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Bad Custom

The Meanings and Uses of a Legal Concept in Premodern Europe

Anthony Perron

The place and function of custom as a species of law—distinguished from custom as simply polite manners or cherished cultural traditions—has long been a source of research and debate among legal theorists and historians. One school of thought, reflecting the authority of written statute in modern jurisprudence, has relegated custom in a juridical sense to “primitive” societies, whereas proper law belongs to a world of state sovereignty. Other scholars have revisited the continuing validity of custom, including a trenchant body of work on the use (and manipulation) of custom in modern colonial regimes. At the same time, some have seen benefits in the acknowledgment of custom as a source of norms. A 2006 collection of articles, for instance, explored ways in which customary law might serve as a better foundation for the sustainable development of natural resources. As David Bederman has written, “Custom can be a signal strength for any legal system—preliterate or literate, primitive or modern.”

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Jan Ifversen

Abstract

In March 2020, Melvin Richter, one of the founders of international, conceptual history passed away. This sad occasion makes it timely in our journal to reflect on the process that turned national projects within conceptual and intellectual history into an international and transnational enterprise. The text that follows—published in two parts, here and in the next issue—takes a closer look at the intellectual processes that led up to the founding meeting of the association behind our journal, the History of Concepts Group. It follows in the footsteps of Melvin Richter to examine the different encounters, debates and protagonists in the story of international, conceptual history. The text traces the different approaches that were brought to the fore and particularly looks at Melvin Richter's efforts to bridge between an Anglophone tradition of intellectual history and a German tradition of Begriffsgeschichte.

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Marie Paxton and Uğur Aytaç

George Robert Bateman, Jr., The Transformative Potential of Participatory Budgeting: Creating an Ideal Democracy.

Garett Jones, 10% Less Democracy: Why You Should Trust Elites a Little More and the Masses a Little Less.

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Democratic Procedures Are Not Inherently Democratic

A Critical Analysis of John Keane's The New Despotism (Harvard University Press, 2020)

Gergana Dimova

In his latest opus, The New Despotism, John Keane continues to challenge existing wisdom in the field of democratic theory and comparative political studies. One of the key insights of the book is that there is nothing inherently democratic about democratic innovations and procedures, and thus they can be used to prop up despotisms, rather than usher in democracy. While this insight comports with existing misgivings about elections, the book stands out in the way it explains the sustainability of using the democratic procedures in the new despotisms. For democratic procedures to further the aims of the new despotisms, the condition of “voluntary servitude” needs to be met. “Voluntary servitude” means that people willingly give in to political slavery, and become accomplices in maintaining the illusion that democratic procedures are implemented (215–222). Keane's achievement is that he creates an analytical ecosystem of interlinked assumptions, observations, conditions, and other logical connectors, which make his model of the new despotism so robust.

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Spencer McKay

Altman, David. 2018. Citizenship and Contemporary Direct Democracy. Cambridge: Cambridge University Press.

Dyck, Joshua, and Edward Lascher. 2019. Initiatives without Engagement: A Realistic Appraisal of Direct Democracy's Secondary Effects. Ann Arbor, MI: University of Michigan Press.

Hollander, Saskia. 2019. The Politics of Referendum Use in European Democracies. London: Palgrave MacMillan.

Matsusaka, John G. 2020. Let the People Rule: How Direct Democracy Can Meet the Populist Challenge. Princeton, NJ: Princeton University Press.

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Emily Beausoleil and Jean-Paul Gagnon

This 16th issue of Democratic Theory features three articles, a trialogue (our first), two review essays, and two book reviews.

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Introduction

When Was Brexit? Reading Backward to the Present

Antoinette Burton

Abstract

This introductory article lays out the stakes of thinking through the temporalities of Brexit history across multiple fields of vision. It makes the case for books as one archive of Brexit subjects and feelings, and it glosses all the articles in the special issue.

Open access

Pluralist Democracy and Non-Ideal Democratic Legitimacy

Against Functional and Global Solutions to the Boundary Problem in Democratic Theory

Tom Theuns

Abstract

The boundary problem holds that, whatever the theory of democratic legitimacy, the initial act of constituting the demos can never be considered met by it. Many contemporary attempts to solve the boundary problem can be understood as falling into two categories: functional demos views and global demos views. This article argues against both views. Functional demos views exacerbate the legitimacy puzzle posed by the boundary problem, while a global democracy cannot be held democratically accountable by its citizens. In the place of global demos and functional demos views, we ought to examine the democratic legitimacy of polities in light of the standards of pluralist democracy. Pluralist democracy is a non-ideal conception of democracy that recognizes democratic procedures to be historically grounded, non-ideal, and problem-oriented.

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Realizing Interspecies Democracy

The Preconditions for an Egalitarian, Multispecies, World

Sue Donaldson, Janneke Vink, and Jean-Paul Gagnon

Abstract

Sue Donaldson, Janneke Vink, and Jean-Paul Gagnon discuss the problem of anthropocentric democratic theory and the preconditions needed to realize a (corrective) interspecies democracy. Donaldson proposes the formal involvement of nonhuman animals in political institutions—a revolutionary task; Vink argues for changes to the law that would cover nonhuman animals with inviolable political rights; and Gagnon advises a personal change to dietary choices (veganism) and ethical orientations (do no harm). Together, the three proposals point to a future position where humans can participate in a multispecies world in which nonhuman others are freed from our tyrannical grasp.

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Rethinking Modes of Political Participation

The Conventional, Unconventional, and Alternative

Marcin Kaim

Abstract

Political participation is frequently defined as either being conventional or unconventional. This distinction is based on dualistic thinking. Participation is likened to other dualisms, such as legal–illegal, collective–individual, and unity–plurality. Drawing on Niklas Luhmann's system theory, I argue that understanding political participation in terms of dualisms is reductive, as it overlooks those acts of participation that do not fit the conventional–unconventional distinction. To address this issue, the article introduces the notion of alternative political participation. This category is established by conceiving the existing dualism between conventional and unconventional political participation as a continuum of options existing between polar opposites.