O presente artigo possui como tema a análise da separação dos poderes e a regra da democracia, além da possibilidade do Tribunal Constitucional ser composto por indivíduos nomeados pelo Presidente da República, não cumprindo a regra democrática, e fazer o controle de constitucionalidade das leis, criadas através de um processo democrático. Serão respondidos: a separação dos poderes obedece à regra democrática? Quando o Poder Legislativo deixa de cumprir sua função típica de legislar, abre a oportunidade para o Supremo Tribunal Federal, (...) como Tribunal Constitucional que é, criar, através do ativismo judicial, as normas lacunosas? Isso fere a regra democrática? (shrink)

Drawing upon original manuscripts and The Collected Works of Jeremy Bentham, this collection represents the latest scholarship on Bentham's late and mature thought on constitutional law. The contributions cover a diverse range of major topics, from official aptitude or competency to the interests of women, and explore Bentham's writings on courts, codification, and cosmopolitanism. Together, its chapters challenge the received notion, based on early jurisprudential writings, that Bentham's constitutional thought is authoritarian, and show that Bentham, as a (...) class='Hi'>constitutional theorist, offers a distinctive liberal perspective. Freeing Bentham's theories from their long sentences and unfamiliar terminology, these essays make accessible Bentham's subtle and important ideas on liberal democracy. By shining a light on Bentham's mature thought, this volume offers a refreshingly comprehensive, detailed, and authentic account of Bentham's theory of democracy. (shrink)

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral (...) constraints on what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

This essay considers the role of the ‘all affected interests’ principle in democratic theory, focusing on debates concerning its form, substance and relationship to the resolution of the democratic boundary problem. It begins by defending an ‘all actually affected’ formulation of the principle against Goodin’s ‘incoherence argument’ critique of this formulation, before addressing issues concerning how to specify the choice set appropriate to the principle. Turning to the substance of the principle, the argument rejects Nozick’s dismissal of its (...) intuitive appeal and considers the two arguments advanced in favour of the principle as a criterion of democratic inclusion: the interlinked interests argument and the tracking power argument. It is shown that neither of these arguments can substantiate a view of the principle as a criterion of democratic inclusion, although both ground a constitutional understanding of the principle as specifying the scope of a duty of justification. It is then proposed that the principle can play an important role in a two-stage resolution of the democratic boundary problem in which it addresses the question of who is entitled to inclusion in the ‘pre-political’ demos that determines whether to constitute a polity. The second stage of this resolution requires an answer to the question of who should constitute the ‘political demos’, that is, the demos of a constituted polity and it is argued that a version of the ‘‘all subjected persons’’ principle can appropriately play this role.Keywords: all affected interests; all subjected persons; democracy; boundary problem; demos problem. (shrink)

There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an (...) important case study for both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional law and comparative constitutional law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a common law judge and ultimately treated parliamentary sovereignty as a doctrine arising from common law and constrained by common law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not necessarily his prudent tactics and strategy. (shrink)

When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this (...) view by showing that, in fact, democracy demands many of these rights. Corey Brettschneider argues that ideal democracy is comprised of three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as Jürgen Habermas, he demonstrates that such rights are essential components of--rather than constraints on--an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government. (shrink)

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

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah G l as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran (...) Hirschl turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the 'Atat rk card' and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down. (shrink)

In this essay, I make the interpretive claim that we cannot properly understand the Federalist without appreciating the extent to which the papers mount a sustained rejection of extra-constitutional democracy—practices in which people aim to assert authority over the terms of common life in ways that are not sanctioned by existing laws. I survey such practices, which were common in America before and after the Revolution. I argue that there is continuity between Publius’s justification for rejecting extra-constitutional democracy (...) and his justification for his preferred system against constitutional alternatives. Adequate analysis and evaluation of the Federalist’s arguments about faction, representation, and institutional design require attention to the double duty the arguments play against constitutional and extra-constitutional opposition. This interpretive argument supports several analytic and evaluative conclusions. First, we must distinguish a new form of “non-hierarchical dualist” constitutionalism, according to which irregular democratic activity need not be limited to extraordinary “constitutional moments” or revolutions. Second, the politically egalitarian character of procedures depends not on the procedures alone, but how the maintenance of such procedures limits other forms of democratic practice. Third, the argument suggests a novel defense of “uncivil” disobedient politics: one grounded not in contributions to democratic deliberation, but in the entitlements of citizens to direct assertions of authority over common life. (shrink)

I aim to analyze in this dissertation what a desirable basic institutional structure looks like from the perspective of rationality. While the main topic is thus normative in nature, I start by clarifying in the first part what the notion of rationality exactly entails. I do so by focusing explicitly on the economic conception of rationality, according to which a rational individual is motivated to serve his self-interest on the basis of cost-benefit calculations. Such a Homo Economicus is characterized (...) by his intentional and instrumental actions, his perfectly informed beliefs and his exogenously given and egoistic preferences. In my view, however, this model is inadequate if one aims to understand what it means to be rational. The requirements that actions should be instrumental, beliefs should be based on perfect information and preferences should be exogenously given and egoistic in nature turn out to be overly demanding in this respect. That is why I propose to drop these assumptions in what I label the minimal conception of rationality. Since the latter turns out to be very formal indeed, I propose two further alternatives, which focus not so much on the choice of means to achieve certain goals, as they focus on the choice of these goals themselves. According to the first, broad conception, actions are rational if they are based on good reasons, which are further qualified as well-informed beliefs and autonomous preferences. According to the second, expressive conception, actions, beliefs and preferences are rational if they express the things the individual at hand cares about. The latter requires that individuals can reflect upon and identify with their reasons, which implies a capacity to reflect upon and distance themselves from their own bundle of preferences. In the second part of this dissertation, I try to show the value and limitations of these conceptions by applying them to the context of large-scaled elections. In this respect, it becomes immediately clear that the economic conception fails to explain why quite a lot of people go out and vote. After all, since a single vote has only an infinitesimal impact on the electoral result, it does not enable people to serve their interests or realize their goals. This leads to the so-called voting paradox, according to which no rational individual will decide to vote. The standard solution is to assume that individuals vote because they derive satisfaction from the very act itself. However, this strategy is rather ‘ad hoc’ and does not explain how people vote once they find themselves inside the voting booth. The expressive conception of rationality does better in this respect. It suggests that people vote because they care about democracy in general or about a specific political candidate or ideology. Since they conceive of themselves as being a good citizen, they express this aspect of their identity by going out to vote. In the third part of this dissertation, I analyze more fully the normative implications of the different conceptions of rationality. More specifically, I try to answer the question which basic institutional structure is desirable if one assumes that people are by and large rational. This immediately shows that both the normative issue and the explanatory issue are closely connected. In my view, proposals regarding institutional design and reform should be based on empirically adequate models of individual actions and motivations. This search for a realistic utopia goes against the conventional strategy of most economists. They rely on the Homo Economicus model, even if this fails to explain individual behavior. To explain more fully what the normative implications are of the counterfactual assumption that all people are economically rational, I focus on the work of James Buchanan. In his theory of constitutional choice, he argues in favor of a minimal state whose only task is to make sure that the market functions properly. Buchanan thus favors strict constitutional limitations for governments, which tend to expand beyond legitimate borders as soon as politicians and public servants are allowed to serve their own interests. In my view, however, the abovementioned criticisms of the Homo Economicus model have theoretical as well as normative implications. After all, the empirically supported fact that a majority of individuals does not act in economically rational ways creates more room for legitimate government intervention. Expressively rational citizens will, for example, more easily agree on the necessity and desirability of a collective provision of certain public goods. In addition, expressively rational politicians and public servants can be more easily trusted to serve the public interest rather than their narrowly defined self-interest. As an alternative to Buchanan’s one-sided focus on economic rationality and the market, I focus on the work of Samuel Bowles en Herbert Gintis. More specifically, I explore their work on the phenomenon of strong reciprocity, which refers to the widespread tendency of people to reward prosocial behavior and punish antisocial behavior, even if this is costly for themselves. Since this is clearly economically irrational, Bowles and Gintis propose to complement the Homo Economicus model with the Homo Reciprocans model. This model, which comes close to the expressive conception of rationality, is able to incorporate the insight that social norms surrounding reciprocity, cooperation and fairness are crucial in regulating interactions. At the normative level, Bowles and Gintis stress that such norms often lead to socially desirable outcomes, since they enable people to live in harmony without relying on coercive and costly government interventions. This suggests that the debate between proponents of the market on the one hand and the state on the other hand neglects the importance of communities where people spontaneously interact on the basis of generally prosocial norms. As such, the insights of Bowles and Gintis lead to a defense of a basic institutional structure in which markets, states and communities mutually complement and reinforce each other. They also justify a general optimism as regards to the capacity and motivation of people to try and improve the rules and institutions that govern their everyday lives. (shrink)

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure (...) rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

This article aims to present four case studies of the different responses to governmental measures to fight the COVID-19 pandemic by supreme and constitutional courts, especially in cases of jurisdictions that have been facing democratic erosion. The spread of the COVID-19 pandemic demanded immediate public policies and other political decisions from the branches of government. Executive authorities were the main actors in effecting constitutional public health norms. The expectation was that they will abide by the rule of law (...) in fulfilling their duties; that has not been the case under governments that promoted democratic erosion. The different contexts of the threats posed to the constitutional democracies led populist and illiberal leaders to opportunistically either try to—and then be contained by courts—or effectively consolidate the expansion of powers under the conditions of the pandemic. Concentrating on four jurisdictions (the USA, Hungary, El Salvador, and Brazil), the article demonstrates that courts can effectively work as bulwarks against waves of democratic erosion, especially in situations of stress, as it was the case in the global COVID-19 pandemic. This hypothesis is also proven by episodes in which courts did not sufficiently operate to curb illiberalism because they were already captured. The analyses enable classifying the court’s responses to the COVID-19 executive measures in a threefold pattern: deferential, restrictive, and of forced capitulation. (shrink)

A constitutional democracy is characterized by "governing pluralism": there is no single source of sovereignty and no single consensus on what political life should look like. Starting from this premise, and using the United States as the example of such a democracy, the work treats the ethics of three kinds of political leaders in American politics. The work examines the offices of senator, moral activist, and community organizer, in each case trying to identify the distinctive purpose of the office (...) or the contribution it makes to the democratic regime; a distinctive mode of action or set of habits conducive to fulfilling that purpose, and a set of dispositions or regime-relative virtues that people must have in order to engage in such actions consistently. ;The work concludes that a senator should focus on accommodating but restraining public opinions with a view of making possible his own consistent pursuit of public-spirited projects; that a moral activist should aim to extend the democratic principles of equality, liberty, and majority rule more widely, and towards this end must be able to mobilize a moral or religious association around a cause while speaking about that cause to a larger public in more widely accepted democratic terms; and that an organizer should promote civic self-assertion and the enlightened pursuit of interest by bringing together, and developing the capacities of, ordinary citizens through face-to-face contact. ;This plurality of ethics goes along with a single, consistent theory of democratic politics and democratic character rooted in the work of Aristotle, Tocqueville, and the authors of the Federalist. The work takes from these authors a theory of "democratic continence" under which the proper political aim for both leaders and ordinary citizens is not the good life, rational justified standards of right, or the highest virtues of human beings, but qualities of perseverance, self-restraint, individual and collective discipline, dogged self-assertion, and the enlightened pursuit of interest. Democratic politics does and must reject high moral aspirations for the sake of realism, toleration, and sympathy for the lives of ordinary people. (shrink)

This book focuses on Andrew Arato’s democratic theory and its relevance to contemporary issues such as processes of democratization, civil society, constitution-making, and the modern Executive. Andrew Arato is -both globally and disciplinarily- a prominent thinker in the fields of democratic theory, constitutional law, and comparative politics, influencing several generations of scholars. This is the first volume to systematically address his democratic theory. Including contributions from leading scholars such as Dick Howard, Ulrich Preuss, Hubertus Buchstein, Janos (...) Kis, Uri Ram, Leonardo Avritzer, Carlos de la Torre, and Nicolás Lynch, this book is organized around three major areas of Arato´s influence on contemporary political and social thought. The first section offers a comprehensive view of Arato’s scholarship from his early work on critical theory and Western Marxism to his current research on constitution-making and its application. The second section shifts its focus from the previous, comprehensive approach, to a much more specific one: Arato´s widespread influence on the study of civil society in democratization processes in Latin America. The third section includes a previously unpublished work, ‘A conceptual history of dictatorship (and its rivals,)’ one of the few systematic interrogations on the meaning of a political form of fundamental relevance in the contemporary world. Critical Theory and Democracy will be of interest to critical and social theorists, and all Arato scholars. (shrink)

In this review essay, I offer a summary of Brian E. Butler’s The Democratic Constitution: Experimentalism and Interpretation. Butler’s democratic experimentalism offers the thesis that democracy needs to be protected democratically rather than by relying on the judicial supremacy over constitutional interpretation by the Supreme Court. Butler illustrates what democratic experimentalism looks like through a close reading of key cases showing the virtues of an on-going, open-ended, empirical, fallibilist, and collaborative approach to constitutional interpretation against rival formalist (...) and exclusionary theories. Butler relies on Richard Posner’s iconoclastic empirical approach to adjudication in advancing his thesis. However, Posner is skeptical of the Deweyan democracy Butler deploys to illustrate the democratic constitution. Further, Posner dismisses the philosophical pragmatism of Peirce and Dewey that Butler uses to ground his theory. Because of Butler’s reliance on Posner’s judicial practice and his side-stepping of Posner’s views on democracy and philosophical pragmatism, I ask how Butler’s proposal stands in relation to the ways it departs from Posner’s theory, if not his practice. (shrink)

During the Czechoslovak normalization era (roughly from the 1970s to the 1980s), the Czech lawyer Vladimír Čermák, who later became a Justice of the newly established Constitutional Court of the Czech Republic after the breakdown of the Communist regime, authored a monumental piece called The Question of Democracy. Although this ambitious work has no equal in the Czech context, no attention has been paid to it in the English-speaking world. The present article aims to fill this gap by analyzing (...) the most original aspects of Čermák’s political thought. First, I present Greek tragedy, Plato, and Augustine as the main influences on his thought, which was further shaped by Čermák’s experience with the First Czechoslovak Republic and the Communist era. Second, I show that the most important category permeating all of his intellectual project is the principle of polarity, combined with the concept of polémos as derived from Greek tragedy. Third, I focus on the consensually anchored value order of society, which is created through an interplay between positive and negative forces. Čermák’s idea that all law must be measured against the value order has deeply influenced the value-based jurisprudence of the Constitutional Court. Finally, I position Čermák’s thought in the context of contemporary political theory, arguing that the contrast with the work of the radical political theorist Chantal Mouffe is particularly illuminating. Even though Čermák and Mouffe share a similar attitude to democracy—in that the primacy of strife renders universal rational consensus impossible—I maintain that Čermák’s theory, due to its emphasis on the categories of good and evil, can be more usefully described as “secular Augustinianism”. (shrink)

Committees multiply in firms, whether stakeholder boards or committees, multi-stakeholder initiatives, ethics committees, or oversight boards. These arrangements aim to organise and legitimise the social and political activities of corporations. This article raises the question of the appropriate form of such governance structures. The examples above illustrate three possible ways of legitimising corporate quasi-public social and political activities: deliberation within the company, deliberation outside, and an approach we label _corporate constitutionalism_. While the first two models have been tested in practice (...) and assessed in theory, the third one is comparatively more recent, both in practice and in theory. This article focuses on the latter model and asks whether corporate constitutionalism offers a suitable addition, or alternative, to deliberation (with or within firms) for legitimising corporate quasi-public social and political activities. It examines the respective merits of the three models and argues that a corporate constitutional court may mitigate some of the limits of deliberative practices alone. It argues the court is needed in weak regulatory environments, whether they are failing or inherently limited. (shrink)

A political challenge facing constitutional democracies in Africa is the lack of adequate representation and participation of citizens in democratic processes and institutions. This challenge is manifest in the vesting of power solely in, and the exercise of this power by, a sectional group – the majority party – to the exclusion of others; as evinced in the liberal democratic systems extensively practised on the continent. Wiredu proposes as a solution to these challenges the adoption of consensual democracy; (...) an indigenous, non-party democratic system rooted in the traditional African humanist and communitarian conceptions of the individual and the community, in which political decisions are characteristically reached by consensus. In this article, I present a critical exposition of Wiredu’s consensual democracy and defend it against liberal democracy on the one hand, and criticisms levelled against it on the other hand. I also offer some modifications to Wiredu’s theory in a bid to render it more suitable for practice in Africa. (shrink)

My text offers an attempt to justify theoretically the existence of an important pillar of contemporary constitutional democracy: judicial review. Why do Supreme and Constitutional Courts that are not electorally accountable organs have the power to modify and occasionally cancel from the books statutory legislation passed by elected and accountable representatives? The argument presented discusses and questions the standard doctrine of the separation of powers and is based on the foundations of modern political authority as the agency the (...) function of which is to protect and guarantee citizens’ rights. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain (...) norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

The study distinguishes between three normative approaches that view diversity in the judiciary as a desirable ideal, outlines their expected empirical implications for judicial decision-making, and tests the implications against data from the Israeli Supreme Court. The “reflecting” approach suggests that diversifying the courts is important mainly as a means of strengthening the public’s confidence in them and does not impact judicial decisions. The “representing” approach asserts that judges serve as representatives of their social sectors. Thus, they tend to (...) rule in favor of their group’s interest only in cases that are relevant to their in-group. The “social background theory” is based on the premise that people of different backgrounds develop distinct worldviews. Hence, social attributes are expected to influence judicial decisions across a wide range of socio-legal issues. The empirical investigation centers on the role of gender and religiosity in judging on five carefully selected socio-legal issues: petitions against the Great Rabbinical Court’s rulings, constitutional disputes in all legal procedures, social welfare cases, and criminal appeals in sex offenses and in drug offenses. The results lend support to social background theory with regard to gender and are consistent with the representing approach with respect to religiosity. I further discuss the limitations and policy implications of the findings. (shrink)

This paper explores the significance of a landmark Italian judgement regarding end-of-life advance directives, emphasizing the legal and political context in which the decision was made. The analysis particularly focuses on the political majority's attempt to overturn the outcome of the courts' proceedings – thereby challenging the country's institutional order and jeopardizing constitutional rights.

The four essays by Jeremy Bentham assembled in this volume date from the spring and summer of 1822 and are based exclusively on manuscripts, many of which have never before been published. In the essays `Economy as Applied to Office', `Identification of Interests', `Supreme Operative', and `Constitutional Code Rationale', Bentham develops the general principles of constitutional law and government which underpin the detailed administrative provisions set out in Constitutional Code. In addition, original and penetrating discussions of such (...) topics as sovereignty, constitutional rule, democratic and monarchical government, public finance, the aptitude and powers of officials, corruption, the influence of public opinion, and the delusive effect of religion and titles of honour, affirm Bentham's status as a political theorist of the first rank. As an important application of utilitarian principles to the structure and organization of government, and a major contribution to the theory of representative democracy, this volume will be of interest to students of philosophy, law, politics, economics, and history. (shrink)

Against the background of the Deweyan tradition of Democracy and Education, we discuss problems of complexity and reductionism in education and educational philosophy. First, we investigate some of Dewey’s own criticisms of reductionist tendencies in the educational traditions, theories, and practices of his time. Secondly, we explore some important cases of reductionism in the educational debates of our own day and argue that a similar criticism in behalf of democracy and education is appropriate and can easily be based on (...) Deweyan terms. Thirdly, we draw some more general conclusions about complexity and reductionism as challenges for democracy and education. Among other things, we argue that powerful social tendencies of capitalist competition and social Darwinism support reductionisms in education and put the democratic project at risk. The tensional relation between democracy and capitalism constitutes a major challenge for educational philosophy in our own time as much as in Dewey’s. (shrink)

In this collection of essays on the core values of liberalism, Stephen Holmes—noted for his scathing reviews of books by liberalism's opponents—challenges commonly held assumptions about liberal theory. By placing it into its original historical context, _Passions and Constraints_ presents an interconnected argument meant to fundamentally change the way we conceive of liberalism. According to Holmes, three elements of classical liberal theory are commonly used to attack contemporary liberalism as antagonistic to genuine democracy and the welfare state: (...) class='Hi'>constitutional constraints on majority rule, the identification of individual freedom with an absence of government involvement, and a strong emphasis on the principle of self-interest. Through insightful essays on Hobbes's analysis of the English Civil War in _Behemoth_, Bodin's writings on the benefits of limited government, and Mill's views on science and politics, Holmes shows that these basic principles provide, to the contrary, a necessary foundation for the development of democratic, regulatory, and redistributionist politics in the modern era. Holmes argues that the aspirations of liberal democracy—including individual liberty, the equal dignity of citizens, and a tolerance for diversity—are best understood in relation to two central themes of classical liberal theory: the psychological motivations of individuals and the necessary constraint on individual passions provided by institutions. Paradoxically, Holmes argues that such institutional restraints serve to enable, rather than limit, effective democracy. In explorations of subjects ranging from self-interest to majoritarianism to "gag rules," Holmes shows that limited government can be more powerful than unlimited government—indeed, that liberalism is one of the most effective philosophies of state building ever contrived. By restricting the arbitrary powers of government officials, Holmes states, a liberal constitution can increase the state's capacity to focus on specific problems and mobilize collective resources for common purposes. _Passions and Constraint_ is an assessment of what that tradition has meant and what it can mean today. (shrink)

In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to (...) develop a novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)

My dissertation, “Love, Self-Constitution, and Practical Necessity,” offers an interpretation of love between people. Love is puzzling because it appears to involve essentially both rational and non-rational phenomena. We are accountable to those we love, so love seems to participate in forms of necessity, commitment, and expectation, which are associated with morality. But non-rational attitudes—forms of desire, attraction, and feeling—are also central to love. Consequently, love is not obviously based in rationality or inclination. In contrast to views that attempt to (...) fit love into existing models of practical reasoning, I argue that love participates in a unique form of practical necessity, different from both moral and psychological necessity, yet bearing resemblances to each. Distinctive to this type of practical necessity is a direct appeal to another particular person that cannot be delivered in third-personal terms—that is, a non-moral yet normative type of expectation on another person. This type of expectation is predominant in loving relationships, but can also make better sense of the experiences of humor and beauty, as well as attitudes like forgiveness, gratitude, and agent-regret. I treat Immanuel Kant’s discussion of the experience of beauty in the Critique of Judgment and Christine Korsgaard’s work on self-constitution as fruitful starting points for this account of love. I conclude that our loving relationships enable us to have distinctive personal selves, and provide support for this account of love by offering a complementary theory of grief. In Part One of the dissertation, I focus on two prominent approaches to love characteristic of the sentimentalist and rationalist traditions. I begin with the work of David Hume, which treats desire (understood as something like a simple impulse or craving) as the paradigmatic mental state, and emphasizes our personal and affective dimensions. Hume has the valuable insight that loving someone affects our sense of ourselves. But Hume’s view becomes unsatisfying when he claims that love is essentially enfeebling, implying that to love is to be passive toward and readily overcome by another person. While this indicates Hume’s awareness that love involves being open and receptive to another person, the problem is that love is also a demanding attitude. Hume lacks the conceptual resources to offer a nuanced view of the self, in which we can—with one attitude—be both demanding of and vulnerable to another person. Hume’s model of a desire-based deliberative process has recently been revived in Harry Frankfurt’s discussions on love and rationality. Frankfurt, however, goes beyond Hume’s picture of the self by introducing a notion of “identification,” which he offers to make sense of our apparent ability to commit ourselves decisively to certain projects or people. I argue that active powers like identification and commitment cannot be accommodated within any basically Humean moral psychology. Such abilities, and with them the possibility of love, depend on something closer to a Kantian conception of rational agency. I next focus on the work of Kant, who provides the substantial counterpart to Humean-inspired moral theories, but is not known for his insight into our emotional lives. In the Metaphysics of Morals, Kant divides love into “practical love”—what we experience when we are morally motivated to help someone—and “pathological love”—what we experience when we feel fond of something. But in reality, we experience love neither as a mere preference for another person, nor as something that generates the kind of demands that would be binding on any rational creature. David Velleman attempts to remedy the deficiency of Kant’s dichotomy. Velleman offers a Kantian theory in which he describes love and respect as two ends of a continuum of attitudes that it is morally appropriate to have toward people. Velleman’s view has the peculiar implication that everyone deserves the love of everyone else, and I argue that this is a fatal flaw. Like Kant and Velleman, Korsgaard characterizes personal love as involving the treatment of other people as Kantian ends-in-themselves to a heightened degree. Korsgaard, though, also contends that our individual identities depend upon our personal relationships, and I take this position seriously for the remainder of the dissertation. Ultimately, however, characterizations of loving relations as subsets of moral relations can account for the authority of the demands of love, but not its particularity. The major conclusion of Part One is that any attempt to understand love primarily on a model of practical reasoning with which we are already familiar is doomed to fail. Our experience of love calls for a theory of a unique type of practical necessity. In Part Two I take seriously the possibility that love is simultaneously inescapable (in something like the way morality is supposed to be), and yet ineluctably personal. In love, we experience an engagement with a person as essentially particular, rather than as an instance of a rational agent in general. To make sense of this direct attachment to an individual, I argue that love involves distinctive forms of expectation and disappointment. When those we love let us down, they hurt our feelings, which is not a response to a failed prediction, but nor is it a reaction to a moral insult or offense. According to Peter Strawson and Stephen Darwall, second-personal moral reactive attitudes (such as resentment) always have third-personal analogues (such as indignation). In contrast, I argue that the type of hurt feelings associated with love is a second-personal reactive attitude that does not have a third-personal corollary. I take this as evidence that the expectations involved in love are not objective in the way that the moral is objective. Nor, however, is love a matter of mere preference. On my interpretation, Kant introduces this different type of expectation in the Critique of Judgment. Whereas he characterizes moral judgments as universally communicable, judgments of beauty implicitly involve only second-personal address: I appeal to your direct experience with a particular object. This provides the conceptual space for an account of love according to which it involves a uniquely second-personal form of practical necessity. I contend that the second-personal addresses we make in love are appeals to strengthen the intimacy implicit in the loving relationship, and I identify three interrelated dimensions of that intimacy. First, those we love have the standing to interpret us in a constitutive manner. We fine-tune and make determinate the character of our concerns and interests in part by accepting the interpretations provided by those we love. In that way, the people we love have the normative power to constitute who we are. Second, we share a perspective with those we love in a way that is not reducible to or derivative of our independent perspectives. Loving someone centrally involves the activity of forming concerns together, and we do this in a mode best understood on the model of playing a spontaneous game or improvising music. Finally, being loved enables us to see ourselves as distinctive and special, because the concern those who love us have for us does not track the objective merit of our characteristics. These dimensions of the intimacy that characterizes a loving relationship reveal what it is that we appeal for in love, and how we are hurt when our appeals are rebuffed. In broad terms, this dissertation advocates the recognition of a non-moral yet normative type of expectation, which is predominant in loving relationships. Humor and beauty, too, make more sense when understood in terms of this non-moral yet normative type of expectation, as they involve appeals to others that are more than mere predictions of, but less than rational demands for, a certain kind of response. Introducing this alternative notion of expectation into the discourse of moral philosophy can shed light on other common attitudes that are clearly normative, but defy translation into objective, third-personal terms. Such attitudes include certain experiences of pride and shame, apology and forgiveness, the bestowing of mercy, gratitude, agent-regret, and perhaps a basic sense of trust we have in others. Ultimately, I situate love in respect to grief, which demonstrates my theory’s ability to make sense of related dimensions of our emotional lives. The people we love and grieve over give us a sense of who we are as distinctive, particular individuals, as the three interrelated dimensions of intimacy in loving relationships reveal. Consequently, grief is best understood as a type of practical disorientation—namely, a disorientation that involves the loss of the personal self. I present my account of grief against the type of account that would draw philosophical conclusions about the nature of love and grief from empirical psychological data alone. In particular, these data indicate that we recover quickly from the deaths of loved ones, and Dan Moller draws the philosophical conclusion that those we love fulfill certain roles in our lives and are replaceable. In contrast, I contend that while we should acknowledge the truth of the objective judgment, made in the third-person, that we will likely recover after the deaths of those we love, it does not follow that we must affirm such a claim from the internal perspective of one person who loves another. As a result, the case of love and grief supports a general claim concerning the proper work of moral philosophy, which is that the understanding of ourselves gained through empirical data is not a substitute for the normative conclusions that are revealed through first-personal reflections on our relationships. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Josiah Royce on RaceIssues in ContextJacquelyn Ann K. KegleyAll philosophy, whether or not we want to admit it, is done in a context, filtered through lenses that are personal, intellectual, historical, cultural, social, and political. Thus to fairly treat and fully understand Royce's views on race, we must set a situational framework. First, Royce's 1906 article entitled "Race Questions and Prejudices" is the lead piece in a collection that (...) implements his philosophy of loyalty. It applies his principle of loyalty to what he considers one of the most significant social/political issues of his time—the race question. As we discuss Royce and race issues, the philosophy of loyalty must be in the background as a point of reference. Indeed, Royce tells us that he will address the various questions in his article "Race Questions and Prejudices" by calling attention to "a few principles which seem to me to be serviceable to any one who wants to look at race questions fairly and humanely" (6).Secondly, except for W. E. B. DuBois and Jane Addams, no other major figure associated with pragmatic philosophy substantially addressed issues of race and racism in their written work, nor did anyone so early in the twentieth century as did Royce. DuBois's The Souls of Black Folk, which came out in 1903, immediately preceded Royce's article. Jane Addams briefly touched on race issues in her 1915 Democracy and Social Ethics. Alain Locke, who sought to study with Royce at Harvard but could not because of Royce's premature death, gave his "Lectures on the Theory and Practice of Race" in 1915, but they were published posthumously. John Dewey's "Race Prejudice and Friction" appeared in 1922. There is an absence of treatment of race issues in George Herbert Mead, Charles Sanders Peirce, and Alfred North Whitehead. Thus Shannon Sullivan and I agree that Royce stands out in the history of classical American philosophy in taking an antiracist focus on race questions when very few philosophers—especially white male philosophers—took scholarly time to think about these issues.1 [End Page 1]Another important context for Royce's article is the political climate of the time. Royce identifies the era as one in which there were "more ways and places in which men find themselves in the presence of alien races with whom they have to live in the same social order" (4). It was a time of "white anxiety." In 1905, Theodore Roosevelt gave his famous "On American Motherhood" speech in which he warned of white "race suicide" if white families continued to reproduce at a slower rate than other races. Thus, Royce was speaking and writing against racism in a time of anti-immigration and proimperialism sentiment due to white anxiety in the United States about the possible decline of global white supremacy. It is in this setting that Royce highlights the color line as a significant problem.Royce states the problem as follows:This is the problem of dealing with the men who seem to us somehow very widely different from ourselves in physical constitution, in temperament, in all their deeper nature, so that we are temped to think of them as natural strangers to our souls, while nevertheless we find that they are stubbornly there in our world and that they are men as much determined to live as we are, and are men who, in turn, find us as incomprehensible as we find them.(5)With increased contact among different populations, the age-old problem of how to deal with people who seem different from one's own group intensifies. There will be, says Royce, numerous questions including those of superiority-inferiority, power and sovereignty, and a new assessment of the ways in which these "different" people might be helpful or perilous to one's own group interests. Royce notes that one cannot assume an automatic answer. He asks, "Is it a ‘yellow peril,' or a ‘black peril,' or perhaps after all, is it not rather some form of ‘white peril' which threatens the future of humanity in this day of great struggles and of complex issues?" (6). With the question posed in this... (shrink)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the (...) judges (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)

In this chapter, a reprint of an article initially appearing in the Journal of Human Rights (2010), I spell out a conception of dignity grounded on African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is (...) degrading as well. Then, I draw on one major strand of Afro-communitarian thought to develop a novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African-inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)

ABSTRACTThe role of resistance in the politics of modern representative democracies is historically contested, and remains far from clear. This article seeks to explore historical thinking on this subject through a discussion of what Benjamin Constant and Alexis de Tocqueville had to say about resistance and its relationship to ‘representative government’ and democracy. Neither thinker is usually seen as a significant contributor to ‘resistance theory’ as this category is conventionally understood. But, in addition to their more familiar preoccupations with (...) securing limitations on the exercise of political authority and averting majority tyranny, both thinkers wrote extensively on the nature and meanings of resistance in ‘representative governments’ or democratic societies. Both thinkers are examined in the context of revolutionary and Napoleonic discussions about the legitimacy of resistance or ‘right to resist’ oppression, and against eighteenth-century discussions of the ‘spirit of resistance’ since Montesquieu. The article notes conceptual distinctions between resistance, revolution and insurrection in the period, and addresses the broader question of the extent to which early nineteenth-century French liberals sought to ‘institutionalise’ principles of resistance within modern constitutional frameworks. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Citizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789Patrick HenryCitizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789, by Daniel Gordon; viii & 270 pp. Princeton: Princeton University Press, 1994, $39.50.Under examination here is the early modern period in France from Louis XIV to the French Revolution when kings ruled absolutely and citizens were without sovereignty. Discarding the traditional image of the Enlightenment as the absolute (...) enemy of absolutism, Gordon, in this sense, follows Norbert Elias and Robert Darnton who treat the Enlightenment as part of an elitist and hierarchical establishment. More specifically, as his subtitle indicates, Gordon portrays the invention of a “nonpolitical polis” (p. 6), an ideological social space where, despite political inequality, citizens could practice social equality in a hierarchical régime. The rise of this “nondemocratic egalitarian ethos” (p. 7) brought with it a new cult of sociabilité, a term invented in the eighteenth century to describe the idealization of the private sphere and the practice of social equality.The first chapter, then, ties sociability not to democracy, as in the Habermasian model, but to the absolutism that stimulated it and coexisted with it. A series of five ideal types of sociability depict how men and women, members of the bourgeoisie and the aristocracy, came together—in commerce, public welfare, scientific academies, salons, cafés, public libraries, and various other social situations not protorevolutionary in character—to create a bond among equals [End Page 279] under the ancien régime. In this framework, progress and modernity are born during the absolute monarchy where sociability suggests conviviality rather than class warfare. Every major French novel of the eighteenth century supports Gordon’s refutation of De Toqueville’s surprising statement that “noblemen and bourgeois never met except by chance in private life “in prerevolutionary France” (p. 27).In chapters two and three, Gordon examines the nature of the rules of sociability found in courtesy literature and their functioning as the imagined basis of the newly invented idealized space called société. In addition to analyzing in great detail the nature and frequency of the vocabulary invented to define and describe sociabilité, Gordon discusses sociabilité in the context of natural law theory in Hobbes, Bossuet, and among others, Pufendorf, who wanted to refute Hobbes by showing that self-interest leads humans to establish stable social relations even before government orders them to do so. Holbach surfaces here too for having amalgamated the older language of politeness and the newer language of natural law. In Holbach, as in the Encyclopédie, sociability, based on egalitarian premises of natural law, is nonetheless fully compatible with the hierarchical regime. Among other things, this shows clearly that the philosophes never preached the French Revolution. Striving to eliminate the abuses of despotism and establish equality in private life was not tantamount to working for political equality and the abolition of all rank. In this same vein, Gordon paints the apolitical essence of the private sphere and, by a rigorous study of the seventeenth-century manuals of polite living, shows convincingly (this time against Elias who saw the court as a model of refined behavior) that the salon was indeed a world unto itself, independent of preexisting social hierarchies. Rejecting Paul Hazard’s conception of absolute rupture between seventeenth-century culture and eighteenth-century thought, Gordon destroys the facile dichotomy between seventeenth-century hierarchy and eighteenth-century equality and, once again, admirably depicts the compatibility of Enlightenment and absolutism.If chapters one to three underscore a certain continuity between the seventeenth and eighteenth centuries, chapters four and five explain important changes. It is not, for example, the mere preservation of the idea of sociable communication but rather its new use that is germane in understanding the Enlightenment. Now “conversation” and “civility” no longer had meaning only for an urban elite but had in fact become ideals in all philosophical endeavors including the writing of universal history. Sociable communication had become the defining characteristic of modern nations. In the fourth chapter, by analyzing in detail the works of Jean-Baptiste Suard, Gordon demonstrates the meaning that the writing of universal history in Scotland acquired within the French... (shrink)

Publication date: 22 December 2020 Source: International Letters of Social and Humanistic Sciences Vol. 89 Author: Dhikru Adewale Yagboyaju, Antonia Taiye Simbine Party system and the administration of political parties are critical factors in determining the direction of politics and democracy. Three political parties contested at the inception of Nigeria’s Fourth Republic in 1999, but the number increased to more than 91 as at 2019. This paper raises fundamental questions as to whose interest – public or private interest (...) of promoters and financiers - these parties serve, and whether the increase in the number of political parties has significantly entrenched democratic values in the country? These questions are compelling because of several events in political party operations in the 20 years of the Fourth Republic. These include controversial and vexatious party primaries preceding every major election, often leading to protracted and distractive litigations and rampant political defections. Unregulated use of money has, in particular, restrained ample participation by women and youths, while violence is almost becoming a norm and permanent characteristic of the electoral and political system. The paper draws data from secondary documentary sources for its conceptual and theoretical contents. Primary data are generated from events analyses by the authors as observers at party conventions and other meetings for the selection of candidates for political offices as well as during general elections. This is complimented by content analyses of relevant documents including electoral laws, court and law reports, and reports by special committees such as the Electoral Reform Committee. A combination of the ecological approach and conspiratorial theory is deployed for the paper’s analytic frame. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is (...) the theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (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 (...) class='Hi'>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)

A democratic society does not embody a permanent and internally consistent set of values but attempts to accommodate disagreement between incommensurable values. One of the purposes of the law is to manage such disagreement by ensuring that disputes are settled in a way that advances the interests of stability without foreclosing options. In this respect the function of the formal dissenting judgment has been neglected in the English literature. By contrast there is a rich US literature which reveals an ambivalent (...) attitude to the practice of dissent. The article discusses the nature of the disagreements that are predominant in dissenting judgments. It claims that the practise of dissent follows the development of democracy and that the majority of dissents in courts of last resort raise legitimate disagreement about fundamental incommensurable values. These concern disagreements between deontological and consequentialist values, between different conceptions of the legislative powers of the judiciary and between principle and pragmatism. Because the outcome of an appeal is contingent, the dissent may be as important as the majority in identifying the choices to be made and signalling the principles that are immanent in the law. The legal and political basis of the right to publish a dissent is discussed and arguments for and against the publication of dissents considered with the conclusion that constraints on the right to dissent would be self-defeating. (shrink)

In his book on Liberalism against Populism , William Riker argued that Lincoln's success in the 1860 election was the culmination of a long progression of strategic attempts by the Whig coalition of commercial interests to defeat the `Jeffersonian-Jacksonian' Democratic coalition of agrarian populism. Riker adduced Lincoln's success to his `heresthetic' maneuver to force his competitor, Douglas, in the 1858 Illinois Senate race, to appear anti-slavery, thus splitting the Democratic Party in 1860. Riker also suggested that electoral preferences in (...) 1860 exhibited an underlying `chaotic' preference cycle. However, these accounts do not explain why the slavery question became paramount in 1858-60. I suggest here that US politics, from 1800 to 1858, can be interpreted in terms of a single land-capital axis that sustained the pre-eminence of an agrarian coalition, first created by Jefferson, of both slave interests and free labor. Lincoln's strategy in 1858-60 was to persuade free labor in the northern and western states that they were threatened by the consequences of the Dred Scott decision by the Supreme Court in 1857. Lincoln argued that although the decision applied to the territories, it was indicative of the intention of the South to extend slavery to the free states. Lincoln's speeches in 1858-60 made this threat credible to the North, and initiated a belief cascade among the electorate. For southern voters, the North consequently appeared to be a `tyrannical' majority, whose creation violated the constitutional logic of Union, and legitimated secession. I argue that this second `civil rights dimension, created in the election of 1860, is necessary for understanding critical elections that have occurred at irregular intervals in US political history. Key Words: constitutional transformation • belief cascade • contingency. (shrink)

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court's approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By (...) bringing together legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. (shrink)

This paper investigates the Turkish Constitutional Court (TCC)’s treatment of legal challenges brought against Turkey’s legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC’s institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey’s executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It (...) also argues that the TCC’s judicial restraint during the pandemic was simply the re-manifestation of its ‘play-it-safe’ strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Confucian Sentimental Representation: A New Approach to Confucian Democracy by Kyung Rok KwonStephen C. AngleKWON, Kyung Rok. Confucian Sentimental Representation: A New Approach to Confucian Democracy. New York: Routledge, 2022. vi + 128 pp. Cloth, $128.00; eBook, $39.16Two facts have driven much of the recent theorizing about Confucian democracy. First, even in robust democracies like South Korea and Taiwan, East Asian citizens hold distinctive views about the relation (...) between leaders and led. Two-thirds of South Korean respondents and a third of those from Taiwan agreed with the statement "If we have political leaders who are morally upright, we can let them decide everything." Second, it is uncontroversial to say that traditional Confucianism advocated for rule by the virtuous. Most observers believe these two facts are linked but disagree about their normative upshot. Some regret the lingering authoritarianism polluting East Asian democracies, while others—primarily based in less democratic [End Page 146] countries—call for an embrace of "meritocracy" instead of democracy. A third group, to which Kwon Kyung Rok and I both belong, believe that properly understood "rule by virtue" can be better realized in a democracy. This means that modern Confucians should be democrats, and it suggests a distinctive way of conceptualizing democracy that both may be more apt for East Asia and may even offer lessons applicable worldwide. For Kwon, the key to all this is rethinking how we understand political representation.Kwon argues that we should look to representation rather than directly at democracy because representation is both central to modern conceptions of democracy and yet makes a more constructive dialogue partner for Confucian virtue-based politics. Democracy, says Kwon, is at its core concerned with the equal distribution of political power, whereas representation concerns "a special relationship and psychology" between the representer and the represented that he understands in terms of "authorization," the making of "sound judgments," and "accountability." Chapters 1 and 2 of the book explore the primarily "rationalist" notion of representation found in the Western tradition and the more "sentimentalist" version of representation that can be constructed out of Confucian virtue politics. The latter chapter is the creative core of the book. Kwon argues that for one to count as a representative in a modern Confucian context, one needs to make sound judgments of the true interests of society and share emotions with the people—in the process of transforming them into more morally cultivated people. This sense of "representing" the people builds on what it is to be a virtuous exemplar. Along the way Kwon makes a detailed case that direct caring rather than empathy is core to the idea of humaneness (or benevolence; ren) that is so central to Confucianism; this is a good example of how he engages with interpretive literature to clarify aspects of his picture.The final two chapters engage with alternative accounts of modern Confucian political theory. Chapter 3 provides a negative defense of democratic sentimental representation by demonstrating that various "meritocratic" alternative arguments fail. One of the key points here is that Daniel Bell and Tongdong Bai are overly concerned with the instrumental value of a ruler's competence, missing the intrinsic value of a ruler's virtue and its contribution to the ethically good life of the community; as a result, their views fail to be distinctively Confucian. Chapter 4 takes Sungmoon Kim's influential idea of "public reason Confucianism" as its point of departure. Kwon is quite sympathetic to Kim's framework and defends Kim against certain misunderstandings, but perceptively argues that there is a gap in Kim's account between citizens, understood primarily in affective terms, and the state, which in Kim's account is exemplified by the high court and is understood primarily in rationalist terms. What is missing is the bridging role of leaders. Kwon writes that mediating between formal and informal decision-making processes, leaders should "make ordinary citizens feel respected and make them focus on public issues in appropriate ways." He believes that a caring and competent [End Page 147] leader can "broaden the horizon of mutual understanding by exhorting [citizens] to think of all as belonging to an extended family." In short... (shrink)

A committee has to address a complex question, the answer to which requires answering several sub-questions. Two different voting procedures can be used. On one procedure, the committee members vote on each sub-question and the voting results then are used as premises for the committee’s conclusion on the main issue. This premise-based procedure can be contrasted with the conclusion-based procedure. On that procedure, the members directly vote on the conclusion, with the vote of each member being guided by her views (...) on the relevant sub-questions. These procedures are by no means equivalent, which has been pointed out in legal theory in connection with jury votes. There may be a majority of voters supporting each premise, but if these majorities do not significantly overlap, there will be a majority against the conclusion. Pettit connects the choice between the two procedures with general political theory, in particular, with the discussion of deliberative democracy. However, the problem we want to examine concerns the relative advantages and disadvantages of the two procedures from the epistemic point of view. In some cases one can assume that the question before the committee has the right answer. In cases like this, is one of the two procedures better when it comes to tracking the truth? As it turns out, the answer to this query is not univocal. On the basis of Condorcet’s jury theorem, we show that the premise-based procedure is clearly superior if the objective is reach truth for the right reasons, i.e. without making any mistakes on the way. However, if the goal instead is to reach truth for whatever reasons, right or wrong, there will be cases in which using the conclusion-based procedure turns out to be more reliable, even though, for the most part, the premise-based procedure will retain its superiority. Our results partly confirm and partly disconfirm the tentative conjectures that have been put forward in Pettit and Rabinowicz. (shrink)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for (...) perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

This volume explores the reasons for Hans Kelsen’s lack of influence in the United States and proposes ways in which Kelsen’s approach to law, philosophy, and political, democratic, and international relations theory could be relevant to current debates within the U.S. academy in those areas. Along the way, the volume examines Kelsen’s relationship and often hidden influences on other members of the mid-century Central European émigré community whose work helped shape twentieth-century social science in the United States. The book (...) includes major contributions to the history of ideas and to the sociology of the professions in the U.S. academy in the twentieth century. Each section of the volume explores a different aspect of the puzzle of the neglect of Kelsen’s work in various disciplinary and national settings. Part I provides reconstructions of Kelsen’s legal theory and defends that theory against negative assessments in Anglo-American jurisprudence. Part II focuses both on Kelsen’s theoretical views on international law and his practical involvement in the post-war development of international criminal law. Part III addresses Kelsen’s theories of democracy and justice while placing him in dialogue with other major twentieth-century thinkers, including two fellow émigré scholars, Leo Strauss and Albert Ehrenzweig. Part IV explores Kelsen’s intellectual legacies through European and American perspectives on the interaction of Kelsen’s theoretical approach to law and national legal traditions in the United States and Germany. Each contribution features a particular applications of Kelsen’s approach to doctrinal and interpretive issues currently of interest in the legal academy. The volume concludes with two chapters on the nature of Kelsen’s legal theory as an instance of modernism. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Citizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789Patrick HenryCitizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789, by Daniel Gordon; viii & 270 pp. Princeton: Princeton University Press, 1994, $39.50.Under examination here is the early modern period in France from Louis XIV to the French Revolution when kings ruled absolutely and citizens were without sovereignty. Discarding the traditional image of the Enlightenment as the absolute (...) enemy of absolutism, Gordon, in this sense, follows Norbert Elias and Robert Darnton who treat the Enlightenment as part of an elitist and hierarchical establishment. More specifically, as his subtitle indicates, Gordon portrays the invention of a “nonpolitical polis” (p. 6), an ideological social space where, despite political inequality, citizens could practice social equality in a hierarchical régime. The rise of this “nondemocratic egalitarian ethos” (p. 7) brought with it a new cult of sociabilité, a term invented in the eighteenth century to describe the idealization of the private sphere and the practice of social equality.The first chapter, then, ties sociability not to democracy, as in the Habermasian model, but to the absolutism that stimulated it and coexisted with it. A series of five ideal types of sociability depict how men and women, members of the bourgeoisie and the aristocracy, came together—in commerce, public welfare, scientific academies, salons, cafés, public libraries, and various other social situations not protorevolutionary in character—to create a bond among equals [End Page 279] under the ancien régime. In this framework, progress and modernity are born during the absolute monarchy where sociability suggests conviviality rather than class warfare. Every major French novel of the eighteenth century supports Gordon’s refutation of De Toqueville’s surprising statement that “noblemen and bourgeois never met except by chance in private life “in prerevolutionary France” (p. 27).In chapters two and three, Gordon examines the nature of the rules of sociability found in courtesy literature and their functioning as the imagined basis of the newly invented idealized space called société. In addition to analyzing in great detail the nature and frequency of the vocabulary invented to define and describe sociabilité, Gordon discusses sociabilité in the context of natural law theory in Hobbes, Bossuet, and among others, Pufendorf, who wanted to refute Hobbes by showing that self-interest leads humans to establish stable social relations even before government orders them to do so. Holbach surfaces here too for having amalgamated the older language of politeness and the newer language of natural law. In Holbach, as in the Encyclopédie, sociability, based on egalitarian premises of natural law, is nonetheless fully compatible with the hierarchical regime. Among other things, this shows clearly that the philosophes never preached the French Revolution. Striving to eliminate the abuses of despotism and establish equality in private life was not tantamount to working for political equality and the abolition of all rank. In this same vein, Gordon paints the apolitical essence of the private sphere and, by a rigorous study of the seventeenth-century manuals of polite living, shows convincingly (this time against Elias who saw the court as a model of refined behavior) that the salon was indeed a world unto itself, independent of preexisting social hierarchies. Rejecting Paul Hazard’s conception of absolute rupture between seventeenth-century culture and eighteenth-century thought, Gordon destroys the facile dichotomy between seventeenth-century hierarchy and eighteenth-century equality and, once again, admirably depicts the compatibility of Enlightenment and absolutism.If chapters one to three underscore a certain continuity between the seventeenth and eighteenth centuries, chapters four and five explain important changes. It is not, for example, the mere preservation of the idea of sociable communication but rather its new use that is germane in understanding the Enlightenment. Now “conversation” and “civility” no longer had meaning only for an urban elite but had in fact become ideals in all philosophical endeavors including the writing of universal history. Sociable communication had become the defining characteristic of modern nations. In the fourth chapter, by analyzing in detail the works of Jean-Baptiste Suard, Gordon demonstrates the meaning that the writing of universal history in Scotland acquired within the French... (shrink)

This book follows postwar Germany's leading philosopher and social thinker, Jürgen Habermas, through four decades of political and constitutional struggle over the shape of liberal democracy in Germany. Habermas's most influential theories - of the public sphere, communicative action, and modernity - were decisively shaped by major West German political events: the failure to de-Nazify the judiciary, the rise of a powerful Constitutional Court, student rebellions in the late 1960s, the changing fortunes of the Social Democratic Party, NATO's (...) decision to station nuclear weapons, and the unexpected collapse of East Germany. In turn, Habermas's writings on state, law, and constitution played a critical role in reorienting German political thought and culture to a progressive liberal-democratic model. Matthew Specter uniquely illuminates the interrelationship between the thinker and his culture. (shrink)

Social choice theory and theories of deliberative discourse have deeply impacted on the way political scientists understand the dynamics of democratic politics and decision-making. _Deliberation, Social Choice and Absolutist Democracy_ addresses the dispute between these competing schools of thought. Deliberative democracy and social choice theorists offer the two dominant and competing conceptions of participation in contemporary democratic theory. With the former holding that theories of discourse tell us that through the democratic process we can arrive at consensus, rational (...) outcomes and even principles of justice, while the latter suggest that fair and equal participation is more likely to lead to instability and irrational outcomes. With an in-depth examination of social choice theory and deliberative democracy, David van Mill: presents two case studies on the American Continental Congress 1774-1789 provides an assessment of the types of institutions that will promote radical democracy and create stable outcomes with the minimum sacrifice of the freedom and equality of participants defends a more radical idea of absolutist democracy, gleaned from the writings of Hobbes, against the claims made in favour of limited constitutional government. This book will be of interest to students and researchers of political theory, particularly those with an interest in democracy and social choice theory. (shrink)

A political theorist considers the interface between political and moral theory. Drawing freely from classical theories of human nature and morality, Professor Ryn argues that constitutional, representative democracy coheres better with human social ethical aspirations than does democracy by plebiscite, unqualified majority rule.

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of (...) law, democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

This book examines the role of the EU in ensuring privacy and data protection on the internet. It describes and demonstrates the importance of privacy and data protection for our democracies and how the enjoyment of these rights is challenged by, particularly, big data and mass surveillance. The book takes the perspective of the EU mandate under Article 16 TFEU. It analyses the contributions of the specific actors and roles within the EU framework: the judiciary, the EU legislator, the independent (...) supervisory authorities, the cooperation mechanisms of these authorities, as well as the EU as actor in the external domain. Article 16 TFEU enables the Court of the Justice of the EU to play its role as constitutional court and to set high standards for fundamental rights protection. It obliges the European Parliament and the Council to lay down legislation that encompasses all processing of personal data. It confirms control by independent supervisory authorities as an essential element of data protection and it gives the EU a strong mandate to act in the global arena. The analysis shows that EU powers can be successfully used in a legitimate and effective manner and that this subject could be a success story for the EU, in times of widespread euroskepsis. It demonstrates that the Member States remain important players in ensuring privacy and data protection. In order to be a success story, the key stakeholders should be prepared to go the extra mile, so it is argued in the book. The book is based on academic research for which the author received a double doctorate at the University of Amsterdam and the Vrije Universiteit Brussels. It builds on a long inside experience within the European institutions, as well as within the community of data protection and data protection authorities. It is a must read in a time where the setting of EU privacy and data protection is changing dramatically, not only as a result of the rapidly evolving information society, but also because of important legal developments such as the entry into force of the General Data Protection Regulation. This book will appeal to all those who are in some way involved in making this regulation work. It will also appeal to people interested in the institutional framework of the European Union and in the role of the Union of promoting fundamental rights, also in the wider world.. (shrink)

Introducing the ontology of theory choice -/- Economists choose theories and they choose ways of pursuing theories, and they leave others unchosen. Why do economists choose the way they do? How should economists choose? What are the objectives and what are the constraints? What should they be? The questions are both descriptive and prescriptive. -/- There are two broad classes of “criteria of choice” that have been somewhat systematically considered in the recent literature on economic methodology: (1) Empirical criteria. (...) There are several possible ways of incorporating empirical criteria in one's theory of science. The respective methodology of theory assessment may be static or dynamic, it may be deductivist or inductivist, it may include various ideas of what constitutes empirical evidence, and so on. What they all share is the general idea that scientific theories are, or are to be, checked against empirical evidence according to some rules, and that this determines the choice of theory. (2) Social criteria. Again, there are several options. The social criteria may be related to the social interests of scientists or larger social collectives, they may be based on the persuasiveness and tradition-boundedness of theories, they may involve social or moral norms, they may be derived from various costs and benefits of holding a theory in a given research community, and so on. If they involve empirical data, it is the social aspects of the data that matter. What all these views share is that scientific theories are taken to have social attributes (functions, consequences) that play or should play a major role in theory choice. (shrink)