Constitutions serve to legitimate the exercise of public power. Yet their scope is often subject to reasonable disagreement among citizens in a democracy. As Frank Michelman notes, this points to an understanding of democratic constitutions as a framework for contestation, rather than entrenched set of binding legal constraints. This understanding, however, arguably overlooks the difference between ordinary constitutional norms and those that protect the ‘democratic minimum core’. For the latter, there is far less scope for reasonable disagreement, and greater (...) prudential importance to conceptualizing constitutions as entrenched norms authorized strong-form judicial review. The essay thus explores the idea of a ‘tiered’ approach to constitutional design, which combines elements of strong and weak constitutional entrenchment, and judicial review. In doing so, it further considers the role that transnational norms or practices could play in helping delineate these different constitutional tiers. (shrink)

Among those who know Yehuda's work, the term “two-tier thinking” is usually associated with a problematic relativist position. But “two-tier thinking” is not a name for a philosophical argument; it is best understood, I think, as a term designating certain conditions of knowledge: universal, or modern, or perhaps only postmodern conditions, but in any case, they are generalizations derived from anthropological and psychological observations on matters of facts. This is how things actually work in the sphere of knowledge: Western intellectuals (...) and scientists tend to acknowledge that their truth claims and certainly their normative claims are incompatible with other claims that stem from other belief systems, frameworks of thought or genres of discourses, and there is no final, impartial instance of judgment to adjudicate between the incompatible claims and the conflicting systems. Lack of “final,” impartial judgment does not hinder people from taking their truth claims seriously and acting as realists within the world constituted by their particular belief systems — tier 1. But when they come to reflect upon it, as some of them do, sometimes, they acknowledge the context-dependence of this realism and the fact that there is no way to make good on its claim to universality; theirs, they know, is but one particular “belief system,” or “genre of discourse,” among many. (shrink)

James Madison is the thinker most responsible for laying the groundwork of the American commercial republic. But he did not anticipate that the propertied class on which he relied would become extraordinarily politically powerful at the same time as its interests narrowed. This and other flaws, argues Stephen L. Elkin, have undermined the delicately balanced system he constructed. In Reconstructing the Commercial Republic , Elkin critiques the Madisonian system, revealing which of its aspects have withstood the test of time and (...) which have not. The deficiencies Elkin points out provide the starting point for his own constitutional theory of the republic—a theory that, unlike Madison’s, lays out a substantive conception of the public interest that emphasizes the power of institutions to shape our political, economic, and civic lives. Elkin argues that his theory should guide us toward building a commercial republic that is rooted in a politics of the public interest and the self-interest of the middle class. He then recommends specific reforms to create this kind of republic, asserting that Americans today can still have the lives a commercial republic is intended to promote: lives with real opportunities for economic prosperity, republican political self-government, and individual liberty. (shrink)

In this article, I consider a curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with political resentment and anti-establishment sentiments—and how we may begin to address that challenge through creative constitutional designs. Specifically, I draw upon insights from comparative constitutionalism to discuss four main areas of constitutional law and theory that appear to hold some intellectual promise in this context: formal constitutional commitment at the national level to recognizing (...) the urban/rural divide and commitment to addressing it; creative electoral system designs that take into account the spatial dimension of politics; spatial pluralization based on concepts such as “mixed constitutions,” “community standards,” and “margin of appreciation”; and rethinking elements of equalization and fiscal federalism more generally. Taken together, the four directions I discuss here offer a repertoire of constitutional design possibilities that hold promise in mitigating the resurging rural/urban gulf. More generally, they serve as an invitation to constitutional thinkers to shake up the rather stagnant constitutional thought of spatial governance, and to think creatively about the ever-expanding urban/rural divide and its consequences for the theory and practice of 21st century constitutional democracy. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

We study a class of representation mechanisms, based on reports made by a random subset of agents, called representatives, in a collective choice problem with quasi-linear utilities. We do not assume the existence of a common prior probability describing the distribution of preference types. In addition, there is no benevolent planner. Decisions will be carried out by an individual who cannot be assumed impartial, a self-interested executive. These assumptions impose new constraints on Mechanism Design. A robust mechanism is defined (...) as maximizing expected welfare under a vague prior probability distribution, and over a set of mechanisms which is at the same time immune from opportunistic manipulations by the executive, and compatible with truthful revelation of preferences by representatives. Robust mechanisms are characterized and their existence is shown. Sampling Groves mechanisms are shown to be robust. (shrink)

Events in both Eastern Europe and the former USSR illustrate the intimate connection between economic and political processes. Those events also remind us that political and economic institutions are human creations, and that when those institutions are poorly designed, political-economic failure is a direct consequence. It is axiomatic, then, that the transition to stable and prosperous societies in those former Communist states requires careful attention to the design and implementation of democratic institutions.

While Specific Informed Consent has been the established standard for obtaining consent for medical research for many years, it does not appear suitable for large-scale biobank and health data research. Thus, alternative forms of consent have been suggested, based on a variety of ethical background assumptions. This article identifies five main ethical perspectives at stake. Even though Tiered Consent, Dynamic Consent and Meta Consent are designed to the demands of the self-determination perspective as well as the perspective of research (...) as a public good, they are still also criticized from both perspectives. In addition, criticisms based on concerns of justice, participation and democratic deliberation, and relational concerns have been levelled at each of the models. As all of these perspectives have valid points to make, the task at hand lies in balancing these ethical perspectives. What constitutes an adequate balancing depends on contextual factors. These factors include digital infrastructure and digital literacy, data safety regulation, good scientific and clinical practice, transparent debates on ethically relevant features of research, social inequalities, anti-discrimination laws and practices, trust in health care institutions and recognition of patient preferences, and consensus on unethical research. We argue that the role of context in determining acceptable models of consent puts the ethical importance of models of consent into perspective. Since altering contextual factors can help to live up to the ethical concerns at stake in debates about models of consent, opting for such a shift of focus comes without ethical loss. (shrink)

This book is written for anyone, anywhere sitting down to write a constitution. The book is designed to be educative for even those not engaged directly in constitutional design but who would like to come to a better understanding of the nature and problems of constitutionalism and its fundamental building blocks - especially popular sovereignty and the separation of powers. Rather than a 'how-to-do-it' book that explains what to do in the sense of where one should end up, (...) it instead explains where to begin - how to go about thinking about constitutions and constitutional design before sitting down to write anything. Still, it is possible, using the detailed indexes found in the book, to determine the level of popular sovereignty one has designed into a proposed constitution and how to balance it with an approximate, appropriate level of separation of powers to enhance long-term stability. (shrink)

The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely ignored in the debate so far: its potential for reducing the costs of widespread political ignorance. The argument of this paper is simple, but has potentially important implications: Constitutional federalism enables citizens to “vote with their feet,” and foot voters have much stronger incentives to make well-informed decisions than more conventional ballot (...) box voters. The informational advantage of foot voting over ballot box voting suggests that decentralized federalism can increase citizen welfare and democratic accountability relative to policymaking in a centralized unitary state.Ballot box voters have strong incentives to be “rationally ignorant” about the candidates and policies they vote on because the chance that any one vote will have a decisive impact on an electoral outcome is vanishingly small. For the same reason, they also have little or no incentive to make good use of the information they do possess. By contrast, “foot voters” choosing a jurisdiction in which to reside have much stronger incentives to acquire information and use it rationally; the decisions they make are individually decisive. (shrink)

Bike sharing, as an innovative travel mode featured by mobile internet and sharing, offers a new transport mode for short trips and has a huge positive impact on urban transportation and environmental protection. However, bike-sharing operators face some operational challenges, especially in sustainable development and profitability. Studies show that the customers’ willingness to pay is a key factor affecting bike-sharing companies’ operating conditions. Based on the theories of perceived value, this study conducts an empirical analysis of factors that affect bike-sharing (...) users’ willingness to pay for bike-sharing through measurement scales, user surveys, and structural equation models. We designed a five-point Likert-type scale containing 11 latent variables affecting willingness to pay and a total of 34 measurement items. We investigate bike-sharing users in China’s first and second-tier cities, with a total of 502 participants. The results show that perceived value, payment awareness, trust, and environmental awareness constitute key factors that directly affect bike-sharing users’ willingness to pay. And perceived usefulness, perceived ease-of-use, perceived cost, and perceived risk indirectly affect bike-sharing users’ willingness to pay. However, we found no significant effects of perceived entertainment on perceived value or word of mouth on willingness to pay. Our results are expected to provide theoretical and practical implications for bike-sharing programs. (shrink)

The transplant community has faced unprecedented challenges balancing risks of performing living donor transplants during the COVID-19 pandemic with harms of temporarily suspending these procedures. Decisions regarding postponement of living donation stem from its designation as an elective procedure, this despite that the Centers for Medicare and Medicaid Services categorise transplant procedures as tier 3b (high medical urgency—do not postpone). In times of severe resource constraints, health systems may be operating under crisis or contingency standards of care. In this manuscript, (...) the United Network for Organ Sharing Ethics Workgroup explores prioritisation of living donation where health systems operate under contingency standards of care and provide a framework with recommendations to the transplant community on how to approach living donation in these circumstances.To guide the transplant community in future decisions, this analysis suggests that: (1) living donor transplants represent an important option for individuals with end-stage liver and kidney disease and should not be suspended uniformly under contingency standards, (2) exposure risk to SARS-CoV-2 should be balanced with other risks, such as exposure risks at dialysis centres. Because many of these risks are not quantifiable, donors and recipients should be included in discussions on what constitutes acceptable risk, (3) transplant hospitals should strive to maintain a critical transplant workforce and avoid diverting expertise, which could negatively impact patient preparedness for transplant, (4) transplant hospitals should consider implementing protocols to ensure early detection of SARS-CoV-2 infections and discuss these measures with donors and recipients in a process of shared decision-making. (shrink)

We live in an era of constitution-making. New constitutions are appearing in historically unprecedented numbers, following regime change in some countries, or a commitment to modernization in others. No democratic constitution today can fail to recognize or provide for gender equality. Constitution-makers need to understand the gendered character of all constitutions, and to recognize the differential impact on women of constitutional provisions, even where these appear gender-neutral. This book confronts what needs to be considered in writing a constitution when (...) gender equity and agency are goals. It examines principles of constitutionalism, constitutional jurisprudence, and history. Its goal is to establish a framework for a 'gender audit' of both new and existing constitutions. It eschews a simple focus on rights and examines constitutional language, interpretation, structures and distribution of power, rules of citizenship, processes of representation, and the constitutional recognition of international and customary law. It discusses equality rights and reproductive rights as distinct issues for constitutional design. (shrink)

Though nominally exercised on behalf of private citizens, constitutional judicial review does perform an insurance function for politicians who expect to lose power in future elections. This paper discusses the various dimensions of institutional design of constitutional courts and argues that the extent and power of judicial review can be expected to increase relative to the degree of political uncertainty at the time of constitutional design. The paper then develops a simple empirical test of this (...) hypothesis using data from Eastern Europe, regressing measures for various aspects of court design on the strength of the largest party in the legislature. The paper shows that the design of constitutional courts reflects the interests of the dominant political parties and that independent and powerful courts are associated with situations of divided or deadlocked politics. (shrink)

The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large (...) and hard to measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements. (shrink)

The U.S. Constitution provides a framework for our laws, but what does it have to say about morality? Paul DeHart ferrets out that document’s implicit moral assumptions as he revisits the notion that constitutions are more than merely practical institutional arrangements. In _Uncovering the Constitution’s Moral Design_, he seeks to reveal, elaborate, and then evaluate the Constitution’s normative framework to determine whether it is philosophically sound—and whether it makes moral assumptions that correspond to reality. Rejecting the standard approach of the (...) intellectual historian, DeHart for the first time in constitutional theory applies the method of inference to the best explanation to ascertaining our Constitution’s moral meaning. He distinguishes the Constitution’s intention from the subjective intentions of the framers, teasing out presuppositions that the document makes about the nature of sovereignty, the common good, natural law, and natural rights. He then argues that the Constitution constrains popular sovereignty in a way that entails a real common good, transcendent of human willing and promotive of human well-being, but he points out that while the Constitution presupposes a real common good, it also implies a natural law that prescribes the common good. In critiquing previous attempts at describing and evaluating the Constitution’s normative framework, DeHart demonstrates that the Constitution’s moral framework corresponds largely to classical moral theory. He challenges the logical coherency of modern moral philosophy, normative positivism, and other theories that the Constitution has been argued to embody and offers a groundbreaking methodology that can be applied to uncovering the normative framework of other constitutions as well. This cogently argued study shows that the Constitution presupposes a natural law to which human law must conform, and it takes a major step in resolving current debates over the Constitution’s normative framework while remaining detached from the social issues that divide today’s political arena. _Uncovering the Constitution’s Moral Design_ is an original approach to the Constitution that marks a significant contribution to understanding the moral underpinnings of our form of government. (shrink)

Legal and political controversies persist about the performance of Kelsenian-type constitutional courts in democratic systems. One of the reasons is that the design of these institutions cannot easily accommodate simultaneous but conflicting demands for the strong protection of democracy and human rights, judicial independence and constitutional restraint. Challenging the dominant approach to the design of contemporary constitutional courts, this article proposes a new way to balance these three values through reforms to the structure of Kelsenian (...) institutions. The proposal seeks to institutionalize constitutional restraint, embedding it into courts’ internal functioning rules while, concurrently, emancipating constitutional judges from political control through a reform of appointment procedures. It is argued that the combined effects of these two reforms will produce constitutional courts that are more independent and able to protect the core elements of a democratic political community while, at the same time, increasing constitutional deference to the democratically elected legislator. (shrink)

Libertarian views on rights tend to rule out coercive redistribution for purposes of public health care guarantees, whereas liberal conceptions support coercive funding of potentially unlimited access to medical services in the name of medical needs. Taking the “priority of liberty” seriously as supreme political value, a plausible prudential argument can avoid these extremes by providing systematic reasons for both delivering and limiting publicly financed guarantees. Given impending demographic change and rapid technical progress in medicine, only a two-tier system with (...) explicitly limited public guarantees and optional privately financed health services seems acceptable. (shrink)

Constitutional political economy addresses four questions: the causal question: What explains the constitutional institutions we observe? the consequential question: What consequences do constitutional institutional have? the ideal question: What constitutional institutions does justice require? and the design question: What constitutional institutions are best for a polity given the constraints imposed by its current situation? Answers to the ideal and design questions require a theory of behavior that predicts how individuals will behave within (...) class='Hi'>constitutional institutions. Analysts usually assume that this theory of behavior corresponds to the explanatory theory developed to answer the second, consequential question. This essay argues that the assumption of rational self-interested behavior as the basis for a behavioral theory is not justified. (shrink)

After acquiring knowledge of the neuroscience of learning, memory, stress and emotions, teachers incorporate more cognitive engagement and student-centered practices into their lessons. However, the role understanding neuroscience plays in teachers own affective and motivational competencies has not yet been investigated. The goal of this study was to investigate how learning neuroscience effected teachers’ self-efficacy, beliefs in their ability to teach effectively, self-responsibility and other components of teacher motivation. A pilot training-of-trainers program was designed and delivered in Liberia combining basic (...) neuroscience with information on social, emotional, behavioral and mental health issues faced by students. Tier I of the professional development was a 2 weeks workshop led by a visiting neuroscientist. A subset of the 24 Tier I secondary science teachers formed a Leadership Team who adapted the content to the Liberian context and subsequently led additional workshops and follow-up sessions for the Tier II secondary science teachers. Science teachers in both tiers completed the affective-motivational scales from the internationally vetted, multiscale Innovative Teaching for Effective Learning Teacher Knowledge Survey from the OECD. Tier II teachers completed the survey in a pre-post-delayed post design. Tier I teachers completed the survey after the workshop with their attitudes at that time and separately with retrospective projections of their pre-workshop attitudes. Ten of the 92 Tier II teachers participated in structured interviews at follow-up. Statistical analysis of survey data demonstrated improved teacher self-efficacy, self-responsibility for student outcomes, and motivation to teach. Qualitatively, teachers expressed more confidence in their ability to motivate students, engage them through active learning, and manage the class through positive rather than negative reinforcement. Teachers’ own self-regulation improved as they made efforts to build supporting relationships with students. Together, these results demonstrated that (i) teacher affective-motivational attitudes can be altered with professional development, (ii) basic neuroscience, as knowledge of how students learn, can improve teacher competency, and (iii) a training-of-trainers model can be effective in a low and middle income country for disseminating neuroscience knowledge, increasing teachers’ knowledge of students’ social and emotional needs, and promoting educational improvement. (shrink)

One of the still unsolved problems in liberal anarchism is a definition of social constituency in positive terms. Partially, this had been solved by the advancements of liberal discourse ethics. These approaches, built on praxeology as a universal framework for social formation, are detached from the need of any previous or external authority or rule for the discursive partners. However, the relationship between action, personal identity, and liberty within the process of a community becoming solely generated from the praxeological a (...) priori remains largely disputed. In order to develop a testable constitutional model, this study revises how the “ontological turn” was introduced into liberal theories and redefines the concept of liberty. Liberty is usually understood as a moral goal or measurement for just actions, as the generative principle of all social existence - individual and interpersonal. For this purpose, the function of performative contradiction within the mechanism of interpersonal “encounter”, as part of the co-generative process of the individual becoming and social formation was explored through the production of a game-based narrative historiography grounded on 19th century life writings. This narrative historiography was developed in the context of Swiss history, with a “design-based” research approach, and resulted in a prototype for networked storytelling through which the transformative learning process could be visible and the negotiation of competing individual visions of the future could be re-enacted. (shrink)

The first part of this paper argues that if Craver’s ([2007a], [2007b]) popular mutual manipulability account (MM) of mechanistic constitution is embedded within Woodward’s ([2003]) interventionist theory of causation--for which it is explicitly designed--it either undermines the mechanistic research paradigm by entailing that there do not exist relationships of constitutive relevance or it gives rise to the unwanted consequence that constitution is a form of causation. The second part shows how Woodward’s theory can be adapted in such a way that (...) (MM) neither undermines the mechanistic paradigm nor reduces constitution to causation. However, it turns out that this modified theoretical embedding of (MM) makes it impossible to produce empirical evidence for constitutive relations. The paper ends by suggesting an additional criterion, the fat-handedness criterion, which, when combined with (MM), generates indirect empirical evidence for constitutive relevance. (shrink)

While "scientism" is typically regarded as a position about the exclusive epistemic authority of science held by a certain class of "cultured despisers" of "religion", we show that only on the assumption of this sort of view do purportedly "scientific" claims made by proponents of "intelligent design" appear to lend epistemic or apologetic support to claims affirmed about God and God's action in "creation" by Christians in confessing their "faith". On the other hand, the hermeneutical strategy that better describes (...) the practice and method of Christian theologians, from the inception of theological reflection in the Christian tradition, acknowledges the epistemic authority of the best available tests for truth in areas of human inquiry such as science and history. But this strategy does not assume that such tests, whose authority must be regarded as provisional, provides authority for the warrant of affirming claims constituting the confessed "faith". By attributing theological import to claims advanced by appeal to the best available tests for truth in the practice of science, supporters of ID not only confuse the epistemic authority of these tests with the normative authority of a faith community's confessional identity, but impute to scientific tests for truth a sort of authority that even goes beyond the "methodological naturalism" against which they counterpose their claims. (shrink)

This article analyses the constitutional crisis that was triggered in Chile by the events of 18 October 2019. The purpose is to explain the link between the constitution and social unrest and to explore whether a constituent process, such as the one designed in Chile, has the potential to address the unrest that produced it. The failed experience of Bachelet’s constituent process and the Latin American reform processes of the last thirty years show the threats and challenges of the (...) future Chilean constitution. (shrink)

En este trabajo propongo realizar un recorrido acerca de la utilización del concepto de mito en la obra de Carlos Astrada. En primer lugar analizaré sus obras tempranas en donde el filósofo encuentra en la Revolución Rusa la expresión del mito de la humanidad que ha emergido para llevar a ésta hacia su plenitud. Luego tomaré en consideración su obra El Mito Gaucho, la cual constituye una interpretación del Martín Fierro como expresión del mito de los argentinos. Seguidamente me referiré (...) a las obras en donde Astrada amplía su proyección hacia toda Latinoamérica buscando las raíces mitológicas en las culturas arcaicas de nuestro continente. Finalmente daré cuenta de la relación que establece entre mito y utopía en sus últimos escritos. In this work I propose to show the utilization of the concept of myth in the Carlos Astrada´s work. First, I will analyze his early works where the philosopher finds in the Russian Revolution the expression of the humanity´s myth. Later, I will take in consideration his work El Mito Gaucho, which constitutes an interpretation of Martín Fierro as expression of the argentinien´s myth. Continuously, I will refer to the works in where Astrada extends his projection towards the whole Latin America looking for the mythological roots in the archaic cultures of our continent. Finally I will show the relation that he establishes between myth and Utopia in his last writings. (shrink)

This article focuses on Latin American constitutionalism with two goals in mind. The first goal is to identify narratives of constitutional mixity or hybridity that have been influential in Latin America, something that habilitates a comparative analysis with references to mixed or hybrid constitutionalism in other scenarios. One narrative underlines the combination of U.S.-inspired constitutionalism with background civil law systems. Another narrative highlights the way classic regional constitutional designs feature a liberal-conservative hybridation that, some claim, continue to influence (...) constitutional dynamics up to this day. And the third narrative is associated with the establishment in regional countries of hybrid or mixed systems of judicial review. The second goal of the article, more methodological in kind, is to explore what do Latin American narratives on mixity teach in the way to clarifying the nature and implications of exercises constitutional taxonomy. As it emerges, constitutional taxonomy is a way of organizing and generating knowledge which is useful to describe, but most meaningful when addressed to provide an explanation, which is often just an antechamber to normative evaluation. Whether a particular exercise of constitutional taxonomy makes sense in a particular scenario, however, is a different matter, and the article suggests that describing, explaining and evaluating Latin American constitutions as hybrid is illuminating but also problematic in a number of ways. (shrink)

Designing a pension system is both a complex endeavor and a long lasting legacy. Complexity stems from the many trade-offs that conceiving a pension system entail and from how these initial decisions affect the social and economic behavioral responses of workers and retirees. Policy-makers planning a pension system have to evaluate its internal economic consistency, but also these feedbacks. Economic and demographic models that allow a quantitative evaluation of these costs and benefits are required. More than ever at the initial (...) stage of design, since pension systems are persistent. Yet, pension systems are not monolith, but living entities that change over time. Some of these modifications are produced by individuals’ reactions to incentives built in the system, and need to be foreseen during the initial planning. Other changes are induced by reform measures and constitute the policy responses to unpredicted exogenous shocks – such as population aging. Re-designing the pension system to cope with new demands, while being limited by existing constraints, is a difficult task. Recent reforms of the Italian pension system are discussed in detail to highlight the policy trade-offs and the economic motivations behind the decision of the reform policies. (shrink)

Many of our interactions in the twenty-first century - both good and bad - take place by means of institutions, technology, and artefacts. We inhabit a world of implements, instruments, devices, systems, gadgets, and infrastructures. Technology is not only something that we make, but is also something that in many ways makes us. The discipline of ethics must take this constitutive feature of institutions and technology into account; thus, ethics must in turn be embedded in our institutions and technology. The (...) contributors to this book argue that the methodology of 'designing in ethics' - addressing and resolving the issues raised by technology through the use of appropriate technological design - is the way to achieve this integration. They apply their original methodology to a wide range of institutions and technologies, using case studies from the fields of healthcare, media and security. Their volume will be important for philosophical practitioners and theorists alike. (shrink)

The prevailing justification for constitutional institutions is that such institutions reflect and enable rational solutions to social problems. However, constitutions are constructed through emotionally driven processes that reflect both the public sentiments of the day and, at least to some extent, basic moral emotions. Historical examples from France and the United States demonstrate the role of such emotional processes in shaping the design of liberal constitutionalism. Further, constitutional law both sets and regulates emotional display rules; favors or (...) disfavors certain emotional commitments; and, particularly through the formulation of fundamental human rights, reflects and shapes emotional moral judgments. The emotional contributors to constitutional design and interpretation may be called “constitutional sentiments.”. (shrink)

Constitutional paideia designates a form of constitutionalism that construes a nation’s constitution essentially in terms of ongoing processes of collective self-formation. This paper explores the notion of constitutional paideia as formulated by Hegel, who explicitly defines constitutionalism with categories of Bildung. The paper’s strategy is to present Hegel’ position in light of questions that can be raised about it. The paper advances three central theses: in spite of his historico-culturist approach to law, Hegel is a theoretician of (...) class='Hi'>constitutional paideia; despite construing constitutionalism in terms of ongoing processes of popular self-interpretation, Hegel does not vitiate the distinction between law and politics deemed so central to constitutional theory; and despite construing constitutionalism in terms of self-formative processes of a particular culture, Hegel does not jettison the normativity and trans-contextualism long associated with modern constitutional theory. The paper concludes with some observations on the contemporary significance of Hegelian constitutionalism. (shrink)

Recently clinicians have become more reliant on technologies such as artificial intelligence (AI) and machine learning (ML) for effective and accurate diagnosis and prognosis of diseases, especially mental health disorders. These remarks, however, apply primarily to Europe, the USA, China and other technologically developed nations. Africa is yet to leverage the potential applications of AI and ML within the medical space. Sub-Saharan African countries are currently disadvantaged economically and infrastructure-wise. Yet precisely, these circumstances create significant opportunities for the deployment of (...) medical AI, which has already been deployed in some places in the continent. However, while AI and ML have come with enormous promises in Africa, there are still challenges when it comes to successfully applying AI and ML designed elsewhere within the African context, especially in diagnosing mental health disorders. We argue, in this paper, that there ought not to be a homogeneous/generic design of AI and ML used in diagnosing mental health disorders. Our claim is grounded on the premise that mental health disorders cannot be diagnosed solely on ‘factual evidence’ but on both factual evidence and value-laden judgements of what constitutes mental health disorders in sub-Saharan Africa. For ML to play a successful role in diagnosing mental health disorders in sub-Saharan African medical spaces, with a precise focus on South Africa, we allude that it ought to understand what sub-Saharan Africans consider as mental health disorders, that is, the value-laden judgements of some conditions. (shrink)

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides (...) several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing. (shrink)

Designing in Ethics provides a compilation of well-curated essays that tackle the ethical issues that surround technological design and argue that ethics must form a constitutive part of the designing process and a foundation in our institutions and practices. The appropriation of a design approach to applied ethics is argued as a means by which ethical issues that implicate technological artifact may be achieved.

As a topic, organization design is poorly understood. While it is featured in most management books as a chapter dedicated to organizational structures, it is unclear whether organization design is a one-off event or an ongoing process. Thus, it has traditionally been understood to be the same as an organizational configuration, with neat lines of communication and distribution of responsibilities following pre-set typologies. Yet what can be said to constitute organizational structure in this first half of the 21st (...) century? The extraordinary growth of digital communications, the decreasing relevance of hierarchical bureaucracies, and the general demise of command-and-control have all but decimated the traditional notion of organizational structure. Organization design needs a theoretical revamping. Using a mix of design and social science theories and concepts, Rodrigo Magalhães outlines a new human-centric interpretation of design, design principles, and design culture. He puts forward a paradigm where the organization, for purposes of its design, is considered to be a social actor in a permanent state of transformation, with significant repercussions for social and economic life. He also proposes a model of 'leaderful organization design', distinguished as practice-based, guided by values of democratic participation, and driven by design logics which places meaning-making and meaning-taking at the center of organizational life and can be adopted and adapted to suit different environments. (shrink)

Why be moral? According to constitutivism, there are features constitutive of agency, actual or ideal, the properties of which explain why moral norms are normative for us. I aim to investigate whether this idea is plausible. I start off critically. After defining constitutivism and outlining its attractions and problems (chapter 1), I discuss the theories of various features of agency that are supposed to ground morality according to the leading constitutivists in the literature. I find these theories wanting. They are (...) based on implausible assumptions about agency (chapter 2), and they fail to make sense of moral (and other) norms because the so-called shmagency objection, according to which we can shirk from our normative commitments by being ‘shmagents’ rather than agents, appears in new ways for them (chapter 3). Then I get more constructive. I defend a two-tiered form of constitutivism. The first tier captures practical rationality, and the second tier captures reasons for action. Starting with the first tier, I defend a Humean theory of agency (chapter 4) and add a principle of instrumental rationality to it (chapter 5). Appendices A and B supplement these chapters with replies to criticisms of the Humean picture. In chapters 6 and 7, I put this conception of agency to work to reach the second tier of the view. I start by defending a form of reasons internalism which treats practical reasons as grounded in the desires of ideal agents (chapter 6). Then I extend this theory to moral reasons, arguing – unexpectedly for a Humean – that we have universally prescriptive reasons to cooperate with other cooperative agents to satisfy our other respective desires (chapter 7). Hence, the constitutive features of ideal agency ground a morality of cooperation. I conclude by summarizing the case for constitutivism (chapter 8). (shrink)

Contemporary political discourse is marked with the language of democracy, and Western countries in particular seek to promote democracy at home and abroad. However, there is a sublimated conflict in general political discourse between a desire to rely on alleged political experts and a desire to assert the supposed common sense of all men. Can the struggle between the democratic and aristocratic values embodied in this conflict be reconciled? The question is perennial, and raises issues that are central to (...) class='Hi'>constitutional design. Aristotle, developing in significant ways insights made by his teacher Plato, grapples with it in his Politics. Aristotle's views on these matters are relevant—by way of the American Founders'—to contemporary American politics and modern democracies generally. During the eighteenth century, the Founders, some of whom explicitly reached back to Aristotle's work, also struggled—especially in The Federalist Papers—with these thorny issues of constitutional design. They created the U.S. Constitution in part to address these very same problems and issues. We are living in some ways, then, in the shadow of Aristotle's political theorizing, albeit as transposed by the American Founders. Both Aristotle and some of the American Founders theoretically favor aristocracy over democracy, but concede that in practice a blend of the two has to be integrated into the fundamental structure of political society. We need to reconnect with these important political discussions in order to come to terms with aristocratic and democratic values in our current circumstances. Footnotesa I am grateful to Fred Miller and David Keyt for many helpful suggestions and thoughtful questions throughout the editing process. I would also like to thank Irfan Khawaja for valuable feedback on an earlier version of this essay. (shrink)

Over forty years ago, the American philosopher and educationalist began work on what was to become a series of philosophical novels for children. As time went on, he also constructed accompanying teacher resources together with colleagues. The most popular of these works were designed for primary education and constitute what came to be known as the IAPC Curriculum for the younger years. The influence of Lipman has been immense. He taught us that philosophy is not beyond the reach of primary (...) school children when appropriately presented; that the questions of philosophy are germane to all primary school subjects; and that philosophy can be used to encourage thinking across the curriculum. Influential and instructive as these materials have been, however, they do not constitute a curriculum in the sense in which that is generally understood in school education. This paper explores both the strengths and limitations of Lipman’s pioneering effort from the viewpoint of curriculum construction in order to see what lessons can be leaned. (shrink)

Designing complex products involves working with uncertainties as the product, the requirements and the environment in which it is used co-evolve, and designers and external stakeholders make decisions that affect the evolving design. Rather than being held back by uncertainty, designers work, cooperate and communicate with each other notwithstanding these uncertainties by making assumptions to carry out their own tasks. To explain this, the paper proposes an adaptation of Kendall Walton’s make-believe theory to conceptualise designing as playing games of (...) make-believe by inferring what is required and imagining what is possible given the current set of assumptions and decisions, while knowing these are subject to change. What one is allowed and encouraged to imagine, conclude or propose is governed by socially agreed rules and constraints. The paper uses jet engine component design as an example to illustrate how different design teams make assumptions at the beginning of design activities and negotiate what can and cannot be done with the design. This often involves iteration – repeating activities under revised sets of assumptions. As assumptions are collectively revised, they become part of a new game of make-believe in the sense that there is social agreement that the decisions constitute part of the constraints that govern what can legitimately be inferred about the design or added to it. (shrink)

Scholars in science and technology studies (STS) have recently been called upon to advise governments on the design of procedures for public engagement. Any such instrumental function should be carried out consistently with STS’s interpretive and normative obligations as a social science discipline. This article illustrates how such threefold integration can be achieved by reviewing current US participatory politics against a 70-year backdrop of tacit constitutional developments in governing science and technology. Two broad cycles of constitutional adjustment (...) are discerned: the first enlarging the scope of state action as well as public participation, with liberalized rules of access and sympathetic judicial review; the second cutting back on the role of the state, fostering the rise of an academic-industrial complex for technology transfer, and privatizing value debates through increasing delegation to professional ethicists. New rules for public engagement in the United Sates should take account of these historical developments and seek to counteract some of the anti-democratic tendencies observable in recent decades. (shrink)

In this paper, we discuss an approach to ‘design for wow’ that focuses on the emotions that constitute a wow-experience. In this approach, the eliciting conditions of these emotions are used to define a product character with a high wow-impact. In addition to the approach, a measurable wow-index is introduced. First, a concept of wow is described in which wow is explained as a combination of fascination, pleasant surprise, and desire. The eliciting conditions of these three emotions are examined (...) and combined to a ‘wow-appraisal.’ This concept is applied in the design of a mobile telephone. A combination of qualitative and quantitative research methods was used to formulate concern themes relevant for the wow-appraisal. These themes were used to create a layered product character and a prototype of the final design. An evaluation study demonstrated that the product designed with this approach rated higher on the wow-index than alternative products. (shrink)

Steffen Ganghof’s Beyond Presidentialism and Parliamentarism can improve existing typologies in comparative government and has great potential for discussions about democratic innovation and reform. So far, democratic innovations like deliberative mini-publics have remained mostly additive, leaving the underlying decision-making logics of representative political systems unchanged. Ganghof’s ideas can move debates about how deliberative democracy is to be institutionalized forward. Semi-parliamentary government constitutes an intriguing option to meet both demands for legislative flexibility and responsiveness to citizens’ concerns and demands for stability (...) and accountability. At the same time, I identify a limitation of the book in the fact that Ganghof’s normative theory of democracy remains thin. To appeal to citizens in constitutional reform processes, proposals for semi-parliamentary reform need to do more than reconcile conflicting visions of majority rule. They need to speak to democracy’s central promises of equal autonomy and rationality. (shrink)

This book examines the conceptual contributions of constituent representatives in Spain during the nineteenth and twentieth centuries. The Spanish Parliament has been the stage for the political modernisation of the country. Constitutional debates have historically led to the gradual acknowledgement and broadening – usually unevenly – of citizens’ rights. At the same time, constitutional debates have created opportunities to design institutions and settle legal mechanisms to enforce rights and distribute state resources. The book identifies and analyses rhetorical (...) and conceptual innovations produced in such debates from a historical perspective. (shrink)

How can advocates of global democracy grapple with the empirical conditions that constitute world politics? I argue that flexibility mechanisms - commonly used to advance international cooperation - should be employed to make the institutional design project of global democracy more tractable. I highlight three specific reasons underpinning this claim. First, flexibility provisions make bargaining over different institutional designs more manageable. Second, heightened flexibility takes seriously potential concerns about path-dependent institutional development. Finally, deliberately shortening the time horizons of agents (...) by employing flexibility provisions has cognitive benefits as it forces designers to focus specifically on issues of feasibility as well as desirability. I discuss a range of flexibility mechanisms and highlight the utility of sunset provisions and escape clauses. From this analysis, I build an argument for the usage of small-scale democratic experiments through which citizens have a say in global policy making. (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)