Monographs and edited books

Verhältnismässigkeit und Akteursperspektive im modernen Verwaltungsstaat
In preparation.

Public Law Analogies in International Legal Theory
Book manuscript.

Recent decades have seen a remarkable strengthening of international law, giving rise to an array of new forms of public power that directly affect the lives of individuals. In their search for new concepts to theorise these unfamiliar forms of public power and their legitimacy, international legal theorists have resorted to two main strategies: either develop new concepts, such as global governance, stakeholder participation, and accountability; or adapt old concepts such as public authority, democracy, and the rule of law to new circumstances. This is a book about the second strategy, which I call Public Law Analogies—to take concepts traditionally reserved for theorising the exercise of public power within liberal democratic states and extend them by analogy beyond liberal democratic states. The people of liberal democratic states are facing a dilemma: how to reconcile the need for strengthened international institutions with a commitment to the principles of liberal democracy? On the picture that emerges from this book, Public Law Analogies are conceptual adaptions that try to respond to our new need for more international rule.

Verfassungsrecht der Schweiz / Droit constitutionnelle suisse
Handbook on Swiss constitutional law. Managing editor. Published with Schulthess in January 2020.

Globalisation has irrevocably changed the state and its institutions; the relationship between direct democracy and international law is experienced as more conflictual than at the beginning of the 21st century; migratory movements raise new questions of minority protection and coexistence; and the adequate protection of communication freedoms and privacy poses a variety of challenges in the age of big data, fake news and artificial intelligence. What do all these changes mean for the constitutional law of Switzerland as a basic framework for public life? Twenty years after the new Federal Constitution came into force on 1 January 2000, this joint work by the professors of constitutional law teaching at Swiss universities subjects Swiss constitutional law to fundamental scrutiny. The authors do not just comment on individual constitutional articles, but devote themselves to basic reflection in short thematic chapters. Contributions are intended to stimulate further reflection and to place questions of constitutional law in a broader historical and cultural context. The international dimension is taken into account, as well as the constitutional law of the cantonal and communal levels. In addition, the book provides a comparative law perspective that allows Swiss particularities to be viewed in a new light. The work not only aims to provide answers, but also to raise new questions for the future.

Published and forthcoming articles

Basic Rights and Costs in Political Value: The Expressive Point of the Two-Step Framework
International Journal of Constitutional Law. Forthcoming.

Within the two-step framework of basic rights adjudication, the first step asks whether the ‘scope’ of a right was infringed, and the second step looks at the ‘justification’ for the infringement to assess whether a right was violated. Many scholars have offered theoretical accounts of the second ‘justification’ stage, but there is widespread puzzlement about the practical point of the first ‘scope’ stage. Against calls to either radically narrow or broaden the scope of basic rights, this article presents an account of the first ‘scope’ stage that suggests a more moderate approach to the scope of basic rights and makes sense of its distinct normative significance. Drawing on Bernard Williams’ work on conflicts between liberty and equality, I develop a novel understanding of ‘costs in political value’ and argue that the expressive point of the two-step framework is to acknowledge and respect particularly grievous costs in political value. The doctrinal judgment that there has been a ‘basic rights infringement’ is meant to express such acknowledgment and respect, even if these costs can be justified and there was no ‘basic rights violation.’ My article offers practical guidance for thinking about inclusions and exclusions from the scope of basic rights and illustrates how the two-step framework mediates between legal and political discourse.

Constructing Liberty and Equality – Political, Not Juridical
Jurisprudence: An International Journal of Legal and Political Thought.

When offering constructions of political values, it is common to generally strive for unity, i.e., to aim at principled definitions and the reduction of normative conflict. In this article, by contrast, I argue that we should aim to construct broad and conflicting concepts of the central liberal democratic values of liberty and equality. Taking my cue from an under-appreciated debate between Ronald Dworkin and Bernard Williams, I suggest that the demand for unity derives its appeal from a juridical model of political value construction, which assumes the unified perspective of public decision-making. But while this model may be apt for constructing institutional rights, the construction of the political values liberty and equality had better operate according to a political model, which focuses on the perspective of citizens that live in a relationship of political opposition. Not only is there no demand for unity from that perspective, but there is a positive demand for political plurality: we need to draw on broad and conflicting concepts of liberty and equality if we are to respect the claims of fellow citizens with whom we have value-based political disagreements.

Theorizing the Normative Significance of Critical Histories for International Law
Journal of the History of International Law. With Matthieu Queloz.

Though recent years have seen a proliferation of critical histories of international law, their normative significance remains under-theorized, especially from the perspective of general readers rather than writers of such histories. How do critical histories of in- ternational law acquire their normative significance? And how should one react to them? We distinguish three ways in which critical histories can be normatively signifi- cant: (i) by undermining the overt or covert conceptions of history embedded within present practices in support of their authority; (ii) by disappointing the normative ex- pectations that regulate people’s reactions to critical histories; and (iii) by revealing continuities and discontinuities in the functions that our practices serve. By giving us a theoretical grip on the different ways in which history can be normatively sig- nificant and call for different reactions, this account helps us think about the overall normative significance of critical histories and how one and the same critical history can pull us in different directions.

Left Wittgensteinianism
European Journal of Philosophy. With Matthieu Queloz.

Social and political concepts are indispensable yet historically and culturally variable in a way that poses a challenge: how can we reconcile confident commitment to them with awareness of their contingency? In this article, we argue that available responses to this problem—Foundationalism, Ironism, and Right Wittgensteinianism—are unsatisfactory. Instead, we draw on the work of Bernard Williams to tease out and develop a Left Wittgensteinian response. In present-day pluralistic and historically self-conscious societies, mere confidence in our concepts is not enough. For modern individuals who are ineluctably aware of conceptual change, engaged concept-use requires reasonable confidence, and in the absence of rational foundations, the possibility of reasonable confidence is tied to the possibility of critically discriminating between conceptual practices worth endorsing and those worth rejecting. We show that Left Wittgensteinianism offers such a basis for critical discrimination through point-based explanations of conceptual practices which relate them to the needs of concept-users. We end by considering how Left Wittgensteinianism guides our understanding of how conceptual practices can be revised in the face of new needs.

Whence the Demand for Ethical Theory?
American Philosophical Quarterly. With Matthieu Queloz.

In this article, which served as a pilot study for some of the core ideas of my postdoc, we develop a nuanced reading of Bernard Williams’ work on ethical theory by asking what concrete practical situations drive human beings to render their values explicit, consistent and discursively justifiable. It presents the demand for ethical theory as context-sensitive and scalable, thus answering the question of how Williams can make room for the idea that different standards of reasoning apply to different practical domains. Where does the impetus towards ethical theory come from? What drives humans to make values explicit, consistent, and discursively justifiable? This paper situates the demand for ethical theory in human life by identifying the practical needs that give rise to it. Such a practical derivation puts the demand in its place: while finding a place for it in the public decision-making of modern societies, it also imposes limitations on the demand by presenting it as scalable and context-sensitive. This differentiates strong forms of the demand calling for theory from weaker forms calling for less, and contexts where it has a place from contexts where it is out of place. In light of this, subjecting personal deliberation to the demand turns out to involve a trade-off.

Nietzsche as a Critic of Genealogical Debunking
The Monist. With Matthieu Queloz.

This article originated from a long-standing interest in the critical power of history that was first sparked by the late Fritz Stern. Its main aim is to turn the traditional view of Nietzsche as a genealogical debunker on its head, and thus to deepen our understanding of how the critical power of history interacts with our present-day attitudes and sensibilities. The article argues that Nietzsche is a critic of just the kind of genealogical debunking he is popularly associated with. We begin by showing that interpretations of Nietzsche which see him as engaging in genealogical debunking turn him into an advocate of nihilism, for on his own premises, any truthful genealogical inquiry into our values is going to uncover what most of his contemporaries deem objectionable origins and thus license global genealogical debunking. To escape nihilism and make room for naturalism without indiscriminate subversion, we then argue, Nietzsche targets the way of thinking about values that permits genealogical debunking: far from trying to subvert values simply by uncovering their origins, Nietzsche is actively criticizing genealogical debunking thus understood. Finally, we draw out the consequences of our reading for Nietzsche’s positive vision.

Contributions to edited collections

The Idea of Humanistic Middle-Range Theory
In: Veronica Rodriguez-Blanco/ Daniel Peixoto-Murata (eds.), Bernard Williams: From Responsibility to Law and Jurisprudence, Hart Publishing. Forthcoming.

Proportionality and the Presumption of Liberty
In: Dimitrios Kyritsis (ed.), Freedom and Proportionality, Hart Publishing. Forthcoming.

Case notes

Bundesgericht, II. öffentlich-rechtlichen Abteilung, 3. September 2021, 2C_290/2021 und 2C_308/2021 [Gesundheitswesen – Versammlungsfreiheit (Uri/ Bern)]
Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht (ZBl) 2/2022, S. 101–110.