Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private (...) agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

This paper discusses the role of Law and Legal Thinking in Critical Theory with specific reference to the arguments that Michael Hardt and Antonio Negri offer in their book Commonwealth. The core idea is that Critical Theory is no less radical, but much more concrete, when it is performing not only an external, but also an internal critique of the Law. It shows that the role of the law in critical theory emerges as a problem when the latter (...) claims that ‘there is no outside’ and that ‘the legal base of the system structures our lives.’ It then discusses optimistic and pessimistic strategies to overcome the problem, and argue for a demanding strategy which consist in articulating the external and the internal critique of the law. To make this point, the paper goes back to the epistemic context in which critical attitudes are deployed (the ‘Conflict of the Faculties’), describes the four theoretical moves constitutive of the historical moment in which, at the end of the 18th Century, modern law as we know it was conceived of and founded; and sketches the key moments of the history of the internal critique of the law. It then illustrates the demanding strategy with examples taken from the field of Intellectual Property, and concludes that the Law is malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system and also that alternatives spoken in the language of the law are no less radical, but certainly, more concrete than others. (shrink)

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise is no less pernicious (...) than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

This article explores the role of constitutional thought in Latour’s work on cosmopolitics. It will study his non-modern proposal in the Politics of Nature (2004) and argue for a constitutional rather than political understanding. To address criticisms of being too metaphysical or unpractical, we will work out the notion of a “constitutional ecology of practices” to highlight how different practices such as politics, science, organization, but also law, all contribute to the design of the stage and processes for composing (...) a common world. Special focus will here be placed on the role of “epigrams”: practical models for ordering contributions of different practices or modes in hierarchical relationships. This renders them identifiable, mobilizable, and contestable as cross-cutting models for shaping mutual relations in concrete collaborative settings. The case of the legal regulation of robots will be presented as an example of a cosmopolitical attempt to introduce non-human entities in the common collective. We will here observe the role that epigrams play in framing, ordering and contesting the epistemic contributions of the various practices involved in this innovation ecology. This case will be used to discuss Latour’s proposals and to study non-modern constitutionalism in action. (shrink)

Abstract:This article explores the role of constitutional thought in Latour's work on cosmopolitics. It will study his non-modern proposal in the Politics of Nature (2004) and argue for a constitutional rather than political understanding. To address criticisms of being too metaphysical or unpractical, we will work out the notion of a "constitutional ecology of practices" to highlight how different practices such as politics, science, organization, but also law, all contribute to the design of the stage and processes for composing (...) a common world. Special focus will here be placed on the role of "epigrams": practical models for ordering contributions of different practices or modes in hierarchical relationships. This renders them identifiable, mobilizable, and contestable as cross-cutting models for shaping mutual relations in concrete collaborative settings. The case of the legal regulation of robots will be presented as an example of a cosmopolitical attempt to introduce non-human entities in the common collective. We will here observe the role that epigrams play in framing, ordering and contesting the epistemic contributions of the various practices involved in this innovation ecology. This case will be used to discuss Latour's proposals and to study non-modern constitutionalism in action. (shrink)

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski (1991), between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism (see Manning 2005, 2006), I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary (...) proceedings and legal texts. I then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski (1991). I argue that contextualism (of the moderate kind) is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker (also see considerations by Fish 2005); (on contextualism see Dascal and Weizman 1987). I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s (1997) textualism and contextualism (see Manning 2005, 2006 on the divide between textualism and contextualism). (shrink)

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place (...) legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive. (shrink)

The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American (...) constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations. (shrink)

Starting from the contemporary processes of “fragmentation of societies” (pluralization of individual lifestyles, the increasing ethnic‐cultural diversity, de‐solidarity, the melting away of political loyalties) and of “dissolution of the nation” (the erosion of the monopoly of the state, economic globalization), the author examines Tocqueville's question about what holds society together. This problem of integration is analysed in the perspective of social and legal sciences. Accordingly, the author stresses that solutions to such a problem should come from a constitutional theory which (...) is open to debates and answers developing in other disciplines, thus obtaining relevant information concerning the role of law and of constitution for integration. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the (...) role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

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)

Must you respect basic logical laws (BLL) – such as the law of non-contradiction – in order to think? Frege wrote that one must “acknowledge” BLL in order not to “abandon judgement altogether”. Some have argued that Frege therefore thought of logic as somehow ‘constitutive’ of thinking. However, some interpreters contend, due to his strong commitment to logic’s normative status, that Frege held the opposite view, namely the non-constitutivist view that (systematic) ‘illogical’ thinking is possible and that one need (...) not accept or follow BLL in order to think as such, although one must do so in order to think correctly. The aim of this paper is to investigate the interpretative landscape regarding Frege’s view on logic’s constitutive role for thinking and suggest, against the non-constitutivist readings, that he indeed was committed to some version of the constitutivity thesis, but that this commitment is not, as some constitutivist interpretations suggest, inconsistent with the idea that logic is normative for thinking. I will, instead, propose to read his view in a soft and agent-relative sense, according to which it is a necessary condition for the possibility of thinking that the agent in question is sensitive to and acknowledges BLL. (shrink)

Two narratives have emerged to describe recent health care reforms in the United States of America and the United Kingdom. One narrative speaks of revolution, that the adoptions of the Affordable Care Act 2010 in the US, and the Health and Social Care Act 2012 in the UK, have resulted in fundamental, large-scale philosophical, political and legal change in the jurisdictions’ respective health care systems. The other narrative evokes evolution, identifying each new legislative scheme as a natural development of existing (...) governance structures. Policymakers in both the US and UK face the problem of a health care system which, as traditionally envisaged, cannot offer universal access to health care at a reasonable, or politically acceptable, price. (shrink)

The symmetries of a physical theory are often associated with two things: conservation laws and representational redundancies. But how can a physical theory's symmetries give rise to interesting conservation laws, if symmetries are transformations that correspond to no genuine physical difference? In this article, I argue for a disambiguation in the notion of symmetry. The central distinction is between what I call "analytic" and "synthetic" symmetries, so called because of an analogy with analytic and synthetic propositions. "Analytic" symmetries are the (...) turning of idle wheels in a theory's formalism, and correspond to no physical change; "synthetic" symmetries cover all the rest. I argue that analytic symmetries are distinguished because they act as fixed points or constraints in any interpretation of a theory, and as such are akin to Poincaré's conventions or Reichenbach's 'axioms of co-ordination', or 'relativized constitutive a priori principles'. (shrink)

In this article we examine the role of Entscheider (decision-makers) in the German asylum procedure, both legally and ethical. As the responsibility for deciding on asylum applications lies exclusively with them, their significance for the German asylum procedure can hardly be underestimated. However, over the last few decades the situation of Entscheider changed significantly: While the number and complexity of the cases they have to decide on has increased due to the growing immigration, the requirements for their education have (...) been lowered, owed to critical amendments to the relevant law. We analyze how the law currently defines the role of Entscheider, whether the legal framework is constitutional, and what modifications morality requires. Although the law defining their role seems to be constitutional, Entscheider’s education must be improved and they must be entrusted with the hearing of the applicants to meet what morality requires, we conclude. DOI: 10.17879/95189429199. (shrink)

Health care reform in the United States and United Kingdom has resulted in the cross-fertilization of policy. The “new” health care models adopted by the two jurisdictions utilize free market principles for reasons of quality, efficiency, and cost, but also feature characteristics of a state-run model, through the provision of a safety net for citizens and a buffer against the commodification of health. In this sense, the health care systems of the US and UK are more congruent than they were. (...) Here we identify two distinct narratives that emerge from health care reform undertaken in these jurisdictions. The “revolutionary” narrative views the reforms as fundamental change whilst the “evolutionary” narrative accepts them as natural development. We argue that neither the revolutionary nor the evolutionary narrative adequately characterizes the reforms undertaken in health care because neither takes sufficient account of the broader setting in which reform has occurred. In seeking to examine and explain the jurisdictions' apparent drive to the middle, we propose a distinctive evolutionary narrative, that of “convergence,” which, as well as adopting a less parochial perspective on developments in health care policy and provision, also situates the reforms politically, constitutionally, and comparatively. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to (...) elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jürgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and (...) the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making. (shrink)

Despite increased calls for hospital ethics committees to serve as default decision-makers about life-sustaining treatment for unrepresented patients who lack decision-making capacity or a surrogate decision-maker and whose wishes regarding medical care are not known, little is known about how committees currently function in these cases. This was a retrospective cohort study of all ethics committee consultations involving decision-making about LST for unrepresented patients at a large academic hospital from 2007 to 2013. There were 310 ethics committee consultations, twenty-five of (...) which involved unrepresented patients. In thirteen cases, the ethics consultants evaluated a possible substitute decision-maker identified by social workers and/or case managers. In the remaining cases, the ethics consultants worked with the medical team to contact previous healthcare professionals to provide substituted judgement, found prior advance care planning documents, or identified the patient’s best interest as the decision-making standard. In the majority of cases, the final decision was to limit or withdraw LST or to change code status to Do Not Resuscitate/Do Not Intubate. Substitute decision-makers who had been evaluated through the ethics consultation process and who made the final decision alone were more likely to continue LST than cases in which physicians made the final decision. In our centre, the primary role of ethics consultants in decision-making for unrepresented patients is to identify appropriate decision-making standards. In the absence of other data suggesting that ethics committees, as currently constituted, are ready to serve as substitute decision-makers for unrepresented patients, caution is necessary before designating these committees as default decision-makers. (shrink)

One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by (...) a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia. (shrink)

This article discusses the role of moral argument in the Constitutional case law of the Irish courts. It looks at the debate on the constitutional morality of sexuality in four major cases: a 1973 case protecting the right to use contraceptives; a 1984 case which upholds discrimination against gay men; a 1987 case limiting access to abortion information; and a 1992 case which finds a limited right to abortion in the Constitution. These cases show the role of the (...) courts in contributing to a debate on political morality, both proposing new visions of political morality, and elaborating on the requirements of the current one. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good (...) man’s virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

Purpose: The primary objective of this study was to determine the role of church in state and public affairs during the Kibaki Era, 2002-2013Methodology: The methodology employed in this study was qualitative in nature. The study relied mainly on the analysis of an existing dataset from secondary sources. The data was gathered from technical reports, scholarly journals, reference books, past sermons, church publications, official and unofficial doctrine, theologies and from the Kenya National Archives in Nairobi. Other sources of data (...) collection for the study included official statistics collected by government and the various agencies, bureaus and departments. The target population for this study was the mainland churches in Kenya and the role these churches played in state and public affairs in Kenya between 2002 and 2007.Results: The Kibaki era has been characterized by many an events that have attracted by far and wide the attention of the clergy. In 2005, the most significant development of the 2005 constitutional referendum is not the defeat of the draft, but the emergence of strains and tensions not just between Christians and Muslims, but also between church and state. Another significant development was the fact that the mainline clergy were increasingly viewed as partisan and divided along ethnic lines and serving narrow political interest depending on the ethnic group to which its leaders belonged. The prophetic role and voice of the church to act as the conscience of society was lost, and the church did nothing to evaluate its own role even after the people voted to soundly reject the draft constitution.Unique contribution to Theory, Practice and Policy: The study recommended that the government should put in place laws that would involve the church in government matters. This can be done by introducing motions into parliament that advocate for the direct involvement of the church. This would involve laws which ensure that a portion of all members sitting in any committee represents the church. This can also be done by the introduction of electoral posts for church representatives just as there are positions for women representatives. The study also recommends that amendments be made to the constitution to make a legal requirement that one of the nominated MPs must be from the church. (shrink)

In this essay I will attempt to explain the relation between the rule of law and the economic development. First I will describe the rule of law and its role through the years. Then, I will continue with the connection between economic development and the rule of law. I will try to clarify Macedonia’s legal framework and emphasize the constitution and its role regarding the rule of law and economic development. Latter, I will focus on the EU’s report (...) on our economy in our journey towards the union. And finally I will give something to think about for future researchers. (shrink)

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs (...) of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights. (shrink)

The article discusses the certain features of the constitutional doctrine of human rights developed by the Constitutional Court of Lithuania which were influenced by the jurisprudence of the European Court of Human Rights, the role of the European Convention on Human Rights as a legal source in the system of sources of constitutional law. The intersection of the jurisprudences, which came into being due to different assessments of the legal regulation in cases where the same legal act was recognized (...) by the Constitutional Court being in compliance with the Constitution and the European Court of Human Rights recognized that the application of the said act was a cause of the violation of a certain person’s rights protected by the Convention (or vice versa) is one of the most important questions and raises many theoretical and practical problems. Different assessment of the legal acts made by the European Court of Human Rights with regard to their compliance with the Conventionshould not be regarded as such an essential circumstance which could lead to possible repeated review of such legal act at the Constitutional Court, such intersection of the jurisprudences, should be solved by ordinary courts while following the doctrine that in cases where legal acts contain the legal regulation which competes with that established in the international treaty, the international treaty should be applied. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation (...) of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

Identity and democracy and, more particularly, national identity and deliberative democracy account for a controversial relationship. However, from a classical deliberative democratic point of view, the controversy over who is the ‘we’ that needs to stand together in contemporary complex societies settled with the constitution of modern states. In this sense, the main contribution of this paper is twofold. On the one hand, I rebut the analytical appropriateness and conceptual coherence of Habermas’ discursive approach to democracy for the case of (...) plurinational societies in contemporary constitutional democracies. A discussion of a test case – Catalonia – demonstrates that this inadequacy renders incoherent the deliberative model regarding one of its most fundamental premises: the equal weight of the principles of law and the principle of democracy. On the other hand, I sustain that the challenge is not about identity but democracy, and more particularly, about the role deliberative democracy is called to play when controversy challenges whether the people of a state do conform to a single people or not. More concretely, I explore the opportunities offered by the systemic turn to sustain a more realistic approach to deliberative democracy regarding its capacity to steer society towards integration in the context of the system of public deliberation. (shrink)

Plato was the first author to use the term mûthos (myth) in our modern sense.1 He described the role of myth in Athens, in order to contrast it with an argumentative philosophical discourse aimed at the truth. Even so, he had recourse to this unverifiable story not only in a practical role, in order to persuade the citizen to obey moral norms and political laws, but also in a theoretical context, evoking premises from which philosophical discourse could develop, (...) and picturing realities such as the soul, that could not be grasped by either the senses or the intellect. With the disappearance of the city-state and the constitution of Kingdoms and Empires, the social and political aspects of myth tended to disappear in the Mediterranean world, allowing the soul to take “centre-stage.” While theogony, cosmogony, and anthropogony persisted, they did so only to provide a framework for a vast drama—that of the salvation of the human soul—as described in the Chaldaean Oracles and the treatises of the Sethian Gnostics. (shrink)

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? -/- This open access book traces the promise and paradox of the American rule of law in three interwoven ways. -/- It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers (...) to see the rule of law ambitions its foundational institutions express? -/- It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. -/- Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals. (shrink)

One of the most visible symbols of the debate over human rights and national security in the context of the U.S. "War on Terrorism" has been the detainment of Taliban and Al Qaeda fighters at the U.S. naval base in Guantanamo Bay, Cuba, following the U.S. war in Afghanistan. The controversy concerning the fate of the nearly 600 prisoners demonstrates the emergence of new modes of democratic deliberation over how to strike the balance between rights and security. These new modes (...) of deliberation involve nongovernmental organizations and individuals who function as norm entrepreneurs, by mobilizing public opinion through transnational networks of opinion-makers and policymakers. Transnational networks of norm entrepreneurs have emerged where traditional avenues for foreign policymaking in the U.S. have failed to create a space for meaningful consideration of human rights in the rights/security balance. These traditional avenues are envisioned in the Constitution, which gives the President authority regarding foreign affairs, bounded by checks provided to Congress and the courts. While the goal of the constitutional process is to bring these institutional players into a dialogue, Congress and the judiciary have failed to engage the President in a conversation regarding the balance between human rights and national security. In the absence of initiatives by the government, nongovernmental actors have used communication structures within transnational networks to promote what this Article calls a dialogic approach to enforcement of human rights law. (shrink)

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

This paper presents in outline Luigi Ferrajoli’s axiomatic and general theory of law, as developed in his lifelong work Principia Iuris . The first section focuses on the three main aspects of the theory: the methodological, the theoretical and the pragmatic, which respectively represent the theory’s syntax, semantics and its pragmatics. Ferrajoli identifies three deontic gaps of norms: firstly, the one between their validity and efficacy ; secondly, the one between their justice and validity ; and finally, and most importantly, (...) the one between validity and existence (i.e. normative force). The presence of such gaps is, according to Ferrajoli, the extraordinary innovation that entrenched constitutions have brought into modern legal systems, by establishing norms that are superior to statutes and case law. In this sense, all normative phenomena (except for the constitution itself) can be conceived both as norms and as facts. In the second section the role of juridical science is briefly discussed. (shrink)

Identity and democracy and, more particularly, national identity and deliberative democracy account for a controversial relationship. However, from a classical deliberative democratic point of view, the controversy over who is the ‘we’ that needs to stand together in contemporary complex societies settled with the constitution of modern states. In this sense, the main contribution of this paper is twofold. On the one hand, I rebut the analytical appropriateness and conceptual coherence of Habermas’ discursive approach to democracy for the case of (...) plurinational societies in contemporary constitutional democracies. A discussion of a test case – Catalonia – demonstrates that this inadequacy renders incoherent the deliberative model regarding one of its most fundamental premises: the equal weight of the principles of law and the principle of democracy. On the other hand, I sustain that the challenge is not about identity but democracy, and more particularly, about the role deliberative democracy is called to play when controversy challenges whether the people of a state do conform to a single people or not. More concretely, I explore the opportunities offered by the systemic turn to sustain a more realistic approach to deliberative democracy regarding its capacity to steer society towards integration in the context of the system of public deliberation. (shrink)

Among the most surprising claims in The Methods of Ethics is Sidgwick’s assertion that his key ethical axioms are corroborated by Kant. This article analyses Sidgwick’s claim that his axioms of justice and benevolence closely correspond to particular features in Kant. I shall argue that his claim of agreement with Kant was a serious overstatement. In particular, the restrictions which Sidgwick places on his acceptance of Kant’s universal law formula of the categorical imperative (FUL) seem to call into question whether (...) the alleged convergence with the axiom of justice has a solid basis. Further, Sidgwick seemed unaware of a crucial aspect of Kant’s conception of the humanity formula that constitutes a substantial divide between their views on benevolence. The upshot is that the divide between Kantian and Sidgwickian ethics appears deeper than Sidgwick seemed to realize. This analysis is confirmed by Sidgwick’s famous worries regarding freedom and the existence of God in Kant’s work. (shrink)

This article analyses feminist discourses on the criminalisation of violence against women in Ecuador, after the enactment of a “post-neoliberal” constitution. It responds to arguments in feminist legal theory, which affirm that penal expansion thrives through neoliberal globalisation, and that certain feminists have sponsored this carceral-neoliberal alliance, over and above redistributive concerns. However, in Ecuador, many feminists who participated in a recent criminalisation process also endorsed the post-neoliberal government’s social redistribution programme. Ecuadorian feminism therefore complicates current discussions on carceral and (...) governance feminism, which link penal expansion with neoliberalism and an absence of redistributive concerns. Ecuadorian left-leaning feminists use rights-based frameworks to reconcile penal interventions with potential abuses of coercive power. This allows them to regard criminal justice as minimally problematic within the redistributive agenda they endorse. At the same time, the penal approach of Ecuadorian feminists runs the danger of marginalising legally pluralistic approaches to justice. (shrink)

The rule of law and the law of nature -- The rule of law in Athenian democracy and Plato's Laws -- Protagoras on democracy and the rule of law -- Sophistic criticisms of the rule of law -- What make a law good? -- Plato's Socrates and the law codes of Athens -- The role of law in the classification of democratic constitutions in Aristotle, Pol. IV.

Against common misconceptions of Kant as a philosopher who neglects the emotional aspects of moral life, I show that he actually considers our emotional dispositions to be valuable tools for perfecting ourselves morally. ;I show not only that it is incumbent on us to cultivate morally beneficial emotions, but also how we can do it. Building on Kant's vague hints about what the process involves, I argue that cultivating a given feeling requires, above all, sharpening one's judgment about it, one's (...) sensitivity to its nature and to the shape it takes in one's own character in order to make responsible decisions about whether to act on the feeling and when one does choose to act on it, to express it in a way which harmonizes with one's sense of moral integrity. ;I begin with an argument showing that on Kant's mature moral theory, it is our duty to cultivate feelings which help us form a virtuous disposition. I then discuss particular feelings which are especially important in this regard. I begin with the feeling of respect for the moral law and show that it constitutes the motive of duty. Kant's "pure" moral motive--the motive of duty--is thus actually a feeling which is grounded in a rational grasp of the moral law. I then consider feelings associated with our duties toward ourselves and with our duties toward others and raise the question of how cultivated feelings figure in the virtuous character and also in relation to good willing and to morally worthy action. I show that certain "moral" feelings can become part of the motive of duty itself and so can serve as motives to morally worthy action. (shrink)

The article discusses the relation between political office and the rule of law in Plato’s dialogue Statesman. Taking its starting-point from an observation about the Statesman’s peculiar approach to constitutional analysis, the article argues that what Plato is concerned to show is how the reconceptualisation of the role of law in government proposed in that dialogue has important implications for what we take the role of the institution of office-holding to be. While Greek political tradition held the main (...) aim of archē to be the formal circumscription and control of official power within a constitutional order, Plato insists that it should primarily be understood as ensuring that the exercise of political power approximates, by means of law, the ideal rule by a political expert. The article ends by pointing out how this reading complements another recent discussion of office-holding in the Statesman. (shrink)

This book looks critically at some of the underlying assumptions which shape our current understanding of the role and purpose of law and society. It focuses on adjudication as a social practice and as a set of governmental techniques. From this vantage point, it explores how the relationship between law, government and society has changed in the course of history in significant ways. At the centre of the argument is the elaboration of the notion of `adjudicative government'. From this (...) perspective it is argued that the relationship between law and society must be conceived in a different way in the era of economics, sociology and statistics. The impact of these disciplines both constitutes `modernity' and unfolds a different role for law. The author argues that the traditional vision of the role of law, rooted in a complex set of hierarchical assumptions, is no longer adequate. (shrink)

This paper seeks to elucidate the role played by the common good in John Finnis's arguments for a generic and presumptive moral obligation to obey the law.1 Finnis's appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis's account of the relationship between (...) basic goods, the common good, and the authority of law. Section II demonstrates how Finnis's emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz's objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Raz's critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis's work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robustaccount of the common good. (shrink)

In 1993 the Law Lords upheld the original conviction of five men under the 1861 Offences Against the Person Act for participating in sado-masochistic practices. Although the five men were fully consenting adults, the Law Lords held that consent did not constitute a defence to acts of violence within a sado-masochistic context. This paper examines the judgements in this case and argues that sado-masochistic practices are no different from the known exceptions cited by the court to the idea that consent (...) is no defence to violence (sport, parental chastisement and surgery). It also argues that if we can make sense of rape as a non-consensual, violent act, expressed through sex, then we can make sense of sado-masochism as a consensual sexual act, expressed through violence. (shrink)

Epicurus holds, in _Key Doctrine_ 31, that what is just according to nature is a _súmbolon_ or sign of the interest there is in neither harming one another nor being harmed. Certain readings of this maxim equivocate this legal sign with other signs found in nature, thereby failing to give sufficient weight to the role of reciprocity in its production. Other readings simply import a legal sense from outside of Epicurean doctrine, thereby failing to explain what makes Epicurean _súmbola_ (...) legal. A final set of readings attempt to find a legal rule as a kind of innate concept or Kantian ‘scheme’. This article identifies new sources for understanding _súmbolon_, drawn principally but not exclusively from Aristotle’s _Eudemian Ethics_. This article offers an original argument that Epicurus adopts Aristotle’s’ image of the tally stick (_symbolon_) as a meeting of often divergent interests which constitutes something new and particularly valuable to the Epicurean: friendship. A theoretical argument is also advanced to support this reading which claims that one person’s reflection on a ‘divine image’ of the end (_telos_) is insufficient to constitute a _súmbolon_; rather real (as opposed to abstract or ideal) individual interests are filtered via the mechanism of the tally, that is via the meeting of two given individuals who together generate a sign (_symbolon_) of reciprocal interest in neither harming nor being harmed. (shrink)