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

The human mind is extraordinary in its ability not merely to respond to events as they unfold but also to adapt its own operation in pursuit of its agenda. This ‘cognitive control’ can be achieved through simple interactions among sensorimotor processes, and through interactions in which one sensorimotor process represents a property of another in an implicit, unconscious way. So why does the human mind also represent properties of cognitive processes in an explicit way, enabling us to think and say (...) ‘I’m sure’ or ‘I’m doubtful’? We suggest that ‘system 2 metacognition’ is for supra-personal cognitive control. It allows metacognitive information to be broadcast, and thereby to coordinate the sensorimotor systems of two or more agents involved in a shared task. (shrink)

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she (...) should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offender's actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum) chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. In terms of understanding imprisonment (a physical deprivation of liberty) in the United States, it is better to refer to the Eighth Amendment of the Constitution than to the Due Process Clause. The Eighth Amendment, if read morally, could be invoked to strike down laws that carry prison sentences for wrongs that do not result in harm to others. This is because harming a person by subjecting her to the hard treatment that is involved in serving a jail term would be a disproportionate response unless the wrongdoer inflicted equivalent harm on others. I argue, that the Eighth Amendment should be interpreted in a way that accords with its overall moral aim or purpose. The Amendment's overall moral aim is to ensure that the state does not inflict unjust, oppressive, or disproportional punishments on its citizens. (shrink)

Characteristically religious ethical systems consist of much more than a morality: that is, much more than judgments marked by serious societal pressure and the appropriateness in offenders of a sense of moral guilt. Religious ethics characteristically demands also control and modification of thoughts and desires. This supra-moral element is prominent in Buddhism, where it flourishes primarily in the "Samgha". The ethics of Buddhism can be understood only by means of a concept of the supra-moral.

During the sixteenth century Galen's De constitutione artis medicae enjoyed a great success: in about fifty years it received four different Latin translations and three commentaries. Certainly this is also true of other medical classical texts, but such success is surprising for a treatise which did not have a wide circulation either in the Middle Ages or in the seventeenth century and later. In fact it is preserved in its entirety in only one Greek manuscript and in a Latin translation (...) by Niccolò of Reggio, who worked mainly for King Robert I in Naples in the first half of the fourteenth century. Furthermore, in his edition of 1679 René Chartier made a mistake, which the humanistic editors of the Greek Galen had avoided. The last part of the De const, art. med. itself enjoyed a considerable fortuna as an independent tract on prognosis in the Greek and Latin manuscript tradition. The editors of the Aldine and the Basle editions knew such an excerptum, at least in the manuscript Par. gr. 2165 of the sixteenth century, and rightly decided not to print it. Chartier found it in the manuscript Par. gr. 2269 of the fifteenth or sixteenth century, and published it in the wrong belief that it was a new treatise of Galen's . He was followed by Carl Gottlob Kühn in his edition of 1821, who printed the De const, art. med. in the first volume and the De praesagitura in vol. xix.497–511. The error was not publicly detected until Kalbfleisch in 1896. (shrink)

Nietzsche says "good Europeans" must not only cultivate a "supra-national" view, but also "supra-European" perspective to transcend their European biases and see beyond the horizon of Western culture. The volume takes up such conceptual frontier crossings and syntheses. Emphasizing Nietzsche's genealogy of European culture and his reflections upon the constitution of Europe in the broadest sense, its essays examine peoples and nations, values and arts, knowledge and religion. Nietzsche's apprehensions about the crises of nihilism and decadence and their (...) implications for Europe's future are investigated in this context. Concerning the crossing of notional frontiers, contributors examine Nietzsche's hoped-for dismantling of Europe's state borders, the overcoming of national prejudices and rivalries, and the propagation of a revitalizing "supra-European" perspective on the continent, its culture and future. They also illuminate lines of syntheses, notably the syncretism of the ancient Greeks and its possible example for the European culture to-be. Finally certain of Europe's current problems are considered via the critical apparatus furnished by Nietzsche's philosophy and the diagnostic tools it provides. (shrink)

In recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a “taking” of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including (...) patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US’s most important state and federal health care programs. (shrink)

We define the paraconsistent supra-logic Pσ by a type-shift from the booleans o of propositional logic Po to the supra-booleans σ of the propositional type logic P obtained as the propositional fragment of the transfinite type theory Q defined by Peter Andrews (North-Holland Studies in Logic 1965) as a classical foundation of mathematics. The supra-logic is in a sense a propositional logic only, but since there is an infinite number of supra-booleans and arithmetical operations are available (...) for this and other types, virtually anything can be specified. The supra-logic is a generalization of Lukasiewicz's three-valued logic, with the intermediate value duplicated many times and ordered such that none of the copies of this value imply other ones, but it differs from Lukasiewicz's many-valued logics as well as from logics based on bilattices. There are several automated theorem provers for classical higher order logic (finite type theory) and it should be possible to modify these to our needs. (shrink)

The primary function of the European Court of Human Rights is to ensure that administrative and judicial processes in member states effectively conform to pan‐European Convention standards (‘constitutional justice’) rather than seeking to provide every deserving applicant with a remedy for a Convention violation (‘individual justice’). But, in order to do so effectively some core elements of the Convention's constitution require more deliberate articulation and more consistent application. In seeking to show how this might be achieved, this article argues that (...) three primary constitutional principles—the judicial protection of Convention rights (the ‘rights’ principle), the democratic pursuit of the public interest (the ‘democracy’ principle), and the principle of priority to rights (the ‘priority’ principle), each exercised according to the rule of law—can be distinguished from a cluster of secondary principles which support them in a variety of ways. An analysis of the Convention's key provisions shows, in particular, how the ‘priority’ principle can, and should, operate to give the Court's decisions greater coherence and constitutional authority. (shrink)

The subject of this book is the social and political meaning of constitutional texts to the detriment of their legal concretization. Focusing on the discrepancy between the hypertrophically symbolic function of constitutions and their insufficient legal concretization, it offers a critical counterpoint to constitutional theory that treats constitutional texts as a panacea to solving political, legal, and social problems. In contrast to the premises of Niklas Luhmann's systems theory regarding law and constitution in world's society, symbolic constitutionalization is approached here (...) in both a comprehensive and far-reaching perspective. Chapter 1 sets out the debate about symbolic legislation. Chapter 2 explains the notion of symbolic constitutionalization as a problem embracing the whole legal system. Chapter 3 approaches the issue in terms of allopoiesis of law, characterizing it primarily as a problem in peripheral modernity and referring to the Brazilian experience. The final chapter discusses the tendency to a symbolic constitutionalization of world society in the scope of a paradoxical peripheralization of the centre. (shrink)

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined. This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate (...) requiring employers to purchase health insurance for their employees. There are no constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below. This paper also considers the likelihood of any change in the current judicial approach to these legal questions. (shrink)

If we accept both that human enhancement could produce beings with higher moral status than our own (i.e. supra-persons), and that this scenario may be detrimental to unenhanced persons, then there are still several ways that the creation of supra-persons could be defended. I will argue that some of these defences fail. Their justification for the permissibility or unlikelihood of harms to the unenhanced is weakened once we consider that those who enhance may be undermining their own individual (...) interests. Enhancements that are substantial enough to increase moral status may also be substantial enough to affect psychological continuity. Certain individual interests are sensitive to loses of psychological continuity. I will consider three scenarios: the creation of supra-persons within one generation, the enhancement of persons into supra-persons, and the generational replacement of persons by supra-persons. The arguments for the first scenario fail on intuitive grounds. A thorough consideration of individual interests undermines the arguments for the other two scenarios. I conclude that although the creation of drastically morally better persons may be desirable and likely to help realise most of what we currently value, this realisation is undermined by the fact that the beings enjoying this future scenario might not be our psychological continuants. (shrink)

Argues that any state that is constitutionally committed to the recognition of human rights ought to constitutionalise a right to an adequate environment. Rebuts the claim that constitutional provisions relating to the human right to an adequate environment should be made only in the form of a policy statement and not as a fundamental right. Rebuts the further claim that the right to an adequate environment should be placed with those rights of a second order – the ‘social rights’ – (...) rather than among the fundamental rights of a constitution. Problematises the distinction between fundamental and social rights, but also shows why the right to an adequate environment does not resemble a social right. (shrink)

Pretendemos analisar o conceito de substrato supra-sensível da humanidade presente na dialética da faculdade do juízo na terceira crítica. Kant entende a sociabilidade legal como a disposição de deixar-se guiar por princípios do direito, o homem como sociável (e não originariamente social) e o direito como condição de possibilidade da sociedade. Esse conceito aparece ligado, na terceira crítica, a um conceito de humanidade. Queremos investigar o conceito de humanidade no contexto estético examinando seu caráter suprasensível.

This paper explores how a regime recognizable as a Rawlsian property-owning democracy might be enshrined constitutionally in the context of the U.S. Five specific constitutional amendments are proposed: establishing an equal right to education, establishing a guaranteed social minimum, clarifying the legitimacy of regulating corporate political speech for the sake of political equality: establishing an individual right to a share of society’s productive wealth, and assuring communities of significant size the right to remain economically viable over time. The substance and (...) reasoning behind each proposal is discussed in length, and the paper also briefly discusses why a focus on constitutional amendments may be helpful both in clarifying how a property-owning democracy might be realized in practice and in establishing clear goals for social movements motivated by the aim of establishing a more equitable distribution of wealth, power, and opportunity in the United States. (shrink)

In this paper, we introduce and investigate a new class of sets and functions between topological space called neutrosophic semi-supra open set and neutrosophic semi-supra open continuous functions respectively.

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

Internal cross-references are frequent in Eckhart’s Latin works. In many cases it is easy to identify the passages he had in mind, but several quotations refer to works which are no longer extant or, more probably, to treatises the author intended to write but never actually wrote. This network of cross-indications constitutes a virtual internal memory that links the different parts of Eckhart’s work together in a coherent system. In the German works, the recurring reference to ideas and thoughts already (...) “uttered” seems to explicate the same function, particularly in the hypothesis that they refer to passages contained in a written collection of sermons. In this sense, it would seem that Eckhart’s typical formula “als ich mêr gesprochen hân” should not be translated as a generic “as I have often said”, but as a precise reference to a previous sermon in the collection and simulates orality in the homiletic literary style, in the same... (shrink)

The processing of time intervals in the sub- to supra-second range by the brain is critical for the interaction of primates with their surroundings in activities, such as foraging and hunting. For an accurate processing of time intervals by the brain, representation of physical time within neuronal circuits is necessary. I propose that time dimension of the physical surrounding is represented in the brain by different types of neuronal oscillators, generating spikes or spike bursts at regular intervals. The proposed (...) oscillators include the pacemaker neurons, tonic inputs, and synchronized excitation and inhibition of inter-connected neurons. Oscillators, which are built inside various circuits of brain, help to form modular clocks, processing time intervals or other temporal characteristics specific to functions of a circuit. Relative or absolute duration is represented within neuronal oscillators by “neural temporal unit,” defined as the interval between regularly occurring spikes or spike bursts. Oscillator output is processed to produce changes in activities of neurons, named frequency modulator neuron, wired within a separate module, represented by the rate of change in frequency, and frequency of activities, proposed to encode time intervals. Inbuilt oscillators are calibrated by (a) feedback processes, (b) input of time intervals resulting from rhythmic external sensory stimulation, and (c) synchronous effects of feedback processes and evoked sensory activity. A single active clock is proposed per circuit, which is calibrated by one or more mechanisms. Multiple calibration mechanisms, inbuilt oscillators, and the presence of modular connections prevent a complete loss of interval timing functions of the brain. (shrink)

In America today, public policy governing an increasing number of social issues is made through the judicial enforcement of constitutional rights. Cruzan raised the question whether policy regarding the withdrawal of medical care from incompetent patients is to be handled similarly. This essay argues that privacy-rights doctrine provides a poor basis for constructing public policy in this area. It suggests that the Court has been unable to articulate a convincing basis for privacy rights and that the basis the Court seems (...) to assume poorly fits many circumstances to which it is applied. The essay further contends that the Court has been unable to describe a persuasive method of analyzing the state interests that are at stake in privacy cases and to accommodate those interests in a reasonable way. The essay concludes that these are issues as to which policy is better formed through a political, not judicial, process. Keywords: constitutional rights, courts, fundamental right, personal right, public policy, rights CiteULike Connotea Del.icio.us What's this? (shrink)

Le De mundi caelestis terrestrisque constitutione liber, attribué à tort à Bède, est un texte curieux, qui, élaboré en milieu monastique au XIe ou XIIe siècle, présente peu de références scripturaires, mais renseigne sur la réception médiévale des textes scientifiques et philosophiques latins d'époque tardive.

In response to Germain argument that evolution by natural selection has a limited explanatory power in cancer, Lean and Plutynski have recently argued that many adaptations in cancer only make sense at the tumor level, and that cancer progression mirrors the major evolutionary transitions. While we agree that selection could potentially act at various levels of organization in cancers, we argue that tumor-level selection is unlikely to actually play a relevant role in our understanding of the somatic evolution of human (...) cancers. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)