New York University Public Law and Legal Theory Working Papers

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How should we think about, how should we model the basis of political community. To the extent that it is a matter of choice, what should be the basis on which the people of the world divide themselves up into distinct political communities. This paper seeks to cast doubt on the proposition that it is a good idea for people to form a political community exclusively with those who share with them some affinity or trust based on culture, language, religion, or ethnicity. I want to cast doubt on that proposition by articulating an alternative approach to the formation of political communities, which I shall call the principle of proximity. People should form political communities with those who are close to them in physical space, particularly those close to them whom they are otherwise like to fight or to be at odds with. This principle is rooted in the political philosophies of Hobbes and Kant. The suggestion is that we are likely to have our most frequent and most densely variegated conflicts with those with whom we are (in Kant’s words) “unavoidably side by side”, and the management of those conflicts requires not just law (which in principle can regulate even distant conflicts) but law organized densely and with great complexity under the auspices of a state. The paper outlines and discusses the proximity principle, and the conception of law and state that it involves, and defends it against the criticism that it underestimates the importance of pre-existing trust in the formation of political communities.

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