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

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

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)

Unwritten constitutional conventions also known as lex non scripta, are under permanent scholarly scrutiny. This does not happen only in the Anglo-Saxon scholarly tradition. When analyzing the issues of unwritten law, a considerable number of representatives of this tradition, starting with W. Blackstone and finishing with contemporary British and American scholars, also talk about the existence of constitutional conventions. It should also be noted that issues pertaining to unwritten law and issues of conventions in particular, are often mentioned (...) and analyzed in the works of scholars of the Roman-Germanic legal tradition. Italian, French, German and Czech scholars take account of constitutional conventions, analyze their features and hold discourse on their future. However, in the course of scholarly debate, the issues of constitutional conventions have been dealt with in a fairly controversial manner. Even though individual scholars recognize constitutional conventions, the variety of opinions and conceptions is too large to form a uniform understanding. (shrink)

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

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

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

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

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

Processes constitute the world of human experience - from nature to cognition to social reality. Yet our philosophical and scientific theories of nature and experience have traditionally prioritized concepts for static objects and structures. The essays collected here call for a review of the role of dynamic categories in the language of theories. They present old and new descriptive tools for the modelling of dynamic domains, and argue for the merits of process-based explanations in ontology, cognitive science, semiotics, linguistics, (...) philosophy of mind, robotics, theoretical biology, music theory, and philosophy of chemistry and physics. The collection is of interest to professional researchers in any of these fields; it establishes - for the very first time - crossdisciplinary contact among recent process-based research movements and might witness a conceptual paradigm shift in the making. (shrink)

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

In his newly updated version of The Anatomy of a Constitutional Law Case, Alan F. Westin provides a documentary portrait of historically important constitutional law case, 'Youngstown Sheet & Tube Co. v. Sawyer, ' from its rise in a bargaining dispute in the steel industry during 1952 to the aftermath of its decision by the United States Supreme Court. Westin has added to his classic book additional materials and personal commentaries collected since the work was first published. The (...) new information covers what went on within the Truman administration, what went on within the Supreme Court when analyzing and resolving issues that come before it. Westin includes selections from transcripts, briefs and other official proceedings, adds notes describing each phase of the constitutional process, and a section of commentary and questions relating this case to others. (shrink)

This second volume of ReConFort, published open access, addresses the decisive role of constitutional normativity, and focuses on discourses concerning the legal role of constitutional norms. Taken together with ReConFort I (National Sovereignty), it calls for an innovative reassessment of constitutional history drawing on key categories to convey the legal nature of the constitution itself (national sovereignty, precedence, justiciability of power, judiciary as constituted power). In the late 18th and early 19th centuries, constitutional normativity began to (...) complete the legal fixation of the entire political order. This juridification in one constitutional text resulted in a conceptual differentiation from ordinary law, which extends to alterability and justiciability. The early expressions of this 'new order of the ages' suggest an unprecedented and irremediable break with European legal tradition, be it with British colonial governance or the French ancien régime. In fact, while the shift to constitutions as a hierarchically 'higher' form of positive law was a revolutionary change, it also drew upon old liberties. The American constitutional discourse, which was itself heavily influenced by British common law, in turn served as an inspiration for a variety of constitutional experiments - from the French Revolution to Napoleon's downfall, in the halls of the Frankfurt Assembly, on the road to a unified Italy, and in the later theoretical discourse of twentieth-century Austria. If the constitution states the legal rules for the law-making process, then its Kelsian primacy is mandatory. Also included in this volume are the French originals and English translations of two vital documents. The first - Emmanuel Joseph Sieyès' Du Jury Constitutionnaire (1795) - highlights an early attempt to reconcile the democratic values of the French Revolution with the pragmatic need to legally protect the Revolution. The second - the 1812 draft of the Constitution of the Kingdom of Poland - presents the 'constitutional propaganda' of the Russian Tsar Alexander I to bargain for the support of the Lithuanian and Polish nobility. These documents open new avenues of research into Europe's constitutional history: one replete with diverse contexts and national experiences, but above all an overarching motif of constitutional decisiveness that served to complete the juridification of sovereignty. (www.reconfort.eu). (shrink)

Kant’s philosophy is often treated as a closed system, without reference to how it was written or how Kant arrived at its familiar form, the critique. In fact, the style of the critique seems so artless that readers think of it as an unfortunate by-product—a style of stylelessness. In _Constituting Critique_, Willi Goetschel shows how this apparent gracelessness was deliberately achieved by Kant through a series of writing experiments. By providing an account of the process that culminated in his (...) three _Critiques_, this book offers a new perspective on Kant’s philosophical thought and practice. _Constituting Critique_ traces the stages in Kant’s development to reveal how he redefined philosophy as a critical task. Following the philosopher through the experiments of his early essays, Goetschel demonstrates how Kant tests, challenges, and transforms the philosophical essay in his pursuit of a new self-reflective literary genre. From these experiments, critique emerges as the philosophical form for the critical project of the Enlightenment. The imperatives of its transcendental style, Goetschel contends, not only constitute and inform the critical moment of Kant’s philosophical praxis, but also have an enduring place in post-Kantian philosophy and literature. By situating the _Critiques_ within the context of Kant’s early essays, this work will redirect the attention of Kant scholars to the origins of their form. It will also encourage contemporary critical theorists to reconsider their own practice through an engagement with its source in Kant. (shrink)

This volume constitutes the first collection of essays exploring the implications of process philosophy for social thought. Process philosophy is a product of the twentieth century, but its Platonic roots relate it to one of the prime initiators of Western philosophical thinking. Alfred North Whitehead originated the style of thinking that subsequently has been termed "process philosophy.".

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

In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and (...) review can be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges. (shrink)

Depending on how people respond to it, a constitution can cause suffering on a vast scale or lay the foundation for a nation’s liberty, prosperity, and equality. As currently practiced, constitutional theory and interpretation especially concern the meaning, history, and philosophy of constitutional texts. These approaches cannot predict the responses of people to constitutions. Constitutional consequentialism, which I advocate, is a research program that aims to predict the effect of alternative forms and interpretations of constitutions on policy (...) values, especially liberty, prosperity, and equality. This paper discusses two constitutional processes. “Median democracy,” which empowers the median voter, is implemented by referenda and ballot initiatives, special districts, and winner-take-all elections. “Bargain democracy,” which lubricates bargaining among factions and regions, is implemented by legislatures, comprehensive governments, and proportional representation. I show that median democracy causes stability, whereas bargain democracy ideally causes efficiency and often causes corruption or instability. (shrink)

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

After the emergence of a popular resistance movement to direct rule by an absolutist monarchy, and several years of civil war, King Gyanendra of Nepal yielded power to an elected Congress in 2006. Within one year, Nepali citizens saw the signing of a Comprehensive Peace Accord, the establishment of a Constituent Assembly, the declaration of the Nepali state, and the declaration of the Nepali Republic a year after that. An Interim Constitution was adopted by 2007, which endowed the Constituent Assembly (...) with the authority to draft Nepal’s permanent Constitution, and established the limitations under which the Assembly must operate — all apparently legitimate steps in establishing a Constitutional order. What initially appeared to adhere to an established model of post-sovereign constitution-making failed in its first attempt. Indeed, the drafting and ratification of a permanent constitution is no easy task. Why did the first Constituent Assembly fail? Where did the constitution-making process divert from the post-sovereign model, and what caused it? I examine the process from the establishment of Nepal’s first Constituent Assembly to the short-lived deliberations of the Assembly, followed by the dissolution of the Assembly for failing to achieve its mandate. I also trace Nepal’s constitution-making process along the post-sovereign model, and assess whether they adhered to or diverted from the model. It is understood that no political models are fixed in the sense that adherence or divergence is necessarily incompatible with success or failure. However, I use Andrew Arato’s post-sovereign model as a guide for identifying the stages in the constitution-making process, and for a background to the discussion on where the first Assembly failed. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of (...) law, democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

A central question in online human sentence comprehension is, “How are linguistic relations established between different parts of a sentence?” Previous work has shown that this dependency resolution process can be computationally expensive, but the underlying reasons for this are still unclear. This article argues that dependency resolution is mediated by cue‐based retrieval, constrained by independently motivated working memory principles defined in a cognitive architecture. To demonstrate this, this article investigates an unusual instance of dependency resolution, the processing of (...) negative and positive polarity items, and confirms a surprising prediction of the cue‐based retrieval model: Partial‐cue matches—which constitute a kind of similarity‐based interference—can give rise to the intrusion of ungrammatical retrieval candidates, leading to both processing slow‐downs and even errors of judgment that take the form of illusions of grammaticality in patently ungrammatical structures. A notable achievement is that good quantitative fits are achieved without adjusting the key model parameters. (shrink)

In this paper we outline a theory of normative functionality aimed at understanding the nature of adaptive systems as globally structured, integrated systems. More specifically, the account is concerned with understanding the process relations constitutive of such systems. The explanatory agenda of this approach includes the following questions.

Due Process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this major new book, the author of the widely admired Discretionary Powers offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as (...) Ridge v. Baldwin the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not yet developed an approach which is entirely adequate to the task. In this timely book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution. Original, scholarly and thought-provoking, this major new study will be required reading for lawyers with interests in public law, civil and criminal procedure, civil liberties, legal theory and comparative law. (shrink)

The meaning of an expression resides not in the expression itself but in the experience of a person’s engagement with it. Meaning will be different not only to different people but also to the same person at different times. This book offers a way of attending to these different meanings. This way is a version of a trans-cultural activity that Richard Dawson calls attunement. The activity of attunement involves a movement of self-adjustment to a language, which a person transforms in (...) her or his use of it. Consciously performing the activity can enable understanding of the processes by which we constitute ourselves and others when we use a language. This directly connects to the topic justice, which is concerned with constituting appropriate selves and relations. Justice as Attunement engages with a wide range of texts – legal, literary, economic, philosophical, among others – and illuminates many useful and fascinating connections between them. There is a sense in which this book transcends disciplinary boundaries, for, in addition to students and scholars of law, literature, economics, and philosophy, it is written to a general reader who is interested in reflecting on and doing justice to their experiences in life. (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)

What remains as an ongoing project, Weeks contends, is creating a theory of the constitution of subjects to account for the processes of social construction. This book presents one such account.

This paper examines classification practices in the domain of plant data semantics, and particularly methods used to label plant traits to foster the collection, management, linkage and analysis of data about crops across locations—which crucially inform research and interventions on plants and agriculture. The efforts required to share data place in sharp relief the forms of diversity characterizing the systems used to capture the biological and environmental characteristics of plant variants: particularly the biological, cultural, scientific and semantic diversity affecting the (...) identification and description of plant traits, the methods used to generate and process data, and the goals and skills of those with relevant expertise—including farmers and breeders. Through a study of the Crop Ontology (which explicitly recognizes and negotiates diversity) and its application to cassava breeding, I argue for a process-sensitive approach to the naming of plant traits that focuses on documenting environmental processes instead of biological products. I claim that this approach can foster reliable linkage and robust re-use of plant data, while at the same time facilitating dialogue between data scientists, plant researchers, breeders, and other relevant experts in ways that crucially inform agricultural interventions. I conclude that the study of data semantics and related descriptors constitutes a productive and underexplored way to think about the epistemic import of naming traits within plant science. The effort to articulate semantic differences among plant varieties and methods of data processing can generate newly inclusive ways to develop and communicate biological knowledge. In turn, such practices have the potential to defy existing understandings of systematisation and hierarchies of expertise in biology, thus bolstering the extent to which plant science can support biodiversity and sustainable agriculture. (shrink)

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

Inter-level mechanistic explanations in the sciences have long been a focus of philosophical interest, but attention has recently turned to the compositional character of these explanations which work by explaining higher level entities, whether processes, individuals or properties, using the lower level entities they take to compose them. However, we still have no theoretical account of the constitution or parthood relations between individuals deployed in such explanations, nor any accounts of multiple constitution. My primary focus in this paper is to (...) outline a positive account of the constitution/part-whole relations between individuals posited in inter-level mechanistic explanations that takes constituents in the sciences to be ‘working parts’. Using this account, I then go on to illuminate the nature, and varieties, of multiple constitution that we find in the sciences and provide a starting theoretical framework for multiple constitution as well. (shrink)

Previous research has consistently highlighted the importance of stakeholder engagement in identifying and developing solutions to ethical challenges in genomic research, especially in Africa where such research is relatively new. In this paper, we examine what constitutes good ethical practice in research, from the perspectives of genomic research participants in Uganda. Our study was part of a multi-site qualitative study exploring these issues in Uganda, Ghana and Zambia. We purposively sampled various stakeholders including genomic research participants, researchers, research ethics committee (...) members, policy makers and community members. This paper presents the findings from in-depth interviews with 27 people with diabetes who had participated in a diabetes genomic study. Data were collected using semi-structured interviews. Manual thematic content analysis was conducted using a framework approach. Findings indicate three key requirements that research participants see as vital for genomic research to be more responsive to research participants’ needs and contextual realities: de-emphasising the role of experts and institutions in the consenting process, clarity about the timing and nature of feedback both of findings relevant to the health of individuals and about the broad progress of the study, and more effective support for research participants during and after the study. (shrink)

The constitutions of the decolonized new nations were marked by the process of the devolution of power. This process had an impact on the agenda setting and arena setting embedded in these constitutions. ‘Agenda’ refers to the conduct of political affairs and ‘arena’ to the delimitation of the powers of Parliament, the design of constituencies, etc. As a special feature, federalism was introduced by several constitutions. It emerged as a device for the gradual devolution of power. In some (...) instances it proved to be a permanent asset (India), in others it was contested (Nigeria) or rejected (Rhodesia). None of the new constitutions contained adequate provisions for the civilian control of the armed forces. The armed forces were simply taken for granted and their potential political role disregarded. But in many new nations political power was soon usurped by the armed forces and constitutional government was suspended. (shrink)

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

Open peer commentary on the target article “From Objects to Processes: A Proposal to Rewrite Radical Constructivism” by Siegfried J. Schmidt. Upshot: We largely agree with Siegfried J. Schmidt’s focus on process and his call to look at how the “heavy words” of philosophy – “reality,” “knowledge,” “truth,” and like – are used in our everyday life-world. As communication researchers, we examine two transcripts of conversation to sketch empirically how “the real” is reported in giving directions or used in (...) an account to undermine another’s blame narrative. By this discursive turn we attempt to let the ontological wind of out such terms as “real” and look at its indexical situated uses and how it works in constituting our life-world. (shrink)

This article considers the major constitutional reforms which have taken place in the United Kingdom during the period of government by the Labour Party, 1997-2010. Within the context of the UK’s unwritten constitution, the article first considers how ‘constitutional’ law can be identified when compared with a written constitution, such as that of the Republic of Lithuania. The article then analyses the major reforms which have taken place since 1997, the political reasons behind them, the processes of reform (...) and their impact on the constitution. The four areas examined—reform of the House of Lords; the enactment of the Human Rights Act 1998; devolution; and the changes to the judiciary in the Constitutional Reform Act 2005—have all had a significant impact on the way in which the UK is governed. The article argues that these are all welcome developments, but that in many cases they are incomplete. In the absence of the likelihood of a future written constitution for the UK, sustained efforts by future governments are needed by to ensure that the reforms fulfil their aim of modernizing the democratic system. (shrink)

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

Ernst-Wolfgang Böckenförde is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court, Böckenförde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges (...) of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Böckenförde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Böckenförde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on the political theory of the state; constitutional theory; constitutional norms and fundamental rights; and the relation between state, citizenship, and political autonomy. Each of these four cornerstones of Böckenförde's legal and political thinking features introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy. (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)

This paper targets the constitutive basis of social cognition. It begins by describing the traditional and still dominant cognitivist view. Cognitivism assumes internalism about the realisers of social cognition; thus, the embodied and embedded elements of intersubjective engagement are ruled out from playing anything but a basic causal role in an account of social cognition. It then goes on to advance and clarify an alternative to the cognitivist view; namely, an enactive account of social cognition. It does so first by (...) articulating a diachronic constitutive account for how embodied engagement can play a constitutive role in social cognition. It then proceeds to consider an objection; the causal-constitutive fallacy (Adams & Aizawa 2001, 2008; Block 2005) against enactive social cognition. The paper proceeds to deflate this objection by establishing that the distinction between constitution and causation is not co-extensive with the distinction between internal constitutive elements and external causal elements. It is then shown that there is a different reason for thinking that an enactive account of social cognition is problematic. We call this objection the ‘poverty of the interactional stimulus argument’. This objection turns on the role and characteristics of anticipation in enactive social cognition. It argues that anticipatory processes are mediated by an internally realised model or tacit theory (Carruthers 2015; Seth 2015). The final part of this paper dissolves this objection by arguing that it is possible to cast anticipatory processes as orchestrated as well as maintained by sensorimotor couplings between individuals in face-to-face interaction. (shrink)

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

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

Este texto reflete sobre possibilidades de educação estética na universidade como necessidade premente à formação inicial de docentes, mais especificamente de pedagogos, no sentido da ampliação e do aperfeiçoamento de sua percepção estética, aliadas ao desenvolvimento de uma postura atenta aos contextos sócio-históricos vivenciados. Nessa direção, problematiza sobre quais dispositivos pedagógicos podem ser acionadores de impulsos lúdicos na formação de docentes, sob a luz das concepções de Schiller. Dentre outras contribuições teóricas, o texto cita ainda Freire, que tece importantes considerações (...) sobre as relações entre estética e ética na formação de professores, e que, a nosso ver, o aproxima das ideias de Schiller; Snyders, que trata do espaço universitário como locus privilegiado para se gerar a alegria cultural, energia necessária à aprendizagem diversificada e enriquecedora do repertório científico-cultural dos estudantes; Moraes e Therrien que refletem sobre a necessidade de ampliação do repertório cultural dos docentes; e Moura que aponta à maleabilidade pedagógica do professor como exigência de um perfil flexível e complexo. O trabalho constitui um estudo bibliográfico imerso no campo da filosofia da educação, guiado, entretanto, por reflexões amparadas em experimentações estético-pedagógicas vivenciadas, em processos de formação inicial docente, no âmbito de uma universidade pública estadual brasileira. Com o estudo, infere-se que à universidade cabe o papel decisivo de garantir e estimular o acesso a experiências estéticas que tanto ampliem o repertório artístico-cultural de estudantes como também neles favoreça a criação de impulsos lúdicos, tornando-os mais perceptivos e criativos, sendo que isso se materializará por meio de proposições curriculares de cada curso, aliadas às condições estruturais concretas dessa universidade. Palavras-chave: Educação estética. Impulsos lúdicos. Universidade. Formação de docentes. Pedagogia. (shrink)