Although the idea of constitutionalism has been widely discussed and in fact, most countries in the world have a written Constitution, it is still an in- teresting question whether Constitutions are legitimate, topic that is ad- dressed in this study. The article, through a detailed analysis of the main arguments in favor and against constitutionalism, examines the main moral concerns regarding legitimacy of Constitutions.

Este artículo presenta a Weber y Habermas como los umbrales o polos de una modernidad que tiene al progreso como horizonte teórico-práctico. El diagnóstico weberiano sobre la modernidad y su proceso de desencantamiento del mundo y la injustificada reducción de la actividad racional a una actividad utilitario-estratégica desprovista de su carácter veritativo y de su orientación valórica, Habermas la utiliza para justificar su propuesta teórico-crítica respecto a la modernidad y la "paradoja de la racionalización", distinguiendo "sistema" y "mundo vital". Aquí (...) "desencantamiento del mundo" y "consenso del proyecto de lamodernidad", se encuentranThis article presents Weber and Habermas like the thresholds or poles of a modernity that has to the progress as theoretical- practical horizon. The diagnosis weberiano on the modernity and his process of disenchantment of the world and the unjustified reduction of the rational activity to a utilitarian-strategic activity devoid of his character of truth, Habermas uses to justify his theoretical-critical offerwith regard to themodernity and the "paradox of the rationalization", distinguishing "system" and "vital world". Here "disenchantment of the world" and "consensus of the project of the modernity", they are. (shrink)

This paper examines the potential role of deliberative democracy in constitutional processes of higher law-making, either for the founding of constitutions or for constitutional change. It defines deliberative democracy as the combination of political equality and deliberation and situates this form of democracy in contrast to a range of alternatives. It then considers two contrasting processes—elite deliberation and plebiscitary mass democracy (embodied in referenda) as approaches to higher law-making that employ deliberation without political equality or political equality without deliberation. It (...) finally turns to some institutional designs that might achieve both fundamental values at the same time, or in the process of realizing a sequence of choices. (shrink)

The book examines current debates about the emergence of an international legal norm of democratic governance and also considers some of the wider theoretical issues to which those debates give rise. It asks should international law seek to promote democratic political arrangements? If so, on what basis, and using which of the many competing conceptions of democracy?

This paper argues for the value of philosophers in a school of social sciences within a university, for fixing what I call disciplinary constitutions. A disciplinary constitution is a statement of “How our discipline works: how we achieve the ends of our discipline.” A lot of people depend on a constitution, but such a thing usually runs into problems and philosophers can identify these problems and propose solutions. I suggest that it is essential for the autonomy of an ambitious school (...) to be able to do such work internally. (shrink)

The main argument of the article regards Aristotle’s anti-realistic account, which presents a different viewpoint from that which simply fulfils or negates the truth-values of our statements on Mixed Constitutions. In modern times, the idea of a Constitution of many minds or of many individuals is proposed by Sunstein and by Hart, who maintain that neither intentions in juridical procedure nor Constitutional provisions can produce an ideal Constitution. Thus any interpretative procedure assigning to legal reality any definite, once-and-for-all meaning is (...) precarious, according to Aristotle who asks whether we can gain epistemic access to the real essences of Constitutions and their structure. These ideas respond to a challenge in the Works of Contiades, who will help us to turn the ideal Constitution into a realisable model in the situation in which we live nowadays. This is the main challenge to be met by the institutions of Europe in order to safeguard the nature of historical and intellectual values. (shrink)

This article explores a historical challenge for contemporary accounts of the role that the desire of being esteemed can play in exercising social control. According to Geoffrey Brennan and Philip Pettit, the economy of esteem normally has two aspects: it is supportive of virtuous action and it occurs spontaneously. The analysis of esteem presented by the 18th‐century materialist Claude‐Adrien Helvétius challenges the intuition that these two aspects go together unproblematically. This is so because, in Helvétius's view, the desire for esteem (...) is always triggered by sensible interest. In the frequent situations where sensible interest diverges from the demands of virtue, the economy of esteem thus can be spontaneous but will not be supportive of virtue. Helvétius allows for cases of moral luck where sensible interest coincides with the demands of virtue but regards these cases as rare occurrences. This is why he believes that a functioning economy of esteem crucially depends on political constitutions—in which case the economy of esteem can be supportive of virtue but will not be spontaneous. (shrink)

This book examines current debates about the emergence of an international legal norm of democratic governance and also considers some of the wider theoretical issues to which those debates give rise. It asks; should international law seek to promote democratic political arrangements? If so, on what basis, and using which of the many competing conceptions of democracy?

States of emergency are declared frequently in all parts of the world. Their declaration routinely implies a suspension of basic constitutional rights. In the last half century, it has become the norm for constitutions to contain an explicit ‘emergency constitution’, i.e., the constitutionally safeguarded rules of operation for a state of emergency. In this paper, I ask whether inclusion of an emergency constitution can be legitimized by drawing on social contract theory. I argue that there are important arguments, both against (...) and in favor of constitutionalized emergency provisions, and that social contract theory—as applied by economists—can be of some help when deciding whether to have, or not to have an emergency constitution. This paper introduces a novel argument for justifying emergency constitutions. It argues that they can serve as a commitment mechanism protecting both citizens and politicians from overreacting to rare but significant threats. (shrink)

The Aristotelian Πολιτεῖαι collected information on the history and organization of reportedly 158 city-states. Of these only the Ἀθηναίων πολιτεία survives almost in its entirety on two papyri. All that remains of the other constitutions is the epitome by Heraclides Lembus and about 130 fragments. This article will look at the transmission of Heraclides’ epitome and explore the possibility of identifying further fragments of the original text.

Ce texte traite de la définition aristotélicienne de la cité et des diverses constitutions, en Politique, I et III. On soutient ici (1) que la définition de la cité doit être extraite de deux passages du début du traité, (2) que la cité est définie par le but qui lui est propre et (3) que d’importants théorèmes politiques en Politique III se servent de cette définition initiale de la cité comme d’une prémisse. L’objectif ultime de cet article est de contribuer (...) à l’évaluation du rôle que jouent les définitions dans la méthode qui est celle d’Aristote dans sa philosophie morale et politique. (shrink)

What did kratos imply in the classical democratic context? Focusing on the two Constitutions of the Athenians traditionally attributed to Xenophon and Aristotle respectively, this article explores differences among kratos and three proximate terms: archē (de facto governance or magistracy), kuros (authority, perceived as legitimate), and dēmagōgia (leadership). With Benveniste and Loraux, it argues that kratos specifically signalled ‘superiority’ or ‘predominance’, as revealed in combat or other form of contest. Dēmokratia thereby connoted the forceful predominance of the dēmos (‘assembly’, ‘collective (...) common people’) over the rest of the community, including office-holders (archontes, archai) and political leaders (dēmagōgoi). The association of kratos with force directs attention to the martial underpinnings of classical demotic authority, incidentally highlighting a weakness in modern democracy: the dēmos’ lack of kratos over the political elite when that elite controls military and police power. (shrink)

The aim of this essay is to examine the place of the people in the constitutions of democratic nations. While the meaning of democracy and the degree to which it is achieved vary within the family of nations considered democratic, the idea common to all is that the people are self-governing. In its origins, the idea is tied to liberty: not to be self-governing is to be subject to the will of another and so not to be free. What constitutes (...) self-government is open to interpretation, although this is not the place to examine the possible meanings. Nor is this the place to set out the history of the idea or to show how it became central to modern constitutions, except to note the number of nations qualifying as democratic has steadily increased in recent years to just under a half of the total. It seems reasonable to assume that a democratic nation, a self-governing people, would want to make sure that the constitution, the basic of government and of relations between the people and government, provide for and protect self-government and hence democracy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 63.3 (2002) 425-446 [Access article in PDF] Giving Orders: Theory and Practice in the Fundamental Constitutions of Carolina Vicki Hsueh Indians. Of Edisto Ashapo and Combohe to the South our friends. Of Wando Ituan Sewee and Sehey to the north came to our assistance and were zealous and resolute in it 1000 bowmen In our want supplied us. Q. Spaniards. What we shall (...) doe to the Spaniards if we invade them we brake the peace, if we sit still we loose our reputation with the Indians our friends. Westoes. Inland man eaters. Country. To the northward more sickly, about Ashley River fertile and of a wonderful growth. Tatchequea. A very fruitfull Country 8. days jorney by the North west the Emperor our friend and enemy to the Westoes and to hard for them. Q. Settlem't. 500 people will secure the settlement 1000 perfect it. desires supplys of necessarys till that time Excerpt from Carolina Memoranda in the handwriting of John Locke, Esq., 15 September 1670 Within the last decade, scholars such as James Tully, Barbara Arneil, and Bhikhu Parekh have performed a crucial intervention on modern constitu-tionalism's behalf. 1 Not only has constitutionalism in the modern age been [End Page 425] plagued by assumptions of cultural uniformity and an on-going inability to adjudicate between competing cultural claims, but it has been unable effectively to diagnose those limitations and dilemmas. The root of the problem, James Tully suggests, is ultimately a matter of historical perspective. "[T]he tendency," he writes, "is not to notice the philosophical and ideological debates over the last three hundred years... only the result of these debates is seen—the victorious modern language of constitutional uniformity—and claims for recognition are viewed through its framework as if it were impartial and universal." 2 In response Tully and others have sought to tackle this predicament at its historical root. Identifying modern constitutionalism's colonial origins as a significant part of the problem, their studies address the development of constitutionalism and colonialism as an entwined phenomenon in the early modern period, focusing particularly on the British-American context. In this sense, Locke's Two Treatises of Government stands as an exemplary illustration of the period's entangled colonial and constitutional temperaments. Well-known for its influential articulation of compact and resistance, the Two Treatises, Barbara Arneil argues "were written as a defence of England's colonial policy in the new world against the sceptics in England and the counter-claims of both the aboriginal nations and other European powers in America." 3 Accordingly, present-day constitutionalism continues to bear the weighty legacy of those colonial rationales. "[T]he language of modern constitutionalism," Tully further explains, "which has come to be authoritative was designed to exclude or assimilate cultural diversity and justify uniformity. The design is difficult to see because this 'modern' language has become the customary way of thinking about, reflecting on and envisioning a just constitutional order." Ultimately, Tully submits, citing Wittgenstein, "A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably." 4This much-needed thickening of constitutionalism's historical context has enriched our awareness of constitutionalism's vexed origins, as it has proffered potent tools for interrogating current cultural adjudication. Yet, a troubling predicament persists. As if caught within the tenacious grip of the language of modern constitutionalism, Tully, Arneil, and Parekh insistently portray seventeenth-century British-American colonialism solely as a straightforward process of appropriation and assimilation without addressing or incorporating the [End Page 426] complex and contingent elements of that history in its emergence. Lacking the various negotiations and accommodations between settler and indigene in ambition and actualization, their portrayals crucially underplay the dynamic relationship between theories of constitutionalism and practices of colonialism—an approach that ultimately serves to reinscribe the narrative of triumphalist progress within their critiques. 5This problematic is the context for my reading of the Fundamental Constitutions of Carolina,1669... (shrink)

Let me first thank Bill Scheuerman for his long and rich argument on my different considerations of global and European constitutionalism and democracy. It was an inspiring reading, and I have learnt a lot by it. I agree with most of his basic assumptions, and even with some of his more critical remarks. Here, I will first take the opportunity to make some revisions and clarify some conceptual misunderstandings. I will then make some additional remarks on my theoretical framework, and (...) the ideas of law and constitution which are fundamental for it. In the last section I discuss again the issue of state and constitution about which Scheuerman and I already had a short controversy in Constellations last year.1 This time, however, I will discuss the development of modern society in a broader historical, or evolutionary, perspective. Keywords: state; world state; monopoly of power; co-evolution; nation; national identity; territory; cituzenship; modern society (Published: 10 March 2009) Citation: Ethics & Global Politics. DOI: 10.3402/egp.v2i1.1940. (shrink)

The essays in this volume--written by prominent philosophers, political scientists, and legal scholars--address these questions and explore related issues.

The paper outlines why and how political institutions, especially constitutional ones, matter for what decisions are made in the political process and thereby for how the economy functions. The main part contains a survey of empirical studies in this area. Among the things covered: the effects of political and economic freedom, not least property rights, on economic growth; how stricter budgetprocess rules affect tendencies for deficits; the role of electoral systems for shaping policies and affecting fiscal deficits; and the effects (...) of separation of powers – e.g., federalism and referenda – on government size.Ce papier retrace dans les grandes lignes pourquoi et comment les institutions politiques, notamment celles de nature constitutionnelle, importent pour les décisions prises au niveau politique et en conséquence sur la manière dont fonctionne l’économie. La majeure partie du papier consiste en un examen des études empiriques dans ce domaine. Parmi les choses analysées : les effets de la liberté politique et économique, en particulier les droits de propriété, sur la croissance économique ; comment des règles plus strictes lors de l’élaboration du budget influent sur la tendance au déficit ; le rôle des systèmes électoraux dans l’élaboration des politiques et dans la taille des déficits ; et les effets de la séparation des pouvoirs – par exemple fédéralisme et referenda – sur la taille du gouvernement. (shrink)