In the light of the dramatic events in political society in Serbia the author examines the most basic question of political theory of constitutionalism, i.e. how is it possible for a revolution to culminate in a viable form of constitutional government.

This paper lays out the background and main features of Rawls’s new theory of justice. This is a theory that he began adumbrating about 1980 and that is given its fullest statement in his recent book Political Liberalism. I identify the main patterns of justification Rawls attempts to provide for his new theory and suggest a problem with one of these patterns in particular. The main lines of my analysis engage Rawls’s idea of constitutional consensus and his account (...) of political stability. (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)

This chapter brings overlapping consensus and its relation to constitutional consensus together, center stage. Since constitutional consensus on its own goes a considerable distance toward providing political stability, the chapter explains how overlapping consensus goes beyond constitutional consensus. What overlapping consensus supplies, which freestanding justification and constitutional consensus can't, is a distinctive set of comprehensive moral and religious reasons endorsing and thereby justifying, each for its own reasons, the liberal (...) order. The chapter takes up the difficult question whether traditional utilitarianism could figure in an overlapping consensus that assigns priority to the “rights, liberties, and opportunities” characteristic of liberalism over the “claims of the general good.” It attempts to provide an argument for saying that a well‐known version of utilitarianism (called indirect utilitarianism) could in fact be part of an overlapping consensus so conceived. (shrink)

In "Constitutional Goods" Alan Brudner presents novel conception of justice that will inform the content of the ideal liberal constitution. The content of this novel conception of justice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner's conception ofjustice. Brudner is unable to (...) construct an inclusive conception of liberalism from elements of libertarianism, egalitarianism, and communitarianism, and his account of public reason lacks the properties of fairness and reciprocity that differentiate a reasonable agreement from a modus vivendi. This paper therefore defends a Rawlsian political conception ofjustice and justification from Brudner's criticisms and proposed alternatives. (shrink)

The Australian moratorium on human clinical trials of xenotransplantation was lifted in December 2009. This decision follows public consultations on whether xenotransplantation should or should not proceed in Australia, which occurred in 2002 and 2004. However, the public consultation, in its design and process, did not facilitate meaningful public engagement and involvement, thus marginalising the public and devaluing their social experiences and diverse knowledges. This brief article questions what constitutes adequate public consultation, and suggests that consensus conferences or citizen (...) juries should be explored as a mechanism for meaningful public engagement for future public consultation exercises in Australia. (shrink)

In Buchanan’s broad “constitutional contractarian” framework ultimate justification depends on the institutional arrangements under assessment being universally accepted. Accordingly, market arrangements have the same status as in-period collective decision-making rules: both equally hang or fall on whether they emerged from constitutional consensus. The paper underlines this ‘equivalence’ by showing that the constitutional calculus over market ‘rights’ follows the same analytic structure as the derivation of in-period collective decision rules. This means that Buchanan’s view of the virtues (...) of markets is essentially rooted in a collective decision and despite his self-professed “classical liberal” inclinations, his relation to standard defences of the market order is at best equivocal. (shrink)

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters (...) of fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy. (shrink)

In this paper I analyze the theory of legitimacy at the core of John Rawls’ political liberalism. Rawls argues that a political system is well grounded when it is stable. This notion of stability embodies both pragmatic and moral elements, each of which constitutes a key desideratum of Rawlsian liberal legitimacy. But those desiderata are in tension with each other. My main claim is that Rawls’ strategy to overcome that tension through his theory of public justification is ultimately unsuccessful, because (...) the account of consensus it envisages is unstably placed between the extremes of moralized redundancy and pragmatic free-for-all. In other words, what counts as consensus is either regulated too tightly, or not enough. -/- . (shrink)

This book constitutes the first treatment of C. S. Peirce’s unique concept of habit. Habit animated the pragmatists of the 19th and early 20th centuries, who picked up the baton from classical scholars, principally Aristotle. Most prominent among the pragmatists thereafter is Charles Sanders Peirce. In our vernacular, habit connotes a pattern of conduct. Nonetheless, Peirce’s concept transcends application to mere regularity or to human conduct; it extends into natural and social phenomena, making cohesive inner and outer worlds. Chapters in (...) this anthology define and amplify Peircean habit; as such, they highlight the dialectic between doubt and belief. Doubt destabilizes habit, leaving open the possibility for new beliefs in the form of habit-change; and without habit-change, the regularity would fall short of habit – conforming to automatic/mechanistic systems. This treatment of habit showcases how, through human agency, innovative regularities of behavior and thought advance the process of making the unconscious conscious. The latter materializes when affordances form the basis for modifications in action schemas and modes of reasoning. Further, the book charts how indexical signs in language and action are pivotal in establishing attentional patterns; and how these habits accommodate novel orientations within event templates. It is intended for those interested in Peirce’s metaphysic or semiotic, including both senior scholars and students of philosophy and religion, psychology, sociology and anthropology, as well as mathematics, and the natural sciences. (shrink)

Philosophers concerned with the character of scientific disputes tend to divide into two camps. On the one side there are those who hold that scientists can always settle their differences by appealing to shared assumptions; on the other side there are those who maintain that in many cases scientists must resort to (nonrational ) persuasion to establish their views. The trouble is that for all their strong points both approaches labour under enormous difficulties. Scientific disagreement is often much deeper than (...) the first conception allows while persuasion, propaganda and the like are far less prevalent than the second one requires. On examining scientific practice is becomes clear that philosophers on both sides err in supposing that scientists can resolve their differences in a purely scientific fashion just to the extent that they can single out one of their views on the basis of assumptions that they hold in common. For one thing scientists make progress even though they rarely employ the strategy of reversion to neutral territory. And for another the strategy of reversion to neutral territory is at odds with the important methodological requirement that all relevant information be taken into account. Instead of thinking of scientists as resolving their differences by reviewing their respective positions in the light of their shared assumptions, we should think of them as fashioning positions on which they can agree, as arguing to shared conclusions rather than from shared premises. The relevant picture is one of scientists gradually narrowing the distance that separates them, of their converging on a mutually acceptable viewpoint. Far from being prerequisites for scientists' resolving their disputes, shared assumptions are what result from their managing to resolve them. How scientists who disagree deeply make progress is thus much less of a problem than is usually supposed. What determines whether scientists' conclusions constitute advances is not wether they were obtained by the expedient of reversion to neutral territory but whether each of the available options was fully ventilated. When scientists take into account all the relevant considerations (including those introduced into the discussion by their opponents and those that they can reasonably be expected to know), the question of whether they can be said to have made progress no longer arises. More generally, we misconstrue the manner in which scientists resolve their differences because we allow ourselves to be guided by our philosophical preconceptions about scientific knowledge and we devote insufficient attention to what happens in practice. Instead of exploring how scientists reason to mutually acceptable conclusions, we wrongly assume that they cannot but proceed by reverting to neutral territory. What is needed is not a general account of consensus formation but rather a fresh look at the multitude of ways in which scientists make progress by dint of argument and debate. Considered as a phenomenon in its own right scientific disagreement poses no special problem; it is puzzling only when it is considered within the framework of traditional epistemology. (shrink)

Consensus around what constitutes researcher conflicts of interest (COIs) and awareness of their influence on our research are two critical steps in ensuring the integrity of our science. In this research, data were collected from individual scholars via 2 surveys 5 years apart and from journals and associations to examine the level of social consensus and moral awareness among scholars, journals, and associations regarding researcher COIs. Although we observed increases in level of social consensus and moral awareness (...) between 2012 and 2017, results still revealed limited agreement about what relationships constitute a COI and limited awareness about the presence of and the ethical issues surrounding COIs. Although all journals and associations we examined supported COI disclosure, most did not provide researchers with detailed COI-related information, guidance, or disclosure tools. Limited social consensus and moral awareness regarding COIs is problematic because it inhibits the recognition, disclosure, and management of COIs and limits ethical decision making. We need to continue and enhance discussions about COIs and aim to create consensus and awareness where we do not have it with the goal of reducing potential scientific misconduct related to COIs. (shrink)

Consensus is the holy grail of bioethics, the lynch pin of the assumption that well informed, well intentioned people may reach generally acceptable positions on ethically contentious issues. It has been especially important in bioethics, where advancing technology has assured an increasing field of complex medical dilemmas. This paper results on the use of a multicriterion decision making system (MCDM) analyzing group process in an attempt to better define hospital policy. In a pilot program at The Hospital for Sick (...) Children, Toronto, a series of small scale focus groups was constituted to examine criteria defining organ transplant eligibility. Criteria were organized hierarchically using the Analytic Hierarchy Process, an MCDM approach, and the resulting data was analyzed using Expert Choice 9.0, software designed to facilitate AHP analysis. Qualitative and quantitative analysis map barriers to practical consensus in a way not previously possible. (shrink)

Since the beginning of the late modern era, modern constitutions have been trying to keep both group rights as minority rights and individual rights. But, in some cases, it is still ambiguous if an action or a phenomenon must refer to individual rights or group rights. Abortion discussions, with regard to political rights, are one example of these ambiguous cases. In this context, whereas Liberal view tends to regard abortion as individual rights of a woman, Communitarian view can be against (...) it by pointing out the right to life and this case may lead to a kind of liberal constitutional crises. This article gains importance as such constitutional crises still emerge even nowadays. John Rawls’s theory of overlapping consensus in Political Liberalism tries to solve these political conflicts that emerged in liberal constitutions by prioritizing public reason. This article conceptionally aims to examine Rawls’s theory in terms of prioritization and value relativity in abortion discussions. The method of article is hermeneutics. In order to extend the universe of the discussion, some important thinkers such as Immanuel Kant, Isaiah Berlin and John Gray, who have related studies on the topic, were included. In conclusion, it is asserted that Rawl’s theory is weak both practically and theoretically as to the principle of utilitarianism violates the rights of communitarians. (shrink)

In this article, I argue that political philosophers like Rawls and Habermas that characterize their methods as non-metaphysical or postmetaphysical depend on constitutions in order to provide a positive and public reference point for democratic participants. Michelman shows how this dependency is problematic, by contending that disagreement about the meaning of constitutional rights and the indeterminacy of their application undermines the rationality of consensus. I argue that his concerns raise serious problems for Rawls’ theory. Habermas, on the other (...) hand, has some tools to deal with Michelman’s critique — namely, his distinction between discourses of justification and application, and his idea of constitutional patriotism — but he must concede that much of the substance of constitutional democracy is basically up for grabs. I conclude by suggesting why these consequences are less threatening than they may seem. (shrink)

In his “New Consensus” on explanation, Wesley Salmon (1989) famously argued that there are two kinds of scientific explanation: global, derivational, and unifying explanations, and then local, ontic explanations backed by causal relations. Following Salmon’s New Consensus, the dominant view in philosophy of science is what I term “neo-Causalism” which assumes that all ontic explanations of singular fact/event are causal explanations backed by causal relations, and that scientists only search for causal patterns or relations and only offer causal (...) explanations of singular facts/events. I argue that there are foundational, and fatal, flaws in the neo-Causal picture. The relations backing constitutive mechanistic explanations of activities of wholes using activities of parts, as well as other species of compositional explanation, cannot be causal relations. Treating them as causal or causation-like is therefore plausibly a category mistake. Compositional explanations in the sciences represent instead a sui generis kind of ontic explanation of singular fact/event backed by sui generis compositional relations. We thus need a pluralistic revision of Salmon’s New Consensus on explanation to reflect these findings. (shrink)

Mankind is nowadays faced with many different challenges brought about by the exploration of the molecular basis of heredity. Many entwined questions arise: is genetic knowledge relevant to the comprehension of nature in general and of man’s vision of himself in particular? Faced with the new possibilities of insight and intervention in human genom, how should we conceive nature ? Modern molecular biology has demonstrated that our genetic patrimony must not be considered throughly and completely determined; on the contrary it (...) constitutes an aray of possible dispositions, on which we have the possibility to intervene, therefore changing our destiny. The insight in man’s genom has therefore on one side made our personal and hereditary dispositions accessible and comprehensible to us ; on the other side human genetics makes it possible for everyone to change his/her personal genetic constitution or that of his/her descendants, and therefore indicates a previously unknown way of autonomous behaviour. The ethical judgement of the above mentioned possibilities on one side questions the legitimacy of the aims and on the other analyses whether a justification of the tools used for these purposes is possible. The difference between therapeutic and non-therapeutic interventions or between somatic interventions on individuals and interventions on the germinal line are to be considered part of the aim’s question, whereas the moral analysis of the means is oriented towards the unconditional respect of the autonomy of those involved and towards a manifold evaluation of benefits, drawbacks and risks. (shrink)

This chapter is an essay in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart's "rule of recognition" model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods -- such as textualism, originalism, "living constitutionalism," structure-and-relationship reasoning, representation reinforcement, minimalism, and (...) so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear in arguing that one or another interpretive method is legally favored? And can we "make sense" of this body of argument? Is there a model of legal discourse that both accurately describes how U.S. jurists and scholars actually argue about interpretive methods, and that vindicates this discourse (in the sense of seeing these actors as making valid arguments)? I find that Hart's rule-of-recognition model fails to describe or vindicate how U.S. jurists and scholars argue about interpretive methods. The problem, in a nutshell, is that Hart sees legal argument as asserting or presupposing the social fact of contemporary official acceptance of a rule of recognition. By contrast, jurists and scholars typically point to social facts other than contemporary official acceptance in arguing for the legal status of an interpretive method -- for example, the fact that the method is supported by Framers' intent, or by U.S. culture and tradition, or by precedent. Further, jurists and scholars very often argue that some interpretive method is legally favored even though the method is controversial. On Hart's model, such a claim is problematic -- because, on his model, the content of the rule of recognition is not controversial, but rather a matter of consensus among officials. The upshot may just be that Hart's model is a failure. However, another possibility is to adopt an "error theory" of U.S. constitutional discourse. It may perhaps be the case that U.S. jurists and scholars often make claims for the favorable legal status of some interpretive method that are inconsistent with the best understanding of the nature of law. (shrink)

In the opinion of many Slovenian and Croatian scholars, the constitutional and legislative design of citizen-initiated referendums in their respective countries was in many ways flawed. Referendums initiated by citizens have caused, at least from the point of view of governments in these two countries, many unexpected constitutional, political and/or economic problems. Over the years, several unsuccessful constitutional reforms of the institute of referendum have been attempted both in Slovenia and Croatia. In 2013, Slovenia finally attained its (...) ‘constitutional moment’ in which it was possible to reach an almost universal consensus in the National Assembly on constitutionally redesigning the legislative referendum. On the other hand, several attempts by the Croatian Parliament to amend the constitutional provision relating to citizens’ initiatives have come to nothing due to the interests of the major parties in the constitutional amendment process being different. (shrink)

The contemporary agonist thinker, Chantal Mouffe argues that conflicts are constitutive of politics. However, this position raises the question that concerns the survival of order and the proper types of conflicts in democracies. Although Mouffe is not consensus-oriented, consensus plays a role in her theory when the democratic order is at stake. This suggests that there is a theoretical terrain between the opposing poles of conflict and consensus. This can be discussed with the help of concepts and (...) theories that seem to be standing between the two, namely compromise, debate and the borders of democracy. I will argue that we can reveal this position with the theoretical analysis of compromise in the works of F. R. Ankersmit on the historical origin of representative democracy, and Amy Gutmann and Dennis Thompson on the role of compromise in divided communities. J. S. Mill’s view of colliding opinions offers a moderate agonistic understanding of politics, while the concept of debate plays a similar role for Márton Szabó, a contemporary Hungarian political theorist. Finally, Mouffe’s position stands at the conflictual end of this spectrum, although conflicts are delimited on the normative ground of democracy. (shrink)

The article made an attempt to understand the nature of jus, going from an analysis of its genesis and the primary simplest forms, the formation of which constituted the transition from the pre-social to the social world. In line with the hypothesis of Levi-Strauss of the beginning of society, the author considers dual-group unions to be the first social formations, halfs of which, in relation to and through each other, acquired the quality of historically original subjects of jus – the (...) space of freedom jointly built by them, based on the consensus of non-violence of the parties, rational coordination of wills and judicial resolution of conflicts. Subsequent social evolution gives rise to fundamentally new forms of both deploying the essence of jus and obstructing it. Among the latter, the most important is the state that does not need coordination and is able to impose its will on so­ciety by violence. History develops mechanisms for curbing state authority by jus, based on its high axiological status, which ensures the readiness of society to defend legal val­ues, among which freedom of speech plays a key role, which, firstly, acts as the main form of concordance of wills in society that forms the jus, and secondly, it allows contin­uous control over the state and in the threat of its going beyond the framework of the jus to initiate social activity that prevents this. (shrink)

Philosophers have often noted that science displays an uncommon degree of consensus on beliefs among its practitioners. Yet consensus in the sciences is not a goal in itself. I consider cases of consensus on beliefs as concrete events. Consensus on beliefs is neither a sufficient nor a necessary condition for presuming that these beliefs constitute knowledge. A concrete consensus on a set of beliefs by a group of people at a given historical period may be (...) explained by different factors according to various hypotheses. A particularly interesting hypothesis from an epistemic perspective is the knowledge hypothesis: shared knowledge explains a consensus on beliefs. If all the alternative hypotheses to the knowledge hypotheses are false or are not as good in explaining a concrete consensus on beliefs, the knowledge hypothesis is the best explanation of the consensus. If the knowledge hypothesis is best, a consensus becomes a plausible, though fallible, indicator of knowledge. I argue that if a consensus on beliefs is uncoerced, uniquely heterogeneous and large, the gap between the likelihood of the consensus given the knowledge hypothesis and its likelihoods given competing hypotheses tends to increase significantly. Consensus is a better indicator of knowledge than "success" or "human flourishing". (shrink)

Over recent decades, public participation in technology assessment has spread internationally as an attempt to overcome or prevent societal conflicts over controversial technologies. One outcome of this new surge in public consultation initiatives has been the increased use of participatory consensus conferences in a number of countries. Existing evaluations of consensus conferences tend to focus on the modes of organization, as well as the outcomes, both procedural and substantial, of the conferences they examine. Such evaluations seem to rest (...) on the assumption that this type of procedure has universally agreed goals and meanings, and that therefore consensus conferences can readily be interpreted and applied across national boundaries. This article challenges this approach to consensus conferences. The core of the article is a study of national differences in ideas about what constitutes legitimate goals for participatory arrangements. The study looks at three consensus conferences on GMOs, which took place in France, Norway, and Denmark. Drawing on this study, the article discusses the ways in which interpretations of the concept of participation; the value attributed to lay knowledge vs. technical expertise; as well as ideas about the role of the layperson, are all questions that prompt entirely different answers from country to country. Further, the article analyses these national differences within a theoretical framework of notions of democratic legitimacy. (shrink)

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

Focusing on current efforts to persuade the public to comply with Covid-19 best practices, this essay examines what role appeals to religious reasons should (or should not) play in leaders’ attempts to secure followers’ acceptance of group policies in contexts of religious and moral pluralism. While appeals to followers’ religious commitments can be helpful in promoting desirable public health outcomes, they also raise moral concerns when made in the contexts of secular institutions with religiously diverse participants. In these contexts, leaders (...) who appeal to religious reasons as bases of justification for imposing Covid policies may seem to fail to show respect for the autonomy of those who lack the relevant religious commitments, and—especially when a leader herself rejects the religious commitments she makes reference to to persuade others—her appeals to religious reasons may seem to constitute ethically problematic exercises of manipulation. This essay draws on the resources of contemporary political philosophy to analyze and respond to these concerns and concludes that they are not sufficiently well-founded. To the contrary, it contends that there are good moral grounds for leaders to appeal to religious reasons as (partial) bases of justification for why followers should accept Covid policies. In the course of the argument, this essay also highlights how contemporary political theory can enrich discussions about the distinctions between coercion, manipulation, and leadership, and thereby give insight not only into the ethics of leadership but also—at least by the lights of central theories of leadership like that of James MacGregor Burns (1978)—into whether and how appeals to religious reasons can figure into genuine exercises of leadership, in contrast with mere instances of the wielding of social power. (shrink)

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber (...) draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level. (shrink)

Prompted by recent comments on the moral authority of dialogic consensus, we argue that consensus, specifically dialogic consensus, possesses a unique form of moral authority. Given our multicultural era and its plurality of values, we contend that traditional ethical frameworks or principles derived from them cannot be viewed substantively. Both philosophers and clinicians prioritize the need for a decision to be morally justifiable, and also for the decision to be action-guiding. We argue that, especially against the background (...) of our pluralistic society, it is only via unforced dialogue and properly founded argumentation, aiming for consensus, that we can ascribe rightness or wrongness in a normative fashion to dilemmatic situations. We argue that both the process of dialogue, properly constituted, and the consensual outcome itself have moral authority vested within them. Finally, we argue that the consensual decision made is able to withstand moral scrutiny and is action-guiding, without claiming absolute moral authority in other contexts. (shrink)

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

In this essay, an attempt is made to re-present African Communitarianism as a discursive formation between the individual and community. It is a view which eschews the dominant position of many Africanist scholars on the primacy of the community over the individual in the ‘individual-community' debate in contemporary Africanist discourse. The relationship between the individual and community is dialogical for the identity of the individual and the community is dependent on this constitutive formation. The individual is not prior to the (...) community and neither is the community prior to the individual. Contemporaneity explains this dialogic relationship and to argue otherwise threatens the individual's subjectivity to a vanishing point, or simply, to deny the individual a presence. On this trajectory, the politics of common good within the African value system can neither be described nor represented through consensus or unanimity but through a realist perspectivism or a worldview not held in abstraction from living traditions, cultures, and values that characterize the people of sub-Saharan Africa. South African Journal of Philosophy Vol. 27 2008: pp. 386-399. (shrink)

This paper addresses the problem of the strategies and theories of democratic participation in Nigeria that breed institutional marginality and bad governance due to shortfalls in pursuing the values of justice and empowerment as core democratic characteristics. The same democratic principles such as voting, parliament, constitution, judiciary, that are suggestive of gains such as responsible use, and peaceful transfer of power may not have translated fully into sociopolitical empowerment for responsibility and representation in evolving democratic practice in Nigeria due to (...) problems of agency and political ideology. Democratic theorizing and participation in Nigeria has defied orthodox presuppositions seen in the disrespect for basic rights and the disregard for the rule of law in democracy that allow for fair play within and among the elites and political grassroots. Thus this study investigates the Nigerian predicament as a model or case study, raising questions about the reasons for the systematic disempowerment of groups. (shrink)

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner's The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they call ‘Rechtsverfassungsrecht’. (...) Departing from the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner's argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner's book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering. (shrink)

In recent years geographic interest has focused increasingly on the moral and ethical dimensions of social constructions. Much of this work has followed the direction taken by moral philosophers whose principled approach has been applied to a range of ethically or morally problematic contexts. The challenge has been to apply a geographic perspective to an ethical dilemma that seems intractable at the level of ethical principle. This paper uses a geographic perspective to consider in a concrete fashion a current bioethical (...) concern: defining who will or will not be eligible for an organ transplant. Methodologically, it uses the analytic hierarchy process, a multicriterion decision making approach, and Q-analysis to analyze the resulting data. Long known by geographers, Q-analysis presents a methodology for the analysis of relations between two sets of criteria, in this case focus groups and their responses to a hierarchy of criteria. The result is a topology that not only presents but also explains the moral reasoning of members of a diverse set of focus groups constituted at a Canadian hospital to consider the question of organ transplant eligibility. (shrink)

This paper analyses J. Habermas’s theory of deliberative democracy from the point of view of conflict. Leaving aside the external criticisms that object to the validity claims of this political theory, it is argued that, along with the search for consensus, conflict is also constitutive of this theoretical approach to democracy. This relationship (between consensus and conflict) in deliberative democracy is justified by taking into account not only the reconstructive procedure of the pragmatic presuppositions of argumentative discourse that (...) are inherent to decision making processes, but also by making explicit the democratic implications of its theoretical approach to institutional organisation, and the consequent interaction between the formal and informal spaces of politics in the rule of law. The explanation and analysis of this connection, which the Frankfurt philosopher does not recognise, contributes to the theoretical expansion of deliberative democracy without thereby nullifying its conceptual status. (shrink)

The legal treatment of physician-assisted suicide is in flux. Reform has been impelled by several forces, including the recent success of novel constitutional arguments in the Ninth and Second Circuit Courts of Appeals. I will review and discuss Compassion in Dying v. State of Washington and Quill v. Vacco, addressing the constitutional arguments, and then briefly considering the attractions and difficulties of these new constitutional theories.Before 1990, state criminal laws dealing with assisted suicide had reached a remarkably (...) stable consensus: suicide was not illegal, but assisting suicide was a criminal action with no distinction typically made between physicians and others who assisted. The details of the relevant criminal law varied from state to state. Some states had criminal statutes specifically addressing assisted suicide, while others treated the practice under more general homicide statutes. But in no state was it clearly legal for a physician to prescribe a lethal medication at the request of a dying patient. While remarkable legal developments took place during the 1970s and 1980s regarding other aspects of the rights of dying patients, there was relative quiescence regarding the law of PAS. (shrink)

The galvanising purpose of Federation was the creation of the Commonwealth and the distribution of power between it and the former colonies, simultaneously elevated to Statehood. But beyond this simple fact, consensus about Australian federalism has traditionally been elusive and is, if anything, only increasingly so. While the contemporary political debate over federal reform proceeds from a shared sense that our existing arrangements have manifest shortcomings, there is far from unanimity as to which of its particular features are strengths, (...) and which are deficiencies. The structure of this paper is as follows. In Part II, the range of understandings as to the character of the federal relationship between Australian governments is canvassed. Consideration is given to the views of the Constitution’s Framers and commentators, but most centrally to members of the High Court since these have brought about great change in federal arrangements. The significance of the Court’s marked preference for adhering only to constitutional structure and its inability or unwillingness to develop ‘a federal jurisprudence’ is examined in two respects. First, the effect of the Court’s arid Engineers’ Case methodology has been to reject any suggestion that fidelity to a concept of ‘federal balance’ is consistent with both the contents and purpose of the Constitution and also the principles of divided government. Particular consideration is given to the limitations of a commitment to federalism in only a structural sense, as revealed by the judicial reasons of the majority and dissenting judges in the recent case of New South Wales v Commonwealth. Second, the tension between competing assumptions of the kind of federal system established by the Commonwealth Constitution has produced an unstable and uncertain environment for the development of cooperative schemes between the Commonwealth and States. In Part III we consider how an attempt to ‘constitutionalise’ the relationship between the tiers of government as one underpinned by cooperation and respect would impact on the Court’s approach. Drawing on foreign constitutions, and adapting these in light of Australia’s politico-legal conditions and history, we suggest how a commitment to cooperative federalism might best be shaped for possible inclusion in the Commonwealth Constitution. (shrink)

ABSTRACTI consider objections to the use of living wills based upon the discontinuity of personal identity between the time of the execution of the directive anbd the time the person becomes incompetent. Recent authors, following Derek Parfit's “Complex View” of personal identity, have argued that there is often not sufficient identity interests between the competent person who executes the living will and the incompetent patient to warrant the use of the advance directive. I argue that such critics err by seeking (...) personal identity in a purely descriptive manner. By exploring Buchanan and Brock's concept of “surviving interests”, an argument is developed that certain future‐oriented acts have a normative force that contributes to the narrative unity which is constitutive of personal ideality. This narrative concept of the self is entailed by many of the our ordinary practices and challenges the philosophical consensus to view the self in a more dynamic and communitarian manner. (shrink)

Multidimensional theories of well-being are locked into a debate about value judgment. They seek to settle which dimensions should matter for measurement and policy, and, more importantly, on what grounds to decide what should matter. Moreover, there is a gulf between theory and practice, given that measurement and policy are rarely rooted in a coherent ethical framework. Our paper engages in the debate concerning the legitimate grounds for selecting dimensions. Combining Amartya Sen's capability approach and John Rawls’ method of political (...) constructivism, we explore whether the constitution and its public culture can be used as an ethically sound informational base for selecting dimensions, and if so, why. We apply this ‘constitutional approach’ to the Italian case with the aim of deriving a set of publicly justifiable dimensions of well-being. It is a long-standing Constitution with broad public consultation at its base, which still enjoys a wide consensus. We seek to show why there is a need for more ethically sound methodological approaches to measuring well-being, pointing out the advantages of the constitutional approach, and how it may enrich the work of practitioners engaged in the policies of well-being. (shrink)

This paper represents a step in the analysis of the key, but much-neglected role of affect and emotions as the originary source of the living present, as a foundational dimension of the moment-to-moment emergence of consciousness. In a more general sense, we may express the question in the following terms: there seems to be a growing consensus from various sources -- philosophical, empirical and clinical -- that emotions cannot be seen as a mere 'coloration' of the cognitive agent, understood (...) as a formal or un-affected self, but are immanent and inextricable from every mental act. How can this be borne out, beyond just announcing it? Specifically, what is the role of affect-emotion in the self-movement of the flow, of the. (shrink)

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

Perhaps one of the most controversial aspects of Hegel's Philosophy of Right for contemporary interpreters is its discussion of the constitutional monarch. This is true despite the general agreement amongst virtually all interpreters that Hegel's monarch is no more powerful than modern constitutional monarchs and is an institution worthy of little attention or concern. In this article, I will examine whether or not it matters who is the monarch and what domestic and foreign powers he has. I argue (...) against the virtual consensus of recent interpreters that Hegel's monarch is far more powerful than has been understood previously. In part, Hegel's monarch is perhaps even more powerful than Hegel himself may have realized and I will demonstrate certain inconsistencies with some of his claims. My reading represents a distinctive break from the virtual consensus, without endorsing the view that Hegel was a totalitarian. (shrink)

Ludwik Fleck’s theory of thought-styles has been hailed as a pioneer of constructivist science studies and sociology of scientific knowledge. But this consensus ignores an important feature of Fleck’s epistemology. At the core of his account is the ideal of ‘objective truth, clarity, and accuracy’. I begin with Fleck’s account of modern natural science, locating the ideal of scientific objectivity within his general social epistemology. I then draw on Fleck’s view of scientific objectivity to improve upon reflexive accounts of (...) the origin and development of the theory of thought-styles, and reply to objections that Fleck’s epistemological stance is self-undermining or inconsistent. Explicating the role of scientific objectivity in Fleck’s epistemology reveals his view to be an internally consistent alternative to recent social accounts of scientific objectivity by Harding, Daston and Galison. I use these contrasts to indicate the strengths and weaknesses of Fleck’s innovative social epistemology, and propose modifications to address the latter. The result is a renewed version of Fleck’s social epistemology, which reconciles commitment to scientific objectivity with integrated sociology, history and philosophy of science. (shrink)

This dissertation addresses a debate about the proper relationship between democratic theory and institutions. The debate has been waged between two rival approaches: on the one side is an aggregative and economic theory of democracy, known as constitutional economics, and on the other side is deliberative democracy. The two sides endorse starkly different positions on the issue of what makes a democracy legitimate and stable within an institutional setting. Constitutional economists model political agents in the same way that (...) neoclassical economists model economic agents, that is, as self-regarding, rational maximizers; so that evaluations of democratic legitimacy and stability depend on the extent to which the design of institutional rules and practices maximize individual utility by promoting efficient schemes of collective choice. Deliberative democrats, on the other hand, understand political agents as communicative reason-giving subjects who justify their preferences and positions on issues that jointly affect them in a process of consensus-directed discourse, or deliberation; so that evaluations of democratic legitimacy and order depend on the degree to which institutional norms and practices promote deliberation and draw upon deliberated public judgment. I argue that despite the numerous incompatibilities between constitutional economics and deliberative democracy—which amount to a 'deep divide'—an opportunity to produce a genuine synthesis of the two approaches arises inasmuch as it is possible to overcome several points of opposition in their separate research programmes. The central thesis of the dissertation is that it is possible to construct a bridge spanning the divide between constitutional economists and deliberative democrats, and that Dewey and Bentley's transactional view can facilitate this bridge-building project. Pursuant to this end, the points of opposition between the v research programmes are mediated by way of five concepts which, on balance, favor deliberative democracy and its feasible institutionalization. (shrink)

This project is based on the unique ‘Shared ethical debate’ between NHS RECs in the UK in which one research application is reviewed by several research ethics committees. This programme is now in its 6th cycle. In the fifth cycle a prison- based research project was reviewed by each of three NHS RECs that are ‘ flagged’ for such research and their debate and discussions were observed directly by one researcher who recorded the committee processes and the issues raised in (...) committee. Subsequently a focus group of REC members from all three committees was constituted to consider the ethical importance of these issues. The three RECs were consistent in both process and identifying ethical issues. The focus group formulated a basic framework that will further contribute to ensuring a consistent and balanced approach to ethical review within this area of research. (shrink)

There is nowadays consensus in the community of didactics of science regarding the need to include the philosophy of science in didactical research, science teacher education, curriculum design, and the practice of science education in all educational levels. Some authors have identified an ever-increasing use of the concept of ‘theoretical model’, stemming from the so-called semantic view of scientific theories. However, it can be recognised that, in didactics of science, there are over-simplified transpositions of the idea of model. In (...) this sense, contemporary philosophy of science is often blurred or distorted in the science education literature. In this paper, we address the discussion around some meta-theoretical concepts that are introduced into didactics of science due to their perceived educational value. We argue for the existence of a ‘semantic family’, and we characterise four different versions of semantic views existing within the family. In particular, we seek to contribute to establishing a model-based didactics of science mainly supported in this semantic family. (shrink)

In the global world, momentous migratory tides have produced hyper-pluralism on the domestic scale, bringing citizens with radically different conceptions of life, justice and the good to coexist side by side. Conjectural arguments about the acceptance of pluralism, the next best to public reason when shared premises are too thin, may not succeed in convincing all constituencies. What resources, then, can liberal democracy mobilize? The multivariate democratic polity is the original answer to this question, based on an interpretation of Rawls (...) which revisits Political Liberalism in the light of The Law of Peoples . The unscrutinized assumption is highlighted, often read into Rawls’s Political Liberalism , that a polity moves homogeneously and all of a piece from religious conflict to modus vivendi, constitutional consensus and finally to overlapping consensus. Drawing on The Law of Peoples , a different picture can be obtained. (shrink)

The world is out of joint, so much so that disobeying should be an urgent question for everyone. In this provocative essay, Frédéric Gros explores the roots of political obedience. Social conformity, economic subjection, respect for authorities, constitutional consensus? Examining the various styles of obedience provides tools to study, invent and induce new forms of civic disobedience and lyrical protest. Nothing can be taken for granted: neither supposed certainties nor social conventions, economic injustice or moral conviction. Thinking philosophically (...) requires us never to accept truths and generalities that seem obvious. It restores a sense of political responsibility. At a time when the decisions of experts are presented as the result of icy statistics and anonymous calculations, disobeying becomes an assertion of humanity. To philosophize is to disobey. This book is a call for critical democracy and ethical resistance. (shrink)

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis (...) of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism. The case for these claims is made in six parts. After the introduction, Part II, The Fact of Pluralism in the Context of Contemporary Religious Division, explores the idea of religious division in light of an important notion in political philosophy--the idea that John Rawls calls the fact of reasonable pluralism. Part III, Public Legal Reason, argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of public legal reason. Part IV, Legal Formalism, contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation--one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part V, Feasibility and Positive Theory, discusses the question whether this ideal of public legal reason and corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part VI, Religious Division Revisited: From Pluralism to Formalism, brings the discussion to a close. (shrink)

A political challenge facing constitutional democracies in Africa is the lack of adequate representation and participation of citizens in democratic processes and institutions. This challenge is manifest in the vesting of power solely in, and the exercise of this power by, a sectional group – the majority party – to the exclusion of others; as evinced in the liberal democratic systems extensively practised on the continent. Wiredu proposes as a solution to these challenges the adoption of consensual democracy; an (...) indigenous, non-party democratic system rooted in the traditional African humanist and communitarian conceptions of the individual and the community, in which political decisions are characteristically reached by consensus. In this article, I present a critical exposition of Wiredu’s consensual democracy and defend it against liberal democracy on the one hand, and criticisms levelled against it on the other hand. I also offer some modifications to Wiredu’s theory in a bid to render it more suitable for practice in Africa. (shrink)

BackgroundResearch proactively and deliberately aims to bring about specific changes to how societies function and individual lives fare. However, in the ever-expanding field of ethical regulations and guidance for researchers, one ethical consideration seems to have passed under the radar: How should researchers act when pursuing actual, societal changes based on their academic work?Main textWhen researchers engage in the process of bringing about societal impact to tackle local or global challenges important concerns arise: cultural, social and political values and institutions (...) can be put at risk, transformed or even hampered if researchers lack awareness of how their ‘acting to impact’ influences the social world. With today’s strong focus on research impacts, addressing such ethical challenges has become urgent within in all fields of research involved in finding solutions to the challenges societies are facing. Due to the overall goal of doing something good that is often inherent in ethical approaches, boundaries to researchers’ impact of something good is neither obvious, nor easy to detect. We suggest that it is time for the field of bioethics to explore normative boundaries for researchers’ pursuit of impact and to consider, in detail, the ethical obligations that ought to shape this process, and we provide a four-step framework of fair conditions for such an approach. Our suggested approach within this field can be useful for other fields of research as well.ConclusionWith this paper, we draw attention to how the transition from pursuing impact within the Academy to trying to initiate and achieve impact beyond the Academy ought to be configured, and the ethical challenges inherent in this transition. We suggest a stepwise strategy to identify, discuss and constitute consensus-based boundaries to this academic activity. This strategy calls for efforts from a multi-disciplinary team of researchers, advisors from the humanities and social sciences, as well as discussants from funding institutions, ethical committees, politics and the society in general. Such efforts should be able to offer new and useful assistance to researchers, as well as research funding agencies, in choosing ethically acceptable, impact-pursuing projects. (shrink)

Constitutions all over the world are propelling significant reforms and innovations for their respective societies. What ushers such dynamism is a fundamental question. Taking the case of India, the constitutional philosophy as reflected in the text of the Constitution has permitted growth and expansion in terms of rights, opprtunities, institutional arrangements etc. WIthin the constitution, the preamble expresses this philosophy. On preambles, there is growing international consensus on their role in the developement of societies. The preambles are said (...) to have "integrative power", and "binding force" as a "substantive source of rights". Each preamble is said to express uniqueness in terms of the ideals incorporated therein and the history that gave birth to them. This book is inspired by the governing values provided in the Preamble to the Indian Constitution. The layout of the book is designed in order to reflect the theoratical and verifiable facets of these values; sovereignty, justice, fraternity, secularism, democracy, socialism, republicanism, equality, and liberty. The book serves more rightly as a contemporary reading of the preamble. (shrink)