Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred (...) congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

In Rousseau’s political theory, the Legislator’s task is to draft the best possible Constitution for a given people. His goal is to maintain the public liberties and to ensure the preservation and prosperity of the State. However, the main problem is “to put law above men” – that is: above the citizens in general and the members of the executive in particular. This paper examines how the Legislator takes up the problem by educating the citizens. The process of education (...) implies the development of reasonable thinking as well as the education of desire. Reasonable thinking is achieved through the formation of the general will. Education of human desire must be understood with respect to the distinction between amour-propre and amour-de-soi. The extension of amour-de-soi to a communityof fellow citizens plays a central role in the formation of the general will and contributes to the development of solidarity among the different social classes. Education of amour-propre plays a role in the development of a national identity. It plays also a role in the political governance of individual desires by means of an administration based on a hierarchy of functions, supervised by public opinion. However, the political governance of desire is challenged by the invisible power of money, which Rousseau tried to neutralize by limiting and slowing down the monetary circulation. (shrink)

This dissertation offers an interpretation of David Hume's political and economic theory that challenges an accepted view this theory. According to this accepted view, Hume offers no positive criteria that maybe used to criticize existing institutions. Against this view, it is argued that Hume thinks that the best society will be one that promotes three distinct human ends---ends he calls industry, knowledge, and humanity. These are, respectively, the active pursuit of intellectual or sensual gratification, the cultivation of the (...) arts and sciences, and the active pursuit of what is good for humankind overall. Hume thinks that the society that promotes these ends will be one marked by what he calls sociability and the spirit of refinement. In such a society, people interact freely and openly with one another, and learning and the arts are widely cultivated. ;The author argues that for Hume, such a society cannot be brought about directly. Instead, enlightened lawgivers must focus on creating the necessary conditions for a sociable and refined society to come about. Hume thinks that the most refined and social society will also be the most commercial. People will be free to produce goods not only for their own consumption but also to trade with others. Further, for commerce to develop freely, a society must first have a government that Hume calls civilized. That is, it must be governed by a system of laws that apply equal to all citizens, that protect both persons and their property, and that govern the behavior of legislators themselves. ;Hume thinks that social progress will invariably be incremental, heavily dependent on the history and customs of the society involved. Reformers must keep always in mind that, except under the least tolerable of regimes, it is worse to try to improve society and fail than not to try at all. (shrink)

ExcerptAll rational liberal philosophic positions have lost their significance and power. One may deplore this but I for one cannot bring myself to clinging to philosophic positions which have been shown to be inadequate. Leo Strauss, “Existentialism”1The Supreme Court decision on the Patient Protection and Affordable Care Act, the Obama administration's signature legislation on health care, attracted exceptional public attention, and rightly so. Health is a vital concern, and the topic is charged with acerbic party politics. More importantly, the (...) terms of the debate give evidence of a widespread awareness, across the political spectrum, that…. (shrink)

This edited volume covers new ground by bringing together perspectives from symbolic legislation theory on the one hand, and from biolaw and bioethics on the other hand. Symbolic legislation has a bad name. It usually refers to instances of legislation which are ineffective and that serve other political and social goals than the goals officially stated. Recently, a more positive notion of symbolic legislation has emerged in legislative theory. From this perspective, symbolic legislation (...) is regarded as a positive alternative to the more traditional, top-down legislative approach. The legislature no longer merely issues commands backed up with severe sanctions, as in instrumental legislation. Instead, lawmakers provide open and aspirational norms that are meant to change behavior not by means of threat, but indirectly, through debate and social interaction. Since the 1990s, biomedical developments have revived discussions on symbolic legislation. One of the reasons is that biomedical legislation touches on deep-rooted, symbolic-cultural representations of the biological aspects of human life. Moreover, as it is often impossible to reach consensus on these controversial questions, legislators have sought alternative ways to develop legal frameworks. Consequently, communicative and interactive approaches to legislation are prominent within the governance of medical biotechnology. The symbolic dimensions of biolaw are often overlooked. Yet, it is clear that the symbolic is at the heart of many legal-political debates on bioethical questions. Since the rise of biomedical technologies, human body materials have acquired a scientific, medical and even commercial value. These new approaches, which radically question existing legal symbolizations of the human body, raise the question whether and how the law should continue to reflect symbolic values and meanings. Moreover, how can we decide what these symbolic values are, given the fact that we live in a pluralistic society? (shrink)

We should now be able to come to some general conclusions about the main lines of Cuvier's development as a naturalist after his departure from Normandy. We have seen that Cuvier arrived in Paris aware of the importance of physiology in classification, yet without a fully worked out idea of how such an approach could organize a whole natural order. He was freshly receptive to the ideas of the new physiology developed by Xavier Bichat.Cuvier arrived in a Paris also torn (...) by many overlapping debates on the nature of classification, and in particular that between the natural and artificial systems. The very validity of the enterprise of classification was questioned in many quarters. Cuvier's achievement on his entry into the Parisian world of science was not simply to establish himself as a highly competent anatomist: far more important, he also began to use ideas from many different specialties to change completely the notion of what was involved in natural history.124 At the same time that he himself swung away from the guiding image of the field naturalist as the ideal of the specialty, he took ideas from the new physiology to answer questions about the order of the animal world, and from comparative anatomy to resurrect extinct creation — and to come to conclusions from that creation about the history of the forms of life and the manner of their succession. He showed himself able to alter the relationships between natural history and many other fields of study in a way that implied, rightly or wrongly, his own complete mastery over such a movement. Partly he was able to do this because the ideas he borrowed were not themselves logically articulated and thus could be easily adapted and refocused for many different specific purposes. The value of the heuristic possibilities inherent in the idea of life, for example, far outweighed its inability to generate full systems of classification. Cuvier also consistently refused to consider in science matters relating to the first causes of events. Freed from the consideration of first-order phenomena, he was able to use second-order explanations across a far wider field of applicability. Personal doubts about the validity of a theology that had used science in order to bolster its own claims were combined here with the strong influence of the Kantian critique of the limits of human reason.125Cuvier's characteristic mode of procedure was that of intellectual appropriation and a bold capacity for altering the relationships between different fields of knowledge, rather than, with the exception of taxonomy, the technique of expanding their subject matter. His claims to originality came, first, from this reappropriation and reorientation and, second, from the sheer scope of his work, which aimed at nothing less than the cataloging and classification of all animate objects.126 They rested also on his acute use of his assertion of a certain relationship with the past of his subject. Very often he would present this history in such a way as to obscure his own intellectual genealogy, and often too he would give differing accounts of the priority of use of an idea in order to distract attention from the questionable exactitude of his own claims to originality. Cuvier came to Paris at precisely the time when society and institutions were most profitably malleable for a newcomer; it was also a time when many scientific disciplines had reached a stage advanced in terms of their factual content, yet relatively inadequate in conceptual organization. They were ripe for takeover by large-scale organizing ideas such as the animal economy and the subordination of characteristics. Paleontology is a particularly good example of a specialty in this particular form of underdevelopment in 1795.Cuvier paid a high price for his initial success. His electic applications of large-scale organizing ideas tended to mean that little of his own work had complete coherence at all levels. Ideas, as we have seen, that proved capable of providing a complete reform of the larger groups of the animal kingdom were incapable of producing its detailed working-out in the taxonomy of smaller groups, which had to be supplied from observed analogical correlations. Further, his physiological approach to classification involved the breakdown of strict correspondence between organs and functions, which left the way open for workers such as Geoffroy St. Hilaire gradually to tilt the balance away from the study of the correlations of hierarchies of functions, and toward morphology as the basis of the order of nature. Cuvier's brilliant appropriations from physiology from the beginning, therefore, contained the seeds of conflict with Geoffroy.Cuvier's eclectic approach made it very nearly impossible for him to present a clear idea of the ways in which the life sciences could be said to be lawful. In spite of his efforts to assimilate them to the position of the physical sciences in this respect, he was forced in the end to accord only an ambiguous status as “laws” to observational correlations. From this area of failure came much of the attempt to give his own two laws — the correlation of parts and the subordination of characteristics — predictive qualities, particularly in relation to paleontological research.It is not surprising that Cuvier's title as the “legislator” of natural history should represent more a claim than a reality. How, then, was he able to emerge as the leading French naturalist of his day? First of all must be adduced the sheer scale of his undertakings. Then comes his expertise as a practical anatomist, and the range of different topics toward which he turned his interest. His collaborators cannot be given credit for his output nor, as we have seen, for slavish adherence to his ideas. Cuvier was able to successfully claim to have dominated the underdeveloped specialties, such as paleontology, and turned them into a major heuristic input into both geology and comparative anatomy; but in other fields, such as physiology, he appropriated concepts and encouraged research but made little impact on the field himself. His attempts in 1812 to head off, or neutralize and absorb the growth of morphological studies landed him in a dangerously rigid position, which despite his encouragement of the new physiological research under the Restoration made further elaboration of his own conceptual underpinnings almost impossible.Cuvier's authority in the scientific world would in any case have been great because of his substantive achievement in taxonomy, but the rest of his work had enough ambiguities and dislocations for it to need the support of his political and social power. Cuvier's detractors seized on a vital fragment of the truth when they accused him of finding the political dimension all-important: it obscured the disjunctions in his theories and at the same time gave him the authority to make new claims for the status of the observational sciences - and for their relations of power with their surrounding specialties. Cuvier's science both thrived on and was halted by the power games of intellectual appropriation, manipulation of the past to confirm the present, and continual claims for hegemony. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory by Petar PopovicPius Pietrzyk O.P.Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory. By Petar Popovic. Foreword by F. Russell Hittinger. Washington, D.C.: The Catholic University of America Press, 2022. Pp. xv + 307. $75.00 (hardcover). ISBN: 978-0-8132-3550-9.About a decade ago the former Cardinal Archbishop of Chicago, H. E. (...) Francis Cardinal George, one of the great theologian bishops of the American episcopate, issued a letter on a piece of pending legislation in the state of Illinois. The focus of the letter was on the teaching of the natural law, and why adherence to the natural law required opposition to the proposed legislation. In response, a well-known law professor at a prestigious secular [End Page 710] law school in the state wrote a public response for an online political website. The focus of his argument was to criticize the notion of natural law according to his understanding of the teaching of St. Thomas Aquinas. It is not necessary to describe the details of his argument, other than to say it tended to understand natural law as mere naturalism that evinced a fairly glaring misreading of the Angelic Doctor. That is, the secular legal scholar argued, in essence, that since the activity in question was observable by animals in nature, that it was therefore part of the natural law, and could be defended as a right. To this, a Thomistic sed contra is perhaps the most fitting response.As this story makes clear, there is a great ignorance of what constitutes the natural law in the secular consciousness, even among the most respected of secular legal scholars, to say nothing of the application of the natural law to the juridic world of law and politics. Perhaps the last hurrah of natural law, at least in the American public consciousness, was then Sen. Joseph Biden’s famous grilling of Supreme Court nominee Clarence Thomas on the subject in 1991. Since then, legal positivism has become nearly universal, divorcing legal norms from any realistic understanding of a common human nature. It has become the dominant ideology in America’s legal academies, even if some adherents of natural law remain in positions of authority in the judicial system.Although it has faded from the world of secular law in the United States, the tradition of natural law has retained a firm hold in Catholic thought, especially by that religious order dedicated to the teachings of its most brilliant adherent, St. Thomas. Not only Thomistic natural law, but proponents of the so-called new natural law continue to provide a vibrant source of debate and insight into the understanding of the natural law in evaluating the goodness of human action. Pope John Paul II’s famous encyclical Veritatis Splendor represents the magisterial commitment to the natural law approach in moral thinking, even if some might believe that commitment has weakened in recent years.To a lesser degree, there has remained a strong current of natural law thinking within the currents of legal philosophy in canon law, even if the precise connection between natural law and its juridic instantiation has not always been the focus. Among recent ecclesiastical legal theorists, arguably the most influential proponent of a robust natural law approach to legal philosophy was the Spanish canonist Javier Hervada Xiberta, and especially his Introducción crítica al derecho natural, currently in its tenth Spanish edition. A disciple of Jose Maria Escriva’s Opus Dei movement, Hervada was a long-serving and internationally respected dean of the School of Law in Navarre. Through his teaching and the various journals he founded, he insisted on the link between law and justice—lex and ius. Hervada was firmly convinced of the realism of law: law is nothing less than the ipsa res iusta. That notion of ius was not simply an idea, but recognized a real relationship of debt and obligation between persons. [End Page 711]In this, Hervada saw himself as the proponent not of some novel theory, but merely of one... (shrink)

Women’s legal rights are one of the most significant determinants of their status. In Bangladesh, a series of laws ensuring women’s rights have proven largely ineffective in promoting their positions. The prime reasons for this are: dirtier politics, the ineffective implementation of women rights laws, the traditional and cultural negative views about women’s rights, the absence of an accountable and transparent government, the expensive and time consuming judicial process, the lack of an efficient judiciary, and other socio-economic reasons. The core (...) theme of this essay concentrates on the ineffective enforcement of laws with the objective to promote protection of women’s rights by recommending remedies to flaws in prevailing laws in Bangladesh. Recommendations are made by reference to comparative and international practices. The primary arguments developed throughout this essay are: the protection of women’s rights is imperative to improve their status the legislative, administrative and judicial efforts dealing with women’s rights; and improvements in those effortsto better protect women’s rights. This study examines laws regarding women’s employment and political participation and the laws on dowry. It also explores the ways laws have been structured and enforced in Bangladesh, and how law can be an effective means of women’s pursuit of rights. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Political Economy and Classical AntiquityNeville MorleyThe literature of the ancients, their legislation, their public treaties, and their administration of the conquered provinces, all proclaim their utter ignorance of the nature and origin of wealth, of the manner in which it is distributed, and of the effects of its consumption.... The steadily increasing progress of different branches of industry, the advancement of the sciences, whose influence upon wealth (...) we shall have occasion hereafter to notice, and the direction of public opinion, at length estimating national prosperity as being of some importance, caused the science of political economy to enter into the contemplation of a great number of writers.J.-B. Say 1I. The science of political economy offered an entirely new way of understanding human society. 2 Say’s account of its emergence is teleological and self-serving, figuring his own work as the logical culmination of earlier enquiries, but it accurately reflects the way in which political economy was perceived and presented as a modern innovation. The more that eighteenth- and nineteenth-century political economists turned their attention towards the economic rather than the political state of the nation, the more they became aware of their own originality in doing so. The writings of the ancients might still dominate discussions of political theory, but the moderns noted with satisfaction the failings and fumblings of classical authors in the study of the economy; they alone had discerned its significance and developed the tools with which to [End Page 95] analyze it. Moreover, there was no obvious reason why this new science should confine its attentions to the contemporary world; the economies of the past could be studied in the same manner, and thus political economy offered the possibility of understanding ancient society better than the ancients did themselves.Students of ancient society were slow to respond to this challenge. Neither Edward Gibbon nor George Grote had much to say about the ancient economy, despite their close relationships with economists of the Scottish Enlightenment and the Philosophic Radicals respectively. Gibbon was well aware of contemporary debates on luxury (see below), and he also disputed Montesquieu’s theory that taxes decrease according to the level of despotism in a state, but that was all. 3 A letter written by Grote’s wife suggests that his chapter on Greek colonization was intended to infuse useful doctrines on political economy and the principle of population, but in the published version this intent is limited to vague statements about the importance of agriculture in sustaining a colony. 4 Grote’s advocacy of comparative history—“not omitting the points of resemblance as well as of contrast with the better-known forms of modern society”—was in practice limited to politics and the history of ideas, above all in the debate on the merits of democracy. 5 The sole exception was a comparison of Solon’s legislation restricting Athenian exports with the British Corn Laws, to the advantage of the former. 6With the lone exception of Boeckh’s 1817 treatise on The Public Economy of Athens, the subject of the ancient economy was almost entirely ignored by historians until the middle of the nineteenth century. 7 Their own interests and those of the ancient sources on which they relied led them to conceive of history in terms of events, above all of events in the fields of politics and war. Economic matters were touched upon in their accounts of certain episodes—the reforms of Solon, for example, or the Roman agrarian laws—but never in detail or with much analytical sophistication, let alone drawing upon the theoretical insights of political economy. William Ramsay’s Manual of Roman Antiquities in 1851 devoted much more space to economic topics than had been customary, but was otherwise indistinguishable from its predecessors; the chapter on Roman agriculture was little more than a paraphrase of the writings [End Page 96] of Vergil and Varro, and his account of state revenues merely compiled information from the ancient sources as an end in itself. 8The drought was not ended until 1854, when Theodor Mommsen’s History of Rome not only devoted considerable attention to such subjects as agriculture, commerce, and... (shrink)

Amidst the ideology, efficiency and bitter contention of international economy, the importance of leadership or public administration had long been under-stressed as an avenue for any better solution. Nonetheless, within a changing mode of interaction in the global community, an increasing ethos for the kind of common basis of ethics or agreement, at least in the level of class administrators or noble citizenry including the academicians, business leaders, bureaucrats and so, could be congruent for the public good on the national (...) and international plane. A rapid transformation for the informative society or sharing and humanity or social justice generally is seen to enable the possibility of new openness against the divergences from various reasons. Typically, I consider the public administration other than law, inter alia, could have strands to leap for any grand promise or for any cosmopolitan public value since it tends progressive and less ideological. At the core of ambition underlie the ethics of public administrators or their responsibility for the constituents and global public. The paper deals with two illustrative cases from the experience of South Korea which matters at the negative and positive concept of liberty. They will be investigated, empirically at some extent and in view of the ethics of congressmen and public officers. I, then, turn to explore the western theories and tenets often associated with their moral standard. Finally, the context could be revisited for the global scale of transformation expanded to cover the Orient and West. (shrink)

There are several reasons, according to which it is worth analyzing European administrative law. First, this is a rather new branch of law. Second, the European administrative law is treated in different countries from different legal traditions positions, consequently, any effort to unify the approach to it can provide a basis for a unified European administrative law model. Third, there are no works dedicated to the analysis of the phenomenon of the European administrative law in Lithuania. (...) Therefore, this article deals with the concepts of the European administrative law. It is stated that the comprehensive image of the European administrative law reveals three European administrative law concepts. The first concept of the European administrative law characterizes it as the European Union (hereinafter – EU) administrative law, the validity of boundaries of which can be based on three aspects – functional, institutional and procedural. The second concept of the European administrative law identifies it as the law of administrative cooperation., whereas the third concept allows the European administrative law to be seen as the law common to various public administrations of European countries – ius commune. The article focuses on the analysis of the above-mentioned three approaches and the EU set of administrative procedures as an instrument to promote the development of the EU administrative law. The author comes to the conclusion that the concept of the ‘European Administrative Law’ is broader than the concept of the ‘EU Administrative Law’. The European administrative law can be perceived not only as a part of law that establishes the EU administration’s administrative legal status, its’ activity principles, forms and methods, but also as a law of administrative cooperation between states, governmental and non-governmental organizations and various corporations, based on a wide range of multilateral treaties or conventions, which cross the limits of the EU. Moreover, the European administrative law can be understood as a law with common concepts, general principles characteristic to different European countries’ public administrations as well as a science, with the help of which diverse administrative legal systems of various countries could be compared. Taking into account the content of various working documents, the author draws the conclusion that for the further development of the EU administrative law the establishment of uniform operating rules for the EU administration in its’ relations with the society is of exceptional importance. There are a number of important reasons to develop the Law on administrative procedure of the EU. First, it is generally recognized that the EU needs common binding legislation that sets out clear operating rules of the EU administration in its’ relations with legal and natural persons, and that would increase the transparency of the EU administration and its’ accessibility to citizens. Second, the drafting of the law on administrative procedure of the EU lies in the legal framework as well; the importance of the article 298 of the Treaty of the Functioning of the European Union, the articles 41 and 42 of the Charter of Fundamental Rights of the EU as well as “soft” law (i.e. codes of good administrative behavior) are obvious here. (shrink)

This study constitutes an ethical analysis through the lens of distributive justice in the case of the Troubled Asset Relief Program (TARP), which was enacted in the midst of the Great Recession of 2007–2009. It begins by engaging with the visions of justice constructed by John Rawls and Robert Nozick, using their insights to locate the injustices of TARP according to their moral imaginations. However, this study argues that Rawls’ and Nozick’s theories of justice primarily envision the nature of law (...) as being restrictive of vice, not as instructors of virtue. Thus, it resources the legal philosophy of St. Thomas Aquinas to demonstrate how the positive pedagogy of law can enable a more just construction of economic rescue legislation, one that not only prevents future repetitions of economic vices and injustice, but is also formative for a society that prizes economic justice and virtues. In doing so, the study proposes two criteria for a more just consideration of economic rescue legislation that embraces law’s positive pedagogy. (shrink)

Should we conceive of corporations as entities to which moral responsibility can be attributed? This contribution presents what we will call a political account of corporate moral responsibility. We argue that in modern, liberal democratic societies, there is an underlying political need to attribute greater levels of moral responsibility to corporations. Corporate moral responsibility is essential to the maintenance of social coordination that both advances social welfare and protects citizens' moral entitlements. This political account posits a special (...) capacity of self-governance that corporations can intelligibly be said to possess. Corporations can be said to be "administrators of duty" in that they can voluntarily incorporate moral principles into their decision-making processes about how to conduct business. This account supplements and partly transforms earlier pragmatic accounts of corporate moral responsibility by disentangling responsibility from its conventional linkages with accountability, blame and punishment. It thereby represents a distinctive way to defend corporate moral responsibility and shows how Kantian thinking can be helpful in disentangling the problems surrounding the concept. (shrink)

Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is (...) understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Drawing on the 1969–1970 trial of eight radical activists accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago, the article argues for a performative re-conceptualization of sovereignty, the subject, and the law as indeterminate, unpredictable, and open-ended discursive formations. The article demonstrates how the accused, working with and against legal doctrines, norms, and discourses, rethought normative conceptions of sovereignty, law, and subjectivity as contingent power-knowledge constellations that are open, unpredictable, and un-closable. (shrink)

This book explores how the figure of the slave has been used to construct ideas of freedom in Western political and legal philosophy. The figure of the slave has supported philosophical and legal defences of colonialism, coloniality and the supremacy of the white subject. Yet for Giorgio Agamben, the slave stands (almost counterintuitively) as an exemplar of a potential form of future positive political existence. Developing this line of thought, the book reads key thinkers Agamben engages with (...) in his thought and writings - including Aristotle, Saint Paul and G W F Hegel - and draws on decolonial theory to argue that the lives of people who were enslaved and unfree, and their actions and gestures, can point towards a paradigmatic form of political belonging. By reading Agamben in a decolonial direction, we can imagine alternative forms of agency, recognition and subjectivity, which can challenge the necropolitical world of racial capitalism in which we live. This study will appeal to scholars, researchers and graduate students with an interest in the thought of Giorgio Agamben, radical politics, legal and political philosophy and decolonial theory. (shrink)

This article questions some assumptions in legal, moral and political theory regarding the law’s ways of functioning. As the constant revival of the topos ‘living law’ shows, underlying common models of law, and of the legitimacy of law, is, though often implicitly, the view that law is or should be particular, near to the facts, flexible, susceptible to realities, and as a consequence accessible to modernisations. However, this article proposes an immanent critique of similar hopes or fears, and it (...) argues that modern positive law can not be responsive to any other ‘order’ or context because it constitutes an order of its own. The article seeks to give an explanation of the specific character and forms of the juridical operating and to explain more specifically how decisions are produced. The article in this regard also investigates the importance and role of imagination, fiction and performativity. Underlining the fact that the juridical exceeds legal propositions by asserting itself as a distinct form of social communication, it calls for a shift from the representational to the performative analysis in the study of law. (shrink)

The question examined in this study is not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law, and how law must then be transformed. The methodological parable imagines a “post-genealogy” or “pot-ressentiment” phase of the human condition, akin to the Marxist “post-revolutionary” phase: how would law look for the person of power - overman or otherwise - (...) who needs to live among others? How is normativity possible - what are its forms and functions - in a social world that has undergone a reevaluation of all values? The study traces three possible models for conceptualizing law in Nietzschean terms, each requiring a radical shift from traditional (in different contexts: liberal, Christian, bourgeois) conceptions. The first one is play: law as affirming and embracing the essence of the Dionysian, which is perpetual becoming. Play requires us to let go of law's role as the curtailer of arbitrariness. An integral part of the Nietzschean program, it requires a radical reevaluation: not just law's content is overcome, nor merely its bourgeois forms (in Pashukanis' critical terms), but its “internal” or “inherent” values of certitude and stability are overcome as well. The model I offer for play is not Zarathustra's dicethrow but Borges' The Lottery in Babylon. The second model is that of resistance, framed by Nietzsche's analysis of power and Deleuze's distinction between active and reactive forces. The insight here is that power requires resistance, and it is law's primary function to empower the other in order to invest value in meeting and confronting her; thus the monism of the will to power not only does not do away with normativity in the public sphere but actually requires it - but for goals opposite to those of liberalism. Resistance is linked to the third model, fashioned after Nietzsche's model of education: here, law performs not as a socializing agent but rather as a “liberator” of authenticity. Its function is analogous to that of a mentor whose role is to ultimately encourage the pupil into coming into her own will, shedding ressentiment and bad conscience in an active, i.e. non-conscious way; in its relation to consciousness it is the opposite of psychoanalysis. A fourth consideration is then offered, the role of normativity in self-overcoming, or self-legislating; namely, how does normativity figure in the will to power's most significant challenge. While all these models work from an interpretation of the will to power as becoming, the last two are especially dependent on the active-reactive distinction. The cornerstone is not to mix up power with representations of power; to realize that the case is not the will that desires power (as an object of desire, this would necessarily involve a representation of power) but power that wills becoming. In dealing with this metaphysical question I expound on a similar crucial interpretation, originally offered by Deleuze; however, I break off from Deleuze's claim that the will to power has nothing to do with any notion of struggle. If this discussion of the will to power is missed , or if it is wrong, the main argument of this article can not hold. Finally, I use this interpretation of the will to power to solve Kafka's riddle in The Trial: a necessary move once one realizes that, in the ethical history of western culture, Kafka's parable of the seeker of the law before its closed gates continues a sequence that began with Plato's fable of the cave and continued with Zarathustra's cave parable. I add three points that may be termed methodological or contextual. The first is positioning Nietzsche's limited discussion of law and politics as a derivative of his metaphysics of the will and treatment of moral psychology, not as an independent topic to be searched and indexed in some textual corpus. The second is to understand the question of normativity in its particularly Nietzschean sense, i.e. “what is X to me/to the overman?”, and not in the Kantian sense of uncovering the conditions that entail any synthetic, a-priori sentence (such as normative ones). The last comment places the Nietzschean project in a larger pattern that defined radical thought in the late nineteenth and early twentieth centuries, and whose other cases are Marx and Freud: a new metaphysics (will to power/materialism/id) that uncovers a state of bondage, psychological and material, in which law plays a pivotal role in its function of reinforcer and supplier of a legitimizing language (respectively, of ressentiment, of the relations of production, of Oedipus and the bourgeois family); and finally radical, yet partial ways of overcoming bondage that are not mutually translatable - genealogy, revolution, psychoanalysis. (shrink)

This article analyzes some recent developments in the system of public law in the Russian Federation, focusing in particular on changing patterns of litigation and increases in use of administrative law, linked to new acts of legislation. It argues that discussion of the Russian case provides a sociological perspective in which we can understand the importance of legal actions in hybrid polities. It explains that litigation in Russia, even where it may have counter-systemic outcomes, is partly incentivized by (...) the government, as promotion of access to law is seen as a means to formalize interactions between citizens and government and so to extend the societal penetration of the political system more generally. Litigation thus forms a mode of practice that, dialectically, possesses both inner- and counter-systemic status. In addition, the article argues that the case of Russia allows us to comprehend litigation as an element in processes of nation building and social integration more widely, and Russia illuminates the systemic significance of litigation in other societies. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Plato's Utopia Recast: His Later Ethics and PoliticsGeorge HarveyChristopher Bobonich. Plato's Utopia Recast: His Later Ethics and Politics. Oxford: Clarendon Press of Oxford University Press, 2002. Pp. xi + 643. Cloth, $49.95.In tracing developments in Plato's views between his middle- and late-period dialogues, Plato's Utopia Recast focuses on the differences between philosophers and non-philosophers with respect to their capacities to become genuinely virtuous. The central thesis of this (...) extensive work is that the Laws reveals a degree of optimism about the prospects for non-philosophers in attaining virtue and happiness not found in dialogues of the middle period. Specifically, Bobonich describes this development in terms of four claims that he thinks Plato denies in the Phaedo and Republic but later affirms in the Laws: first, that at least some non-philosophers are capable of being virtuous; second, that they can value virtue for its own sake; third, that they can value the virtue and happiness in others for its own sake; and fourth, that these non-philosophers are capable of living happy lives.Bobonich devotes most of the first chapter to describing Plato's pessimism about non-philosophers in the middle period. The cause for this pessimism is both epistemic and psychological. In the Phaedo, non-philosophers are incapable of knowing what is genuinely valuable. Failure to grasp non-sensible value properties means that in non-philosophers, reason simply takes over the ends defined by bodily impulses. The Republic is less pessimistic, but even here, Plato's tripartitioning of the soul makes clear that the rational part of the soul in non-philosophers fails to fulfill its proper ruling function. Bobonich's claim is that the more optimistic view presented in the Laws is indicative of developments not only in Plato's political theory, but also in the areas of psychology and epistemology.The central feature of the political theory advanced in the Laws is that the proper goal of legislation is not victory in war, but the cultivation of virtue in all citizens. More importantly for Bobonich, it suggests that all citizens, both philosophers and non-philosophers, are capable of attaining some degree of genuine virtue. For evidence of this, he points to the preludes that accompany each piece of legislation designed to provide a rational justification for what the laws command. In identifying virtue as the aim of legislation, Bobonich observes that the Laws endorses a dependency thesis about goods, making the value of a dependent good such as wealth, honor or military victory dependent upon its possessor being virtuous. His position is that Plato's endorsement of this dependency thesis in the Laws implies that ordinary citizens are capable of at least a partial grasp of what is genuinely valuable, making some degree of virtue and happiness attainable.Bobonich's view that this optimism about non-philosophers has implications for Plato's later epistemology and psychology is developed in the third and fourth chapters. He argues that the Republic's partitioning of the soul into three distinct, agent-like parts is abandoned in the later dialogues in favor of a more unified conception. This approach in the [End Page 334] middle period served to account for akratic action and the formation of non-rational desires, but Bobonich believes that Plato came to see this doctrine as ultimately flawed. By contrast, the Laws offers an account of akratic action and non-rational desire that maintains a unified subject and avoids the problems found in partitioning. In chapter four, Bobonich considers how the Laws' unified conception of the subject, supported by the Phaedrus, Philebus and Timaeus, reveals how all human aims and desires, both rational and non-rational, are structured and conceptualized through the soul's rational faculty. In this unified conception of the subject, Bobonich sees important implications for the role of non-rational elements in the ethical education of even ordinary human beings.In the fifth and final chapter, Bobonich returns to politics, and considers how Plato's conception of citizenship in the Laws reflects the more optimistic view of human nature. He examines how citizens in the Laws develop non-instrumental concerns for the happiness... (shrink)

The puzzle arises because propositions of law seem to be descriptive—they are about how things are in the law, not about how they should be—and yet it has proved extremely difficult to say exactly what it is that they describe. Legal positivists believe that propositions of law are indeed wholly descriptive: they are in fact pieces of history. A proposition of law in their view, is true just in case some event of a designated law-making kind has taken place, and (...) other wise not. This seems to work reasonably well in very simple cases. If the Illinois legislature enacts the words "No will shall be valid without three witnesses, "then the proposition of law, that in Illinois will needs three witnesses, seems to be true only in virtue of that historical event.But in more difficult cases the analysis fails. Consider the proposition that a particular affirmative action scheme is constitutionally valid. If that is true, it cannot be so just in virtue of the text of the Constitution and the fact of prior court decisions, because reasonable lawyers who know exactly what the constitution says and what the courts have done may yet disagree whether it is true. What are the other possibilities? One is to suppose that controversial propositions f law, like the affirmative action statement, are not descriptive at all but are rather expressions of what the speaker wants the law to be.Another is more ambitious: controversial statements are attempts to describe some pure objective or natural law, which exits in virtue of objective moral truth rather than historical decision. Both these projects take some legal statements, at least, to be purely evaluative as distinct from descriptive: they express either what the speaker prefers—his personal politics—or what he believes is objectively required b the principles of an ideal political morality. Neither of these projects is plausible because someone who says that a particular untested affirmative action plan is constitution does mean to describe the law as it is rather than as he wants it to be or thinks that, by the best moral theory, it should be. He might, indeed, say that the regrets that the plan is constitutional and thinks that, according to the best moral theory, it ought not to be.There is a better alternative: propositions of law are not simply descriptive of legal history, in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, which combines elements of both description and evaluation but is different from both. This suggestion will be congenial, at least at first blush, to many lawyers and legal philosophers. They are used to saying that law is a matter of interpretation; but only, perhaps because they understand interpretation in a certain way. When a statute is unclear on some point, because some crucial term is vague or because a sentence is ambiguous, lawyers say that the statute must be interpreted, and they apply what they call "techniques of statutory construction." Most of the literature assumes that interpretation of a particular document is a matter of discovering what its authors meant to say in using the words they did. But lawyers recognize that on many issues the author had no intention either way and that on others his intention cannot be discovered. Some lawyers take a more skeptical position. They say that whenever judges pretend they are discovering the intention behind some piece of legislation, this is simply a smoke screen behind which the judges impose their own view of what the statute should have been.Ronald Dworkin, professor of jurisprudence at Oxford University, is the author of Taking Rights Seriously and editor of The Philosophy of Law. (shrink)

This article is aimed at representing the approaches of legal theory to the interaction between law and politics and to depict the main national features of the relationship between law and politics. The analysis is based on the adoption of methodology of fundamental work of Mauro Zamboni “Law and Politics”. The adoption of methodology was used only partially, while seeking to identify and clarify the features of static, dynamic and epistemological aspects of the relationship of law and politics in Lithuania. (...) Researchers have faced the problem of a diverse approach to the definitions of law and politics, and it has been resolved by focusing only to the researches representing the standpoint of legal theories. The analysis has led to the findings that there are reasonable grounds to assume that legal content (referring to the “static” aspect of law and politics) in Lithuania is flexible to outgoing politics. This implication is based on 1) the noticeable disproportion of legal regulation in different areas of social life, 2) law-making priority areas determined mostly by the choice of political actors will and 3) through changed execution of legal norms, prefering the forms which could be more cost effective (alternative dispute resolutions) and more suitable for changing social environment. What concerns the “dynamic” aspect of the relation between law and politics, it is implicated that there are backings for both open and closed law making, but at the same time more open legislative features are observed than the closed ones. This tendency is identified in the legislative process, where the help out of non-legal world is applied (using sociology) and the persistence of politicians to access and use the institutes of citizens’ legislative initiative (iniciatives for referendums or other legislative initiatives, the right to petition, etc.) is obvious. The reflection of „epistemological“ aspect of the relationship between law and politics in Lithuanian legal discipline reflects the general trend of international scientific community of law. It is considered to step back from the autonomous legal discipline concepts and in this way the appropriate conditions for incorporation of different categories from other scientific fields are created. On the other hand, a reserved cautious attitude of both researchers and research institutions on the conjunction of law and political science is observed. The interaction between law and economics and business or public relations is still prioritized. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

'Autonomy' is originally a political notion. In this chapter, I argue that the political theory Kant defended while he was writing the _Groundwork_ sheds light on the difficulties that are commonly associated with his account of moral autonomy. I argue that Kant's account of the two-tiered structure of political legislation, in his _Feyerabend Lectures on Natural Law_, parallels his distinction between two levels of moral legislation, and that this helps to explain why Kant could regard (...) the notion of 'autonomy' as apt to express the principle of morality---at least in the mid 1780s. (shrink)

It has long been said that legislation ought to be knowable: accessible, comprehensible, and so forth. This is often described as an essential element of the rule of law. But in many legal systems, legislation has become so voluminous and complex that few people know its content. Rather than admit that the rule of law has been compromised, some scholars take legislative complexity as a provocation to rethink what the rule of law requires—and conclude that, for various reasons, (...) the rule of law can prevail even if legislation is not reasonably knowable to the people. This article responds to this line of scholarship and defends the orthodox position that the public ought to be able to understand legislation, or at least reasonably so. That is necessary to enable people to plan their lives in a way that properly reflects the role of legislation in contemporary administrative states. (shrink)

This book addressees a timely and fundamental problematic: the gap between the aims that people attempt to realize democratically and the law and administrative practices that actually result. The chapters explain the realities that administration poses for democratic theory. Topics include the political value of accountability, the antinomic character of political values, the relation between ultimate ends and the intermediate ends that are sought by constitutions, and a reconsideration of the meaning of the rule of law itself. (...) The essays are inspired by the demystifying realism of Max Weber and Hans Kelsen, including explications of their views on law, constitutions, and the rule of law. The book will be of interest to social and political theorists, philosophers of law, and legal theorists, and for discussions of democratic theory, the administrative state, constitutionalism, and justice, as well as to readers of Weber and Kelsen. (shrink)

The objective of the article is to present Hans Kelsen’s basic norm concept that allows the combination of the two relevant dimensions in relation to juridical science, namely the positivity and validity of law. The role of the concept of basic norm is presented by the author of the Reine Rechtslehre with reference to Kant as a concept enabling formulation of an answer to the question “To what extent is it possible to interpret certain facts as objectively valid legal norms?” (...) The epistemological problem of the object of cognition of juridical science is connected with the issue of normativity. According to Kelsen, only the assumption of a certain nonpositive hypothetical norm regulating the legislation of norms of a given system enables normative interpretation of certain facts. The basic norm authorizes the way of issuing norms, yet not their content. The structure of the legal order creates a hierarchical system in which the higher category norms delegate the law-making power to create the lower category norms. The legal system creates a dynamic system of norms. (shrink)

In 'Sociocybernetics and Political Theory in a Complex World', Roberto Mancilla posits that because current political and constitutional theory was crafted since the XVII century, in the age of globalisation, Google and Big Data, other arrangements are needed. He proposes a recasting of the ideas of the State, Separation of Powers, The Public/Private Distinction and Constitutionalism by means of cybernetics, a body of knowledge that gave way to the technology that we have today. This will be done by (...) means of a general introduction to sociocybernetics and complexity and then through the critical dismantling of said concepts of political theory and then proposals imbued with newer ideas. (shrink)

Habermas dialogically recasts the Kantian conception of moral autonomy. In a legal-political context, his dialogical approach has the potential to redress certain troubling features of liberal and communitarian approaches to democratic politics. Liberal approaches attach greater normative weight to negatively construed individual freedoms, which they seek to protect against the interventions of political authority. Communitarian approaches prioritize the positively construed freedoms of communal political participation, viewing legal-political institutions as a means for collective ethical self-realization. Habermas’ discourse (...) theory of law and democracy seeks to overcome this competition between the negative and positive liberties. Doing so entails reconciling private and public autonomy at a fundamental conceptual level. This is his co-originality thesis, which seeks to show that private and public autonomy are internally connected and evenly balanced. I support his aim but argue that he fails to achieve it due to an unsatisfactory account of private autonomy. I suggest an alternative dialogical conception of autonomy as ethically self-determining agency that would enable him to establish his thesis. (shrink)

The questions of violence, justice and judgment define one of the most resonant and constant concerns of contemporary thought. In part, this is only a reflection of what are often called the ‘realities on the ground’ . In the few years of this century the logic of violence, and even its aestheticisation – whether as terror or as ‘shock and awe,’ or in the citizen’s daily vocation to be ‘alert but not alarmed’ – have become the familiar data of current (...) experience. They are a kind of weather, felt through the colour-coded threat scale of the Homeland Security Advisory System, or in the casual references to the ‘current climate.’ In view of these realities, and of an acclimatisation to them that informs general popular support for extensions of executive power and legislative activity, the urgency of the turn or return to questions of force and law is to be expected. In the fabric of recent debate, they are seams at which confrontations are staged and positions defined; but also, where the thought that remains closest to the ‘realities on the ground’ is forced into juxtaposition with the mythological and theological schemes that violence, justice and judgment inevitably conjure. Thus, contributors to this issue of Colloquy were invited to consider whether it was possible to account for a difference between violence, terror and revolution, without simplification or banalisation of the relationship between law and force. On the one hand, the editors envisaged that this question would be a provocation to reexamine contemporary representations of sovereignty, jurisdiction and the ‘state of exception,’ in a global context dominated by issues of security and the justification of extra-legal and extra-judicial force – occupation, detention, torture. On the other hand, the reference to the mythological and the theological was inevitable, inasmuch as contributors were invited to organise their reflections around two of the most significant interventions in twentieth-century jurisprudence and political theory, Walter Benjamin’s “Critique of Violence” and Jacques Derrida’s “Force of Law.” For as is well-known, Benjamin and Derrida pursue their distinctive lines of questioning in the direction of a ‘divine violence’ or of a ‘mystical foundation of authority.’ The reception of the two texts suggests that these concepts remain, for many, difficult to the point of being indigestible; at least in the ‘current climate.’. (shrink)

This dissertation evaluates the efforts of modern philosophers of aesthetics and politics to distinguish judgment from both cognition and volition. To see the rule under which any given particular is to be subsumed as a law fabricated and imposed by either God or reason is to characterize free judgment in terms of sovereignty. This generates the skeptical dilemma of an infinite regress of the legitimacy of the rule's application that can only be avoided by seeing the act of judgment as (...) an act of will. Such a voluntarist account of politics and judgment must in the end deny plurality for identity, and efface the categorical Aristotelian distinction between the public and the private. The rejection of the teleology of publicity is thus tied to the collapse of phronesis back into a Platonic techne that strives to produce society and man in the image of the eidos. ;Three "solutions" to this aporia are considered. The first is Hannah Arendt's appropriation for politics of Kant's aesthetic judgment, which allows for categorical distinctions between the public and the private and between judgment and the observance of rules. This project fails on account of the extreme formalism of that aesthetics. The second reads the third Critique as an allegory of politics. This too fails, as Kant's aesthetic community relies upon the productive legislation of the genius, a figure whose lineage reaches back to the half divine, half bestial figure of Machiavelli's founding prince. The third is a direct return to Aristotle. While his ethical philosophy offers us our best account of phronesis and epieikeia, it does not sufficiently engage the motivations for its own rejection. Hobbes, Locke, and Kant were not so taken with the model of mechanistic science that they simply forgot that in their common lives they regularly made judgments without the implicit or explicit guidance of a rule. The modern is better seen as a Weltanschauung, less a description that might be right or wrong than a desire. The alternative to the aporia of judgment is not found in the aesthetic but in a Wittgensteinian form of philosophical therapy. (shrink)

Although generally not thought to be a work of political theory, 'The Record and Process of the Deposition of Richard II' was grounded in both practice and theory. A recitation of the political sins of Richard II, it also became a theoretical statement of what medieval Englishmen expected good kingship to be. It was grounded in the common law tradition as well as in the work of various fourteenth-century theorists. 'The Record and Process' enunciated specific rights that its (...) authors expected a king to observe as well as indicating that English kings were considered to be below both natural and positive law. (shrink)

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and (...) extensive interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada. (shrink)

This article responds to the theory of Common Good Constitutionalism as posited by Adrian Vermeule. He argues that a powerful centralized government composed of wise rulers must use law to direct the public towards a proper political and substantive morality to achieve the ends of the common good. This article then explores the broader concept of Integralism, in which Common Good Constitutionalism is rooted, similar in its belief that politics must be concerned with the human good through the centralization (...) of sovereign power. Natural law adherents created Common Good Constitutionalism and Integralism to combat the legitimate societal threat of modern liberal individualism and reintroduce the spiritual common good into our political and legal discourse. Though these arguments have some appeal, both theories are misguided in their understanding of the nature of politics, law, and the United States as a constitutional republic. This article instead suggests a more authentically Catholic salve for the societal wounds inflicted by acidic individualism; a true natural law understanding of the common good which respects the decentralized history and tradition of our country, the limits of political authority, the social priority of local communities above the state, and most importantly, the reality that man’s ultimate end is God’s gift of salvation. (shrink)

In this book, experts from the fields of law and philosophy explore the works of Aristotle to illuminate the much-debated and fascinating relationship between emotions and justice. Emotions matter in connection with democracy and equity – they are relevant to the judicial enforcement of rights, legal argumentation, and decision-making processes in legislative bodies and courts. The decisive role that emotions, feelings and passions play in these processes cannot be ignored – not even by those who believe that emotions have no (...) legitimate place in the public sphere. A growing body of literature on these topics recognizes the seminal insights contributed by Aristotle. This book offers a comprehensive analysis of his thinking in this context, as well as proposals for inspiring dialogues between his works and those written by a selection of modern and contemporary thinkers. As such, the book offers a valuable resource for students of law, philosophy, rhetoric, politics, ethics and history, but also for readers interested in the ongoing debate about legal positivism and the relevance of emotions for legal and political life in today’s world. (shrink)

This paper provides a synopsis of the human rights enforcement in Bangladesh, which marks its 50 years in 2021 since its independence. After a theoretical background on how human rights are perceived as legal and political instruments, it critically discusses human rights provisions and explores the legal and institutional frameworks on human rights enforcement in Bangladesh—(re)construed in 50 years (1971–2021). Finally, it divulges the controversies in human rights enforcement and a roadmap to address them by making some suggestions: multiple (...) legislative, administrative, and judicial reforms are required to tackle human rights abuses to ensure punishment for the abusers and restitution for the victims. The paper concludes with the notion that the positive will of the relevant stakeholders (legislature, executive, and judiciary) is the key to upholding and protecting the human rights of Bangladeshi citizens. The significance of this paper lies in exploring the complexities associated with the laws and insular national politics, which often debars the enforcement of human rights and crucially compromises Bangladesh’s ability to empower its citizens. (shrink)

There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a ‘character’ based approach in criminal law is necessarily illiberal and violates the (...) state’s commitment to political neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd’s characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:SENECA FALLS INHERITANCE: DISENTANGLING WOMEN, LEGISLATION AND VIOLENCE IN MONFREDO'S HISTORICAL CRIME FICTION Rosemary Erickson Johnsen National Coalition ofIndependent Scholars That men were not prevented by courts or clergy from mistreating their wives meant that, to society's institutions, women had no value. A man could be jailed, even hanged, for stealing another man's horse, but not even reproached for beating his wife. (Miriam Grace Monfredo, Through a Gold (...) Eagle) Miriam Grace Monfredo's feminist genre fiction, her "historymystery " series featuring nineteenth-century librarian Glynis Tryon, offers an opportunity to find a way ofreading literary texts that is not only feminist, but also Girardian. Girard's work provides two clear ways to construct feminist readings directly, without the mediation of overtly feminist theory. First ofthese is Girard's respect for the "quasi-theoretical" potential of literary texts, especially some of those which attend to apparently trivial matters. In Deceit, Desire and the Novel, Girard argues that (male) novelists offer insights unavailable elsewhere, including those scientific fields that claim to know more than everyone else. In its valuing of questions about snobbism, for example, Deceit, Desire and the Novel offers a woman-friendly model. The (male) novelist's question about snobbism is "too frivolous" for (men of) science, but Girard argues that "in his probe of snobbism the novelist is asking himself in his own way just what Rosemary Erickson Johnsen59 might be the hidden springs that make the social mechanism tick" (220). While I regret the fact that Girard's examples and language often ignore women, I believe his conviction that attention to matters socially coded as superficial and frivolous can produce great insight is one feminist critics can appreciate. The second Girardian tool feminists can rely upon is the method of reading texts of persecution described in The Scapegoat. Girard suggests how we might read texts ofpersecution written by naive persecutors in ways that identify with the persecuted and gather the information unintentionally supplied by the authors: "I call those persecutors naive who are still convinced that they are right and who are not so mistrustful as to cover up or censor the fundamental characteristics of their persecution. Such characteristics are either clearly apparent in the text and are directly revealing or they remain hidden and reveal indirectly" (8). Monfredo's crime novels, set in the mid-nineteenth century and focusing on such disenfranchised groups of citizens as women, slaves, Native Americans, and free African-Americans, depend for their verisimilitude on her ability to read historical sources and literary predecessors in just such a way. Accuracy requires that Monfredo's works be categorized as feminist historical crime novels, however awkward such a lengthy description may be. Her novels observe the principles not only of both genres—historical fiction and detective fiction—but also the political position offeminism, and they meet these multiple demands with considerable skill. Furthermore, resolution in crime fiction depends upon the law; working within that tradition, Monfredo is called upon to seek solutions within the system, to look for justice as the result ofa proper functioning ofthe legal and social systems. Information gathered, whether by the official representatives ofthe law or by amateurs, is turned over to the authorities. While her novels clearly respect that tradition, they also point out some limits to the judicial system's ability to contain violence. Girard's model ofits functioning, as described in Violence and the Sacred, depends upon an equality that whole segments of the society Monfredo is depicting do not in fact enjoy: "The judicial authority is beholden to no one. It is thus at the disposal ofeveryone" (23). Ifwomen cannot own property, enter into contracts or sit on juries, in what sense is the law at their disposal? Monfredo's exploration ofthis question takes its place alongside Girard's explanation of the legal system's proper functioning; ifhis theory reveals how it works when all are enfranchised, her fiction suggests some ofthe consequences that result from the existence of disenfranchised subjects. 60'Seneca Falls Inheritance' Our Seneca Falls Inheritance In her first book, Seneca Falls Inheritance (1992), Monfredo offers a theory for the reduction of violence against women: provide women with complete legal equality. The... (shrink)

A difficult task for politicians who want to fight injustice without doing wrong themselves is identifying where it is permissible to vote for and/or promote so-called “imperfect laws” which somewhat improve existing unjust legal situations but leave closely related injustices intact. One approach is to seek a “selective ban” on some injustices which are politically preventable. This approach is acceptable at least in principle, unlike the approach of “regulation”—i.e., permitting or instructing others to do, or prepare to do, the unjust (...) act in specified ways. The latter necessarily involves us in formal cooperation with evil: wrongly intending that others choose wrongly; for example, that abortion doctors deliberately prepare for abortion, albeit in ways that make an abortion less risky or less likely. In relation to parental consent or parental notification, and to pregnancy counselling and provision of information to pregnant women, while there may be ways of requiring these without complicity in others’ wrongful choices, this is at least more difficult than is often recognised. There can also be problems of principle in seeking consensus with fellow-legislators who may positively intend and even promote the continuation of remaining injustices even as they collaborate with more consistent reformers in passing laws which mitigate injustice overall. (shrink)

After the death of Prophet Muhammad (p.b.u.h), one of the most significant debated topics of Muslims was the institution of caliphate. This institution caused crucial argumentations through the ages from Abu Bakr to Abd-al-Majid who was the hundreth khalifa. Some prominent issues in that regard as follows: How khalifa comes to power, who becomes khalifa, whether he is descended from Quraysh or not, which kind of traits khalifa should have, and how khalifa should behave in certain circumstances. While these arguments (...) were going on, caliphate was maintained based on the reign under some certain dynasties’ responsibilities after the Rashidun (rightly guided) Caliphs. Umayyads, Abbasids and Ottoman Dynasties were the most well-known ones of these dynasties. Throughout history, even though caliphate passed in one another’s hands among aforementioned dynasties, none of them did attempt to abolish this position. However, Turkish Muslims who became defeated with European occupation of non-western territories decided to abolish caliphate for the sake of modernization activities within the period of transition from imperialism to nation state. This decision brought about a trauma, which was much more critical than former argumentation around the position in Muslim world. Many congresses were organized in Islamic world in order to recover from this trauma. While this kind of quests were continuing, Muhammad Hamīdullah proposed “High Caliphate Council” in relation to rearrangement of caliphate in accordance with the conditions of Islamic countries. This proposal offers an applicable model to today’s modern nation states by establishing unity among them and leaving aside their conflicts and differences. This proposal offers a resolution of much-discussed matters of the position within the limits of principals. It also draws attention by showing a possibility of Islamic union in contemporary Islamic thought. Summary: The matters of who undertakes the management of societies, how rulers come to power and in what manners the rulers maintain the management have been discussed throughout history. It is seen that rulers adopted kingdom as regime before the period of the Prophet Muhammad (p.b.u.h). There was also two-person management. The discussions about this matter were also seen around khalifas who were the rulers of Muslims after the death of Prophet Muhammad (p.b.u.h). Some debated issues in that regards as follows: Who becomes khalifa, how he is elected, which traits he should possess, and so on. Caliphate continued its existence despite the discussions until the first quarter of the 14th Hijra era. Abolition of caliphate was a trauma for Muslims undoubtedly. From Anatolia to Egypt and from India to the Balkans, many attempts were carried out to recover from this trauma. However, this matter was oversimplified in the conditions of that period since it became a topic which was hushed over in just congresses and conventions. One of the people who wrote on this topic, which maintains its vitality even today was Muhammad Hamīdullah. He was an important Islamic scholar, a lawyer and a historian in Indian geography. Hamīdullah did deal caliphate by indicating its history broadly. The distinctive feature of Hamīdullah from others who wrote on this topic is that he also presented a considerable offer to solve the matter. In this sense, Hamīdullah experienced the trauma in his own life as all muslims did it with the abolition of caliphate. Hence he mentioned this matter in his writings in the mood of care and dignity of a scientist and also in feeling of a heartbroken muslim. Hamīdullah made clear that the method of election of the ruler differed throughout history. Indeed, the verses of Holy Qur’ān, the applications of the Prophet Muhammad (p.b.u.h) and the differences of Four Great Chaliphs on coming to power testified this claim. According to Hamīdullah, it is quite normal that the method of regime can vary according to the conditions of societies. He recommended acting based on timeless rules rather than the changes that vary according to conditions and places. He also stated that the regime which Islam approves is a combination of kingdom and democracy in his lines dealing with methods of regime. To him, kingdom is the method of regime of empire. Empire is the regime in which various nationalities live together with all their differences and interact with one another intensely and in which the rulers rule over wide borders. On the other hand, Islamic world lost its edges of empire, changed its regime and divided to nation states after the decline of the Ottoman Empire and Mughal Empire which were established by Muslims. On the contrary, westerners attempted to establish a head empire several times after building nation states in Europe. Some of them are UN, NATO, EU, to name but a few. In our opinion, in the transition process of Muslim rulers from empire to nation state, Hamīdullah made an offer to accomodate Islamic law in state law, Islamic politic and administrative principles in politics and administration practices, Islamic education system in education system, and principles of Islamic economics in economic decisions of government using the Prophet Muhammed’s life as a base. He also explained to Muslims that the method of regime can be changed and the essential matter is to apply Islamic management principles in such a new situation. He played a role in clearing the way for Muslims by indicating that the method of Islamic regime can be changed according to conditions but the principles of Islam are unalterable. To the writer of these lines, Hamīdullah intimates that it is not so true to stick to the form of the process in Muslim territories in which a compulsory transition from the empires or multinational social structures to the nation state structures have been experienced for the last two ages. However, the first matter to dwell on should be whether the ruler of the government behaves in accoradance with the principles of Islam or not. To Hamīdullah, the second matter is that even though Muslim countries had to enter in the process of becoming nation states, Muslims should make an effort to establish supra-state associations as required by Islam. In this respect, Hamīdullah’s proposal is “High Caliphate Council”. This council is a considerable offer presented to Muslim countries in the age when a universal caliphate is not possible and Muslims head towards a unified state form all over the world. Today, this offer recommends countries of which great majority is Muslims and in which Muslims are minority to meet on a common ground rather than conflict because of differences among them. The High Caliphate Council is an institute consists of presidents or hereditary administrators as leading and regular members and so it avoids regional competition. It is established by Muslim presidents who shares the chair alternately. Based on this, all Muslim presidents play a role altogether in this council without need to be Sunni, Shia, or from Quraysh. The High Caliphate Council is a reflection of a dream, which started a century and half a century ago but is required more today. It is also a reflection of the discourse of “Islamic Union” in Contemporary Islamic Thought. The Caliphate Council and International Islamic Legists’ Association, which is the first practical step of the council can be seen as the theory of a new world order based on the unity principle of Islam. Hamīdullah does not consider this order not only in the range of belief but also with the aim of institutionalizing ‘ijmā (consensus of Islamic legists) and qiyās(legal analogy). He stated that International Islamic Legists’ Association, which is a scientific institution could not be established beforetime by Muslims spread on three continents due to lacking of communication among them. However, thanks to today’s possibilities, the establishment of such association is easier today. Hamīdullah found dynamic solutions such these two institutions for the realization of caliphate, which is a religious necessity. He marked an era for Muslims in the period of time when they are on a quest. (shrink)

In Aristotle and Law, George Duke argues that Aristotle's seemingly dispersed statements on law and legislation are unified by a commitment to law's status as an achievement of practical reason. This book provides a systematic exposition of the significance and coherence of Aristotle's account of law, and also indicates the relevance of this account to contemporary legal theory. It will be of great interest to scholars and students in jurisprudence, philosophy, political science and classics.

'Autonomy' is originally a political notion. In this chapter, I argue that the political theory Kant defended while he was writing the _Groundwork_ sheds light on the difficulties that are commonly associated with his account of moral autonomy. I argue that Kant's account of the two-tiered structure of political legislation, in his _Feyerabend Lectures on Natural Law_, parallels his distinction between two levels of moral legislation, and that this helps to explain why Kant could regard (...) the notion of 'autonomy' as apt to express the principle of morality---at least in the mid 1780s. (shrink)

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether (...) these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity. (shrink)

Since the mid-1980s and especially after the early 1990s, women's organizations have increased exponentially throughout Africa as have the arenas in which women have been able to assert their varied concerns. Women are organizing locally and nationally and are networking across the continent on an unprecedented scale. They have in many countries been aggressively using the media to demand their rights in a way not evident in the early 1980s. In some countries they are taking their claims to land, inheritance (...) and associational autonomy to court in ways not seen in the past. Women are challenging laws and constitutions that do not uphold gender equality. In addition, they are increasingly moving into government, legislative, party, NGO and other leadership positions previously the nearly exclusive domain of men. In these and other ways women have taken advantage of the new political openings that occurred in the 1990s, even if the openings were limited and precarious. This second generation of activism is markedly different from the earlier post-independence generation of women's mobilization. The reasons for these shifts are varied: the rise of multi-partyism and demise of military rule; the growing influence of the international women's movement; shifting donor strategies; the expansion of the use of the cell phone and the Internet in the late 1990s; coupled with a significant increase in secondary and university educated women. The article explores the major changes in women's mobilization in Africa by contrasting the current women's movements with those that emerged after independence. (shrink)

The paper is based on the New Institutional Economic Theory, which emphasizes institutions as a vital component in the creation of wealth and economic growth. It is widely accepted that formal institutions change rapidly through political and legislative decisions. Informal institutions are deeply embedded in customs, tradition and inherited behavioral norms. Thus, change comes at a very slow pace. This research is focused on the business ethics segment of informal institutions.The paper is based on the effects of institutional changes (...) on the position and the slope of demand curve for ethical business behavior. Business people faced with opportunity costs that influenced their behavior. Additional statistical analyses provide evidence of business ethics perception, which is more expressed in the group of managers than in the administration group. Behavior of the middle-aged population differs significantly in comparison to other groups when deciding on ethical dilemmas in real business situations.Cet article s’inspire de la Nouvelle Economie Institutionnelle qui met l’accent sur les institutions en tant que composante fondamentale du processus de création de richesses et de la croissance économique, Il est généralement reconnu que les institutions formelles se modifient rapidement sous l’impulsion de décisions politiques et législatives. Les institutions informelles, quant à elles, sont profondément ancrées dans les coutumes, les traditions, et les normes de comportement héritées d’anciennes générations. Ainsi, dans le cas de ces institutions, le changement est beaucoup plus lent. Cet article met l’accent sur l’éthique des affaires en tant qu’une des composantes des institutions formelles.Une des idées qui sous-tend l’article est l’analyse des effets des changements institutionnels sur la position et la pente de la courbe de demande pour des comportements éthiques dans les affaires. Les hommes d’affaires font face à des coûts d’opportunité qui influencent leur comportement. Des analyses statistiques supplémentaires donnent la preuve de la perception de l’éthique des affaires, perception qui est plus aiguë parmi les managers que parmi les administratifs. Le comportement de la population d’âge intermédiaire diffère de manière significative de celui des autres groupes face à des dilemmes éthiques que suscitent certaines situations concrètes du monde des affaires. (shrink)

A comprehensive account of English legal thought in the age of Blackstone and Bentham for nearly a century, The Province of Legislation Determined advances an ambitious reinterpretation of eighteenth-century attitudes to social change and law reform. Professor Lieberman's bold synthesis rests on a wide survey of legal materials and on a detailed discussion of Blackstone's Commentaries, the jurisprudence of Lord Kames and the Scottish Enlightenment, the chief justiceship of Lord Mansfield, the penal theories of Eden and Romilly, and the (...) legislative science of Jeremy Bentham. The study relates legal developments to the broader fabric of eighteenth-century social and political theory, and offers a novel assessment of the character of the common law tradition and of Bentham's contribution to the ideology of reform. (shrink)

Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate--what Tuckness terms the "legislative point of view"--has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke (...) made explicit in his later writings on religious toleration, Tuckness explores the idea that we should act politically only on those moral principles that a reasonable legislator would endorse; someone, that is, who would avoid enacting measures that could be self-defeating when applied by fallible human beings.Tuckness argues that the legislative point of view has implications that go far beyond the question of religious toleration. Locke suggests an approach to political justification that is a provocative alternative to the utilitarian, contractualist, and perfectionist approaches dominating contemporary liberalism. The legislative point of view is relevant to our thinking about many types of disputed principles, Tuckness writes. He examines claims of moral wrong, invocations of the public good, and contested political roles with emphasis on the roles of legislators and judges. This book is must reading not only for students and scholars of Locke but all those interested in liberalism, toleration, and constitutional theory. (shrink)

Law's article begins by restating the classical ANT position that objects do not exist `in themselves' but are the effect of a performative stabilization of relational networks. In addition, these material enactments inevitably have a spatial dimension; they simultaneously establish spatial conditions for objectual identity, continuity, and difference. Space must not be reified as a natural, pre-existing container of the social and the material, but is itself a performance. Moreover, there are multiple forms of spatiality beyond the Euclidean space of (...) regions (e.g. networks and fluids), and objects may exist and achieve homeomorphism within several different spatial systems. Technologies such as the Zimbabwe Bush Pump present a fluid object which is able to exist and cohere without the presence of fixed boundaries or the permanence of a particular functional definition. The network logic, however, which gravitates towards stability and functionality, tends to exclude and silence this spatial Other. An alternative political ontology is needed which goes beyond the reification of network space in order to give voice to the fluid objects which escape its unidimensional functionality. (shrink)

Kant has made an attempt in his Doctrine of Law to show that the principles of natural Law are a priori principles of pure practical reason. He considers this a necessary step towards establishing the obligating force of positive legislation within a legal system. It is not obvious, however, that Law, which recognizes external coercion as a possible incentive for the compliance with its duties, can be reconciled with pure practical reason, which through the categorical imperative commands that (...) one fulfill duty from the idea of duty and so independently of inclination. Accordingly, it is not clear that there is a systematic and necessary connection between Law and morality for Kant and that he has succeeded in his overall objective of justifying positive Law. ;My dissertation is concerned with the question of how, according to Kant, pure practical reason can allow for juridical legislation, a legislation which admits of an incentive other than the idea of duty for the fulfillment of certain duties. I present criticisms of interpretations according to which Law with its external character cannot be reconciled with morality for Kant. I also discuss some interpretations according to which Law with its duties and legislation is justifiable from the point of view of pure practical reason, either as directly derivable from the categorical imperative or as a means for the realization and protection of the individual's moral freedom. I argue that such accounts do not succeed in explaining the possibility of external coercion for pure practical reason. I do maintain, however, that Law is reconcilable with pure practical reason for Kant, and I offer an explanation of how this is so: an examination of the different classes of duties shows that only juridical duties, or perfect duties to others, are such that reason must recongnize for them a kind of constraint other than free self-constraint and therefore must acknowledge the possibility of juridical legislation for these duties. (shrink)