Search results for 'Constitutional law Methodology' (try it on Scholar)

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  1.  24
    Rainer Ebert & Reginald M. J. Oduor (2012). The Concept of Human Dignity in German and Kenyan Constitutional Law. Thought and Practice: A Journal of the Philosophical Association of Kenya 4 (1):43-73.
    This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on the concept (...)
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  2.  7
    Regina Valutytė (2012). Legal Consequences for the Infringement of the Obligation to Make a Reference for a Preliminary Ruling Under Constitutional Law. Jurisprudence 19 (3):1171-1186.
    The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice of the European (...)
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  3. John William Burgess (1978). Selections From Political Science and Comparative Constitutional Law. Distributed by Dabor Social Science Publications.
     
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  4. Stephan Kirste (ed.) (2012). Interdisciplinary Research in Jurisprudence and Constitutionalism. Druck Nomos, Franz Steiner Verlag ;.
     
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  5. Julian H. Franklin (1977). Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History. Greenwood Press.
     
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  6. Francis Wharton (1884/2001). Commentaries on Law: Embracing Chapters on the Nature, the Source, and the History of Law, on International Law, Public and Private, and on Constitutional and Statutory Law. Gaunt, Inc..
     
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  7. Ilan Saban (2008). Citizenship and Its Erosion: Transfer of Populated Territory and Oath of Allegiance in the Prism of Israeli Constitutional Law. Law and Ethics of Human Rights 2 (1):3-32.
    This article discusses two issues of majority-minority relations in deeply divided societies. The first is the legitimacy of the transfer of a homeland minority — along with the territory it inhabits — to a neighboring kin-state against the will of the minority or most of its members. The second is the constitutional validity of legislation that renders citizenship or the right to vote contingent upon an oath of allegiance to the state or to its fundamental attributes. These two interrelated (...)
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  8.  29
    Perry Dane (1996). Constitutional Law and Religion. In Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Blackwell Publishers
    This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts (...)
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  9. Mark Tushnet (2000). Legal Conventionalism in the U.S. Constitutional Law of Privacy. Social Philosophy and Policy 17 (2):141.
    Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise (...)
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  10.  20
    Cass R. Sunstein (2007). Incompletely Theorized Agreements in Constitutional Law. Social Research: An International Quarterly 74 (1):1-24.
    How is constitutionalism possible, when people disagree on so many questions about what is good and what is right? The answer lies in two kinds of incompletely theorized agreement - both reached amidst the sharpest disagreements about the fundamental issues in social life. The first consist of agreements on abstract formulations ; these agreements are crucial to constitution-making as a social practice. The second consist of agreements on particular doctrines and practices; these agreements are crucial to life and law under (...)
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  11.  19
    Bassam Tibi (2008). The Return of the Sacred to Politics as a Constitutional Law
    The Case of the Shari'atization of Politics in Islamic Civilization.
    Theoria 55 (115):91-119.
    Modernity believed that processes of secularization and rationalization are universally applicable. What is taking place in the 21st century, however, suggests that the reverse, a process of de-secularization, is becoming the hallmark of the present age. In the case of Islamic civilization, in which law is shari'a, the challenge to secularization takes the form of a process of shari'atization. This is not the traditional or inherited shari'a, restricted to civil matters and to a penal code, but an invented shari'a, one (...)
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  12.  2
    Luc B. Tremblay (2003). General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law. Oxford Journal of Legal Studies 23 (4):525-562.
    Four questions dominate normative contemporary constitutional theory: What is the purpose of a constitution? What makes a constitution legitimate? What kinds of arguments are legitimate within the process of constitutional interpretation? What can make judicial review of legislation legitimate in principle? The main purpose of this text is to provide one general answer to the last question. The secondary purpose is to show how this answer may bear upon our understanding of the fundamental basis of (...) law. These two purposes should suggest particular answers to the first three questions. (shrink)
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  13.  1
    Joseph Frazier Wall (1976). Social Darwinism and Constitutional Law with Special Reference toLochner V. New York. Annals of Science 33 (5):465-476.
    American historians have generally accepted Richard Hofstadter's thesis that the scientism of Social Darwinism, or more appropriately, Spencerianism, dominated American thought in the late nineteenth and early twentieth century, and nowhere more enthusiastically or more purposively than within the conservative business community, which used Herbert Spencer's scientism to justify corporate business practices and to rewrite American Constitutional law to protect property interests against governmental regulations. Following Sharlin's general exposition of Herbert Spencer's scientism, this paper examines in detail the validity (...)
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  14. Jeremy Bentham (1995). Colonies, Commerce, and Constitutional Law: The Collected Works of Jeremy Bentham. Oxford University Press Uk.
    Colonies, Commerce, and Constitutional Law is a major theoretical analysis of the harmful effects of colonies on commerce and constitiutional democracy, and is one of the most important studies of colonialism written in the nineteenth century. Of the four essays collected in this voloume, three have been edited directly from the original manuscript sources. The only essay to have appeared in print, `Observations on the Restrictive and Prohibitory Commercial System', is generally regarded as an early classic statement of the (...)
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  15. David Dyzenhaus & Malcolm Thorburn (eds.) (2016). Philosophical Foundations of Constitutional Law. Oxford University Press Uk.
    Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it (...)
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  16. Jacob Weinrib (2016). Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge University Press.
    In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity (...)
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  17. Jacob Weinrib (2015). Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge University Press.
    In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity (...)
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  18.  25
    Aileen Kavanagh & John Oberdiek (eds.) (2009). Arguing About Law. Routledge.
    Arguing about Law introduces philosophy of law in an accessible and engaging way. The reader covers a wide range of topics, from general jurisprudence, law, the state and the individual, to topics in normative legal theory, as well as the theoretical foundations of public and private law. In addition to including many classics, Arguing About Law also includes both non-traditional selections and discussion of timely topical issues like the legal dimension of the war on terror. The editors provide lucid introductions (...)
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  19.  12
    Alan Brudner (2009). Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law. [REVIEW] Criminal Law and Philosophy 3 (2):147-166.
    This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty (...)
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  20. David Ingram (2014). Pluralizing Constitutional Review in International Law: A Critical Theory Approach. Revista Portuguesa de Filosofia 70 (2-3):261-286.
    Resumo O autor defende uma descrição normativa fraca do constitucionalismo internacional à luz de dois factos: a contínua relevância da soberania do Estado face à hegemonia de superpotências e a necessidade imperiosa de um regime supranacional eficaz de direitos humanos. Ao defender uma institucionalização constitucional de direitos humanos, que inclui aspectos de justiça processual e material, mostra-se que, como nos casos domésticos, tal institucionalização pode e, talvez deva, incorporar um procedimento de controlo judicial que ascende ao nível de controlo constitucional. (...)
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  21.  7
    Doris Liebwald (2013). Law's Capacity for Vagueness. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 26 (2):391-423.
    This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing (...)
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  22.  4
    Moshe Cohen-Eliya & Iddo Porat (2015). The Knobe Effect, Indifference, and Constitutional Law. Law and Ethics of Human Rights 9 (2):229-247.
    Journal Name: The Law & Ethics of Human Rights Issue: Ahead of print.
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  23.  6
    Vadim Verenich (2014). The Splendors and Miseries of Constitutional Reasoning in Times of Global Crisis: A Critical Look From the Realist Perspectives of Semiotics. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 27 (4):687-711.
    The European Stability Mechanism is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated (...)
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  24.  1
    Rūta Petkuvienė (2013). Justice and Equity Within Civil Process. Jurisprudence 20 (3):1061-1080.
    The article provides an analysis on how much the standard court proceedings can be regarded as the research, which is performed by investigating by what manner and measures the justice in a procedural sense is implemented. It is generally acknowledged that the court, as a subject, solving a legal dispute, implements justice only in the case, when it ensures the impartiality towards all persons. The appropriate legal proceedings form a constituent part of the constitutional right to apply in the (...)
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  25.  39
    Andrew J. I. Jones & Marek Sergot (1992). Deontic Logic in the Representation of Law: Towards a Methodology. [REVIEW] Artificial Intelligence and Law 1 (1):45-64.
    There seems to be no clear consensus in the existing literature about the role of deontic logic in legal knowledge representation — in large part, we argue, because of an apparent misunderstanding of what deontic logic is, and a misplaced preoccupation with the surface formulation of legislative texts. Our aim in this paper is to indicate, first, which aspects of legal reasoning are addressed by deontic logic, and then to sketch out the beginnings of a methodology for its use (...)
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  26.  14
    Andrew Halpin (1997). Rights and Law: Analysis and Theory. Distributed in North America by Northwestern University Press.
    Rights have become,in recent years, a significant concern of legal theorists, as well as of those involved in moral and political philosophy. This new book seeks to move a number of debates forward by developing the analysis of rights and focusing upon more general theoretical considerations relating to rights. The book is divided into five parts. The first includes an explanation of the part played by conceptual analysis within jurisprudence, while the second conducts a re-examination of Hohfeld’s analysis of rights. (...)
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  27.  12
    J. M. Dubois (2008). Is Anesthesia Intrinsically Wrong? On Moral Absolutes and Natural Law Methodology. Christian Bioethics 14 (2):206-216.
    This article engages two fundamentally different kinds of so-called natural law arguments in favor of specific moral absolutes: Elizabeth Anscombe's claim that certain actions are known to be intrinsically wrong through intuition (or mystical perceptions), and John Finnis's claim that such actions are known to be wrong because they involve acting directly against a basic human good. Both authors maintain, for example, that murder and contraceptive sexual acts are known to be wrong, always and everywhere, through their respective epistemological lens. (...)
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  28.  20
    Peter Suber, The Paradox of Self-Amendment in American Constitutional Law.
    Logical paradoxes in the strict sense produce statements like those of the Liar ("This very statement is false") that are false if true, and true if false. They resist rational solution or at least divide logicians for centuries of apparently irreconcilable wrangling. What happens when similar paradoxes arise in law?
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  29.  4
    Otto Pfersmann (2009). 6. Ontological and Epistemological Complexity in Comparative Constitutional Law. In Antonina Bakardjieva Engelbrekt (ed.), New Directions in Comparative Law. Edward Elgar 81.
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  30.  2
    James M. Dubois (2008). Is Anesthesia Intrinsically Wrong? On Moral Absolutes and Natural Law Methodology. Christian Bioethics 14 (2):206-216.
    This article engages two fundamentally different kinds of so-called natural law arguments in favor of specific moral absolutes: Elizabeth Anscombe's claim that certain actions are known to be intrinsically wrong through intuition , and John Finnis's claim that such actions are known to be wrong because they involve acting directly against a basic human good. Both authors maintain, for example, that murder and contraceptive sexual acts are known to be wrong, always and everywhere, through their respective epistemological lens. This article (...)
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  31.  1
    John Alati (2013). Hanks Australian Constitutional Law: Materials and Commentary, [Book Review]. Ethos: Official Publication of the Law Society of the Australian Capital Territory 229:38.
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  32. Anita L. Allen (1996). Constitutional Law and Privacy. In Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Blackwell Publishers
     
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  33. Rainer Arnold (2009). 7. European Constitutional Law: Its Notion, Scope and Finalities. In Antonina Bakardjieva Engelbrekt (ed.), New Directions in Comparative Law. Edward Elgar 99.
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  34. Philip Bobbitt (1996). Constitutional Law and Interpretation. In Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Blackwell Publishers
     
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  35. Jos� de Sousa E. Brito (1996). The Ways of Public Reason Comparative Constitutional Law and Pragmatics. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 9 (2):173-183.
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  36. Moshe Cohen-Eliya & Iddo Porat (2015). The Knobe Effect, Indifference, and Constitutional Law. The Law and Ethics of Human Rights 9 (2).
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  37. Maarten Henket (1996). Hohfeld, Public Reason and Comparative Constitutional Law. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 9 (2):202-206.
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  38. Kristin O'Connell (1998). Constitutional Law: State Partial Birth Abortion Statutes May Be Constitutional. Journal of Law, Medicine & Ethics 27 (4):384-385.
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  39. Maimon Schwarzschild (1996). Constitutional Law and Equality. In Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Blackwell Publishers
     
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  40.  44
    Cesare Pinelli (2010). The Kelsen/Schmitt Controversy and the Evolving Relations Between Constitutional and International Law. Ratio Juris 23 (4):493-504.
    The article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post-Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's (...)
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  41.  3
    Vytautas Mizaras (2012). Issues of Intellectual Property Law in the Jurisprudence of the Constitutional Court of the Republic of Lithuania. Jurisprudence 19 (3):1111-1130.
    This article focuses on the analysis of the main positions of the Constitutional Court of the Republic of Lithuania in the cases of intellectual property law. In the article three judgments and the positions of the Constitutional Court extracted therefrom are analysed. The Constitutional Court has formed several important positions with reference to intellectual property law regarding usage of property protection norms for the protection of intellectual property, requirements of application of compensation as an alternative to damages (...)
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  42.  2
    Yi-Chen Su (2014). When Ethical Reform Became Law: The Constitutional Concerns Raised by Recent Legislation in Taiwan. Journal of Medical Ethics 40 (7):484-487.
    In an effort at ethical reform, Taiwan recently revised the Hospice Palliative Care Law authorising family members or physicians to make surrogate decisions to discontinue life-sustaining treatment if an incompetent terminally ill patient did not express their wishes while still competent. In particular, Article 7 of the new law authorises the palliative care team, namely the physicians, to act as sole decision-makers on behalf of the incompetent terminally ill patient's best interests if no family member is available. However, the law (...)
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  43.  2
    Christopher F. Zurn (2011). Judicial Review, Constitutional Juries and Civic Constitutional Fora: Rights, Democracy and Law. Theoria 58 (127):63-94.
    This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three (...)
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  44. T. R. S. Allan (2003). Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford University Press Uk.
    'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a (...)
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  45.  98
    Alf Ross (1969). On Self-Reference and a Puzzle in Constitutional Law. Mind 78 (309):1-24.
  46. Frank Michelman (2003). Rawls on Constitutionalism and Constitutional Law. In Samuel Richard Freeman (ed.), The Cambridge Companion to Rawls. Cambridge University Press 394--425.
     
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  47.  4
    Konrad Fuchs (1979). The Protestant Empire and the Old Reich. The Discussion on the Kaiser's Religious Denomination in Politics, Communications and Constitutional Law. Philosophy and History 12 (1):78-79.
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  48.  4
    John A. Watt (1971). The Constitutional Law of the College of Cardinals: Hostiensis to Joannes Andreae. Mediaeval Studies 33 (1):127-157.
  49.  36
    Thomas Reed Powell (1918). The Logic and Rhetoric of Constitutional Law. Journal of Philosophy, Psychology and Scientific Methods 15 (24):645-658.
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  50.  2
    Immanuel Kant (1974). II. On the Relation of Theory to Practice in Constitutional Law. In On the Old Saw: That May Be Right in Theory but It Won't Work in Practice. University of Pennsylvania Press 57-74.
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