In constitutional scholarship, legal sanctions and customary law seem to be opposed to each other: customary law is often defined precisely as law without sanctions. Applied to the constitutional field, it is possible to better define those two elements of discourse: constitutional sanctions are essentially procedures of constitutional review of legislation, while customary law is more frequently referred to as constitutional conventions. While insisting on the presence of the element of sanction is typical of the normative discourse (...) attributed to Hans Kelsen, stressing the importance of constitutional conventions implies different strategic goals. Those goals are related to the definition of constitutional law and its specificity compared to other –less political– legal fields. (shrink)

The paper presents a novel take on the character of South Africa’s governance structure. It argues that, insofar as it constitutionally recognises traditional authorities, figures who rule in accordance with idiosyncratic and localised customary laws, as well as instigate a cheek-by-jowl existence of an asymmetrical property law (where in the urban setting land is nominally bought or transferred for sale, but in traditional rural areas granted by the chief), manifest in the differentiated land laws brought about by the Communal (...) Land Rights Act of 2003, is more akin to, and necessitates a definitional alignment with, the federal system of government than a unitary one – or at least a weak “federalism with South African characteristics.”. (shrink)

This book addresses current practices in customary law. It includes contributions by scholars from various legal systems (the USA, France, Israel, Canada et cetera), who examine the current impacts of customary law on various aspects of private law, constitutional law, business law, international law and criminal law. In addition, the book expands the traditional concept of the rule of law, and argues that lawyers should not narrowly focus on statutory law, but should instead pay more attention to the (...) impact of practices on "real legal life." It states that the observation of practices calls for a stronger focus on usage, customs and traditions in our legal systems - the idea being not to replace statutory law, but to complement it with customary observations. (shrink)

The present essay addresses the conceptual structure of customary law, understood as a set of customary rules. More specifically, it deals with the core question of what opinio juris entails as a constituent element of customary law. The work will begin with an analysis of samples of common strategies in contemporary legal theory that deal with opinio juris when analyzing the structure of customary law. Subsequently, following Hart’s notion about what constitutes social rules, and introducing explanatory (...) features from Game Theory applied to social philosophy and some insights from Behavioral Economics, the goal of the present study is to propose a different conceptual path for analyzing and identifying customary law with what could be understood as “opinio juris”, given the conceptual necessity of finding the normative element that lies within the usus, or social practices. (shrink)

This research examines the legal recognition of customary land in Indonesia, reflecting the complexity of the relationship between indigenous communities and the state in managing natural resources within the framework of agrarian legal politics. Legal uncertainty and weak implementation mechanisms affect the recognition of customary land, despite the Constitutional Court Decision No. 35 of 2012 providing a strong legal foundation. Using a qualitative approach, this study analyzes primary and secondary data and conducts in-depth interviews with indigenous communities and (...) legal experts. The findings reveal that despite legal recognition, its implementation on the ground still faces challenges, such as the confiscation of customary land without fair compensation and limited access of indigenous communities to natural resources. Moreover, the involvement of indigenous communities in participatory mapping has proven effective in strengthening customary land claims. This research implies the need to strengthen legal protection mechanisms and increase the involvement of indigenous communities in the recognition and decision-making processes concerning customary land within the broader context of agrarian legal politics in Indonesia. (shrink)

Debates over the proper theory of, or approach to, constitutional interpretation rage through many Western constitutional democracies. Although the number of distinct theories, if finely individuated, might match the number of theorists who have entered the fray, it has become customary to group the competing accounts into two broad camps, commonly labeled ‘originalism’ and ‘non‐originalism’. This article presents an overview of non‐originalist approaches to constitutional interpretation. However, because non‐originalism is defined as the negation of originalism – that is, diverse (...) theories are grouped together as ‘non‐originalist,’ not so much by what they commonly affirm, as by what they commonly deny – the project naturally focuses as well on originalist theories of interpretation. After specifying what originalism maintains, and what objections it encounters, the essay sketches some of the more prominent non‐originalist approaches to constitutional interpretation and identifies some of the criticisms they face and worries they provoke. Preliminarily, it explains why ‘theories of constitutional interpretation’ constitute only a subset of ‘theories of judicial review.’. (shrink)

Despite their regional, ethnic, and linguistic differences, the recent social and political upheavals of the Middle East have shared one basic concern. From the 2009 Green Movement in Iran to the 2011 Tunisian revolts which ignited the Arab Uprisings, and from the first Muslim Brotherhood government in Egypt in 2012 to the protests in Turkey’s Taksim Square in 2013, a central issue has been how to establish a democratic state with a modern constitution while adhering to many shari’a rules (...) and regulations. This debate is not a new one in the Middle East and, as this article will demonstrate, it has been a central theme of Iranian politics ever since the Constitutional Revolution of 1906. At the time of that first Iranian revolution, Iran was ruled by two sets of laws, shari’a religious law and ‘urf customary law. Shi’i clerics, with their elaborate institutional hierarchy, controlled shari’a law, which was considered the more important law of the land, whereas the monarch and local rulers were nominal guardians of ‘urf laws. Soon the novel discourses of the Constitutional Revolution would create a paradigm shift in Iranian society.1 Constitutionalist clerics had assumed that a new political order reformed ‘urf rulings, leaving shari’a laws more or less intact. They were stunned by the realization that a constitutional order revamped both legal systems and overturned sacrosanct social and religious hierarchies. Many clerics resisted these reforms. The result was a bifurcated set of laws that institutionalized clerical authority, while also placing limits on clerics in legislative and judicial branches of the government. (shrink)

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

Scholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject (...) to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations. (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)

Much of the debate about post-secularism has presumed a background of Western countries and the sort of statutory law that legislatures should make, and how they should make it, in the light of residents’ religious attitudes and practices. In this chapter I address a fresh context, namely, that of South Africa and the way that courts have interpreted, and should interpret, law in the face of African traditional religions. Specifically, I explicate the fact that, by South Africa's famously progressive (...) class='Hi'>Constitution, religious customs already count as law, and I illustrate how such customary law could work with three court cases related to indigenous African spirituality. Then, I lay out and evaluate the two central arguments that jurists have made in favour of South Africa's Constitutional practice of deeming long-standing religious ways of life to be sources of law. I contend that these influential arguments for customary law, which are substantially individualist, are weak, and also sketch more promising rationales, which invoke more communitarian considerations. My aim is not so much to convince the reader that South Africa’s approach to post-secularism is justified as to identify some argumentative strategies that particularly promise to justify it. (shrink)

This paper discusses justice as an inherent aspect of life in traditional African societies. It further examines the degree to which constitutions of African countries recognise and promote the traditions and customary practices. It is noted that of late, in the desire to contextualise justice, human rights has to a large extent become the yardstick. This universal idea often creates conflicts with African customary practices which indeed represent the expectations of individuals or groups within such customary traditions. (...) It is therefore possible in the modern context to have customary practices that are at variance with the contents of human rights. The paper cautions that any effort therefore to transform customary practices to fall in line with the universal human rights imbued idea of justice could result in a situation where traditional societies are forced to conform to standards of justice that become impositions. (shrink)

The first part of this article is about the rules that define a legal order’s supreme legislative authority. In this first part, the article also dwells on several distinctions such as those between norms and meta-norms, legislative and customary rules, and constitutive and regulative rules, all with the objective of determining which of these categories the aforementioned rules belong to. The conclusion is that the basic rules defining the supreme legislative authorities of every existing legal order are necessarily constitutive (...) meta-norms and have a customary nature. The second part of this article takes into account the different possible contents of the ultimate rules that define legislative authority. On this basis, four models of legal order and legislative authority are distinguished: those corresponding to absolute authority and to moral authority, and those corresponding to the rule-of-law state and to the constitutional state. In this regard, several considerations are offered that, on the one hand, single out the specific notion of authority accepted within the constitutional state and, on the other, offer a specific critique of the theoretical distinction between constitutive and constituted authority. According to the analysis provided in this article, every authority is a constituted authority. In particular, supreme legislative authorities are constituted by customary constitutive norms that fall beyond the reach of the authorities themselves and do not depend on the decision or will of any particular individual. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent (...) and custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

In Namibia, as in many other parts of Africa, customary law continues to play an important role for ordinary people, by setting the framework of behaviour that the law expects of them and, in return, what protections they can expect from laws. This role is today increasingly under challenge from the growing importance of constitutional law.

It has become customary to conceptualize the living cell as an intricate piece of machinery, different to a man-made machine only in terms of its superior complexity. This familiar understanding grounds the conviction that a cell's organization can be explained reductionistically, as well as the idea that its molecular pathways can be construed as deterministic circuits. The machine conception of the cell owes a great deal of its success to the methods traditionally used in molecular biology. However, the recent (...) introduction of novel experimental techniques capable of tracking individual molecules within cells in real time is leading to the rapid accumulation of data that are inconsistent with an engineering view of the cell. This paper examines four major domains of current research in which the challenges to the machine conception of the cell are particularly pronounced: cellular architecture, protein complexes, intracellular transport, and cellular behaviour. It argues that a new theoretical understanding of the cell is emerging from the study of these phenomena which emphasizes the dynamic, self-organizing nature of its constitution, the fluidity and plasticity of its components, and the stochasticity and non-linearity of its underlying processes. (shrink)

In the customary notion of arithmetic time does not play a central role. Numbers and formal structures seem to be beyond the world of change. But from an epistemological point of view there are important approaches to the constitution of arithmetic, which include time on a fundamental level. The Kantian traditions as well as Brouwer's intuitionism comprise time within their foundational network. Here we encounter important consequences in regard to the scope of admissible numbers and concerning the application (...) of mathematics to the empirical world. German Traditionell gilt das Reich der Zahlen und der abstrakten Strukturen als ein Gebiet, in dem die Zeitabhängigkeit der Gegenstände keine Rolle spielt. Es zeigt sich aber auf der erkenntnistheoretischen Ebene, daß bei einigen Grundlagenkonzepten der Mathematik die Zeitlichkeit sehr wohl in die Konstitution der formalen Objekte einbezogen wird. In der kantischen und dann später in der intuitionistischen Grundlegung der Mathematik wird durchaus von einer Zeitanschauung Gebrauch gemacht. Diese Einbeziehung der Zeit besitzt Weiterungen, sowohl für die Eingrenzung der Zahlbereiche als auch für das Anwendungsproblem auf die empirische Welt. (shrink)

What is the relationship between persons and things? And how does the body transform this relationship? In this highly original new book, Roberto Esposito - one of Italy’s leading political philosophers - considers these questions and shows that starting from the body, rather than from the thing or the person, can help us to reconsider the status of both. Ever since its beginnings, our civilization has been based on a strict, unequivocal distinction between persons and things, founded on the instrumental (...) domination of persons over things. This opposition arose out of ancient Roman law and persisted throughout modernity, to take its place in our current global market, where it continues to generate growing contradictions. Although the distinction seems to appear clear and necessary to us, what we are continually witnessing in legal, economic, and technological practice is a reversal of perspectives: some categories of persons are becoming assimilated with things, while some types of things are taking on a personal profile. With his customary rigour, Roberto Esposito argues that there exists an escape route out of this paradox, constituted by a new point of view founded in the body. Neither a person nor a thing, the human body becomes the decisive element in rethinking the concepts and values that govern our philosophical, legal, and political lexicons. (shrink)

About 1910 it became customary to call Bergsonism and all related tendencies ‘new philosophy’. This term was designed not only to contrast an apparently revolutionary idea with the classical intellectualism of the Franco-German academic tradition and with the platitudes of a philosophy that affirmed and believed itself to be inspired by positive science; the concept of ‘new philosophy’ was meant, above all, to imply that, starting with Bergson, philosophy intended to change its position in regard to human experience. No (...) longer an explanation from afar of the world and of consciousness, philosophy professed to be henceforth one with this experience; not satisfied to shed light on man and his life, it aspired to become this life, now at the stage of complete self-awareness. It seemed that this ambition constrained the philosopher to renounce philosophy's ideal—to be an exact science—since this ideal is not only inseparable from the idea of an impartial and detached spectator, but also from that of a reality so constituted as to be an object of pure vision. On the other hand, however, to abandon this ideal proved less acceptable than ever. The startling progress of positive science gave birth, or rather rebirth, to the illusion of a total explanation: how then could one admit that philosophy would triumph over its secular uncertainties by drawing away from this brilliant example? The relative failure of Bergsonism is possibly due precisely to the fact that it never was willing to make any clear statement of choice in this matter. (shrink)

Although it became customary to warn against confusing postmodernism with deconstructionism, it seems plausible to suggest that their central agendas are not dissimilar. Moreover, from the philosophical point of view, it is the idea of the 'deconstruction of meaning' that can be said to constitute the foundation of postmodernism understood here as an intellectual movement. It is true that grounded in the poststructuralist language analysis, deconstructionism seeks primarily to challenge the attempts inherent in the Western philosophical tradition to establish (...) ultimate meaning in a text. However, as one might have anticipated, the deconstruction of meaning of texts provided a basis for a large scale project leading to deconstruction of all 'truths', as conceived in the mainstream philosophical tradition. And it did it by questioning the coherence of the very concept of 'truth'. Eclectic as postmodernism is, it can be recognized by the fundamental assumption that there is no common denominator that guarantees the one-ness of the world, or the possibility of objective or neutral thought. This assumption would suffice to make one expect that postmodernism will challenge the very foundations of any metaphysical or religious system of beliefs. And so it does. In this paper I would like to ellucidate just one way this challange may be construed, poiting to the example of Don Cupitt, the leading exponent of the 'antirealist' critique of the discourse of theism. (shrink)

It has become customary in multilevel selection theory to use the same terms to denote both two explanatory goals and two explanatory means. This paper spells out some of the benefits that derive from avoiding this terminological conflation. I argue that keeping explanatory means and goals well apart allows us to see that, contrary to a popular recent idea, Price’s equation and contextual analysis—the statistical methods most extensively used for measuring the effects of certain evolutionary factors on the change (...) in the focal individual trait in multilevel selection scenarios—do not come with built-in notions of group selection and, therefore, the efficacy of these methods at analyzing various kinds of cases does not constitute a basis for deciding how group selection should best be defined. Moreover, contrary to another widely accepted idea, I argue that more than one type of group selection may serve as explanatory means when one’s goal is that of explaining the evolution of individual traits in multilevel selection scenarios and I spell out how this explanatory role should be understood. (shrink)

Wittgenstein's `language-games' constitute a forceful post-Cartesian, anti-foundationalist account of linguistic activity with meaning sustained across a network of customary practices or forms of life. This is a fertile picture of language but it depends upon a rigid, synchronic notion of linguistic rules and fails to account for the developmental and transformative dimensions to language. I suggest that Wittgenstein is unable to connect past to present language-games. Despite an obvious proximity of Gadamer to Wittgenstein (on the pragmatics of language) I (...) argue that Gadamer's work on tradition, with its hermeneutical understanding of the indeterminacy of linguistic rules, exposes Wittgenstein's apparent blindness to the historical aspect of language. (shrink)

In his violent charge against the French Revolution, Edmund Burke elevated the political debate to a philosophical level. His deepest argument consisted in reproaching revolutionaries for sinning by apriorism, seeking to deduce, like geometricians, a new constitution from the abstract principles set out in the Declaration of Human Rights. Taken up by the German disciples of Burke, this criticism of the method adopted by the Constituent Assembly drew from the empiricist postulates of the Anglo-Scottish Enlightenment all the conservative implications (...) already concealed in Hume’s political and historical texts. Yet, it is from the outset on this speculative ground that the defence of the right of revolution is played out in Fichte. Reproaching empiricism for reducing the mind to the “blind mechanism of the association of ideas”, passively determined by an exteriority in itself, Fichte intends, on the contrary, to base the experience itself on the activity of an absolutely independent “I-in-itself”. Conceived as a free causality, thus being able to free oneself from Humian “customary conjunctions” in order to begin a new series in the order of phenomena, man, for Fichte, not only has the “faculty of self-improvement”, but the very law of his freedom even makes it his duty. With regard to this categorical imperative of self-improvement, there is no Common Law, nor Ancient Constitution, nor “inheritance from our forefathers” that can stand. Hence, Fichte does not shrink from revolution if these venerable institutions of the past are an obstacle to man’s destiny. (shrink)

Can the concept of law be indiscriminately extended to times and places in which it did simply not exist? Such an extension is at best useless and at worst misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of its contemporary common-sense understanding: positive law. Parallel to Western societies in which it firstly emerged, the concept of positive law developed in many places, including countries characterized as Muslim. There, it faced other existing (...) normativities, like customs and the Sharia. This book aims, from the Muslim world's perspective, to clarify the uses of the concept of law and the ways of studying it, to describe some of its historical developments, including the ideas of constitutional law, customary law and forensic evidence, and to describe present-day practices, including reference to law sources, rules and interpretation. (shrink)

Comparative law is necessary in the modern era in which legal systems absorb ideas and elements from other legal systems and customary legal classifications are altered. Comparative law is closely intertwined with language because the research of different legal systems presupposes the study of legal texts written in different languages. Even if translation exists, a totally crucial issue arises: can the legal essence of the case law of a country be interpreted appropriately in any language but the original? The (...) link between law and language constitutes an absolutely essential relation, since language – through translation – is often the only way of accessing foreign law of foreign countries with different languages. So, the aforementioned relationship as well as its results in case law will be the main topic of this article. First of all, the use of language is of outmost importance to any legal system, as it serves as the means of enforcing written legal rules and contributes to their dissemination, codification and evolution. Both law and language are cultural phenomena and this is why they must be studied taking into account the temporal and social circumstances. Living in the era of multicultural societies and immigration, the need of not just translating but rather transferring the legal essence of the jurisprudence among the different countries with different cultures give prominence to the essential link between comparative law and language systems. Studying case law is regarded as a possibility to redirect judges and lawyers’ attention to the fact that the interpretation of the legal judgement is the cornerstone of a whole legal system of another country. The dynamic relationship of law and language dictates the result of the translation and interpretation of the case law of a specific country in relation to the case law of another country. Thus, comparative law comes out to serve as the guardian of the legal essence in order to transfer the legal point of the judge among different societies with different languages. (shrink)

The 2016 United Nations’ Resolution 2325 “Non-proliferation of Weapons of Mass Destruction” manifests one of the greatest challenges for humankind in relation to preventing a global catastrophe, where it reaffirms that the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security. However, regarding the continuous technological developments of terrestrial-based WMD aimed at orbiting space objects in near-Earth orbit, it is crucial to analyze whether, and if so, how (...) 2325 prevents their proliferation and utilization. Another relevant argument addresses the terminological factuality that, while treaty and customary law do provide some guidance on the legality of weaponization, the concept of a “space weapon” is still not clearly defined. Moreover, even though the Outer Space Treaty prohibits the placement of nuclear weapons and WMD in near-Earth orbit, installing them on the Moon or any other celestial body, or to otherwise station them in outer space, it simultaneously excludes terrestrial-based anti-satellite weapons, thus creating a legal loophole. National representatives of superpowers, particularly of space-faring nations, are aware of the existing issue and often express their concerns toward comprehensive ASAT development and utilization. Nevertheless, the potential weaponization of outer space will not be actively recognized and accepted as an official occurrence within the international community until our current space systems are eventually utilized in order to destroy or damage another State’s space object. (shrink)

Many scientific models in biology are how-possibly models. These models depict things as they could be, but do not necessarily capture actual states of affairs in the biological world. In contemporary philosophy of science, it is customary to treat how-possibly models as second-rate theoretical tools. Although possibly important in the early stages of theorizing, they do not constitute the main aim of modelling, namely, to discover the actual mechanism responsible for the phenomenon under study. In the paper it is (...) argued that this prevailing picture does not do justice to the synthetic strategy that is commonly used in biological engineering. In synthetic biology, how-possibly models are not simply speculations or eliminable scaffolds towards a single how-actually model, but indispensable design hypotheses for a field whose ultimate goal is to build novel biological systems. The paper explicates this by providing an example from the study of alternative genetic systems by synthetic biologist Steven Benner and his group. The case will also highlight how the method of synthesis, even when it fails, provides an effective way to limit the space of possible models for biological systems. (shrink)

In the philosophical literature, it is customary to think of perception as being assessable with respect to epistemic norms. E.g., the whole discussion around disjunctivism, which is now often considered to be the dominant, if not the default position in philosophy of perception, is, by and large, framed and motivated by epistemological concerns about truth and falsity. This book argues that perception is normative in another, more fundamental sense. Perception is governed by norms that Doyon calls perceptual, that is, (...) immanent to its own structure. This does not mean that perceptual norms are cut-off from external facts; it rather means that they are constitutive moments of our experience of these facts. Perceptual norms are, in that sense, constitutive or enabling norms in that they establish what perception is. To articulate this view, he draws in the repertoire of the phenomenological tradition, in the work of Edmund Husserl and Maurice Merleau-Ponty in particular. Like Kant, both phenomenologists were concerned with the question of the unity of experience and sought to identify the conditions of possibility for having a perception, which they conceive not as a mere sensible experience of the outer world, but as a continuous and meaningful experience of reality. Unlike Kant, however, neither phenomenologist immediately identified these conditions with cognition or epistemic criteria. For both phenomenologists, perception has its own standards, its own conditions of possibility. Perception obtains when it unfolds concordantly or coherently; and when the perceptual progression corresponds to or is in harmony with one's goal or interest, perception can also be said to be optimal. From the phenomenological point of view, concordance (Einstimmigkeit) and optimality (Optimalität) are the two basic perceptual norms governing over perceptual experience, and much of the book is devoted to clarifying their meaning and to address the philosophical consequences that follow from this insight. (shrink)

Clarifying the nature of possibility is crucial for an evaluation of the phenomenological approach to ontology. From a phenomenological perspective, it is ontological possibility, and not spatiotemporal existence, that has pre-eminent ontological status. Since the sphere of phenomenological being and the sphere of experienceability turn out to be overlapping, this makes room for two perspectives. We can confer foundational priority to the acts of consciousness over possibilities, or to pre-set possibilities over the activity of consciousness. Husserl’s position on this issue (...) seems to change over time. Ultimately, the establishment of a phenomenological perspective must involve a rejection of any hypostatization of pre-set possibilities, but not all implications of this theoretical step seem to be drawn in Husserl’s texts. This paper is devoted to an illustration of how the phenomenological notion of possibility should change when we reject the hypostatization of possibility, that is, when we reject the idea that all acts of consciousness are to be conceived as realizations of pre-set “ideal forms”. We examine this question, first, by trying to clarify the conceptual constellation of “possibility” in Husserl’s texts. This leads to an overall classification of the features of constituted possibilities. Then we distinguish such constituted possibilities from their constituting conditions, which outlines a different sense of “possibility”. In the last instance two “possibilizing” dimensions are shown to lie at the root of all ontic possibilities. This leads to a final suggestion on the nature of the relation between experience and possibility. Actual experiences create the room for possibility: they are possibilizations. In this sense, experience is to be taken as a generative sphere which goes beyond the customary boundary between epistemic and ontological. From this point of view all experience is to be conceived as emergence. (shrink)

In the literature on persons and their identity, it is customary to distinguish the issue of the nature of personhood—“What is a person?”—from the issue of per- sonal identity—“What are the persistence conditions of a person over time?” In recent years, Eric Olson and Lynne Rudder Baker have brought to the forefront of discussion the related, but often neglected, issue of our essence: “What are we, most fundamentally (essentially)—human animals, persons, or something else?” -/- Attacking what he calls the (...) Standard View of personal identity, according to which personal identity consists in some type of psychological continuity, Olson contends that this thesis has highly implausible implications. Attributing the claim that we are essentially persons to the Standard View, Olson defends the alterna- tive thesis that we are essentially (living) human animals, members of the species Homo sapiens, and that our persistence conditions are biological, having nothing to do with psychology. At the heart of his critique is the contention that the Standard View lacks a plausible account of the relationship between a person and the human animal associated with her. Defending “person essentialism” and defining persons as beings with first-person perspectives, Lynne Rudder Baker responds to Olson’s challenge with the Constitution View: We (human) persons are constituted by, but not identical to, human animals. -/- After reconstructing Olson’s critique of the Standard View, I argue that Baker goes a long way toward meeting his challenge to account plausibly for the relationship between persons and human animals. Then I contend that her person-based Constitution View nevertheless has major difficulties: a “newborn problem”; a dubious ontology; and a problematic account of personal identity. I conclude with general reflections about this dialectic. (shrink)

Synonymy, at its most basic, is sameness of meaning. A token-reflexive expression is an expression whose meaning assigns a referent to its tokens by relating each particular token of that particular expression to its referent. In doing so, the formulation of its meaning mentions the particular expression whose meaning it is. This seems to entail that no two token-reflexive expressions are synonymous, which would constitute a strong objection against token-reflexive semantics. In this paper, I propose and defend a notion of (...) synonymy for token-reflexive expressions that allows such expressions to be synonymous, while being a fairly conservative extension of the customary notion of synonymy. (shrink)

The relation between the opening section of Plato’s Laws and Xenophon’s Constitution of the Lacedaemonians usually goes unnoticed. This paper draws attention to its importance for understanding Plato’s project in the dialogue. It has three sections. In the first, it will be shown that the view proposed by Plato’s Athenian visitor that Lycurgus made virtue in its entirety the goal of his statecraft was anticipated in Xenophon’s treatise. It has to be treated as an interpretation of the Spartan politeia, (...) alternative to that advanced by Cleinias and Megillus, and accepted by Aristotle, which Plato could expect or at any rate hope to be taken seriously as such. In the second, the argument will focus on the contents of the legislative programme the Athenian says he had hoped to hear Cleinias ascribe to the Cretan and Spartan lawgivers. The case will be made that Plato can expect recognition by the reader that the programme is properly Spartan and Cretan by virtue of its echoes of the programme attributed to Lycurgus by Xenophon. Finally, the third section will argue that in making law primarily concerned with fostering the proper development, conduct, and treatment of human beings at every stage of the life cycle, above all by provision for sound customary practices and the like, Plato adopts the approach to law making taken by Xenophon’s Lycurgus. (shrink)

When in 2001 Earth Liberation Front activists drove metal spikes into hundreds of trees in Gifford Pinchot National Forest, they were protesting the sale of a section of the old-growth forest to a timber company. But ELF's communiqu on the action went beyond the radical group's customary brief. Drawing connections between the harms facing the myriad animals who make their home in the trees and the struggles for social justice among ordinary human beings resisting exclusion and marginalization, the dispatch (...) declared, "all oppression is linked, just as we are all linked," and decried the "patriarchal nightmare" in the form of "techno-industrial global capitalism." In Total Liberation, David Naguib Pellow takes up this claim and makes sense of the often tense and violent relationships among humans, ecosystems, and nonhuman animal species, expanding our understanding of inequality and activists' uncompromising efforts to oppose it. Grounded in interviews with more than one hundred activists, on-the-spot fieldwork, and analyses of thousands of pages of documents, websites, journals, and zines, Total Liberation reveals the ways in which radical environmental and animal rights movements challenge inequity through a vision they call "total liberation." In its encounters with such infamous activists as scott crow, Tre Arrow, Lauren Regan, Rod Coronado, and Gina Lynn, the book offers a close-up, insider's view of one of the most important--and feared--social movements of our day. At the same time, it shows how and why the U.S. justice system plays to that fear, applying to these movements measures generally reserved for "jihadists"--with disturbing implications for civil liberties and constitutional freedom. How do the adherents of "total liberation" fight oppression and seek justice for humans, nonhumans, and ecosystems alike? And how is this pursuit shaped by the politics of anarchism and anticapitalism? In his answers, Pellow provides crucial in-depth insight into the origins and social significance of the earth and animal liberation movements and their increasingly common and compelling critique of inequality as a threat to life and a dream of a future characterized by social and ecological justice for all. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Possible Worlds in the Tahâfut al-tahâfut:Averroes on Plenitude and PossibilityTaneli Kukkonen1.It has become customary to credit John Duns Scotus with having first systematically laid out the basis for treating the modal terms as referring to synchronic alternative states of affairs. This has been viewed as constituting a genuine shift in modal paradigms, as no former model had included the idea of genuine synchronic alternative possibilities. Historians of modal (...) logic and contemporary logicians alike have found it interesting that certain key features of Duns Scotus's theory and subsequent late medieval work markedly resemble the so-called possible worlds semantics approach of modern modal theory.1Duns Scotus' innovations were not completely without precedent. Several key elements in Scotus' theory were foreshadowed by twelfth-century developments. Perhaps somewhat amusingly, one of the most important forerunners to the Latin discussion was one in whose context the expression "possible worlds" would have made sense in a very special way.2 This is the medieval Arabic debate on the eternity of the world and its modal status. In this paper I propose to take stock of the positions the Arabs reached, and to do so by way of [End Page 329] consulting one of the documents central to the debate, the Tahâfut al-tahâfut or the "Incoherence of the Incoherence," by Abû al-Walîd Ibn Rushd (the Latin "Averroes," 1126-1198). In the first part I examine Averroes' exposition of the received Aristotelian tradition; in the second I assess the revisions to modal theory suggested by al-Ghazâlî (1058-1111), in the latter's comprehensive critique of philosophical doctrine. Though the two inquiries are obviously complementary, they can be accomplished independently of each other.It will be seen that Averroes' and his formidable adversary's views on the interpretation of the modal concepts differ quite fundamentally. What makes the ensuing debate, often fraught with misunderstandings and misrepresentation, so engaging is that both parties, in spite of their differences, refer to a common Aristotelian backdrop in questions of terminology and mode of argumentation. Both Averroes and al-Ghazâlî are well-placed to present a considered and balanced account of what they take to be crucial in the issues involved. It is on account of this that the complex interplay between the old and the new comes to the fore with exceptional force and clarity in the Tahâfut debates.2.The Tahâfut al-tahâfut, first published in 1180, is a philosophical rejoinder to an attack on philosophy, Abû Hâmid al-Ghazâlî's Tahâfut al-falâsifa or "The Incoherence of the Philosophers" (1095). In that celebrated work al-Ghazâlî had claimed to expose certain philosophical doctrines as not only contrary to orthodox Muslim belief, but also internally incoherent.3 Averroes' reply in turn was written in order "to show the different degrees of assent and conviction attained by the assertions in The Incoherence of the Philosophers, and to prove that the greater part has not reached the degree of evidence and of truth."4 The work is thus of a doubly dialectical nature. Whereas al-Ghazâlî tries to show the philosophers' reasoning to be defective, Averroes has to show both that al-Ghazâlî is likewise lacking in intellectual rigor and that philosophy, properly understood, is innocent of the charges leveled at it. If the Islamic philosophers (al-Fârâbî and, above all, Avicenna) have in fact erred, this is only to the extent that they have misrepresented correct Aristotelian doctrine. [End Page 330]Averroes' presentation is appropriately delicate considering the complexity of the task at hand. Averroes quotes al-Ghazâlî exclusively in full, lengthy passages, with the result of incorporating almost all of the Tahâfut al-falâsifa in his own work. In so doing he gives us an adequate and comparably fair representation of al-Ghazâlî's views. Averroes then goes on to discuss what al-Ghazâlî says both in the philosophers' name and in his own, and points out their respective deviations from Aristotelian doctrine. The text thus comes laid out in three successive layers, with Averroes' own... (shrink)

In quantum mechanics, the term “creativity” is amplified, since natural events form the constant transition from possibility to reality, according to the ontological probabilism of the Schrödinger equation. The completion of the quantum theory through the concept of the Grand Unified Theories, and especially through the yet incomplete superstring theory, reveals that at the micro level of creation of sub-atomic particles or space, motion literally comes prior to Being and objects are forms of a motion which suggests a constant transition (...) from possibility to reality. In non – linear physics of complex systems, the term “creativity” does not simply correspond to the initial emergence of the universe (big bang) or to the sub-atomic scale processes described by quantum mechanics, the Grand Unified Theories and the superstring theory, but is expanded to all aspects of nature: i.e. physical - chemical, ecological, psychological – mental aspect. So, through the non – linear physics theory, macroscopically viewed beings are constructed, holistic forms of motion, in order for the whole to gain a non reducible (therefore the whole is constantly being produced) ontological meaning which characterizes the operation of the part. Combining the theories of quantum mechanics and relativity, it could be stated that modern physics abolishes the customary perception concerning the natural phenomena, which were concerned as a constant transformation of a fundamental substance. On the contrary, the contemporary description of the natural world by physics and mathematics corresponds to Morphodynamics, i.e. the description of the world as creation of all cosmic shapes from a zero point, on all cosmic levels. From this point of view, zero is understood as the absence of shape, while the notion of an unshaped eternal substance is weakened and does not seem to be able to be justified by the evolution of scientific thought. The “beings” and their “substance” are assimilated to forms of movement that have already been created or that are being created, and constitute motion inside motion. (shrink)

In this book I have tried to develop an analysis of the concept of an empirical law, an analysis that differs in many ways from the alternative analyse's found in contemporary literature dealing with the subject. 1 am referring especially to two well-known views, viz. the regularity and necessity views, which have given rise to many interesting papers and books within the philosophy of science. In developing my own views, it very soon became clear to me that the mere restatement (...) of these alternative views, followed by a discussion of their defects and an explanation of my own view, would not suffice to show what 1 regard as basically unsound in these views. If we seriously consider the well-known difficulties facing the regularity view, we have to consider the possibility that the time has arrived to stop our attempts to solve, by means of patch-work additions, the fundamental problem of empirical laws within the traditional context of logical positivist doctrines. I have tried to find a solution which is based on a different philosophical context, the main incentive being that the discouraging results of the customary attempts to solve the problem might have been the outcome of the fundamental philosophical setting within which the problem had been formulated and within which everyone looked for a solution. The problem of empirical laws is not a problem existing by its own rights - it is shaped by an underlying point of view or theoretical framework. For this reason I have started with a brief sketch of the logical positivist context. However, I want to stress the fact that my intention was not to offer an historical exposition, but an exposition which becomes meaningful when related to the subsequent arguments concerning empirical laws. The notion of direct or theory-free observation has been taken as the fundamental characteristic of the logical positivist point of view. This view has been further characterised by means of five theses, among which is the thesis that observational terms are isolated or theory-independent units of extensional meaning. These terms are then supposed to be the starting-points of meaning and the end-points of confirmation, and these very characteristics mark the privileged position such terms have in a logical positivist philosophy. The post-positivist view, on the other hand, is characterised by the opposing notion of theory-loaded observation. This notion leads to other conclusions which radically oppose some of the theses of logical positivism. The notion of theory- loaded observation itself, although often clearly stated, has not yet been systematically elucidated, and I have made an attempt to do this in ch. I after my sketch of the logical positivist context. This seemed to me to be necessary in order to make my post-positivist point of view as clear as possible, before tackling the problem of empirical law itself. I have paid special attention to the lawlikeness of concepts and their confirmation and falsification. These epistemological issues are followed by a separate examination of Goodman's riddle in ch. II, because it lies somewhere between the lawlikeness of concepts and the lawlikeness of laws. If Goodman's riddle is taken as a serious problem, as I think it should, it is primarily a problem of concept or theory formation and not a problem of induction. In ch. III the regularity view has been examined and the well-known difficulties related to such a view are considered, assuming the knowledge gained in ch. I. This has led to some interesting results, especially in connection with the analysis of counterfactuals and the confirmation of 'normal' singular conditionals, to which I return in the last chapter. Three different views of the necessity view are briefly stated and investigated in ch. IV. RESCHER'S view is, I think, close to mine, which has been developed in ch. V. However, there are fundamental epistemological differences between our views. In the last chapter I have given my own analysis of the concept of an empirical law, which should not be taken as a synthesis of a regularity and a necessity view, but as opposed to both. It is, as far as particulars may count, the result of an analysis of the concepts 'regularity' and 'necessity'. I have tried to argue that the greatest shortcoming of the regularity view lies in the fact that the proponents of such a view have not been really concerned with the concept of 'regularity' itself. They usually take this concept to be intuitively clear enough to serve as basis for their analysis. Their attacks upon the necessity view are based on the reproach that 'necessity' is a very obscure concept, and that it should, therefore, be avoided in the philosophy of science. We could, however, reproach them in a similar way, since the concept of 'regularity' is anything but clear. One may say that an empirical law formulates a 'regularity in nature', but we can only do justice to the function a law has in science, if we are ready to view this regularity as a necessary connection, which does not exist in an observer-independent reality, but in a theoretically co-constituted empirical world. This investigation does not pretend to answer all questions concerning empirical laws. It should, therefore, not be regarded as complete, but neither should the arguments and suggestions be regarded as completely free from ambiguity. Much remains to be done in order to offer a generally acceptable theory and better understanding. (shrink)

Isaiah Berlin was deeply admired during his life, but his full contribution was perhaps underestimated because of his preference for the long essay form. The efforts of Henry Hardy to edit Berlin's work and reintroduce it to a broad, eager readership have gone far to remedy this. Now, Princeton is pleased to return to print, under one cover, Berlin's essays on Vico, Hamann, and Herder. These essays on three relatively uncelebrated thinkers are not marginal ruminations, but rather among Berlin's most (...) important studies in the history of ideas. They are integral to his central project: the critical recovery of the ideas of the Counter-Enlightenment and the explanation of its appeal and consequences--both positive and tragic.Giambattista Vico was the anachronistic and impoverished Neapolitan philosopher sometimes credited with founding the human sciences. He opposed Enlightenment methods as cold and fallacious. J. G. Hamann was a pious, cranky dilettante in a peripheral German city. But he was brilliant enough to gain the audience of Kant, Goethe, and Moses Mendelssohn. In Hamann's chaotic and long-ignored writings, Berlin finds the first strong attack on Enlightenment rationalism and a wholly original source of the coming swell of romanticism. Johann Gottfried Herder, the progenitor of populism and European nationalism, rejected universalism and rationalism but championed cultural pluralism.Individually, these fascinating intellectual biographies reveal Berlin's own great intelligence, learning, and generosity, as well as the passionate genius of his subjects. Together, they constitute an arresting interpretation of romanticism's precursors. In Hamann's railings and the more considered writings of Vico and Herder, Berlin finds critics of the Enlightenment worthy of our careful attention. But he identifies much that is misguided in their rejection of universal values, rationalism, and science. With his customary emphasis on the frightening power of ideas, Berlin traces much of the next centuries' irrationalism and suffering to the historicism and particularism they advocated. What Berlin has to say about these long-dead thinkers--in appreciation and dissent--is remarkably timely in a day when Enlightenment beliefs are being challenged not just by academics but by politicians and by powerful nationalist and fundamentalist movements.The study of J. G. Hamann was originally published under the title The Magus of the North: J. G. Hamann and the Origins of Modern Irrationalism. The essays on Vico and Herder were originally published as Vico and Herder: Two Studies in the History of Ideas. Both are out of print. (shrink)

In this incisive study of the biological and cultural origins of the human self, the author challenges readers to re-think ideas about the self and consciousness as being exclusive to humans. In their place, he expounds a metatheoretical approach to the self as a purposeful system of extended cognition common to animal life: the invisible medium maintaining mind, body and environment as an integrated 'field of being'. Supported by recent research in evolutionary and developmental studies together with related discoveries in (...) animal behavior and the neurosciences, the author examines the factors that have shaped the evolution of the animal self across widely different species and times, through to the modern, technologically enmeshed human self; the differences between which are presented as relations of degree rather than absolute differences. Much like our primitive ancestors, he contends, routine human behaviour is governed more by unconscious instinct than self-conscious rationality, and is generally resistant to any major changes in customary habits of life, until compelled in time to do so. However, in extreme and rapidly evolving circumstances, as with climate change, tardy responses may become so detached from reality as to constitute an actual threat to survival. (shrink)

Abstract: It deals with the question of what a moral judgment is. On the one hand, a satisfactory theory of moral judgments must take into account the descriptive character of moral judgments and the realistic language of morals. On the other hand, it must also meet the non-descriptive character of moral judgments that consists in the recommending or condemning element and in the fact that normative statements are derived from moral judgments. However, cognitivism and emotivism or “normativism” are contradictory theories: (...) If moral judgments are descriptive, it is not possible to deduce norms from them. But if one can deduce norms from moral judgments, they are not descriptive. As a solution to this problem, the paper suggests that moral judgments represent institutional facts; the corresponding theory is moral institutionalism. A moral institutional fact – “an act X is Y”, Y” means “morally right” or “morally false” – is a hybrid of descriptive and prescriptive elements: It is stating a fact in descriptive language (“is”) and at the same time, it is short for the prescriptive constitutive rule “X is Y according to the moral rules of the language community C”. Institutional facts contain normative presuppositions without letting them appear in their grammatical form. Institutional facts are now (in relation to the language community C) objective and intersubjective and they can be generalized (cognitive aspect), although they cannot be reduced to brute physical or psychological facts, and it is also possible to deduce norms from them because they are built into them. The meta-ethical concept of moral institutionalism, which is evolved further in the paper, preserves the best intentions of emotivism and cognitivism without leading to contradiction. As a by-product, the article shows exactly the error in J. R. Searle’s alleged counterexample against the so-called naturalistic fallacy from “is” to “ought”. This lies in the normative “are” of the analytic premise or definition in “2a. All promises are [that is ought to be] acts of placing oneself under (undertaking) an obligation to do the thing promised”. In “Key concepts in philosophy”, Sankt Augustin 2015, institutionalism is explained further (p.184-191) and confined to what Hegel has called “Sittlichkeit” that is customary morality in in distinction to the “morality” of my personal consciousness (p.212-213):. (shrink)

This article starts with the hypothesis that the measure of first-person experience of initiative is not, as it has been customary to believe, the present moment. Jean Nabert’s philosophy (and especially his early work titled L’expérience intérieure de la liberté) provides tools that make it clear that the sense of initiating action that one has in the present moment carries the stigma of illusoriness. If I experience initiative in the present moment, it means that I have taken part in (...) an activity initiated before. Therefore, even though the very moment of initiating action remains unavailable to me, the measure of initiative experience should be sought not in the present but in the past. To this end, one needs to consider the genesis of motives propelling my action. In line with Nabert’s conception, these motives—manifesting themselves as some kind of representations—are grounded in actions that I have not completed. However, the fact that the initiative I demonstrate is conditioned by these unfinished actions does not imply that my actions so far make up, by definition, a harmonious arrangement. Nevertheless, all these actions coalesce in one history, embracing my “desire to be” that constitutes my existence. (shrink)

Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorism attacks, developments in technology, or natural catastrophes. This article will apply the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In particular, this article will argue that the evolving political nature of our world order has contributed toward the need (...) to re-conceptualize the legal theory of statehood. This article will thus posit that this constitutes a so-called Grotian Moment 2: a period of time when significant contestation of prevailing international legal norms and institutions occurs, and when novel thinking, norms and institutions attempt to replace elements of the old but may not succeed in doing so. This article posits that developments in the legal theory of statehood may be best described as Grotian Moment 2 although various historical and political developments have reshaped our contemporaneous conception of statehood, it may be argued that international law itself has neither contributed to the evolution of a new legal theory of statehood nor changed its own norms. (shrink)

In this article Mare liberum is placed within the context of seventeenth-century European politics. It focuses on the development of conventional relations between European States regarding their interests outside of Europe and their importance concerning the status of Asian and African 'actors'. It turns out that in spite of Mare liberum's high-sounding proclamation of equality of non-European sovereigns with European States, Grotius's position as well as Dutch policy was inspired by self-interest and was essentially opportunistic. The Dutch Republic – as (...) well as other European States – used the 'liberal' principles of Freedom of trade and the Universality of the Law of Nations to attack the Portuguese/Spanish claims of monopoly. However, as the Dutch Republic, Great Britain and France developed their own 'Spheres of Interest' in Asia, Africa and the Americas, they effectively excluded would-be competitors. Indeed, in the eighteenth century the 'pacte colonial' constituted a distinctive characteristic of the conventional and customary 'European Law of Nations'. As non-European political actors in the eighteenth century relatively lost military and political power, the European States finally relegated them to an inferior position, beyond the charmed circle of full 'subjects of Public International Law'. The article also is a contribution to the ongoing discussion about the relation between European imperialism and the development of the doctrine of European International Law. (shrink)

Developing the arguments put forward in books such as Communitas, in this article the political philosopher Roberto Esposito tries to overcome the customary opposition between the notions of community and nihilism. His aim is to rethink what community might mean in an age of ‘completed nihilism’. In a subtle genealogical and etymological analysis of the concept of community, he demonstrates how, rather than establishing a substantial and positive bond, community is constituted by nothingness, by a shared lack—which communal, communitarian (...) and totalitarian politics seek to deny. The excavation of the meaning of communitas allows Esposito to critically examine the manner in which the thinking of community has been expunged by modern political philosophy. (shrink)

Contrary to the expectations of several theorists belonging to the modernisation school, chieftaincy as a traditional institution survived various political changes throughout the 19th and 20th century in most African states. Nonetheless, their existence thereafter has varied in these states. Some states have lauded, recognised and employed chiefs for state development, while other states have blatantly ignored and designated the offices of chiefs as an obsolete governance institution that has outlived their usefulness. The variance in the disposition to chiefs is (...) identified as deeply rooted in a long-standing debate over the relationship between modernity and tradition. This study explores this debate, adopting the Ghanaian chieftaincy institution in its modern form as a case study. A synthesis of existing literature on the relevant concepts was developed and discussed in the development of the study. The study identified the major debate on tradition and modernity to be situated in a binary school, where one strand believes they can both exist together, and the other situates their argument in the need to abolish tradition completely from modern societies. For the Ghanaian setting, however, the chieftaincy institution is recognised and accorded its autonomy in the 1992 Constitution of Ghana. This has created a bifurcated state where constitutional law and customary law are implemented at the same time. Over the years, the interaction between both systems of governance has been seen mostly in land administration, local governance, and development. Chiefs as such are identified as playing extensive roles in state development and investment promotion through land administration, serving as gatekeepers between the central government and their subjects, promoting solidarity and employing their influence and expertise as a means for introducing sustainable development initiatives in their localities. However, conflicts and land mismanagement have been areas of contention, affecting their influence and relevance in recent times. The study recommends capacity building and further integration with the modern democratic Ghanaian institutions to improve the contribution of chiefs to the development of Ghana and other contexts where they exist. (shrink)

Neo-liberalism often reduces pluralism to a social fact based on the collapse of the big ideals that once claimed to stand in for the ideal of humanity. Tolerance of inevitable value diversity is all that can be offered by the rationalized modern western state. This understanding of pluralism is completely inadequate in the post colony. Ernst Cassirer offers a philosophical understanding of symbolic plurality that allows us to respect divergent symbolic forms, including myth and religion. This understanding of pluralism opens (...) the space for respect for the customary law and the great indigenous ideals such as uBuntu which has often been denigrated as mythical and thus outdated or, worse yet, not law at all. This denigration is inseparable from colonial violence, and demands a process of transculturation as integral to this struggle to transform the new South Africa into a society that lives up to the Constitution’s call for the respect of all of its citizens. This respect can only be done if there are serious economic reforms and a challenge to the hegemonic neo-liberal capitalism. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:What Is Psychiatry About?Dominic Murphy, PhD (bio)There are no such things as minds, but there are animate objects who behave differently from other types of natural entity. They move around under their own power, and some of their activity seems to be very different from that of other natural objects. Furthermore, some of our predictions about these objects are disproved in interesting ways; if we make a false prediction (...) we do not revise our best theory about how such things generally behave, but we instead conclude that there is something wrong with the object of the prediction. These intelligent unpredictable things need a special vocabulary, and mental talk has arisen to serve as that vocabulary. But since a mind is not a thing in nature we face the problem of saying what the sciences of the mind are actually about.There are, then, intelligent systems that can be judged pathological, and some of them are our conspecifics. It is fair to say that there is no agreement about how such judgments are made or should be made. The question of what a mental illness is part of this larger picture, and it raises several different issues.First, how should we think about our practices of judging deviance? It would be contrary to accepted practice to wear a swimsuit to a state funeral, but what sort of norms would it violate and what state of mind would we ascribe to somebody who did it? Second, what is the difference between a judgment of deviance and a judgment of pathology? We have many ways of distinguishing between types of deviance, and the lines between criminality, immorality and pathology, to take three examples, are not always easy to discern. Third, what makes an illness a mental illness? This is Gough's topic, and I will get to it in a moment, but it worth situating it within this broader framework which asks what we are doing when we make these judgments of norm-violation.Gough begins by quite correctly pointing out that if we look at the domain of psychiatry as currently understood, we would have a hard time seeing what it is supposed to be the science of. It is customary to see psychiatry as dealing with the mental but, as Gough notes, there are some mental processes that psychiatry does not deal with, and some processes that psychiatry deals with that are not mental. Gough's response to this problem is a very interesting one, which starts from the idea that the point of psychiatry is to help those who need it; how different do things look if we start from this position? Conley and Glackin (2021) argues that the practical and therapeutic aspirations of psychiatry should constrain our understanding of mental illness. Glackin argues that we should [End Page 41] see this 'norms-first' view, as I will call it, as part of a broader liberal-democratic conversation about the ways in which we should live togetherA view that starts with norms is typically opposed to the 'naturalist' position. A naturalist begins with positive facts as the basis for diagnostic concepts, on the grounds that our concepts of disease and health are supposed to answer to facts about the physical and mental constitution of human beings. Gough's view is neither a norms-first view or a naturalist's view. We could call it an institutionalist view, or, if we were being a bit less kind, an ostensive one—"these things here, that's mental illness."David Hull (1988) taught us that every science (indeed, every intellectual formation or tradition) needs to be understood in two ways. First, we have the theoretical commitments that are taken to define it. Second, there are the practices and institutions that separate its practitioners off from others. Contemporary evolutionary biology, for instance, is built on the twin foundations of the modern synthesis—Darwinian natural selection and Mendelian genetics. These two theoretical commitments have been transformed and adapted and supplemented in diverse ways so that their modern forms no longer resemble their originals very closely. Still, they continue as the central undertakings about the nature of the living world that modern... (shrink)

One of the most significant economic challenges faced by people with disabilities in Turkey and globally is employment. Unfortunately, even in developed countries, the desired level of employment of the disabled individuals has not yet been measured up. The fundamental rights and freedoms of employment and labor have gained a basis of legitimacy through certain principles within the legal system throughout human history. As a matter of fact, in the main references of Islamic law, the principles of justice, rights, equality (...) of opportunity, merit, anti-discrimination, and social responsibility for all people in general and disabled people in particular have been a reference in the development of employment policies. In this regard, the main objective of Islamic economic policies has been determined as ensuring the happiness of the individual in this world and the hereafter since the early period. The study first includes active and passive employment models developed in modern legal systems. It can be stated in this framework that from the early period, both in the practices of the Prophet Muhammad and the Companions and in the later Islamic societies, institutionalization was provided according to the characteristics of the period in which disabled individuals were actively and passively employed, and it can be stated that the developments regarding the employment of disabled individuals in Islamic societies started much earlier than expected. However, we must admit that legal regulations in the modern sense were introduced later compared to the West. The study focuses on the phenomenon of disability, the problems and needs of the disabled, and the studies on employment in Islamic societies from the past to the present. It is determined that many disabled people in Islamic society are actively employed in state positions ranging from imam to judge, from commander to governor according to their abilities, and the disabled people who cannot be employed are compensated for their disadvantages through passive employment methods such as health, care, housing, salary binding, and tax reduction. Determining the principles of employment of disabled according to Islamic law is the main subject of the study, and it has been established that maslahah, custom, siyasa shar’iyya, merit, and sedd-i zerâi constitute the jurisprudential basis of the employment of the disabled in Islamic law. In this framework, it has been stated that the principle of maslahah plays a key role in the development of social responsibility policies, in resolving issues that are not included in verses and hadiths and furû fiqh acquis, in gaining the economic independence of disabled and ensuring the minimum standard of living. Maslahah is also beneficial for the individual, family, society and the state, too. It has been pointed out that the employment of disabled people has become one of the most significant matters of both national and international legal regulations today, and it has been determined that the employment of disabled people has transformed into customary practices in accordance with the criteria of being a source of Islamic law. In Islamic administrative law, active and passive employment policies, legal regulations, and institutional structures related to disabled are carried out by the authority delegated to public administrators under the siyasa shar'iyya. It has been emphasized that administrative and public service appointments in Islamic law are ordered to be made on the basis of merit, that nepotism and favoritism are prohibited, and that disability is not an obstacle to employment. In conclusion, the insufficiency of studies on employment of people with disabilities in Islamic law has been pointed out and it has been suggested that further studies should be carried out on these subjects and exploitation of disability according to Islamic law should be studied. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Bataille in Theory: Afterimages (Lascaux)Suzanne Guerlac (bio)If there is a single term poststructuralism could not live without—at least within the intellectual circles associated with the review Tel quel—it is “transgression,” inherited from Bataille. “God-meaning,” Philippe Sollers writes in an early essay, “... is a figure of linguistic interdiction whereas writing—which is metaphoricity itself (Derrida)—transgresses... the hierarchic order of discourse and of the world associated with it” [“La science de (...) Lautréamont” 808, my emphasis]. In their Dictionnaire des sciences du langage Ducrot and Todorov declare grandly that text “has always functioned as a transgressive field with respect to the system according to which we organize our perception, our grammar, our metaphysics and even our science” [443–44, my emphasis]. They describe the advent of poststructuralism as a “Copernican revolution,” and it became customary to characterize the before and after of this break by referring to Bataille’s distinction between “restrained” and “general” economies.An influential essay by Foucault, “Préface à la transgression” (1963), might be considered the opening move in what would become Tel quel’s appropriation of Bataille. Foucault’s essay examines Bataille’s L’érotisme (1955), a study that theorized transgression in a complex elaboration which articulated philosophical discourse (Hegel/Kojève) with a “sociological” discourse of the sacred (Caillois). Foucault’s reading of the text removes the transgression of eroticism from both these discursive horizons and moves it toward late Heidegger (an ontology of the limit) and Nietzsche. If one of Bataille’s most radical gestures was to insert the ethnographic distinction sacred/profane into philosophical discussion, Foucault’s analysis reinscribes transgression within the intertextual field of philosophy, radicalized, of course, through the inclusion of the “marginal” figure, Nietzsche, and the philosopher who announced the end of philosophy, Heidegger. Foucault’s rewriting of Bataille may read philosophy against itself, may even propose the transgression of philosophy; nevertheless, it is structured by the vicissitudes of philosophical discourse. Bataille on the other hand had confronted philosophy with something radically other—tout autre.In “Préface à la transgression,” Foucault defined transgression as “a gesture concerning the limit.” He presented it as a flash of lightning, an image that not only figures transgression but also emblematizes the move into what will become the philosophical register of poststructuralism. It traces a line, a line that figures the Heideggerian ontology of limitation, the coming into being (or appearance) of beings on the horizon of Being; it suggests the limit of the ontological difference between Being and beings.Anticipating Derrida through Heidegger, Foucault analyzed transgression as an event of difference, alluding to Blanchot’s “principe de contestation” and to a Nietzschean notion of affirmation. “Might not the instantaneous play of the limit and transgression be today the essential test of a thinking of ‘origin’ which Nietzsche bequeathed to us... a thinking that would be absolutely, and in the same movement, a Critique and an Ontology, a thinking that would think finitude and being?” [Foucault 759]. Transgression becomes identified with a “philosophy of eroticism” (which plays on Sade’s “philosophie dans le boudoir”), a gesture that transvalues philosophy from the realm of cognitive or rational activity to “an experience of finitude and of being, of the limit and of transgression.” The [End Page 6] “philosophy” of eroticism is thus a “test/ordeal [épreuve} of the limit,” one that “no dialectical movement, no analysis of fundamental laws [constitutions] and of their transcendental foundation [leur sol]” can help us think. Foucault then asks a rhetorical question that could be said to structure much of the discourse of theory in the next decade: “Would it be an exaggeration, to say,” he asks, “... that it would be necessary to find a language for the transgressive that would be what dialectic has been for contradiction?” [759].In this way Foucault established transgression as an alternative to the machine of dialectical contradiction. Attuned to the recent discoveries of structuralism, which had begun to reverse the conventional understanding of relations between the subject and language (the subject is no longer considered master of his or her language but structured by it), Foucault announced that “the gesture of transgression replaces the movement of contradiction by plunging the... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Buddhist-Christian Studies 22 (2002) 234-236 [Access article in PDF] Book Review Dreaming Me: An African American Woman's Spiritual Journey Dreaming Me: An African American Woman's Spiritual Journey. By Jan Willis. New York: Riverhead Books, 2001. 321 pp. This book invites comparison with Diana Eck's Encountering God: A Spiritual Journey from Bozeman to Banaras(Boston: Beacon Press, 1993). Both are by prominent women scholars, both have "spiritual journey" in the subtitle, (...) and both are about Christians who come to terms with a non-Christian religion—Hinduism in Eck's case, Buddhism in Willis's case. But as soon as one gets past the titles, it is the differences that strike one. Where Eck maintains an Olympian poise, hobnobbing with Hindus but remaining a Christian and an objective scholar, interpreting and analyzing as she goes, Willis plunges into Buddhism without rejecting her family's Baptist tradition, becoming a fully participant observer so as to ask how her own history and the history of her fellow African Americans can be healed by an intensely personal internal dialogue. Eck gives us theology. Willis gives us herself. Recognized as "one of the first American scholar-practitioners of Tibetan Buddhism" (294), her students ask her if she practices meditation as well as teaching it. She gives a carefully crafted answer that unifies the practice of Buddhism with the practice of academic teaching as an authentically human activity within the Humanities.The book has the form of a Hindu epic, incidents from Willis's life interrupting the frame story, the dreaming of the title. This dream (whether actual or metaphorical, we are not told) moves with considerable dramatic power from the terror of being pursued by lions to the dreamer's transformation into a lioness who roars the Dharma like Queen Shrimala. Its five parts are called Birth, Odyssey, Choices, Becoming, and Return, taking us from her childhood as a Baptist in Docena, Alabama, to Cornell University, to India and Nepal, and back to Docena, as a self-described Baptist-Buddhist (310).Willis's journey is intimately bound up with her search for self-acceptance as a "white gal"—a noticeably light-complexioned black woman in the Jim Crow South —and for the nobility of African Americans as fully human beings. Her early experiences [End Page 234] were not encouraging. Blacks were not only physically segregated in Docena, they were electronically expunged from television shows by spurious technical difficulties ("trouble along the cable"), and she endured an attack by the Ku Klux Klan on her family's home. The customary but thoroughly illegal suffrage examination administered to her father included such questions as "How many words are there in the U.S. Constitution?" (58, italics in original). He had been specially prepared for such absurdities, and he passed. Midway in her pilgrimage Willis searches for her roots (or "kin," as she says, using the Southern word) in county and federal records, and her initial excitement turns to humiliation as the white historian tells her, with disdainful triumph, that her intelligence must have come from the white slave owner who "everybody says" was her "granddaddy's daddy" (251). A black woman was presumed to be lacking in native intelligence, and Willis's intellectual powers suffered insult not only from whites but from her own mother, who, perhaps having internalized the white folks' contempt, regarded being smart as somehow evil (25). As a student at Cornell, Willis discovered black power and participated in Black Student Alliance (BSA) demonstrations, sometimes involving guns, but she came to believe that direct political action was not for her. She was, she decided, a teacher at heart, and after much soul searching she opted for the "peaceful transformation" (129) that she hoped would come from the study and practice of Buddhism.Although her skin color was a puzzlement to some Indians, who wondered about her caste, her Tibetan teachers in Nepal accepted her as a student who was at least the equal of the white students, and even, perhaps, superior to them. A spot of blonde in her hair was interpreted as the... (shrink)

This article is about the recognition of personhood when death occurs in early life. Drawing from anthropological perspectives on personhood at the beginnings and ends of life, it examines the implications of competing religious and customary definitions of personhood for a small sample of young British Pakistani Muslim women who experienced miscarriage and stillbirth. It suggests that these women's concerns about the lack of recognition given to the personhood of their fetus or baby constitute a challenge to customary (...) practices surrounding burial as a Muslim. The article suggests that these women's concerns cannot be adequately glossed as a clash of Islamic belief versus Western medicine. Rather, they represent a renegotiation of Islamic opinion and customary practices within the broader context of changes in the medical and social norms surrounding pregnancy loss and infant death in multi-ethnic British society. (shrink)