Spurred by recent governmental transitions from dictatorships to democratic institutions, this highly original work argues that negotiated civil society-oriented transitions have an affinity for a distinctive method of constitution making_one that accomplishes the radical change of institutions through legal continuity. Arato presents a compelling argument that this is the preferred method for rapidly establishing viable democratic institutions, and he contrasts the negotiated model with radical revolutionary change. This exceptionally engaging work will be of interest to students and scholars of comparative politics, constitutional law, and East European studies, as well as to political scientists and sociologists.

Exploring the controversies and problems surrounding post-communist transitions, this innovative volume brings together a distinguished group of political scientists, economists, historians, and sociologists. Within a strong theoretical framework, the book moves between general issues of transitology and specific analyses. Hungary, a state that has weathered political and economic transition more successfully than most, is used as the volume's case study for illuminating both comparative and regional issues. By bridging the divide between area studies and comparative politics, this book will be a key resource for advanced students and for scholars in East-European/post-communist studies, comparative politics, and international relations.

The essays in this volume trace an intellectual odyssey, a search for a genuinely critical theory. The book begins with the question of why the Frankfurt School as well as other neo-Marxist and post-Marxist analysts, both in the West and in dissident circles in the East, failed to produce a critical theory of Soviet socialism or to establish a dynamic relationship with contemporary social movements. As the political struggle in Eastern Europe intensified, the author of this book disengaged from his own efforts to reconstruct a critical Marxism. Instead, he attempts a reconstruction of democratic theory based on civil society rather than class categories, and with a critical relevance not only to the transition from state socialism but more generally to the universal goal of emancipation.

The achievements of the democratic constitutional order have long been associated with the sovereign nation-state. Civic nationalist assumptions hold that social solidarity and social plurality are compatible, offering a path to guarantees of individual rights, social justice, and tolerance for minority voices. Yet today, challenges to the liberal-democratic sovereign nation-state are proliferating on all levels, from multinational corporations and international institutions to populist nationalisms and revanchist ethnic and religious movements. Many critics see the nation-state itself as a tool of racial and economic exclusion and repression. What other options are available for managing pluralism, fostering self-government, furthering social justice, and defending equality? In this interdisciplinary volume, a group of prominent international scholars considers alternative political formations to the nation-state and their ability to preserve and expand the achievements of democratic constitutionalism in the twenty-first century. The book considers four different principles of organization-federation, subsidiarity, status group legal pluralism, and transnational corporate autonomy-contrasts them with the unitary and centralized nation-state, and inquires into their capacity to deal with deep societal differences. In essays that examine empire, indigenous struggles, corporate institutions, forms of federalism, and the complexities of political secularism, anthropologists, historians, legal scholars, political scientists, and sociologists remind us that the sovereign nation-state is not inevitable and that multinational and federal states need not privilege a particular group. Forms of Pluralism and Democratic Constitutionalism helps us answer the crucial question of whether any of the alternatives might be better suited to core democratic principles.

From the co-authors of the classic Civil Society and Political Theory, Populism and Civil Society offers an empirically informed, systematic theoretical analysis of the political challenges posed by contemporary populism to constitutional democracies. Populism and Civil Society provides a political assessment and critical theory of the significance of what is now a global phenomenon: the growing populist challenge to constitutional democracy. Andrew Arato and Jean L. Cohen examine the challenge it presents in terms of its four main organizational forms: socio-political movement, political party, government, and regime. They focus in particular on the tense relationship of populism to democracy and of populism to constitutionalism. Without presupposing the authoritarian logic of the phenomenon in the definition, the book demonstrates it through the reconstruction of the main elements used by advocates to identify populism. To be sure, the authoritarian logic of populism is not realized in every instance of it, and the book analyses why this is so. Across modern history, many populist governments have in fact been "hybrid" regimes, blending authoritarian elements and residual democratic forms. Populism on its own, however, is a form of abusive or instrumental "constitutionalism" that typically relies on the alleged permanence of the quasi-revolutionary constituent power. The book concludes by outlining a non- and anti-populist project of democratization and social justice, distinguishing between the "popular" and the "populist" and offering a program that is nourished by the plurality of democracies and which rescues some of left populism's more benevolent "host ideologies."

Constitutions are made in almost all transformation of regimes. What are the dangers and the hopes associated with such a process? What can make constitution-making legitimate? The Adventures of the Constituent Power explores the democratic methods by which political communities make their basic law, arguing that the most advanced method developed from Spain and South Africa. The first part of this book focuses on history of the idea of constitution-making, before and during the democratic revolutions of the eighteenth century. The second part traces the notion of the constituent power in recent regime transitions that were consciously post-revolutionary, from Spain to South Africa. With the return of revolutions or revolutionary patterns of constitution-making, the book examines the use and potential failure of the new ideas available. The third part then proceeds to consider the type of constitution that is likely to emerge from the post-sovereign process.

The attempt in 2004 to draft an interim constitution in Iraq and the effort to enact a permanent one in 2005 were unintended outcomes of the American occupation, which first sought to impose a constitution by its agents. This two-stage constitution-making paradigm, implemented in a wholly unplanned move by the Iraqis and their American sponsors, formed a kind of compromise between the populist-democratic project of Shi'ite clerics and America's external interference.

As long as it was used in a coherent and legitimate way, the method held promise. Unfortunately, the logic of external imposition and political exclusion compromised the negotiations. Andrew Arato is the first person to record this historic process and analyze its special problems. He compares the drafting of the Iraqi constitution to similar, externally imposed constitutional revolutions by the United States, especially in Japan and Germany, and identifies the political missteps that contributed to problems of learning and legitimacy.

Instead of claiming that the right model of constitution making would have maintained stability in Iraq, Arato focuses on the fragile opportunity for democratization that was strengthened only slightly by the methods used to draft a constitution. Arato contends that this event would have benefited greatly from an overall framework of internationalization, and he argues that a better set of guidelines (rather than the obsolete Hague and Geneva regulations) should be followed in the future. With access to an extensive body of literature, Arato highlights the difficulty of exporting democracy to a country that opposes all such foreign designs and fundamentally disagrees on matters of political identity.

From the co-authors of the classic Civil Society and Political Theory, Populism and Civil Society offers an empirically informed, systematic theoretical analysis of the political challenges posed by contemporary populism to constitutional democracies. Populism and Civil Society provides a political assessment and critical theory of the significance of what is now a global phenomenon: the growing populist challenge to constitutional democracy. Andrew Arato and Jean L. Cohen examine the challenge it presents in terms of its four main organizational forms: socio-political movement, political party, government, and regime. They focus in particular on the tense relationship of populism to democracy and of populism to constitutionalism. Without presupposing the authoritarian logic of the phenomenon in the definition, the book demonstrates it through the reconstruction of the main elements used by advocates to identify populism. To be sure, the authoritarian logic of populism is not realized in every instance of it, and the book analyses why this is so. Across modern history, many populist governments have in fact been "hybrid" regimes, blending authoritarian elements and residual democratic forms. Populism on its own, however, is a form of abusive or instrumental "constitutionalism" that typically relies on the alleged permanence of the quasi-revolutionary constituent power. The book concludes by outlining a non- and anti-populist project of democratization and social justice, distinguishing between the "popular" and the "populist" and offering a program that is nourished by the plurality of democracies and which rescues some of left populism's more benevolent "host ideologies."

Constitutional politics has become a major terrain of contemporary struggles. Contestation around designing, replacing, revising, and dramatically re-interpreting constitutions is proliferating worldwide. Starting with Southern Europe in post-Franco Spain, then in the ex-Communist countries in Central Europe, post-apartheid South Africa, and now in the Arab world, constitution making has become a project not only of radical political movements, but of liberals and conservatives as well. Wherever new states or new regimes will emerge in the future, whether through negotiations, revolutionary process, federation, secession, or partition, the making of new constitutions will be a key item on the political agenda. Combining historical comparison, constitutional theory, and political analysis, this volume links together theory and comparative analysis in order to orient actors engaged in constitution making processes all over the world. The book examines two core phenomena: the development of a new, democratic paradigm of constitution making, and the resulting change in the normative discussions of constitutions, their creation, and the source of their legitimacy. After setting out a theoretical framework for understanding these developments, Andrew Arato examines recent constitutional politics in South Africa, Hungary, Turkey, and Latin America and discusses the political stakes in constitution-making. The book concludes by offering a systematic critique of the alternative to the new paradigm, populism and populist constituent politics.

The achievements of the democratic constitutional order have long been associated with the sovereign nation-state. Civic nationalist assumptions hold that social solidarity and social plurality are compatible, offering a path to guarantees of individual rights, social justice, and tolerance for minority voices. Yet today, challenges to the liberal-democratic sovereign nation-state are proliferating on all levels, from multinational corporations and international institutions to populist nationalisms and revanchist ethnic and religious movements. Many critics see the nation-state itself as a tool of racial and economic exclusion and repression. What other options are available for managing pluralism, fostering self-government, furthering social justice, and defending equality? In this interdisciplinary volume, a group of prominent international scholars considers alternative political formations to the nation-state and their ability to preserve and expand the achievements of democratic constitutionalism in the twenty-first century. The book considers four different principles of organization-federation, subsidiarity, status group legal pluralism, and transnational corporate autonomy-contrasts them with the unitary and centralized nation-state, and inquires into their capacity to deal with deep societal differences. In essays that examine empire, indigenous struggles, corporate institutions, forms of federalism, and the complexities of political secularism, anthropologists, historians, legal scholars, political scientists, and sociologists remind us that the sovereign nation-state is not inevitable and that multinational and federal states need not privilege a particular group. Forms of Pluralism and Democratic Constitutionalism helps us answer the crucial question of whether any of the alternatives might be better suited to core democratic principles.

In this first serious work on the theory of civil society to appear in many years, Jean Cohen and Andrew Arato contend that the concept of civil society articulates a contested terrain in the West that could become the primary locus for the expansion of democracy and rights. In this major contribution to contemporary political theory, Jean Cohen and Andrew Arato argue that the concept of civil society articulates a contested terrain in the West that could become a primary locus for the expansion of democracy and rights.

Constitutions are made in almost all transformation of regimes. What are the dangers and the hopes associated with such a process? What can make constitution-making legitimate? The Adventures of the Constituent Power explores the democratic methods by which political communities make their basic law, arguing that the most advanced method developed from Spain and South Africa. The first part of this book focuses on history of the idea of constitution-making, before and during the democratic revolutions of the eighteenth century. The second part traces the notion of the constituent power in recent regime transitions that were consciously post-revolutionary, from Spain to South Africa. With the return of revolutions or revolutionary patterns of constitution-making, the book examines the use and potential failure of the new ideas available. The third part then proceeds to consider the type of constitution that is likely to emerge from the post-sovereign process.

In the first essay, Habermas himself succinctly presents the centerpiece of his theory: his proceduralist paradigm of law. The following essays comprise elaborations, criticisms, and further explorations by others of the most salient issues addressed in his theory. The distinguished group of contributors--internationally prominent scholars in the fields of law, philosophy, and social theory--includes many who have been closely identified with Habermas as well as some of his best-known critics. The final essay is a thorough and lengthy reply by Habermas, which not only engages the most important arguments raised in the preceding essays but also further elaborates and refines some of his own key contributions in "Between Facts and Norms." This volume will be essential reading for philosophers, legal scholars, and political and social theorists concerned with understanding the work of one of the leading philosophers of our age.
These provocative, in-depth debates between Jurgen Habermas and a wide range of his critics relate to the philosopher's contribution to legal and democratic theory in his recently published "Between Facts and Norms." Drawing upon his discourse theory, Habermas has elaborated a novel and powerful account of law that purports to bridge the gap between democracy and rights, by conceiving law to be at once self-imposed and binding.