new stuff by José Luis Martí
Netherlands Journal of Legal Philosophy, 2022
Some of the existential threats we currently face are global in the sense that they affect us all... more Some of the existential threats we currently face are global in the sense that they affect us all, and thus matter of global concern and trigger duties of moral global solidarity. But some of these global threats, such as the Covid-19 pandemic, are global in a second, additional, sense: discharging them requires joint, coordinated global action. For that reason, these two-fold global threats trigger political – not merely moral -- duties of global solidarity. This article explores the contrast between these two types of global threats with the purpose of clarifying the distinction between moral and political duties of global solidarity. And, in the absence of a fully developed global democratic institutional system, the article also explores some promising ways to fulfill our global political duties, especially those based on mechanisms of collective intelligence such as CrowdLaw, which might provide effective solutions to these global threats while enhancing the democratic legitimacy of public decision-making.
Politics and Governance, 2021
The normative literature on secession has widely addressed the question of under which conditions... more The normative literature on secession has widely addressed the question of under which conditions the secession of a particular territory from a larger state might be regarded as justifiable. The idea of a normative justification of secession, however, remains ambiguous unless one distinguishes between the justice of secession and its legitimacy, a distinction that is now widely accepted in political philosophy. Much of the literature seems to have focused on the question about justice, while, in comparison, very little attention has been paid to the question of under which conditions secession can be regarded as democratically legitimate, as something explicitly different to the question of justice. This article addresses this second question. After some preliminary remarks, the article focuses on the main obstacle to develop a theory of democratic legitimacy of secessions, the so-called "demos problem". Such problem, it is argued, has no categorical solution. This does not imply, however, that there is no democratic, legitimate way of redrawing our borders. Two strategies are proposed in this article to overcome the difficulty posed by the demos problem: an ideal strategy of consensus building and a non-ideal strategy of decision-making in the circumstances of disagreement.
This chapter analyzes the negative impact as well as the positive contributions that new digital ... more This chapter analyzes the negative impact as well as the positive contributions that new digital technologies may have and make on deliberative democracy. As for their negative consequences, five major threats are identified: i) a risk of suffering interferences and violations of our privacy rights and civil and political liberties, ii) the risk of manipulation of and domination in our democratic politics, both at the level of public deliberation and our voting systems, iii) the risk of growing social polarization, fake news and hate speech, iv) the risk of an unprecedented concentration of power in a few, mostly private or authoritarian, hands, and v) the risk of the growing complexity of our societies and of the challenges we globally face. As for the positive contributions, this chapter reviews some examples of how digital technology may strengthen our collective intelligence and our processes of political aggregation, deliberation and collaboration. This analysis comes, however, only in the last section (number 4) of the chapter, after having introduced the topic in section 1, having explained what the model of deliberative democracy is in section 2, and having examined in greater detail why the idea of collective intelligence is so relevant for deliberative democracy and which are its main elements or components in section 3.
Sustainability, 2021
Citation: Antó, J.M.; Martí, J.L.; Casals, J.; Bou-Habib, P.; Casal, P.; Fleurbaey, M.; Frumkin, ... more Citation: Antó, J.M.; Martí, J.L.; Casals, J.; Bou-Habib, P.; Casal, P.; Fleurbaey, M.; Frumkin, H.; Jiménez-Morales, M.; Jordana, J.; Lancelotti, C.; et al. The Planetary
Prólogo al libro Estado de derecho y legitimidad democrática. Perpsectivas, problemas, propuestas, compilado por Carlos D. Martínez Cinca y Gonzalo M. Scivoletto, Buenos Aires: Ediciones del Sur, 2021, 2021
Peace, Discontent, and Constitutional Law: Challenges to Constitutional Order and Democracy, edited by Martin Belov, Routledge, forthcoming, 2021
This chapter is a preliminary attempt to develop the grounds of a theory of the democratic right ... more This chapter is a preliminary attempt to develop the grounds of a theory of the democratic right to protest. Despite the important role that democratic movements and social protests play nowadays in our democracies in the promotion of justice, which quite likely will be even more important in the future, our constitutions, international declarations and conventions, and other legal instruments do not usually recognize and explicitly protect a right to protest. In this chapter I show why this absence implies a deficit from the perspective of democratic legitimacy, a gap that should be filled in. Despite the enormous literature that those social movements and protests are generating, there is very little conceptual clarity regarding the different rights concerning the more general category of rights of resistance, and I try to develop some preliminary conceptual remarks in order to introduce some clarity, even if much more analytical work needs to be done. In the chapter I argue that the right to protest should be explicitly constitionalized, and I finally suggest some initial implications of such constitutional protection.
Research Handbook on International Law and Cities, 2020
Certain cities are emerging as significant and increasingly influential global actors. There is a... more Certain cities are emerging as significant and increasingly influential global actors. There is also evidence that those cities contribute in various ways to actual international law-making, sometimes even in contradiction with their respective States’ agenda. There are several reasons why this should be considered, under certain conditions, a positive development. First, States are, on various grounds, unable to take sufficient action to address many pressing global challenges (e.g. economic inequalities, health threats, illegal migration, global warming), and, more generally, are not representing all their citizens effectively in international law-making. Second, cities are particularly well suited and able in many respects to address those challenges –due e.g. to their proximity to their citizens or their ability to coordinate transnational action-, and are, for those and other reasons, especially able to act as legitimate representatives of their citizens in international law-making. This is the case by comparison both to other public institutions (e.g. States, international organizations) and to private institutions (e.g. transnational corporations, non-governmental organizations). In this chapter, we argue for the normative view that cities should be regarded as democratic representatives in international law-making, operating within a larger system of multiple (public and private) representation. Cities may not claim to exert exclusive international democratic representation –no single type of public institution may nowadays-, but they are legitimate to participate in international democratic law-making together with other public and private representatives.
One of the most urgent debates of our time is about the exact role that new technologies can and ... more One of the most urgent debates of our time is about the exact role that new technologies can and should play in our societies and particularly in our public decision-making processes. This paper is a first attempt to introduce the idea of CrowdLaw, defined as online public participation leveraging new technologies to tap into diverse sources of information, judgments and expertise at each stage of the law and policymaking cycle to improve the quality as well as the legitimacy of the resulting laws and policies. First, we explain why CrowdLaw differs from many previous forms of political participation. Second, we reproduce and explain the CrowdLaw Manifesto that the rising CrowdLaw community has elaborated to foster such approaches around the world. Lastly, we introduce some preliminary considerations on the notions of justice, legitimacy and quality of lawmaking and public decision-making, which are central to the idea of CrowdLaw.
The present article addresses the question of the identity of the legitimate actors of internatio... more The present article addresses the question of the identity of the legitimate actors of international law-making from the perspective of democratic theory. So-doing, it lays the groundwork for a more comprehensive theory of democratic representation in international law. It argues that both statist actors, i.e. states and state-based/state-like international organizations, and civil society actors are and should be considered complementary legitimate actors of international law-making, at least under certain conditions. Of course, other scholars have considered those actors as being complementary before. Holders of the Statist Model have grown to value international law-making processes where state consent no longer applies on its own, while promoters of the Dualist Model consider the role of civil society therein as a way to overcome the shortcomings of states and IOs as sole representatives of people(s). None of those models has anything to say on the exact combination of those two sets of actors, however. The former mostly regard international civil society as embryonic and its role as purely remedial of the democratic shortcomings of the Statist Model, while the latter mostly defend a negative argument for the role of civil society actors in filling some of the representative and deliberative gaps left void by the Statist Model, without indicating how exactly civil society actors should work with statist actors in representing people(s) and enhancing democratic deliberation. Unlike previous accounts, therefore, our proposed model of representation, the Multiple Representation Model, is based on an expanded, democratic understanding of the principle of state participation: it is specifically designed to overcome or palliate the democratic deficits of more common versions of the Principle of State Consent. Second, it endorses a qualified version of the Principle of Civil Society Participation, one that is much more restrictive and more critical of the democratic defects of civil society actors than most of its current supporters. Finally, it reveals how the democratic strengths and deficits of both models are best approached as mirroring one another and need to be combined in a complex account of multiple representation, one that identifies a multiplicity of public and private actors on the state and civil society sides, does not give precedence to one side over the other, and mutually refines each of their underpinning principles so as to overcome their respective democratic shortcomings. This article should be of interest to democratic theorists and international lawyers alike, for it broaches one of the most vexed issues raised by the sources of international law, i.e. the participation of private actors in international law-making and what this implies for the legitimacy of international law.
Samantha Besson and Jean d'Aspremont (eds), The Oxford Handbook on the Sources of International Law, 2017
The sources of international law have been widely debated by international law theorists. Whether... more The sources of international law have been widely debated by international law theorists. Whether these sources are legitimate, or not, is another question. Political philosophers in recent years are paying growing attention to the legitimacy of international law and international institutions and are asking who has the right to rule and adequate standing to create international laws, and how. This chapter attempts to contribute to this debate in normative political philosophy through the more specific lens of democratic legitimacy. After presenting certain conceptual clarifications, I identify three basic principles of democratic legitimacy: the principle of ultimate popular control, the principle of democratic equality, and the principle of deliberative contestability, which can be instantiated in six more concrete requirements. I continue by exploring the limitations of two influential views on the democratic legitimacy of international law, one that articulates the legitimate sources based on the principle of state consent, and another that replaces such principle with a focus on practices of deliberative contestability among state and non-state actors. Finally, I conclude by expressing some skepticism about the degree to which the current system of sources of international law is democratically legitimate.
Critical Review of International Social and Political Philosophy, 2017
A central discussion in the theory of deliberative democracy in recent decades has focused on whe... more A central discussion in the theory of deliberative democracy in recent decades has focused on whether democratic deliberation, and consequently those participating in it, should aim, at least ideally, for political consensus. Connected to this debate is the need to define the proper place for political pluralism and disagreements in a deliberative democracy. This paper makes several distinctions and clarifications that help to understand such debates, and to see that the real contrast between the consensualist and the pluralist view of deliberative democracy concerns only minor points and has no big practical importance.
Books by José Luis Martí
Papers by José Luis Martí
Demokratie und Entscheidung
In 2003, Ruth Zimmerling wrote an article titled Globalization and democracy: a framework for dis... more In 2003, Ruth Zimmerling wrote an article titled Globalization and democracy: a framework for discussion, which was an outcome of the second annual meeting of the Tampere Club (Zimmerling 2005). The aim of that article was to offer “a systematic overview over ideas and assumptions about the relationship between globalization and democracy” (Zimmerling 2005: 61). As many other of her works, this was conceived as a contribution to bring some clarity and systematization to a discussion that back then in 2003 was already fashionable and overwhelmingly omnipresent.
El contenido del libro lo integran trabajos presentados por algunos de los mas importantes filoso... more El contenido del libro lo integran trabajos presentados por algunos de los mas importantes filosofos anglosajones del derecho penal, todos ellos profesores en aquel momento en el Reino Unido. Dichos trabajos fueron discutidos por penalistas, filosofos y criminologos de habla hispana provenientes de Espana, Argentina y Chile. En este sentido, el workshop ejemplifico tambien el tipo de acercamiento que los distintos mundos academicos, en este caso el mundo anglosajon y el hispano, o de forma mas general el mundo juridico del common law y el de la tradicion europea continental, estan viviendo en estos dias.
Esta breve contribucion se trata de la mirada de Ernesto Garzon Valdes a aspectos de la obra de F... more Esta breve contribucion se trata de la mirada de Ernesto Garzon Valdes a aspectos de la obra de Francisco Suarez, de este modo se conmemora tambien a Suarez en el aniversario del cuarto centenario de su muerte. El segundo apartado corresponde a las ideas republicanas de Francisco Suarez en conexion con las ideas de Francisco de Vitoria y en el tercer apartado se selecciona la idea de epiqueya de Suarez, que sirve para hacer compatible la universalidad de las leyes con su aplicacion a los casos particulares.
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new stuff by José Luis Martí
Books by José Luis Martí
Papers by José Luis Martí
more suffering in Europe right now than just five years ago – much more domination too. Arguably, a
sort of global redistribution is benefiting ‘developing’ countries to the detriment of the ‘developed’ world.
But Western democracies are doing badly, and their prospects are not promising.