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)

This article uses the methods that Locke advocated in his Essay Concerning Human Understanding to evaluate manuscript evidence from five different schemes and two drafts of the Fundamental Constitutions of Carolina, to thereby determine what role, if any, John Locke had in writing it, and in advocating for slavery and absolutism. It focuses on the influential claims put forward by David Armitage 20 years ago, that Locke was responsible for actively promoting slavery in Carolina’s Fundamental Constitutions. It enables (...) the reader to view, and judge, the relevant evidence. The author concludes, and invites the reader to conclude, that Armitage’s main claims lack foundation in the manuscript evidence. That evidence instead points towards the legal power of those who owned Carolina, the Lords Proprietors, and to the crown, which granted Carolina’s charter, and to the logic of a different theory of government, patriarchalism, for the rationale behind both slavery and absolutism. The central ideas behind slavery and colonization were epitomized, as Locke understood, by Sir Robert Filmer, who wrote the book to which Locke responded in his Two Treatises of Government. Filmer’s ally, Sir Henry Spelman, like Filmer a deeply committed royalist who believed in the king’s unlimited prerogatives, composed the original 1629 Carolina charter that shaped the Fundamental Constitutions. Misattributing the authorship of particular clauses to Locke is a symptom of a larger failure to distinguish the impact of momentous debates over authority and race in the seventeenth century. Locke’s theories did, in practice as well as principle, reject the theory of domination put forward by Filmer, and argued instead for human rights and democracy that were inclusive and capacious. The manuscript evidence has the potential to reshape how modern democratic theory is understood in the present. (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)

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)

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)

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?

L’une des traditions recueillies dans les Constitutions apostoliques permet de reconstituer, dans une certaine mesure, l’évolution des célébrations dominicales et pascales au cours des quatre premiers siècles, dans l’aire syrienne. La comparaison avec l’état de ces traditions dans les recueils antérieurs (Didachè, « Tradition apostolique », Didascalie) fait apparaître une extension des célébrations dans le temps mais aussi un développement de l’ancrage christologique et des références histori­ques, ainsi que des évolutions dans la reconstitution de la chronologie de la Passion, (...) la pratique du jeûne, la théologie pascale et la mise en œuvre des célébrations. Les traces de la pratique quartodécimane repérées dans la Didas­calie ne sont plus perceptibles dans les Constitutions apostoliques. (shrink)

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

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)

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

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)

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)

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

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

This 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)

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)

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

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)

What did kratos imply in the classical democratic context? Focusing on the two Constitutions of the Athenians traditionally attributed to Xenophon and Aristotle respectively, this article explores differences among kratos and three proximate terms: archē (de facto governance or magistracy), kuros (authority, perceived as legitimate), and dēmagōgia (leadership). With Benveniste and Loraux, it argues that kratos specifically signalled ‘superiority’ or ‘predominance’, as revealed in combat or other form of contest. Dēmokratia thereby connoted the forceful predominance of the dēmos (‘assembly’, (...) ‘collective common people’) over the rest of the community, including office-holders (archontes, archai) and political leaders (dēmagōgoi). The association of kratos with force directs attention to the martial underpinnings of classical demotic authority, incidentally highlighting a weakness in modern democracy: the dēmos’ lack of kratos over the political elite when that elite controls military and police power. (shrink)

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

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

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)