Standard philosophical methodology which proceeds by appeal to intuitions accessible "from the armchair" has come under criticism on the basis of empirical work indicating unanticipated variability of such intuitions. Loose constitutivity---the idea that intuitions are partly, but not strictly, constitutive of the concepts that appear in them---offers an interesting line of response to this empirical challenge. On a loose constitutivist view, it is unlikely that our intuitions are incorrect across the board, since they partly fix the facts in question. (...) But we argue that this ratification of intuitions is at best rough and generic, and can only do the required methodological work if it operates in conjunction with some sort of further criteria of theory selection. We consider two that we find in the literature: naturalness (Brian Weatherson, borrowing from Lewis) and charity (Henry Jackman, borrowing from Davidson). At the end of the day, neither provides the armchair philosopher complete shelter from extra-armchair inquiry. (shrink)
A common objection raised against naturalism is that a naturalized epistemology cannot account for the essential normative character of epistemology. Following an analysis of different ways in which this charge could be understood, it will be argued that either epistemology is not normative in the relevant sense, or if it is, then in a way which a naturalized epistemology can account for with an instrumental and hypothetical model of normativity. Naturalism is here captured by the two doctrines of empiricism and (...) gradualism. Epistemology is a descriptive discipline about what knowledge is and under what conditions a knowledge-claim is justified. However, we can choose to adopt a standard of justification and by doing so be evaluated by it. In this sense our epistemic practices have a normative character, but this is a form of normativity a naturalized epistemology can make room for. The normativity objection thus fails. However, in the course of this discussion, as yet another attempt to clarify the normativity objection, such a naturalistic model will be contrasted with Donald Davidson’s theory of interpretation. Even though this comparison will not improve upon the negative verdict upon the original objection, it will be argued that naturalism cannot accept Davidson’s theory since it contains at least one constitutive principle – the principle of charity – whose epistemic status is incompatible with the naturalistic doctrine of gradualism. So, if this principle has this role, then epistemology cannot be naturalized. (shrink)
This paper examines the standard view of realization operative incontemporary philosophy of mind, and proposes an alternative, generalperspective on realization. The standard view can be expressed, insummary form, as the conjunction of two theses, the sufficiency thesis andthe constitutivity thesis. Physicalists of both reductionist and anti-reductionist persuasions share a conception of realization wherebyrealizations are determinative of the properties they realize and physically constitutive of the individuals with those properties. Centralto the alternative view that I explore here is the idea (...) that the requisite,metaphysically robust notion of realization is ineliminably context-sensitive. I shall argue that the sufficiency and constitutivity theses aretypically not jointly satisfied by any one candidate realizer, and that goingcontext-sensitive in one's metaphysics is preferable to the standard view.The context-sensitive views developed here are implicit in a range ofcommon views in both the philosophy of mind and the philosophy of biology,even if they have not been explicitly articulated, and even though theyundermine other views that are commonly endorsed. (shrink)
In this paper, I propose a new way of understanding the space of possibilities in the field of mental content. The resulting map assigns separate locations to theories of content that have generally been lumped together on the more traditional map. Conversely, it clusters together some theories of content that have typically been regarded as occupying opposite poles. I make my points concrete by developing a taxonomy of theories of mental content, but the main points of the paper concern not (...) merely how to classify, but how to understand, the theories. Also, though the paper takes theories of mental content as a case study, much of the discussion is applicable to theories of other phenomena. To a first approximation, the difference between the traditional and the proposed taxonomies turns on whether we classify theories of content by, on the one hand, their implications for a non-redundant supervenience base for content facts (i.e., for facts about what contents thoughts have) or, on the other, by their constitutive accounts of content. By a "constitutive account," I mean the kind of elucidation of the nature of a phenomenon that theorists have tried to give for, for example, knowledge, justice, personal identity, consciousness, convention, heat, and limit. The tendency to taxonomize by supervenience base is encouraged, I suggest, by a failure to keep clearly in view a distinction between constitutive and modal determination. Many philosophers would accept that a constitutive account cannot be captured in purely modal terms. Giving a constitutive account is not the same as specifying modally necessary and sufficient conditions. Nevertheless, philosophers often try to cash constitutive claims in modal terms. A case in point is that theories of content tend to be conceptualized in terms of the theories' implications for a supervenience base for content facts. My thesis goes beyond the by-now somewhat familiar proposition that not all modal determinants of a phenomenon are constitutive determinants. One who has taken that point on board might nevertheless conceive of a philosophical account as an attempt to specify constitutive determinants of the target phenomenon that make up a non-redundant supervenience base for the phenomenon. Shoehorning a philosophical account into this form leaves out elements that are modally redundant, but may be explanatorily or ontologically significant. For example, when a constitutive account has multiple levels, the different levels will typically be modally redundant. Formulating the account as a specification of a supervenience base of constitutive determinants will therefore flatten the account into a single level. Many of my arguments can be illustrated by considering the place of normativity in the theory of content. The new taxonomy gives a distinct niche to normative theories of content - theories that explain a thought's having a certain content at least in part in terms of the obtaining of normative facts. By contrast, on a traditional map, normative theories are invisible as such because normative facts supervene on non-normative ones. (shrink)
What is a human person, and what is the relation between a person and his or her body? In her third book on the philosophy of mind, Lynne Rudder Baker investigates what she terms the person/body problem and offers a detailed account of the relation between human persons and their bodies. Baker's argument is based on the 'Constitution View' of persons and bodies, which aims to show what distinguishes persons from all other beings and to show how we can be (...) fully material beings without being identical to our bodies. The Constitution View yields answers to the questions 'What am I most fundamentally?', 'What is a person?', and 'What is the relation between human persons and their bodies'? Baker argues that the complex mental property of first-person perspective enables one to conceive of one's body and mental states as one's own. (shrink)
Plato and Kant advance a constitutional model of the soul, in which reason and appetite or passion have different structural and functional roles in the generation of motivation, as opposed to the familiar Combat Model in which they are portrayed as independent sources of motivation struggling for control. In terms of the constitutional model we may explain what makes an action different from an event. What makes an action attributable to a person, and therefore what makes it an action, is (...) that it issues from the person''s constitution, and therefore from the person as a whole, rather than from some force working on or in the person. This in turn implies an account of what makes an action good: what makes an action good is that it is deliberated upon and chosen in a way that unifies the person into a constitutional system. Through deliberative action we constitute ourselves as unified agents. Platonic justice and Kant''s categorical imperative are shown to be normative standards for action because they are principles of self-constitution. (shrink)
Are the sculpture and the mass of gold which permanently makes it up one object or two? In this paper, we argue that the monist, who answers ‘one object’, cannot accommodate the asymmetry of material constitution. To say ‘the mass of gold materially constitutes the sculpture, whereas the sculpture does not materially constitute the mass of gold’, the monist must treat ‘materially constitutes’ as an Abelardian predicate, whose denotation is sensitive to the linguistic context in which it appears. We motivate (...) this approach in terms of modal analyses of material constitution, but argue that ultimately it fails. The monist must instead accept a deflationary, symmetrical use of ‘materially constitutes’. We argue that this is a serious cost for her approach. (shrink)
By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution (...) came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. (shrink)
Constitutive arguments for the principles of practical reason attempt to justify normative requirements by claiming that we already accept them in so far as we are believers or agents. In two constitutive arguments for the requirement that we must will universally, Korsgaard attempts first to arrive at the requirement that we will universally from observations about the causality of the will, and secondly to establish that willing universally is constitutive of having a self. Some rational requirements may be established by (...) some version of this second argument, but the strategy does not seem promising when it comes to establishing the requirement that we will universally. I draw on the discussion of Korsgaard to highlight a challenge facing constitutive arguments in general. (shrink)
Friendship, as a unique form of social relationship, establishes a particular union among individual human beings which allows them to overcome diverse boundaries between individual subjects. Age, gender or cultural differences do not necessarily constitute an obstacle for establishing friendship and as a social phenomenon, it might even include the potential to exist independently of space and time. This analysis in the interface of social science and phenomenology focuses on the principles of construction and constitution of this specific form of (...) human encounter. In a “parallel action,” the perspective of social science focuses on concrete socio-historical constructions of friendship in different time periods. These findings are confronted with the description of principles of the subjective constitution of the phenomenon of “friendship” from a phenomenological perspective. The point of reference for the study is the real type of the symbolically established and excessively idealized form of friendship intended for eternity which was especially popular in eighteenth century Germany. Analogous to the method of phenomenological reduction, three different levels of protosociological reduction are developed for the exploration of the unique social phenomenon of friendship. (shrink)
I argue that the constitution relation transmits causal efficacy and thus is a suitable relation to deploy in many troubled areas of philosophy, such as the mind–body problem. We need not demand identity.
In her recent book Persons and Bodies1, Lynne Rudder Baker has defended what she calls the constitution view of persons. On this view, persons are constituted by their bodies, where “constitution” is a ubiquitous, general metaphysical relation distinct from more familiar relations, such as identity and part-whole composition.
Mainstream metaphysics has been preoccupied by inquiring into the nature of major kinds of entities, like objects, properties and events, while avoiding minor entities, like shadows or holes. However, one might want to hope that dealing with such minor entities could be profitable for even solving puzzles about major entities. I propose a new ontological puzzle, the Shadow of Constitution Puzzle, incorporating the old puzzle of material constitution, with shadows in the role of the minor entity to guide our approach (...) to the issues involved. I then analyze the standard answers to the original puzzle of constitution, in their role as potential solutions to the new puzzle. Finally, I discuss three views that can solve the proposed puzzle. (shrink)
Communitarians like Alasdair MacIntyre, Charles Taylor, and Michael Sandel, defend what we may call the ‘social constitution thesis.’ This is the view that participation in society makes us what we are. This claim, however, is ambiguous. In an attempt to shed some light on it and to better understand the impact its truth would have on our beliefs regarding autonomy, I offer four possible ways it could be understood and four corresponding senses of individual independence and autonomy. I also indicate (...) what senses liberals can accept that we are socially constituted and in what sense I take communitarians to argue we are socially constituted. (shrink)
Abstract In the contemporary literature on self-knowledge discussion is framed by and large by two competing models of self-knowledge: the observational (or perceptual) model and the constitutive model. On the observational model self-knowledge is the result of ?cognitively viewing? one's mental states. Constitutive theories of self-knowledge, on the other hand, hold that self-knowledge is constitutive of intentional states. That is, self-ascription is a necessary condition for being in a particular mental state. Akeel Bilgrami is a defender of the constitutive model. (...) I argue that the constitutive model gives rise to a regress problem. This paper will focus on that problem as well as its application to Bilgrami's version of the constitutive model. (shrink)
Can the question "Why do what morality requires?" be answered in such a way that anyone regardless of their desires or interests has reason to be moral? One strategy for answering this question appeals to constitutive arguments. In general, constitutive arguments attempt to establish the normativity of rational requirements by pointing out that we are already committed to them insofar as we are believers or agents. This study is concerned with the general prospects for such arguments. It starts by explaining (...) the general constitutive argument strategy, followed by an examination of constitutive arguments that have been given regarding theoretical reason and the instrumental principle in practical reason, and concluding with a discussion of some challenges to constitutive arguments in moral philosophy and some possible responses to these challenges. (shrink)
Both Husserl and Haugeland develop an account of constitution to address the question of how our mental episodes can be about physical objects and thus, through the intentional relation, bridge the gap between the mental and the physical. The respective theories of the two philosophers of very different background show not only how mental episodes can have empirical content, but also how this content is shaped by past experiences or a holistic background of other mental episodes. In this article I (...) first outline and then contrast their positions in order to show how the notion of constitution can be adopted to address major problems of contemporary philosophy of mind, especially the question of how the mind can be related to its physical environment. (shrink)
I experience the world as comprising not only pluralities of individual persons but also interpersonal communal unities – groups, teams, societies, cultures, etc. The world, as experienced or "constituted", is a social world, a “spiritual” world. How are these social communities experienced as communities and distinguished from one another? What does it mean to be a “community”? And how do I constitute myself as a member of some communities but not of others? Moreover, the world of experience is not constituted (...) by me alone, nor am I myself the final arbiter of what is true or false about it, of what is good or bad about it, etc. Constitution is an intersubjective achievement: “we” – I with others – constitute the world. Thus, the world is not only constituted as including interpersonal communal unities, but it is also constituted by these communities: groups, teams, societies, cultures, etc. are themselves "we-subjects”, Husserl says, communally constituting the world of their common engagement. But what is communal, as opposed to individual, constitution and how is it achieved? And what sense is to be made of the notion of plural, collective, "we-subjects", communally constituting a common world? (shrink)
The constitutional subject : singular, plural or universal? -- The constitutional subject and the clash of self and other : on the uses of negation, metaphor, and metonymy -- Reinventing tradition through constitutional interpretation : the case of unenumerated rights in the United States -- Recasting and reorienting identity through constitution-making : the pivotal case of Spain's 1978 Constitution -- Constitutional models : shaping, nurturing, and guiding the constitutional subject -- Models of constitution making -- The constitutional subject and clashing (...) visions of citizenship : can we be beyond what we are not? -- Can the constitutional subject go global? imagining a convergence of the universal, the particular, and the singular. (shrink)
This paper proposes an approach to the question of meaning and understanding based on the idea of constitutive rules and their relationship to the social objects they are used to create. This approach implicates mutual attention as an essential aspect of the social processes constitutive of social objects and mutual intelligibility. Social objects as such include the meaning, perception and coherence of things, identities and talk, etc. There is a relatively unexplored but important line of argument in sociology that has, (...) from the beginning, explained the coherence and mutual intelligibility of social objects and associations in terms of constitutive practices and social facts. This line of argument begins with Emile Durkheim (1893) and carries through the work of Harold Garfinkel to current studies of work and interaction, human computer interaction and talk. The argument is that we use constitutive practices (Constitutive rules or constitutive background expectancies) to create social objects and make coherent and shared meanings. To act is in this sense for Garfinkel (2006) to “mean”. Explaining the consistency of social objects and orders in terms of constitutive orders, rules, or practices is an approach that meets the challenges posed to social science and philosophy by Ludwig Wittgenstein (1953), Peter Winch (1958) and Paul Grice (1989). (shrink)
The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents a point of intersection between (...) law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)
This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role (...) vis - à - vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution. (shrink)
The paper presents, motivates, critiques, and proposes revisions to Baker’s Constitution View, which includes her definitions of constitution, derivative features, and numerical sameness. The paper argues that Baker should add a mereological clause to her definition of constitution in order to avoid various counterexamples.
The purpose of this paper is to demonstrate the usefulness of the concept of possibility , and not merely that of actuality , for an inquiry into the bodily constitution of experience. The paper will study how the possibilities of action that may (or may not) be available to the subject help to shape the meaning attributed to perceived objects and to the situation occupied by the subject within her environment. This view will be supported by reference to empirical evidence (...) provided by recent and current research on the perceptual estimation of distances and the effects brought about by the use of a tool on the organisation of our perceived immediate space. (shrink)
This paper discusses the “constitution view” of human persons, as set forth by Lynne Rudder Baker in her book, Persons and Bodies. The metaphysical notion of constitution is explained and briefly defended. It is shown, however, that the view that human persons are constituted by their bodies faces difficulties in specifying the “person-favorable conditions” under which a human body constitutes a person. Furthermore, none of the arguments in support of the claim that humans are constituted by (but not identical with) (...) their bodies is persuasive. It is proposed that the mind-body theory of “emergent dualism” offers many of the benefits of the “constitution view” without sharing in its drawbacks. (shrink)
Political philosophy has difficulties to cope with the complexity and variety of state-religions relations. Strict separationism is still the preferred option amongst liberals, deliberative and republican democrats, socialist and feminists. In this article, I develop a complex typology based on comparative history and sociology of religions. I summarize my reasons why institutional pluralist models like plural establishment or non-constitutional pluralism are attractive not only for religious minorities but for religiously deeply diverse societies in general. Most attention is paid defending associative (...) democracy, the most flexible and open variety of institutional pluralism, against realist objections that group representation is incompatible with liberal democracy, that it leads to stigmatization and bureaucratization, that it strengthens undemocratic leaders, that it leads to an ossification of the status quo, and, most importantly, that it is inherently divisive undermining social cohesion and political unity. In my refutation of these objections I try to show that it helps to integrate minority religions into liberal democratic policies compatible with reasonable pluralism and to prevent religious and political fundamentalism. (shrink)
The conundrum of the unconstitutional constitution -- The quest for a compelling unity -- The permeability of constitutional borders -- The sounds of silence : militant and acquiescent constitutionalism -- "The first page of the constitution" : family, state, and identity.
Inter-level mechanistic explanations in the sciences have long been a focus of philosophical interest, but attention has recently turned to the compositional character of these explanations which work by explaining higher level entities, whether processes, individuals or properties, using the lower level entities they take to compose them. However, we still have no theoretical account of the constitution or parthood relations between individuals deployed in such explanations, nor any accounts of multiple constitution. My primary focus in this paper is to (...) outline a positive account of the constitution/part-whole relations between individuals posited in inter-level mechanistic explanations that takes constituents in the sciences to be ‘working parts’. Using this account, I then go on to illuminate the nature, and varieties, of multiple constitution that we find in the sciences and provide a starting theoretical framework for multiple constitution as well. (shrink)
In “Mad Narratives: Self-Constitutions Through the Diagnostic Looking Glass,” by using narrative approaches to the self, I explore how the diagnosis of mental disorder shapes personal identities and influences flourishing. My particular focus is the diagnosis grounded on the criteria provided by the Diagnostic Statistical Manual of Mental Disorders (DSM). I develop two connected accounts pertaining to the self and mental disorder. I use the memoirs and personal stories written by the subjects with a DSM diagnosis as illustrations to bolster (...) my claims. First, expanding on the narrative approaches to the self, I explain how narratives about a subject shape her self-constitution. I elucidate how this process is generated by drawing on research in developmental psychology, cognitive science, and social psychology. Next, using this account as a springboard, I argue that the DSM diagnosis of mental disorder serves as a source of narrative, entering into the patients’ autobiographical and social narratives. This plays an important role in the diagnosed subjects’ self-understanding, self-constitution and flourishing. In this vein, how mental disorders are classified is not only a theoretical question about accurately taxonomizing the various experiences related to mental distress but also an ethical question about which ways of talking about mental disorders will allow subjects to respond effectively to their psychological distress, to flourish and to live autonomous and fulfilling lives. Finally, I suggest that the DSM-based narratives wield a double-edged sword when it comes to the subject’s flourishing: On the one hand, there are problems with some DSM-based narratives that stem from the DSM diagnostic schema and the culture of DSM diagnoses. These problems render these DSM-based narratives unbeneficial for flourishing as they constrain the range of adoptive social, cognitive and emotional responses the subjects can give to their mental disorders. On the other hand, there are grounds to believe that some DSM-based narratives help subjects to flourish. For instance, they provide certainty to subjects' otherwise puzzling symptoms and help them reach out to others with similar experiences. Understanding how the DSM-based narratives can both benefit and harm will help us address problems with psychiatric diagnoses and the dissemination of knowledge about mental disorders in popular culture. The project aims to convince both philosophers and psychiatrists that no plausible theory of the self can be developed without attending to the topic of mental disorder and that no theory of mental disorder can be complete without devising the tools provided by the philosophical approaches to the self as well as developmental and social psychology. It also calls for methodological alterations in mental health ethics research, arguing that a careful scrutiny of mental disorder memoirs can advance the ethical underpinnings to the practice of psychiatry. (shrink)
According to the so-called "standard account" regarding the problem of material constitution, a statue and a lump of clay that makes it up are not identical. The usual objection is that this view yields many objects in the same place at the same time. Lynne Rudder Baker's theory of constitution is a recent and sophisticated version of the standard account. She argues that the aforementioned objection can be answered by defining a relation of being the same P as (sameP). In (...) this paper I shall examine consequences of her response and show that sameP has wrong formal properties, as a result of which this solution cannot be accepted. (shrink)
The views of Frederick Douglass, Thurgood Marshall, and Clarence Thomas on how the United States Constitution should be read are examined. Thomas claims that his understanding of the Constitution aligns with Douglass. I conclude that Thomas misunderstands the strategy of Douglass and fails to appreciate the honesty of Marshall.
The phenomenological theory of constitution promises a solution for the problem of consciousness insofar as it changes the traditional terms of this problem by systematically correlating subject and object in the unifying context of intentional acts. I argue that embodied constitution must depend upon the role of kinesthesia as a constitutive operator. In pursuing the path of intentionality in its descent from an idealistic level of pure constitution to this fully embodied kinesthetic constitution, we are able to gain access to (...) different ontological regions such as physical thing, owned body and shared world. Neuroscience brings to light the somatological correlates of noemata. Bridging the gap between incarnation and naturalisation represents the best way of realizing the foundational program of transcendental phenomenology. (shrink)
In the 225 years since the United States Constitution was first drafted, no single book has addressed the key questions of what constitutions are designed to do, how they are structured, and why they matter. In From Words to Worlds, constitutional scholar Beau Breslin corrects this glaring oversight, singling out the essential functions that a modern, written constitution must incorporate in order to serve as a nation's fundamental law. Breslin lays out and explains the basic functions of a modern constitution (...) -- including creating a new citizenry, structuring the institutions of government, regulating conflict between layers and branches of government, and limiting the power of the sovereign. He also moves into the esoteric, discussing the theoretical concepts behind the fundamentals of written constitutions and examining in-depth some of the most important constitutional charters from around the world. In assaying how states put the structural ideas into practice, Breslin asks probing questions about why -- and if -- constitutions matter. His answer is a resounding yes. Solidly argued and engagingly written, this comparative study in constitutional thought demonstrates clearly the key components that a state's foundational document must address. In doing so, Breslin draws a critically important distinction between constitutional texts and constitutional practice. (shrink)
Traditionally, constitutionalists have offered just one notion of constitution to analyse the relation that an object, such as a statue or a chain, bears to the object/s from which it is made: let us say, a piece of marble in the first case or a piece of metal in the second. Robert Wilson proposes to differentiate two notions of constitution and, in this way, to offer constitutionalists a more varied range of metaphysical tools. To justify the introduction of the difference, (...) he presents several phenomena and problems, the explanation of which would justify the distinction he makes. In this paper I argue that Wilson’s proposal would not increase the explanatory power of a theory of constitution as it has traditionally been understood, only its complexity. Increasing the complexity without increasing the explanatory power of a theory, I defend, goes against one, at least prima facie, basic theoretical virtue: parsimony. In my argumentation I crucially use, for the case of Wilson’s first three arguments, the existence of principles of existence−persistence, which constitutionalists, Wilson among them, usually accept. In arguing against Wilson’s fourth argument I use a slightly modified version of Lynne Rudder Baker’s theory of constitution. (shrink)
Most analysts agree that democratic theorists have not offered a persuasive answer to the question of how the boundaries of a demos, a democratic people, should legitimately be defined. Some contend that boundaries should be maintained in ways that preserve sufficient sense of common identity to sustain support for redistributive policies. Many others endorse the “principle of all affected interests,” but it has been widely criticized as unrealistically destructive of too many existing community boundaries. This essay argues for an alternative (...) “principle of constituted identities.” It holds that, subject to certain important qualifications, modern constitutional democracies, at least, are morally obligated to extend the option of full membership to all those whose identities have been substantially constituted through such regimes’ coercive policies. Keywords : civic boundaries; principle of affected interests; constitutional democracy; stories of peoplehood; cultural identity (Published online: 25 August, 2008) Citation: Ethics & Global Politics 2008. DOI: 10.3402/egp.v1i3.1860. (shrink)
This paper is concerned with the notions of supervenience and mechanistic constitution as they have been discussed in the philosophy of neuroscience. Since both notions essentially involve specific dependence and determination relations among properties and sets of properties, the question arises whether the notions are systematically connected and how they connect to science. In a first step, some definitions of supervenience and mechanistic constitution are presented and tested for logical independence. Afterwards, certain assumptions fundamental to neuroscientific inquiry are made explicit (...) in order to show that the presented definitions of supervenience are virtually uninteresting for theory construction in this field. In a third step, a new formulation of supervenience is developed that makes explicit reference to the notion of constitution and that bridges the gap between the philosophical concepts and explanatory practice in neuroscience. (shrink)
The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not (...) to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means. (shrink)
The question of what constitutional constraints should apply to government efforts to regulate scientific speech is frequently contrasted to the question of what constitutional constraints should apply to government efforts to regulate scientific research. This comment argues that neither question is well formulated for constitutional analysis, which should instead turn on the relationship to constitutional values of specific acts of scientific speech and research.
The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby the person whose constitutional rights or freedoms are (...) violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)
The paper offers a survey of the debate on the introduction, in the Preamble of the Treaty establishing a Constitution for Europe, of references to God and Europe’s Christian tradition. It examines the question of European identity and values which motivates these proposals in relation to (1) the nature of the EU as an essentially political construction; (2) the issue of human rights in the EU; (3) the protection of cultural and religious diversity within the EU. The study shows that (...) the confessionalization of Europe promoted by strong churches on the Continent, which are legitimate actors of civil society, betray a failure to understand the logic of the European construction. To the extent to which they represent an attempt to secure a privileged position with respect to other religious or non-religious actors, they run against the functional principles and values of the Union. (shrink)
The article discusses the certain features of the constitutional doctrine of human rights developed by the Constitutional Court of Lithuania which were influenced by the jurisprudence of the European Court of Human Rights, the role of the European Convention on Human Rights as a legal source in the system of sources of constitutional law. The intersection of the jurisprudences, which came into being due to different assessments of the legal regulation in cases where the same legal act was recognized by (...) the Constitutional Court being in compliance with the Constitution and the European Court of Human Rights recognized that the application of the said act was a cause of the violation of a certain person’s rights protected by the Convention (or vice versa) is one of the most important questions and raises many theoretical and practical problems. Different assessment of the legal acts made by the European Court of Human Rights with regard to their compliance with the Conventionshould not be regarded as such an essential circumstance which could lead to possible repeated review of such legal act at the Constitutional Court, such intersection of the jurisprudences, should be solved by ordinary courts while following the doctrine that in cases where legal acts contain the legal regulation which competes with that established in the international treaty, the international treaty should be applied. (shrink)
The article underlines the significance of social rights as important constitutional rights of a human being and emphasises the peculiarities of their nature from the point of view of not only national, but also international law. The article presents an analysis of the constitutional doctrine of the protection of guarantees of social rights, which has been formulated by the Constitutional Court of the Republic of Lithuania in the course of considering the issues of reduction of social guarantees—pensions and remuneration, which (...) were determined by the economic crisis. In the Constitutional Court’s jurisprudence the personal right to social security has been construed in the most broad and comprehensive terms. The human rights and freedoms enshrined in the Constitution have been treated as constituting an integrated and harmonious system, and social rights have been interpreted not only as certain obligations of the state to the public, which inter alia are determined by the social purpose of the state, but also as a person’s individual rights, for which judicial defence is guaranteed. Such concept of the said rights has also been influenced by international law, inter alia the jurisprudence of the European Court of Human Rights. Social rights, while being an object of regulation of international law, have been forming the European doctrine of guarantees of these rights and have influenced the concept of these rights in national law. The main attention in the article is devoted to the analysis of the doctrine formulated in the Constitutional Court’s jurisprudence in relation to the correction (limitation) of social rights (payment of pensions and remuneration) under the conditions of economic crisis. In the article the period of formation of this doctrine is divided into two stages: the period of 2002–2006, when the Constitutional Court had to decide regarding the compliance of the legal acts whereby social guarantees had been constricted with the Constitution, and which was caused by the consequences of the so-called Russian economic crisis for the economic development of the state of Lithuania; and the period from 2009 to date, during which the Constitutional Court has been forming the constitutional doctrine of limitation of social rights, which was conditioned by the outcomes of the global economic crisis for the economy of the state of Lithuania. The article raises a question as to whether the constitutional doctrine being formed by the Constitutional Court in relation to the limitation of social rights under the conditions of economic crisis may be assessed as an independent one or whether it still remains to be a separate case of limitation of rights within the general doctrine of limitation of human rights. On the basis of the analysis of the Constitutional Court’s jurisprudence, a conclusion is drawn that the criteria established in the Constitutional Court’s doctrine of limitation of social rights under the conditions of economic crisis are even stricter than the universally recognised criteria for the limitation of human rights in the law of human rights, therefore, it is possible to assess the doctrine of limitation of social rights under the conditions of economic crisis, as formulated by the Constitutional Court during 2009–2012, which is the continuation of the previous doctrine, as an independent doctrine, the basis of which, undoubtedly, remains to be formed by the general principles of limitation of human rights recognised in the law of human rights. The article is not only confined to the analysis of the jurisprudence of the Constitutional Court of the Republic of Lithuania, it also provides examples of construction of the doctrine of social rights (inter alia those influenced by the economic crisis) by certain other constitutional courts. (shrink)
This book aims to distil the essentials of liberal constitutionalism from the jurisprudence and practice of contemporary liberal-democratic states. Most constitutional theorists have despaired of a liberal consensus on the fundamental goals of constitutional order. Instead they have contented themselves either with agreement on lower-level principles on which those who disagree on fundamentals may coincidentally converge, or, alternatively with a process for translating fundamental disgreement into acceptable laws. Alan Brudner suggests a conception of fundamental justice that liberals of competing philosophic (...) schools may accept as fulfilling their own basic commitments. He argues that the model liberal-democratic constitution is best understood as a unity of three constitutional frameworks: libertarian, egalitarian, and communitarian. Each of these has a particular conception of public reason. Brudner criticizes each of these frameworks insofar as its organizing conception claims to be fundamental, and moves forward to suggest an Hegelian conception of public reason within which each framework is contained as a constituent element of a whole. When viewed in this light, the liberal constitution embodies a surprising synthesis. It reconciles a commitment to individual liberty and freedom of conscience with the perfectionist idea that the state ought to cultivate a type of personality whose fundamental ends are the goods essential to dignity. Such a reconciliation, the author suggests, may attract competing liberalisms to a consensus on an inclusive conception of public reason under which political authority is validated for those who share a confidence in the individual's inviolable worth. (shrink)