it’s very controversial.
Is the EU a state? No, it’s a union of sovereign states that are no longer sovereign in the full sense both in
internal and external a airs but even from the monetary point of view. In the Ventotene Manifesto wri en
in 1941 by Al ero Spinelli, Ernesto Rossi e Eugenio Colorni it was advocated the transfer of sovereign es
from the na onal states to a European federal state. This federal state should have been a sort of
democra c superpower, neutral between the two emerging blocks: US and Soviet Union. This was the
federalist dream, but actually another form of integra on prevailed. Actual EU is much more the result of
the so-called func onalist and technocra c methods linked to Jean Monnet.
EU is an ins tu onal en ty for which is di cult to nd a universally accepted de ni on. The legal and
ins tu onal nature of the EU is not so clear as the ques on of sovereignty in it. Trea es in EU avoid using
the term so we can iden fy at least 5 op ons about the presence of sovereignty:
1) DISSOLUTION OF SOVEREIGNTY: sovereign disappears from both the states and EU.
There are authors which deny the presence of sovereignty altogether, but this is a posi on held
by those who understand sovereignty in the absolute sense only. If we s ck to Hobbesian idea
of sovereignty, then it is clear that it does not exist in EU at all.

2) SOVEREIGNTY IS SHARED: divided among EU and member states. There is no contradic on

between federal states and sovereignty. The assump on of these theorist is that a division of
sovereignty rights/public powers results in a division of sovereignty. There are authors who
share Madison’s solu on, for example the Italian Sergio Fabbrini (Compound Democracies,
where he tries to explain why the EU should be transformed in a similar way as the US). Others
prefer a solu on closer to Kelsen and Jellineck posi on, the idea of self-limita on.

3) SOVEREIGNTY LAYS WITH THE EU: this op on can be defended but there are many areas in
which we have evidence of the sovereignty of member states, star ng from the military (Syria).

4) SOVEREIGNTY LAYS WITH THE MEMBER STATES: if sovereignty means self-determina on of a

poli cal en ty, EU cannot be considered as sovereign. This is because EU is hetero determinate
since it depends on the agreements among member states. The agreement can be revoked, the
member states are the actors that determine and decide the legal func on of EU. To Grimm it is
rather clear that sovereignty lays within the states. They are the “master of the trea es”: while
EU trea es avoids the term sovereignty, the na onal cons tu ons use it broadly (they hold the
so-called competence competence). Grimm’s thesis is that EU lacks the cons tuent power.
Which is the degree at which states can transfer public powers to the EU? Na onal
cons tu onal courts take the existence of na onal sovereignty for granted and draw
conclusions from it. For example, the German cons tu onal court allows to transfer only public
powers to EU and not sovereignty. He believes that defending state sovereignty means
protec ng democracy. Representa ve and governmental func ons derive their authority from
people. Na onal cons tu ons are the direct expression of popular will because they lay down
the principle of coexistence of community. That is why cons tu on is superior to other laws.
The problem of EU is that in EU na onal cons tu ons as expressions of popular sovereignty
apply only with reserva on: THE PROBLEM OF DEMOCRATIC DEFICIT. (Grimm’s page 95) He
concludes that EU doesn’t have sovereignty but possess a too large number of sovereignty
rights.
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 5) SOVEREIGNTY LAYS WITH EU CITIZENS: Jurgen Habermas in the last 10-15 years wrote many
ar cles and 3 books on the EU. In the ar cle he rejects Grimm’s posi on. Habermas writes that
the economic crisis has exacerbated the crisis of legi macy in the EU, in par cular he tries to
sum up the causes of the democra c de cit iden ed by Grimm. According to him the rst
cause is that a par cular pa ern of policies raised to the level of cons tu onal law, the
illegi mate priority of EU law over cons tu onal law. The second cause is the unpoli cal way of
policy making at the EU level that proceeds independently of democra c systems. The third
cause would be the remoteness of the EU parliament from the people. Basically, according to
Habermas, Grimm believes that there is a lack of mutual trust that ci zens of di erent na ons
would have. Since we don’t have a European na on and European people, an excessive process
of Europeaniza on would be undemocra c.

The counterargument proposed by Habermas is that na onal iden es are the product of
poli cal needs and its public ins tu ons. His solu on to the problem of sovereignty starts with
the ques on of the “ul mate decision-making authority” (sovereignty). He says the cons tuent
power in EU lays within the member states, but they are no longer alone. A er the Lisbon
treaty, the cons tuent power was divided between states and European ci zens. European
ci zens, bearers of a number of poli cal and social rights guaranteed by na onal states
cons tu ons, would par cipate in the process of amending the trea es with a share of
cons tuent power thanks to elec ve representa ves in the European Parliament. Habermas
takes a step further, since all member states are representa ve democracies, the treaty-making
power of the member states belong ul mately to their individual ci zens. The ci zens would be
the ul mate subjects of European public authority. What at rst glance seems to be composed
by member states and EU ins tu ons is actually one iden cal subject: European ci zens.

There is a peculiarity in the subjects: ci zens exercise the cons tuent power in two ways, as
ci zens of member states and as ci zens of EU. Habermas idea of double sovereignty belonging
to ci zens, ci zens ac ng in two ways. His norma ve solu on is a thought experiment.
- To solve this problem, I propose a thought experiment. Let us imagine a democra cally developed EU
as if its cons tu on had been brought into existence by a double sovereign. The cons tu ng authority
is to be composed of the en re ci zenry of Europe, on the one hand, and of the di erent peoples of the
par cipa ng na on States, on the other. Already during the cons tu on-framing process, the one side
should be able to address the other side with the aim of achieving a balance between the interests
men oned».

This is what he understands as double sovereignty: the division is not between two di erent
subjects, but between two di erent capaci es/roles of the same subject. This means that the
division regards not the cons tu ve powers, but the cons tuent power. Habermas is not interested
in Grimm’s division between cons tu ve powers, his objec ve is a transna onal democracy. Europe
would serve as a case study for a cosmopolitan society. Its value would not so much be the
descrip on of the legal situa on of EU a er the Lisbon Treaty, but rather a theore cal model for
construc ng sovereignty in a poli cal en ty composed by democra c states. EU should be
reformed, and trea es should be renewed. The problem he iden es are the German hegemony,
na onalism, economic inequality and globaliza on (mul ple world where the individual has to nd
his role).

*Note: competence-competence is the principle of authority to assign public roles and

competences to di erent public orders. The competence of the sovereign is to assign competences
to other public o cials.
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