Este artículo demuestra de un modo fáctico la utilidad del test de proporcionalidad y la fórmula del peso del profesor Robert Alexy en la práctica de los tribunales constitucionales y de otros altos tribunales. Para ello se aplica detenidamente este modelo a la Decisión del Tribunal Constitucional alemán de 2015 en el que se falla a favor de la compatibilidad del uso del velo por profesoras funcionarias que trabajan en la enseñanza pública con la neutralidad del Estado. Se examinan (...) los tres pasos de la ponderación el principio de adecuación o idoneidad, el principio de necesidad y la proporcionalidad en sentido estricto, concluyendo que esta nueva decisión del primer senado del Tribunal Constitucional federal alemán de 2015 aplica correctamente el principio de la proporcionalidad estricta. Primero porque establece adecuadamente que el grado de insatisfacción de la paz escolar o de los derechos de los padres debe medirse y calificarse a la vista de conflictos reales. Segundo porque al examinar la importancia de satisfacer el derecho de libertad religiosa de las profesoras y las consecuencias negativas de la ley prohibitiva del Land juzga que ello supone una lesión grave y que es una medida desproporcionada e innecesaria. Una Ley prohibitiva general basada en un peligro abstracto es contraria a la LF y una injerencia desmedida en un DF porque no permite la ponderación del caso concreto. Por ello, en el tercer paso se concluye que la importancia de satisfacer los derechos de las profesoras justifica que ceda la libertad negativa religiosa de los alumnos y que prevalezca la liberta religiosa positiva. Con la excepción de casos en los que haya conflictos reales. En estos últimos, ponderadas las circunstancias cabría ciertas prohibiciones temporales transitorias del uso del velo en lugares concretos, un extremo que por nuestra parte no hemos considerado adecuado. (shrink)

Allegations of bias against senior judges have not been common in English courts, so the House of Lords had little material to draw on when the Pinochet case was decided. It is therefore worthwhile to compare their Lordships» approach with that of the Federal Constitutional Court in Germany. This court has been selected because: (a) it has a comparable number of judges to the House of Lords and its decisions are unappealable, and (b) its cases have a (...) constitutional and (often) political content—as did the Pinochet case. The Federal Constitutional Court case law is comparatively prolific, so this study has been limited to the last 15 years. The case law covers a wide variety of issues, for example provision of legal opinions or representation, membership of associations, holding of public offices, public statements of opinion. If the standards set in this case law were applied to Lord Hoffmann's position in the Pinochet case, there are grounds for saying that he might not have been excluded. (shrink)

The novel "Mephisto" is one of the most well-known texts by Klaus Mann. Its fame results not only from its literary virtuosity, but also and primarily from the enormous media attention which was caused by the novel’s publication. The decision of the Federal Constitutional Court, in which it dealt with the relationship between freedom of art and other constitutionally guaranteed rights of individuals, launched the unprecedented career of this novel. This article describes Klaus Mann’s political views and (...) their development in the 1920s during the time when the National Socialist movement was strengthening and the writer made the decision to emigrate. The essay deals with the circumstances of creating the novel considering both biographical and political issues. The novelist is described from the perspective of the reality of the 1930s during the National Socialist regime and the time after his emigration. The concern of the article is not a literary analysis of the novel, but to take a look at the novelist’s development up until the moment of finishing his work as a protest against National Socialism. Another goal of the essay is to analyze the decision of the Federal Constitutional Court, which regards the balance between freedom of art and other basic rights. Considering the synergy of both methodological approaches and the interdisciplinary view on the problem, the article represents a novel attempt to give a complex view on the relationship between art and the reality of a totalitarian state and between the relationship art–state in the conditions of a democratic state. (shrink)

The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also (...) to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live ‘at the mercy’ of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens’ rights are ‘at the mercy of others’. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, (...) and justification, and, thus, out of the realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute. Heroes are willing to invoke the Constitution to invalidate (...) state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicial power, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather say nothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing. As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the four Personae--choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper way to interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works. (shrink)

In 1992, the United States Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey, upheld the ruling in Roe v. Wade, namely that women have a right “to choose to have an abortion before viability and to obtain it without undue interference from the State.”1 However, since this ruling, some states have imposed regulations that greatly limit this right by restricting access. Texas is a recent example of this. Two proposed restrictions in House Bill 2, which will be (...) discussed in detail below, will force all but eight clinics that are located in metropolitan areas to shut down. The U.S. Supreme Court put the proposed restrictions on hold in October 2014, allowing several clinics to remain open while the restrictions are being appealed in the U.S. Court of Appeals for the Fifth Circuit. If the restrictions are passed, however, those clinics will be forced to shut down and, as a result, many women in Texas will be required to travel more than 100 miles in order to access a safe and legal abortion. Much of the focus of these restrictions has been on women and rightly so. However, I want to turn the attention to physicians. The requirements exacerbate unfair treatment of abortion providers compared with other physicians. Abortion providers face threats from the public—some of which turn into violent attacks—and they are often ostracized by their fellow medical practitioners. There are so few abortion providers to begin with and the proposed requirements limit these physicians’ opportunities to practice the branch of medicine of their choosing. Although the HB 2 requirements may not result in an unconstitutional undue burden on physicians, the challenges created by the bill limit physicians’ abilities to provide abortions. As a result of these limits, HB 2 creates an unconstitutional undue burden for women seeking abortions by creating barriers directed at abortion providers and clinic staff who are willing and able to provide abortions. The first of the two controversial HB 2 requirements is the admitting privileges requirement: “A physician performing or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced.”2 The second requirement is the ambulatory surgical center requirement: “The minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [Texas Health & Safety Code] [...] for ambulatory surgical centres.”3 In order to meet these state-mandated obligations, some abortion clinics would have to spend more than $1 million in upgrades if they wish to remain open. The District Court decided that the ambulatory surgical center requirement places an unconstitutional undue burden on women, and that the two requirements together place an undue burden on women in Texas and especially in the Rio Grande Valley where the nearest clinic is a couple hundred miles away.4 Later, the U.S. Court of Appeals for the Fifth Circuit reversed the District Court’s decision and argued, “the admitting privileges requirement is constitutional on its face.”5 While the regulations are being appealed, the Supreme Court granted a stay of injunction, allowing about twelve abortion clinics to reopen until a final decision regarding the regulations is made. The District Court ruled that the purpose of the two regulations was to create a substantial obstacle for women seeking abortions in Texas. While the defendants argued that the regulations were designed to make abortions safer and reduce risk, the Court decided that this was not the case. An abortion, especially a first-term abortion, is a very safe procedure and is safer than many other routine surgical procedures. As stated in Planned Parenthood v. Casey, “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”6 The undue burden in this case is imposed, not through restricting women’s access directly, but by restricting physicians’ freedom to perform abortions. The admitting privileges requirement has reduced the number of physicians who can perform abortions and the ambulatory surgical center requirement has reduced the number of clinics where abortions can be performed. The American Medical Association states, “[t]he Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion in accordance with good medical practice and under circumstances that do not violate the law.”7 This means that physicians are not required to perform abortions, except in emergency situations, but can as long as the procedure is done safely and does not violate the law. The new Texas regulations, however, are so restrictive that few abortion providers, limited to only four urban areas, can legally perform abortions. Physicians do not have an absolute right to perform abortions as opposed to women who have an absolute right to have access to an abortion. Physicians do face many challenges that other professionals face in terms of obtaining qualifications and finding work. Abortion providers, however, face challenges that most other physicians do not. The restrictions imposed by these regulations exacerbate unfair treatment toward abortion providers and place further obstacles in their path in terms of providing the service they want and are qualified to provide. Both abortion clinics and abortion providers are being treated differently from other medical clinics and physicians. For instance, “grandfathering of existing facilities and the granting of waivers from specific requirements is prohibited for abortion providers, although other types of ambulatory surgical facilities are frequently granted waivers or are grandfathered.”8 Many abortion clinics cannot afford the necessary upgrades. Furthermore, it is extremely expensive to open a brand new clinic that complies with the ambulatory surgical center requirements. Being grandfathered in would be the only option available to abortion clinics that cannot afford the upgrade. However, unfair treatment of abortion clinics and providers is preventing those clinics from being grandfathered into the new system. As a result, many abortion clinics may be forced to close. Admitting privileges are proving difficult or impossible for physicians both to obtain and, for those who have already been granted privileges, to keep. Dr. Sherwood Lynn, an obstetrician-gynecologist who has performed abortions for decades, describes the process of obtaining admitting privileges and the difficulties abortion providers face. After sending in an application a physician must wait for the hospital to send them the required materials, “but if the address of the practice on the application is of an abortion provider or clinic, [the hospital] won’t send [them] the package of materials required. [They] simply can’t apply.”9 Dr. Lynn and several other physicians have surmised that hospitals are only withholding privileges from qualified physicians who perform abortions and that other physicians do not face this discriminatory treatment. Hospitals have also revoked privileges granted to physicians after learning that the physicians perform abortions. For instance, in Texas two doctors, “received notices [...] informing them that their admitting privileges to the University General Hospital of Dallas have been revoked, with the hospital’s CEO claiming the hospital was unaware they were providing abortion care and that the hospital believed such care would damage its reputation.”10 What is curious about this revocation is that, “federal and state laws [...] forbid hospitals from discriminating against doctors who perform abortions,” and yet hospitals are clearly doing just that.11 Dr. Pamela Richter, another abortion provider in Texas, had her temporary admitting privileges revoked with no explanation and because of this, the clinic where she performed abortions, Reproductive Services, can no longer provide abortions at all.12 As the hospital gave no reason for the revocation, it not clear Dr. Richter’s privileges were revoked because she performs abortions. Dr. Richter, however, has performed over 17,000 abortions and her privileges were revoked soon after HB 2 was introduced.13 According to the Texas Hospital Association, giving admitting privileges to doctors who do not work for the hospital is expensive and time-consuming but this does not account for the fact that hospitals are revoking previously granted privileges from physicians whom they learn are providing abortion services.14 As mentioned previously, the District Court found that the admitting privileges requirement and the ambulatory surgical center requirement do not further ensure the health and safety of women undergoing an abortion. Several physicians have testified to this fact. Dr. Lynn stated in an interview: The admitting privileges requirements are [...] absolutely unnecessary. If you have a number of patients waiting for procedures, and something happens and a patient needs to be transferred to a hospital, you’re not going to leave everyone else and go to the hospital. That makes no sense. You’re going to refer that person to a gynecologist at the hospital. There is no safety issue involved here. If a patient shows up with an emergency, every hospital is required to admit that patient. They have to by law.15 It is rare that complications will arise from an abortion performed in a clinic. Dr. Richter, for example, has performed more than 17,000 abortions and not once had to send a patient to a hospital because of complications resulting from the procedure. According to Dr. Lynn even if abortion providers were granted privileges to hospitals, it is unlikely that they will exercise them. In essence, having admitting privileges at a hospital does nothing to further ensure the safety of an already safe procedure. The only result of the admitting privileges requirement is to limit certain physicians’ ability to perform legal abortions. Not only do the HB 2 requirements fail to further ensure the health and safety of women, the HB 2 requirements may actually create more health risks to women who cannot access the eight remaining clinics. The first risk is that the remaining clinics would have an influx of patients that they may not be able to handle, forcing women to wait longer for an appointment. As stated by the District Court, “[e]ven assuming every woman in Texas who wants an abortion [...] could travel to one of the four metropolitan areas where abortions will still be available, the cumulative results of HB 2 are that, at most, eight providers would have to handle the abortion demand of the entire state.”16 Furthermore, “[t]hat the State suggests that these seven or eight providers could meet the demand of the entire state stretches credulity.”17 Abortion is a time sensitive procedure. It is safest when performed early in a pregnancy. The increase in patients to these remaining clinics, assuming all women in Texas can access them, will increase wait times and may force women to have abortions later in pregnancy. In the worst-case scenario, a woman would not see an abortion provider at all before viability. Such instances may be rare, but they are possible. In such cases, women’s access to legal abortions becomes impossible and thereby violate the ruling in Roe. Clinics may be able to avoid the aforementioned problems if they hire more physicians. However, there are two barriers to hiring more physicians. First, as mentioned previously, admitting privileges to Texas hospitals are difficult, if not impossible, for abortion providers to obtain. Second, given the negative treatment of abortion providers by anti-abortion groups, many physicians are not willing to perform abortions. The harassment abortion providers face is unique to those physicians and many physicians will not perform abortions for that reason. In an article published in the Austin Chronicle, anti- abortion activist Abby Johnson, “discusses how her group investigated appraisal district records to find the new location of where an Austin abortion physician plans to work.”18 Johnson states, “These abortionists are feeling the pressure from the pro-life movement in Texas. I think they feel like they’re on the run. And that’s how we want to keep it.”19 If the HB 2 requirements are passed and there remain at most eight abortion providers in Texas, these activists will concentrate on those clinics and, “the dangerous impact of their intimidation tactics will be exacerbated.”20 Even if the number of physicians needed to meet the demand in Texas can obtain admitting privileges and work at one of the remaining clinics, they may choose not to do such work because they are putting themselves at risk. The harm abortion providers face from such anti-abortion groups is not unique to Texas. There are stories from all over the country and from other countries where abortion is legal of physicians receiving death threats. Dr. George Tiller, an abortion provider in Kansas, was killed outside his church and had received numerous death threats prior to this. The HB 2 requirements are making it so that abortion providers either cannot provide their services any longer or will face increased threats and increased danger to themselves. Physicians are allowed to conscientiously object to providing medical interventions in certain circumstances for moral and religious reasons. However, there are limits on this right. According to the American Congress of Obstetricians and Gynecologists, “[w]hen conscientious refusals conflict with moral obligations that are central to the ethical practice of medicine, ethical care requires that the physician provide care despite reservations or that there be resources in place to allow the patient to gain access to care in the presence of conscientious refusal.”21 I would argue fear for one’s safety in the face of immediate threats is perhaps a stronger ground on which to refuse to provide care than a personal belief that abortion is immoral or against one’s religion. ACOG also states, “[p]roviders with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place so that patients have access to the service that the physician does not wish to provide.”22 This responsibility has been largely disputed by the medical community but in cases of rape, incest, and health risks to women, referrals must be made without exception. However, under the requirements of HB 2, working in proximity to an abortion provider may not be possible because they are so geographically limited. Referrals are supposed to be made within reason. Some areas of Texas, such as the Rio Grande Valley, are up to 200 miles away from the nearest clinic that would remain open if HB 2 is passed. Referrals may simply not be feasible given the geographical distances and the decreasing number of available physicians. As mentioned above, there are two risks to the health and safety of women as a result of HB 2. The second of these is that if a woman cannot access one of the remaining clinics, she may seek out a more convenient but illegal and unsafe abortion, which is far more likely to result in a dangerous complication. Dr. Lynn states, “[b]ecause of the restrictions lawmakers impose, women will seek abortions illegally, and we’re going to see a rise in septic abortions.”23 Some areas of Texas might effectively revert back to a pre-Roe era where abortions were performed in unsanitary conditions by unqualified people resulting in dangerous medical complications far more often than legal abortion procedures do now. Physicians like Dr. Lynn who want to prevent this from happening generally cannot do so without facing legal sanction. Physicians have a duty to provide safe medical care and if they cannot obtain admitting privileges, they cannot exercise this duty. ACOG released a statement expressing their objections to the new requirements. They state that HB 2 is, “plainly intended to restrict the reproductive rights of women in Texas through a series of requirements that improperly regulate medical practice and interfere with the patient-physician relationship.”24 Executive Vice-President of ACOG, Hal C. Lawrence III stated: The Texas bills set a dangerous precedent of a legislature telling doctors how to practice medicine and how to care for individual patients. ACOG opposes legislative interference, and strongly believes that decisions about medical care must be based on scientific evidence and made by licensed medical professionals, not the state or federal government.25 Abortion is one of only a few areas of medicine where the legislature imposes so many regulations restricting particular physicians’ ability to practice medicine. Not only are abortions providers being regulated by the state, they are also facing clear discrimination from others within the medical community. The state is closing down clinics that do not meet the ambulatory surgical center requirements and hospitals are denying physicians admitting privileges because they perform abortions. In summary, abortion providers are being discriminated against both by the legislature and other members of the medical community. Other physicians who do not perform abortions are not denied admitting privileges on discriminatory grounds. Clinics that cannot afford upgrades to become an ambulatory surgical center are being grandfathered in, while abortion clinics are being forced to close down. Ob-Gyns who conscientiously object to performing abortions and who are not located in close proximity to at least one abortion provider cannot effectively fulfill their duty to refer patients. Lastly, given the barriers these regulations will create, there will likely be a rise in complications resulting from abortions provided under grossly unsafe conditions. Physicians, whose duty it is to provide safe and effective medical care, are being denied the right to exercise this duty. While this denial may not be unconstitutional, it is certainly unjust and discriminatory and creates obstacles that other physicians do not face. Most importantly, these obstacles are creating an undue burden for women. The HB 2 requirements do not increase the health and safety of abortions; all they do is create substantial obstacles for women. In light of these observations, the requirements seem to me to be in clear violation of Casey, in which it was decided that, “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right.”26 These regulations do just what Casey was meant to prohibit and this is accomplished through limiting physicians’ ability to practice safe abortions across the state of Texas. Therefore, the HB 2 requirements may not impose an undue burden on doctors but they do impose an undue burden on women. PDF available: Rachel Hill, "Texas HB 2," Voices in Bioethics. References: 1 Planned Parenthood of Southeastern Pennsylvania v. Casey, pg. 2. 2 Whole Women’s Health v. Lakey, pg. 2. 3 Ibid. 4 Ibid., 4. 5 Ibid., 2. 6 Planned Parenthood v. Casey, pg. 16 7 AMA Code of Medical Ethics, “Opinion 2.01 – Abortion,” American Medical Association. 8 Whole Women’s Health v. Lakey, pg. 10. 9 Dr. Sherwood Lynn, “A Texas Ob-Gyn Details the Horrific Consequences of Abortion Restrictions,” Cosmopolitan. 10 Feminist Newswire, “Texas Hospitals Revoke Admitting Privileges to Abortion Providers,” Feminist Majority Foundation Blog. 11 Ibid. 12 Ibid. 13 Ibid. 14 Glenn Hegar, “Texas Hospital Association’s Statement of Opposition to Section 2 of the Committee Substitute for Senate Bill 5,” Texas Hospital Association. 15 Dr. Lynn, “A Texas Ob-Gyn.” 16 Whole Women’s Health v. Lakey, pg. 10. 17 Ibid. 18 Mary Tuma, “Undercover Audio Reveals Anti-Abortion Tactics: Anti-abortion activists monitor and track providers, patients,” Austin Chronicle. 19 Ibid. 20 Ibid. 21 Committee on Ethics, “The Limits of Conscientious Refusal in Reproductive Medicine,” The American Congress of Obstetricians and Gynecologists. 22 Ibid. 23 Dr. Lynn, “A Texas Ob-Gyn.” 24 “Ob-Gyns Denounce Texas Abortion Legislation: Senate Bill 1 and House Bill 2 Set Dangerous Precedent,” The American Congress of Obstetricians and Gynecologists. 25 Ibid. 26 Planned Parenthood v. Casey, pg. 16. (shrink)

A good pragmatist's constitutional theory is inseparable from the legal disputes out of which it arises. John Paul Stevens's theory, that of deciding individual cases well instead of applying constitutional principles in the abstract to cases by category, thus lends itself to being studied in its natural, factual habitat—in his own words, case by case. That's what this book does. In Chapter 1 Sickels distills Stevens's thoughts about law and appellate judging from his early writings and his opinions (...) on the federal appeals court and, from 1975 to the present, on the U.S. Supreme Court. Stevens shows a concern for facts and consequences, for balancing, for deference to other decision makers unless they have been careless, for avoidance of undue complexity in judge-made law, and for drawing the line between clarity and oversimplification in legal rules. The next three chapters describe the application of Stevens's pragmatism to areas of constitutional law to which the Court and he especially have devoted most attention in recent years: First Amendment guarantees of freedom of expression and religion, the procedural guarantees of the Bill of Rights and the Fourteenth Amendment, and the equal protection of the laws. In each area, Stevens's special contributions are described. The concluding chapter places Stevens's judging in the contexts of the ongoing debate about the legitimacy of balancing, the ways of other moderates on the Court, and the voting records of the other members of the Court as a whole. Unique to this work is a meaningful introduction to the term moderate when applied to a Supreme Court justice, a definition based on careful analysis of the interplay of general rules and specific, case-by-case context. As such it is the very essence of Stevens's own way of judging and thus enables analysis of the work of a pragmatist on his own terms rather than through the distortions of a conflicting theory of law. John Paul Stevens is recognized as a jurist of unusual ability and one adheres to no ideological camp. While it is one thing to know he is neither rigid liberal nor a conservative, this book goes beyond the "neither nor" to accomplish the more difficult goal of defining what he is. This study is intended for scholars and students of the Supreme Court, the Constitution, the courts, and the American political process. Lawyers working before the Supreme Court, informed generalists, and courtwatchers generally, whether liberal, conservative, or neutral, will find much of interest here. (shrink)

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court's approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a (...) class='Hi'>constitutional democracy. By bringing together legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. (shrink)

In March 2008, the German Federal Constitutional Court (GFCC) has passed an important, even though preliminary, decision concerning data retention. The GFCC’s decision accepts the storage of data, but greatly restricts their use to serious offenses like murder and organized crime. From an ethical point of view, it is particularly interesting to look at the justification given by the GFCC, which relies heavily on the argument that the “impartiality” (Unbefangenheit) of communication will be thoroughly damaged (...) if feelings of being watched spread in a society. This argument is examined in view of two contrasting theoretical approaches: Discourse ethics and evolutionary contractarian theory. (shrink)

Decisions made so far by the Federal Constitutional Court of Germany have always been characterized by their writing and content, even down to details, precision, accuracy, professional legal style of writing, always clear in the elaboration and adjudication of cases from its competence, but surprisingly, in our country, only a few have paid attention to the German Court in a scientific context, which can be seen from the only few materials we possess in the Albanian language. (...) The purpose of this paper is to provide an overview of this Court, so that the comparative aspects can be made, highlighting its advantages and disadvantages, in case of dictating the state need for reform of the Constitutional Courts. Those who have institutionalized this constitutional institution know its value in the system of constitutional justice, which performs it in terms of protection of constitutions, its principles and value, and most importantly in the protection of freedoms and rights of human beings and citizens. The Federal Constitutional Court of Germany, to this date, has conveyed the efficiency of the protection of the German legal order, the serious approach and law interpretation, for the protection of freedoms and human rights, which ranks this court into a high level among all other powers in the German law system. The author, in the following paper, gives an overview of this Court starting with its history, organization and functioning, which today undoubtedly constitutes one of the most important constitutional courts in the world. (shrink)

Ex interiore ipso exeas. Preface. This book reconstructs the history of a still open dialectics between several ethoi, that is, shared codes of unwritten rules, moral traditions, or self-aware attempts at reforming such codes, and ethical theories discussing the nature and justification of such codes and doctrines. Its main claim is that this history neither amounts to a triumphal march of reason dispelling the mist of myth and bigotry nor to some other one-way process heading to some pre-established goal, but (...) instead to a chain of controversies where the partners’ will to win unintentionally yields a wealth of insights on human existence that has still something to teach us. -/- 1. The Hellenic moral tradition. -/- Two different traditions of morality in vi-v century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. -/- 2. Plato and the Good. -/- Plato’s own reformulation of Socrates rejoinder to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 3. Aristotle and practical philosophy. -/- Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistency in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The relationship of individual ethics, or ‘monastics’, with the art and the science of the pater families, or ‘economics’, and the science of the ruler and citizen, or politics, is illustrated. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexes, or ‘dispositions’. Prudence, or better, practical wisdom, is the focus of the chapter. Its relationship with boùleusis or deliberation is discussed, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 4. Cynics and Stoics: ethics as therapy. -/- The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. The various phases of Stoicism are described, and the shifting place that was given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. The peculiar character of the Epicurean school is described, a combination of the science of well-being aiming, more than pleasure understood as in the popular view, the reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Roman and Imperial Moralists. -/- The chapter is dedicated to the reconstruction of a particular kind of literature, whose specific features have long been under-stressed, namely the Roman and Imperial moral literature. Cicero is treated at some length, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is given pride of place, stressing the novelty of his approach to ethics as cognitive therapy, in this case just following an already existing new wave of interest after nineteenth-century oblivion justified by alleged lack of authentic ‘philosophical’ character. -/- 6. The Hebrew moral tradition. -/- A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torah (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Levitic is stressed as the turning point when the stress on mercy, typical of the Prophetic tradition, starts being combined with legal tradition yielding the change in the sensibility of the Second Temple time. -/- 7. Second Temple Judaism. -/- This chapter describes the Long March leading from the post-exile Zadokite restoration to the first-century aevi vulgaris. The first topic reconstructed is the Zadokite theology of the double retribution. The second is the alternative Enochic tradition consistently rejecting the central role of the Temple, the Priesthood and worship as atonement for sins and offering as an alternative God’s unlimited mercy and preaching mercy, not sacrifice as the way of behaving requested by God. Wisdom literature, the third subject discusses, is a kind of third way, on the one hand increasingly critical towards the double retribution and ruling theology’s optimism facing the world as it is and on the other mocking at the Enochic current as a band of dreamers and visionaries. The third way consists in disenchantment facing the word as it is combined with a refusal of vain and childish hope of prizes for the righteous, suggesting instead the leading idea of right deeds for righteousness’s sake. Rabbi Hillel, Rabbi Yeshua and Philo of Alexandria are described as the three leading figures at the culminating point of such process of emergence of a new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This starting point consists precisely in the precept of one’s neighbour’s love or of the golden rule, whose meaning is, arguably, more consistent than a long-lasting Christian tradition deriving from John and Augustine made us believe. And Christian morality, vis-à-vis allegedly legalist ‘Ancient Testament’ teachings, is less of a novelty than most early Christian writers announced. -/- 8. Talmudic moral doctrines and proto-Christian paraenesis. -/- The first three sections examine the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirke Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deot, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexes and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was "the tool by which the world was built"; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous, but deeds are the inevitable effect of either faith or learning. The last two sections examine first the various Christian currents and then Gnostic para-Christian or non-Christian currents as well as Manicheism. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure, purest Judaism. The last section describes briefly the galaxy of Gnostic currents and Manicheism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. -/- 9. Christianity as “philosophy”. -/- The chapter reconstructs the stormy story of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and several rhetorical topics from the Stoic and Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua himself had been influenced by cynical preachers, is a proof of the necessity to translate the original Christian message in a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 10. Ethics in the Arabic-Islamic Philosophy. -/- The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on the retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince, had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries, a war raged among theologians and philosophers, finally won by the former with the disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 11. Ethics in the Jewish philosophy. -/- The encounter between the Talmudic tradition and Hellenic philosophy had taken place for the first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed too a few traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Tora and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirke Avot could be translated. -/- 12. The practical philosophy revival in Latin Europe. -/- A reconstruction is carried out of a fresh start of philosophical ethics in Latin Europe at the turn of the Millennium rescuing a Platonic and Augustinian legacy, with Anselm and Peter Abelard. In this phase remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions, gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of a full legitimization of natural morality, i.e. ethics without Revelation. -/- 13. Scholastic practical philosophy: Thomas Aquinas. -/- Aquinas’s ethics is theological ethics out of which it would be vain to try to extract self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to the repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave pure nature incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too ambitious, and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Prima Secundae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas was able to solve the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from the knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethics, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of the death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not the Thomist ethical theory. Finally, Thomas’s ethics is no way an ethical ‘absolutism’, as both the traditionalist Catholic theologians and secularists tend to believe, but rather an ethic of prudential judgment on the individual case. Exceptions to this approach – or better the result of logical fallacies – are provided by the thesis of the absolute character of negative precepts and of the existence of so-called intrinsically evil acts, a thesis that would simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences that Thomas did not live long enough to draw. -/- 14. Scholastic practical philosophy: John Duns Scotus and William of Ockham. A reconstruction is carried out of the ethical doctrines by both most authoritative Franciscan doctors. Their continuity with Aquinas is vindicated against prejudice carried by centuries of polemics within the Catholic Church and tendentious disparaging of both as forerunners of execrable Reformation. Besides aspects of continuity, also the important novelties are illustrated, first John’s abandonment of Aquinas’s and Augustine’s eudemonism, asserting righteousness for righteousness’s sake, and then William’s explicit defence of the philosopher’s virtues, that is, natural morality, and his solution to the dilemma of God’s omnipotence and the universal validity of natural law extending to God himself. -/- 15. Aristotelianism interpreted by the Magistri Artium. -/- A reconstruction of the until recently forgotten ethical doctrines by the Parisian Magistri Artium, falsely depicted as ‘Averroists’ and either deprecated as heretics or mistaken for predecessors of modern secularism. In fact, they illustrate a view of ‘natural’ virtue as may be understood by human reason without the assistance by Revelation. -/- Etiamsi daremus Deum non esse. Intermediate considerations. Three considerations may be suggested by the story told in the book. The first one is that intellectual histories have been mounted in the past with the same state of mind as one may mount a war chariot. Such constructions are not very helpful as tools for understanding the past. Wars waged in the past have left the field obstructed by ruins not easy to remove even by those historians who have animated by an impartial academic motivation. They have been influenced too by consequences of past emphasis on some authors and damnatio capitis suffered by others, by stratifications left on sources by secondary literature and translations, by allotment of originally close sources to different literary genres, by the monopolization of religious texts by churches with full cooperation by secular scholars who still fear contamination. The second one is that aware or unaware ethnocentrism has carried various calamities to our comprehension of the past. Their last vestiges have surfaced again in the semi-scholarly discussion on the idea of Europe occasioned by the debate on a project of a European Constitution. Mention of Europe’s Christian roots has been the clumsiest move. Proclamations of such roots were so obvious in what they affirmed as they were totally off-path concerning what they omitted, namely that he modern European moral tradition included legacies from Middle-Eastern wisdom, Hellenic philosophy, Roman Imperial legal literature, and, besides, a Jewish legacy in turn incorporating other more ancient Middle-Eastern legacies and which has been partly conveyed by Christianity. And the Islamic-Arabic philosophy too, in so far it made the Nicomachean Ethics available to Latin Christian scholars, is one more of Europe’s roots. The third is that religious traditionalists and secularist fundamentalists have gone hand in hand for a couple of centuries in either extolling or deprecating the allegedly Modern idea of Ethics without God, first formulated by Hugo Grotius with the claim that natural law would still be valid ‘etiamsi daremus – quod sine summo scelere dari potest – Deum non esse’. The facts are, firstly, that this is not an irreligious claim and Grotius was just a pious and meek Christian and, secondly, that it is not a ‘modern’ claim but rather one more formulation of the claim that there is a natural morality, independent of divine revelation, a claim shared by Moshe ben Maimon, Aquinas and William of Ockham. -/- . (shrink)

The Platform of the U.S. Republican Party in 2012 contains a promise to overturn the landmark Supreme Court decision, Roe. v. Wade, that laws prohibiting abortion are incompatible with the constitutional right to privacy of pregnant women. The Republican vice presidential nominee, Congressman Paul Ryan, opposes that decision as a matter of conviction. Congressman Ryan says that human life begins at conception, though he adds that abortion should be legal if a woman's pregnancy results from rape (...) or incest, or if the life of the mother is at stake. Despite his reputation among Republicans as an astute thinker, Congressman Ryan's reasoning about abortion is faulty. (shrink)

In two decisions delivered inFebruary and March 2001, the German FederalConstitutional Court voided the maritalagreements struck between a man and a pregnantwoman on the grounds that they were the productof an inequality of bargaining power betweenthe parties. These findings, involving anapplication of the fundamental rightsprovisions of the German Basic Law to privateagreements, demonstrate the creeping competenceof the F.C.C. into the sphere of contractualrelations and an ongoing questioning ofthe traditional public/private law divide. Exploring some of the implications of (...) applyingpublic values and constitutional reviewstandards to private agreements, this notecontextualises the decisions within the debateupon competing (and ultimately colliding)social systems of the family and the market. (shrink)

What form can metaphysics still take in a philosophical modernity that has been decisively shaped by the impact of Kant’s critical project? This question has exercised Dieter Henrich, one of Kant’s greatest living interpreters. This paper focuses on Henrich’s intricate argument that metaphysical thinking, albeit of a new kind, remains indispensable especially in an age for which self-consciousness is a first principle. Henrich seeks a form of thought that can justify and preserve what he views as modernity’s greatest achievement, its (...) conception of the free, self-determining subject. Yet his description of this metaphysics for a new era reveals its surprisingly Platonic affinities. The paper focuses on those affinities, both in order critically to assess Henrich’s own work on subjectivity, but also because they reveal a fundamental and philosophically significant continuity that underlies all forms of comprehensive thinking, even in forms as divergent as those of Plato and Kant. (shrink)

The problem of the division of competences between the constitutional court and the democratic legislator has been the subject of intense debates in the philosophy of law, especially when examined in light of Habermas' theory. This article proposes a detailed analysis of this issue, focusing on the articulation of theoretical currents that revolve around the issue of making the control of constitutionality exercised by the courts compatible with the principle of the sovereignty of the people. Our aim is (...) to examine how different theoretical approaches address this crucial problem and how their ideas relate to and contradict each other. Three points will be investigated: i) Habermas' criticism of the decision-making practice of the Constitutional Court, especially in Germany, which is based on a liberal reading of the separation of powers. This criticism highlights the expansion of the functions of justice that compete with legislation due to the evolution of the liberal rule of law to an interventionist and welfare state; ii) The debate on the indeterminacy of law focused on the jurisprudence of the values ​​of the German Constitutional Court. Here, the criticism is directed against the methodological self-understanding of this court, which equates guidance by principles with the weighing of goods; iii) The view of the Constitutional Court as protector of the democratic procedure of legislation, a perspective especially prevalent in the USA. This approach refers to the renewal of a republican understanding of the political process, emphasizing the importance of a non-instrumental political process. Habermas, therefore, is not limited to a simple dichotomy between popular democracy and judicial elitism or between tyranny of the majority and judges who guarantee rights. Instead, he offers a nuanced critique, recognizing the complexities and multiple dimensions of the judiciary's role in controlling legislation in contemporary democratic states. (shrink)

An historical and intellectual review shows that the plan of realisation of the welfare state principle builds less upon philosophical concepts than upon religious, socialist, liberal-concervative, and socialdemocratic ideas. Lorenz von Stein combined socialist ideas of the public good, enlightment philosophy, and the Utopia of St.-Simon, Fourier and German idealism. Gouvermental achievements are limited to the economic capacity of he society, which is why financial science must,,...also establish the measure of the attainable for these tasks.“ With the transformation of (...) the SPD to a left-reform people's party, governmental concepts of social reform replace social revolutionary ideas. As liberal socialism maintains, the constitution results in a balance between neo-liberal thinking and the Keynesianism adopted by the german,,people's parties“. As a result challenge to the social state a society of dependent classes magnifies the,,social power“ of politics and damages the common good in the debit of present contributors and future pensioners of the pension systems. (shrink)

The article focuses on the new institute of the Lithuanian law of constitutional justice procedure – the dissenting opinion of a Constitutional Court justice as it is consolidated in the Law on the Constitutional Court. It is argued that the current statutory regulation is defective in essence because it creates preconditions for diminishing the quality of both the final act of the Constitutional Court (especially when the dissenting opinion is to be filed by (...) the judge rapporteur) and the dissenting opinion under preparation. The narrative is half-normative and half-behavioural: the institute is analysed in the context of established procedural practice of the Constitutional Court as an extremely collegial institution (also due to the statutory regulation), as well as in the context of the current condition of the public discourse in Lithuania. Namely, statutory regulation allows filing a dissenting opinion (which is not distinguished from the concurring opinion) within three working days after the public announcement of the decision (ruling, conclusion) of the Constitutional Court. Consequently, it is hardly possible to argue that the justice who filed the opinion did not do this in view of the immediate reaction to the decision by the media, the society, or the establishment, and even that he or she did not do this because such reaction took place. Also, the three-day period mentioned above puts any justice ready to file a dissenting (or concurring) opinion into the position where he or she simultaneously needs to participate in the collegial activity of the Court in deciding cases, as well as to write the dissenting (concurring) opinion. In the article, the legislative proposal is presented that the Law on the Constitutional Court should be amended so as to allow for a relatively long time span between the adoption of the decision (ruling, conclusion) and its announcement to the public at large. However, it is not suggested that the general mode of collectivism as dictated by the Law and as implemented in the established practice of the Constitutional Court shall be abandoned. By this article, the author continues his research on the matter as commenced in his two earlier articles (of 2011 and 2012). (shrink)

Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the (...) presence of incommensurable values “is more like judging whether a particular line is longer than a particular rock is heavy.” It may appear that if a judge is asked in a particular case to decide, for example, whether a state interest is sufficiently strong to justify the limitation of a constitutional right, he will be forced to a) either abandon the notion of a genuine plurality of values, or b) make an arbitrary decision. This article argues that neither of these options need be accepted and that rational choice is indeed possible in the presence of incommensurable values. Specifically, it contends that the Nash bargaining solution provides a means, at least in certain circumstances, of rationally understanding and undertaking the weighing of distinct and mutually irreducible values which adjudication frequently requires. The Nash framework can both elucidate proportionality analysis by providing a social choice-based framework for understanding the structure of proportionality analysis and also justify proportionality analysis by demonstrating that the weighing of competing values is not necessarily mere judicial hand-waving. (shrink)

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should members of religious sects be able to use peyote in worship? Should pacifists be forced to take part in military service when there is a draft, and should this depend on whether they are religious? How can the law address the refusal of parents to provide medical care to (...) their children--or the refusal of doctors to perform abortions? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.In the first of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on one of the Constitution's main clauses concerning religion: the Free Exercise Clause. Beginning with a brief account of the clause's origin and a short history of the Supreme Court's leading decisions about freedom of religion, he devotes a chapter to each of the main controversies encountered by judges and lawmakers. Sensitive to each case's context in judging whether special treatment of religious claims is justified, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.Calling throughout for religion to be taken more seriously as a force for meaning in people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare. (shrink)

This article centres on the legal recognition of same-sex marriage with a view to exploring the issue of unspeakability; that is, the condition whereby some questions cannot be articulated because of a lack of words. More specifically, the article will explore what happens to those social practices that are not given legal speakability and thereby legal recognition/protection. To this end, I first focus on how words are produced in the sphere of everyday life and their dependence on the existence of (...) a widespread normality. I then discuss how the law sees to the preservation and the reproduction of normality by providing a set of categories which are made available to law-abiders to settle disputes when they arise. In doing so, I elucidate the twofold role played by law as both a selective and a creative device. To cast some light on the particular way law operates, I discuss an important decision by the Italian Constitutional Court in 2010, which provides a telling example of how legal officials are able to seal off the set of legal categories and to leave some issues in the sphere of the unspeakable. I then unearth a paradox: while unspeakability reveals a condition of powerlessness, the acquisition of speakability could bring about even harsher exclusionary effects. I conclude by arguing that the entry into the sphere of official law is always a Janus-faced achievement, but can play as an effective instrument of critique. (shrink)

In 2017, Italy passed a law that provides for a systematic discipline on informed consent, advance directives, and advance care planning. It ranges from decisions contextual to clinical necessity through the tool of consent/refusal to decisions anticipating future events through the tools of shared care planning and advance directives. Nothing is said in the law regarding the issue of physician assisted suicide. Following the DJ Fabo case, the Italian Constitutional Court declared the constitutional illegitimacy of article 580 (...) of the criminal code in the part in which it does not exclude the punishment of those who facilitate the suicide when the decision has been freely and autonomously made by a person kept alive by life-support treatments and suffering from an irreversible pathology, the source of physical or psychological suffering that he/she considers intolerable, but fully capable of making free and conscious decisions. Such conditions and methods of execution must be verified by a public structure of the national health service, after consulting the territorially competent ethics committee. This statement admits, within strict and regulated bounds, physician assisted suicide, so widening the range of end-of-life decisions for Italian patients. Future application and critical topics will be called into question by the Italian legislator. (shrink)

German literature played an important role in Kierkegaard's reading, and he often relates to German authors in his writings, especially to those of the period between 1770 and 1830. Against the background of German Romanticism, he deals with Romantic irony in the second part of The Concept of Irony. His harsh verdict on famous German writers like Friedrich Schlegel and Ludwig Tieck in his master's thesis is in some cases relativized by a more balanced appreciation in (...) other writings. Some German authors like Georg Christoph Lichtenberg and Jean Paul served as stylistic models, while others like Gotthold Ephraim Lessing offered valuable inspirations for his thinking. One of the most frequently cited poets is Johann Wolfgang von Goethe, who appears in Kierkegaard's writings throughout all his working periods and is dealt with in a very comprehensive manner. (shrink)

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

With a focus on how national identity impacts the decision-making of the European Court of Justice, Elke Cloots provides an innovative adjudication scheme that purports to assist the ECJ in its search for a proper balance between respect for national identity and European integration.

Controversial Supreme Court decisions have barred organized school prayer, but neither the Court nor public policy exclude religion from schools altogether. In this book, one of America's leading constitutional scholars asks what role religion ought to play in public schools. Kent Greenawalt explores many of the most divisive issues in educational debate, including teaching about the origins of life, sex education, and when--or whether--students can opt out of school activities for religious reasons. Using these and other case (...) studies, Greenawalt considers how to balance the country's constitutional commitment to personal freedoms and to the separation of church and state with the vital role that religion has always played in American society. Do we risk distorting students' understanding of America's past and present by ignoring religion in public-school curricula? When does teaching about religion cross the line into the promotion of religion? Tracing the historical development of religion within public schools and considering every major Supreme Court case, Greenawalt concludes that the bans on school prayer and the teaching of creationism are justified, and that the court should more closely examine such activities as the singing of religious songs and student papers on religious topics. He also argues that students ought to be taught more about religion--both its contributions and shortcomings--especially in courses in history. To do otherwise, he writes, is to present a seriously distorted picture of society and indirectly to be other than neutral in presenting secularism and religion. Written with exemplary clarity and even-handedness, this is a major book about some of the most pressing and contentious issues in educational policy and constitutional law today. (shrink)

In his fifth Logical Investigation, Husserl intensely scrutinizes three possible significations of the concept of consciousness. In these analyses, he also strives to clearly delineate between two types of consciousness: psychological and phenomenological. The goal of this paper is to show that the way in which the (psychical) act is conceived and defined, according to the Husserlian approach, as a lived, intentional experience plays an essential role in clarifying the distinction between the empirical-psychological level of consciousness (where the act as (...) a lived experience manifests itself) and its eidetic or ideal level (wherein any type of objectivity is constituted as such). Moreover, I shall try to argue that the notion of act conceived in this manner had influenced and decisively determined the development of the entire Husserlian phenomenology and theory of knowledge exactly because it explains how knowledge in general is constituted from an objective point of view. Another highly relevant distinction that needs to be dealt with in this context is the difference that Husserl establishes between the descriptive and intentional contents of the act. I shall try to show that this distinction presupposes in fact a previous conceptual determination of the noema (undertaken jointly with the analysis of the noetical components of consciousness at this level), and that the way in which the relationship between these two strands of consciousness is described determines further and in a fundamental manner the development of the idea of intentionality itself. (shrink)

The European Stability Mechanism is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of (...) Justice. Delivering much anticipated rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology. (shrink)

This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on (...) the concept of human dignity in the two constitutions, each one of us from his own philosophical perspective. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

The papers collected in the present volume arose from a 2009 seminar organized by the Society of Legal Scholars and the University of Birmingham, and convened at the Law Society’s Hall in Bristol, England. The seminar, “Judges and Jurists: Reflections on the House of Lords,” commemorated the centenary of the Society; and it chiefly focused on the transition from the House of Lords, as the U.K.’s court of final appeals, to the prospects of the newly instituted United Kingdom Supreme (...) Court. “The aim of the volume,” according to the book-jacket description, “is to reflect upon the jurisprudence of the House of Lords and to consider the prospects for judging in the new Supreme Court.” Given the aims of the Society of Legal Scholars, considerable focus is placed on the relationship between the work of judges and that of scholars of law and jurisprudence. The book pervasively highlights the continuing voice of the scholars. Though their writings have no legal authority, the volume’s editor remarks in his Introduction that in 2009, “in six out of the seven final decisions of the House, reference was made to academic literature” (p. 2). (shrink)

Bernard Stiegler’s concept of individuation suggests that the human being is co-constituted with technology. Technology precedes the individual in the respect that the latter is thrown in a technological world that always already contains externally inscribed memories—what he calls tertiary memories—that selectively form the individual and the collective space of the community. Revisiting Husserlian phenomenology, Stiegler renews the critique of culture industries asserting that imagination and differance have always been technologically mediated, and echoing the Heideggerian anxiety concerning thinking’s over-determination, Stiegler (...) offers an intriguing analysis of the specificity of our age’s technologies while exploring the possibility for political responsibility and educational intervention. (shrink)

In 2014, the first three volumes of Heidegger’s Black Notebooks—the personal and philosophical notebooks that he kept during the war years—were published in Germany. These notebooks provide the first textual evidence of anti-Semitism in Heidegger’s philosophy, not simply in passing remarks, but as incorporated into his philosophical and political thinking itself. In Heidegger and the Myth of a Jewish World Conspiracy, Peter Trawny, the editor of those notebooks, offers the first evaluation of Heidegger’s philosophical project in light of the Black (...) Notebooks. While Heidegger’s affiliation with National Socialism is well known, the anti-Semitic dimension of that engagement could not be fully told until now. Trawny traces Heidegger’s development of a grand “narrative” of the history of being, the “being-historical thinking” at the center of Heidegger’s work after Being and Time. Two of the protagonists of this narrative are well known to Heidegger’s readers: the Greeks and the Germans. The world-historical antagonist of this narrative, however, has remained hitherto undisclosed: the Jews, or, more specifically, “world Judaism.” As Trawny shows, world Judaism emerges as a racialized, destructive, and technological threat to the German homeland, indeed, to any homeland whatsoever. Trawny pinpoints recurrent, anti-Semitic themes in the Notebooks, including Heidegger’s adoption of crude cultural stereotypes, his assigning of racial reasons to philosophical decisions, his endorsement of a Jewish “world conspiracy,” and his first published remarks on the extermination camps and gas chambers. Trawny concludes with a thoughtful meditation on how Heidegger’s achievements might still be valued despite these horrifying facets. Unflinching and systematic, this is one of the most important assessments of one of the most important philosophers in our history. (shrink)

I examine the role moral reasons play in the Mengzi and their relationship to Mengzi's conception of wisdom. Some commentators have argued that agency in early Chinese thought is best characterized as performance based rather than deliberation based. I propose that Mengzi's conception of agency is both performative and deliberative because he understands wisdom as a sort of expert decision making. Consequently, Mengzi relies on moral reasons of two sorts. First, duan-reasons are reasons to act so as to overcome (...) internal obstacles to action and, second, renyi-reasons are reasons to act so as to achieve a goal that constitutes moral success. (shrink)

This article presents the new German law on advance directives from 1 September 2009. The history of the parliamentary process of this law is described, the present regulations are explained, their relevance for medical practice discussed and shortcomings are identified. Finally, the new law is compared with other regulations in the international context. Previously established legal practice in Germany has now become largely confirmed by the new law: An advanced directive must be respected in any decision concerning medical (...) treatment, regardless of the stage of the illness. It can be informally revoked at any time, even with limited decision-making capacity. Nobody may be obliged to issue a directive in any way. Advance directives do not need notarisation or routine updating after certain time intervals. Provided that the patient, who is no longer mentally competent, has issued a lasting power of attorney, or provided that the patient has been appointed a healthcare proxy by the courts, this authorised surrogate must assert the patient's will. The role of the guardianship court is clarified: it only needs to be involved in cases of disagreement as to the patient's will. The new German law thus combines more legal certainty with a liberal emphasis on patient autonomy and flexible, adaptable regulations. (shrink)

The article approaches the work of Van Breda and De Waelhens with respect to the question of how philosophical thought relates to the problems arising in natural life. Van Breda’s main contribution to philosophy is related to the exceptional natural skills he showed in his rescuing of E. Husserl’s Nachlass and his founding of the Husserl Archives in Leuven. It is lesser known that he also brought E. Husserrs widow to Leuven and rescued her from deportation by the German (...) occupation of Belgium during World War II. Extensive excerpts from Malvine Husserl’s private correspondence demonstrate her admiration for and gratitude towards Van Breda. This correspondence also gives us a good idea of her daily life during the seven years that she spent in Leuven, her strong character, and the reasons behind her conversion to Catholicism. Less anchored in natural life than Van Breda, De Waelhens nevertheless claimed that philosophy’s main task is to shed light on the problems of bodily human existence in its social dimensions and its relation to a linguistically-structured world. This led De Waelhens into a study first of Heidegger, then to Merleau-Ponty, Hegel and Marx and, finally, to psychoanalysis. But his entire work remained dedicated to a reflection on the relation between “philosophy and natural experiences‘. He understood this relation in strongly dialectical terms: philosophy must give natural life a better understanding of itself in order to allow it to play the role of a critical counter-balance to philosophical speculation. The article concludes with some of the author’s personal reflections on what philosophy can and cannot do in order to improve natural human life. (shrink)

English summary: Is radical self-determination relevant to the theory of freedom? In other words, is it a constitutive moment of freedom? And is radical self-determination possible or indeed real? Frank Dettinger understands radical self-determination as being the faculty of an acting subject - in whose personal and characteristic nature decisions and actions are established - to self-determine in an independent act. The author provides impetus not only for the analytical-philosophical, but also the theological freedom debates. In the first instance, his (...) work is intended as a contribution to the understanding of the freedom debate about itself. Secondly, its objective seeks to demonstrate the potential of an inter-disciplinary approach. The author reconstructs Luther's understanding of freedom by the precise application of analytical-philosophical freedom systematics and in this way makes it accessible to argumentative examination. German description: Ist radikale Selbstbestimmung freiheitstheoretisch relevant, d.h. ein konstitutives Moment von Freiheit? Und ist radikale Selbstbestimmung moglich oder gar wirklich? Unter radikaler Selbstbestimmung versteht Frank Dettinger dabei das Vermogen eines Handlungssubjekts, dessen personliche und charakterliche Beschaffenheit, in der seine Entscheidungen und Handlungen grunden, in einem unabhangigen Akt selbst zu bestimmen.Dettinger gibt Impulse sowohl fur die analytisch-philosophische als auch fur die theologische Freiheitsdebatte. In der ersten Hinsicht versteht sich seine Arbeit insbesondere als Beitrag zur Verstandigung der Freiheitsdebatte uber sich selbst. In der zweiten Hinsicht liegt das Proprium im Aufweis des Potentials eines interdisziplinaren Vorgehens. Er rekonstruiert Luthers Freiheitsverstandnis in Anwendung analytisch-philosophischer Freiheitssystematik prazise und macht es auf diese Weise einer argumentativen Prufung zuganglich. (shrink)

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms in the jurisprudence of European (...) class='Hi'>court on human rights and international criminal courts. Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in legal and political (...) thinking. Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

The decision of the Court of Justice of the European Union (CJEU) in Google Spain v AEPD and Mario Costeja González enshrined the “right to forget” in the jurisprudence of the European Union. The judgment caused concern to transparency and open information advocates in terms of pitting a right to forget against the general right of the public to know. This, as this paper will argue, is a false distinction. The Internet is, and has always been, a regulated (...) space. Nor is the right to free expression, even in its American form, absolute. While there are genuine concerns about how the balance is struck, evolving practice is likely to identify what cases deserve deletion, to those that do not. The biggest challenge lies in how, and who, tests that balance as to what is removed from the search engines of the Internet. Finding material is important but forgetting may be just as vital to liberties as well. (shrink)

In Logics of Worlds, Badiou claims that his concept of inexistence is similar to Derrida’s différance. This paper argues that Derrida’s double bind of possibility and impossibility, which co-constitutes and flows from the spatio-temporising that is différance, is less binary in its logic than Badiou’s notion of inexistence allows. For Badiou, time and the subject are constituted by the event, by a decision and the fidelity to a decision. He has no real sense of Derridean space: Badiou discusses (...) space as localisation, atoms, situations or the containment that is proper to any set. Derridean spatialsing stems from de Saussure and his view of the differentiation between signs and words and phrases that produces meaning. I maintain that though there may be a resemblance between the two philosophers qua what they see is unaccountable or lies closed or hidden yet conditions any given “system” or “meaning-structure,” the way they justify such accounts would suggest a greater gap than what Badiou may be prepared to concede. (shrink)

English summary: The field of business ethics concerns itself with the question of corporate responsibility. Andreas Suchanek equates this responsibility with fulfilling reasonable expectations of trust. He shows why expectations concerning trust are so important, why they are often not met and what companies can do to comply with them within the bounds of possibility - and their own well meaning self interest. As an ethical guiding principle the following golden rule prevails: Invest in the conditions of social cooperation for (...) the purposes of mutual gain! German description: Unternehmensethik befasst sich mit der Frage der Verantwortung von Unternehmen. Andreas Suchanek setzt diese Verantwortung mit der Erfullung berechtigter Vertrauenserwartungen gleich. Er zeigt, warum diese Vertrauenserwartungen so wichtig sind, weshalb sie oft enttauscht werden und was Unternehmen tun konnen, um sie - im wohlverstandenen Eigeninteresse - im Rahmen ihrer Moglichkeiten zu erfullen. Als ethische Leitmaxime gilt hierfur die folgende Goldene Regel: Investiere in die Bedingungen der gesellschaftlichen Zusammenarbeit zum gegenseitigen Vorteil! (shrink)

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while (...) rejecting any discussion of active assistance to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate. (shrink)

The Eurozone Crisis is not just a monetary and economic challenge. It is as well the first tremendous challenge of the European Community and as well the national institutions and constitutions of the member states not only within the Eurozone. On one side the European Commission, the European Parliament and the ECB with its endeavours to safeguard and stabilize the single currency EURO within the Eurozone, to support the suffering countries in the south with its struggle against speculative hedge funds, (...) to render financial relief measures to those countries and its financial industry. Irrespective the fact governments and citizens within that countries, less appear to appreciate or honor that measures as efficient help to stabilize but condemn as form of European paternalism and patronage. On the other hand the countries and its citizenship especially in the north of the Eurozone to set a stop sign to the EU and the ECB. Therefore they stress the Maastricht criteria and cite the Art 125 of the TEU, which prohibits one nation to stand for or to be liable for the Government debts of another nation. Especially in the German perspective the demarcation line appears to run along between the European Commission, European Central Bank and European Court on the European side and the Bundesverfassungsgericht, the Bundesbank on the national German side. Each of the institutions feels to be bound to its origin functions and principles and save the respective constitution and the task rendered by that constitution. For a better understanding it is essential to get aware of and to reinforce the constitutional role which the Grundgesetz awarded to the Bundesverfassungsgericht and the Bundesbank and the German citizenship placing their confidence in these institutions. Es soll konkret das Verhältnis zur Nichtbeistandsklausel No-Bail-out Klausel Art 125 AEUVertrag, den Europäischen Fiskalpakt / dem ESFS, ESM / dem OMT-Programm der EZB, möglichen Entwicklung des EU zur Haftungs- und Transferunion mit einem zukünftigen Haftungsautomatismus der Mitglieder, der Unterscheidung von gemeinsamer Währungspolitik und nationaler Wirtschaftspolitik, der drohenden Vergemeinschaftung von Staatsschulden einzelner EU-Länder, die Budgethoheit des nationalen Parlaments als freie Entscheidung über die Verwendung des nationalen Haushaltes untersucht werden. Mit allen diesen Fragen mussten sich das höchste Deutsche und Europäische Gericht in jüngster Vergangenheit intensiv beschäftigen. (shrink)

ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not (...) to be coerced by the state when the state is motivated by improper reasons ; and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell. (shrink)

Increasingly in today’s world we are experiencing intensifying antagonisms around religious and ethno-cultural differences. The confrontation between political Islam and the so-called ‘West’ has replaced the rhetoric of the Cold War against communism. This new constellation has not only challenged the hypothesis that ‘secularization’ inevitably accompanied modernity but has also placed on the agenda political theology as a potent force in many societies. This article analyzes the contemporary revival of political theology by focusing on the headscarf debate in comparative (...) class='Hi'>constitutional perspective. It compares the well-known decision of the French Parliament banning the wearing of the headscarf in public schools (2004) with the decision of the German Constitutional Court concerning whether Fereshta Ludin, an Afghani-German teacher wearing the hijab, could teach in German schools (2003) and with the more recent judgment of the Turkish Constitutional Court (summer 2008) upholding the ban on the wearing of the scarf or the turban in institutions of higher learning. At stake in these debates is not only the meaning of fundamental human rights but also why women and their bodies become the object of disciplinary conflicts in culture, law and religion. (shrink)

When David Souter was nominated by President Bush to the Supreme Court, he cited John Marshall Harlan as his model. It was an interesting choice. Admired by conservatives and deeply respected by his liberal brethren, Harlan was a man, as Justice William Brennan lamented, whose "massive scholarship" has never been fully recognized. In addition, he was the second Harlan to sit on the Court, following his grandfather--also named John Marshall Harlan. But while his grandfather was an outspoken supporter (...) of reconstruction on a conservative court, the younger Harlan emerged as a critic of the Warren Court's liberal expansion of civil liberties. Now, in the first biography of this important but neglected jurist, Tinsley Yarbrough provides a detailed account of Harlan's life, from his privileged childhood to his retirement and death. Yarbrough examines the forces and events which shaped the Justice's jurisprudence--his early life and often complex family relationships, education at Princeton and Oxford, his work as a prosecutor during Prohibition, Republican Party activities, wartime service in the Army Air Force, and years as one of the nation's preeminent corporate lawyers. The book focuses, however, on Harlan's years on the high bench. Yarbrough weaves together discussions of the Justice's relations with his brethren, clerks, and staff, an examination of Harlan's role in the decision-making process on the Court, and an analysis of his jurisprudence. The Justice's approach to constitutional interpretation exalted precedent, deference to governmental power, and narrow decisions closely tied to case facts; but he also accepted an evolving, creative model of constitutional construction which permitted expansive readings of constitutional rights. Yarbrough's details Harlan's close relationship with Justice Frankfurter, showing how--despite their friendship and alliance--Harlan strongly marked out his own position, both personally and judicially, on the Warren and Burger courts. And he examines the substance and significance of his dissents in such famous cases as Miranda and the Pentagon Papers. Intensively researched, smoothly written, and incisively argued, Yarbrough's biography offers an absorbing account of the life and career of a great dissenter, hailed by admirers as a "lawyer's lawyer" and a "judge's judge." Coming at a time when the high court has begun to adopt many of Harlan's principles, this account provides an essential perspective on the Court, civil liberties, and a pivotal figure in the history of both. (shrink)

SummaryBorn to a noble family in the Italian Trentino, Prati studied philosophy in Austria and Germany. Returning to Italy, he joined the carbonari, a network of revolutionary secret societies. Forced into exile in Switzerland, he worked as an educator alongside Pestalozzi. Following his expulsion from Switzerland, Prati sought refuge in Britain, becoming acquainted with Coleridge, the Benthamite utilitarians, and the Owenites. Following the July Revolution, Prati went to Paris, where he became a Saint-Simonian. Returning to Britain, he sought to convert (...) the British to Saint-Simonism, before undertaking a series of other literary projects. He eventually returned to Italy, where he entered into correspondence with the Roman Catholic philosopher Antonio Rosmini. Prati left behind him a trail of letters, newspaper articles, pamphlets, and books, written in four different European languages. These have been hitherto neglected by scholars, and constitute the basis of the current article. (shrink)

We all live in the age of constitutional balancing.ing away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting (...) public policy objectives. It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: describing and comparing first-order practices of balancing; providing second-order conceptual analyses; explaining balancing's rise to dominance; advancing critiques of balancing; and rebutting these critiques. In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review. (shrink)

This project explores the "contradiction" that critics contend lies at the heart of the Supreme Court's capital sentencing jurisprudence. The doctrine of "guided discretion," represents the Court's attempt to achieve both consistency and individuation in capital sentencing. Guided discretion rejects the unbridled sentencing discretion of an earlier era that resulted in sentencing decisions that were "arbitrary and capricious." At the same time, guided discretion requires juries to give individualized consideration to the facts and circumstances of individual defendants. Critics (...) contend that consistency and individuation are mutually exclusive, and that "guided discretion" is a contradiction in terms. ;The analysis first attempts to isolate the moral dimension of the capital punishment debate, arguing that such analytical clarity is essential to any defensible view of capital punishment. Second, it sets forth and defends the coherence approach to moral and legal justification, according to which the specific moral and legal principles relevant to capital sentencing are evaluated for their compatibility with the principles of the legal system more generally. Third, the analysis canvasses the traditional justifications for punishment, as well as the development of the Court's capital sentencing jurisprudence, and identifies retribution and deterrence as the most promising rationales for the death penalty. Fourth, the claim of contradiction is considered in the context of legal liberalism, which, contrary to critics, has ample resources to accommodate the doctrinal balancing act that guided discretion entails. Moreover, examination of a typical capital sentencing statute establishes that the doctrine of guided discretion is compatible with at least some forms of retributivism and with traditional principles of deterrence. Finally, the analysis recognizes the limits of philosophical consistency. The capital sentencing process presents daunting practical challenges that a theoretical defense of guided discretion cannot fully address. Substantial reforms are needed before the theoretical coherence of guided discretion can be translated into a constitutionally defensible capital sentencing process. (shrink)