Este artículo presenta a Weber y Habermas como los umbrales o polos de una modernidad que tiene al progreso como horizonte teórico-práctico. El diagnóstico weberiano sobre la modernidad y su proceso de desencantamiento del mundo y la injustificada reducción de la actividad racional a una actividad utilitario-estratégica desprovista de su carácter veritativo y de su orientación valórica, Habermas la utiliza para justificar su propuesta teórico-crítica respecto a la modernidad y la "paradoja de la racionalización", distinguiendo "sistema" y "mundo vital". Aquí (...) "desencantamiento del mundo" y "consenso del proyecto de lamodernidad", se encuentranThis article presents Weber and Habermas like the thresholds or poles of a modernity that has to the progress as theoretical- practical horizon. The diagnosis weberiano on the modernity and his process of disenchantment of the world and the unjustified reduction of the rational activity to a utilitarian-strategic activity devoid of his character of truth, Habermas uses to justify his theoretical-critical offerwith regard to themodernity and the "paradox of the rationalization", distinguishing "system" and "vital world". Here "disenchantment of the world" and "consensus of the project of the modernity", they are. (shrink)

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this (...) conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining. (shrink)

Bringing a postcolonial perspective to UK constitutional debates and including a detailed and comparative engagement with the constitutions of Britain’s ex-colonies, this book is an original reflection upon the relationship between the written and the unwritten constitution. Can a nation have an unwritten constitution? While written constitutions both found and define modern nations, Britain is commonly regarded as one of the very few exceptions to this rule. Drawing on a range of theories concerning writing, law and violence, _Constitutions (...) _makes a theoretical intervention into conventional constitutional analyses by problematizing the notion of a ‘written constitution’ on which they are based. Situated within the frame of the former British empire, this book deconstructs the conventional opposition between the ‘margins’ and the ‘centre’, as well as between the ‘written’ and ‘unwritten’, by paying very close, detailed attention to the constitutional texts under consideration. Pryor argues that Britain’s ‘unwritten’ constitution and ‘immemorial’ common law only take on meaning in a relation of difference with the written constitutions of its former colonies. These texts, in turn, draw on this pre-literate origin in order to legitimize themselves. The ‘unwritten’ constitution of Britain can therefore be located and dislocated in postcolonial written constitutions. _Constitutions _is an excellent addition to the bookshelves of all students of the philosophy of law, political theory, constitutional and administrative law and jurisprudence. (shrink)

This article deals with the housing framework of laws, that is, constitutions. It distinguishes between constitution referring to the de jure, formal, written book of laws and codes that assume supreme authority within any structure, and constitution which defines a body of informal, conditional rules and laws that do not have supreme authority but are abided by, owing to various objective, subjective factors. Constitution reflects the gap between aspiration and actuality, and constitution attracts a higher degree of compliance and (...) implementation. Studies have indeed found a negative relationship between formal rights protection and actual rights observance. The article reveals that rights guarantees are more prone to failure than success as they depend substantially on environmental and institutional conditions. This article emphasizes a symbiosis between judicialization and constitutionalization while a policy question needs to be judicial in nature if the judiciary has to decide on it. (shrink)

This paper examines the potential role of deliberative democracy in constitutional processes of higher law-making, either for the founding of constitutions or for constitutional change. It defines deliberative democracy as the combination of political equality and deliberation and situates this form of democracy in contrast to a range of alternatives. It then considers two contrasting processes—elite deliberation and plebiscitary mass democracy (embodied in referenda) as approaches to higher law-making that employ deliberation without political equality or political equality without deliberation. (...) It finally turns to some institutional designs that might achieve both fundamental values at the same time, or in the process of realizing a sequence of choices. (shrink)

In “Mad Narratives: Self-Constitutions Through the Diagnostic Looking Glass,” by using narrative approaches to the self, I explore how the diagnosis of mental disorder shapes personal identities and influences flourishing. My particular focus is the diagnosis grounded on the criteria provided by the Diagnostic Statistical Manual of Mental Disorders (DSM). I develop two connected accounts pertaining to the self and mental disorder. I use the memoirs and personal stories written by the subjects with a DSM diagnosis as illustrations to (...) bolster my claims. First, expanding on the narrative approaches to the self, I explain how narratives about a subject shape her self-constitution. I elucidate how this process is generated by drawing on research in developmental psychology, cognitive science, and social psychology. Next, using this account as a springboard, I argue that the DSM diagnosis of mental disorder serves as a source of narrative, entering into the patients’ autobiographical and social narratives. This plays an important role in the diagnosed subjects’ self-understanding, self-constitution and flourishing. In this vein, how mental disorders are classified is not only a theoretical question about accurately taxonomizing the various experiences related to mental distress but also an ethical question about which ways of talking about mental disorders will allow subjects to respond effectively to their psychological distress, to flourish and to live autonomous and fulfilling lives. Finally, I suggest that the DSM-based narratives wield a double-edged sword when it comes to the subject’s flourishing: On the one hand, there are problems with some DSM-based narratives that stem from the DSM diagnostic schema and the culture of DSM diagnoses. These problems render these DSM-based narratives unbeneficial for flourishing as they constrain the range of adoptive social, cognitive and emotional responses the subjects can give to their mental disorders. On the other hand, there are grounds to believe that some DSM-based narratives help subjects to flourish. For instance, they provide certainty to subjects' otherwise puzzling symptoms and help them reach out to others with similar experiences. Understanding how the DSM-based narratives can both benefit and harm will help us address problems with psychiatric diagnoses and the dissemination of knowledge about mental disorders in popular culture. The project aims to convince both philosophers and psychiatrists that no plausible theory of the self can be developed without attending to the topic of mental disorder and that no theory of mental disorder can be complete without devising the tools provided by the philosophical approaches to the self as well as developmental and social psychology. It also calls for methodological alterations in mental health ethics research, arguing that a careful scrutiny of mental disorder memoirs can advance the ethical underpinnings to the practice of psychiatry. (shrink)

The book examines current debates about the emergence of an international legal norm of democratic governance and also considers some of the wider theoretical issues to which those debates give rise. It asks should international law seek to promote democratic political arrangements? If so, on what basis, and using which of the many competing conceptions of democracy?

The essays in this volume--written by prominent philosophers, political scientists, and legal scholars--address these questions and explore related issues.

Considers Peter Leeson's arguments regarding the economic viability of workplace democracy.

This article explores the link between religion and politics, religious liberty and the rights of religious minorities, by focusing on the constitutions which Italian states adopted and discarded from 1796 to 1849. It concerns questions about the ‘national character’ and the rights and duties of the citizen, and argues that – far from being ‘an outlet’ for material discontent – questions of religious identity and pluralism were integral to the Risorgimento definition of liberty. In this context, the author explores (...) also the Mazzinian vision of a democratic republic inspired by an acephalous and non-hierarchical civil religion, similar to the Unitarian Transcendentalism practiced by some of his New York admirers – a far cry from the ‘religions of politics’ inspired by Saint Simon and Auguste Comte. (shrink)

The Aristotelian Πολιτεῖαι collected information on the history and organization of reportedly 158 city-states. Of these only the Ἀθηναίων πολιτεία survives almost in its entirety on two papyri. All that remains of the other constitutions is the epitome by Heraclides Lembus (second centuryb.c.e.) and about 130 fragments. This article will look at the transmission of Heraclides’ epitome (itself preserved as excerpts) and explore the possibility of identifying further fragments of the original text.

Jason A. Frank, Constituent Moments: Enacting the People in Postrevolutionary America, Duke University Press, ISBN - 9780822346630Vicki Hsueh, Hybrid Constitutions: Challenging Legacies of Law, Privilege and Culture in Colonial America, Duke University Press, ISBN - 9780822346180.

The modern constitution is predominantly understood as a way of instituting and limiting power, and is expected to contribute to (societal) stability, certainty, and order. Constitutions are hence of clear sociological interest, but until recently they have received little sociological attention. I argue that this is unfortunate, as a sociological approach has much to offer in terms of a complex and historically sensitive understanding of constitutions and constitutionalism. Constitutional sociology has particular relevance in contemporary times, in which the (...) meaning of constitutions and constitutionalism is uncertain, and subject to contestation, and possible transformation. The constitutional sociology developed here is phenomenologically inspired and stresses the importance of understandings of the modern constitution as ‘embedded’ in constitutional imaginaries. Rather than as a visible and rationally designed construct, constitutional sociology understands constitutionalism as ultimately a ‘field of knowledge’. The suggestion is that this field of knowledge or ‘modern constitutional horizon’ is characterized by a tension between two ultimate markers, in terms of what Castoriadis has identified as the social imaginary significations of mastery and autonomy. Mastery and autonomy form prominent constitutional orientations, historically taking the form of solidified, instituted meanings, identified here as the modernist and the democratic imaginaries. In the last section, the two instituted constitutional imaginaries will be ‘unpacked’ in specific components (state sovereignty, absoluteness, fabrication, endurance, and distrust regarding the modernist imaginary; indeterminacy, creativity, dynamism, self-government and popular sovereignty regarding the democratic one). In conclusion, I suggest that constitutional sociology might significantly help elucidating the potential losses and heteronomous tendencies that may result from the contemporary uncertainty and possible metamorphosis that affects the modern constitution. (shrink)

Ce texte traite de la définition aristotélicienne de la cité et des diverses constitutions, en Politique, I et III. On soutient ici (1) que la définition de la cité doit être extraite de deux passages du début du traité, (2) que la cité est définie par le but qui lui est propre et (3) que d’importants théorèmes politiques en Politique III se servent de cette définition initiale de la cité comme d’une prémisse. L’objectif ultime de cet article est de (...) contribuer à l’évaluation du rôle que jouent les définitions dans la méthode qui est celle d’Aristote dans sa philosophie morale et politique. (shrink)

The 8th volume in this edition contains the works written by Benjamin Constant between March 1813 and April 1814. The texts are different in nature. Alongside a work of fiction, »Florestan or the Siege of Soissons«, the reader will find »The Spirit of Conquest and Usurpation«, various propagandistic writings penned in the service of the Prince-Royal of Sweden, and finally »Reflections on Constitutions and Guarantees«, a work of political theory. All these texts are precursors of the works from the (...) period of the First Restoration and the Cent-Jours assembled in Volume 9, so that these two volumes are closely interrelated. (shrink)

This research analyzed the ethical-political discussions of distributive justice in national minorities and its incorporation into the Constitutions of Latin American countries. Ethics stands out in its search to dignify the human being, finding two immeasurable positions: (a) the deontological models of justice and equality and their detached subjects, and (b) the communitarian models that rescue the identity contingencies of the subjects. The latter have allowed reflections that recognize the defense of cultural, territorial and linguistic identity as fundamental issues. (...) Finally, the discussion ventures to delimit equity and positive discrimination. (shrink)

The main argument of the article regards Aristotle’s anti-realistic account, which presents a different viewpoint from that which simply fulfils or negates the truth-values of our statements on Mixed Constitutions. In modern times, the idea of a Constitution of many minds or of many individuals is proposed by Sunstein and by Hart, who maintain that neither intentions in juridical procedure nor Constitutional provisions can produce an ideal Constitution. Thus any interpretative procedure assigning to legal reality any definite, once-and-for-all meaning (...) is precarious, according to Aristotle who asks whether we can gain epistemic access to the real essences of Constitutions and their structure. These ideas respond to a challenge in the Works of Contiades, who will help us to turn the ideal Constitution into a realisable model in the situation in which we live nowadays. This is the main challenge to be met by the institutions of Europe in order to safeguard the nature of historical and intellectual values. (shrink)

This paper argues for the value of philosophers in a school of social sciences within a university, for fixing what I call disciplinary constitutions. A disciplinary constitution is a statement of “How our discipline works: how we achieve the ends of our discipline.” A lot of people depend on a constitution, but such a thing usually runs into problems and philosophers can identify these problems and propose solutions. I suggest that it is essential for the autonomy of an ambitious (...) school to be able to do such work internally. (shrink)

Gendered language is becoming a matter of serious concern for legal drafters and policymakers because 'it is always changing as societal views change' (The University of Calgary: Office of diversity, equity and protected disclosure 2017:1). Many western countries have made considerable progress towards using inclusive legal language. However, inclusive language is not implemented in other parts of the World; the Arab World is no exception. This may be due to the violation of language rules, the decline of language, and the (...) lack of enough evidence that changing the language will change society (Brown in ABA J, 2019) and (Brown in ABA J: 24–26, 2018). In this paper, I explore the challenging socio-cultural and linguistic factors that may hinder the implementation of gender-inclusive language in Arabic and explain the current situation in two current constitutions of Egypt and Tunisia in particular. The main aim of this paper is to conduct a comparative analysis of terminology representing gender in the Egyptian (2014, amended 2019) and Tunisian (2014) Arabic-English Constitutions using corpus-based tools. The analysis shows inconsistent attempts at a more inclusive source text through using neutral terms and adding inclusive pre-modifiers to these terms. It also shows inconsistent translation of gender-specific terminology and pronominal references. Both constitutions explicitly stress the ‘eradication of violence against women’ and express parity between ‘women’ and ‘men’ in terms of ‘equal rights’ and ‘appropriate political representation’ (e.g. in the Egyptian House of Representatives (28%) and the Tunisian Assembly of People’s Representatives (26%)) (International Institute of Democracy and Electoral Assistance, IDEA 2021). Although these percentages are not far away from the representation of women in European countries such as the United Kingdom (35%) (International Institute of Democracy and Electoral Assistance, IDEA 2021), it is the reality of women’s actual roles, change they initiate and their impact in the society that counts. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 63.3 (2002) 425-446 [Access article in PDF] Giving Orders: Theory and Practice in the Fundamental Constitutions of Carolina Vicki Hsueh Indians. Of Edisto Ashapo and Combohe to the South our friends. Of Wando Ituan Sewee and Sehey to the north came to our assistance and were zealous and resolute in it 1000 bowmen In our want supplied us. Q. Spaniards. What we (...) shall doe to the Spaniards if we invade them we brake the peace, if we sit still we loose our reputation with the Indians our friends. Westoes. Inland man eaters. Country. To the northward more sickly, about Ashley River fertile and of a wonderful growth. Tatchequea. A very fruitfull Country 8. days jorney by the North west the Emperor our friend and enemy to the Westoes and to hard for them. Q. Settlem't. 500 people will secure the settlement 1000 perfect it. desires supplys of necessarys till that time Excerpt from Carolina Memoranda in the handwriting of John Locke, Esq., 15 September 1670 Within the last decade, scholars such as James Tully, Barbara Arneil, and Bhikhu Parekh have performed a crucial intervention on modern constitu-tionalism's behalf. 1 Not only has constitutionalism in the modern age been [End Page 425] plagued by assumptions of cultural uniformity and an on-going inability to adjudicate between competing cultural claims, but it has been unable effectively to diagnose those limitations and dilemmas. The root of the problem, James Tully suggests, is ultimately a matter of historical perspective. "[T]he tendency," he writes, "is not to notice the philosophical and ideological debates over the last three hundred years... only the result of these debates is seen—the victorious modern language of constitutional uniformity—and claims for recognition are viewed through its framework as if it were impartial and universal." 2 In response Tully and others have sought to tackle this predicament at its historical root. Identifying modern constitutionalism's colonial origins as a significant part of the problem, their studies address the development of constitutionalism and colonialism as an entwined phenomenon in the early modern period, focusing particularly on the British-American context. In this sense, Locke's Two Treatises of Government stands as an exemplary illustration of the period's entangled colonial and constitutional temperaments. Well-known for its influential articulation of compact and resistance, the Two Treatises, Barbara Arneil argues "were written as a defence of England's colonial policy in the new world against the sceptics in England and the counter-claims of both the aboriginal nations and other European powers in America." 3 Accordingly, present-day constitutionalism continues to bear the weighty legacy of those colonial rationales. "[T]he language of modern constitutionalism," Tully further explains, "which has come to be authoritative was designed to exclude or assimilate cultural diversity and justify uniformity. The design is difficult to see because this 'modern' language has become the customary way of thinking about, reflecting on and envisioning a just constitutional order." Ultimately, Tully submits, citing Wittgenstein, "A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably." 4This much-needed thickening of constitutionalism's historical context has enriched our awareness of constitutionalism's vexed origins, as it has proffered potent tools for interrogating current cultural adjudication. Yet, a troubling predicament persists. As if caught within the tenacious grip of the language of modern constitutionalism, Tully, Arneil, and Parekh insistently portray seventeenth-century British-American colonialism solely as a straightforward process of appropriation and assimilation without addressing or incorporating the [End Page 426] complex and contingent elements of that history in its emergence. Lacking the various negotiations and accommodations between settler and indigene in ambition and actualization, their portrayals crucially underplay the dynamic relationship between theories of constitutionalism and practices of colonialism—an approach that ultimately serves to reinscribe the narrative of triumphalist progress within their critiques. 5This problematic is the context for my reading of the Fundamental Constitutions of Carolina,1669... (shrink)

Let me first thank Bill Scheuerman for his long and rich argument on my different considerations of global and European constitutionalism and democracy. It was an inspiring reading, and I have learnt a lot by it. I agree with most of his basic assumptions, and even with some of his more critical remarks. Here, I will first take the opportunity to make some revisions and clarify some conceptual misunderstandings. I will then make some additional remarks on my theoretical framework, and (...) the ideas of law and constitution which are fundamental for it. In the last section I discuss again the issue of state and constitution about which Scheuerman and I already had a short controversy in Constellations last year.1 This time, however, I will discuss the development of modern society in a broader historical, or evolutionary, perspective. Keywords: state; world state; monopoly of power; co-evolution; nation; national identity; territory; cituzenship; modern society (Published: 10 March 2009) Citation: Ethics & Global Politics. DOI: 10.3402/egp.v2i1.1940. (shrink)

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures (...) and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order. (shrink)

States of emergency are declared frequently in all parts of the world. Their declaration routinely implies a suspension of basic constitutional rights. In the last half century, it has become the norm for constitutions to contain an explicit ‘emergency constitution’, i.e., the constitutionally safeguarded rules of operation for a state of emergency. In this paper, I ask whether inclusion of an emergency constitution can be legitimized by drawing on social contract theory. I argue that there are important arguments, both (...) against and in favor of constitutionalized emergency provisions, and that social contract theory—as applied by economists—can be of some help when deciding whether to have, or not to have an emergency constitution. This paper introduces a novel argument for justifying emergency constitutions. It argues that they can serve as a commitment mechanism protecting both citizens and politicians from overreacting to rare but significant threats. (shrink)

The aim of this essay is to examine the place of the people in the constitutions of democratic nations. While the meaning of democracy and the degree to which it is achieved vary within the family of nations considered democratic, the idea common to all is that the people are self-governing. In its origins, the idea is tied to liberty: not to be self-governing is to be subject to the will of another and so not to be free. What (...) constitutes self-government is open to interpretation, although this is not the place to examine the possible meanings. Nor is this the place to set out the history of the idea or to show how it became central to modern constitutions, except to note the number of nations qualifying as democratic has steadily increased in recent years to just under a half of the total. It seems reasonable to assume that a democratic nation, a self-governing people, would want to make sure that the constitution, the basic of government and of relations between the people and government, provide for and protect self-government and hence democracy. (shrink)

This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering (...) the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society. (shrink)

This essay argues that there is an important analogy between the hierarchically ordered divisions of the divided line in Republic Book VI and the hierarchy of constitutions described in Books VIII-IX. Imagination corresponds to tyranny, belief to democracy, mathematical understanding to oligarchy, and dialectical reason to timocracy. The unhypothetical principle disclosed through the activity of dialectic, the idea of the Good itself, corresponds to the aristocratic rule of philosopher kings.

Mutually supporting methodologies are necessary for building a convincing case establishing a particular effect. Strengths and weaknesses of four empirical methods are discussed. Econometric methods quantify the relative importance of different factors and may assess the time frame over which constitutions matter, but have difficulties in dealing with nonlinear interactions among constitutional and cultural details. Cluster analysis can be a pre-requisite to other methods, and an analytic method in itself, useful for identifying the details that really matter and discovering (...) surprising patterns in the data. I discuss the application of cluster analysis on the Comparative Constitutions Project database. Qualitative comparative analysis can reveal the hidden structure of interactions among different variables, but robustness checks are difficult to perform. Case studies are useful for distinguishing between rules-in-use and rules-in-form and for discovering important informal aspects. They can deal with com.. (shrink)