Faculty Chapters

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New York Convention, Introduction

Friedrich Rosenfeld and Franco Ferrari

This is an entry on New York Convention, introduction in the Elgar Concise Encyclopedia of International Commercial Arbitration. This Encyclopedia provides a concise overview of key topics in the field of international arbitration. The Encyclopedia covers the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration, and the IBA Guidelines on conflicts of interest, party representation, and the taking of evidence. Entries also discuss alternative methods of dispute resolution, such as mediation, all stages of arbitration proceedings, including the various post-award stages, among many other fundamental matters of commercial arbitration. Examining relevant case law from major arbitration hubs, this Encyclopedia is a valuable resource for students and scholars in arbitration and dispute resolution, commercial law, comparative law, and public international law. It is also an important reference for legal practitioners and professionals, including arbitrators, attorneys, judges, and tribunal secretaries.
Meaning and Value Across the Generations

Samuel Scheffler

This chapter argues that our relations to our successors are richer, more varied, and more complex than is sometimes recognized. Although we cannot in any straightforward sense interact or form personal relationships with people who will live long after we have died, future generations nevertheless matter greatly to us and in a variety of ways. These facts, which reflect our underappreciated historicist sensibility, must be taken into account in developing an adequate theory of intergenerational ethics. They are also facts of great motivational significance. To ensure the survival of humanity, sufficient numbers of people must be strongly and stably motivated to solve the problems that threaten future generations, and people’s sense of moral obligation may not, by itself, be sufficiently robust or reliable to provide all the necessary motivational support. So one challenge we face, in seeking to address problems like climate change and nuclear proliferation, is to overcome this potentially disabling motivational deficit. Yet once one appreciates the complexity of our attitudes toward future generations, one can see that we have a variety of reasons for caring about the fate of our successors. These reasons provide additional motivational resources that may complement and cooperate with our distinctively moral motivations for addressing threats to future generations.
Time Is, Time Was: Evaluating the Use of the Life Cycle Model as a Fiscal Policy Tool

Daniel N. Shaviro

What time periods should we use in tax and other fiscal policy to evaluate people's circumstances, and thus to determine either how they are being treated, or how they ought to be? This question is both fundamental and pervasive. This chapter provides a critique of the standard life-cycle model. The analysis reveals that there is no simple answer to the question of how lifetimes, as opposed to shorter periods (themselves requiring further definition) should be used in measuring economic inequality, fiscal progressivity, or the question of why (and how much) inequality matters. Perhaps more important than any particular conclusion is the need for continuing methodological humility and agnosticism in how we think about these issues.
Human Dignity

Jeremy Waldron

My task is to consider the role of human dignity in constitutional law. Here is a suggestion I would like to offer about the work that it does. Human dignity serves not only as the content of certain rights or as a ground or foundation for human rights in general, but also as a basis on which fundamental rights are interpreted and applied. Indeed, not only that: I think human dignity works as an integrating idea across the whole range of constitutional considerations – structural as well as rights-based, empowering as well as constraining. The idea of human dignity is indispensable not only to our sense of the constitutional protections that we need, but also to our whole sense of the underlying status and authority of the ordinary human persons for whose sake constitutions are framed and their provisions upheld.
Kant and “Can’t”: Practical Necessity and the Diminution of Options

Jeremy Waldron

States and institutions in both conventionally authoritarian and formally democratic societies overtly circumscribe freedom in any number of ways. Yet there are also subtler forms by which authorities and cultural forces compromise the choices of individuals in ways that do not seem, at first glance, to be coercive. This book brings together a distinguished set of scholars to examine covert constraints on academic, political, and economic freedom from a variety of angles, developing surprising and timely new insights. Ranging across philosophy, economics, law, health, science, art, and the media, luminaries from different fields expose threats to freedom within avowedly liberal and democratic institutions and cultures. Their incisive essays, both analytical and historical, emphasize how economic inequality, academic orthodoxy, media control, racism, and gender roles undermine the potential for human flourishing. By considering such multifarious noncoercive threats, they illuminate the vexed notion of freedom. Lively and learned, this book offers a provocative and urgent understanding of the often-unacknowledged forces that restrict our choices.
A Non-Christian Europe—Is It Possible?

Joseph H. H. Weiler

Thinking with St. John Paul II vol. III is a result of a series of monthly "JP2 Lectures" held in the academic year 2022/2023 at the Pontifical University of St. Thomas Aquinas-Angelicum in Rome. The "JP2 Lectures" have been introduced to the Angelicum's curriculum by the St. John Paul II Institute of Culture as lectures open to the public and promoting reflection on a wide range of topics in the light of St. John Paul II's intellectual and spiritual legacy. The authors of texts included in this volume are some of the most prominent intellectuals of our time from across the world. Volume III is eight texts from 2022/23 by Antoine Arjakovsky, Mirosława Grabowska, Vittorio Possenti, W.H. Weiler, s. Helen Alford, O.P., Dariusz Karłowicz, Rusty R. Reno, and Fr. Franciszek Longchamps de Berier. Topics include i.a. questions relating the theory and reality of secularisation and the crisis and polarisation of Europe in a Christian perspective.
Epilogue: The Amicus Curiae Opinion of the International Association for Jewish Lawyers and Jurists of the CJEU Shechita Case

Joseph H. H. Weiler and Meir Linzen

Submitted on behalf of the International Association of Jewish Lawyers and Jurists in case C-336/19 Centraal Israëlitisch Consistorie van België and Others
The New Old Civil Rights

Kenji Yoshino

This essay first describes how legislation and doctrine create the temptation to build “like race” or “like sex” paradigms for age. It then argues that advocates should resist this temptation for both empirical and strategic reasons. It demonstrates how unmooring the age discrimination paradigm from traditional civil rights models allows us to apprehend it better by considering the distinctive fears older individuals conjure about our own mortality. Finally, it considers how such insights might be incorporated into antidiscrimination law and politics.
Acknowledging the Complexity of the Human Rights Regime

Philip G. Alston

At first glance, vernacularization and quantification might seem to have little to do with one another; in fact, they both serve to emphasise the importance of a nuanced and sophisticated understanding of the complexities of human rights. Simplicity and neatness are often sought by those who wish to ensure that human rights norms are understood and respected, that compliance can be measured and that countries’ performance can be judged and compared. But there are limits to simplification, whether it applies to the normative framework or to the evaluation of compliance. This volume explores the limits of two of the most prominent techniques for promoting what might be termed the ‘de-complexification’ of human rights. The first is an insistence that human rights norms represent a universally valid and accepted consensus and that they do, or should, have the same meaning everywhere in the world (the universalising technique). While the aspiration to achieve universality in certain respects is integral to the international regime, that term is often understood and invoked in ways that are both inappropriate and counter-productive. The second is the rapidly increasing use of quantification, and especially of composite indicators, to capture the essence of complex rights issues, to evaluate compliance and to rank the human rights performance of states or other actors (the quantification technique). Again, while indicators are potentially important to developing a deeper understanding of what is happening in practice, it is important to recognise their limitations and their potential to distort reality.
Acknowledging the Complexity of the Human Rights Regime

Philip G. Alston

Linking Vernacularization and Quantification. At first glance, vernacularization and quantification might seem to have little to do with one another; in fact, they both serve to emphasise the importance of a nuanced and sophisticated understanding of the complexities of human rights. Simplicity and neatness are often sought by those who wish to ensure that human rights norms are understood and respected, that compliance can be measured and that countries’ performance can be judged and compared. But there are limits to simplification, whether it applies to the normative framework or to the evaluation of compliance. This volume explores the limits of two of the most prominent techniques for promoting what might be termed the ‘de-complexification’ of human rights. The first is an insistence that human rights norms represent a universally valid and accepted consensus and that they do, or should, have the same meaning everywhere in the world (the universalising technique). While the aspiration to achieve universality in certain respects is integral to the international regime, that term is often understood and invoked in ways that are both inappropriate and counter-productive. The second is the rapidly increasing use of quantification, and especially of composite indicators, to capture the essence of complex rights issues, to evaluate compliance and to rank the human rights performance of states or other actors (the quantification technique). Again, while indicators are potentially important to developing a deeper understanding of what is happening in practice, it is important to recognise their limitations and their potential to distort reality.
Imagining an American Nation: Sharing Our Stories

Kwame Anthony Appiah

In New Narratives on the Peopling of America, editors T. Alexander Aleinikoff and Alexandra Délano Alonso present an extraordinary collection of original essays that reshape our understanding of the peopling of the United States. This thought-provoking volume goes beyond conventional accounts of immigration by reexamining narratives about foreign-born populations in the United States. It situates them as part of a larger story of forced displacement and dispossession that needs to include indigenous people, enslaved persons, deported and returned migrants, and those residing in territories and foreign nations acquired by the United States. The diverse range of contributors―which include academics, journalists, artists, legal scholars, and activists―confront complex topics such as migration, racial justice, tribal sovereignty, and the pursuit of equality. As nationalism, globalization, and economic challenges reshape the social and political landscape, this timely volume calls for a reevaluation and reconstruction of national narratives of belonging. Challenging nativist tropes and offering broader understandings of collective history, this path breaking book centers issues of race and dispossession in the story of the American people. New Narratives on the Peopling of America is an essential resource for students and a compelling read for general readers seeking a deeper understanding of the complex tapestry of American identity.
Making Change

Kwame Anthony Appiah

This chapter reviews the arguments for the role of honor in moral revolutions, stressing the role of social movements with identities organized around their aims. Using the examples of anti-footbinding in China and the abolitionists in Great Britain, the chapter shows that a movement will be successful if it creates an identity, such as an abolitionist, through a shift in attitudes in society. Abolitionism encompassed a wide range of social classes, who were ashamed of the slave trade. The chapter proposes that a similar shift in attitudes in society may well occur, with regard to the urgent environmental climate crisis that the world is now facing. What may work, the historical evidence suggests, is the development of ‘green’ identities around a small set of relatively well-defined aims.
Patents and Economic Inequality

Daniel Benoliel and Rochelle C. Dreyfuss

The needs of the global South are proving to be far more complex and challenging to ameliorate than anticipated when the World Trade Organization was established amid promises of enhancing social welfare. In particular, inequality among member states has persisted despite the optimistic projections made during the Uruguay Round negotiations. This issue concerns intellectual property scholars because economic theory suggests that technology policy is a key contributor. After discussing the roles that innovation and international intellectual property protection play within the theory of economic inequality, this chapter focuses on the impact of international patent law. It demonstrates how the demands of the North for ever-stronger patent and patent-like protection exacerbate the problem of technological inequality. The chapter ends with suggestions for ways in which the patent system could be restructured to better enable local inventors to avail themselves of the global knowledge base and enhance the incentives available to innovators who fulfill the needs of the South. In the authors’ view, reducing intellectual property-based inequality in the ways this chapter outlines is a key step toward mitigating the problem of income inequality.
Petitions Above Party: Congressional Representation and Petition, 1789-1950

Maggie Blackhawk and Daniel Carpenter

Political theory has long recognised the centrality of parties to representative democracy, even going so far as to claim that ‘parties created democracy’. Yet far less attention has been paid to other mechanisms of representation – above all, the petition. This chapter draws upon an original database of over 500,000 petitions submitted to the Congress from the Founding to 1950. The data demonstrates that petitions were a vital form of representation. The volume of petitions to Congress experienced a number of peaks before declining steadily in the early 20th century. After 1945, the vestiges of the congressional petition system were dismantled by a series of federal laws, and the number of petitions dwindled to negligible levels. The trends for petitions to seem not to correlate with major party shifted, unlike the close relationship between patterns of partisanship and the electoral process. In contrast, there does not appear to have been a period where the party in power resulted in a broadening or narrowing of petitioning. The exception centred on the ‘Gag Rule’ in Congress and focused more on the battle over slavery than petitioning and representation. This chapter shows that petitions were an important and independent form of representation within Congress.
Introduction

Sujit Choudhry, Michaela Hailbronner, and Mattias Kumm

The introduction situates the project in the broader comparative law literature and in the context of contemporary political developments. It discusses the meaning and functions of a canon of comparative law. Acknowledging the challenges involved with such a concept, in particular its Western bias and questions of exclusion, it argues for understanding a canon as not as a selection of the best interpretation of certain shared values or principles, but a space for a conversation about central normative underpinnings of democratic constitutionalism. At a time when we observe a retreat from universal categories towards more particularist understandings, sometimes coupled with the erosion of democratic constitutionalism, this kind of conversation is more necessary than ever. The second part of the introduction offers an outline of the volume and a detailed summary of the following chapters.
Politicization of International Anticorruption Law

Kevin E. Davis

This chapter considers the rules that govern—and ought to govern— interactions between political actors and anticorruption enforcers across international borders. Those rules determine both whether politicians are able to influence international anticorruption enforcement and whether international anticorruption enforcement affects foreign political processes. The motivating example is President Donald Trump's attempt to influence Ukraine's investigation of Joe and Hunter Biden. Other examples include Brazil's Operation Car Wash and the prosecution of BAE Systems. The basic argument is that it is justifiable for countries to take different approaches to regulation of these sorts of international interactions between law enforcement and political processes.
Foreword

Gráinne de Búrca

This volume is based on an intriguing premise, reflecting a similar approach to that adopted in some other ‘Leading Works’ volumes, which is that a promising way to reflect on the field of international law and on the development of international law scholarship is to ask a number of prominent academics in the field to consider and discuss one or more major works, its origin and its influence on the field over time, as well as on the work of the authors themselves. In this particular volume, the editor has asked the various contributors to focus on one of their own major works, rendering the autobiographical dimension of the reflections all the more interesting for the reader. Following this approach, Donna Lyons has assembled and introduced an impressive line-up of prominent academics from various fields of international law and from various parts of the world and different scholarly traditions and perspectives to provide their reflections. The range of work discussed includes field-defining contributions from scholars such as James Crawford (completed by Freya Baetens, following his untimely death) on the creation of states, Eyal Benvenisti on the law of occupation, and Muthucumaraswamy Sornarajah on international investment law. It covers contributions to international legal scholarship by iconic critical authors Martti Koskenniemi and David Kennedy (in conversation with each other other), as well as from Obiora Okafor on the imperialism of international law from a TWAIL perspective. The scholarly contributions on which the authors reflect include major works on human rights from political science scholars Beth Simmons and Kathryn Sikkink, thoughtful interventions from Martha Minow on accountability after mass atrocity, and from Fionnuala Ní Aoláin, Dina Francesca Hayes, and Naomi Cahn on gender in post-conflict processes. Oona Hathaway and Scott Shapiro discuss their work on the prohibition of the use of force from a historical perspective, while Larry Helfer looks back on his influential work on exiting treaties and its impact over time. It would be difficult for any volume to claim to represent much of, or even the most prominent contributions to, a field of scholarship as broad as that of international law, whether in its list of authors or in its subject matter. The breadth of the field is vast, the range of perspectives, approaches, and preoccupations is enormous and diverse, and the potential list of worthy scholars is dizzying. There will always be room for pointing to gaps, omissions, alternatives. Nevertheless, Donna Lyons has brought together some of the major and justly celebrated authors in prominent fields of international law, which make this volume an interesting, enjoyable, and educational read. A second question is whether the best way—or even a good way—to gain an understanding of the fields of international law scholarship and to assess the influence of different approaches or the impact of different scholars is to ask the authors themselves. It is not clear that we as academics are the best judges of our own work, or can clear-sightedly appraise the significance and impact or otherwise of our ideas and their exposition. On the other hand, there is already a multitude of conventional ways, including book reviews, debates, and scholarly responses, to give critics and interlocutors ample opportunity to challenge, criticise, and assess the scholarship of others. It is, however, relatively rare to hear a scholar reflect openly on their own work. We may occasionally hear what it was that prompted or inspired a piece of scholarship, or what the motivation for a given academic work was, but it is less usual to encounter authors publicly contemplating what their contribution to the field may have been and how their work has or has not been received. The autobiographical dimension of this particular collection—the ways in which the various scholars who have been invited to consider their own contributions to the field express their thoughts on this question—is interesting and original in its own right, and makes for a fascinating set of chapters. Not all of the authors have approached the task in the same way, which makes the book more interesting for the reader. Some have chosen to elaborate in more depth on what prompted their decision to write on a particular subject, who or what influenced them in that choice, and the questions they wrestled with as they wrote. Some have focused in more detail on the political and economic context in which the work was written, and what the author hoped to achieve by their academic intervention. Other authors have looked more closely at the range of critics and supporters of their ideas, at the initial reception of the work and its subsequent influence on other scholars as well as on elements of practice. Some of the authors reflect on whether their ideas have held up, and what changes the current context might suggest. There are fascinating autobiographical details that contextualise the work of producing scholarship and give additional colour and nuance to leading texts with which readers may be familiar. Ultimately, perhaps as much as or even more than learning about the meaning and contribution of these leading works of international law scholarship, what the reader gains from the chapters in this volume is a sense of learning more about the authors themselves, some glimpses of their psychology and character, their understanding of their role as scholars, practitioners and critics, and how they view the significance—or otherwise—of the field of international law.
Resisting External Accountability: The European Union and Human Rights

Gráinne de Búrca and Claire Kilpatrick

In her analysis of EU trade policy, Cremona drew attention to the use of human rights clauses in EU trade agreements. More generally, she saw the relevance of the EU’s core values – human rights, democracy and the rule of law – as foundational elements of EU external relations. In its expansion into policy domains beyond economic law issues of fundamental rights protection in the application and implementation of those policies raise more directly the responsibility and accountability of the EU for human rights protection. The EU today has quite a strong and extensive body of human rights law, with numerous internal accountability institutions and mechanisms. However, despite the EU Treaty declaration that it is founded on respect for human rights, and despite assertions of openness to the UN and the international legal order, the EU to date has resisted external human rights accountability. This chapter argues that external accountability is a key dimension of modern human rights law. De Búrca and Kilpatrick argue that the EU’s poor record in this respect – its decision to accede fully to just one international human rights treaty (the UN Convention on the Rights of Persons with Disabilities), and only partially to a second (the Istanbul Convention), while showing little interest in the wider body of international human rights treaties and their accountability mechanisms – is not justified by any compelling reasons, but instead undermines the EU’s stature and credibility as an international actor.
Buildings and Climate Change

Ahmi Dhuna and Katrina M. Wyman

This chapter focuses on the relationship between buildings and climate change, in particular the contributions that buildings make to planetary warming from greenhouse gas (GHG) emissions. In 2019, buildings contributed 21 percent of global GHG emissions, with most building emissions coming from building operations. While GHG emissions are not an inherent feature of buildings, building developers, owners, and occupants currently lack sufficient incentives to decarbonize buildings on their own. This chapter identifies examples of government policies from around the world intended to spur reductions in GHG emissions from building operations and emissions embodied in building materials. It emphasizes that decarbonizing buildings requires decarbonizing other sectors, most notably electricity generation. In addition, some of the steps taken to reduce building emissions, such as increasing energy efficiency, will facilitate decarbonizing other sectors, such as electricity generation, by reducing buildings’ demand for energy.
The Electoral Reform Imperative

Larry Diamond, Edward B. Foley, and Richard H. Pildes

Scholars, journalists, and the American people broadly agree that American democracy is in difficulty, if not grave danger. Recent surveys consistently find that 50 to 60 percent of Americans are not satisfied with the way democracy is working in the United States. And they think the problem is systemic. In a 2021 Pew survey, a stunning 85 percent of Americans said the US political system either needs “major changes” or must be “completely reformed”; 58 percent of adults who reported wanting substantial reforms said “they are not confident the system can change.” These figures were among the highest of all advanced industrial democracies surveyed in 2021. In 2022, Americans’ confidence in their national government was the lowest among citizens of G7 democracies (31 percent), about the level of Nigeria and Venezuela. And early that same year, a Quinnipiac poll found that substantial majorities of both Democrats and Republicans believed “the nation’s democracy is in danger of collapse.”
Monopolization

Bret Dickey and Daniel L. Rubinfeld

Section 2 of the Sherman Act is the primary federal law governing monopolization. The Supreme Court has identified two elements that must be established for a violation of Section 2: the possession of monopoly power and the acquisition or maintenance of such power as a result of anticompetitive conduct. Unilateral conduct is typically evaluated under the rule of reason, using a burden-shifting framework. A variety of unilateral practices are evaluated under the rule of reason, including exclusive dealing, predatory pricing, tying, bundling, refusals to deal, and the abuse of intellectual property.
Monopoly

Bret Dickey and Daniel L. Rubinfeld

Because a monopolist, a single seller, can set the price of its product or service with limited restraints from competition, it has an incentive to sell a smaller quantity at a higher price than would be the case if the market were competitive. As a result, monopoly will harm consumers and impose a cost on society (a) because those that do buy the product or service will pay more than they would if the market were competitive and (b) because some consumers who would buy at a competitive price will choose not to buy the product or service at the higher monopoly price. Monopsony, a single buyer, similarly harms sellers and imposes costs on society because the monopsonist has an incentive to purchase a smaller quantity at a lower price than in a competitive market.
Harm Principle

Richard A. Epstein

The Elgar Encyclopedia of Crime and Criminal Justice stands apart as the most comprehensive global reference title in its field. New entries will be added every month and PDF downloads will be available once the Encyclopedia is complete.
Waivability of Employment Rights: New Frontier or Road to Perdition?

Cynthia Estlund

The employment relationship is essentially contractual, founded as it is on an individual’s agreement to perform work for another for remuneration. Yet many terms and conditions of employment are governed by legislated rights and labour standards that are mandatory and not derogable by the parties to the employment contract. The principle of nonwaivability of employee rights is basic to the law of work across the developed world, and highlights the basic division of labour, so to speak, between mandates and contract in the law of work. But the principle is not uniformly applied and questions continue to percolate: Should workers or their unions be allowed to trade away some existing or future worker entitlements? In short, should the law of work concede more ground to contract? This chapter asks whether, and when, limited waiver rights might help to meet challenges posed by heterogeneity of jobs, industries, and workers’ interests.
Tuck’s Democracy

John Ferejohn

Richard Tuck argues in chapters 1 and 2 that modern democracies are really no such thing. Most, he says, have followed Abbé Sieyès in adopting a form of government, based on elected representatives, in which the “effective” citizenship is reserved to a small fraction of the people who have the political rights or capacities to play an active role in government. The rest remain passive citizens who enjoy some security and welfare and protection of civil rights, but whose role in government is confined to periodic (and not very frequent) elections. He traces Sieyès’s legacy through Hegel, Guizot, and Mill and, in our own day, to Joseph Schumpeter and others who defend what many have called minimal or “elitist” versions of democracy. Bernard Manin has described this system in detail in his book on representative government, and many defend it as the best feasible kind of democracy for a modern state. Moreover, at least since World War II, modern states have increasingly adopted rigid, judicially enforceable constitutions with the effect of guaranteeing the protection of the rights of both passive and active citizens, and specifically against the actions of the majority. Tuck regards modern Sieyèsian government, constitutional representative government, as profoundly undemocratic and argues in favor what he calls radical (majoritarian) democracy—advancing a theory of what he calls a “Rousseauian” kind against its modern critics. Tuck builds his theory on a novel conception of “active citizenship” in which, he claims, individuals can see themselves as causally responsible in some way for the laws—or at least the newly enacted laws. Insofar as most people can think of themselves plausibly as active citizens in this way, Tuck says that the laws will be legitimate because the people would be living under laws they “made.” Active citizenship, he argues, is both an attractive and feasible idea for the modern democratic state. If citizens embraced this self-conception, individuals would be amply motivated to exercise their political rights as active citizens and in that respect, live under laws of their own making. Tuck also insists that everyone who lives (legally?) in the country and is subject to its laws, must be allowed a genuine role in making them. Each (adult) resident— male, female, alien, or native—must therefore be enfranchised in order to make law with others on equal terms. Tuck recognizes that by permitting the vote to all legal residents, there would have to be regulation of movement at the borders and an immigration policy that assures that those who come are committed to living together with others on equal terms. This policy, he hopes, will be as liberal as possible, but if I understand his conception correctly, I am not sure how liberal it can be. Tuck allows that we may, for practical reasons, choose to elect representatives to parliament so that they may (perhaps?) debate and develop legislative proposals and may (in the end) formally enact the laws. But these representatives, he argues, ought to be instructed delegates, whose duty is to execute the instructions conveyed to them by their constituents. He seems to agree with Rousseau that laws should be general, more like constitutional provisions rather than ordinary legislation. Besides, construing laws as pertaining to constitutional essentials—which might be few in number and general in scope—makes plausible the notion that ordinary people would have views on those matters and that representatives could be instructed to act on those views. If there is a chance that representatives may stray from their remit, perhaps instructions would need to backed up with recall elections (as in California) but Tuck seems not to require this. These institutional ideas are not really developed much here beyond hints from and an implicit reliance on Rousseau’s political works to help fill in the blanks. Tuck’s institutional principles seem to be these: 1. (generality) Each person should be treated equally by the law (as a subject); laws are general/abstract “constitutional” provisions. 2. (democracy in one country) Each (adult legal) resident should have an equal role in lawmaking activity, subject to legal residence being regulated at the borders. 3. (radical democracy) Laws (principle 1) are made either by direct majority vote among those eligible to vote (principle 2) or by elected representatives acting according to instructions given them by their constituents (principle 2). These principles are consistent with and supported by what seems to be a moral principle: 4. (active democracy) Each person regards him- or herself as obliged to exercise his or her right to vote actively by playing the part of an agent in making the laws together with others. I have several questions. In section I, I ask whether Rousseau’s institutional prescriptions provide much help for Tuck’s radical democracy project. First, despite what French revolutionaries may have thought, it is very hard to see Rousseau as committed to either to equality in voting or to democratic government. While the sovereign must approve any law by voting, it is not clear that the voting rule would weigh each vote equally. Second, It is not clear to me that the Rousseaian institutional principles 1 and 3 actually constrain the government from acting arbitrarily. If laws must be general and abstract, as Rousseau and Tuck demand, government officials must retain authority to interpret laws in order to apply or follow them. Moreover, the sovereign, as such, seems to lack any “legal” way of responding to particular governmental acts by, for example, striking down offending decrees. Such an action would necessarily be particular rather than general. Moreover, while elected representatives are to be restricted to following instructions in making general laws, are they also restricted in any way when undertaking magisterial activity (enacting day-to-day particular legislation and appropriations and decrees, which form most of the activity of a modern parliament)? In section II, I explore Tuck’s agentic view of politics and argue that what makes Tuck’s radical democracy attractive is its foundation in the moral principle of active agency. Unless people see themselves as having the obligation to take an active responsibility for the laws in the way that principle 4 requires, radical democracy seems more dangerous than alluring. Section III concerns diversity and the treatment of minorities both outside the country (seeking residence) and inside (seeking protection against repression). How is principle 2 supposed to work? Presumably the state must have the authority to restrict entry to assure that those who enter are suitably committed to common purposes. This may be a very demanding and potentially quite illiberal requirement. Potential entrants might need to show they are morally worthy of citizenship. Rousseau’s recommendations as to how Poland should treat its serfs may provide some guidance. He recommends treating them as supplicants asking for admission and not as rights-bearers. Moreover, is state policy to be restricted only to admitting (some of) those people who appear to be committed to active citizenship of the kind Tuck recommends? Or may the failure to conform to the morality of active citizenship also justify expulsions of those already in the community? Then, whatever law the people, as sovereign, enact concerning immigration, how does that actually constrain governmental interpretation and enforcement either at the border or when considering the treatment of historically oppressed minorities (the Polish serfs again)?