This paper provides a framework for understanding how non-ideal constitutions are better or worse imitations of the ideal constitution. My suggestion is that the non-ideal constitutions imitate the skill of the political expert, which includes an epistemic component (their political knowledge) and two teleological components (the benefit to the citizens on the one hand, and the unity of the city on the other). I then show how some constitutions better imitate the political expert’s skill across these dimensions, (...) as higher-ranked constitutions are in a better epistemic condition, better benefit the citizens, and better foster unity in the city than lower-ranked constitutions. A major upshot of my reading will be to show that Plato recognizes the value of some non-ideal constitutions while making clear how they still fall short of the ideal. (shrink)

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

Who would have thought twenty-five years ago that the term “bioethics,” a neologism coined by an American biologist, would have met with such success, becoming one of the cornerstones of philosophical and juridical reflection at the end of the twentieth century? For it was in 1970 that the biologist and oncologist Van Rensalear Potter published his book, Bioethics, Science of Survival.

A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a (...) constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions. (shrink)

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

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

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

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)

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

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

Of the many ideas for which Ronald Dworkin is justly famous, perhaps the most striking is his idea that the US Constitution is to be read morally. This essay seeks to honor Dworkin’s idea by sketching the beginnings of an alternative approach to reading constitutions morally. It begins by distinguishing between the idea that constitutions of a certain sort are to be read morally and Dworkin’s way of reading a constitution morally. I review some of the well-known difficulties (...) for his approach in order to make clear how an alternative would need to do better. Finally, I sketch a moral learning approach to reading constitutions morally. I argue that concern for constitutional legitimacy, respect for the overriding authority of morality, and humility about our own limitations support an approach to interpreting a constitution that allows for moral learning to be reflected in the law. (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)

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

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

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

The paper outlines why and how political institutions, especially constitutional ones, matter for what decisions are made in the political process and thereby for how the economy functions. The main part contains a survey of empirical studies in this area. Among the things covered: the effects of political and economic freedom, not least property rights, on economic growth; how stricter budgetprocess rules affect tendencies for deficits; the role of electoral systems for shaping policies and affecting fiscal deficits; and the effects (...) of separation of powers – e.g., federalism and referenda – on government size.Ce papier retrace dans les grandes lignes pourquoi et comment les institutions politiques, notamment celles de nature constitutionnelle, importent pour les décisions prises au niveau politique et en conséquence sur la manière dont fonctionne l’économie. La majeure partie du papier consiste en un examen des études empiriques dans ce domaine. Parmi les choses analysées : les effets de la liberté politique et économique, en particulier les droits de propriété, sur la croissance économique ; comment des règles plus strictes lors de l’élaboration du budget influent sur la tendance au déficit ; le rôle des systèmes électoraux dans l’élaboration des politiques et dans la taille des déficits ; et les effets de la séparation des pouvoirs – par exemple fédéralisme et referenda – sur la taille du gouvernement. (shrink)

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

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

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

This article examines the political crisis that has appeared in the constitutions of 28 democratic states. The units of analysis have been chosen using the criterion of a modern and formal constitution. Using the systemic paradigm, the article proposes an institutionalist ap- proach. After explaining the role of the main institutions, the article focuses itself on identifying the mechanisms of crisis as they are provided by constitutions (i.e. the vote of no-confidence, the motion of censure, the vacancy etc.). (...) We have observed that the correlation between the institutional arrangement and the number of crisis mechanisms is not very strong one. The article concludes that in order to explain the reaction of a political system towards a crisis situation it is not sufficient to draw on the constitution, an understanding of the political tradition and of the recent political experiences being absolutely necessary. (shrink)

This article explores a historical challenge for contemporary accounts of the role that the desire of being esteemed can play in exercising social control. According to Geoffrey Brennan and Philip Pettit, the economy of esteem normally has two aspects: it is supportive of virtuous action and it occurs spontaneously. The analysis of esteem presented by the 18th‐century materialist Claude‐Adrien Helvétius challenges the intuition that these two aspects go together unproblematically. This is so because, in Helvétius's view, the desire for esteem (...) is always triggered by sensible interest. In the frequent situations where sensible interest diverges from the demands of virtue, the economy of esteem thus can be spontaneous but will not be supportive of virtue. Helvétius allows for cases of moral luck where sensible interest coincides with the demands of virtue but regards these cases as rare occurrences. This is why he believes that a functioning economy of esteem crucially depends on political constitutions—in which case the economy of esteem can be supportive of virtue but will not be spontaneous. (shrink)

The standard opinion is that the force of the constitution hinges on the fact that it is willingly endorsed by the people or, at least representative of the people. This Article challenges this view. More specifically, I differentiate between two types of legitimation: representational legitimation and non-representational or reason-based legitimation. While representational legitimation rests on the fact that the constitution is representative of who the people are or what they want, reason-based constitutions are based on the judgement that the (...) constitution is just or, at least grounded in reason. I also show that some of the puzzles in constitutional theory can be resolved by acknowledging the significance of the latter type of legitimation. For instance, I illustrate that constitutions that were not adopted freely by the nations and could not have been characterized as representative of the people such as the German Constitution can still be legitimate. To put it provocatively: the legitimation of a constitution need not rest on the conviction that it represents the people whom it governs; it may simply rest on the belief that it is a good or just constitution. Representational legitimacy is only one form of legitimacy but not the only one. (shrink)