Correlativity in the Non-Identity Problem

UID/FIL/00183/2013 IF/01587/2015This paper aims at answering some of the objections to the NIP’s criticism of the idea of rights of future persons. Those objections usually adopt different perspectives depending on how they understand differently the nature of the correlativity between rights and duties – some adopt a present-rights-of-future-persons view, others a future-rights-of-future-persons view, others a transitive present-rights-of-present-persons view, and others still an eternalist view of rights and persons. The paper will try to show that only a non-transitive present-rights-of-present-persons view can survive the challenges posed by the notion of correlativity inherent in the NIP, and thus preserve rights language when discussing the future. This view is proved also more suitable for the legal and political realms, where policies and law-making are usually more concerned with present addressees and short term effects.authorsversionpublishe

Redrawing the epistemic boundaries of democratic inclusion

UID/FIL/00183/2019 DL 57/2016/CP1453/CT0066Epistemic impairment has been the decisive yardstick when excluding infants from political agency. One of the suggestions to bypass the epistemic requirement of political agency and to encourage the inclusion of infants in representative democracies is to resort to proxies or surrogates who share or advocate interests which may be coincidental with their interests. However, this solution is far from desirable, given that it privileges the political agency of parents, guardians and trustees over other adult citizens. This article offers an alternative to this conceptual frame of reference by making a case for the political agency of infants. Firstly, it maintains that political agency can be understood in terms of the several facets involved in political representation. Secondly, it claims that the all-affected principle can be reformulated as an ‘infant-affected-interests principle’ in light of which infants are members of the class of the represented. Thirdly, it explores the ways through which this political agency can occur without having to resort to alternative conceptions of representation. The conclusion ascertains that infant enfranchisement is highly undesirable and that there are more viable forms to promote infant political agency, such as virtual representation, infant-beneficial principles of political action and ombudspersons for infants.authorsversionpublishe

entrenching future-oriented constitutional interpretation

UIDB/00183/2020 UIDP/00183/2020 (PTDC/FER—FIL/6088/2020A recent trend in futures studies has called for strengthening the inclusion of future generations in constitutional law. This is problematic from a practical and a normative viewpoint. This paper introduces a future-oriented theory of democratic constitutionalism that overcomes originalism (which privileges the past) and living constitutionalism (which privileges the present) without resorting to the explicit constitutional protection of the yet unborn. It is divided into five sections. The first challenges the notion that the constitutional entrenchment of the non-overlapping future is the best means of implementing long time horizons in democratic legal systems. The second maintains that constitutions are substantive normative expressions of the ultimate justification of authority. The third demonstrates that the substantive dimension of constitutions is cross-temporal and includes what I call ‘the objective interests in the future’ of all members of the people. The fourth connects such objective interests with rights to political participation. The final section focuses on the cross-temporal role of constitutional adjudication. Because rights to political participation include objective interests in the future and necessarily hold the status of constitutional rights in any legitimate democratic constitution, constitutional adjudication must guarantee their enforcement over government action.publishersversionepub_ahead_of_prin

The Problem of Prerequisites

UID/FIL/00183/2013Deliberative democracy contains a theory of legitimacy. One of its versions is pure proceduralism, according to which the principles establishing terms of political cooperation in deliberative systems should inform mainly the process of deliberation and no additional substantive elements, except to the extent that they are necessary for a fair process. This paper shows that pure proceduralism faces the ‘problem of prerequisites’. It consists in the fact that, even if pure proceduralism may be a criterion of legitimacy, the legitimacy of pure proceduralism as a source of subsequent legitimacy is not grounded in deliberative procedures. The problem comprises two arguments: the argument from the prerequisite of procedural membership (the establishment of membership rights to procedures must be immune to deliberation); and the argument from the prerequisite of procedural ruling (the rule establishing the quantitative threshold from which a decision is reached must be immune to deliberation).publishersversionpublishe

The Idea of the Social Contract in the History of 'Agreementism'

UID/FIL/00183/2019 DL 57/2016/CP1453/CT0066 IF/01587/2015One of the recurrent motifs in political thought is the idea of the social contract, according to which a society, a government, or moral principles depend for their existence on agreements between voluntary agents. This association between the social contract and “agreementism” implies that there is nothing about the terminology of contracts that distinguishes it from that of other types of agreements constitutive of normativity. This essay tests this assumption by surveying the terminology of the social contract and by proposing two hypotheses. The first is that all attempts at analysing the idea of the social contract require a formal conceptual frame of reference that is distinguishable from agreementism. The second is that social contract theories can be grouped into four trends, even if the authors of each of these trends are unable to form a coherent body of doctrine. These trends are the Iberian Catholic version of the Counter-Reformation; the Protestant individualist trend of the Enlightenment; the quasi-dialectical trend of the radical Enlightenment; and the contemporary trend of public morality.authorsversionpublishe

Instituting Temporal Electoral Circles

UIDB/00183/2020 UIDP/00183/2020 PTDC/FER-FIL/6088/2020In representative democracies, the absence of responsiveness by elected officials to the interests of the represented often generates problems of legitimacy, accountability and effectiveness. However, responsiveness also tends to narrow the time horizons of democratic decision-making and promote short-termism. This paper advances the notion that responsiveness to interests involving distant time horizons is possible by reconfiguring the franchise in a time-sensitive and future-oriented way. It is divided into two parts. The first pinpoints a few inconsistencies in the available proposals for making responsiveness and the long term compatible (e.g., promoting youth turnout, narrowing the franchise to robust epistemic fitness, establishing future-oriented institutions). The second advances the creation of temporal electoral circles operating alongside territorial electoral circles in order to prompt responsiveness to multitemporal interests. The conclusion asserts that this kind of franchise design is the best available option for introducing temporal aspects into the character of democratic representation.publishersversionepub_ahead_of_prin

Writing, Rights and Refugees

UIDB/00183/2020 UIDP/00183/2020 DL 57/2016/CP1453/CT0066authorsversionpublishe

A Novel Form of Environmental Pragmatism

UIDB/00183/2020 UIDP/00183/2020Moral reasoning typically informs environmental decision-making by measuring the possible outcomes of policies or actions in light of a preferred ethical theory. This method is subject to many problems. Environmental pragmatism tries to overcome them, but it suffers also from some pitfalls. This paper pro- poses a new method of environmental pragmatism that avoids the problems of both the traditional method of environmental moral reasoning and of the general versions of environmental pragmatism. We call it ‘justificatory moral pluralism’ – it develops the intuition that normative ethical theories need not be mutually exclusive. This leaves room for important forms of pluralist environmental ethics that do not require a once-and-for-all prior commitment to an ethical theory when deciding about policies or courses of action related to the protection of the environment. Justificatory moral pluralism offers a viable solution to the recurrent conflicts between efficient environmental decisions and the need for moral reasoning.authorsversionpublishe

O INDIVÍDUO EM SPINOZA: : ABSORÇÃO DE PERSONALIDADE

Longe de inventar uma nova linguagem filosófica, ou mesmo de subverter uma tradicional ou de senso-comum, Spinoza começa por penetrar no edifício de cada conceito problemático para o reconstruir a partir de dentro, mantendo a designação habitual mas dando-lhe um novo significado: é o que faz com o conceito de indivíduo. A individuação sempre foi problema específico de metafísica, acompanhando a indivisibilidade, e correndo paralelo à eminência nas discussões jurídico-políticas do conceito de pessoa. Com a Modernidade, Descartes e Hobbes cruzam as duas problemáticas, e misturam o indivíduo e a pessoa: uma pessoa individual. Spinoza vai muito mais longe. O seu indivíduo é princípio constitutivo da metafísica e da ontologia do sistema, perpassando todas as áreas do mesmo: chegando à jurídico-política, absorve tudo o que se dissera da pessoa, e torna-se tema fundamental de direito e de política