In this short article, my aim is to introduce readers to some debates about religious freedom and constitutional law in the United States. I highlight a few of the enduring questions debated by political philosophers and legal scholars. For example, does the Constitution require special religious exemptions for citizens whose religious convictions put them at odds with otherwise neutral and legitimate state pol- icy? Should the Constitution be interpreted as supporting a strict secularism or a multicultural egalitarian liberal (...) position? What are the limits to religious freedom? To illustrate how these and related questions are debated I consider some recent work on religious freedom jurisprudence in the United States. (shrink)

We enter here upon a history of conversational traffic between the respective departments of philosophy and law in the old academy of liberalism, where lawyers hear much from philosophers, yes-and philosophers hear from lawyers, too, in what has fruitfully been a both-ways exchange. Our philosophical protagonist is John Rawls. This book comprises a study of the rise and workings, within the Rawlsian political-liberal philosophy, of the idea of a country's higher-legal constitution as a public platform for the justification of (...) political coercion. A study of Rawls on constitutionalism can help us, I believe, in scoping out and managing a cluster of constitutional lawyers' debates-interminable ones, it seems, in the constitutional-democratic precincts of our times-that I will catalogue soon below. But conversely, I believe, those seeking the best and truest readings of Rawls might have something to learn from the controversies of the lawyers. My approach to Rawls has accordingly been that of a critically leavened (while no doubt broadly sympathetic) exegesis, while with the legal-discursive materials I take more of a diagnostic turn. My hope is that a treatment of these two discourses in relation to each other will prove an aid to both political-philosophical and legal-practical reflection. (shrink)

Adopting a communication as constitutive of organization (CCO) perspective on ethics and corporate social responsibility (CSR) invites us to create the conditions of a dialogue, discussion, or debate between various stakeholders, who can then try to confront their respective positions on a given issue, and possibly come to a decision regarding how a situation should be evaluated and/or responded to. As shown in this article, getting human stakeholders to voice their concerns about a specific situation is a way not only (...) to rationally confront multiple viewpoints on what should be done about it (à la Habermas) but also to allow elements of this situation to reveal themselves in a discussion. This is why any ethical decision has to experience a form of undecidability and surprisability. When beliefs and opinions can be called into question, it means that participants are ready to become attentive to what a situation might surprisingly call for. Communication is therefore a matter of ventriloquism, as human participants should also be considered the means by which elements of a situation manage to express themselves in a discussion, dictating specific courses of action over others. This concretely means that multiple voices can be heard in such a scene: not only the voices of the human stakeholders who speak to each other but also the voices of facts, principles, future generations, ecosystems, populations that are made to say things through these various turns of talk. (shrink)

Recent work on essence describes essence as assimilated to definition. It also posits a plurality of kinds of essence.Howdoes assimilation relate to pluralism? According to one view, a kind of essence is adequate only if it is definitional: something is essential to an item, in the relevant sense, only if it is part of what it is to be that item. In this paper, I argue that assimilation and pluralism are in tension with respect to consequentialist essence. This is problematic (...) given that, as a methodological prescription, some philosophers advise us to work with consequentialist essence. In this paper, I develop a theory of constitutive essence and use it to resolve the problem by defining an adequate notion of consequentialist essence that preserves the methodological prescription. (shrink)

In his book on Liberalism against Populism , William Riker argued that Lincoln's success in the 1860 election was the culmination of a long progression of strategic attempts by the Whig coalition of commercial interests to defeat the `Jeffersonian-Jacksonian' Democratic coalition of agrarian populism. Riker adduced Lincoln's success to his `heresthetic' maneuver to force his competitor, Douglas, in the 1858 Illinois Senate race, to appear anti-slavery, thus splitting the Democratic Party in 1860. Riker also suggested that electoral preferences in 1860 (...) exhibited an underlying `chaotic' preference cycle. However, these accounts do not explain why the slavery question became paramount in 1858-60. I suggest here that US politics, from 1800 to 1858, can be interpreted in terms of a single land-capital axis that sustained the pre-eminence of an agrarian coalition, first created by Jefferson, of both slave interests and free labor. Lincoln's strategy in 1858-60 was to persuade free labor in the northern and western states that they were threatened by the consequences of the Dred Scott decision by the Supreme Court in 1857. Lincoln argued that although the decision applied to the territories, it was indicative of the intention of the South to extend slavery to the free states. Lincoln's speeches in 1858-60 made this threat credible to the North, and initiated a belief cascade among the electorate. For southern voters, the North consequently appeared to be a `tyrannical' majority, whose creation violated the constitutional logic of Union, and legitimated secession. I argue that this second `civil rights dimension, created in the election of 1860, is necessary for understanding critical elections that have occurred at irregular intervals in US political history. Key Words: constitutional transformation • belief cascade • contingency. (shrink)

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in (...) different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today. (shrink)

Can we understand what makes someone the same person without understanding what it is to be a person? Prereflectively we might not think so, but philosophers often accord these questions separate treatments, with personal-identity theorists claiming the first question and free-will theorists the second. Yet much of what is of interest to a person—the possibility of survival over time, compensation for past hardships, concern for future projects, or moral responsibility—is not obviously intelligible from the perspective of either question alone. Marya (...) Schechtman encourages us to adopt a more unified perspective. (shrink)

The ‘causal-constitution’ fallacy, the ‘cognitive bloat’ worry, and the persisting theoretical confusion about the fundamental difference between the hypotheses of embedded (HEMC) and extended (HEC) cognition are three interrelated worries, whose common point—and the problem they accentuate—is the lack of a principled criterion of constitution. Attempting to address the ‘causal-constitution’ fallacy, mathematically oriented philosophers of mind have previously suggested that the presence of non-linear relations between the inner and the outer contributions is sufficient for cognitive extension. The (...) abstract idea of non-linearity, however, can be easily misunderstood and has, in the past, led to incorrect and counterintuitive conclusions about what may count as part of one’s overall cognitive system. In order to prevent any further mistakes I revisit dynamical systems theory to study the nature of the continuous mutual interactions that give rise to the aforementioned non-linear relations. Moreover, focusing on these interactions will allow us to provide two distinct arguments in support of the ontological postulation of extended cognitive systems, as well as an objective criterion of constitution. Accordingly, I put forward a version of HEC that treats continuous mutual interactions (and the resultant non-linear relations) not just as sufficient but also as necessary for cognitive extension. Such a qualified version of HEC may exclude certain alleged cases of cognitive extension where the agent does not mutually interact with his artifacts (e.g., shopping lists and directory services), but it is immune both to the ‘causal-constitution’ fallacy and the ‘cognitive bloat’ worry, and it can be sharply distinguished from HEMC. (shrink)

In this article, we suggest an alternate approach to interpreting the US Constitution, using founding-era translations. We demonstrate how both symmetries and asymmetries in structure and vocabulary of the languages involved can help in deciding nowadays’ problems of constitutional interpretation. We select seven controversial passages of the US constitution to illustrate our approach: Art. I, § 8, cl. 3 ; Art. II, § 1, cl. 5 ; Art. II, § 2, cl. 3 ; Art. I, § 6, cl. (...) 1/Art. I, § 8, cl. 10/Art. IV, § 2 ; and Art. IV, § 2, cl. 1. Since these passages have recently been debated by constitutional scholars, reassessing them using our method can establish the additional value of our approach to constitutional practice. We presume that our approach is not limited to interpreting the US constitution, but suggest that constitutional hermeneutics in general could profit from adding a translation approach to the toolkit. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 36.2 (2003) 119-134 [Access article in PDF] The Constitution of Rhetoric's Tradition Maurice Charland Rhetoric is not a discipline. That is to say, as a domain of theoretical and practical knowledge, rhetoric is weakly institutionalized, lacking a centralized arbiter and standardized set of procedures for establishing truth claims. It also lacks the basic characteristics that Michel Foucault defines as disciplinary, for while we can identify (...) "groups of objects, methods, their corpus of properties considered to be true, the interplay of rules and definitions, of techniques and tools," these are neither universally admitted, nor do they "constitute a sort of anonymous system, freely available to whoever wishes, or whoever is able to make use of them, without their being any question of their meaning" (1972, 222). On the contrary, despite the fact that rhetoric is usually figured as offering practical and, indeed, positive knowledge, the meaning of its terms is always being questioned and at stake. While we might, by considering terms loosely, seek to identify rhetoric in terms of objects such as "persuasion," or "discourse," these are not exclusively its province. Furthermore, the ends of rhetoric are themselves unclear. Is rhetoric really the art of discovering the available means of persuasion? Or is it an art of citizenship? Or a method of enquiry? It has at times been defined as each. Consequently, none of these methods can fix its identity. At most, we can say that "rhetoric," as a domain of knowledge, signals a commitment to the idea of agency in discourse.Rhetoric, while not disciplinary, nevertheless "hangs together" as a domain of knowledge even though it does not cohere conceptually. It is, or comes close to being, a "discursive formation." That is to say, we can identify a field that produces statements concerning discourse and its operations, which is characterized by certain regularities that articulate with the term rhetoric itself. The first such regularity is the gesture of negation. Rhetoric refuses philosophy (or acts out having been refused by philosophy). [End Page 119] Rhetoric further is defined against other intellectual genres: rhetoric is not poetics, is not political science, is not ethics, though it may "speak" to them. Ultimately, though, this tells us very little about the nature of rhetoric's difference, for while refusal is effective in positing the existence of a boundary between rhetoric and other domains, the location of that boundary and what it contains remains unspecified. Rhetoric must also be attributed an at least provisional sense. This is accomplished by rhetoric's second gesture, which initially appears more substantial. Rhetoric is framed in terms of the positivity of a foundational "tradition." Indeed, the gesture toward tradition is ubiquitous. Consider, for example, both the title and principles of organization of Patricia Bizzell and Bruce Herzberg's (1990) anthology, George Kennedy's (1998) recursion to the idea of "tradition" even as he attempts to present rhetoric as a natural and cross-cultural phenomenon, recent feminist works that explicitly address "the tradition," 1 the routine citation of Classical authorities and examples, the recurrence of "new" rhetorics, including Burke's dramatism, Perelman's theory of argumentation, as well as Barthes' semiotics, which are offered as supplements to tradition's lacks, and, finally, the energy devoted to the study of the history of rhetoric. The rhetorical tradition, as something bequeathed or put in play by ancient teachers, appears to offer rhetoric a substance, a literature, and a set of problems, particularly through variants of two other principles of discursive formation identified by Foucault, commentary and the author-function. Even so, the gesture toward tradition does not imply the existence of a historically rooted and fixed corpus or model: "Tradition" is a vague term, there is no unproblematic canon of texts to be commented upon, and tradition itself, rather than Aristotle, Plato, or Cicero, stands as "author." What we debate is the meaning of the "tradition," the uneasy relationship between Socrates and Sophists, Plato and Aristotle, but as positions rather than personae. Furthermore, in the name of rhetoric, ancient and modern texts are often read against the grain, and what is... (shrink)

In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose (...) name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’s, shows us to be facing. (shrink)

The paper looks at the establishment of religion clause in the First Amendment to the US Constitution, and cases, e.g. Brown v. Gilmore, followed by Croft v. Perry and Sherman v. Koch, cases that relate to the concept of the “moment of silence” in educational institutions in which it was claimed that such events constitute a breach of the establishment clause. Courts have been inconsistent in their decision-making, which may indicate a lack of transparency not only in the interpretation (...) of the relevant phrase in the Constitution but also in the judicial interpretation of the “three-pronged test” with regard to “excessive entanglement” as laid out in Lemon v. Kurtzman of 1971. The paper discusses the “moment of silence” within the framework of a model of silence in which this type of silence would be labeled as either textual or situational silence. (shrink)

The new historical inscription from Epidaurus has provided us with a unique piece of documentary evidence on Greek federal constitutions. In this article I propose to study the principal points of constitutional interest contained in it. I have based my text on that of Professor Wilcken and M. Kougeas; and I follow Professor Wilcken and Mr. Tarn in identifying the new document with the constitution which Demetrius Poliorcetes imposed upon his pan-Hellenic League in 303–2 B.C.

As the empiricist view relies much on the notion that concept acquisition involves coming up with and testing hypotheses about a concept's meaning or content, Fodor asserts that such is not possible and is self-defeating, since concepts do not possess the kinds of meanings that would allow the derivation of hypotheses. Looking into Fodor's writings, we see how he was able to conclude without having to deny the significance of experience in acquiring a concept, that most concepts must be innate (...) and that they are not learned. Experience is indeed necessary, and from this we are able to identify two acquisition models. According to the author, the more reliable model looks into how experience sets off an inner mechanism that allows us to become “wired up” in acquiring concepts through gaining experience. This chapter discusses Fodor's “Constitution Hypothesis” to address the doorknob/DOORKNOB problem. (shrink)

In Latin America there are two models of constitutions - the liberal and the most stable Constitution of the Argentine Nation, drafted in 1853, (which was discussed in our previous article) and one of the most radical, comprehensive and unstable – the Constitution of the United Mexican States of 1917. Although both of them were constructed under the model of the US constitution with the influence of Spanish and French constitutionalism and local national traditions, the Argentine constitutionalism (...) has developed on the grounds of the American legal system, as the Mexican one still could not break with the civil law tradition. (shrink)

Context has always been central to Searle’s account of constitutive rules, as can be appreciated from his classic formulation, ‘X counts as Y in context C.’ But while the nature of X and Y in Searle have been widely discussed, the role of the context in which Y is constituted on the basis of X has not. So, in this paper, I will discuss how context shapes the process of constituting and creating meaning through rules and how, in doing so, (...) it affects the regulative action of constitutive rules. I extract from this argument the general thesis that the two main questions concerning constitutive rules-namely, ‘How can they be constitutive of meaning?’ and ‘How can they be rules even so, despite their constitutive role?’-can be solved by looking at the wider context, or ‘practice,’ within which these rules are framed, and that such an approach can give us further insight into the functioning of institutions. (shrink)

This chapter is about the view that we are material things constituted by organisms; this view is advocated by Baker, Shoemaker, and others. Each of us is made of the same matter as an organism, but our persistence conditions or essential properties preclude our being organisms ourselves. This goes together with the general view that qualitatively different objects can be made of the same matter at once: constitutionalism. Constitutionalism is supported by arguments involving the persistence of artifacts. It is argued, (...) however, that the view faces the thinking‐animal problem, that it rules out any principled account of when one thing constitutes another, that it cannot explain why our boundaries lie where they do, and that it conflicts with a popular claim about synchronic identity. (shrink)

My dissertation, “Love, Self-Constitution, and Practical Necessity,” offers an interpretation of love between people. Love is puzzling because it appears to involve essentially both rational and non-rational phenomena. We are accountable to those we love, so love seems to participate in forms of necessity, commitment, and expectation, which are associated with morality. But non-rational attitudes—forms of desire, attraction, and feeling—are also central to love. Consequently, love is not obviously based in rationality or inclination. In contrast to views that attempt (...) to fit love into existing models of practical reasoning, I argue that love participates in a unique form of practical necessity, different from both moral and psychological necessity, yet bearing resemblances to each. Distinctive to this type of practical necessity is a direct appeal to another particular person that cannot be delivered in third-personal terms—that is, a non-moral yet normative type of expectation on another person. This type of expectation is predominant in loving relationships, but can also make better sense of the experiences of humor and beauty, as well as attitudes like forgiveness, gratitude, and agent-regret. I treat Immanuel Kant’s discussion of the experience of beauty in the Critique of Judgment and Christine Korsgaard’s work on self-constitution as fruitful starting points for this account of love. I conclude that our loving relationships enable us to have distinctive personal selves, and provide support for this account of love by offering a complementary theory of grief. In Part One of the dissertation, I focus on two prominent approaches to love characteristic of the sentimentalist and rationalist traditions. I begin with the work of David Hume, which treats desire (understood as something like a simple impulse or craving) as the paradigmatic mental state, and emphasizes our personal and affective dimensions. Hume has the valuable insight that loving someone affects our sense of ourselves. But Hume’s view becomes unsatisfying when he claims that love is essentially enfeebling, implying that to love is to be passive toward and readily overcome by another person. While this indicates Hume’s awareness that love involves being open and receptive to another person, the problem is that love is also a demanding attitude. Hume lacks the conceptual resources to offer a nuanced view of the self, in which we can—with one attitude—be both demanding of and vulnerable to another person. Hume’s model of a desire-based deliberative process has recently been revived in Harry Frankfurt’s discussions on love and rationality. Frankfurt, however, goes beyond Hume’s picture of the self by introducing a notion of “identification,” which he offers to make sense of our apparent ability to commit ourselves decisively to certain projects or people. I argue that active powers like identification and commitment cannot be accommodated within any basically Humean moral psychology. Such abilities, and with them the possibility of love, depend on something closer to a Kantian conception of rational agency. I next focus on the work of Kant, who provides the substantial counterpart to Humean-inspired moral theories, but is not known for his insight into our emotional lives. In the Metaphysics of Morals, Kant divides love into “practical love”—what we experience when we are morally motivated to help someone—and “pathological love”—what we experience when we feel fond of something. But in reality, we experience love neither as a mere preference for another person, nor as something that generates the kind of demands that would be binding on any rational creature. David Velleman attempts to remedy the deficiency of Kant’s dichotomy. Velleman offers a Kantian theory in which he describes love and respect as two ends of a continuum of attitudes that it is morally appropriate to have toward people. Velleman’s view has the peculiar implication that everyone deserves the love of everyone else, and I argue that this is a fatal flaw. Like Kant and Velleman, Korsgaard characterizes personal love as involving the treatment of other people as Kantian ends-in-themselves to a heightened degree. Korsgaard, though, also contends that our individual identities depend upon our personal relationships, and I take this position seriously for the remainder of the dissertation. Ultimately, however, characterizations of loving relations as subsets of moral relations can account for the authority of the demands of love, but not its particularity. The major conclusion of Part One is that any attempt to understand love primarily on a model of practical reasoning with which we are already familiar is doomed to fail. Our experience of love calls for a theory of a unique type of practical necessity. In Part Two I take seriously the possibility that love is simultaneously inescapable (in something like the way morality is supposed to be), and yet ineluctably personal. In love, we experience an engagement with a person as essentially particular, rather than as an instance of a rational agent in general. To make sense of this direct attachment to an individual, I argue that love involves distinctive forms of expectation and disappointment. When those we love let us down, they hurt our feelings, which is not a response to a failed prediction, but nor is it a reaction to a moral insult or offense. According to Peter Strawson and Stephen Darwall, second-personal moral reactive attitudes (such as resentment) always have third-personal analogues (such as indignation). In contrast, I argue that the type of hurt feelings associated with love is a second-personal reactive attitude that does not have a third-personal corollary. I take this as evidence that the expectations involved in love are not objective in the way that the moral is objective. Nor, however, is love a matter of mere preference. On my interpretation, Kant introduces this different type of expectation in the Critique of Judgment. Whereas he characterizes moral judgments as universally communicable, judgments of beauty implicitly involve only second-personal address: I appeal to your direct experience with a particular object. This provides the conceptual space for an account of love according to which it involves a uniquely second-personal form of practical necessity. I contend that the second-personal addresses we make in love are appeals to strengthen the intimacy implicit in the loving relationship, and I identify three interrelated dimensions of that intimacy. First, those we love have the standing to interpret us in a constitutive manner. We fine-tune and make determinate the character of our concerns and interests in part by accepting the interpretations provided by those we love. In that way, the people we love have the normative power to constitute who we are. Second, we share a perspective with those we love in a way that is not reducible to or derivative of our independent perspectives. Loving someone centrally involves the activity of forming concerns together, and we do this in a mode best understood on the model of playing a spontaneous game or improvising music. Finally, being loved enables us to see ourselves as distinctive and special, because the concern those who love us have for us does not track the objective merit of our characteristics. These dimensions of the intimacy that characterizes a loving relationship reveal what it is that we appeal for in love, and how we are hurt when our appeals are rebuffed. In broad terms, this dissertation advocates the recognition of a non-moral yet normative type of expectation, which is predominant in loving relationships. Humor and beauty, too, make more sense when understood in terms of this non-moral yet normative type of expectation, as they involve appeals to others that are more than mere predictions of, but less than rational demands for, a certain kind of response. Introducing this alternative notion of expectation into the discourse of moral philosophy can shed light on other common attitudes that are clearly normative, but defy translation into objective, third-personal terms. Such attitudes include certain experiences of pride and shame, apology and forgiveness, the bestowing of mercy, gratitude, agent-regret, and perhaps a basic sense of trust we have in others. Ultimately, I situate love in respect to grief, which demonstrates my theory’s ability to make sense of related dimensions of our emotional lives. The people we love and grieve over give us a sense of who we are as distinctive, particular individuals, as the three interrelated dimensions of intimacy in loving relationships reveal. Consequently, grief is best understood as a type of practical disorientation—namely, a disorientation that involves the loss of the personal self. I present my account of grief against the type of account that would draw philosophical conclusions about the nature of love and grief from empirical psychological data alone. In particular, these data indicate that we recover quickly from the deaths of loved ones, and Dan Moller draws the philosophical conclusion that those we love fulfill certain roles in our lives and are replaceable. In contrast, I contend that while we should acknowledge the truth of the objective judgment, made in the third-person, that we will likely recover after the deaths of those we love, it does not follow that we must affirm such a claim from the internal perspective of one person who loves another. As a result, the case of love and grief supports a general claim concerning the proper work of moral philosophy, which is that the understanding of ourselves gained through empirical data is not a substitute for the normative conclusions that are revealed through first-personal reflections on our relationships. (shrink)

Palmer defends the ‘Constitution View’ of omissions. According to this view, every omission is constituted by, though not identical to, some positive event. I argue that Palmer’s version of this view can’t do all the work he wants it to do. First, it can’t provide an answer to the ontological question to which he addresses himself: ‘What kind of thing is an omission?’ Second, it doesn’t give us the resources to determine which positive events serve as the ultimate constituters (...) of omissions which seem to occur over long periods of time ; at least, not without embracing consequences Palmer wishes to avoid. (shrink)

The aim of the paper is to discuss some recent variants of familiar puzzles concerning the relations of parts to wholes put forward by Trenton Merricks and Eric Olson. The argument is put forward that so long as the familiar distinction between 'loose and popular' and 'strict and philosophical' senses of identity claims is accepted the paradoxical conclusions at which Merricks and Olson arrive can be resisted. It is not denied that accepting the distinction between 'loose and popular' and 'strict (...) and philosophical' senses of identity claims is itself a departure from common-sense, but it is argued that it is the smallest such departure available to us. (shrink)

What is the relationship between Thailand’s human rights crisis during Prime Minister Thaksin Shinawatra’s leadership and the USA-led post-9/11 war on terror? Why did the human rights situation dramatically deteriorate after the Thaksin regime publicly supported the Bush administration’s war on terror and consequently received US counterterror assistance? This article offers two conceptual arguments that jointly demonstrate a constitutive theoretical explanation, which shows that counterterror and militaristic transnational and national discursive structures enabled the strategy of state repression in Thailand under (...) Thaksin. The first concept refers to strategic localization, which refers to how the Bush administration’s global war on terror—and its consequent overarching emphasis on military security—provided an opportunity for the Thaksin administration to strategically localize the global threat of terrorism in ways that could seem relevant to the local Thai context. The second concept pertains to resource mobilization, which shows how converging US and Thai discourses on military security facilitated Thaksin’s strategy of increased state repression that led to the proliferation of state-led human rights abuses. This research article contributes to the human rights literature in two ways: by highlighting how foreign aid programs and its constitutive political discourses shape recipient countries’ domestic human rights situation and by tracing the macro-political factors that lead to the eventual democratic decay of contemporary Thailand. (shrink)

Is freedom of research protected at the constitutional level? No obvious answer can be given to this question, as European and Northern American constitutional systems are not unequivocal and the topic has not been discussed deeply enough.Looking at the constitutions of some European and Northern American countries, it is possible to immediately note that there are essentially two ways to deal with freedom of scientific research. On the one hand, in Canada and in the US, constitutions have no specific provisions (...) to protect freedom of scientific research, with the result that such freedom ends up having to be protected as a specific aspect of the wider freedom of thought and expression . On the other hand, other countries’ constitutional systems, mainly European ones, expressly recognise freedom of research and teaching arts and science. For instance, article 5 of the German Constitution states that “Art and science, research and teaching are free”, article 33 of the Italian Constitution1i establishes that “The arts and sciences as well as their teaching are free” and article 59 of the Slovenian Constitution states that “Freedom of scientific research and artistic endeavor shall be guaranteed”.Within this second group, some constitutions limit their protection to the provision of freedom of scientific research, whereas other fundamental laws engage governments in promoting and supporting it. For example, the Italian Constitution, which states that “The Republic promotes cultural development and scientific and technical research” , the Spanish Constitution, according to which “public authorities shall promote science and scientific and technical research for the benefit of general interest” and, also, the Greek Constitution, whose article 16 establishes that art, science, research and their teaching are free, and their promotion is mandatory for the State.2 It …. (shrink)

The article is addressing one of the central but maybe the most ambiguous and multilayered concepts of Husserl’s phenomenology. Husserl’s insisting on a form of intentionality that implies not just conscious directedness towards objects, but also a constitutive function of mental acts, led to some serious accusations of his idealism and solipsism. Justification of such accusations depends exclusively on whether we understand constitution in an ontological sense, as a creative process which brings worldly entities into being, or in an (...) epistemological sense, as a process which enables us to identify and to interpret a particular givenness as something. In early stages of phenomenology, a so-called “hylomorphic” theory of constitution prevailed, which stated that object of our experience can be present for us only if some sense-data is formed in our intentional acts by a meaning-giving component. This theory proved to be unsatisfying when Husserl turned to a phenomenological description of temporal objects, discovering that not just objects, but also intentional acts have a distinct temporal structure. However, the analysis of temporal constitution reaches even further, because the idea of the “living present”, and its triadic structure of retention-primal impression-protention, holds the key to an explanation of horizon-intentionality, and offers the answer to an essential transcendental question: How is it possible for us to be aware of the world towards which all of our intentional life is directed, and from which all of the motivation for our actions originates? (shrink)

Christian List and Philip Pettit develop an account of group agency which is based on a functional understanding of agency. They claim that understanding organizations such as commercial corporations, governments, political parties, churches, universities as group agents helps us to a better understanding of the normative status and working of those organizations. List and Pettit, however, fail to provide a unified account of group agency since they do not show how the functional side of agency and the normative side of (...) agency are connected. My claim is that a constitutive account of agency helps us to a proper understanding of group agency since it ties the functional part of acting to the group agent’s self-understanding and its commitment to specific norms, principles and values. A constitutive model of agency meets much better what List and Pettit seek to accomplish, namely conceiving of group agents as artificial persons, constituted by normative principles and entertaining normative relations to others to whom they are accountable. (shrink)

Graham Walker boldly recasts the debate over issues like constitutional interpretation and judicial review, and challenges contemporary thinking not only about specifically constitutional questions but also about liberalism, law, justice, and rights. Walker targets the "skeptical" moral nihilism of leading American judges and writers, on both the political left and right, charging that their premises undermine the authority of the Constitution, empty its moral words of any determinate meaning, and make nonsense of ostensibly normative theories. But he is even (...) more worried about those who desire to conduct constitutional government by direct recourse to an authoritative moral truth. Augustine's political ethics, Walker argues, offers a solution--a way to embrace substantive goodness while relativizing its embodiment in politics and law. Walker sees in Augustinian theory an understanding of the rule of law that prevents us from mistaking law for moral truth. Pointing out how the tensions in that theory resonate with the normative ambivalence of America's liberal constitutionalism, he shows that Augustine can provide successful but decidedly nonliberal grounds for the artifices and compromises characteristic of law in a liberal state. Originally published in 1990. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

This article presents a normative‐theoretical account of democratic legitimacy that meets the challenge of moral and cultural pluralism in a way that takes the avoidance of oppression and violence to be a fundamental imperative. The discourse‐theoretical perspective of jürgen Habermas reveals that reasoned agreement among citizens is the only alternative to political oppression. Pace Habermas, however, the legitimacy of even basic constitutional principles does not require us to agree with one another for the same reasons. While we can affirm such (...) principles for a wide range of different reasons, the process of achieving reasoned agreements on contentious issues draws us together as citizens in loyalty to a particular, historical set of political institutions. The reasoned commitment to our constitution that we come to share in this ongoing process acts as an identity‐forming bond that allows us to live in peace with deep moral and cultural differences. (shrink)

There is a tension between the idea of popular sovereignty and our understanding that basic constitutional rights and liberties have a normative authority which is independent from the results of democratic decision‐making procedures. On the one hand there is the claim that the content of political justice, at least as far as the basic liberties are concerned, is to be fixed solely by substantive moral and political argument, while on the other there is the claim that it is the people (...) who determine the specific scheme of basic liberties that they live under. The apparent tension between the two claims can be resolved by introducing, firstly, a distinction between the concept of justice and the concept of legitimacy and, secondly, between proto‐rights and constitutional rights. Unlike constitutional rights, proto‐rights are moral, not legal, rights, and they are less specific than constitutional rights: one set of proto‐rights allows for various schemes of legal constitutional rights. Proto‐rights are part of the principles of justice and can be established only by substantive argument while constitutional rights have to be established by the procedures of democratic legitimization, and, therefore, they are a result of the exercise of popular sovereignty. The correlated distinctions between justice and legitimacy, and between proto‐rights and constitutional rights, allow us to specify the scope of the two claims and, hence, to affirm both simultaneously. The philosophical and legal relevance of the distinctions made is elucidated by a brief discussion of the constitutional rights of freedom of speech in the US and Germany. (shrink)

ABSTRACT This paper analyzes the use of language in the construction of identity in the constitution of an anti-state group, which is a part of the sovereign citizen movement in Austria. The group, called ‘Staatenbund Österreich’, had been active for several years before the government charged them with high treason. The group believes that the government is illegitimate – an assumption which allows them to legitimize their behavior. The movement, which is spreading across the globe, has started in the (...) US in the 1970s, and yet, it is still impossible to estimate the actual danger they pose, even though they have been reported to become increasingly violent. The present paper investigates the constitution of the ‘Austrian Commonwealth’ in order to find out how they manage to create an identity for their group, how they legitimize themselves and their claims, and how their language use compares to other extremist groups. (shrink)

This chapter contains sections titled: American Liberalism The Constitutional System Federal Patronage Looking Forward.

The potential of emancipatory social movements to generate new legal norms is a source of hope for feminist activists. Yet there are also serious doubts as to the impact that marginalized women can have on legal institutions and constitution-making. This tribute to Drucilla Cornell foregrounds her contributions to theorizing women’s movements as a source of social-cultural values that could spark constitutional transformation. While Cornell’s concept of “global apartheid,” which exposes the linkages among legalized racism, sexism, capitalist exploitation, and anti-immigrant (...) politics, might seem to reinforce doubts concerning women’s capabilities, the overall legacy of her legal philosophy is hopeful. Building on social movement practices of intergenerational storytelling, ethical witnessing, historical recollection, and respect for the dignity of women brutalized by apartheid systems, Cornell envisioned a revolutionary constitutionalism powerful enough to dismantle global apartheid. Out of women’s movement spaces, she showed us, dignitarian norms emerge with momentum to transform constitutional law. (shrink)

Of the many ideas for which Ronald Dworkin is justly famous, perhaps the most striking is his idea that the US Constitution is to be read morally. This essay seeks to honor Dworkin’s idea by sketching the beginnings of an alternative approach to reading constitutions morally. It begins by distinguishing between the idea that constitutions of a certain sort are to be read morally and Dworkin’s way of reading a constitution morally. I review some of the well-known difficulties (...) for his approach in order to make clear how an alternative would need to do better. Finally, I sketch a moral learning approach to reading constitutions morally. I argue that concern for constitutional legitimacy, respect for the overriding authority of morality, and humility about our own limitations support an approach to interpreting a constitution that allows for moral learning to be reflected in the law. (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)

I begin by evaluating four theories: mereological essentialism, the occasional identity thesis, four-dimensionalism and the constitution view. I compare the solutions these theories offer to puzzles of material constitution with particular attention being paid to their treatment of Leibniz’s Law, the ontological status of objects and the distinction between objects and their matter. If a lump of clay constitutes a statue, the lump of clay and the statue are metaphysically distinct such that they are distinct kinds, but numerically (...) one thing—the statue as constituted by the lump of clay. I defend this view against criticism that it collapses into identity or substance dualism, exploding reality with unnecessary objects. I amend constitution to better account for cases of composite objects and to better solve puzzle cases involving change in parts over time. Finally, I go on to apply constitution to an unorthodox puzzle for theories of objects—the problem of the individuation of events. Events are things that happen. If we grant that events are in the same or similar ontological category to objects, there is a strong analogy between the problem of material constitution and the problem of events. In signing the US Constitution you may also do your bit to ratify it. However, the signing and the ratifying have different properties. I suggest that the signing and the ratifying are distinct in kind, but are not two separate events. I develop a constitution relation—a contingent, irreflexive, asymmetric and transitive relation—for events. This relation has the potential to be applied to the mind-body problem. (shrink)

AbtractTechnologies both new and old provide us with a wide range of cognitive artifacts that change the structure of our cognitive tasks. After a brief analysis of past classifications of these artifacts, I shall elaborate a new way of classifying them developed by focusing on an aspect that has been previously overlooked, namely the possible relationships between these objects and the cognitive processes they involve. Cognitive artifacts are often considered as objects that simply complement our cognitive capabilities, but this “complementary (...) view” seems to be an oversimplification. Assuming an “interaction-centered approach”, this article identifies three essential ways in which cognitive artifacts carry out their function: complementing, constituting and substituting our cognitive processes, and builds a taxonomy of these objects that is grounded on these relations. In so doing, it also addresses the chaotic set of different micro-functions carried out by cognitive artifacts, which have not thus far been dealt with, sorting these functions into three corresponding categories. The second part of the article analyzes in greater detail how cognitive artifacts work in our cognitive life, identifying a new kind of functions, called semi-proper functions, and providing a new definition of cognitive artifact based on the previous analysis of these objects. (shrink)

The Christian doctrine of the Trinity poses a serious philosophical problem. On the one hand, it seems to imply that there is exactly one divine being; on the other hand, it seems to imply that there are three. There is another well-known philosophical problem that presents us with a similar sort of tension: the problem of material constitution. We argue in this paper that a relatively neglected solution to the problem of material constitution can be developed into a (...) novel solution to the problem of the Trinity. (shrink)

This brief paper is devoted to criticizing the widespread reading of Kant’s first Critique, according to which reference to subject-independent objects is “constituted” by higher-order cognitive abilities (concepts). Let us call this the “constitutional view.” In this paper, I argue that the constitutional reading confuses the un-Kantian problem of how we come to represent objects (which I call the intentionality thesis), with the quite different problem of how we cognize (erkennen) (which I call the “cognition thesis”) that we do represent (...) objects, that is, things that exist independently of the subject. (shrink)

This brief paper is devoted to criticizing the widespread reading of Kant’s first Critique, according to which reference to subject-independent objects is “constituted” by higher-order cognitive abilities (concepts). Let us call this the “constitutional view.” In this paper, I argue that the constitutional reading confuses the un-Kantian problem of how we come to represent objects (which I call the intentionality thesis) with the quite different problem of how we cognize (erkennen) (which I call the “cognition thesis”) that we do represent (...) objects, that is, things that exist independently of the subject. (shrink)

Analysis of case law from the US, Germany, South Africa, Canada, Israel, and the ECtHR forms the basis of Tripkovic's exploration of constitutional adjudication from an antirealist standpoint. This highly original work identifies the salient value-based arguments in constitutional practice and exposes the implicit assumptions that lie therein.