I show one reason why Hegel’s theory of history is an improvement over Kant’s. There is an ambiguity in Kant’s theory of history. He wants, on the one hand, to distinguish empirical history (and, by extension, other empirical sciences which constitute experience) from reason’s a priori regulative role in theory. On the other hand, his view of the nature of sciences and the role of reason precludes such a separation. I trace this problem to different roles assigned the faculties (...) of understanding and reason in our experience. In Hegel’s theory of history, both reason and understanding together constitute the sciences, and thus experience. Hegel argues that history is a unified field employing both understanding and reason. I conclude that the more consistent theory of history for idealists is Hegel’s, and that this consistency partially explains the movement in German Idealism from Kantian to Hegelian thought. (shrink)

RESUMEN El objeto de este trabajo es, por un lado, recopilar los principales estudios teóricos y filosóficos que han servido para diferenciar entre reglas regulativas y reglas constitutivas y, por otro, realizar una revisión de dichas propuestas para efectos de cuestionar la posibilidad de una distinción tajante entre ambos tipos de reglas. La primera parte del texto corresponde a una exposición de los postulados de los autores enunciados. En seguida, se formulan cuestionamientos a los criterios que se advierten en el (...) apartado precedente. Finalmente, se expone la viabilidad de una distinción concluyente entre ambos tipos de reglas. ABSTRACT The aim of this article is, on the one hand, to compile the main theoretical and philosophical studies that has been used to differentiate between regulative norms and constitutive norms, and on the other hand, to make a review of these proposals to question the possibility of a sharp distinction between both types of rules. The first part of this work is an exposition of the postulates of the mentioned authors. The second part of the text introduces questions against the criteria noted in the previous section. Finally, the feasibility of a conclusive distinction between both types of rules is exposed. (shrink)

The social licence to operate concept is little developed in the academic literature so far. Deployment of the term was made by the United National Guiding Principles on Business and Human Rights and the UN ‘Protect, Respect and Remedy’ Framework, which apply SLO as an argument for responsible business conduct, connecting to social expectations and bridging to public regulation. This UN guidance has had a significant bearing on how public regulators seek to influence business conduct beyond Human Rights to broader (...) Corporate Social Responsibility concerns. Drawing on examples of such public regulatory governance, this article explores and explains developments towards a juridification of CSR entailing efforts by public regulators to reach beyond jurisdictional and territorial limitations of conventional public law to address adverse effects of transnational economic activity. Through analysis of an expansion of law into the normative framing of what constitutes responsible business conduct, we demonstrate a process of juridification entailing a legal framing of social expectations of companies, a proliferation of law into the field of business ethics, and an increased regulation by law of social actors or processes. (shrink)

Recent feminist theorizing has pointed to a `resurgent patriarchy' within neo-liberal postfeminist times, which re-orders and restabilizes the heterosexual matrix through a politics of `postfeminist masquerade' demanded of girls and women (McRobbie). This paper seeks to complicate this thesis, exploring the regulation and rupture of Butler's `heterosexual matrix' as a complex performative politics through which girls' conflictual relationships with themselves, and other girls and boys are staged and through which dominant versions of tweenage and teenage femininity are reinscribed but also (...) reworked, in race and class specific ways. Drawing on Deleuze and Guattari's powerful conceptual repertoire for disrupting Oedipal logics in Anti-Oedipus, we offer a `molecular mapping', illustrating cracks and ruptures in what is a porous heterosexual matrix, exploring a rhythm of `deterritorializations' and `reterritorializations' of the normative in our respective ethnographic and narrative interviews with girls. We also trace more sustained ruptures of heteronormative femininity drawing upon Deleuze and Guattari's notion of `lines of flight' and Braidotti's concept of `alternative figuration'. We argue ruptures and alternative figurations are not constitutive of total `molar' resistance to norms, but are significant spaces of doing girl differently and crucial to map if we are to perceive the malleability and multiplicity of contemporary girl subjectivities, which exceed heteronormative femininity and phallogocentric desire. (shrink)

Faced with high levels of unemployment and discrimination in Poland, Polish women have made up a very large proportion of those leaving the former Communist states of central Europe, to work in EU member states. They have constituted a large undocumented migrant workforce in Europe, usually working as domestic workers and carers in the informal economy. Poland’s membership of the EU is starting to regulate Polish women’s work abroad and to increase their access to better paid and skilled work in (...) the formal labour market. New market-led immigration policies in Europe are still selective and restricted however. What Polish women really need from the EU is help in securing a new framework of gender equality and equal treatment in Poland that offers hope for an improvement in their rights at home. (shrink)

Recent state regulations require women, before undergoing abortions, to be subjected to unwanted and nonmedically necessary sonograms, often requiring an intrusive vaginal probe. Physicians, for their part, are forced to turn the viewing screens toward the faces of their patients and to describe to them the details on the screen. In this commentary, I explain these current laws and the various court responses to them to date. Further, I demonstrate why these abortion regulations violate the ethical principles governing informed consent (...) and why they should be declared unconstitutional based on women’s constitutional rights as settled by Planned Parenthood of Southeastern Pennsylvania v. Casey and physicians’ First Amendment rights. (shrink)

This paper argues that recent ethics research guidelines fit poorly onto the kinds of research undertaken in the humanities, where a research conversation often forms a distinctive method of investigation that has no scientific equivalent The NH&MRC ethics guidelines pay little attention to the issues raised in humanities and social science research. Also, ethics committees are constituted primarily to look at ethical issues that arise from medical and scientific research, causing extra problems for those in the humanities and social sciences.

: This article critically examines the constitution of impairment in prenatal testing and screening practices and various discourses that surround these technologies. While technologies to test and screen prenatally are claimed to enhance women's capacity to be self-determining, make informed reproductive choices, and, in effect, wrest control of their bodies from a patriarchal medical establishment, I contend that this emerging relation between pregnant women and reproductive technologies is a new strategy of a form of power that began to emerge in (...) the late eighteenth century. Indeed, my argument is that the constitution of prenatal impairment, by and through these practices and procedures, is a widening form of modern government that increasingly limits the field of possible conduct in response to pregnancy. Hence, the government of impairment in utero is inextricably intertwined with the government of the maternal body. (shrink)

The central role played by emotions in conflict has long been recognized by many of the scholars who study ethnic conflicts and conflict resolution. Yet recent developments in the psychological study of discrete emotions and of emotion regulation have yet to receive adequate attention by those who study and seek to promote conflict resolution. At the same time, scholars of emotion and emotion regulation have only rarely tested their core theories in the context of long-term conflicts, which constitute a unique (...) and highly emotional environment. I argue that building bridges between these two communities would help us to form a better understanding of core processes in emotion and emotion regulation as well as greatly advance theory and practice in conflict resolution. To address that goal, a theoretical, appraisal-based model elucidating the way emotions operate in the context of conflict resolution processes is presented, followed by a review of recent empirical developments in the study of discrete emotions in conflict resolution processes. Next, I discuss various avenues of influence and provide preliminary data regarding the potential role of two types of emotion regulation processes in conflict resolution efforts. Finally, I describe the future challenges in integrating these two bodies of knowledge, at both the theoretical and the applied levels. (shrink)

The question of what constitutional constraints should apply to government efforts to regulate scientific speech is frequently contrasted to the question of what constitutional constraints should apply to government efforts to regulate scientific research. This comment argues that neither question is well formulated for constitutional analysis, which should instead turn on the relationship to constitutional values of specific acts of scientific speech and research.

This article seeks to explain how it was possible that, until the first century BC, the Roman dictatorship was never abused and turned against the constitution itself. The traditional explanation is that, contrary to its first century imitations, the dictatorship was subject to formal restrictions, such as the six months' tenure, which were strictly applied. By contrast, this article suggests that informal constraints on the dictator's powers, such as moral and religious norms, were as important as formal constraints. It shows, (...) more particularly, how the fides, or the requirement of trust, was essential for preventing an abuse of dictatorial powers. (shrink)

This paper outlines briefly care as a formal construct of a highly regulatory approach to being looked after in the setting of foster care. It then moves on to consider care and its expression within the interdependencies and everyday moral ?workings out? between people in caring relationships. These relationships are informed partly by exterior regulation, but also emerge predominantly from care as a social process and daily human activity in which the self exists through and with others. Drawing from an (...) in-depth qualitative study of 10 foster families supported by local authorities or independent agencies in Wales, the paper examines the meaning of care in what is often a nebulous mix of paid and unpaid fostering. The moral texture of the foster family is revealed in regard to three areas of everyday domestic life that are often taken for granted and rarely researched: the symbolism of food, issues of the body, and aspects of touch. The paper concludes with a brief reprise of foster care as relational, constitutive and contextual in contrast with care as a professional and regulatory discipline. (shrink)

This article seeks to explain how it was possible that, until the first century BC, the Roman dictatorship was never abused and turned against the constitution itself. The traditional explanation is that, contrary to its first century imitations, the dictatorship was subject to formal restrictions, such as the six months' tenure, which were strictly applied. By contrast, this article suggests that informal constraints on the dictator's powers, such as moral and religious norms, were as important as formal constraints. It shows, (...) more particularly, how the fides, or the requirement of trust, was essential for preventing an abuse of dictatorial powers. (shrink)

I present and develop a novel account of the schematism by reading it through the distinction between constitution and regulation. I thus show that Kant’s stipulation of only eight schemata for the twelve pure concepts of the understanding is not haphazard but answers, instead, to two distinct processes of synthesis, mathematical and dynamical, that either constitute objects in intuition or regulate objects of experience. Based on this, I offer a detailed reconstruction of each of the schemata specified by Kant, and (...) I provide an explanation of the systematic role each plays in the Analytic. (shrink)

In a modern, plural society, there can be no settled agreement on the concrete legal content of a country's constitution. The idea of the constitution is nonetheless pivotal in contemporary, liberal‐minded theories of political justification, such as the ones advanced by Jürgen Habermas and John Rawls. Justification in these theories depends finally on “constitutional patriotism,” a consciously shared sentiment arising from an ethical assessment of their country by the country's people, according to which the country credibly pursues a certain (...) class='Hi'>regulative political ideal for which the constitution stands. (shrink)

This article explores the various senses in which the framers of the Constitution were motivated by a pragmatist philosophical framework, and how this pragmatism influenced their vision of the best interests of the American economic system. We argue that, on various grounds, the framers would have disapproved of the excessive regulation that characterizes the current business environment.

American historians have generally accepted Richard Hofstadter's thesis that the scientism of Social Darwinism, or more appropriately, Spencerianism, dominated American thought in the late nineteenth and early twentieth century, and nowhere more enthusiastically or more purposively than within the conservative business community, which used Herbert Spencer's scientism to justify corporate business practices and to rewrite American Constitutional law to protect property interests against governmental regulations. Following Sharlin's general exposition of Herbert Spencer's scientism, this paper examines in detail the validity of (...) the Hofstadter thesis as applied to the notorious Lochner v. New York Supreme Court opinion of 1905. The conclusions drawn from this analysis are offered as a repudiation of the generally accepted belief that it was the conservative activists on the Court who were guilty of Spencerian scientism. On the contrary, the argument is presented that it was Justice Holmes and the liberal reformers who found the evolutionary doctrines of Spencer congenial to their efforts of identifying needed reinterpretations of the American Constitution with biological evolution. (shrink)

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice (...) Admission. All four of the ABA's foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is “ subject to effective regulation and discipline by a duly constituted professional body or a public authority .” In other words, these rules set forth requirements regarding the nature of the regulatory system in the foreign lawyer's home jurisdiction. A number of US states have included this requirement in their foreign lawyer mobility provisions, but a number have not. Although the ABA model rules and a number of state rules include this requirement, neither the ABA Model Rules nor any of the state rules have defined what it means for a foreign lawyer to come from a system with “effective regulation and discipline.” Nor is there any evidence that this requirement has been enforced in those states that have included this requirement. This article suggests that the “effective regulation and discipline” requirement has been an elephant in the room that no one has been willing to talk about. The article argues that the time has come to confront this issue head-on. It asserts that either efforts should be undertaken to define and enforce this requirement or that the requirement should be abandoned. The article reviews two “threshold” issues that jurisdictions might want to consider when deciding whether to adopt or retain an “effective regulation and discipline” requirement. It also identifies cross-cultural and cross-professional resources that might be consulted for “benchmarking” purposes if and when US regulators decide to add “meat to the bones” by defining and enforcing the “effective regulation and discipline” requirement found in foreign lawyer mobility provisions. (shrink)

Formal arguments are often represented by pairs, but in this paper we consider normative arguments represented by sequences of triples, where constitutive norms derive institutional facts from brute facts, and regulative norms derive deontic facts like obligations and permissions from institutional facts. The institutional facts may be seen as the reasons explaining or warranting the deontic obligations and permissions, and therefore they can be attacked by other normative arguments too. We represent different aspects of normative reasoning by different (...) kinds of consistency checks among these triples, and we use formal argumentation theory to resolve conflicts among such normative arguments. In particular, we introduce various requirements for arguing about norms concerning violations, contrary-to-duty obligations, dilemmas, conflict resolution and different kinds of norms, and we introduce a formal argumentation theory satisfying the requirements. In order to illustrate our framework, we introduce a running example based on university regulations for prospective and actual students. (shrink)

The article analyses the regulation for premature termination of the Parliament in Latvia. The introductory part of the article provides a short characteristic of the Constitution of Latvia - the Satversme adopted in 1922, and outlines the basic principles of legal regulation of the Parliament, i.e. the Saeima. Further chapters of the article analyse historic development of the premature termination of the Parliament. On 15 February, 1922, when the Satversme was adopted, only one mechanism for the premature termination of the (...) Parliament was established there: dissolution of the Saeima. However, relatively recently, in 2009, after a prolonged public discussion another mechanism for the premature termination of the activity of the Saeima was established, which was the recall.1 Both models of the termination of the activities of the Parliament are analysed in the article by specifying the principal differences between them. Along with the analysis of the provisions of the Constitution and theory, the practice of dissolution of the Saeima is characterised as well, because in 2011 the Parliament (the Saeima) was dissolved in a constitutional way for the first and so far the only time in the history of Latvia and extraordinary elections were held. (shrink)

Victims of oppression are often called to let go of their anger in order to facilitate better discussion to bring about the end of their oppression. According to Amia Srinivasan, this constitutes an affective injustice. In this paper, we use research on emotion regulation to shed light on the nature of affective injustice. By drawing on the literature on emotion regulation, we illustrate specifically what kind of work is put upon people who are experiencing affective injustice and why it is (...) damaging. We begin by explaining affective injustice and how it can amount to a call for emotion regulation. Then we explain the various techniques that can be used to regulate emotions and explain how each might be harmful here. In the penultimate section of the paper, we explain how the upshot of this is that victims of affective injustice are left with a dilemma. Either they try to regulate their anger in a way that involves ignoring the fact of their oppression or they regulate it in a way that is likely to be harmful for them. Finally, we consider whether there are any good solutions to this dilemma, and how this issue opens up the possibility for further research into emotion regulation and moral philosophy. (shrink)

It is a commonplace within philosophy that the ontology of institutions can be captured in terms of constitutive rules. What exactly such rules are, however, is not well understood. They are usually contrasted to regulative rules: constitutive rules (such as the rules of chess) make institutional actions possible, whereas regulative rules (such as the rules of etiquette) pertain to actions that can be performed independently of such rules. Some, however, maintain that the distinction between regulative (...) and constitutive rules is merely a linguistic one. In this paper I present the status account of constitutive rules in order to address this criticism. According to the status account constitutive rules pertain to institutional statuses and statuses are to be understood in terms of status rules. Status rules concern the enabling and constraining roles of institutions, and constitutive rules specify the preconditions that have to be met in order for them to play these roles. Even though I end up endorsing the claim that the distinction mentioned is a linguistic one, I go on to argue that there is an underlying reality that constitutive rules serve to make apparent. (shrink)

Discovery of a second, inducible prostaglandin synthase provides explanations for many previously puzzling observations, but also raises new questions about prostanoid synthesis. A cis‐acting sequence closely related to the cyclic AMP response element has been shown to play a role in both basal and induced prostaglandin synthase 2 gene expression. Aspirin and other currently available non‐steroidal anti‐inflammatory drugs that inhibit prostaglandin synthase activity do not effectively discriminate between the inducible prostaglandin synthase 2 and constitutive prostaglandin synthase 1 enzymes. Identification (...) of a second prostaglandin synthase, induced by inflammatory stimuli, initiated a search for isoform‐specific inhibitors. Use of prostaglandin synthase 2 specific inhibitors and antisense oligonucleotides has led to the suggestion that specific ligands activate alternative pathways of prostanoid production, using one of the prostaglandin synthase isoforms preferentially. The coupling mechanisms by which these pathways are activated in response to alternative stimuli should provide additional routes of intervention in prostanoid production. (shrink)

Theories of sexuality, culture and modern personhood rarely take account of differences in the construction of sexuality between advanced industrial nations. This article reveals different conceptions and management of adolescent sexuality among white, middle-class American and Dutch parents of teenagers. The American parents describe adolescent sexuality as a biologically driven, individually based activity which causes disruption to the teenager as well as to the family. The Dutch parents, by contrast, emphasize the love relationships and social responsibility of teenagers which make (...) their sexuality a `normal' phenomenon. The American parents exclude the sexuality of teenagers from conversation and the family while the Dutch parents accommodate culturally prescribed forms of teenage sexuality within the home. The article demonstrates how the two constructions of adolescent sexuality, and the conceptions of personhood and social life that engender them, constitute fundamentally different cultural logics. Without denying variations within the two countries, or overlaps between them, it suggests that different dominant understandings of sexuality and the individual have prevailed in the USA and the Netherlands. (shrink)

This paper attempts to answer whether the property of “efficacy” can be attributed to constitutive rules. In particular, according to Di Lucia, I will point out some problems that the “semantic conception of efficacy” has concerning constitutive and regulative rules. Then, the main goal of the paper will be to reflect on the possibility of the efficacy of constitutive rules by means of a complex case that the semantic conception seems to disregard: The case of the (...) cheater. Does the action of the cheater show the inefficacy of constitutive rules? Does she play the game while breaking the rule? Can the semantic conception of efficacy explain this situation, or do we need a more flexible concept of efficacy that takes nomotropism into account? These are some of the questions I will try to answer. (shrink)

This article explores the images of ‘girlpower’ and ‘girls as risk-takers’ as important sources for the analysis and management of young women's experiences and behaviours under late modernity. It then focuses on what is known as the grrrlzine culture as a site where these contemporary images of girlhood are challenged and deconstructed. It is argued that grrrlzines create a community for young women within which they can participate in debates about the meaning of girlhood under late modernity. Grrrlzines offer spaces (...) for young women to discuss and organize among themselves, and in particular to wrestle with and parody contemporary images of girlhood. In doing so, they help to complicate and advance feminist youth studies approaches to the role of the public/private split in girls’ cultures, places for youth resistance and the ‘problem’ of girls’ silence and invisibility in the context of late modernity. The article examines the ways grrrlzines appear to be complicit in the silencing of young women by insisting on expression only within liminal spaces. However, it is suggested that this constitutes an important attempt on the part of some young women to evade new regulatory regimes that operate primarily by inciting them to speak. (shrink)

John Searle’s distinction between regulative and constitutive rules is an enduringly important contribution to our understanding of rules, of language, and of rule-based or rule-bounded institutions. It is important to add to Searle’s account, however, by pointing out the regulative function of constitutive rules. Many human activities and goals can be pursued in multiple ways, but constituting the approved or official way of doing things, as is so common in law, has the effect of making alternatives (...) less eligible, less available, or less permitted, all of which can be seen as the regulative overhang of constitutive rules. (shrink)

Cells can change their function by rapidly modulating the levels of certain proteins at the plasma membrane. This rapid modulation is achieved by using a specialised trafficking process called constitutive cycling. The constitutive cycling of a variety of transmembrane proteins such as receptors, channels and transporters has recently been directly demonstrated in a wide range of cell types. This regulation is thought to underlie important biological phenomena such as learning and memory, gastric acid secretion and water and blood (...) glucose homeostasis. This review discusses the molecular mechanisms of constitutive cycling, its regulation by extracellular agents such as hormones and its misregulation in disease states. BioEssays 25:39–46, 2003. © 2002 Wiley Periodicals, Inc. (shrink)

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

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

India has produced several drafts of data policies. In this work, they are referred to [1] JBNSCR 2018, [2] DPDPR 2018, [3] NSAI 2018, [4] RAITF 2018, [5] PDPB 2019, [6] PRAI 2021, [7] JPCR 2021, [8] IDAUP 2022, [9] IDABNUP 2022. All of them consider Artificial Intelligence (AI) a social problem solver at the societal level, let alone an incentive for economic growth. However, these policy drafts warn of the social disruptions caused by algorithms and encourage the careful use (...) of computational technologies in various social contexts. Hence, the emerging data society and its implications in India's social contexts demand immense social science attention, which needs to be improved in the policy drafts, primarily because they are creations of industry stakeholders, technocrats, bureaucrats, and experts from tech schools. In the larger social milieu of digital infrastructure emerging, the fundamental question is whether India's national philosophy envisioned in the Indian constitution is reflected in the policy papers. The paper enquires whether the national data policy upholds the core values dispersed through the philosophy of the Indian constitution, which, among other things, is not confined only to inclusion, diversity, rights, liberty, justice and equality. By focusing on constitutional values, the paper seeks to offer a broader and more critical understanding of India's approach to AI policy by bringing together analyses of a wide array of policy documents available in the public realm. (shrink)

The COVID-19 pandemic has raised many intriguing questions both in the EU and globally, from the critical task of safeguarding lives to technical legal issues about competences to regulate health as well as the boundaries of emergency laws. This paper is interested in the connection between non-domination theory and the EU’s constitutional structure in the context of emergency laws. A key theme of the paper is that risk and emergencies are nothing new in an EU context, but concepts used by (...) the legislator in a wide range of policy areas which give rise to a number of constitutional challenges. The paper sketches out the main characteristics of non-domination and republication theory and addresses the question of how and why the notion of non-domination may be useful for understanding the EU constitutionalism venture in the framework of risk and emergency laws. (shrink)

The emergence of the global administrative sector and its new forms of knowledge production, expert rationality, and standardization, remains an understudied topic in science studies. Using a coproductionist theoretical framework, we argue tha the mutual construction of epistemic and legal authority across international organizations has been critical for constituting and stabilizing a global regime for the regulation of food safety. The authors demonstrate how this process has also given rise to an authoritative framework for risk analysis touted as ‘‘scientifically rigorous’’ (...) but embodying particular value choices regarding health, environment, and the dispensation of regulatory power. Finally, the authors trace how enrollment of the Codex Alimentarius in World Trade Law has heightened institutional dilemmas around legitimacy and credibility in science advice at the global level. Taken together, the case illustrates the importance of attending to the iterative construction of law and science in the constitution of new global administrative regimes. (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)

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)

Purpose The purpose of this study is to investigate Libyan journalists’ perspectives regarding the media laws Articles 37,132, 38 and 46, which address media freedom in the new Libyan Constitution of 2017. Design/methodology/approach Focus group discussions were done with 35 Libyan journalists, 12 of them from the Constitution Committee, while 23 of them reported the update of the constitution in the Libyan Parliament. Findings The results of the study indicated that there were media laws articles that did not conform to (...) the international laws and United Nations treaties, which the Libyan Parliament committee approved. Another finding from the journalists was the Constitution should provide and guarantee press freedom, while media laws articles approved to put a paragraph about “censorship” in the press and media as a tool to silence government opposition. In addition, journalists indicated future constitution should redraft Article 38 to conform with Article 19 of the “International Covenant on Civil and Political Rights,” to support the “principles of freedom of expression and information” without control. Moreover, Article 46 needs to be changed and linked to the “provisions of international law on the right of information access” to improve the access and dissemination of information in the media. Practical implications Redrafting the constitution articles in the future can be summarised as follows: First, the Libyan Constitution should provide and guarantee press freedom without any censorship and include clear articles to protect journalists in conflict zones. Second, Articles 37,132 and 38, about “freedom of information and publication,” need to be redrafted to link with Article 19 of the “International Covenant on Civil and Political Rights,” to support the principles of freedom of expression and information, and the use of this right must not be subject to prior control. Third, Article 46 needs to be changed and linked to the provisions of “International law on the Right of Access to Information” to improve access and dissemination of information in the media to protect confidentiality sources. The most important articles should be implemented because after the Arab Spring revolutions, there was a transitional period in societies and a change in the constitutions of Tunisia and Egypt. They developed legal articles about media freedom so that Libya resembles other Arab countries. From that point, the journalists recommended that all information should be protected from government interference to ensure transparency, combat corruption and protect independent journalists. These articles will open the way to add more development articles to media freedom rules in the Journalists’ Syndicate. Fourth, there are also various types of threats encountered by journalists in their work. In pursuit of their right and freedom of expression, they recommended that Libya must establish an independent self-regulatory media that are free from political and economic influence. Fifth, journalists need licenses for them to work through the syndicate. The new syndicate should play an active role to safeguard the rights of journalists, activists and media entities to carry out their work and end the self-censorship. Sixth, the constitution should also add articles to end the impunity and change the articles in the penal code. Overall, the journalists covering the conflict and war are encountering threats, violence and imprisonment. As a result, Libyan journalists must seek new legislation to defend independent journalism and freedom of expression in their deeply divided country. In addition, they need to have a strong central authority to defend journalists and journalism in wartime, where journalists are regularly threatened, abducted and sometimes killed. Also, the Libyan Journalists Syndicate should stress the importance of the media’s self-regulation to guarantee their rights to freedom of expression, grant their readers’ respect and minimise government’s interference. Finally, they need to develop new laws to grant media freedom from regulations and restrictions, as well as defend and promote democracy, the citizens’ right to be informed, as well as their right to discuss and disseminate information. There is also the need to implement articles in the constitution, articles about the protection of political speech, which would be specific enough to differentiate between what is legally permitted and what may be ethically offensive. Originality/value This study will help the new Libyan parliament after the legislative elections on 24 December 2021 to amend the media laws articles in the constitution. (shrink)

In this paper we examine some of the economic and ethical consequences of different credit market regulations, including usury laws, complete prohibition of interest and providing ease to the borrower upon default. The references to these credit market regulations can be found in many religious and moral philosophy texts. We first examine the effectiveness of these regulations in deterring exploitative lending by developing a model that shows lending can be regulated through either act-based or harm-based regulations. We show that act-based (...) regulations which comprise usury laws and complete prohibition of interest deter lenders more than harm-based regulations which constitute bankruptcy laws. We then analyze that while the regulations may deter certain forms of lending behavior, they may also create certain externalities by contributing towards inequity and societal risk. We propose that a regulator’s choice of implementing credit market regulations maybe dependent on her ethical commitment towards growth and reduction of inequity. We suggest the usury laws are more ethical than bankruptcy laws; however, discouraging the use of debt contracts through prohibition of interest and encouraging the use of risk sharing contracts maybe the most ethical way to regulate the credit markets. (shrink)

The evidence reveals that young children are targeted by food and beverage advertisers but are unable to comprehend the commercial context and persuasive intent of marketing. Although the First Amendment protects commercial speech, it does not protect deceptive and misleading speech for profit. Marketing directed at children may fall into this category of unprotected speech. Further, children do not have the same First Amendment right to receive speech as adults. For the first time since the Federal Trade Commission's original attempt (...) to regulate marketing to children in the 1970s , the political, scientific, and legal climate coalesce to make the time well-suited to reevaluate the FTC's authority for action. This paper analyzes the constitutional authority for the FTC to regulate television food marketing directed at children as deceptive in light of the most robust public health evidence on the subject. (shrink)

In response to the obesity epidemic, much discussion in the public health and child advocacy communities has centered on restricting food and beverage marketing practices directed at children. A common retort to appeals for government regulation is that such advertising and marketing constitutes protected commercial speech under the First Amendment. This perception has allowed the industry to function largely unregulated since the Federal Trade Commission 's foray into the topic, termed KidVid, was terminated by an act of Congress in 1981. (...) The FTC has since focused on self-regulation as a potential solution to such concerns. However, this method of control has proven ineffective to protect children, and has led to growing recognition that federal regulation may be necessary.Since KidVid, the evidence has only mounted that children are uniquely vulnerable to the effects of advertising. Over the same time period, the exposition of commercial speech jurisprudence has plateaued, as the Supreme Court has not decided a pure commercial speech case since 2002. (shrink)