Social interaction and the constitution of mediated and nested space in the court of appeal -- Conclusion -- Concluding remarks: On becoming juridical -- Ways of spacing law and politics -- Becoming juridical -- Towards hybrid juridical spaces -- References -- Index.

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

We enter here upon a history of conversational traffic between the respective departments of philosophy and law in the old academy of liberalism, where lawyers hear much from philosophers, yes-and philosophers hear from lawyers, too, in what has fruitfully been a both-ways exchange. Our philosophical protagonist is John Rawls. This book comprises a study of the rise and workings, within the Rawlsian political-liberal philosophy, of the idea of a country's higher-legal constitution as a public platform for the justification of (...) political coercion. A study of Rawls on constitutionalism can help us, I believe, in scoping out and managing a cluster of constitutional lawyers' debates-interminable ones, it seems, in the constitutional-democratic precincts of our times-that I will catalogue soon below. But conversely, I believe, those seeking the best and truest readings of Rawls might have something to learn from the controversies of the lawyers. My approach to Rawls has accordingly been that of a critically leavened (while no doubt broadly sympathetic) exegesis, while with the legal-discursive materials I take more of a diagnostic turn. My hope is that a treatment of these two discourses in relation to each other will prove an aid to both political-philosophical and legal-practical reflection. (shrink)

David Lyons is one of the pre-eminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses 'formal' justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

Incisively and stylishly written, this book constitutes an open challenge to reconsider the fundamental question of the relationship of law to society.

The purpose of this paper is to consider some aspects of the question of how difficult it should be to amend or change constitutional laws through formal amendment procedures. The point of departure of my discussion is an amendment procedure that has recently been suggested by the prominent legal and political philosopher Bruce Ackerman. He defends a three-step amendment procedure – where a re-elected president is authorised to propose amendments that must thereafter be approved first by a two-thirds (...) majority of the legislature, and then by a simple majority of the citizens at the next two presidential elections. I propose and defend an alternative amendment procedure that can be termed the four-step procedure. According to this procedure, the right to propose amendments is granted both to legislators and voters via citizen initiatives. Thereafter, the proposed amendments should be placed before the legislature, where they must be approved by a simple majority in two successive parliaments, and there must be an interval of no less than one year between the two votes. If passed by the legislative assembly, the amendment(s) should be approved by a simple majority of the electorate in a referendum. However, a submajority of the legislators (i.e. a one-third minority) should be empowered to require an additional referendum on the proposed amendment(s), and this final referendum should be held two years after the first popular vote. In order to assess the outlined amendment procedures, I primarily focus on the following factors or criteria of evaluation, which I group under three headings: (1) Central ideas and ideals in deliberative democratic theory and the fact of persistent disagreement in modern pluralist societies (this includes considerations of how well alternative amendment procedures deal with disagreement among citizens); (2) rule of law values, stability and flexibility; and (3) the value of checks and balances that can guard against the abuse of power (or more precisely, whether the amendment procedures under consideration provide adequate checks and balances between courts, political actors and citizens). (shrink)

The purpose of this article is to outline a Kantian form of cosmopolitan law and the jurisprudence involved in the creation of a cosmopolitan constitution. This article explores and discusses Kantian cosmopolitan law, the idea of cosmopolitan right, the laws of hospitality and a Kantian approach to constitutional cosmopolitanism. In doing so, the article argues beyond Kant's discussion of constitutionalism, suggesting that a written constitution not only articulates many of Kant's cosmopolitan concerns, but also provides a reasonable ethical foundation (...) for an international society. Throughout this discussion, more particular aspects of Kant's legal conception of cosmopolitanism are examined, focusing on the possibility of an ethical cosmopolitan order based on jurisprudence, the necessity of a minimal consensus bound by constitutional provisions, and the corresponding legal obligations maintained by cosmopolitan law. (shrink)

The book is aimed at students and scholars of law, politics and philosophy. Of unprecedented breadth, it offers both a survey of, and an original contribution to, the field by some the world's leading scholars of constitutional theory.

The paper focuses on the general principles established in the caselaw of the European Court of Human Rights while applying and interpreting the Article 3 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides: „The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.“ Article 3 of (...) the First Protocol enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system. It refers not only to positive obligation of the Contracting State to organize democratic elections, but also guarantees individual rights, including the right to vote and the right to stand for election, although this is not explicitly stated in it. These rights are not absolute; there is room for “implied limitations” and Contracting States are given a wide margin of appreciation in this sphere. However, these limitations must be such that the rights in question were not curtailed to such an extent as to impair their very essence and deprive them of their effectiveness, should be imposed in pursuit of a legitimate aim and should not be disproportionate. (shrink)

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. (...) De facto, o parecer do Tribunal Europeu de Justiça no caso Kadi estabeleceu um possível precedente para o controlo do Conselho de Segurança no sentido do cumprimento dos direitos humanos e outras normas peremptórias. Dada a necessidade de perícia técnico legal para a elaboração de tal controlo, um caso prima facie pode ser feito para o estabelecimento de um Tribunal Constitucional especializado ao nível internacional. Contudo, dado o impacto desempenhado pelo poder político na resolução técnica da adjudicação de casos específicos e concretos, dentro de um sistema jurídico altamente fragmentado, e dado o facto de que o controlo constitucional também toca questões mais abstractas e menos técnicos de justiça social, o autor recomenda, que a função de controlo constitucional seja disseminada por várias instituições globais, incluindo a actual Assembleia Geral das Nações Unidas e na esfera pública global. O controlo constitucional pluricêntrico, bem como a institucionalização dos direitos humanos decorre do desacordo multicultural existente acerca do significado desses direitos e da ameaça da hegemonia de superpotências sobre as instituições globais. Assim antecipa-se também a realização de uma constitucionalização mais monista no Direito Internacional com o crescimento da solidariedade global entre os povos. Palavras-chave : Constitucionalização, Controlo Constitucional, Direitos Humanos, Habermas, Nações Unidades, Pluralismo LegalI defend a weakly normative description of international constitutionalism in light of two facts: the continued salience of state sovereignty in the face of superpower hegemony and the overriding need for an effective supranational human rights regime. In arguing for a constitutional institutionalization of human rights that includes aspects of procedural and substantive justice, I show that, as in the domestic case, such an institutionalization could and perhaps should incorporate a procedure for judicial review ascending to the level of constitutional review. In fact, the European Court of Justice’s review of the Kadi case establishes a possible precedent for reviewing Security Council compliance with human rights and other peremptory norms. Given the need for technical legal expertise in elaborating such review, a prima facie case can be made for establishing a specialized constitutional court at the international level. However, given the impact that political power plays in the technical resolution of concrete, case-specific adjudication within a highly fragmented legal system, and given the fact that constitutional review also touches on more abstract and less technical issues of social justice, I recommend that the function of constitutional review be dispersed in several global institutions, including the current United Nations General Assembly and a global public sphere. The pluralization of constitutional review and the accompanying interpretation and institutionalization of human rights recognizes existing multicultural disagreement on the meaning of human rights and the threat of superpower hegemony over global institutions while anticipating the realization of a more monistic constitutionalization of international law with the growth of global solidarity between peoples. Keywords : Constitutional Review, Constitutionalization, Habermas, Human Rights, Legal Pluralism, United Nations. (shrink)

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional (...) "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

This Handbook brings together contributions from leading scholars of constitutional theory, with backgrounds in law, philosophy, and political science. Its 60 chapters not only offer an exceptional survey of the field but also provide a major contribution to it. The book explores three main areas. Firstly, the values upheld by a constitution, including rights, freedom, equality, dignity and well-being. Secondly, the modalities of a constitutional system, such as the separation of powers, democratic representation, and the rule of (...) law. Finally, the institutions through which it operates, both legal and political; including courts, elections, parliaments and international organisations. It also considers the challenges confronting constitutional arrangements from growing inequality, populism, climate change and migration. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Reforming the Law of Nature: The Secularization of Political Thought, 1532–1689 by Simon P. KennedyFrancis J. BeckwithKENNEDY, Simon P. Reforming the Law of Nature: The Secularization of Political Thought, 1532–1689. Edinburgh: Edinburgh University Press, 2022. ix + 125 pp. Cloth, $110.00In this monograph Simon P. Kennedy offers an account of the desacralization of politics in the West by critically examining the works of five central figures (...) in the Protestant Reformed tradition: John Calvin (1509–64), Richard Hooker (1554–1600), Johannes Althusius (1557–1638), Thomas Hobbes (1588–1679), and John Locke (1632–1705). He dedicates a chapter to each thinker. The core of Kennedy's thesis is that desacralization is the result of a shift in the way modern thinkers like Hobbes and Locke reimagined the nature of natural law. The medieval tradition, having found its fullest expression in the work of St. Thomas Aquinas, saw natural law as one of four different types of law: eternal law (the eternal plan of creation in the mind of God), natural law (the rational creature's participation in the eternal law), human law (civil laws that are derived from the natural law), and divine law (the Old and New Testaments). According to Kennedy, the eventual desacralization of politics was set in motion with the development of arguments for natural rights that relied on a natural law that was in [End Page 553] practice severed from eternal law. But in that case, our political institutions—which are founded on the natural law—are purely human constructions and thus entirely secular.The usual story is that the Protestant Reformation constituted the decisive break with the medieval tradition and that it was the political theology of the reformers and their immediate successors that made the secularization of politics nearly inevitable. Kennedy wants to push back against that story. He argues, quite convincingly, that Calvin, Hooker, and Althusius, all Reformed Protestants, were in continuity with their medieval predecessors. Although Calvin is often depicted by his contemporary followers—especially among American Evangelicals—as hostile to the natural law tradition, Kennedy marshals an impressive case that shows that classical natural law seemed almost second nature to Calvin. My own sense is that the confusion over Calvin is the result of his contemporary readers expecting him to use the vocabulary of an Aquinas or a Duns Scotus. But not finding that vocabulary, they conclude that he rejected the natural law. Kennedy dispels that confusion by showing that Calvin in fact was fully committed to the four types of law absent the technical jargon of medieval scholasticism.Hooker and Althusius, writes Kennedy, continue in that tradition, though with a bit of a twist that some argue portends to Hobbes and Locke. Hooker and Althusius use the language of contract to account for the origin of certain aspects of political life. But Kennedy insists that it is a mistake to interpret them as proto-contractarians (as one finds in Hobbes and Locke), for they still held that the natural law participates in the eternal law, and that any agreements employed in the service of political life are under the authority of, and guided by, the natural law. One could argue, then, that these "contracts," like constitutions and treaties, are nonstatutory manifestations of the human law, which is perfectly consistent with classical natural law. So like Calvin before them, Hooker and Althusius were, as Kennedy puts it, theistic political naturalists.Hobbes and Locke are a different story. According to Kennedy, they both defended desacralized views of politics, with Hobbes being the more extreme of the two. Although I think he is correct in that assessment, I am not sure he locates the cause of the desacralization in the right place. For example, he says that because for Locke politics is artificial and not natural—that is, it is the result of a social contract to insulate members of society from the instability of a state of nature—politics is desacralized, even though God is the ultimate source of the natural law. But it is not clear how that in and of itself desacralizes politics. After all, Aquinas, the paradigm case of a classical natural lawyer, held... (shrink)

This work explains the nature of constitutional rights. It does so by means of an analysis of the nature of law in general, the nature of constitutions, and the nature of rights. It looks in detail at several aspects of constitutional law, rights and institutions, as well as aspects related to public officials, private persons and associations. In addition, the book critically examines a considerable number of debates about whether some actual or proposed constitutional rights ought to (...) be established and maintained in the United States constitution. It then identifies the kinds of reasons that justify or fail to justify constitutional rights. The book advances the debate and makes a contribution to the theory and the practice of constitutional rights. (shrink)

The theory of the separation of powers between a legislature, an executive and a judiciary is still the foundation of modern representative democracy. It was developed by Montesquieu and came to replace the older theory of the mixed constitution which goes back to Plato, Aristotle and Polybios: there are three types of constitution: monarchy, oligarchy and democracy; when institutions from each of the three types are mixed, an interplay between the institutions emerges that affects all functions of state: legislation, implementation (...) of laws and jurisdiction. Today Montesquieu's separation of powers is riddled with so many exceptions that it is an obstacle rather than a help to understand the structure of modern democracy. The mixed constitution deserves to be revived as a corrective to the prevailing view that Western states are pure democracies and that democracy is rule by the people. (shrink)

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 (...) of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

Ernst-Wolfgang Böckenförde is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court, Böckenförde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship (...) rights, and challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Böckenförde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Böckenförde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on the political theory of the state; constitutional theory; constitutional norms and fundamental rights; and the relation between state, citizenship, and political autonomy. Each of these four cornerstones of Böckenförde's legal and political thinking features introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy. (shrink)

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the chapters (...) all focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review. (shrink)

This book fills a major gap in the ever-increasing secondary literature on Hannah Arendt's political thought by providing a dedicated and coherent treatment of the many, various and interesting things which Arendt had to say about law. Often obscured by more pressing or more controversial aspects of her work, Arendt nonetheless had interesting insights into Greek and Roman concepts of law, human rights, constitutional design, legislation, sovereignty, international tribunals, judicial review and much more. This book retrieves these aspects (...) of her legal philosophy for the attention of both Arendt scholars and lawyers alike. The book brings together lawyers as well as Arendt scholars drawn from a range of disciplines (philosophy, political science, international relations), who have engaged in an internal debate the dynamism of which is captured in print. Following the editors' introduction, the book is split into four Parts: Part I explores the concept of law in Arendt's thought; Part II explores legal aspects of Arendt's constitutional thought: first locating Arendt in the wider tradition of republican constitutionalism, before turning attention to the role of courts and the role of parliament in her constitutional design. In Part III Arendt's thought on international law is explored from a variety of perspectives, covering international institutions and international criminal law, as well as the theoretical foundations of international law. Part IV debates the foundations, content and meaning of Arendt's famous and influential claim that the 'right to have rights' is the one true human right. (shrink)

This book is a collection consisting of an introduction and nine essays that explore foundational aspects of criminal law. As the introduction makes clear, the book is eclectic and the essays can be classified under three main headings. The first group of essays explores the political constitution of criminal law as part of the institutional structure of the state. The second group of essays investigates the question of the authority of criminal law and its potential to create reasons for (...) action. The third group deals with transnational and international criminal law. The essays are primarily normative but they also contain historical and sociological discussions. The book will therefore be of interest to criminal lawyers, political and legal philosophers, political scientists and policy-makers. I will review separately some of the essays.Nicola Lacey’s essay, “What Constitutes Criminal Law?,” touches upon the fundamental question of criminal law: the question of legitimation. Lacey ap .. (shrink)

What kind of discourse is likely to build up constitutional norms? How do legal-philosophical insights get along with competing political claims? This book presents the main conclusions from the CITC (Congreso Internacional de Teoria Constitucional) in Cordoba, Argentina. While addressing the very foundations of Constitutional Law, leading scholars from Europe and America got together to debate legal and political issues which impinge upon institutional design and polity assessment, political representation and rights protection. Not to mention (...) other vexing challenges such as the proper latitude of judicial review, the threatening phenomena of untamed emergency powers and the current international dimension of supra-national state-building. Beyond governance and human rights discourse, the core content of this book is concentrated on shedding some light on which theoretical and/or political conditions could better stand and give shelter to civil obedience and constitutional patriotism. (shrink)

This chapter contains sections titled: Focus: The United States Theorizing about Privacy Meaning and Definition Questions of Value Conclusion References.

This book offers a radical new understanding of law, beyond the confines of its formalization by the state. The book takes off from the late work of Gilles Deleuze and Michel Foucault, for whom law and its institutions came to be liberated from an ideological perspective that had treated them as sterile instruments for the reproduction of domination. Engaging its continental history, it addresses the concept of law, not merely as a 'command', but as the result of a much more (...) complex legal operation aimed at dynamically stabilizing the social relations of a community. The book thus sidesteps the usual legal-political focus on those - from Hobbes to Schmitt - who have contributed to the categorical scheme of the modern state, and with it questions of political representation, sovereignty, the rigid distinction between public law and private law, and so on, as it pursues an alternative theoretical trajectory through Ravaisson, Tarde, and Hauriou. Politics, the book maintains, can be no longer be treated simply through the state form. And, relatedly, the law must be seen as a living law: a law that cannot be treated exclusively in formal terms, but must be taken as a grammar capable of articulating a politics of process, relationality, and innovation. Reconceived as such, law can then circumvent the aporias that arise when society is viewed as a private company, and the state seen as the bearer of the only possible means of formalizing its relationships. At the intersection of law and political theory, this book will speak to scholars and others with interests in both these areas, and especially those concerned with the limits of both conventional and critical approaches to law. (shrink)

Natural law political theory grounds the authority of law in the law's capacity to advance the common good, but questions about what this common good is and how it relates to political life remain highly contested. The influential new natural law theory of John Finnis reduces political association to the operation of government and makes it a merely instrumental good that serves to secure and facilitate individual and social goods. Political community, on this account, does not (...) realize any further human good not already experienced in smaller human communities. In A Vindication of Politics, Matthew Wright challenges this account and argues that political community itself realizes an aspect of social life intrinsic to full human flourishing. Wright develops an account of the political common good that is both inclusivist and distinctive--that is to say, it includes within its orbit the diverse goods of individuals and other associations, and it recognizes the good of the political association itself. Drawing on the work of Edmund Burke and the example of Abraham Lincoln, Wright argues that political community has its own distinctive goods, including civic friendship and political culture, embodied in its history, institutions, practices, and ideals. Individuals do not have to run for office to be engaged in the political common good. Participation in the vibrant cultural life of one's political community is an intrinsic part of the common good. (shrink)

Emotions, Values, and the Law brings together ten of John Deigh's essays written over the past fifteen years. In the first five essays, Deigh ask questions about the nature of emotions and the relation of evaluative judgment to the intentionality of emotions, and critically examines the cognitivist theories of emotion that have dominated philosophy and psychology over the past thirty years. A central criticism of these theories is that they do not satisfactorily account for the emotions of babies or animals (...) other than human beings. Drawing on this criticism, Deigh develops an alternative theory of the intentionality of emotions on which the education of emotions explains how human emotions, which innately contain no evaluative thought, come to have evaluative judgments as their principal cognitive component. The second group of five essays challenge the idea of the voluntary as essential to understanding moral responsibility, moral commitment, political obligation, and other moral and political phenomena that have traditionally been thought to depend on people's will. Each of these studies focuses on a different aspect of our common moral and political life and shows, contrary to conventional opinion, that it does not depend on voluntary action or the exercise of a will constituted solely by rational thought. Together, the essays in this collection represent an effort to shift our understanding of the phenomena traditionally studied in moral and political philosophy from that of their being products of reason and will, operating independently of feeling and sentiment to that of their being manifestations of the work of emotion. (shrink)

Since constitutional arrangements are what make politics work, they are a central concern of political theory._This book, now completely updated, is the first comprehensive exploration of the political theory of constitutions. Jan-Erik Lane begins by examining the origins and history of constitutionalism and answers key questions such as: What is a constitution? Why are there constitutions? From where does constitutionalism originate? How is the constitutional state related to democracy and justice? Constitutions play a major role in (...) domestic and international politics in the early 21st century and an updated version of this classic textbook will introduce students to a number of different areas -- theoretical, empirical, and moral -- which will aid their understanding of this important topic. (shrink)

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection (...) on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

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 (...) which also claims to be a constitutional law. Moreover, the constructed shari'atized constitutional law, in conflict with secular constitutionalism and appearing to offer no middle way, has been universalized to engender an international conflict between secularization and de-secularization. Since, for most Muslims, Islam without shari'a is unthinkable, this article examines the potential for religious reform of the shari'a in the direction of cultural change, freedom and democratic constitutionalism. (shrink)

Aspects of Law and Legal Systems -- Courts and Legal Reasoning -- Making, Justifying, and Evaluating Law -- Law and Individual Obligation -- Private Law -- Criminal Law -- Sentencing and punishment-- Statutes -- Constitutions -- International Law.

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 (...) must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy. (shrink)

Habermas proposes a new solution to the problematic relation between republican values and democracy. He asserts that a new model of social cohesion is needed and he suggests that the sense of community in a democratic society should be founded exclusively on the acceptance and support of a system of constitutionally established rules which are the logical result of the historical evolution of constitution-making. He argues that an account of the constitutional process which led to the formation of the (...) modern republican state should provide the criteria for a rational set of norms which will exclude nationalism from the political arena. In this article, I point out the democratic hazards and the internal incoherence of Habermass alternative to the national state and I argue that a theoretical substitute should consider the existence of national identities as one of the aspects of modern pluralistic society. (shrink)

The article discusses the problems of development of women’s political rights in Lithuania in the legal historical aspect starting from the 16th century, when some property and individual rights were enshrined in the first codifications of the laws of the Great Duchy of Lithuania. The aim of the article is to show that women’s struggle for political equality and suffrage at the end of the 19th and at the turn of the 20th century correlates with the movement for (...) re-establishment of the independent State of Lithuania. As a result in Lithuania equal suffrage and political rights were ensured from the very beginning of independence. In 1905 the Great Seimas of Vilnius recognized the principles of equality of women and men and declared the principles of equal general election to the Seimas (parliament); women’s suffrage, as one of the elements of legal equality, became constitutionally entrenched already in the first temporary Constitution of the State of Lithuania in 1918. At the end of the 20th century and the beginning of the 21st century women’s rights have been further developed, moreover, the first woman was elected as President of the Republic in the national elections in May 2009. (shrink)

This collection focuses on how troubled times impact upon the law, the body politic, and the complex interrelationship among them. It centres on how they engage in a dialogue with the imagination and literature, thus triggering an emergent (but thus far underdeveloped) field concerning the 'legal imagination'. Legal change necessitates a close examination of the historical, cultural, social, and economic variables that promote and affect such change. This requires us to attend to the variety of non-legal variables that percolate throughout (...) the legal system. The collection probes 'the transatlantic constitution' and focuses attention on imagination in a common law context that seems to foster imagination as a cultural capability. The book is divided into four parts. The first part begins with a set of insights into the historical development of legal education in England and concludes with a reflection on the historical transition of England from an absolute monarchy to a republic. The second part of the volume examines the role that imagination plays in the functioning of the courts. The third part focuses on patterns of thought in legal scholarship and detects how legal imagination contributes to the process of producing new legal categories and terminology. The fourth part focuses on patterns of thought in legal scholarship, and looks to the impact of the imagination on legal thinking in the future. (shrink)

Despite far‐reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the (...) federal legislature. In a brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems. (shrink)

The publication includes an essay by the late Bohumil Fiser "The policy from the perspective of a naturalist," which examines the relationship between natural and social laws in the past and present. The publication also contains a legal essay by Zdeněk Koudelka "Repeal of Constitutional Law by the Constitutional Court", which deals with the events of the abolition of the constitutional law on the reduction of the term of office of deputies in 2009.

This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On (...) the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour. (shrink)

Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In On Law, Politics, and Judicialization, two of the world's leading political scientists present the best of their research, focusing on how to build and test a social science of law and (...) courts. The opening chapter features Shapiro's classic 'Political Jurisprudence,' and Stone Sweet's 'Judicialization and the Construction of Governance,' pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the lawmaking dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping 'judicialization of politics' around the world. Chosen empirical settings include the United States, the GATT-WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria. Written for a broad, scholarly audience, the book is also recommended for use in graduate and advanced undergraduate courses in law and the social sciences. (shrink)

This book explores the relationship between the law and pervasive and persistent reasonable disagreement about justice. It reveals the central moral function and creative force of reasonable disagreement in and about the law and shows why and how lawyers and legal philosophers should take reasonable conflict more seriously. Even though the law should be regarded as the primary mode of settlement of our moral conflicts,it can, and should, also be the object and the forum of further moral conflicts. There is (...) more to the rule of law than convergence and determinacy and it is important therefore to question the importance of agreement in law and politics. By addressing in detail issues pertaining to the nature and sources of disagreement, its extent and significance, as well as the procedural, institutional and substantive responses to disagreement in the law and their legitimacy, this book suggests the value of a comprehensive approach to thinking about conflict, which until recently has been analysed in a compartmentalized way. It aims to provide a fully-fledged political morality of conflict by drawing on the analysis of topical jurisprudential questions in the new light of disagreement. Developing such a global theory of disagreement in the law should be read in the context of the broader effort of reconstructing a complete account of democratic law-making in pluralistic societies. The book will be of value not only to legal philosophers and constitutional theorists, but also to political and democratic theorists, as well as to all those interested in public decision-making in conditions of conflict. (shrink)

In the last decades, regional and global integration processes have made the traditional state-centred view of law less and less obvious. Recent discussions revolve around how to conceptually comprehend, critically reflect on and reasonably control these new developments in the global legal arena. The essays in this volume, written by young Central and Eastern European legal theorists and political scientists, contribute to ongoing discussions in our post-national era. The chapters include conceptual analyses, historical and comparative examples, as well as (...) normative discussions in legal theory, ethics, moral philosophy, constitutional theory, EU law and international relations. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

The democratic principle in its extreme form is the assertation that the mere fact of free birth is alone sufficient to constitute a claim to all offices. It is never the claim of a majority to rule, but it is the demand that every one, whether rich or poor, high- or low-born, shall be equally represented in the constitution. This is what Aristotle calls the principle of numerical equality.-from "Chapter VI: Democracy"One of the most renowned classical scholars of the turn (...) of the 20th century here offers a lucid and highly readable overview of a difficult and little understood aspect of Greek history: its public law, not just how it was structured but how it behaved in action. This 1896 book-perfect for university students, amateur historians, and readers of the history of the law-covers the full range of Greek legal development, from the origin of the city-state and the beginnings of the Greek monarchy to the social and political institutions of the far-flung Greek civilization to the rise of federalism and its long-term historical impact on the cultures that came after.British classical scholar A.H.J. GREENIDGE was a lecturer in ancient history at Brasenose College, Oxford. He is also the author of Roman Public and Private Law (1894), Legal Procedure in Cicero's Time (1901), and Roman Public Life (1901), among many other works of ancient history. (shrink)

This article examines a population-based opportunistic screening practice for cognitive impairment that takes place at a hospital in Sweden. At the hospital, there is a routine in place that stipulates that all patients over the age of 65 who are admitted to the ward will be offered testing for cognitive impairment, unless they have been tested within the last six months or have been diagnosed with any form of cognitive impairment. However, our analysis shows that this routine is not universally (...) and mechanically applied. Rather, the health care professionals have developed and use an ethico-political judgment, concerning, for example,whomto test,whento offer the tests, andhowto explain and perform them. This article explores the role and practice of this form of judgment, emphasising its political and ethical nature. The analysis is based on qualitative interviews with professionals and patients, and draws on the theories of Aristotle and Hannah Arendt. (shrink)

Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only (...) part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation. (shrink)

This collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact with (...) conditions that lie at the farthest reaches of its empirical and normative force. (shrink)