Challenging the fashionable belief that the Constitution should be interpreted in relation to the times, the distinguished contributors to Our Peculiar Security argue that the Constitution has a dual character. On the one hand it is law, in a binding and judicially enforceable sense. On the other hand, it is a decidedly political document.

Probably written by a student of Aristotle, The Athenian Constitution is both a history and an analysis of Athens' political machinery between the seventh and fourth centuries BC, which stands as a model of democracy at a time when city-states lived under differing kinds of government. The writer recounts the major reforms of Solon, the rule of the tyrant Pisistratus and his sons, the emergence of the democracy in which power was shared by all free male citizens, and (...) the leadership of Pericles and the demagogues who followed him. He goes on to examine the city's administration in his own time - the council, the officials and the judicial system. For its information on Athens' development and how the democracy worked, The Athenian Constitution is an invaluable source of knowledge about the Athenian city-state. For more than seventy years, Penguin has been the leading publisher of classic literature in the English-speaking world. With more than 1,700 titles, Penguin Classics represents a global bookshelf of the best works throughout history and across genres and disciplines. Readers trust the series to provide authoritative texts enhanced by introductions and notes by distinguished scholars and contemporary authors, as well as up-to-date translations by award-winning translators. (shrink)

The existence of unwritten constitutions, such as that of the UK, strikes some as puzzling. However the existence of unwritten constitutions turns out to be easier to explain than the existence of written constitutions, such as that of the US. In this paper I explore, and attempt to answer, some tricky conceptual questions thrown up by written constitutions.

This is a new Wittgensteinian account of the American Constitution that provides a fresh perspective on how judges can follow a legal document written in flexible language. The book shows why originalism is incompatible with the American legal system and challenges the views of Ronald Dworkin and numerous law professors.

This is a new Wittgensteinian account of the American Constitution that provides a fresh perspective on how judges can follow a legal document written in flexible language. The book shows why originalism is incompatible with the American legal system and challenges the views of Ronald Dworkin and numerous law professors.

In this article the author analyzes the first written constitutions adopted at the end of the eighteenth century (the Constitution of the United States of 1787, the Constitution of Polish – Lithuanian State and the Constitution of France of 1791). These constitutional acts mark the beginning of the era of constitutionalism. These are the constitutions of the first phase (‘wave’) of constitutional development, which laid the foundations for the further establishment of constitutionalism in the world. The (...) history of the first modern constitutions confirms that the nations adopt constitutions in order to protect individuals from possible abuses of state power. The essence of constitutional regulation is the restriction of this power. The three countries differ in many ways, but all had certain tradition of the restriction of powers. The first modern constitutions established the separation of powers and protected classical individual rights. They have become an example for the authors of later constitutions. These constitutions propose legal standards for constitutional development. Each of these constitutions is an original system of principles and norms. (shrink)

John Rawls proposed, as what he called “the liberal principle of legitimacy,” that coercive exercises of political power can be justified to free and equal dissenters when “in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse.” Does “unwritten constitution” there refer to norms of constitutional import, but that subsist only as custom, not as law? To norms that subsist as common law but not as code law? (...) To empirical regularities of political practice, as opposed to normative rules and standards? Which interpretation is best? (shrink)

Written by the world's best-known political and legal theorist, Freedom's Law: The Moral Reading of the American Constitution is a collection of essays that discuss almost all of the great constitutional issues of the last two decades, including abortion, euthanasia, capital punishment, homosexuality, pornography, and free speech. Professor Dworkin offers a consistently liberal view of the Constitution and argues that fidelity to it and to law demands that judges make moral judgments. He proposes that we all interpret (...) the abstract language of the Constitution by reference to moral principles about political decency and justice. His `moral reading therefore brings political morality into the heart of constitutional law. The various chapters of this book were originally published separately and are now drawn together to provide the reader with a rich, full-length treatment of Dworkin's general theory of law. (shrink)

The II. constitutional period is a period of renewal in many areas. Political, social and educational changes also had influences in the field of religious education. One of the examples of these changes is the ʻAmelī I҆lmiḥal textbook written by Halim Sabit (DOD. 1946) in five volumes for both teachers and student. This study particularly aims to assess this textbook in terms of religious education. Accordingly, the following questions are addressed: “What are the topics covered in the ilmihal books (...) written for students and teachers? Is the content of the subjects taught appropriate for the religious education? Which methods, techniques, and essential matters are discussed in the ilmihal books for teachers? As having first grade elementary school textbooks for both teachers and students, the research is made just based on these books. Data were collected through the examination of the document, and the texts in Ottoman Turkish were transcribed into Turkish. Content analysis method was used in the analysis of the data. By examining both books, this study shows that belief, worship, and social issues were taught, and prayers and sūras were addressed as need to be memorized knowledge in the book. The books included inappropriate contents for first grade children regarding the belief issues such as fear of Allah, hell, and the hereafter. Summary: Education I҅lmiḥal, occupies an important place in the history of Islamic religious education. According to the religion of both adults and children to learn the principles of faith and worship, it is aimed to shape the daily life. In this context, for example, during the Ottoman period, In the period of II. Mahmut, boys were required to attend the primary school. Thus, it was ensured that children could learn I҅lmiḥal and Islamic sharia properly. Children are taught alif ba for Qurʾān readings in primary schools, as simple as required by religious duties, writing skills have been acquired and the four processing rules are memorized. The II. constitutional period is a period of renewal in many areas. Extreme innovative thinking is also reflected in education. Especially after the Balkan wars, the idea that the collapsing state would be saved through education was dominant. For the first time, a higher education institution for girls and a kindergarten for young children were opened. By recognizing the importance of pedagogy knowledge in teaching, the students have switched to a system where they can search for observation and experiment. Innovations in educational methods have started to be seen. It was seriously opposed to memorization, and the question and answer was seen as old methods. Instead, it was proposed to use sightseeing observation and discovery. Political, social and educational changes are also reflected in the field of religious education. As a reflection of the newly introduced methods, there have been changes in the ʻAmelī I҆lmiḥal books prepared for children. One of the examples of this is the ʻAmelī ʻIlmiḥal textbook, which was written by Halim Sabit in five volumes. This ʻAmelī I҆lmiḥal was prepared in 5 volumes for teachers and students.The main purpose of this study is to evaluate ʻAmelī I҆lmiḥal textbook in terms of religious education This study particularly aims to assess this textbook in terms of reigious education. Accordingly, the following questions are addressed: “What are the topics covered in the ilmihal books written for students and teachers? Is the content of the subjects taught appropriate for the religious education? Which methods, techniques, and essential matters are discussed in the ilmihal books for teachers? As having first grade elementary school textbooks for both teachers and students, the research is made just based on these books. Data were collected through the examination of the document, and the texts in Ottoman Turkish were transcribed into Turkish. The textbook prepared for the students of the first year consists of 21 boards/sheets. The sentences are quite self and short. The contents of the board/sheet are well suited to be discussed and explained. There are no headlines on the boards/sheets. The language of text is Ottoman. It is possible to express the topics covered in the book under the following themes:Prayer and Sūras: Basmala, Kalima Tawḥīd, Kalima Shahāda, Fātiḥa, Subḥana Rabbiyal Aʿala, Subhana rabbiyal ʿAẓim, As-salāmu ʿalaykum va Raḥmatullah, Taḥiyyat, Salawat Sharif, Iḥlas, Kawthar, Subḥanaka Prayer, Qunut Prayers.Faith Issues: Allāh, the fear of Allāh, thanks to Allāh, the Qurʾān, Prophets, Prophet Muḥammad, The Hereafter, Heaven Hell, Angels.ʿIbādat Issues: Zakāt, Ablution, Prayer, Adhān, worship in General (Salāt, Ṣawm, Zakāt, Ḥajj)Social Issues: Friendship, affection for minors, affection for parents, Muslims are Brother, human love, respect for the elderly, respect for scholars.The textbook prepared for the teachers of the first year; consists of 21 pages, 69 pages and Ottoman. As the students do not include the topics in the textbook, it is appropriate to mention the names of the subjects in the textbook of the teacher:1. Subject: Memorization of the Word of Tawḥīd and word of Shahāda; 2. Topic: Raising ideas about the nation in children; 3. Subject: The adjectives of Allāh Almighty; 4. Subject: Love of Allāh; 5. Subject: Angels; 6. Subject: The Divine Books; 7. Subject: Prophets 8. Subject: The Hereafter; 9. Subject: Thank Allāh; 10. Subject: Repentance; 11. Topic: Protecting the language from bad words and threats; 12. Subject: Zakāt and charity; 13. Subject: Riya҆ and his goodness engrave; 14. Subject: Love to the prophet Muḥammad; 15. Subject: Parental love; 16. Subject: The brotherhood of Islam; Subject: Human love; 18. Subject: Ablution; Subject: Prayer; 20. Subject: Respect for the elderly; 21. Subject: Love to ʿulamāʾ; 22. Subject: Fear of Allāh.Halim Sabit also gave information about the methods and techniques to be used in the course and emphasized that the teacher told his / her not by looking at the book. He thought it would be only influence the student in this way. It is recommended to use the appropriate language for the child, to make an introduction in the subjects that will be learned in the new subjects and to draw attention to the subject and to teach the subject gradually. An important advice is the knowledge that the teacher wants him / her to do in the long-term memory in the present sense. The teacher must repeat a subject several times while teaching a subject, and should not immediately remind a student of forgotten subjects, talk to a student and has finded to him. A subject should not be passed without being thoroughly understood, and the classroom needs to be opened by the teacher in order not to forget the learned subjects. The first fifteen minutes of each course should be reserved for the repetition of previously learned subjects. Content analysis method was used in the analysis of the data. By examining both books, this study shows that belief, worship, and social issues were taught, and prayers and sūras were addressed as need to be memorized knowledge in the book. The books included inappropriate contents for first grade children regarding the belief issues such as fear of Allah, hell, and the hereafter. (shrink)

For years now the “Tübingen School”, represented above all by Konrad Gaiser and Hans Krämer, has had an important position, philologically and philosophically speaking, in current research on Plato. Its richly documented and constantly sophisticated “New Image of Plato” has resulted in a “para-digm-change” in Plato-interpretation as well as developing many of its aspects. It revises the basic attitude, which can be traced back to Schleiermacher, that Plato’s published dialogues are the one authentic source for any adequate and complete comprehension (...) of Platonic thought. By contrast it is especially Krämer and Gaiser who in numerous publications have energetically—and to great effect—drawn attention to what have since Aristotle come to be known as the “unwritten doctrines” and—taking up and modifying specific intentions of L. Robin, J. Stenzel, P. Wilpert and others—attempted to present them not only as a necessary supplement to the dialogues of Plato but even more as the systematically conceived centre, the “essential” in Platonic thought. This hermeneutical maxim has made it possible to reconstruct the basic features of a principles-theory for Plato which not only constitutes the systematic fundament of the Platonic dialogues but has become decisive for the basic conceptual and ontological structure of Neoplatonism and the philosophical systems which are connected with it materially and historically speaking. This has not meant suppressing the dialogues or demoting them to a “quarry” for the real-authentic: thanks to the principles-theory and the theorems connected with it, much which used to have to appear as a break, as something enigmatic or giving rise to discrepancy or aporia, can now be understood in a more thorough way, a way which is more intense in terms of argumentation and even more complex in terms of substance, without that which Plato considered it impossible to say being laid bare in a dull abstraction. Thomas Alexander Szlezák’s book testifies to the degree to which taking seriously those doctrines of Plato which he himself was very “serious” about can be productive—precisely for a new interpretation of the dialogues themselves. Amidst the virtually endless deluge of publications on Plato, a deluge which continues to swell to worrying proportions because of superfluous repetition, Szlezák’s book stands out very strikingly through the originality of its perspective, through the consistent realization of a basic idea which is highly instructive for the subject-matter at hand and through the thoroughness of its examination of competing and above all of opposing ideas which are—with greater or lesser reason—sceptical as regards the new Plato paradigm. Plato’s criticism—discussed in great detail by Szlezák—of the written communicating of philosophical thought becomes for him the key to the question as to the relationship of the oral pursuit of philosophy and the written presentation of the living dialogue. In accordance with Platonic writing-critique it is very much intrinsic to the philosophical logos that it can defend itself, can help itself, that it is in a position productively to continue the questions which are placed in it and which it is asked and in so doing refer to “timiotera”, to “all that is more valuable”, i.e. more extensively justified; not only must these “timiotera” not be explicitly stated, but they ought consciously to be held back, to be omitted and reserved for conversations with real friends who are capable of understanding a higher problem-level. Books, thus also dialogues published in written form, are not inherently able to do this: they “are constantly saying the same thing” and remind one at times of “the prolonged din of cymbals”. It follows from this that “he who has knowledge”, he who has knowledge of “timiotera” and has a sensible attitude towards them, “Plato” the author of philosophical book-dialogues, quite consciously and consistently omits the “problems which are especially to do with principle”. (shrink)

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

This ambitious book, written by a former student of Brian Tierney, has two goals. The first is to show that the recovery of Aristotle's Politics by Latin authors of the thirteenth century, especially Thomas Aquinas, resulted in the view that a mixed constitution of some sort is the best political regime. The second is to show that the ideas of Thomas and his disciples decisively influenced the views of the later Middle Ages and also the early republicans of (...) the Renaissance. Blythe thus wants to show that, in fact, medieval political theory was not characterized by a monolithic defense of absolute monarchy, but that it advocated a certain tempering or balancing of kingly rule through mixed constitutions; he also wants to show that those medieval views were much more influential in the early modern period than is usually thought. (shrink)

This monograph proposes a new way of studying the different forms of correlational inference, known in the Islamic jurisprudence as qiyās. According to the authors’ view, qiyās represents an innovative and sophisticated form of dialectical reasoning that not only provides new epistemological insights into legal argumentation in general but also furnishes a fine-grained pattern for parallel reasoning which can be deployed in a wide range of problem-solving contexts and does not seem to reduce to the standard forms of analogical reasoning (...) studied in contemporary philosophy of science and argumentation theory. After an overview of the emergence of qiyās and of the work of al-Shīrāzī penned by Soufi Youcef, the authors discuss al-Shīrāzī’s classification of correlational inferences of the occasioning factor. The second part of the volume deliberates on the system of correlational inferences by indication and resemblance. The third part develops the main theoretical background of the authors’ work, namely, the dialogical approach to Martin-Löf's Constructive Type Theory. The authors present this in a general form and independently of adaptations deployed in parts I and II. Part III also includes an appendix on the relevant notions of Constructive Type Theory, which has been extracted from an overview written by Ansten Klev. The book concludes with some brief remarks on contemporary approaches to analogy in Common and Civil Law and also to parallel reasoning in general. (shrink)

The purpose of this article is to outline a Kantian form of cosmopolitan law and the jurisprudence involved in the creation of a cosmopolitan constitution. This article explores and discusses Kantian cosmopolitan law, the idea of cosmopolitan right, the laws of hospitality and a Kantian approach to constitutional cosmopolitanism. In doing so, the article argues beyond Kant's discussion of constitutionalism, suggesting that a written constitution not only articulates many of Kant's cosmopolitan concerns, but also provides a reasonable (...) ethical foundation for an international society. Throughout this discussion, more particular aspects of Kant's legal conception of cosmopolitanism are examined, focusing on the possibility of an ethical cosmopolitan order based on jurisprudence, the necessity of a minimal consensus bound by constitutional provisions, and the corresponding legal obligations maintained by cosmopolitan law. (shrink)

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...) the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

The meaning of an expression resides not in the expression itself but in the experience of a person’s engagement with it. Meaning will be different not only to different people but also to the same person at different times. This book offers a way of attending to these different meanings. This way is a version of a trans-cultural activity that Richard Dawson calls attunement. The activity of attunement involves a movement of self-adjustment to a language, which a person transforms in (...) her or his use of it. Consciously performing the activity can enable understanding of the processes by which we constitute ourselves and others when we use a language. This directly connects to the topic justice, which is concerned with constituting appropriate selves and relations. Justice as Attunement engages with a wide range of texts – legal, literary, economic, philosophical, among others – and illuminates many useful and fascinating connections between them. There is a sense in which this book transcends disciplinary boundaries, for, in addition to students and scholars of law, literature, economics, and philosophy, it is written to a general reader who is interested in reflecting on and doing justice to their experiences in life. (shrink)

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)

The foundations of almost all Islamic sciences were laid in the first and second centuries of hijra. With the expansion of the Islamic world since the first century of hijra, the existence of a collective effort to transfer oral information into writing is notable. With the invitation of the prophet Muḥammad to Islam, an unprecedented increase in the culture of writing has been observed. Since the emergence of Islam, the world history scene has witnessed feverish writing activity. Especially in the (...) 2th/8th century, when the transition from oral culture to written culture accelerated, the founding texts of the science of language and religion, which were the carriers of these sciences related to aqāid-kalām, fiqh and uṣūl al-fiqh, tasawwuf, tafsir, and hadith, were compiled. Thanks to the founding texts containing the basic principles, the sciences have had the opportunity to develop by deepening. In this study, the contribution of Fiqh al-akbar, the founding text of the science of creed, to the science of kalam, which has made significant progress, will be discussed. In order for a text to be considered a founding and root, there must be a system that it establishes as the fruit of the tree. In this sense, Fiqh al-akbar established a moderate and defensible belief system. There is an organic link between the most concise faith texts and the most voluminous kalām books. While the creed texts, which consist of writing the goals at the end of the road, are the counting of the principles of faith, the texts of the kalām represent the walking of the road that leads to the goal of faith. Fiqh al-akbar, which marks the end of the road by finishing the roads to be walked, is the first and most important of the milestones of Islamic thought. In this study, the contribution of Fiqh al-akbar, the founding text of the science of aqāid, to the science of kalām will be discussed in the context of its belonging to its author. This text gave direction to Ahl al-Sunna theology, which would be written in the later stages of Islamic thought. In this study, the internal and external contexts of the founding text mentioned will be confirmed in terms of its relative acumen to Abū Ḥanīfa. In addition, the reason for the increase in the commentaries (Sharḥ) of Fiqh al-akbar during the Ottoman period will be shown. As a matter of fact, each annotation strengthens that it belongs to the author. In the annotations, there is no sentence stating that the text does not belong to Abū Ḥanīfa, on the contrary, the authenticity of the belonging is emphasized. Of course, not all the annotations of the relevant text will be included here, but mostly printed works will be emphasized. Theology, prophecy and the hereafter are discussed in Fiqh al-akbar. Here, how theological debates and problems related to the history of theological concepts are handled in the commentaries will be shown. In this article, within the framework of the method discussed as an example, a preparation will be made for further studies to evaluate the topics and concepts of prophecy and the hereafter in the context of commentaries. The point that should be emphasized here is that none of the scholars who commented on the text pointed out that the subject or concept was not discussed in the period of Abū Ḥanīfa. Moreover, from the early period until as late as the 7th/13th century, both theology and bibliography books did not have any doubts about the belonging of Fiqh al-akbar to Abū Ḥanīfa. Moreover, since the early period, both theological and bibliographical works did not have any doubts about Fiqh al-akbar’s belonging to Abū Ḥanīfa. (shrink)

The two books under review are both edited collections of essays by some of the most serious scholars internationally concerned with Marx’s method in Capital and related texts. Essays in both books share an emphasis on the ‘openness’ of Marx’s texts which were extensively revised both by Marx in his own lifetime and in the editing performed by Engels. The review engages critically with contributions in both volumes with respect to ‘value-form’ approaches to Marx’s method. It highlights some of the (...) differences of approach between the various contributors which are not always apparent in the texts themselves. (shrink)

The connection is made between the Royal Museum of Scotland and encyclopaedia, one of MacIntyre's three rival versions of moral enquiry. It is then asked how MacIntyre's other two methods, genealogy and tradition‐constituted enquiry, would function within a museum. It is proposed that the museum fulfils Haldane's criterion for tradition‐constituted enquiry in that it combines the immanence and open‐endedness of the methods of enquiry with transcendence in the objects of enquiry. The ethical judgments of the visitors constitute transcendent truth in (...) morality; hence one can see the museum as a site of Aristotelian enquiry. -/- To pursue this, the museum is explored as a site of Aristotelian study or theoria, and of MacIntyre's updated Aristotelianism. Therein we study the narratives written by historians and by individuals in a version of Aristotelian epagogê, or the sifting of the opinions of the many and the wise. This process may also enhance civic friendship and our exercise of practical wisdom towards disadvantaged groups. -/- Finally, MacIntyre's three rival versions of moral enquiry are returned to, and a museum characterised for each. All three are found to involve seriousness in the purposes of enquiry. Attention is drawn to MacIntyre's criticism of the interaction of bureaucracy and social science. It is proposed that such interaction may, in the case of the museum, dilute its seriousness as a site of enquiry. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is that (...) policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

America, and the postmodern West in particular, are experiencing a moral and intellectual crisis, according to E. Robert Statham, Jr. In The Constitution of Public Philosophy, Statham argues that Walter Lippman was correct in locating this crisis in the impoverished nature of public philosophy, and he attempts to constitute a role for reason in contemporary America. Statham suggests that the negative rule of law via a written constitution requires the positive rule of reason, or political philosophy, in (...) order to flourish. (shrink)

What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights (...) depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory. (shrink)

“There is no longer any world,” wrote the late philosopher Jean-Luc Nancy in 1993, and in this paper, the sense of this loss of world is analysed in terms of the modal notions of necessity, impossibility, and possibility. Modal differentiation can illuminate what constitutes the sense of actuality in a world, and hence, what it is that has been lost regarding this actuality of being in a world. Modal thinking does not rely on knowledge of the true state of affairs, (...) nor on having a constant grasp on necessity: modal thinking enables us to discern the actual by way of the relations between necessity, possibility, and impossibility. It is on the basis of these relations that a mode of rethinking actuality is suggested. In order to pursue this line of thought, I rely on Jacques Lacan’s understanding of modalities as writing operations, concentrating mostly on certain sections from his Seminar XXI, wherein he refers to Aristotelian modal logic and mentions the analytic philosopher Jaakko Hintikka. This ternary relation between Aristotle, Hintikka, and Lacan suggests a different outlook on the actual being-such of a world. The being-such of a world, its actuality, is understood as a contingency, a possibility emerging from the relation between what is declared necessary and what is impossible. The paper shows the implications of such a modal understanding of actuality, as demonstrated in Lacan’s view of human sexuality and sexual difference. (shrink)

In the summer of 2012, “meat” themed posters were hung throughout the city of Edmonton, Alberta. A textual analysis of three of the posters from this collection revels that the concept of sacrifice is more appropriate to describe “meat”-eating in Alberta than the concept of the absent referent. These posters celebrate the consumption of “meat” and unabashedly make evident the living animal origins of “meat.” I argue that that the prominence of the cattle industry relative to Alberta’s economy, and its (...) ties to the production and reproduction of dominant Albertan identity negate the requirement of the absent referent. The consumption of “beef” is largely considered an expression of loyalty to the region, and as a means to preserve Alberta’s heritage. The noncriminal putting to death of nonhuman animals can instead be understood as symbolic and literal sacrifices in the constitution of dominant Albertan identity and economy. As such, this paper makes an intervention into ecofeminist literature as well as vegan literature written for mainstream populations that employ the absent referent in the aim of countering “meat”-eating practices. (shrink)

In colonial states and settings, constitutional arrangements are often forged within contexts that serve to maintain structural racism against Indigenous people. In 2013 the New Zealand government initiated national conversations about the constitutional arrangements in Aotearoa. Māori leadership preceded this, initiating a comprehensive engagement process among Māori in 2010, which resulted in a report by Matike Mai Aotearoa which articulated a collective Māori vision of a written constitution congruent with te Tiriti o Waitangi by 2040.This conceptual article explores (...) the Matike Mai Aotearoa report on constitutional transformation as a novel means to address structural racism within the health system as a key domain within the constitutional sphere. Matike Mai suggests alternative conceptual structural formations through its focus on the kāwanatanga, the relational and the tino rangatiratanga sphere. This framework is informed by a range of Indigenous ethical values such as tikanga, belonging, and balance that can usefully inform the redesign of the health sector.We assert that constitutional transformation and decolonization are potentially powerful ethical sources of disruption to whiteness and structural racism. We argue that, to eliminate entrenched health disparities, change processes need to be informed by the Indigenous inspirations expressed in the Matike Mai report. (shrink)

This article considers the major constitutional reforms which have taken place in the United Kingdom during the period of government by the Labour Party, 1997-2010. Within the context of the UK’s unwritten constitution, the article first considers how ‘constitutional’ law can be identified when compared with a written constitution, such as that of the Republic of Lithuania. The article then analyses the major reforms which have taken place since 1997, the political reasons behind them, the processes of (...) reform and their impact on the constitution. The four areas examined—reform of the House of Lords; the enactment of the Human Rights Act 1998; devolution; and the changes to the judiciary in the Constitutional Reform Act 2005—have all had a significant impact on the way in which the UK is governed. The article argues that these are all welcome developments, but that in many cases they are incomplete. In the absence of the likelihood of a future written constitution for the UK, sustained efforts by future governments are needed by to ensure that the reforms fulfil their aim of modernizing the democratic system. (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.

To explain how constitutions shape and are shaped by women's lives, the contributors to this volume examine constitutional cases pertaining to women in twelve countries. Analyzing jurisprudence about reproductive, sexual, familial, socio-economic, and democratic rights, they focus constructively on women's claims to equality, asking who makes these claims, what constitutional rights inform them, how they have evolved, what arguments work in defending them, and how they relate to other national issues. Their findings reveal significant similarities in outcomes and in reasoning (...) about women's constitutional rights in these twelve countries, challenging the tradition of distinguishing constitutional jurisprudence depending on whether the country has a written or unwritten constitution, subscribes to civil or common law, is a federal or unitary state, limits constitutional adjudication to the public domain, accords international norms binding or subject to incorporation force, or relies on a specialized or general court to adjudicate constitutional matters. (shrink)

ExcerptCarl Schmitt's recently translated Constitutional Theory (Verfassungslehre), first published in 1928 at the end of a period of relative stability in Weimar Germany, is a strangely timely work—both with regard to the continued relevance of the themes and problems it discusses and with regard to the current state of scholarship about Weimar constitutionalism. But, first things first, as befits what was originally intended as a short review article: The translation is accurate, even though it was occasionally necessary to break down (...) Schmitt's legal Germanicisms into more manageable English syntax. The long introduction, jointly written by Jeffrey Seitzer and Christopher Thornhill,…. (shrink)

In “Mad Narratives: Self-Constitutions Through the Diagnostic Looking Glass,” by using narrative approaches to the self, I explore how the diagnosis of mental disorder shapes personal identities and influences flourishing. My particular focus is the diagnosis grounded on the criteria provided by the Diagnostic Statistical Manual of Mental Disorders (DSM). I develop two connected accounts pertaining to the self and mental disorder. I use the memoirs and personal stories written by the subjects with a DSM diagnosis as illustrations to (...) bolster my claims. First, expanding on the narrative approaches to the self, I explain how narratives about a subject shape her self-constitution. I elucidate how this process is generated by drawing on research in developmental psychology, cognitive science, and social psychology. Next, using this account as a springboard, I argue that the DSM diagnosis of mental disorder serves as a source of narrative, entering into the patients’ autobiographical and social narratives. This plays an important role in the diagnosed subjects’ self-understanding, self-constitution and flourishing. In this vein, how mental disorders are classified is not only a theoretical question about accurately taxonomizing the various experiences related to mental distress but also an ethical question about which ways of talking about mental disorders will allow subjects to respond effectively to their psychological distress, to flourish and to live autonomous and fulfilling lives. Finally, I suggest that the DSM-based narratives wield a double-edged sword when it comes to the subject’s flourishing: On the one hand, there are problems with some DSM-based narratives that stem from the DSM diagnostic schema and the culture of DSM diagnoses. These problems render these DSM-based narratives unbeneficial for flourishing as they constrain the range of adoptive social, cognitive and emotional responses the subjects can give to their mental disorders. On the other hand, there are grounds to believe that some DSM-based narratives help subjects to flourish. For instance, they provide certainty to subjects' otherwise puzzling symptoms and help them reach out to others with similar experiences. Understanding how the DSM-based narratives can both benefit and harm will help us address problems with psychiatric diagnoses and the dissemination of knowledge about mental disorders in popular culture. The project aims to convince both philosophers and psychiatrists that no plausible theory of the self can be developed without attending to the topic of mental disorder and that no theory of mental disorder can be complete without devising the tools provided by the philosophical approaches to the self as well as developmental and social psychology. It also calls for methodological alterations in mental health ethics research, arguing that a careful scrutiny of mental disorder memoirs can advance the ethical underpinnings to the practice of psychiatry. (shrink)

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty (...) as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent’. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions. (shrink)

This book is an examination of the natural law foundations of political institutions, including the American Constitution. Behind every political society are found arguments of reason that justify human life and society in the first place. In a real sense, Arkes spells out Aquinas's fundamental premise that the natural law is "what is reasonable." Behind any constitution lies the idea of logic itself, of reason, of contradiction, and of good sense. These principles of good order are not established (...) by any written document but are elaborated by it. (shrink)

This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim (...) a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary. (shrink)

Bringing a postcolonial perspective to UK constitutional debates and including a detailed and comparative engagement with the constitutions of Britain’s ex-colonies, this book is an original reflection upon the relationship between the written and the unwritten constitution. Can a nation have an unwritten constitution? While written constitutions both found and define modern nations, Britain is commonly regarded as one of the very few exceptions to this rule. Drawing on a range of theories concerning writing, law and (...) violence, _Constitutions _makes a theoretical intervention into conventional constitutional analyses by problematizing the notion of a ‘written constitution’ on which they are based. Situated within the frame of the former British empire, this book deconstructs the conventional opposition between the ‘margins’ and the ‘centre’, as well as between the ‘written’ and ‘unwritten’, by paying very close, detailed attention to the constitutional texts under consideration. Pryor argues that Britain’s ‘unwritten’ constitution and ‘immemorial’ common law only take on meaning in a relation of difference with the written constitutions of its former colonies. These texts, in turn, draw on this pre-literate origin in order to legitimize themselves. The ‘unwritten’ constitution of Britain can therefore be located and dislocated in postcolonial written constitutions. _Constitutions _is an excellent addition to the bookshelves of all students of the philosophy of law, political theory, constitutional and administrative law and jurisprudence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Books ReceivedThe Ambitions of Curiosity: Understanding the World in Ancient Greece and China. By G.E.R. Lloyd. Cambridge: Cambridge University Press, 2002. Pp. xvi + 175. Price not given.The Art of the Han Essay: Wang Fu's Ch'ien-Fu Lun. By Anne Behnke Kinney. Tempe: Center for Asian Studies, Arizona State University, 1990. Pp. xi + 154. Paper $10.00.The Autobiography of Jamgön Kongtrul: A Gem of Many Colors. By Jamgön Kongtrul Lodrön (...) Thayé and translated by Richard Barron (Chökyi Nyima). Ithaca, New York: Snow Lion Publications, 2003. Pp. xxii + 549. Price not given.Awesome Nightfall: The Life, Times, and Poetry of Saigyō. By William R. LaFleur. Boston: Wisdom Publications, 2003. Pp. xiii + 173. Paper $14.95.Becoming the Compassion Buddha: Tantric Mahamudra for Everyday Life. By Lama Thubten Yeshe, edited by Robina Courtin, and foreword by Geshe Lhundub Sopa. Boston: Wisdom Publications, 2003. Pp. xi + 194. Paper $14.95.Between Two Worlds East and West: An Autobiography. By J. N. Mohanty. New Delhi: Oxford University Press, 2002. Pp. ix + 134. Hardcover RS 525.00.The Chinese Face of Jesus Christ. Edited by Roman Malek, S.V.D. Sankt Augustin, Germany: Institut Monumenta Serica and China-Zentrum; and Nettetal, Germany: Steyler Verlag, 2002. Pp. 391. EUR 40.00.Chinese Medicine in Contemporary China: Plurality and Synthesis. By Volker Scheid. Durham and London: Duke University Press, 2002. Pp. xiv + 407. Hardcover $69.95. Paper $23.95.Confucian Feminist: Memoirs of Zeng Baosun (1893-1978). Translated and adapted by Thomas L. Kennedy. Philadelphia: American Philosophical Society, 2002. Pp. xxi + 170. Price not given.Consciousness Studies: Cross-Cultural Perspectives. By K. Ramakrishna Rao. Jefferson (North Carolina) and London: McFarland and Company, 2002. Pp. 367. Hardcover $65.00.Constituting Communities: Theravāda Buddhism and the Religious Cultures of South and Southeast Asia. Edited by John Clifford Holt, Jacob N. Kinnard, and Jonathan S. Walters. Albany: State University of New York Press, 2003. Pp. viii + 224. Hardcover $65.50. Paper $21.95.Developments in Indian Philosophy from Eighteenth Century Onwards: Classical and Western. By Daya Krishna. Volume X Part 1 of History of Science, Philosophy and Culture in Indian Civilization, edited by D. P. Chattopadhyaya. New [End Page 110] Delhi: Centre for Studies in Civilizations, 2001. Pp. xxiii + 417. Hardcover RS 1200.East and West: Identità e dialogo interculturale. By Giangiorgio Pasqualotto. Venezia: Marsilo Editori, 2003. Pp. 210. EUR 16.00.Effortless Action: Wu-wei as Conceptual Metaphor and Spiritual Ideal in Early China. By Edward Slingerland. New York: Oxford University Press, 2003. Pp. xii + 352. Price not given.Encountering Kā lī: In the Margins, at the Center, in the West. Edited by Rachel Fell McDermott and Jeffrey J. Kripal. Berkeley and Los Angeles: University of California Press, 2003. Pp. xviii + 321. Hardcover $55.00, £37.95. Paper $21.95, £15.95.Encyclopedia of Chinese Philosophy. Edited by Antonio S. Cua. New York and London: Routledge, 2003. Pp. xx + 1020. Hardcover $150.00.Essays on Indian Philosophy. By J. N. Mohanty and edited by Purushottama Bilimoria. New Delhi: Oxford University Press, 2002. Pp. xxxvii + 347. Paper RS 525.00.Faith, Humor, and Paradox. By Ignacio L. Götz. Westport, Connecticut: Praeger Publishers, 2002. Pp. 136. Hardcover $61.95.Four Illusions: Candrakīrti's Advice for Travelers on the Bodhisattva Path. Translated by Karen C. Lang. New York: Oxford University Press, 2003. Pp. xv + 240. Price not given.The Great Awakening: A Buddhist Social Theory. By David R. Loy. Boston: Wisdom Publications, 2003. Pp. 223. Paper $16.95.The Hidden History of The Tibetan Book of the Dead. By Bryan J. Cuevas. New York: Oxford University Press, 2003. Pp. xi + 328. Price not given.Huang Di nei jing su wen: Nature, Knowledge, Imagery in an Ancient Chinese Medical Text. By Paul U. Unschuld. Berkeley and Los Angeles: University of California Press, 2003. Pp. xii + 520. Hardcover $75.00, £52.00.In Dewey's Wake: Unfinished Work of Pragmatic Reconstruction. Edited by William J. Gavin. Albany: State University of New York Press, 2003. Pp. vi + 249. Hardcover $71.50. Paper $23.95.Knowledge and Freedom in Indian Philosophy. By Tara Chatterjea. Lanham, Maryland: Lexington Books, 2002. Pp. xvi + 159. Hardcover... (shrink)

In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the (...) United States’ Constitution is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional law is experienced as “natural” through the phenomenological experience of cinema. (shrink)

The United States Constitution was written for the purpose of establishing an effective but limited national government, a government that would be capable of dealing with national and international problems, but that would not be able to violate the traditional liberties of the people. Thus, the Constitution was, and is essentially a practical-juridical document. One should not expect to find there pronouncements about the nature of man, society, law, or the state, such as are often found in (...) many other national constitutions and international conventions. Nevertheless, several important characteristics of the Constitution—indeed its most important characteristics—are clear and admirable applications of the natural law. The principal drafters of the Constitution believed that God, in creating the universe, implanted in the nature of man a body of law to which all human beings are subject, which is superior to all manmade law, and which is knowable by human reason. Thus, the natural law of the American founders was traditional natural law as understood and expounded by classical and Medieval writers and carried forward in the English common law, and not the “Enlightenment” versions in vogue in eighteenth-century Europe. The classical-traditional natural law understanding of Madison, Hamilton, Wilson, and other leaders of the Philadelphia Convention are reflected in the three most important characteristics of the Constitution: the principle of limited government; the principle of subsidiarity (in both political and larger societal matters); and the practice of guaranteeing traditional rights, and only as against government. (shrink)