"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.

In lieu of an abstract, here is a brief excerpt of the content:Books ReceivedThe Ambitions of Curiosity: Understanding the World in Ancient Greece and China. By G.E.R. Lloyd. Cambridge: Cambridge University Press, 2002. Pp. xvi + 175. Price not given.The Art of the Han Essay: Wang Fu's Ch'ien-Fu Lun. By Anne Behnke Kinney. Tempe: Center for Asian Studies, Arizona State University, 1990. Pp. xi + 154. Paper $10.00.The Autobiography of Jamgön Kongtrul: A Gem of Many Colors. By Jamgön Kongtrul Lodrön (...) Thayé and translated by Richard Barron (Chökyi Nyima). Ithaca, New York: Snow Lion Publications, 2003. Pp. xxii + 549. Price not given.Awesome Nightfall: The Life, Times, and Poetry of Saigyō. By William R. LaFleur. Boston: Wisdom Publications, 2003. Pp. xiii + 173. Paper $14.95.Becoming the Compassion Buddha: Tantric Mahamudra for Everyday Life. By Lama Thubten Yeshe, edited by Robina Courtin, and foreword by Geshe Lhundub Sopa. Boston: Wisdom Publications, 2003. Pp. xi + 194. Paper $14.95.Between Two Worlds East and West: An Autobiography. By J. N. Mohanty. New Delhi: Oxford University Press, 2002. Pp. ix + 134. Hardcover RS 525.00.The Chinese Face of Jesus Christ. Edited by Roman Malek, S.V.D. Sankt Augustin, Germany: Institut Monumenta Serica and China-Zentrum; and Nettetal, Germany: Steyler Verlag, 2002. Pp. 391. EUR 40.00.Chinese Medicine in Contemporary China: Plurality and Synthesis. By Volker Scheid. Durham and London: Duke University Press, 2002. Pp. xiv + 407. Hardcover $69.95. Paper $23.95.Confucian Feminist: Memoirs of Zeng Baosun (1893-1978). Translated and adapted by Thomas L. Kennedy. Philadelphia: American Philosophical Society, 2002. Pp. xxi + 170. Price not given.Consciousness Studies: Cross-Cultural Perspectives. By K. Ramakrishna Rao. Jefferson (North Carolina) and London: McFarland and Company, 2002. Pp. 367. Hardcover $65.00.Constituting Communities: Theravāda Buddhism and the Religious Cultures of South and Southeast Asia. Edited by John Clifford Holt, Jacob N. Kinnard, and Jonathan S. Walters. Albany: State University of New York Press, 2003. Pp. viii + 224. Hardcover $65.50. Paper $21.95.Developments in Indian Philosophy from Eighteenth Century Onwards: Classical and Western. By Daya Krishna. Volume X Part 1 of History of Science, Philosophy and Culture in Indian Civilization, edited by D. P. Chattopadhyaya. New [End Page 110] Delhi: Centre for Studies in Civilizations, 2001. Pp. xxiii + 417. Hardcover RS 1200.East and West: Identità e dialogo interculturale. By Giangiorgio Pasqualotto. Venezia: Marsilo Editori, 2003. Pp. 210. EUR 16.00.Effortless Action: Wu-wei as Conceptual Metaphor and Spiritual Ideal in Early China. By Edward Slingerland. New York: Oxford University Press, 2003. Pp. xii + 352. Price not given.Encountering Kā lī: In the Margins, at the Center, in the West. Edited by Rachel Fell McDermott and Jeffrey J. Kripal. Berkeley and Los Angeles: University of California Press, 2003. Pp. xviii + 321. Hardcover $55.00, £37.95. Paper $21.95, £15.95.Encyclopedia of Chinese Philosophy. Edited by Antonio S. Cua. New York and London: Routledge, 2003. Pp. xx + 1020. Hardcover $150.00.Essays on Indian Philosophy. By J. N. Mohanty and edited by Purushottama Bilimoria. New Delhi: Oxford University Press, 2002. Pp. xxxvii + 347. Paper RS 525.00.Faith, Humor, and Paradox. By Ignacio L. Götz. Westport, Connecticut: Praeger Publishers, 2002. Pp. 136. Hardcover $61.95.Four Illusions: Candrakīrti's Advice for Travelers on the Bodhisattva Path. Translated by Karen C. Lang. New York: Oxford University Press, 2003. Pp. xv + 240. Price not given.The Great Awakening: A Buddhist Social Theory. By David R. Loy. Boston: Wisdom Publications, 2003. Pp. 223. Paper $16.95.The Hidden History of The Tibetan Book of the Dead. By Bryan J. Cuevas. New York: Oxford University Press, 2003. Pp. xi + 328. Price not given.Huang Di nei jing su wen: Nature, Knowledge, Imagery in an Ancient Chinese Medical Text. By Paul U. Unschuld. Berkeley and Los Angeles: University of California Press, 2003. Pp. xii + 520. Hardcover $75.00, £52.00.In Dewey's Wake: Unfinished Work of Pragmatic Reconstruction. Edited by William J. Gavin. Albany: State University of New York Press, 2003. Pp. vi + 249. Hardcover $71.50. Paper $23.95.Knowledge and Freedom in Indian Philosophy. By Tara Chatterjea. Lanham, Maryland: Lexington Books, 2002. Pp. xvi + 159. Hardcover... (shrink)

I defend the view that ordinary objects like statues are identical to the pieces of matter from which they are made. I argue that ordinary speakers assert sentences such as ‘this statue is a molded piece of clay’. This suggests that speakers believe propositions which entail that ordinary objects such as statues are the pieces matter from which they are made, and therefore pluralism contradicts ordinary beliefs. The dominant response to this argument purports to find an ambiguity in the word (...) ‘is’, such that ‘is’ in these sentences means the same as ‘constitutes or is constituted by’. I will use standard tests for ambiguity to argue that this strategy fails. I then explore and reject other responses to the argument. (shrink)

I consider a problem that arises in connection with (alleged) cases of coincident objects (such as a statue and the lump of clay it is made of) and that affects the two main accounts that have been given of such cases, namely, Pluralism (according to which statue and lump are distinct) and Monism (according to which they are one). The problem is that both views seem committed to accepting strained interpretations of some of the statements used to describe the situation. (...) I consider Pickel’s arguments against the Pluralist’s strategy of interpreting ‘is’ as expressing constitution in sentences such as ‘The statue is the lump of clay’, and provide reasons for rejecting them—so as to vindicate, eventually, the Pluralist position. (shrink)

This article constitutes the new fixed point results of dynamic process D through FIC-integral contractions of the Ciric kind and investigates the said contraction to iterate a fixed point of set-valued mappings in the module of metric space. To do so, we use the dynamic process instead of the conventional Picard sequence. The main results are examined by tangible nontrivial examples which display the motivation for such investigation. The work is completed by giving an application to Liouville‐Caputo fractional differential equations.

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)

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.

In this incisive and thought-provoking book, Francois Venter illuminates the issues arising from the fact that the current language of constitutional law is strongly premised on a particular worldview rooted in the history of the states around the North Atlantic Ocean. Highlighting how this terminological hegemony is being challenged from various directions, Venter explores the problem that all constitutional comparatists face: that they all must use the same words to express different meanings. Offering a compact but comprehensive constitutional history, Venter (...) investigates the ways in which the standard vocabulary does not fit comfortably in many contemporary constitutional orders, as well as examining how its cogency is increasingly being questioned. Chapters contextualize comparative constitutional methods to demonstrate how the language choices made by comparatists are shaped by their own perspectives, arguing that careful explanation of the meanings attached to constitutional terms is imperative in order to be persuasive or even understood. Tackling the foundational elements of the field, this book will be a critical read for constitutional scholars across the globe. It will also be of interest to high-level practitioners of constitutional law and political scientists for its investigation of terminology that is crucial to their work. (shrink)

The aim of the present volume is to discuss the notion of constitution from the perspectives of history of political thought. Its scholarly intention is to go beyond the approach concentrating on the formal understanding of constitution and bring forward more complex historical and philosophic-political interpretations. Our point of departure was the need to revive the somehow neglected distinction between the idea of constitution as an act of conscious law-giving activity and the notion of constitution conceived (...) as the set of fundamental political rules derived from the very nature of political regime and its historical development. (shrink)

Going back to the late 1970s and early 1980s, we trace the Xenopus oocyte microinjection experiments that led to the emergence of the concept of “modulator”. The finding that the modulator could transactivate transcription from far upstream and in either orientation suggested that a new genetic element, different from the classical prokaryotic promoter sequences, had been discovered. This particular enhancer transactivates transcription of the sea urchin early (α) histone H2A gene which is regulated in early sea urchin development. We summarise (...) the data from sea urchin microinjection experiments that confirm and extend the results obtained with Xenopus oocytes. We conclude that the H2A enhancer is bipartite, is located approx. 100 bp upstream of the TATAAATA box in the H2A gene of two sea urchin species and enhances transcription when placed at a position far upstream or far downstream of the gene unless an insulator intervenes between enhancer and promoter. Evidence from microinjection experiments with sea urchin embryos suggests that the developmental control of H2A expression resides not with the enhancer, which is constitutively active, but with a striking chromatin structure with two positioned nucleosomes near the 3′ end of the gene. Within this structure, there is an insulator element. BioEssays 24:850–857, 2002. © 2002 Wiley Periodicals, Inc. (shrink)

We will examine the revolts, begun in October of 2019, and currently developing in Chile under three conjoined parts. First, we will not try to theoretically ‘tame’ the revolutionary creature, but rather to plug immanently into the energy of the ‘potentia’ of the revolutionary event. To this extent, we will highlight the shortcomings of a theoretical enterprise that intends to explain it in traditional terms or that thrives for a variant of simple ‘reformism’. Second, and consequently, we will describe how (...) the concept of the constitution is the perfect product of coloniality. Hence, the concept of the ‘constitutional trap’ is not something unique to the Chilean experiment, but that the constitutional idea itself is the main pipeline of coloniality and the most sophisticated product in the contention of democracy. Third, and to encompass and give a particular direction to the previous topics, we will deploy the ‘theory of encryption of power’ and the concept of the ‘hidden people’ to explicate the Chilean phenomenon under a new light, where no past is irrevocable, and no future is necessary. (shrink)

The first part of this paper finds Craver’s (2007) mutual manipulability theory (MM) of constitution inadequate, as it definitionally ties constitution to the feasibility of idealized experiments, which, however, are unrealizable in principle. As an alternative, the second part develops an abductive theory of constitution (NDC), which exploits the fact that phenomena and their constituents are unbreakably coupled via common causes. The best explanation for this common-cause coupling is the existence of an additional dependence relation, viz. (...) class='Hi'>constitution. Apart from adequately capturing the essential characteristics of constitution missed by MM, NDC has important ramifications for constitutional discovery—most notably, that there is no experimentum crucis for constitution, not even under ideal discovery circumstances. (shrink)

An epistemic account of constitutive relevance lists the criteria by which scientists can identify the components of mechanisms in empirical practice. Three prominent claims from Craver form a promising basis for an account. First, constitutive relevance is established by means of interlevel experiments. Second, interlevel experiments are executions of interventions. Third, there is no interlevel causation between a mechanism and its components. Currently, no account on offer respects all three claims. I offer my causal situationist account of constitutive relevance that (...) respects the claims. By situating a part of a mechanism on the causal chain between the mechanism’s input and output, components can be identified with interventions, without the interventions suggesting interlevel causation. The causal situationist account is the only account on offer so far that clearly fits within Craver’s framework. (shrink)

The central aim of this article is to specify the ontological nature of constitutive mechanistic phenomena. After identifying three criteria of adequacy that any plausible approach to constitutive mechanistic phenomena must satisfy, we present four different suggestions, found in the mechanistic literature, of what mechanistic phenomena might be. We argue that none of these suggestions meets the criteria of adequacy. According to our analysis, constitutive mechanistic phenomena are best understood as what we will call ‘object-involving occurrents’. Furthermore, on the basis (...) of this notion, we will clarify what distinguishes constitutive mechanistic explanations from etiological ones. 1 Introduction 2 Criteria of Adequacy 2.1 Descriptive adequacy 2.2 Constitutive–etiological distinction 2.3 Constitution 3 The Ontological Nature of Constitutive Mechanistic Phenomena 3.1 Phenomena as input–output relations 3.2 Phenomena as end states 3.3 Phenomena as dispositions 3.4 Phenomena as behaviours 4 Phenomena as Object-Involving Occurrents 4.1 What object-involving occurrents are and why we need them 4.2 The object in the phenomenon 4.3 The adequacy of option 5 Conclusion. (shrink)

The extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on such branches (...) as, in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

Constitutional and judicial law-making is increasingly beginning to find its reflection not only in the Anglo-Saxon, but also in the Romano-Germanic legal family. However, the prerequisites for the use of this legal instrument are different, which determines the relevance of conducting a comparative analysis regarding the provision of such a mechanism in the USA and Kazakhstan. The purpose of the research is to identify common and distinctive features in the process of implementation of constitutional and judicial law-making in countries belonging (...) to different legal systems. The article uses the methods of analysis, synthesis, comparison, deduction and generalization. As a result, the specificity of ensuring the mechanism of constitutional law-making in the USA was expressed, taking into account various forms of law-making activity. It has been established that the development of constitutional provisions in the United States takes place with the help of the constitutional doctrines of the Supreme Court of the United States, which provide for the introduction of amendments to constitutional provisions without a formal procedure. As a result of the study of the experience of Kazakhstan, it was established that special priority was given to the role of precedent, in particular, the decision of the Supreme Court of the Republic of Kazakhstan. This is explained by the integrative nature of the Romano-Germanic legal system, which allows effective development of national legislation as a whole and its provisions. The obtained results can be used during the professional training of judges in the Republic of Kazakhstan. (shrink)

This book is written for anyone, anywhere sitting down to write a constitution. The book is designed to be educative for even those not engaged directly in constitutional design but who would like to come to a better understanding of the nature and problems of constitutionalism and its fundamental building blocks - especially popular sovereignty and the separation of powers. Rather than a 'how-to-do-it' book that explains what to do in the sense of where one should end up, it (...) instead explains where to begin - how to go about thinking about constitutions and constitutional design before sitting down to write anything. Still, it is possible, using the detailed indexes found in the book, to determine the level of popular sovereignty one has designed into a proposed constitution and how to balance it with an approximate, appropriate level of separation of powers to enhance long-term stability. (shrink)

This is a completely revised and updated second edition of Rights Before Courts (2005, paper edition 2008). This book carefully examines the most recent wave of the emergence and case law of activist constitutional courts: those that were set up after the fall of communism in Central and Eastern Europe. In contrast to most other analysts and scholars, the study does not take for granted that they are a "force for good" but rather subjects them to critical scrutiny against a (...) background of wide-ranging comparative and theoretical analysis of constitutional judicial review in the modern world. The new edition takes in new case law and constitutional developments in the decade since the first edition, including considering the recent disturbing disempowerment of the Hungarian Constitutional Court (which previously was probably the most powerful constitutional court in the world) resulting from the fundamental constitutional changes brought about by the Fidesz government. (shrink)

No one denies the importance of applying knowledge to actions. But claiming identity (unity) of knowledge and action is quite another thing. There seem to be two problems with the claim: (1) the identity claim implies that the sole cause for one to fail to act on what one judges to be right is ignorance, but it is obviously false that the sole cause of failure in moral actions is ignorance. (2) The identity statement implies non-separation of knowledge and action. (...) But knowledge does not necessarily lead to action. However, the identity of knowledge and action is what a famous Ming Confucian scholar, W ang Yang-ming, proposed and the concept became the central doctrine of his teaching. Though there are several major interpretations of Wang’s doctrine in contemporary literature, it is not clear to me how they deal with the above mentioned difficulties. In this article, I will discuss these interpretations of the doctrine and propose a new interpretation. My purpose is to give an interpretation of Wang’s doctrine that has the capacity of dealing with these challenges to the doctrine and also captures the essence of his teaching. (shrink)

This article calls for the construction of constitutional rights as principles, rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. It attempts, in this way, to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, therefore, first and foremost a debate (...) over proportionality analysis. The central objection to the principles construction is that balancing and, with it, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis endangers neither the power nor the force of constitutional rights. (shrink)

The aim of the paper is to supply a contribution to the semantics of “constitutive,” as confined to the scope of judicial reasoning. More precisely, the aim of the paper is to inquire what links the use of “constitutive” in three distinct (seemingly unrelated) issues on adjudication, namely: (a) the procedural classification of different sorts of judicial decisions, (b) the epistemological debate on the very nature of judicial decisions, and (c) a logical query on the import constitutive rules might be (...) taken to have in affecting the sort and/or the nature of judicial decisions in which they might occur as the legal premiss, grounding the solution of the case. The attempt to fix some markers towards the semantics of “constitutive” in judicial reasoning will have Alchourrón and Bulygin's analyses as a main point of reference. (shrink)

Although the notion of constitutive rule has played an important role in the metaphysical debate in social and legal philosophy, several authors perceive it as somewhat mysterious and ambiguous: the idea of a specific kind of rules that are supposed to be “magically” constitutive of reality seems suspicious, more a rationalistic fiction than a genuine explanation. For these reasons, reductionist approaches have been put forward to deflate the explanatory role of this notion. In this paper, I will instead try to (...) defend constitutive rules. My thesis is that the notion of constitutive rule is explanatorily helpful because it gives a complete account of an important phenomenon in the social and legal domain, namely, that of artifactual entities endowed with statuses that can have emergent normative properties. Conceiving of these entities as rule-constituted artifacts is an important part of what H. L. A. Hart called “the internal point of view” toward law, and for this reason constitutive rules should be included in an explanation of that point of view as an integral part of the life of institutions. The structure of my argument will be as follows. First, I will provide an example of an important phenomenon in the internal point of view, namely, the fact that individuals can have normative reactions not about the specific regulation of an institution but about its underlying purpose and rationale—what in the legal domain is called the ratio of a norm. Then I will identify two reductionistic approaches on constitutive rules. The first approach is exemplified by Brian Epstein’s idea that the phenomena explained by constitutive rules are better explained in terms of metaphysical (grounding/anchoring) relations. The second kind of reductionism is instead exemplified by the idea (held by several authors, among whom Alf Ross, Riccardo Guastini, Frank Hindriks, and Francesco Guala) that the phenomena explained by constitutive rules can be accounted for in terms of regulative rules plus a certain terminology. I will try to show that neither of these approaches can explain normative reactions to the ratio of an institution from an internal point of view: While the first cannot explain the fact that the reaction is strongly normative, the second cannot explain the fact that the reaction is about the ratio of a normative entity. Constitutive rules can instead explain both things and should be preserved as an important notion for the analysis of institutional ontology. By way of constitutive rules we create something: immaterial, rule-based institutional artifacts that can have emergent normative properties. (shrink)

A draft version of Chapter 11 of the edited volume 'Interpreting Bodies. Classical and Quantum Objects in Modern Physics',. The Chapter is devoted to illustrating the group-theoretic approach to the issue of physical objects. In particular, the Chapter discusses the group-theoretic constitution of classical and quantum particles in the nonrelativistic case.

When collective decisions should be made democratically, which people form the relevant demos? Many theorists think this question is an embarrassment to democratic theory: because any decision about who forms the demos must be made democratically by the right demos, which itself must be democratically constituted and so on ad infinitum; and because neither the concept of democracy, nor our reasons for caring about democracy, determine who should form the demos. Having distinguished between these three versions of the demos problem, (...) we argue that each of them can be solved. (shrink)

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have (...) an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

The foundations of almost all Islamic sciences were laid in the first and second centuries of hijra. With the expansion of the Islamic world since the first century of hijra, the existence of a collective effort to transfer oral information into writing is notable. With the invitation of the prophet Muḥammad to Islam, an unprecedented increase in the culture of writing has been observed. Since the emergence of Islam, the world history scene has witnessed feverish writing activity. Especially in the (...) 2th/8th century, when the transition from oral culture to written culture accelerated, the founding texts of the science of language and religion, which were the carriers of these sciences related to aqāid-kalām, fiqh and uṣūl al-fiqh, tasawwuf, tafsir, and hadith, were compiled. Thanks to the founding texts containing the basic principles, the sciences have had the opportunity to develop by deepening. In this study, the contribution of Fiqh al-akbar, the founding text of the science of creed, to the science of kalam, which has made significant progress, will be discussed. In order for a text to be considered a founding and root, there must be a system that it establishes as the fruit of the tree. In this sense, Fiqh al-akbar established a moderate and defensible belief system. There is an organic link between the most concise faith texts and the most voluminous kalām books. While the creed texts, which consist of writing the goals at the end of the road, are the counting of the principles of faith, the texts of the kalām represent the walking of the road that leads to the goal of faith. Fiqh al-akbar, which marks the end of the road by finishing the roads to be walked, is the first and most important of the milestones of Islamic thought. In this study, the contribution of Fiqh al-akbar, the founding text of the science of aqāid, to the science of kalām will be discussed in the context of its belonging to its author. This text gave direction to Ahl al-Sunna theology, which would be written in the later stages of Islamic thought. In this study, the internal and external contexts of the founding text mentioned will be confirmed in terms of its relative acumen to Abū Ḥanīfa. In addition, the reason for the increase in the commentaries (Sharḥ) of Fiqh al-akbar during the Ottoman period will be shown. As a matter of fact, each annotation strengthens that it belongs to the author. In the annotations, there is no sentence stating that the text does not belong to Abū Ḥanīfa, on the contrary, the authenticity of the belonging is emphasized. Of course, not all the annotations of the relevant text will be included here, but mostly printed works will be emphasized. Theology, prophecy and the hereafter are discussed in Fiqh al-akbar. Here, how theological debates and problems related to the history of theological concepts are handled in the commentaries will be shown. In this article, within the framework of the method discussed as an example, a preparation will be made for further studies to evaluate the topics and concepts of prophecy and the hereafter in the context of commentaries. The point that should be emphasized here is that none of the scholars who commented on the text pointed out that the subject or concept was not discussed in the period of Abū Ḥanīfa. Moreover, from the early period until as late as the 7th/13th century, both theology and bibliography books did not have any doubts about the belonging of Fiqh al-akbar to Abū Ḥanīfa. Moreover, since the early period, both theological and bibliographical works did not have any doubts about Fiqh al-akbar’s belonging to Abū Ḥanīfa. (shrink)

This paper deals with the question of the conflict of constitutional rights with regard to basic rights. Two extreme accounts are outlined: the subsumptive approach and the particularistic approach, that embody two main conceptions of practical rationality. Between the two approaches there is room for a range of options, two of which are examined: the proportionalist approach, which conserves the scope of rights restricting their stringency, and the specificationist approach, which preserves the stringency of rights restricting their scope. I will (...) present arguments in defence of the latter. (shrink)

One’s constitution—whether one is generous or miserly, temperate or intemperate, kind or mean, etc.—is beyond one’s control in significant respects. Yet one’s constitution affects how one acts. And how one acts affects one’s moral standing. The counterintuitive inference—the so-called problem of constitutive moral luck—is that one’s moral standing is, to some significant extent, beyond one’s control. This article grants the premises but resists the inference. It argues that one’s constitution should have no net impact on one’s moral (...) standing. While a bad constitution lowers the chance that one will act morally, it offers significant gains to moral standing should that chance materialize. A good constitution increases one’s chance of performing good acts but for correspondingly more modest gains. This effect should smooth out, and possibly eliminate, the expected impact of constitution on moral standing. (shrink)

Political theorists tend to dismiss the concept of constitutional patriotism for two main reasons. On the one hand, constitutional patriotism — understood as a post-national, universalist form of democratic political allegiance — is rejected on account of its abstract quality. On the otherhand, it is argued that constitutional patriotism, while apprearing universalist, is in fact particular through and through. According to this genealogical critique, it is held that constitutional patriotism might have been appropriate in the context when it originated — (...) namely West Germany, a half-nation with a deeply compromised sense of nationality on account of the Nazi past — but it is not universally applicable. This article reconstructs the origins of constitutional patriotism arguing that both the ‘protective’ and state-centred patriotism of Dolf Sternberger, and the ‘purifying’ patriotism of Jurgen Habermas — focused mainly on the public sphere — can indeed be understood as relying on ‘supplements of particularily’. However, there are also normative connections between universalist constitutional morality and militant democracy on the one hand, and universalist constitutionalist morality and an imperative to remember on the other. Thus, the genealogical critique by itself is insufficient to invalidate the idea of constitutional patriotism. (shrink)

Invocations of Merleau-Ponty’s claim concerning the incompleteness that accompanies the phenomenological reduction have had a long and somewhat contentious history. In this paper I will further explore the implications of Merleau-Ponty’s claim and the itinerary from which it emerges. From the Structure of Behaviour onward, he argued that consciousness is not a transcendental presupposition but an achievement that emerges from and transforms the labor of our rational practices. Phenomenological theory rightly argued for the centrality of the experience of the reduction, (...) albeit too often by mistakenly bestowing immanence upon it. Statically regarded, the reduction may involve an ‘act’ but it is also a Stiftung, and thus a performative, one that Merleau-Ponty claims involves an institution and an acquisition: as he puts it quite simply, it is learned. The reduction involves intuition but it is also a conceptual practice involving “a multitude of operations”, a symbolic matrix always articulated through internal transformations. Finally the reduction is an experience but it is always a sequence “gradually effected” and thus an embodied history. It results then not in the Spinozist Habemus ideam verum, but as “The Philosopher and His Shadow” rightly concludes, an “artifact”. For Merleau-Ponty, all this forced the recognition of the “internal difficulty” in the reduction theorized through the concept of a constituting consciousness. Moreover, this not an anthropological claim about a faculty or finitude, but a claim about the rationality, the “metamorphosis” and “coherent deformation” of its experience, an “ordered sequence of steps” that “could not possibly reach completion in the intellectual possession of a noema”. It is not simply en presence, in the static relation of presence that phenomenology achieves justification. For Merleau-Ponty, its experience is not unrevisable, nor immanently completable: instead it is only through the ordered steps of its history that it acquires sufficiency. (shrink)

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I (...) argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining. (shrink)

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually (...) everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today. (shrink)

This chapter continues the institutional design process started in the previous, turning to four different types of modification in the system of constitutional review. I consider, in turn, the establishment of self-review panels in the legislative and executive branches of national governments (A), various mechanisms for inter-branch debate and decisional dispersal concerning constitutional elaboration (B), easing constitutional amendability requirements in overly obdurate systems (C), and finally establishing civic constitutional fora as replacements of traditional amendment procedures (D). In each case the (...) proposals are motivated by the problems of judicial review I identified in the previous chapter, and their design is oriented to the fullest realization of the six assessment values I specified there. I assume throughout that some form of judicial review is extant in the political system, and for the most part I assume the concentrated system with specialized constitutional courts that I argued for there. Where something important hangs on the difference between a concentrated and diffuse system of constitutional courts for the design of these other mechanisms for constitutional elaboration, I take that up in the discussion. (shrink)

Philosophers have applied the framework of constitutive grounds to make sense of the disagreement between subjectivism and objectivism. The framework understands the two theories as being involved in a disagreement about the extent to which value is determined by attitudes. Although the framework affords us with some useful observations about how this should be interpreted, the question how value can be determined by attitudes in the first place is left largely unanswered. Here we explore the benefits of a positive interpretation (...) which aims to address this oversight and make the framework more informative. This interpretation, which is inspired by the recent work of Schroeder and Sobel, claims that the relevant sense in which value can be determined by attitudes is discovered by seeing how facts can be endowed with the normative property of being a reason. We argue that this interpretation significantly deepens our understanding of the disagreement between subjectivism and objectivism. (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)

Some Christian materialists have argued for the possibility of resurrection given that persons are constituted by bodies, and constitution is not identity. Baker's constitutionist view claims superiority over animalist alternatives but offers only circular accounts of both personal identity over time and personhood. Corcoran's alternative approaches these questions differently but makes use of Zimmerman's ‘Falling Elevator Model’ of resurrection, which is rendered incoherent by its reliance on contingent identity. A recent constitutionist revision of this model succeeds only in exchanging (...) incoherence for absurdity. Despite difficulties for such resurrection accounts, the idea of constitution as a sui generis relation remains attractive among philosophers and Christian materialists in particular. However, Wasserman's deflationary view combines with problems such as extensionality, indiscernibility and the explosion of reality to provide reason to worry that constitution might be just identity after all. If so, then the metaphysics of constitution cannot provide a convenient route between animalism and immaterialism when explaining the possibility of resurrection. (shrink)

E.J. Lowe is one of the few philosophers who defend both the existence of spatially coincident entities and the Principle of Weak Extensionality that no two objects which have proper parts have exactly the same proper parts at the same time. Lowe maintains that when spatially coincident things like the statue and the lump of bronze are in a constitution relation, the constituted entity (the statue) has parts that the constituting entity (the lump) doesn’t, hence the compatibility with Weak (...) Extensionality. My contention is that his argument for why the statue has parts the lump of bronze lacks can also be used to show that the lump of bronze has parts the statue doesn’t. This will mean that there is no basis for saying the statue and the lump are in a constitution relation. I argue for accepting a modified account of constitution and abandoning the Principle of Weak Extensionality. (shrink)

The rapid spread of judicially-enforced constitutional rights has been one of the most dramatic developments in modern law. This book argues that there is now a global model for how such rights should function, and develops an original, philosophically grounded, account of their nature and scope.

Many ordinary things are made up of material things. For example, the statue of Ferdousi in the University of Tehran is made up of a particular piece of bronze. Calling the relation between the statue of Ferdousi and that piece of bronze material constitution, many philosophers have claimed that this relation between a material thing and the thing that it constitutes is identity. Baker, in contrast, believes that these things have genuine unity without necessary identity. In this article, I (...) first illustrate the principles of Baker’s theory and his explanation of this relation. Then I will assess the theory against objections. I will conclude that this theory can successfully explain relation between many of material things, but concerning things belonging to human beings, the theory fails to introduce a criterion for constitution. (shrink)

Despite its frequent appearances in sociological textbooks, dictionaries and theoretical opuses, ethnomethodology is still one of the most misunderstood and undervalued domains of sociological inquiry. This is particularly evident in the case of the central sociological question: social order. Harold Garfinkel, the founder of ethnomethodology, provided a unique answer to the question of order. His answer emphasized a contingent, situated character of constitutive practices of local order production. Initially a response to Talcott Parsons’ question about the conditions of the stability (...) of social order, Garfinkel’s conception of constitutive order was later radicalized and used as the foundation of the programme of empirical ethnomethodological studies. To properly understand the radical character of the conception and programme, it is necessary to reveal the core elements of it and to separate them from the historically changed components. (shrink)

The modern constitution is predominantly understood as a way of instituting and limiting power, and is expected to contribute to (societal) stability, certainty, and order. Constitutions are hence of clear sociological interest, but until recently they have received little sociological attention. I argue that this is unfortunate, as a sociological approach has much to offer in terms of a complex and historically sensitive understanding of constitutions and constitutionalism. Constitutional sociology has particular relevance in contemporary times, in which the meaning (...) of constitutions and constitutionalism is uncertain, and subject to contestation, and possible transformation. The constitutional sociology developed here is phenomenologically inspired and stresses the importance of understandings of the modern constitution as ‘embedded’ in constitutional imaginaries. Rather than as a visible and rationally designed construct, constitutional sociology understands constitutionalism as ultimately a ‘field of knowledge’. The suggestion is that this field of knowledge or ‘modern constitutional horizon’ is characterized by a tension between two ultimate markers, in terms of what Castoriadis has identified as the social imaginary significations of mastery and autonomy. Mastery and autonomy form prominent constitutional orientations, historically taking the form of solidified, instituted meanings, identified here as the modernist and the democratic imaginaries. In the last section, the two instituted constitutional imaginaries will be ‘unpacked’ in specific components (state sovereignty, absoluteness, fabrication, endurance, and distrust regarding the modernist imaginary; indeterminacy, creativity, dynamism, self-government and popular sovereignty regarding the democratic one). In conclusion, I suggest that constitutional sociology might significantly help elucidating the potential losses and heteronomous tendencies that may result from the contemporary uncertainty and possible metamorphosis that affects the modern constitution. (shrink)

Even though he is mainly known for his concept of constituent power, Sieyès was one of the first constitutional theorists to ask for a guardian of the constitution which closely resembles contemporary constitutional courts. This article reconstructs the main tenets of his proposal, puts them in the larger context of his constitutional theory and then assesses the constitutional nature and functions of this institution. The judgment is mixed: as an organ, Sieyès’ constitutional jury is a hybrid institution, neither a (...) real third chamber nor a full-fledged constitutional court; however, its functions not only are a clear anticipation of the control of constitutionality, but are also intended to tame constituent power and to protect the rights of man in case of legal gaps. (shrink)

The general account of material constitution presented in my article, Spatially Coinciding Objects (Ratio vol. 24.1, June 1982), is further developed. There we saw how distinct objects in the same place at the same time can be strictly ordered by an asymmetrical, transitive relation of material constitution. I show herein how this relation can conceivably form ‘upright trees’ in which one object constitutes two other objects, neither of which constitutes the other. It is, however, impossible to have ‘inverted (...) trees’ in which one thing is constituted by two things neither of which constitutes the other. (This impossibility is implied when supposing that there is just one thing which counts as the proximate matter of a thing.). (shrink)

The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between (...) national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada. (shrink)

Modal constitution theory is one of the most influential solutions to the paradoxes of coincidence, and the problem of personal identity. It rests on three fundamental premises: common-sense objects exist; sometimes objects coincide in space; the coincidence of objects in space requires explanation. In this article, the author offers a critique of the modal theory of constitution. First, the definition of the constitution is examined and a new argument is offered that modal theory either does not provide (...) asymmetry of the constitution or leads to an infinite series of constitutive objects, unsatisfactorily extending ontology. Also, the author demonstrates that possible additions to the constitutive definition, which can make the definition sufficient for asymmetric relation, lead to additional theoretical difficulties, leading to the logical impossibility of constitution relation. Second, the author demonstrates that the theory of constitution offers an unsatisfactory theory of identity because it faces three problems: the overpopulation problem, the epistemic problem, and the personal problem. All of these considerations lead the author to conclude that modal constitution theory is not metaphysically satisfactory. (shrink)