John Marshall,McCulloch v. Maryland,and the Concept of Constitutional Sovereignty

Scholars have long debated John Marshall's intent in his famous opinion in the case of McCulloch v. Maryland (1819). Despite long-standing disagreement concerning the character of Marshall's nationalism and federalism, interpretations of the opinion typically rely on an incomplete picture of the case. This analysis revisits McCulloch to illustrate his support for national and state sovereignty as defined in the Constitution. It then moves beyond the opinion itself to examine Marshall's defense of McCulloch in a series of newspaper essays he authored in the aftermath of the case. Situated alongside the McCulloch opinion, these essays show that Marshall was as much concerned with defending the sovereignty of the Constitution as he was with adjudicating political authority between national and state governments.     

Alfred Marshall's economic nationalism

ABSTRACT. Alfred Marshall has been seen as an economic liberal and one of the founders of the neo‐classical school. However, this article challenges such conventional wisdom and argues that Marshall is best understood as an economic nationalist. Economic nationalism has been falsely associated with mercantilism, the zero‐sum view of international economies, and so on. However, a new approach for studying economic nationalism has recently been proposed to redefine its conception. The present article shows that Marshall's economic thought is compatible with this new conception of economic nationalism. Marshall emphasised the role of nationality in the economic process. The characteristics of his economic thought, such as the evolutionary view of economy, conform more closely to Friedrich List's economic nationalism than to economic liberalism. By portraying Marshall's theory as that of economic nationalism, the author concludes that economic nationalism can have a systematic theory.     

THE ALLURE OF DARK TIMES: MAX WEBER,POLITICS, AND THE CRISIS OF HISTORICISM

This article argues that realist invocations of Weber rely on an unrealistic reading of Weber's realism. In order to escape the allure of Weber's dramatic posture of crisis, we place his seminal lecture on “Politics as a Vocation” (1919) in its historical and philosophical context of a revolutionary conjuncture of dramatic proportions, compounded by a broader crisis of historicism. Weber's rhetoric, we argue, carries with it not only the emotion of crisis but is also the expression of a deeper intellectual impasse. The fatalistic despair of his position had already been detected by some of his closest contemporaries for whom Weber did not appear as a door‐opener to a historically situated theory of political action but as a telling and intriguing impasse. Although the disastrous history of interwar Europe seems to confirm Weber's bleakest predictions, it would be perverse to elevate contingent failure to the level of retrospective vindication.     

The right to be heard: Citizenship and language

In this paper we address the importance and contestation of language in terms of citizenship and the development of political communities by focusing on the example of a minority language – British Sign Language. Language is crucial to debates about citizenship and belonging because the State has to rely on language for its very functioning, indeed political practice itself is a form of communicative action. For individuals language is deeply implicated in their ability to claim and maintain their rights and in their affective connections with others and sense of identification. The paper therefore begins by identifying that Deaf people's legal entitlements (e.g. to vote) are an abstract form of citizenship because as sign language users they have difficulties understanding both political and wider civil institutions and practices, and so lack the cultural proficiencies necessary to exercise citizenship in a substantive sense. We then go onto consider citizenship in the broader sense of how groups are included or situated in the public sphere, and in doing so to consider the extent to which Deaf people might be understood to have a liveable place in an oral society. The final section examines how the sense of injustice which flows from Deaf people's experiences of marginalisation in the public realm means that they are developing alternative forms of political commitment predicated on non-state spaces of belonging – where they can live their language – at both local and transnational scales. The paper concludes by reflecting on the notion of differentiated citizenship and the implications of Deaf people's claims to language rights.     

European private law and the challenge of plural legal subjectivities

This paper argues that the approach to questions of authority, legitimacy, and personal identity characteristic of contemporary European law presents a paradox. The power of the legal project that emerged after the French Revolution lay in its deployment of the notion of abstract legal subjectivity to challenge claimed authority. Much is made of the public law dimensions of this revolutionary moment—the creation of political constitutions establishing national citizenship and human rights standards. But the transposition of abstract legal subjectivity into the private law through national social constitutions like Civil Codes has been far less successful. Abstract legal subjectivity in public law regimes necessarily privileges some personal identities over others in its construction of citizenship. These privileged identities of public law citizenship limit how legal subjects can express their identities in the private law. The paper proposes an alternative, pluralist, theorization of the diverse, iterative character of everyday human interaction that gives content to the idea of legal subjectivity in the private law. It seeks to reconcile a public law of abstract, unitary citizenship with a private law of plural legal subjectivities in a manner that advances the project of democratic constitutionalism.     

Israel and the International Legal Arena

Israel considers the international legal arena as another battlefield where the country's legitimacy is challenged. Jerusalem's apprehension in regard to its international standing further increased in 2002 following the establishment of the International Criminal Court at The Hague. Developments in the case against Prime Minster Ariel Sharon in Belgium between June 2001 and September 2003 strengthened the Israeli government's conviction that an anti-Israel agenda could percolate into the legal process. Similarly, the International Court of Justice's advisory opinion in regard to the “wall” (security fence), issued on 9 July 2004, reinforced Israel's distrust of the international legal arena. This article follows the anti-Israel offensive in the international legal arena and analyzes Israel's counter actions.     

What Carl Schmitt Picked Up in Weber's Seminar: A Historical Controversy Revisited

The intellectual relationship between Carl Schmitt and Max Weber has been a point of controversy for at least half a century. At the 1964 convention of the German Sociological Association, in honor of Weber's centenary, Schmitt was famously referred to as Weber's “legitimate student.” This article uses the chapter Schmitt specifically wrote for an edited volume in Weber's memory, published in 1923, as the starting point for juxtaposing the two scholars, and then expands the analysis to encompass a range of sources and commentaries. The comparison focuses on the approach of each of the two scholars to methodology and didactics, theory and conceptual use, as well as to the society/social science nexus. The article concludes by arguing that Schmitt performed a double rhetorical move: while styling himself as Weber's student, he then drew on that authority to assault Weber's liberalism and concept of scientific integrity.     

Max Weber,charisma and nationalist leadership1

ABSTRACT. One of Max Weber's most well‐known achievements was the formulation of three concepts of legitimate authority: traditional, legal‐rational and charismatic. However, there are particular problems with the last of these, which is not historically grounded in the manner of the other two concepts. The charisma concept originated with Weber's sociology of religion, was pressed into service in pre‐war writing on the sociology of domination, shifted focus in his wartime political writings and changed meaning again in his post‐war writing on basic sociological concepts. To use the concept in historical‐political analysis, I argue, one must distinguish between a pre‐modern and modern form of charismatic domination. I argue that doing this enables us to understand features of the leadership of colonial nationalist and fascist movements.     

National subjects and subversive subjectivity: Deportation and the paradox of the anarchist citizen in the era of the First Red Scare

According to the Westphalian system of international law, all people are meant to be citizens or subjects of territorially bounded and sovereign nation-states, which in turn guarantee certain rights to, and impose certain duties upon, their members. Anarchism, by contrast, is predicated upon a rejection of the legitimacy of state sovereignty, and a refutation of the justness and practicability of representative government. Anarchists took individual and collective “self-determination” to their logical extremes—and in the process confounded state legal regimes and bureaucracies that understood national belonging and individual rights only in terms of citizenship. From the perspective of the United States, alien anarchists “belonged” back in their countries of origin, but from those European states' perspective, anarchists had no place in their national communities. This article examines how both radicals and governments in the era of America's “First Red Scare” engaged with the rules governing the interstate system. As individual radicals, government functionaries, and international diplomats wrestled to define where anarchists belonged in the international order of nation-states, the solutions they found simultaneously reinforced the boundaries of the Westphalian system and revealed contradictions and fissures within it.     

Habermasian Thinking on Civil Society and the Public Sphere in the Age of Globalization

ABSTRACT

In today's age of increasing globalization and the emergence of global public policy issues, the concepts of civil society, public sphere, and the legitimacy of the legal system require further analytical scrutiny and philosophical reflection. As such, this article reflects on how the renowned German philosopher and social theorist Jürgen Habermas, in his Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996), addressed and reflected on the notions of civil society, the public sphere, and the legitimacy of the legal system. As Habermas admitted that barriers do exist within the civil society and the public sphere, the article examines the various ways of overcoming the barriers toward the full actualization of the civil society's emancipatory potential. The article shows its conceptual arguments through the use of empirical examples vis-à-vis the arguments of Habermas, and most importantly, that Habermasian insights need to be cast at the transnational level of democratic politics, rather than within the strict confines of political processes within the nation-state.     

Colonial Matriarchs: Garveyism,Maternalism, and Belize's Black Cross Nurses, 1920–1952

This article analyses the politics of Belize's Black Cross Nurses in their heyday in order to bring into dialogue the historiography on gender in the transnational Garveyite movement to which the middle‐class Nurses belonged, and the historiography on maternalism. It complicates the claim that Garveyite women were subordinated within the movement and resisted its gender norms, and addresses the lack of attention to maternalist politics among non‐white women in colonised settings, where racial anxieties strengthened middle‐class attachment to bourgeois respectability. By analysing the Nurses's relations with the colonial state, poor urban mothers and middle‐class men, the article concludes that their maternalism served to reproduce class and race hierarchies, and colonial rule, even as it strengthened middle‐class women's political autonomy and legitimacy.     

The Unyielding Boundaries of Citizenship: The Emancipation of 'Non-Citizens' in Romania, 1866–1918

This article attempts to contribute historical data to studies of the emergence and development of the institution of citizenship in Romania. Designed as an overview of Romanian citizenship legislation between 1866 and 1918, the article focuses on the contradiction between claims for the universality of bourgeois-democratic liberal ideology and the hierarchic and illiberal citizenship practice, which disenfranchised a considerable number of men, denied women substantive civic and political rights and excluded from state citizenship significant ethnic and religious minorities. Special attention is devoted to the legal status of these categories of 'non-citizens,' to their strategies of emancipation and their relationship with the Romanian national ideology.     

Women as Common Scolds in Law and Popular Culture: Pennsylvania, 1824–1972

Women faced prosecution as common scolds for their unruly speech in US jurisdictions until 1972, with Pennsylvania playing an outsized role in this history. Pennsylvania's treatment of common scolds reveals how the interplay of the law and the press perpetuated a construct of women's speech as gossipy, quarrelsome and disruptive of social order. Prosecutions occurred so frequently and continued for so long in Pennsylvania because of English common law's grip on the state's jurisprudence, reinforced by popular culture representations that stigmatised women's speech. Common law furnished formal legal precedents, while the press, driven by its own imperatives, readily propagated, amplified and validated the law's characterisation of scolds. Reports about scold cases, which fit easily into journalistic and cultural frames, often appeared as humorous vignettes that served as illustrations – if not warnings – about women's transgressive speech. Judges wondering about the continued legitimacy of this gender-specific offense could take comfort from stories about prosecutions of scolds across the state and around the nation. The ordinariness of common scold cases also sheds light on community rules that regulated women's everyday speech – evidence about a fleeting activity nearly invisible to scholars before the digitisation of newspapers and obscure legal texts.     

Re‐mythologizing the State: Public Security, ‘the Jesus Strategy’ and the Fiji Police

ABSTRACT My primary concern is with tracing how the police force has been transformed from a secular institution into an overtly religious one. Drawing from scholarly work on charismatic leadership and its routinization in institutional forms, much of it inspired by Max Weber's early work on these themes, my overarching aim is to grapple with the significance of Commissioner Teleni's reforms not only for the Fiji police force but more broadly for the shape of the Fijian state. While recognizing the acute importance of international relations in establishing and supporting Fiji's various political regimes, my focus here is firmly on the domain of the nation‐state as I wish to assess how politicians, military leaders, and now the Commissioner of Police attempt to constitute mass public support through their use of Christian rhetoric.     

Retrieving the Partisan History of Australian Citizenship

Current debates on Australian citizenship overlook its partisan dimension. Until very recently, the term citizenship fitted more comfortably into nonlabour's discourse than into Labor's. Nonlabour's understanding of citizenship is embedded in Australia's constitutional framework. As well, in the first half of the century the term was as much moral as political, concerned not so much with the rights and entitlements which dominate contemporary understandings but with individuals' duties and obligations to their fellow citizens. For nonlabour, citizenship was linked to ideas of service and the national interest, and explicitly opposed to Labor's commitment to sectional, class-based interests. This conception of citizenship was realised in the meeting procedures of voluntary associations in which there was a clear line of implication from the government of the self through the government of the community to the government of the nation. The working man is not merely a working man, nor can all his interests be subsumed (classed) under the term Labour. The working man is and knows himself to be, the citizen of a great State. ( The Liberal 2 December 1912, 114)     

From the ‘spirit of capital’ to the “spirit” of capitalism: The transition in German economic thought between Lujo Brentano and Max Weber

I dedicate this essay to the memory of the late Wolfgang Mommsen—the subject would have been congenial to him. It is one of a series of offshoots from a central project: a scholarly edition of Max Weber's Protestant Ethic with commentary. When I first told Prof. Mommsen of my plan in 1994 he looked me full in the face and gave a characteristic growl: “All that work!” Here was a man who knew what he was about. My thanks to Ross McKibbin and Keith Tribe for reading this paper in draft.

The article begins by examining Max Weber's relations with Lujo Brentano, much the most important “precursor” to Weber in the field of economics. In particular, Brentano conducted a form of parallel inquiry into the rise of ‘the spirit of capital’ in England 35 years before Weber looked for the origins of “spirit” of capitalism there, and the contrast between these two ideas casts much light both on Brentano and on Weber's Protestant Ethic. This personal history leads into a broader history of the transition in German economic thought between the 1860s – the formative decade for Brentano but also the era of Marx's Capital – and that of Weber's generation coming to maturity c.1890. Marx and Weber remain the two great canonical thinkers and original minds; but any authentic historical comparison between Marx and Weber must take in Brentano. The essence of the contrast between the generations is that between Weber's novel conception of an ethical ‘capitalism’, and the materialism and naturalism underpinning Brentano's and Marx's ‘capital’, although Weber and Brentano are alike as liberals, democrats and bourgeois.     

When the personal becomes political: using legal reform to combat violence against women in Ethiopia

This article focuses on Ethiopia's first civil society organisation, the Ethiopian Women Lawyers Association (EWLA), which has been campaigning for legal reform to secure women's rights and address violence against women. Implementing legal changes to benefit women in Ethiopia is impeded by difficulties in using the formal legal system, by poverty and deeply embedded gender inequalities, by plural legal systems, and by entrenched cultural norms. However, the article argues that the most significant challenge is the increasing degree of authoritarianism in Ethiopian state politics, that this is crucial in determining the space for activism, and that this shapes the successful implementation of legal change. The research shows how women's activism around personal rights challenges public/private and personal/political boundaries and can be seen as a political threat by governments in contexts where democracy and rule of the law are not embedded, leading to repression of women's activism and hindering the implementation of measures to protect women's rights when states become more authoritarian. Little is known empirically about the impact of democratisation on the implementation of measures to protect women's rights in Africa. This article shows how the emergence of democracy and legal reform intersects with the emergence of women's rights, especially with respect to gender-based violence. It shows how trying to secure women's personal right to be free from violence through the law is profoundly political and argues that the nature of democratisation really matters in terms of the implementation of measures such as legal changes designed to protect women's rights.     

Talcott Parsons as translator of Max Weber's basic sociological categories

The first four chapters of Max Weber's Economy and Society presented by Talcott Parsons in 1947 as Theory of Social and Economic Organization present a coherent and complete analysis of social, economic and political structures based upon a consistent theory of social action and its understanding. Parsons did not see them this way. His lengthy introduction sought to insert them into his own “action frame of reference”, and his rearrangement of the text made it difficult for a reader to understand why it was constructed the way that it is. This essay describes how Parsons came to be principal translator and editor of the text, examines the changes that he made to it, and links his editorial practice to the analytical procedures that he followed in his Structure of Social Action.     

The re-emergence of wardship: Aboriginal Australians and the promise of citizenship

In this paper, I suggest that the category of ‘ward,’ a designation used for Aboriginal Australians in the 1950s and 1960s, has re-emerged in contemporary Northern Territory (NT) life. Wardship represents an in-between status, neither citizens nor non-citizens, but rather an anticipatory citizenship formation constructed by the Australian state. The ward is a not-yet citizen, and the deeds, acts, and discourses that define the ward's capacities to act as a political subject can maintain their anticipatory nature even as people ‘achieve’ formal citizenship. Wardship can be layered on top of citizen and non-citizen status alike. Rather than accounting for the grey areas between ‘citizen’ and ‘non-citizen,’ therefore, wards exist beyond this theoretical continuum, demanding a more nuanced accounting of political subjectivities and people's relationships to the state.I trace the emergence of the category ‘ward’ in the 1950s and 1960s in Australia and its re-emergence for Aboriginal Australians impacted by the 2007 Northern Territory Emergency Response legislation. The promise of citizenship offered by the status of ‘ward’ is built upon expectations about family life, economic activity, and appropriate behaviour. These assumptions underscore an implicit bargain between individuals and the state, that neoliberalised self-discipline will lead to both formal citizenship rights and a sense of belonging. Built-in impediments, however, ensure that this bargain is difficult, if not impossible, to fulfil.