Chapter 1
1 Cf. Corpus Iuris Civilis: Institutiones, Book 2, Title 3 (p. 2).
2 ARISTOTLE, Politica, 1252a. Aristotle does grant that, as a consequence of irrelevant events, those not naturally suited to be slaves end up in that capacity (Politica, 1255a). Incidentally, while the basic definitions pertaining to slavery are stipulated in the Institutiones, it is indicated to be contrary to nature there: “Slavery […] is an institution of the law of nations, by which someone is subjected, contrary to nature, to the dominion of another”. (“Servitus […] est constitutio iuris gentium, qua quis dominio alieno contra naturam subicitur”), Corpus Iuris Civilis: Institutiones, Book 2, Title 3 (p. 2).
3 “[…] omnium, quae in doctorum hominum disputatione versantur, nihil est profecto praestabilius, quam plane intelligi, nos ad iustitiam esse natos, neque opinione, sed natura constitutum esse ius. Id iam patebit, si hominum inter ipsos societatem coniunctionemque perspexeris. Nihil est enim unum uni tam simile, tam par, quam omnes inter nosmetipsos sumus. Quod si depravatio consuetudinum, si opinionum vanitas non inbecillitatem animorum torqueret et flecteret, quocumque coepisset: sui nemo ipse tam similis esset, quam omnes sunt omnium. Itaque quaecumque est hominis definitio, una in omnis valet. Quod argumenti satis est, nullam dissimilitudinem esse in genere. Quae si esset, non una omnis definitio contineret. Etenim ratio, qua una praestamus belluis, per quam coniectura valemus, argumentamur, refellimus, disserimus, conficimus aliquid, concludimus, certe est communis, doctrinâ differens, discendi quidem facultate par”, M. T. CICERO, De Legibus, Book 1, Ch. 10, Sections 28-30 (pp. 295, 296).
4 “[V]is tu cogitare istum, quem servum tuum vocas, ex isdem seminibus ortum eodem frui caelo, aeque spirare, aeque vivere, aeque mori! [C]ontemne nunc eius fortunae hominem, in quam transire, dum contemnis, potes. […] [H]aec […] praecepti mei summa est: sic cum inferiore vivas, quemadmodum tecum superiorem velis vivere. […] [V]ive cum servo clementer, comiter quoque, et in sermonem illum admitte et in consilium et in convictum”, L. A. SENECA, Letter 47, pp. 139, 140.
5 Or 1863, if one takes the Emancipation Proclamation as the standard.
6 Some individual states granted this right prior to 1920.
7 One may argue that basic equality had the same meaning as the one I put forward, namely, basic rationality, in which case the powers that be (and/or those already belonging to the constituency) simply maintained that black people and/or women were not rational (or at least not as rational as white men), either for political reasons or on the basis of a real conviction. I mention this for completeness; in practical terms, it does not matter which explanation is correct.
8 One may (at present) lament the ruling of the Dred Scott case (Dred Scott v. Sandford (60 U.S. 393, 1857)), in which it was decided that “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its ‘people or citizens’. Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being ‘citizens’ within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit”. It seems safe to say that such a ruling would nowadays not be acceptable to most people, but that does not necessarily mean that it was ‘wrong’ (or that a contrary decision would have been ‘right’). The reason why such a line of thought would not be acceptable at present must, I think, be found elsewhere than in ‘moral’ considerations. I will deal with the issue of slavery in chapter 6 in some detail, where it will become apparent what this alternative is.
9 C. SCHMITT, Die geistesgeschichtliche Lage des heutigen Parlamentarismus, p. 18.
10 Cf. C. SCHMITT, Verfassungslehre, p. 225. Schmitt’s conception of ‘democracy’ is somewhat complex; it will receive attention in chapter 16.
11 E.g., R. DWORKIN, A Matter of Principle, p. 196: “Democracy is justified because it enforces the right of each person to respect and concern as an individual; but in practice the decision of a democratic majority may often violate that right, according to the liberal theory of what the right requires” (cf. pp. 65, 66).
12 A complicating factor is that citizens’ right to (indirectly) have a decisive influence on the legislative process is an integral part of democracy; if this right is characterized as ‘politische Freiheit’ (‘political freedom’) (H. KELSEN, Vom Wesen und Wert der Demokratie, § 9 (p. 93)), this freedom is of course part of all states with formal democracy (lest they not be democratic states in the first place), whether they are liberal or not.
13 Excluding, e.g., those that reside in a country illegally from exercising (at least some) rights.
14 “In a word, who is or who is not a citizen depends on the law, and on the law alone. The difference between citizens and noncitizens is not natural but conventional. Therefore, all citizens are, in fact, ‘made’ and not ‘born’”, L. STRAUSS, Natural Right and History, p. 104.
15 Perhaps this must be considered a pleonasm, in the sense that a person can only come to exist as a person once a state is in place, and this may be taken to mean that one is only able to manifest oneself thus (stably) in this situation (cf. Th. HOBBES, Leviathan, Ch. 13 (p. 89) and Ch. 46 (p. 459)), or, more radically, that it is impossible for a person, a human being, to be (i.e., to exist) at all if a state, or, more broadly, a society, is not in place to let such a being come to fruition, which Rawls formulates as follows: “We have no prior identity before being in society: it is not as if we came from somewhere but rather we find ourselves growing up in this society in this social