Elected politicians—legislators and, in some systems, members of the executive—can choose to exercise authority themselves or to delegate that authority to any number of agencies. Such delegation of power can occur at the constitutional stage, but is most common at the post-constitutional stage. Two categories of delegation can be distinguished: domestic delegation to agencies within the legislators’ jurisdiction, and international delegation to supranational or international bodies. While some research has been done on domestic delegation, especially in the context (...) of delegation to administrative agencies in the U.S., as well as on delegation to supranational bodies, especially with regard to the E.U., these activities have not been analyzed within a unified framework. This paper attempts to inquire into these issues and provide a general picture of the decision-making process regarding whether to delegate authority and to which body to transfer the authority. The past decade has been a period of rapid change in Central and Eastern Europe. Almost all of these countries have either passed entirely new constitutions or substantially modified the old ones. This is a unique situation in which constitutional delegation of powers can be performed almost simultaneously with post-constitutional delegation. The constitutional process in Israel is very different. It has been underway for fifty years. However, it can also be characterized by simultaneous constitutional and post-constitutional choices. In this paper, we examine such delegation choices in nine countries. We describe the main differences among these countries with regard to delegation of power, try to trace their origins and analyze their effects on delegation of powers. One question raised is what are the ramifications of a quasi-simultaneous constitutional and post-constitutional choice? Have constitutional rules been chosen in anticipation of the necessary compatibility with the rules of international organizations that one wants to join? Has membership in international organizations led to a boost in credibility of those governments concerned? (shrink)

This article analyses the constitutional crisis that was triggered in Chile by the events of 18 October 2019. The purpose is to explain the link between the constitution and social unrest and to explore whether a constituent process, such as the one designed in Chile, has the potential to address the unrest that produced it. The failed experience of Bachelet’s constituent process and the Latin American reform processes of the last thirty years show the threats and challenges (...) of the future Chilean constitution. (shrink)

Building on an intertwined spatiotemporal weaving of reckoning-repairing-reworlding, this article analyses the constitutional process experienced in Chile between 2019-2023. Inspired by the sociology of image as a methodological tool and following a narrative that takes the shape of a spiral, we examine a series of photographs representing different layers in this ongoing process. In October 2019, the largest demonstrations in Chile’s history sparked long-brewing demands for social and ecological transformation. The unsustainable pressure pushed political parties to call (...) for a constitutional referendum where the population overwhelmingly voted to overturn the charter inherited from Augusto Pinochet’s regime, and so the process of drafting a new text began. Following the rejection of two drafts, the constitutional process is, for now, closed. Yet, we claim that embracing a failure narrative is not only futile, but misleading, and we propose to see these events in terms of their potential for conceptualising and enacting transformative futures. Drawing on decolonial, anti-colonial, and Indigenous scholarship, this essay focuses mainly on 2019’s uprising and the first constitutional process (2021-2022) examining demands for Indigenous transformation – and the possibilities this case offers resistance movements elsewhere and “elsewhen.”. (shrink)

This essay has two parts. In the first, Husserl's account of categorial forming and Schutz's account of common-sense constructs are used to sketch an interpretationist theory of culture. In the second part, the question is raised of whether that theory is adequate to account for cultural phenomena and the negative answer is supported with a sketch of the pre-conceptual constitution of intrinsic and extrinsic values and uses in valuational and volitional processes of secondary passivity. This stratum below thinking and concepts (...) is called "basic culture" and the full appreciation of this stratum is a counter to naturalism as well as the starting point for approaching problematics such as ethnicity, gender, and the environment in the perspective of the constitutive phenomenology of culture. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is (...) that policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

It has become an academic self-evidence that space can only inadequately be conceptualized as a material or earth-bound base for social processes. This could commend a theoretical view of space as the outcome of action, which brings both social production practices and bodily deployment into focus. The action-theoretical perspective allows the constitution of space to be understood as taking place in perception. Not only are things alone perceived but also the relations between objects. This article develops a space-theoretical concept according (...) to which space is constituted through acts as the outcome of synthesis and positioning practices. This opens up a theoretical perspective defining atmospheres as an external effect, instantiated in perception, of social goods and human beings in their situated spatial order/ing. Exclusion and inclusion are accordingly comprehended in terms of perception of the attunement of places. With reference to Anthony Giddens, this article discusses how space can be understood as a duality of structural ordering and action elements. (shrink)

What is it to be the sea? Explorations of the constitution of the sea – what it comprises, where its borders are, how it incorporates novel entities – offer meaningful insights into the nature of boundaries and identity that are as relevant for humans as they are for the imperilled oceans. At the advent of the post-Anthropocene, when global processes perceptibly react to human impacts, this article elaborates on watery artistic investigations inspired by the mutability and permeability of seas. Anchoring (...) its arguments in wide-ranging examples from transdisciplinary artistic practices, the article challenges conventional notions of boundaries and identity, proposing a new way of conceiving of the self, inspired for and by the seas: The Constitution of the Sea. (shrink)

On the one hand, it seems important to bring real citizens into the constitutional processes of making and amending constitutions. This is important in order to foster a sense of ownership and commitment to constitutional principles, have those documents reflect the interests and concerns of ordinary people, and fulfill the principles of popular sovereignty and constituent authority of the people. On the other hand, there are many misgivings about handing over decisional power to the people (for example through (...) referendums) on constitutional issues. The worry here is that these means of bringing citizen into the process are easily hijacked by majoritarian or populist forces and may be used to undermine rather than strengthen principles of constitutional democracy. Constitutions are, among other things, supposed to protect individuals and minorities from majorities. This is the classic tension between democracy and constitutionalism. One solution is to shift ideas of popular sovereignty away from voting and towards fostering public dialogue. In this paper, I argue that one of the most effective ways to foster public dialogue about constitutional essentials is through initiating a referendum. Thus I defend constitutional referendums on the counterintuitive grounds that if properly structured they are effective in promoting the recognition of the limits of majoritarianism. (shrink)

This short article will seek to explore the causes, and possible solutions, of what seems to be the current freezing of the Turkish constitution-making process that has had some dramatic successes in the 1990s and early 2000s. I make the strong claim that democratic legitimacy or constituent authority should not be reduced either to any mode of power, even popular power, or to mere legality. It is these types of reduction that I find especially troubling in recent Turkish (...) class='Hi'>constitutional struggles, where the legal claims of two powers — the government-controlled legislative and the judicial branches — to structure the constitution are not backed by sufficient political legitimacy. In effect these two powers that claim their constituent authorization, rather implausibly in my view, from either the democratic electorate or from an original constituent power, because of their conflict threaten to freeze the constitution-making process that very much needs to be continued and concluded. I end the article by making a suggestion for one possible constitution-making procedure that would be both legitimate and legal. (shrink)

The purpose of this volume is to help develop, through a variety of exploratory essays, the art and science of institutional design. The authors look at a variety of good societies as artifacts, as products—at least partly—of design, and consider how such societies can be crafted. They identify themselves with the New Constitutionalism movement, which aims to develop and promote the knowledge necessary for institutional reform and institutional creation through understanding the designer's, creator's, founder's, or reformer's perspective. The first part (...) of the volume considers some of the boundaries of what is humanly possible in politico-economic designs and the role in them of deliberation and the processes of adapting to limits. The second part considers different ways of exercising constitutionalist judgment analyzing a variety of cases, including general visions of the good society. Looking at whole societies, and at complexes of institutions, complements and informs the picture of the institutional microscale. Understanding the microscale, on the other hand, often makes the difference between empty slogans and realistic political proposals. Contributors are Karol Edward Soltan, Elinor Ostrorn, Viktor J. Vanberg, James lvi. Buchanan, John S. Dryzek, Charles 'X". Anderson, Stephen U. Elkin, Car Alperovirz, and Philip Green. (shrink)

Antonio Negri’s article explores the relationship between the juridical categories of ‘public’ and ‘private’ and the political concept of the common through the theme of the ‘material constitution’ defining actual relations of power which defy the crystallization of ‘formal constitutions’. The financial convention shaping the material constitution of contemporary capitalism refers to the rise of what Foucault called biopower, where value is no longer the expression of a mere quantity of commodities but of a set of activities and services, which (...) are immediately cooperative. In this context, any form of measure cannot but be political and hence it must be established through new forms of economic governance. The social relation of capital becomes immediately political once money displaces labour as rule, norm and measure of value. As a result, processes of political subjectivation within the Eurocrisis combine de-stituent and con-stituent movements: requests for insolvencies, social occupations, commoning and mutualization are the means through which social struggles formulate the multitudes’ demands for ‘equality as a condition of freedom’. (shrink)

In this paper, I present the difficulty in the phenomenology of explaining the constitution of objectivities in consciousness. In the context of phenomenological reduction, constitution has to be understood as unveiling the universal and necessary essences. Recognized by Husserl in Ideas I and named as functional problems, the constitution of objectivities refers at first to individual consciousness, and then to an intersubjective one. In Ideas II, the phenomenologist explains how the constitution of nature, psyche, and spirit occurs. This process (...) begins by assuming three premises: the ontological realism, the regularity of nature, and the transcendental idealism. In this process, the ego, apart from constituting objects (the body, the psyche, and the others), constitutes itself. The objects of material reality are constituted through aesthetic synthesis which unifies singularities and contextualizes the lived experience. The body, as a perceptive organ, perceives the exterior, and the location of the sensory stimulus is the soul. The soul is a real and transcendent object, which is linked to physical things that are constituted in a solipsistic way or intersubjectively. Empathy allows the subject to recognize the consciousness of the alter ego as capable of spontaneous movements and actions, a co-presence sharing the same horizons. Thus, through the theoretical attitude, the physical world is perceived, and through the spiritual attitude the spiritual world is perceived, a living world shared by free intelligent beings. For this, intersubjectivity fulfills a fundamental role, because only in the relationship with the other does the identity of the objects, of the other, and of the self become evident. (shrink)

The author emphasizes the fact that the largest part of Plato’s Timaeus deals with human nature and offers a detailed account of the constitution of the human body. He then lists the parallels and the differences between the constitution of the world body and the human body. The central part of the paper deals with Plato’s explanation of the persistence of the human body within a bodily environment which causes its dissolution. The author pays a special attention to Plato’s theory (...) of the apparatus which keeps running the processes of respiration, digestion and blood circulation. In the concluding section, the author raises thequestion of the relationship between human body and human soul. He shows that, in Plato’s Timaeus, the human body functions to a large extent independently from human soul. One possible reason for this theory is Plato’s conception of the immortal soul. While the human body exists in order to harbour the immortal soul, the latter does not produce and preserve it nor does it cause its dissolution. It only exercises cognitive and ruling functions in it as long as the body is able to hold together and to detain the soul. (shrink)

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics (...) necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro‐democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community. (shrink)

A crucial insight in Michelman’s ‘Constitutional Essentials’ is that constitutions may serve a justificatory or proceduralizing aim in modern liberal democracies. Yet the pervasiveness of moral disagreement – all-the-way-up; all-the-way-down – suggests, as I will argue, a democratic-experimentalist turn, which focuses on a non-hierarchical process of stakeholder deliberation and the court’s role in instigating and overseeing that process, ensuring non-domination. I believe that Frank is exactly right in arguing that a liberally justification-worthy political framework-law-in-place is normatively necessary (...) for democratic politics to succeed in divided societies. But I want to suggest that democratic experimentalism can offer further support to this claim. (shrink)

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber (...) opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself. (shrink)

It is often debated whether what we ought, politically, to do is determined by standards that are independent of any actual political process or whether, by contrast, judgments reached in actual democratic processes have constitutive importance in determining what we should do. This paper argues that this is not an exclusive disjunction and that, consistently with there being independent standards, constitutively authoritative judgments can enter into the truth-conditions pertaining to claims about what we ought, politically, to do. The crucial (...) objection to constitutive judgment is that it involves an unacceptable form of bootstrapping, according to which reasons arise out of nothing. To circumvent this objection, the paper deploys John Broome's notion of a wide-scope 'normative requirement'. Normative requirements affect what ought to be done without altering the balance of reasons and defuse the bootstrapping objection by blocking the derivation of all-things-considered conclusions. To show that politics involves constitutive authority of this kind, the paper defends two illustrative normative requirements applicable to the political process that give constitutive roles to political judgments of various kinds. Throughout, the discussion is enlivened by comparisons to the judgments of a baseball umpire, which have been illuminatingly discussed by Robert Brandom. (shrink)

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

In recent years, there has been a growing interest in epistemic agency among philosophers. This development is in part owing to a growing interest in mental agency and epistemic normativity, along with associated concepts such as epistemic responsibility and the relationship between epistemic rationality and practical rationality. Most authors have focused solely on our agency exercised in the process of acquiring or forming beliefs in response to reasons. But some have examined temporally extended procedural epistemic agency, in particular our (...) agency exercised in the process of inquiry. In this article, I argue for an account of procedural epistemic normativity grounded in a conception of the constitutive aim of inquiry. In doing so I will examine how an account of the constitutive aim of inquiry may both differ from and be like accounts of the constitutive aim of belief and the constitutive aim of intentional action. I propose that the constitutive aim of inquiry is understanding and that the aim of understanding may provide us with the norms of inquiry. (shrink)

The article is addressing one of the central but maybe the most ambiguous and multilayered concepts of Husserl’s phenomenology. Husserl’s insisting on a form of intentionality that implies not just conscious directedness towards objects, but also a constitutive function of mental acts, led to some serious accusations of his idealism and solipsism. Justification of such accusations depends exclusively on whether we understand constitution in an ontological sense, as a creative process which brings worldly entities into being, or in an (...) epistemological sense, as a process which enables us to identify and to interpret a particular givenness as something. In early stages of phenomenology, a so-called “hylomorphic” theory of constitution prevailed, which stated that object of our experience can be present for us only if some sense-data is formed in our intentional acts by a meaning-giving component. This theory proved to be unsatisfying when Husserl turned to a phenomenological description of temporal objects, discovering that not just objects, but also intentional acts have a distinct temporal structure. However, the analysis of temporal constitution reaches even further, because the idea of the “living present”, and its triadic structure of retention-primal impression-protention, holds the key to an explanation of horizon-intentionality, and offers the answer to an essential transcendental question: How is it possible for us to be aware of the world towards which all of our intentional life is directed, and from which all of the motivation for our actions originates? (shrink)

Transformation of the Constitutional System of the Slovak Republic Purpose of the article is to analyze the Constitutional Act No. 356/2011 Z. Coll. amending the Constitution of the Slovak Republic in terms of its compatibility of the constitutional system of the Slovak Republic. The article analyzes the potential impact of amendment to the Constitution of the Slovak Republic on the Parliamentary form of the government of the Slovak Republic and examine the consistency of Art. 115 Para 3 (...) of the Constitution of the Slovak Republic with another provisions that relate to it. The purpose of the article is to identify some problems that brought amendment to the Constitution of the Slovak Republic by the Constitutional Act No. 356/2011 Coll. of Art. 115 Para 3 and points out its incompatibility with the constitutional text. This article also discusses a possible shift in the parliamentary constitutional system of the Slovak Republic which the Constitutional Act brought.Methodology/methods used in the article is the analysis of the Constitutional Act No. 356/2011coll. by induction from the concrete wording of Art. 115 Para 3 of the Constitution of the Slovak Republic to the conclusions in relation to the entire text of the Constitution of the Slovak Republic and to the whole constitutional system of the Slovak Republic Scientific aim is to point to the shortcomings of the Constitutional Act No. 356/2011 Z. Coll., not only from the perspective of constitutional interpretation, but potentially also in terms of practice and also show the wrong trend of breaking the internal unity and coherence of the constitutional system of the Slovak Republic by half-baked changes to the text of the Constitution of the Slovak Republic Findings are specific and severe systemic disorders that brought the amendment to the Constitution of the Slovak Republic by the Constitutional Act No. 356/2011 Coll. of Art. 115 Para 3. The Article identifies three concrete problems and the subsequent practice may bring some other issues that were not known at the time of processing of this Article Conclusions are directed to the fact, that the Constitutional Act No. 356/2011 Coll. means internal disturbance of the constitutional system of the Slovak Republic, brings more problems than constructive solutions and potentially deflects the parliamentary constitutional system of the Slovak Republic to the semi-presidential. (shrink)

In this paper, I present the difficulty in the phenomenology of explaining the constitution of objectivities in consciousness. In the context of phenomenological reduction, constitution has to be understood as unveiling the universal and necessary essences. Recognized by Husserl in Ideas I and named as functional problems, the constitution of objectivities refers at first to individual consciousness, and then to an intersubjective one. In Ideas II, the phenomenologist explains how the constitution of nature, psyche, and spirit occurs. This process (...) begins by assuming three premises: the ontological realism, the regularity of nature, and the transcendental idealism. In this process, the ego, apart from constituting objects (the body, the psyche, and the others), constitutes itself. The objects of material reality are constituted through aesthetic synthesis which unifies singularities and contextualizes the lived experience. The body, as a perceptive organ, perceives the exterior, and the location of the sensory stimulus is the soul. The soul is a real and transcendent object, which is linked to physical things that are constituted in a solipsistic way or intersubjectively. Empathy allows the subject to recognize the consciousness of the alter ego as capable of spontaneous movements and actions, a co-presence sharing the same horizons. Thus, through the theoretical attitude, the physical world is perceived, and through the spiritual attitude the spiritual world is perceived, a living world shared by free intelligent beings. For this, intersubjectivity fulfills a fundamental role, because only in the relationship with the other does the identity of the objects, of the other, and of the self become evident. (shrink)

The third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally how the criminal law can be constituted as part of the international order.

Projects to integrate digital technologies into the fabric of city life depend upon specific visions of politics and technology. In the process of their realization, they re-constitute the identities, agencies, and relations of human inhabitants, re-defining what it means to be a citizen. This article draws on the idiom of co-production and framework of constitutionalism from Science and Technology Studies (STS) to analyze the coming into being of a form of citizenship with smartphone technologies in Boston in the 2010s. (...) When the Boston Mayor’s Office of New Urban Mechanics (MONUM) used newly available smartphone apps to reconfigure the connection among city residents and government, they brought into being a specific mode of citizenship. I term this mode of citizenship “mechanic” to draw attention to the qualities of passivity, infrastructure, and connectedness that characterized MONUM’s early digital citizenship projects. I argue that recognizing that the constitution of the human, and specifically of citizens, is at stake in smart city projects entails re-thinking ethical analysis in contexts of smart cities. Instead of seeking to perform ethical assessments of technological consequences (“ethics of” approach), scholars might begin with a situated analysis of how humans as citizens are constituted through smart city projects (“ethics in” approach). By identifying the political affordances and commitments of the emergent digital citizenship models, scholars can make visible alternative forms of living and engaging politically in the city. (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)

The due process clause of the Fourteenth Amendment protects the right of terminally ill persons to hasten their inevitable death. In prohibiting physicians from prescribing lethal medications by which such patients might hasten death, Michigan's ban on “assisted suicide” unconstitutionally imposes an “undue burden” on the exercise of that right.

The Bologna Framework for higher education has agreed on three “cycle descriptors”—knowledge, skill and general competence—which are to constitute the learning outcomes and credit ranges for the three cycles of higher education: The Bachelor, the Master and the PhD. In connection with the implementations of the national qualification framework these descriptors initiated a new debate on the possibility of Bildung within higher education in Norway. Pursuing this question of whether the triad knowledge, skill and general competences makes possible or prevents (...) Bildung within higher education I argue that regardless of how one conceptualizes Bildung, one must say something about the kind of thinking that initiates a process transforming knowledge to become internalised so as to influence one’s choices and actions. A vital aim for the initiative of the Bologna process as envisioned in the Bologna Declaration 1999 was to develop a “Europe of Knowledge”. Underpinning this and other educational documents it appears that lack of knowledge is seen as an important explanation to todays many challenges. A confidence in knowledge per se as having a transformative power in itself seems to be a belief supporting the knowledge policy that dominates official documents. Following Kierkegaard and his critique of becoming objective as nurturing disinterestedness, I am critical to an understanding of knowledge as transformative in itself if knowledge primarily is understood as objective knowledge. In this paper I argue that in order to take responsibility for the knowledge one holds, a thinking which Kierkegaard calls subjective is an important contribution to one kind of thinking involved if knowledge shall initiate a transformation of one’s life and thus foster responsibility. (shrink)

A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional (...) order is to be democratic, each of its component institutions must be democratic, taken one by one; (2) the fallacious assumption that if judges are politically biased, courts will issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory. A systemic approach implies that the choices of legal actors are strategically interdependent: the best course of action for any given actor will depend upon what other actors do. Judges deciding how to interpret statutes and the constitution, for example, cannot simply assume, idealistically, that it would be best for them to adopt the approach that would be best for all if adopted by all. If others do not adopt that approach, then the nature of the best approach for the given judge may itself change, taking others' actions as nonideal constraints. The implication is a second-best approach to constitutionalism and legal interpretation.The judge who takes system effects into account may change her approach in light of the behavior of her colleagues and the behavior of other institutions. Although such a judge is strategic, it does not follow that she is unprincipled. Rather, under identifiable conditions, the systemically-minded judge will be a strategic legalist who attempts to act, within the constraints that arise from others' behavior, so as to nudge the legal system toward the best possible state, according to her view of the law. Indeed, the systemically-minded judge may even be a legal chameleon who changes her approach as the legal environment, including the behavior of other judges, changes around her, until the court as a whole reaches an equilibrium of optimal diversity. Although such a course of action is psychologically demanding, the systemic benefits that the legal chameleon creates can be attained at the systemic level instead. Wise appointments by Presidents and Senators aiming to diversify the judiciary would mimic, in a second-best way, the diversity that a bench of legal chameleons would produce"--John M. Olin Center for Law, Economics, and Business web site. (shrink)

The ruling of the Constitutional Court of 10 September 2009 which repealed the proclaimed early elections to the Chamber of Deputies because of their alleged unconstitutionality fully manifests unjustifiability of the interference by the Constitutional Court of the Czech Republic. The decision directly interfered with the process of democratic re-establishment of the Chamber of Deputies. At the same time, the Court´s intervention was only made possible by violating a number of constitutionally prescribed rules. Finally, the respective ruling (...) could not be issued without a “creative approach” on the part of the Constitutional Court towards the rules governing procedures before the Court. The approach eventually resulted in the violation of principles of fair trial – before a body that should guarantee them. The paper analyses in detail various individual aspects of the case, from general issues of the division of power and contents of the mandate of deputies to individual procedural stages before the Constitutional Court. (shrink)

John Dewey conceived democracy as a cooperative problem-solving practice in which actors try out provisional solutions by means of social communication. His notion of experimental democracy as a specific form of life and an ethical enterprise rather than simply a form of government implies the constitution of a polity as a practical and complex process of exchanging and sharing experiences. The aim of this paper is to test the feasibility of using a Deweyan theoretical basis for democracy to assess (...) the potential for a European process of political integration. The historical-conceptual presuppositions of the European Union’s institutional project preclude both a narrow local perspective and an illusory globalist scheme. To redirect Europe’s democratic vocation, a process of political and institutional communication must be developed that transcends the existing national paradigm. (shrink)

Analyzing the constitutionality of a law is a process of constitutional interpretation which does not limit itself to comparing two texts in order to see whether they are concordant or not. The nature of constitutional interpretation is the subject of this article, a subject that is dealt with from the perspective of the dispute between originalism and non-originalism (interpretivism) prevalent within the contemporary philosophy of law, especially the American one. The article offers a synthetic view on some (...) of the most controversial issues pertaining to the theory and methodology of contemporary constitutional interpretation, such as: whether the interpretation of the Constitution is guided by the founders’intentions or by the text’s own words; whether the meaning of the Constitution is determined by the intentions, aims or values of the founders’ generation or by those of the contemporary generation? What are the grounds that justify the authority of the constitutional text, in other words, does this authority derive from its constraining capacityorfromitsabilitytobestowdemocraticlegitimacy?Constitutional interpretation must concentrate on the text or on the interpreter? Do the judges discover or build the constitutional meaning? In other words, is it the past or the present that guides the interpretation? Is the original interpretation the legitimate one or are legitimate the later interpretations of the constitutional text? (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)

How can science be protected, by whom and at what level? If science is valued positively as the incubator of the most successful solutions to representational problems of reality as well as the basis of the most effective interventions in the natural and social world, then its constitutional foundations must be protected. This book develops a specific normative outlook on science by introducing the idea of a 'Constitution of Science'. Scientific activities are special kinds of epistemic problem-solving activities unfolding (...) in an institutional context. The scientific enterprise is a social process unfolding within an intricate institutional framework that structures the daily activities of scientists and shapes their outcomes. Those institutions of science which are of the highest generality make up the 'Constitution of Science' and are of fundamental importance for channelling the scientific process effectively. (shrink)

This article reinterprets the Kelsen-Schmitt debate in the context of social systems theory and rethinks its major concepts as part of legal and political self-reference and systemic differentiation. In Kelsen?s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law. Similarly, Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. The author argues that the (...) class='Hi'>process of legal and political globalisation rules out the possibility of formulating substantive theories of the state associating this particular social organisation with metaphysical values and a self-validating collective identity. Kelsen and Schmitt continue to inspire current theories of non-metaphysical globalised law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalised legal and political communications and not as their ultimate end. (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)

Recent attempts at making sense of toleration as an ideal of political morality have focused on how liberal democratic institutions generate political arrangements that protect people’s freedom to “live their life as they see fit.” We show how these views rely on a one-dimensional interpretation of the liberal democratic political project. In so doing, they underestimate an important “interactive” dimension. This dimension concerns what it means for liberal democracies to realize toleration as a property inherent to their constitutive political processes. (...) We illustrate this claim with reference to the liberal democratic decision-making process. Such a process realizes toleration as forbearance in itself. It does so because it establishes the participants in the process as political agents who recognize their mutual standing to share the political authority to make collectively binding decisions, despite their grounds for reciprocal objection. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

Starting from the contemporary processes of “fragmentation of societies” (pluralization of individual lifestyles, the increasing ethnic‐cultural diversity, de‐solidarity, the melting away of political loyalties) and of “dissolution of the nation” (the erosion of the monopoly of the state, economic globalization), the author examines Tocqueville's question about what holds society together. This problem of integration is analysed in the perspective of social and legal sciences. Accordingly, the author stresses that solutions to such a problem should come from a constitutional theory (...) which is open to debates and answers developing in other disciplines, thus obtaining relevant information concerning the role of law and of constitution for integration. (shrink)

A sociological conceptualisation of space moves beyond the material to the relational, to consider space as a social process. This paper draws on research that explored the reproduction of legitimated knowledge and power structures in intensive care units during encounters, between patients, who were experiencing mental illness, and their nurses. Semi‐structured telephone interviews with 17 intensive care nurses from eight Australian intensive care units were conducted in 2017. Data were analysed through iterative cycling between participants' responses, the literature and (...) the theoretical framework. The material and relational aspects of space in this context constitute a dynamic process that is concerned with the reproduction of everyday life, the preservation of the biomedical authority of intensive care, and the social othering of people experiencing mental illness. The work of theorists such as Löw, Harvey and Foucault underpins the exploration of space as a multi‐dimensional, malleable social process that both produces and is the product of social interaction and the social world. In this paper, we argue that the performative work of knowledge and power production and reproduction, considered here in relation to intensive care spaces, enables ongoing othering and disenfranchisement of people experiencing mental illness. (shrink)

Abstract In this paper I consider an easier-to-read and improved to a certain extent version of the causal chance-based analysis of counterfactuals that I proposed and argued for in my A Theory of Counterfactuals. Sections 2, 3 and 4 form Part I: In it, I survey the analysis of the core counterfactuals (in which, very roughly, the antecedent is compatible with history prior to it). In section 2 I go through the three main aspects of this analysis, which are the (...) following. First, it is a causal analysis, in that it requires that intermediate events to which the antecedent event is not a cause be preserved in the main truth-condition schema. Second, it highlights the central notion to the semantics of counterfactuals on the account presented here -- the notion of the counterfactual probability of a given counterfactual, which is the probability of the consequent given the following: the antecedent, the prior history, and the preserved intermediate events. Third, it considers the truth conditions for counterfactuals of this sort as consisting in this counterfactual probability being higher than a threshold. In section 3, I re-formulate the analysis of preservational counterfactuals in terms of the notion of being a cause, which ends up being quite compact. In section 4 I illustrate this analysis by showing how it handles two examples that have been considered puzzling – Morgenbesser's counterfactual and Edgington's counterfactual. Sections 5 and on constitute Part II: Its main initial thrust is provided in section 5, where I present the main lines of the extension of the theory from the core counterfactuals (analyzed in part I) to counterfactuals (roughly) whose antecedents are not compatible with their prior history. In this part II, I elaborate on counterfactuals that don't belong to the core, and more specifically on so-called reconstructional counterfactuals (as opposed to the preservational counterfactuals, which constitute the core counterfactual-type). The heart of the analysis is formulated in terms of processes leading to the antecedent (event/state), and more specifically in terms of processes likely to have led to the antecedent, a notion which is analyzed entirely in terms of chance. It covers so-called reconstructional counterfactuals as opposed to the core, so-called preservational counterfactuals, which are analyzed in sections 2 and 3 of part I. The counterfactual probability of such reconstructional counterfactuals is determined via the probability of possible processes leading to the antecedent weighed, primarily and roughly, by the conditional probability of the antecedent given such process: The counterfactual probability is thus, very roughly, a weighted sum for all processes most likely to have led to the antecedent, diverging at a fixed time. In section 6 I explain and elaborate further on the main points in section 5. In section 7 I illustrate the reconstructional analysis. I specify counterfactuals which are so-called process-pointers, since their consequent specifies stages in processes likely to have led to their antecedent. I argue that so-called backtracking counterfactuals are process-pointers counterfactuals, which fit into the reconstructional analysis, and do not call for a separate reading. I then illustrate cases where a speaker unwittingly employs a certain counterfactual while charitably construable as intending to assert (or ‘having in mind’) another. Here I also cover the issue of how to construe what one can take as back-tracking counterfactuals, or counterfactuals of the reconstructional sort, and more specifically, which divergence point they should be taken as alluding to (prior to which the history is held fixed). Some such cases also give rise to what one can take as a dual reading of a counterfactual between preservational and reconstructional readings. Such cases may yield an ambiguity, where in many cases one construal is dominant. In section 8 I illustrate the analysis by applying it to the famous Bizet-Verdi counterfactuals. This detailed analysis of counterfactuals (designed for the indeterministic case) has three main distinctive elements: its being chance-based, its causal aspect, and the use it makes of processes most likely to have led to the antecedent-event. This analysis is couched in a very different conceptual base from, and is an alternative account to, analyses in terms of the standard notion of closeness or distance of possible worlds, which is the main feature of the Stalnaker-Lewis-type analyses of counterfactuals. This notion of closeness or distance plays no role whatsoever in the analysis presented here. (This notion of closeness has been left open by Stalnaker, and to significant extent also by Lewis's second account.) . (shrink)

This article intends to research the passive/ active process of constitution in a way that shows the essential structures of passivity in consciousness (static phenomenology) and the active constitution through Ego’s acts (genetic phenomenology). However, as Husserl intends, according to Anthony Steinbock, this analysis will conduct to leading clues of constitution of meaning in a generative perspective, mainly in his future works. Although one is conscious of this static/genetic/generative phenomenology, I shall mainly concentrate on whether a true judgment is (...) possible. Henceforth, this work will pose some questions: Despite the fact that in passivity the essential structures of constitution face some modalization, whereby the livedexperience of otherwise springs forth, what kind of guarantee does it give for one’s judgments? And, if the Ego has its own way of givenness, in which it can actively intervene or be enticed somehow, how is it possibly a judicative certainty? These questions will be answered through the process of constitution itself. Therefore, this work will analyze the passive/ active structure of onstitution of meaning in experience, and how such experiences influence the judgment itself. The analysis will concentrate on the writings of Husserl from the 1920s and Husserliana XI, which were gathered in a single work by Anthony Steinbock. (shrink)

Diabetes contributes to COVID‐19 deaths in Colombia and Mexico, where the latter having the highest prevalence of diabetes among OECD countries. Some reports consider that advertising influences diabetes by confusing labels on ultra‐processed foods and soft drinks that lead to unhealthy food choices. Both countries are in the process of modifying their labeling legislation; however, governments and food industries have pushed to delay its implementation. Using a mixed research design, we interviewed 550 consumers in both countries during June–July 2020; (...) a high number of respondents misunderstand today's food labeling and are unaware of the new labeling legislation. Respondents strongly agree that the food industry should be in charge of changing the labels; otherwise, they would consider not buying their products. Using cluster analysis, we identified three groups that would help design public policies, nutritional and educational campaigns. Although changes in food labeling alone are not enough to reduce obesity and diabetes rates, food labels constitute public health tools due they assist consumers to make food and nutritional choices (considering that nutrition can help prevent and overcome COVID‐19). The costs of maintaining current labels could increase Colombians and Mexicans illnesss and poverty. These deceptive practices of the food industry would harm their brands. (shrink)

Recent work in positive psychology demonstrates the importance of self-transcendence: understanding oneself to be part of something greater than the self, such as a family, community, or tradition of sacred practice. Self-transcendence is positively associated with wellbeing and a sense of meaning and purpose. Philosophers have argued that self-transcendent motivation has a central role in good character, or virtue. Positive psychologists are just now beginning to integrate the aim of developing such motivation in character interventions. In this paper we draw (...) attention to an important but overlooked condition on effectively developing self-transcendent motivation constitutive of virtue: such a process must engage the subject’s will in the right way. If a process does not meet this condition it will fail to produce motivation constitutive of virtue according to leading philosophical accounts of virtue. We identify a suite of strategies for cultivating motivations that do meet this condition but have not been explored in relation to character interventions, namely, reappraisal strategies from the extended process model of emotion regulation (EPM-ER). (shrink)

The advent of techniques of sex selection that rely on assisted reproduction led to a questioning of whether sex selection should be deemed always and everywhere unethical. While China and India are normally associated with condemned practices, they are also implicated in processes that constitute globally stratified sex selection inclusive of its more valued form, often referred to as family balancing. Through an application of Ong and Collier’s concept of global assemblage, I demonstrate how family balancing, which has taken on (...) a “global form,” is tied to an “assemblage” of factors related to the anti-natal, population control contexts that have been pervasive in Asia. Three simultaneously occurring processes since the mid-1990s constituted stratified sex selection: the surfacing of China and India as figurative counter examples in deliberations of ethics on new techniques; active national surveillance of sex ratios as well as denunciation and criminalization of sex selective abortion in China and India; and the role of China and India in neoliberalizing population control and developing globalized markets in reproduction. Accounting for globally stratified sex selection requires a more robust interpretation of ethics that rethinks disciplinary approaches just as much as relativist ones in which respect for individual autonomy tends to overtake all other concerns. (shrink)

Governments in New Zealand have legislated a large number of settlements extinguishing many hundreds of claims taken by Māori against the Crown for breaches of the country’s founding document, Te Tiriti o Waitangi. They portray settlements as a great success for Māori and the Crown. Māori disagree. Settlements are government-determined and imposed on Māori using a smoke and mirrors approach that masks successive governments’ true intentions: to claw back Māori legal rights; to extinguish all claims; and to maintain White control (...) over Māori. In short, to uphold the Doctrine of Discovery in further breach of Te Tiriti o Waitangi. Māori claimants and negotiators report being enticed into the process by false promises only to become traumatised and disenchanted. Yet many take a pragmatic stance and sign settlements, making the best they can out of a bad deal that goes nowhere near compensating for their actual loss. They know that despite what legislation may say, the settlements are not full, not fair and not final and that, like all previous settlements, they will be revisited. They also know that unless fundamental changes are made to the constitutional makeup of the country, there is no prospect of justice and reconciliation for Māori. (shrink)

The work of Foucault and Elias has been compared before in the social sciences and humanities, but here I argue that the main distinction between their approaches to the construction of subjectivity is the relative importance of space and time in their accounts. This is not just a matter of the “history of ideas,” as providing for the temporal dimension more fully in theories of subjectivity and the habitus allows for a greater understanding of how ways of being, acting and (...) feeling in different spaces are related but largely unintended. Here I argue that discursive practices, governmental operations and technologies of the self (explanatory claims of both Foucault and the Foucauldian tradition) take shape as processes within the continuities of the figurational flow connecting people across space and time. Continuity should not be understood as stability or sameness over time, but as the contingent relations between successive social formations. As Elias argues, there is a structure or order to long-term social change, albeit unplanned, and this ultimately provides the broader social explanation for the historicity of the subject. Though discursive practices happen in particular spaces, we must recognise these spaces, and the practices therein, as socially constructed over time in response to largely unplanned moral and cultural developments. (shrink)

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect (...) the legitimacy of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, (...) we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents. (shrink)