This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is (...) stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints. (shrink)

This article reviews David Strauss's recent book,The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the (...) common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action. (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)

There is a growing consensus that the offer of a reasonable compensation for oocyte donation for reproductive treatment is acceptable if it does not compromise voluntary and altruistically motivated donation. However, how to translate this ‘reasonable compensation’ in practice remains unclear as compensation rates offered to oocyte donors between different European Union countries vary significantly. Clinics involved in oocyte donation, as well as those in other medical contexts, might be encouraged in calculating a more consistent and transparent compensation for donors (...) if the elements that constitute a reasonable compensation are explicated. In doing so, lessons can be learnt from living organ donation and medical research participation. Practices in which the elements of a reasonable compensation for the individuals involved have already been more defined in the literature. By means of analogical reasoning, we will outline the different components of a reasonable compensation and subsequently apply these to the context of oocyte donation. We will argue that oocyte donors should first of all be reasonably reimbursed direct expenses related to the donation, without standard remuneration of lost wages. Second, donating oocytes requests a serious time investment, therefore donors are entitled to suitable compensation for their time spent and efforts made. Finally, we will explain that a reasonable compensation consisting of these two components allows for altruism to remain the key value of oocyte donation for reproductive treatment. However, if we acknowledge that donors’ motives are more complex and often include reasons from self-interest, the reasonable compensation may be complemented with modest (non)monetary benefits. (shrink)

The original text of the Constitution of the United States of America, written over 200 years ago, constitutes the supreme source of law in the American legal system. The seven articles and twenty seven amendments dictate understanding of fundamental principles of the federation’s functioning and its citizens’ rights. The paper aims to present the evolution of the U.S. Constitution’s language interpretation as provided by its final interpreter - the Supreme Court of the United States. Example of the Second (...) Amendment will be analyzed to present the change in understanding of the language grammar and, as a consequence, the sense of the right to keep and bear arms in the light of the Supreme Court’s decision in the case of District of Columbia v Heller ). It will argue for the accuracy of statement of Charles Evans Hughes, former Chief Justice of the U.S. Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is...”. (shrink)

John Stuart Mill has often been charged with inconsistency in his social thinking. The reason given is usually that he tries to combine too many different traditions of thought into an ideological whole. Too deeply affected by his father and his severely purposeful early education ever to repudiate utilitarianism, he was yet too sensitive to disregard criticism of his inherited creed, and too open-minded to ignore areas of thought and experience generally allen to the utilitarian mind. Professor Robson, whose editing (...) of Mill’s works has already put social theorists and historians of ideas in his debt, disputes this view. He argues that, beneath Mill’s eclecticism, beneath his perhaps over-generous acknow-ledgements of his obligations to others, there is a basic unity of ideas. His discussion of the influences on Mill’s thought covers some fairly well-trodden ground but he brings a good deal of common sense to bear on an area where the excitement of the academic chase for sources has sometimes obscured the obvious. On the whole, he claims, the influence of Coleridge, the Suint-Simonians, Carlyle and Comte was limited; some of their specific ideas Mill accepted and used, but he was clearly aware of the differences of emphasis and context that did exist. Harriet Taylor and Tocqueville contributed more, the first by extending Mill’s vision of desirable social ends and by emphasising the difficulties of applying social theory in the world of practice, the second by his insights into democratic society and his demonstration of a proper sociological method. The deepest influence was, however, his early Benthamite upbringing and it is this life-long commitment to a utilitarian ethic that constitutes, for Professor Robson, the still, calm centre of his mind. There are other unifying ideas—his bias towards practicality and his constant concern with evolving a satisfactory methodology for the social sciences—but even these centred on a continual examination of the adequacies and inadequacies of his father’s doctrine. (shrink)

In this article the author aims to assess Wilfrid J. Waluchow’s more recent book, by depicting its main aim, namely to provide a better understanding of judicial review in a constitutional democracy via the “living tree” metaphor; by disapproving an unwarranted claim, purposely to reduce the metaphor to the common law (bottom-up) methodology; and by re-developing his alternative, specifically to identify the community’s constitutional political morality, with a friendly amendment, which is already explicit —or at least somehow implicit— on (...) it, i.e. not only by judges but also by legislators, including framers, amenders or reformers, and other legal officials, including lawyers and citizens, which at the end will grant him the point.Resumen:En este artículo el autor intenta evaluar el libro más reciente de Wilfrid J. Waluchow, al caracterizar su objetivo principal, a saber: proporcionar una mejor explicación del control judicial de la constitucionalidad en una democracia constitucional mediante la metáfora del “árbol viviente”; al cuestionar un argumento, precisamente el que reduce dicha metáfora a la metodología (de abajo hacia arriba) del common law; y, al re-desarrollar una alternativa, específicamente al identificar la moralidad política constitucional de la comunidad, a partir de una enmienda amigable, misma que ya está explícita —o hasta cierto punto implícita— en ella, i. e. no sólo por los juzgadores sino también por los legisladores, incluidos los constituyentes originarios y revisores o reformadores, y otros operadores jurídicos, incluidos abogados y ciudadanos, lo cual al final de cuentas le dará el punto. (shrink)

In this comment I consider Jack Balkin’s general argument for his method of constitutional interpretation – the question of why interpret (the United States Constitution) in this way (as presented in his book Living Originalism). I contrast this question with the way in which the conclusion of this argument should be implemented with regard to specific clauses – the question of how to interpret (the United States Constitution). While the former question is concerned with the general form (...) of the argument, the latter is concerned with a substantiation of one premise in the argument. (shrink)

At its meeting on 16 June 2005, the European Council decided to postpone its introduction of the European Constitution, originally planned to come into force on 1 November 2006. As the Treaty establishing a European Constitution could in principle only take effect if all the Member States agree, following the clear rejections in the French referendum on 29 May 2005 and the Dutch referendum on 1 June 2005 , the Member States needed a period of reflection, a search (...) for explanations and debate. The European Council did not feel that the date initially planned for a report on the ratification of the treaty was still tenable, since those countries which had not yet ratified the treaty would be unable to provide a clear reply before mid- 2007. But the process of ratification by the Member States was not abandoned. The timetable was adjusted to reflect the circumstances in the countries which had not yet ratified the treaty. This period was intended to regain the trust of the general public. (shrink)

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen” at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly (...) rejected in the new originalist theories that have been developed principally in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 , is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: the doctrine of progressive interpretation; the use of a purposive methodology in progressive interpretation; the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and the presence of other constraints on judicial interpretation. (shrink)

Bernard Suits’ account of play as an autotelic activity has been greatly influential in the philosophy of sport. Suits borrows the notion of ‘autotelicity’ from Aristotle’s ethics, formulating diff...

In this Article, I assess James E. Fleming’s Fidelity to Our Imperfect Constitution. For Moral Readings and Against Originalisms. For that purpose: in Part II, I reexamine Ronald Dworkin’s “moral reading”; in Part III, I reevaluate Fleming’s argument both “for moral readings and against originalisms”, which can be characterized as “fidelity to our imperfect constitution”; in part IV, I explicit three very helpful dichotomies to distinguish between moral readings, originalisms and legal pragmatism aka living constitutionalism: (1) fidelity (...) and anti-fidelity; (2) interpretation and non-interpretation aka (re)construction, (re)invention and (judicial) legislation; and (3) perfectionimperfection. Additionally, I reintroduce Lon L. Fuller’s distinction between “intelligent and unintelligent fidelity”, to point out the kind of fidelity that moral readers and everyone else must adopt: an intelligent fidelity; and, finally, I present my general conclusion. (shrink)

After reviewing the history, rationale, and Jim Rachels’ varied uses of the notion of biographical lives, the essay further develops its social dimensions and proposes an ontological analysis. Whether one person is leading one life or more turns on the number of separate social worlds he or she creates and maintains. Furthermore, lives are constituted by narrated events in a story. Lives, however, are not stories, but rather are extended “verbal objects,” that is, “narrative objects” with a hybrid character, both (...) linguistic and by inference non-verbal. In this they are like facts, propositions, and histories, grasped only through their verbal expression. Being narrative and socially embedded, lives can arguably be extended beyond the death of the principal liver of a life by the commemorative actions of those who shared it. Jim hoped to persuade doctors to shift from a traditional Sanctity of Life principle to a Sanctity of Lives principle. Accordingly, they could stop pointless prolongation of biological life once a patient permanently loses consciousness, his criterion of the end of a biographical life. It might seem that allowing lives to be extended past that point or death would forego that clinical benefit, but that is not so. (shrink)

This article is a review and reflection of the new elements of rights and laws, applied to the principle of justice and sovereignty, but above all in the demonstration that law as a science once again allows us to conceive that as a science it evolves and must be modified according to the new conducts that the State and society require, such is the case of the constitutional recognition that this type of rights have. In the last decades, human beings (...) have evidenced that the way in which they interact with nature is causing serious consequences to the ecosystems that compose it. In the past, these consequences were not yet evident and, therefore, the environmental awareness that exists today did not exist. Therefore, it is necessary to analyze and reflect on certain conditions of this right in Ecuador. (shrink)

In this article the author claims that Waluchow’s “living tree constitutionalism” constitutes a “copernican revolution in our thinking”, because it provides not a mere common law theory of judicial review but a general theory of judicial review and of constitutional democracy. Although agrees that something like the common law methodology is at play here, disagrees on characterizing it as bottom-up. Accordingly, intends to praise the main aspiration of A Common Law Theory of Judicial Review: The Living Tree, i.e. (...) to provide a better understanding of charters and judicial re- view in a constitutional democracy by “the living tree” metaphor; to appraise an unwarranted claim, i.e. to reduce it to the common law bottom-up methodology; and, to raise the alternative with a friendly amendment, i.e. to identify the community’s constitutional political morality via, a method that is both bottom-up and top-down, which is already explicit —or at least implicit— in his account.Resumen:En este artículo el autor sostiene que el “constitucionalismo del árbol viviente” de Waluchow constituye una “revolución copernicana en nuestro pensamiento”, dado que proporciona no sólo una teoría del judicial review, sino una teoría general del judicial review y de la democracia. No obstante que el autor coincide en que en esta teoría de Waluchow existe un lugar para una metodología del common law, discrepa en caracterizarla como una que va de “abajo hacia arriba”. Por lo tanto, el objetivo del artículo es resaltar la importancia del argumento principal del libro A Common Law Theory of Judicial Review: The Living Tree por medio del cual se intenta proporcionar un mejor entendimiento de las garantías individuales y del judicial review, pero advertir una consecuencia innecesaria, es decir, reducir la explicación a una metodología del common law de “abajo hacia arriba”. A su vez el autor pretende proporcionar una corrección amigable: identificar la moralidad política constitucional de la comunidad a través de un método que es tanto de “abajo hacia arriba” como de “arriba hacia abajo”, metodología que se encuentra implícita en el libro de Waluchow. (shrink)

Probably written by a student of Aristotle, The Athenian Constitution is both a history and an analysis of Athens' political machinery between the seventh and fourth centuries BC, which stands as a model of democracy at a time when city-states lived under differing kinds of government. The writer recounts the major reforms of Solon, the rule of the tyrant Pisistratus and his sons, the emergence of the democracy in which power was shared by all free male citizens, and the (...) leadership of Pericles and the demagogues who followed him. He goes on to examine the city's administration in his own time - the council, the officials and the judicial system. For its information on Athens' development and how the democracy worked, The Athenian Constitution is an invaluable source of knowledge about the Athenian city-state. For more than seventy years, Penguin has been the leading publisher of classic literature in the English-speaking world. With more than 1,700 titles, Penguin Classics represents a global bookshelf of the best works throughout history and across genres and disciplines. Readers trust the series to provide authoritative texts enhanced by introductions and notes by distinguished scholars and contemporary authors, as well as up-to-date translations by award-winning translators. (shrink)

Moral or ethical questions are vital because they affect our daily lives: what is the best choice we can make, the best action to take in a given situation, and ultimately, the best way to live our lives? Health ethics has contributed to moving ethics toward a more experience-based and user-oriented theoretical and methodological stance but remains in our practice an incomplete lever for human development and flourishing. This context led us to envision and develop the stance of a “ (...) class='Hi'>living ethics”, described in this inaugural collective and programmatic paper as an effort to consolidate creative collaboration between a wide array of stakeholders. We engaged in a participatory discussion and collective writing process known as instrumentalist concept analysis. This process included initial local consultations, an exploratory literature review, the constitution of a working group of 21 co-authors, and 8 workshops supporting a collaborative thinking and writing process. First, a living ethics designates a stance attentive to human experience and the role played by morality in human existence. Second, a living ethics represents an ongoing effort to interrogate and scrutinize our moral experiences to facilitate adaptation of people and contexts. It promotes the active and inclusive engagement of both individuals and communities in envisioning and enacting scenarios which correspond to their flourishing as authentic ethical agents. Living ethics encourages meaningful participation of stakeholders because moral questions touch deeply upon who we are and who we want to be. We explain various aspects of a living ethics stance, including its theoretical, methodological, and practical implications as well as some barriers to its enactment based on the reflections resulting from the collaborative thinking and writing process. (shrink)

Constitutional politics has returned in our time in a truly dramatic way. In the last 25 years, not only in the new or restored democracies of South and East Europe, Latin America and Africa, but also in the established liberal or not so liberal democracies of Germany, Italy, Japan, Israel, New Zealand, Canada and Great Britain, issues of constitution-making, constitutional revision and institutional design or redesign have been put on the political agenda. Even in the United States, given the (...) new or renewed problems of our versions of presidentialism, federalism and electoral regime, Article V has come to be experienced as a veritable prison house, and judicial constitution-making (think of Buckley v Valejo) is often seen as much as a threat to, as the protection of, democratic mechanisms. And, most recently, in countries currently experiencing externally imposed revolutions, namely Afghanistan and Iraq, constitution-making has turned out to be a central stake in the ongoing political process. We are living in an epoch in which the nations seem to be slouching, or being prodded, toward Philadelphia and Americans, as the heirs of Madison and MacArthur, are sorely tempted to try teaching others the secrets of its success as a supposedly continuous 200-year-old constitutional democracy. But to be an effective teacher, it is not enough to be in a position of political-military superiority. One must first relearn to learn and even to re-learn. (shrink)

To discover affects within Husserl’s texts designates a difficult investigation; it points to a theme of which these texts were forced to speak, even as they were explicitly speaking of regional ontologies and the foundations of sciences. For we may at first wonder: where can affection find a positive role in the rigor of a pure philosophy that seeks to account for its phenomena from within the immanence of consciousness? Does this not mean that the very passivity and foreignness of (...) affect will be overlooked; will it not be continually linked to a Vorstellung that issues as a ray of the pure ego? That is, will the phenomenological account of affect be reduced to the cognition of an object, as Emmanuel Levinas suggests? Yet there are affects in Husserl’s texts that maintain their autonomy and resist subsumption to an objectivating intentionality.We may see this in the Lectures On the Phenomenology of the Consciousness of Internal Time: in the longitudinal intentionality of retention, through which consciousness becomes aware of its elapsed phases without making them into objects—a passive synthesis that gives the flow of time-constituting consciousness the form of a continually deferred auto-affection.1We find it again as early as the fifth Logical Investigation, 2 providing us with the impetus to radicalize Husserlian phenomenology. (shrink)

This book discusses the equating of human lives with the material and argues that pricing lives lies at the core of the political. Indeed, as in Plato or Hobbes as well as in the Weberian ethics of responsibility, measurement is considered to be one of the central features of the political. This book argues that this measure relies primarily on two goods: human lives and interests. It also argues that the material equivalence to lives is twofold. Such equivalence is a (...) double equation, as we pay for lives and we pay with lives. This double equation is constitutive of the measurement upon which the political equilibrium of a society depends and, as such, is constitutive of the political. The book adopts two approaches: one explanatory and the other normative. First, its purpose is to explain the nexus between existential goods and material goods and includes a thorough analysis of several case studies drawn from contemporary politics both domestic and international. Second, it discusses normatively the material valuation of human lives and the human value of material goods. The book relies upon interdisciplinary thinking as the material equivalent to lives is not only extremely relevant for political theory and philosophy, it is of great relevance for law. Great works of literature such as Shakespeare's plays are also excellent political illustrations of the importance of pricing lives we can learn from. Value attribution is an important question in the social sciences, notably in sociology, history and international relations. (shrink)

In this paper I argue that there is an urgent need for more empirical research into everyday experiences of living with datafication, something that has not been prioritised in the emerging field of data studies to date. As a result of this absence, the knowledge produced within data studies is not as aligned to the aims of data activism as it might be. Data activism seeks to challenge existing, unequal data power relations and to mobilise data in order to (...) enhance social justice, yet data studies has focused primarily on identifying the former and not on imagining the latter. To build a picture of what more just conditions of datafication might look like, I argue that it is important to take account of everyday experiences of datafication, of what people themselves say would enable them to live better with data and would constitute more just data arrangements, based on their experiences. I explore two possible approaches to this endeavour, both of which suggest the need for a vocabulary of emotions in researching everyday living with data. (shrink)

Building on the original formulation of the autopoietic theory (AT), extended enactivism argues that living beings are autopoietic systems that extend beyond the spatial boundaries of the organism. In this article, we argue that extended enactivism, despite having some basis in AT’s original formulation, mistakes AT’s definition of living beings as autopoietic entities. We offer, as a reply to this interpretation, a more embodied reformulation of autopoiesis, which we think is necessary to counterbalance the (excessively) disembodied spirit of (...) AT’s original formulation. The article aims to clarify and correct what we take to be a misinterpretation of AT as a research program. AT, contrary to what some enactivists seem to believe, did not (and does not) intend to motivate an extended conception of living beings. AT’s primary purpose, we argue, was (and is) to provide a universal individuation criterion for living beings, these understood as discrete bodies that are embedded in, but not constituted by, the environment that surrounds them. However, by giving a more explicitly embodied definition of living beings, AT can rectify and accommodate, so we argue, the enactive extended interpretation of autopoiesis, showing that although living beings do not extend beyond their boundaries as autopoietic unities, they do form part, in normal conditions, of broader autopoietic systems that include the environment. (shrink)

Medicine does not usually consider the human body from an aesthetic point of view. This article explores the notion of the lived body as aesthetic object in anthropological medicine, concentrating on the views of Buytendijk and Straus on human uprightness and gracefulness. It is argued that their insights constitute a counter-balance to the way the human body is predominantly approached in medicine and medical ethics. In particular, (1) the relationship between anthropological, aesthetic and ethical norms, (2) the possible danger of (...) a naturalistic fallacy, (3) the implications for the care of disabled people and (4) the intrinsic aesthetic quality of the human body are dealt with. (shrink)

Hegel and the Representative Constitution presents the first comprehensive historical discussion of the institutional dimension of G.W.F. Hegel's political thought. Elias Buchetmann traces this much-neglected aspect in unprecedented contextual detail and makes the case for reading the Philosophy of Right from 1820 as a contribution to the lively and widespread public debate on the constitutional question in contemporary Central Europe. Drawing on a broad range of primary source material, this volume illuminates the wider political discourse in post-Napoleonic Germany, carefully (...) locates Hegel's institutional commitments within their immediate cultural and political context, and reveals him as something closer to a public intellectual. By exploring this indispensable thinker's demand for the constitutional protection of popular participation in government, it contributes beyond Hegel scholarship to shed new light on the history of democratic theory in early nineteenth-century Europe and encourages critical reflection on questions of representation today. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Living from the Dead: Disaffirming Biopolitics by Stuart J. MurrayMichelle BallifThe Living from the Dead: Disaffirming Biopolitics, by Stuart J. Murray. University Park: Pennsylvania State University Press, The RSA Series in Transdisciplinary Rhetorics, 2022. 207 pp. ISBN 9780271093413 (hardback) $109.95 ISBN 9780271093406 (paper) $27.50If we but listen, we can hear a voice from the grave—Jacques Derrida's mournful lamentation: "There is no longer, there has never (...) been a scholar capable of speaking of anything and everything while addressing himself to everyone and anyone, and especially to ghosts. There has never been a scholar who really, and as scholar, deals with ghosts" (2006, 12), a scholar who "does not believe in the sharp distinction between … the living and the non-living" (12). But, then, as if in response, we witness the apparition of just such a scholar: Stuart J. Murray, the author of The Living from the Dead, who very much is dedicated to the ethical project of attending to those dead who continue to haunt the living. Indeed, the book's cover features a spectral image, entitled "Ghost," as it were, conjured by artist Si Lewen. As well, the very title of his work renders the "sharp distinction" between "The Living" and "The Dead" porous, quixotically indistinct, as signified by the unattached and unhinged preposition "from." That is, the title does not announce that Murray intends to distinguish the living from the dead, nor separate the living from the dead, nor identify the living from the dead—in some categorical, decisive demarcation. Rather, Murray's use of the preposition "from" might conjure—instead, a Derridean sense of a "borderline"—a relation marked by différance between the living and the dead. Etymologically derived from an Old English preposition, "denoting the distance, absence, or remoteness of a person or thing in fixed position" [End Page 347] (OED)—in time or space, from evokes Derrida's neologism. "Différance as temporization [time/deferral], différance as spacing [space/difference]. How are they [time/space]," Derrida queries, "to be joined?" (1991, 61). Murray's syntactically incomplete phrase suggests that the living and the dead are conjoined in a relation of interminable deferral and indeterminable difference, entangled in a fluxed, symbiotic—parasitic, even—relation.Much more could be said on this t(r)opic of deferred presence (and much more, indeed, of parasitic consumption and carnophallogocentrism), but to our immediate point, as Murray's work entreats us to consider, there is much to learn in conversation with the dead; and indeed, it is our ethical responsibility—burden, even, as he remarks—to "hearken" to their voices. Murray's The Living from the Dead undertakes this burden, listening to "the dead, the dying, the dispossessed" (1), endeavoring to articulate "[u]nder what conditions might we hearken those dead who summon us, and exhort us, perhaps to reckon with our unspeakable complicity in their deaths" (1), while offering the following caveat: "These pages, which arise in care of such summons, exhortations, and calls to reckoning neither speak for nor as the dead, the dying, or lives lost" (1), for as he will reveal in his refrain, speaking for or as amounts to an unethical co-option, a resentencing to death of the dead and dying.Murray describes his work's writing "something akin to thanatography" (1), which is through and through a rhetorical enterprise, necessitating an attunement to and with biopolitics' "speech/acts and its tropological constitution of subjects, political identities, and lives lived" (10). That is, as Steven Mailloux has argued elsewhere, tropes are rotated in order to "rotate the troops" (1993, 299). Tropes, troops; life, death. Much is at stake.The subtitle of the book, Disaffirming Biopolitics, foregrounds Murray's argument: that attending to these voices, to the dead, requires a certain disaffirmation of biopolitics, a disaffirmation of "a politics ostensibly devoted to life (bios)" (1), to the production of "life," which is "governed by increasingly autonomous efficiencies and economies of scale, through techno-administrative mechanisms that include systems of surveillance, segregation, health and welfare regimes" (2), as well as "through education, … law, biomedicine, and popular culture, too" (2). The production of "life" instantiates itself... (shrink)

Living in Words: Literature, Autobiographical Language, and the Composition of Selfhood pursues three main questions: What role does literature play in the constitution of a human being? What is the connection between the language we see at work in imaginative fiction and the language we develop to describe ourselves? And is something more powerful than just description at work -- that is, does self-descriptive or autobiographical language itself play an active role in shaping and solidifying our identities? This (...) adventurous book suggests that interdisciplinary work interweaving philosophy and literature can answer these questions. Main sections investigate the relational model of the self derived from American pragmatism, the sense of rightness that can attach to descriptions of ourselves and our actions, the analogy between interpreting works of art and the interpretation of persons, the special power of literature as a self-compositional tool and the "architecture" of self-narratives and the corresponding growth of self-understanding, what we can learn from cautionary tales concerning the tragic lack of self-knowledge, the possibility of "rewriting" and "rereading" the self, and overall, the assembly of real-life structures of self-definition through our reflective engagement with literature. Throughout, the book develops a model of active, self-constitutive literary reading that provides language for, and sharpens, self-individuation and sensibility. Conjoining a relational conception of selfhood to a narrative conception of self-understanding, Living in Words makes a powerful claim that aesthetic experience and our engagement with the arts is a far more serious matter in human life and society than it in some quarters is taken to be. (shrink)

The analogy between living beings and computers was introduced with circumspection by Schrödinger and has been widely propagated since, rarely with a precise technical meaning. Critics of this perspective are numerous. We emphasize that this perspective is mobilized to justify what may be called a regressive reductionism by comparison with physics or the Cartesian method. Other views on the living are possible, and we focus on an epistemological and theoretical framework where historicity is central, and the regularities susceptible (...) to mathematization are constraints whose existence is fundamentally precarious and historically contingent. We then propose to reinterpret the computer, no longer as a Turing machine but as constituted by constraints. This move allows us to understand that computation in the sense of Church-Turing is only a part of the theoretical determination of what actually happens in a computer when considering them in their larger theoretical context where historicity is also central. (shrink)

The article shows that Fichte's conception of human rights implies concrete guidelines for the economic organization of states and international relations. First, I elucidate Fichte's view on human rights at the domestic level. Fichte's complex theory of human rights consists in a meta-right to live in a state that secures at least two “original rights”: a right to bodily inviolability and a right to sufficient property. I focus on the latter. Due to Fichte's unorthodox view of property rights as rights (...) to actions rather than objects, this amounts to a right to work. This right, according to Fichte, must be realized in a planned economy. Second, I focus on the global level. Fichte's right to sufficient (unorthodox) property has implications for three dimensions of global justice: cosmopolitan right, the right of nations and commercial relations. Third, I draw some insights from thinking through Fichte's global material constitution for long observed conceptual tensions regarding his political and legal philosophy, namely between freedom and security as well as cosmopolitanism and nationalism, and for current debates in politics and political theory. (shrink)

For Kant and many modern cosmopolitans, establishing the rule of law provides the chief mechanism for achieving a just global order. Yet, as Hart and Rawls have argued, the rule of law, as it is commonly understood, is quite consistent with "great iniquities." This criticism does not apply to a sufficiently robust, republican conception of the rule of law, which attributes a basic legal status to all persons. Accordingly, the pervasiveness of dominated persons without legal status is a a fundamental (...) violation of the rule of law. This legal status can be understood in Kant's sense as an original "right to freedom," one that is not derived from or acquired by membership in a community or from citizenship. The realization of this kind of legal status can already be found in the "cosmopolitan constitutions" of many democracies, which include rights of persons (and not just citizens) to habeas corpus and other statuses that protect those vulnerable to domination. In order that all persons have the appropriate institutional space within which to exercise the powers of persons to address and make claims, institutions such as human rights courts to which those who lack legal status can appeal and be recognized are necessary for a form of the rule of law that is adequate to current circumstances. (shrink)

The question may be asked why many workers are still being paid below subsistence wages and I believe the answer can be found in the confusion over what exactly constitutes a “living wage” and who has the duty to pay these wages. This article therefore clarifies what a living wage is and gives a concrete example of how a living wage can be calculated. To understand who has the obligation to pay living wages I look to (...) the theory of Alan Gewirth on individual and institutional responsibility and the account of Robert Mayer on structural exploitation to argue that all parts of the supply chain have the duty. The final part of this paper willoutline the inclusion of a living wage calculation into corporate codes of conduct to ensure that workers at the end of the supply chain receive living wages. (shrink)

Distancing and then embracing constitutes a useful way of thinking about the paradox of aesthetic pleasure. However, the model does not account for live theatre. When live actors perform behaviors perceptually close to real life and possibly really experienced by the actors, audiences may experience autonomic reactions, with less distance, or may have to distance post-experiencing/embracing their emotions.

We argue that friendship is constituted in the practice of narration, not merely identifi ed through psychological or sociological criteria. We show that whether two people have, as Aristotle argues, ‘lived together’ in ‘mutually acknowledged goodwill’ can be determined only through a narrative reconstruction of a shared past. We demonstrate this with a close reading of Thomas Bernhard’s Wittgenstein’s Nephew: A Friendship (1982). We argue that this book provides not only an illustration but also an enactment of the practice of (...) friendship as the urge to redeem—and thus to instantiate—Aristotelian suzên (‘living together’) by means of its telling. (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)

In this paper, we discuss how phenomenology might cogently express the way painful experiences are layered with complex intersubjective meaning. In particular, we propose a critical conception of pain as an intricate multi-levelled phenomenon, deeply ingrained in the constitution of one’s sense of bodily self and emerging from a web of intercorporeal, social, cultural, and political relations. In the first section, we review and critique some conceptual accounts of pain. Then, we explore how pain is involved in complex ways (...) with modalities of pleasure and displeasure, enacted personal meaning, and contexts of empathy or shame. We aim to show why a phenomenology of pain must acknowledge the richness and diversity of peculiar painful experiences. The second section then weaves these critical insights into Husserlian phenomenology of embodiment, sensation, and localisation. We introduce the distinction between Body-Object and Lived-Body to show how pain presents intersubjectively. Furthermore, we stress that, while pain seems to take a marginal position in Husserl’s whole corpus, its role is central in the transcendental constitution of the Lived-Body, interacting with the personal, interpersonal, and intersubjective levels of experiential constitution. Taking a critical-phenomenological perspective, we then concretely explore how some people may experience structural conditions which may make their experiences more or less painful. (shrink)

New ways of relating to the earth and to each other are needed. This paper argues that dialogue with indigenous peoples provides a fruitful way of broadening our ecological imagination on what it means to ‘live well’ and offers a pathway for living an integral ecology. Their rich cosmovision encompasses and echoes many of the themes found within Catholic Social Teaching and within Latin America it is fostering a space for alternative narratives of well‐being and development to be heard. (...) The paper draws on empirical research with the Macushi people in Guyana. Three theological themes which ground the concept of relational well‐being are discussed: gratitude, reciprocity and solidarity. The cosmovision explored offers the hope that living an integral ecology is a constitutive part of authentic human flourishing and well‐being.© 2018 Trustees for Roman Catholic Purposes Registered. (shrink)

The essay uses the second moment of Hegel’s “absolute method,” namely, the moment of the advancing action, in order to shed light on the constitution of the dynamic universal in society, politics, and history through the moment of stasis or crisis. In the action that advances or in the middle moment of the method lies the “crisis” of the unfolding process. Dialectically, action advances by stalling and imploding but also by emerging from this frozen state, moving on from it. (...) I indicate the moment of crisis-stasis as the predicament of “living in the interregnum” and examine it by appealing to Thucydides, Gramsci, and Gordimer. (shrink)

We are interested in the study of tweets from trial hearings (LTAP) which is a new digital form of the online journalistic genre: a cross over between judicial chronicles and reports. Supported by new technologies, LTAP serves as an intermediary between judiciary and general public. The LTAP falls into a generic subset of discourse which could be called a “discourse substitute”, since it's a discourse representing another discourse. Therefore, LTAP is thus constitutively a part of the representation of the other (...) discourse. Our goal is to characterize LTAP as a genre that "takes the place of" another discourse, while trying to grasp its specificity compared to other genres in this category. (shrink)

A constitutional democracy is characterized by "governing pluralism": there is no single source of sovereignty and no single consensus on what political life should look like. Starting from this premise, and using the United States as the example of such a democracy, the work treats the ethics of three kinds of political leaders in American politics. The work examines the offices of senator, moral activist, and community organizer, in each case trying to identify the distinctive purpose of the office or (...) the contribution it makes to the democratic regime; a distinctive mode of action or set of habits conducive to fulfilling that purpose, and a set of dispositions or regime-relative virtues that people must have in order to engage in such actions consistently. ;The work concludes that a senator should focus on accommodating but restraining public opinions with a view of making possible his own consistent pursuit of public-spirited projects; that a moral activist should aim to extend the democratic principles of equality, liberty, and majority rule more widely, and towards this end must be able to mobilize a moral or religious association around a cause while speaking about that cause to a larger public in more widely accepted democratic terms; and that an organizer should promote civic self-assertion and the enlightened pursuit of interest by bringing together, and developing the capacities of, ordinary citizens through face-to-face contact. ;This plurality of ethics goes along with a single, consistent theory of democratic politics and democratic character rooted in the work of Aristotle, Tocqueville, and the authors of the Federalist. The work takes from these authors a theory of "democratic continence" under which the proper political aim for both leaders and ordinary citizens is not the good life, rational justified standards of right, or the highest virtues of human beings, but qualities of perseverance, self-restraint, individual and collective discipline, dogged self-assertion, and the enlightened pursuit of interest. Democratic politics does and must reject high moral aspirations for the sake of realism, toleration, and sympathy for the lives of ordinary people. (shrink)