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.
Benhabib argues that since the UN Declaration of Human Rights in 1948, we have entered a phase of global civil society which is governed by cosmopolitan norms of universal justice - norms which are difficult for some to accept as legitimate since they are in conflict with democratic ideals.
American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine the procedures (...) and organizational forms of many distinct states and legal cultures. Attempting to omprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda of American public law scholarship. (shrink)
This is a book that brings together material from an unusually wide range of perspectives on an important topic. The scholarship is first-rate--one profits from reading the footnotes as well as the text.