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

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)

Identity and democracy and, more particularly, national identity and deliberative democracy account for a controversial relationship. However, from a classical deliberative democratic point of view, the controversy over who is the ‘we’ that needs to stand together in contemporary complex societies settled with the constitution of modern states. In this sense, the main contribution of this paper is twofold. On the one hand, I rebut the analytical appropriateness and conceptual coherence of Habermas’ discursive approach to democracy for the case of (...) plurinational societies in contemporary constitutional democracies. A discussion of a test case – Catalonia – demonstrates that this inadequacy renders incoherent the deliberative model regarding one of its most fundamental premises: the equal weight of the principles of law and the principle of democracy. On the other hand, I sustain that the challenge is not about identity but democracy, and more particularly, about the role deliberative democracy is called to play when controversy challenges whether the people of a state do conform to a single people or not. More concretely, I explore the opportunities offered by the systemic turn to sustain a more realistic approach to deliberative democracy regarding its capacity to steer society towards integration in the context of the system of public deliberation. (shrink)

The article focuses on the problem of constitutional symbolism in functionally differentiated societies and its relevance to legal, political, and moral systems. The first part analyses differences between the three systems and their constitutional context. The second part concentrates on the moral symbolic function of modern constitutions and its temporal dimension. It shows that the “good/bad” moral code of constitutions draws on expressive symbolism and transforms it into evaluative symbolism and dogma of morality. The final part analyses the (...) prospective character of modern constitution‐making and its symbolic selectivity regarding the past. The paper concludes by emphasising the systemic pluralisation effect of constitution‐making and the impossibility of constituting systems of “pure” law, morality, and politics. (shrink)

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

A bold new approach to combatting the inherent corruption of representative democracy This provocative book reveals how the majority of modern liberal democracies have become increasingly oligarchic, suffering from a form of structural political decay first conceptualized by ancient philosophers. Systemic Corruption argues that the problem cannot be blamed on the actions of corrupt politicians but is built into the very fabric of our representative systems. Camila Vergara provides a compelling and original genealogy of political corruption from ancient to modern (...) thought, and shows how representative democracy was designed to protect the interests of the already rich and powerful to the detriment of the majority. Unable to contain the unrelenting force of oligarchy, especially after experimenting with neoliberal policies, most democracies have been corrupted into oligarchic democracies. Vergara explains how to reverse this corrupting trajectory by establishing a new counterpower strong enough to control the ruling elites. Building on the anti-oligarchic institutional innovations proposed by plebeian philosophers, she rethinks the republic as a mixed order in which popular power is institutionalized to check the power of oligarchy. Vergara demonstrates how a plebeian republic would establish a network of local assemblies with the power to push for reform from the grassroots, independent of political parties and representative government. Drawing on neglected insights from Niccolò Machiavelli, Nicolas de Condorcet, Rosa Luxemburg, and Hannah Arendt, Systemic Corruption proposes to reverse the decay of democracy with the establishment of anti-oligarchic institutions through which common people can collectively resist the domination of the few. (shrink)

The Constitution is considered as an informal axiomatic system. The strategy proposed by the authors rests on the following propositions: axioms are considered as contextual definitions of those concepts by means of which they are formulated; and the main requirement for this type of system is internal consistency. The first proposition is necessary for considering the Constitution as an informal axiomatic system, while the second is sufficient, because the approach proposed, apart from consistency, must certainly consider the (...) requirements for formal axiomatic systems, such as independence and completeness. The authors argue that the Constitution can be compared to axiomatic constructions in modern science in the sense that is given in the research on the logic and methodology of deductive sciences. This analogy is appropriate to the extent to which constitutional provisions are interpreted as the basic elements of the legal system, just as in the formal sciences axioms are regarded as basic principles that define the main features of the formal system. This means that the Constitution itself is seen as coherent, consistent discourse that contextually defines the meaning of the basic terms of the legal system. (shrink)

The paper focuses on the constitutional foundations of the finance system of the Republic of Lithuania. Constitutional jurisprudence pays due respect to the issues of budget system, and to interpret and analyse tax problems. The main purpose of this paper is to analyse separate institutes of the financial system of Lithuania, reflected in the main law of the country – the Constitution, and how these norms are interpreted in the constitutional doctrine. Notably, although the (...) main analysed provisions are entrenched in the Chapter XI “Finances and state budget,” the paper is not restricted only on the analysis of these norms, but also provides a complex analysis of other connected norms and their interpretation in the constitutional jurisprudence. (shrink)

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

Against the concept that objects are defined by their self-contained essence – “thing-in-themselves” – Husserl and Foucault claim they are defined by intersubjectivity or social institutions. I argue that biological and even physical (complex) systems can constitute the unity and meaning of objects.

In this article I will address the critical question of the constitution of global systems and the part played in such processes by what is often summarized as culture. I examine the important distinction between culture and globalization and culture as constitutive of global social relations. The need to cleave to a systemic treatment of globality is put, while noting the dangers that lie in one-dimensional accounts of global system constitution. To offset any such tendency I explore the constitution (...) of global systemness from a structurationist perspective. I outline the nature and significance of culture in the study of global systems, drawing attention to different literatures. Finally I underscore the importance of the cultural turn in the study of global systems and what has to be done to take full advantage of it.In what follows I will address the critical question of the constitution of global systems and the part played in such processes by what is conveniently – if sometimes unhelpfully – summarized as “culture”. By global systems I mean networks of interaction and meaning that transcend both societal and national frames of reference. I want to shift the emphasis away from an under-theorized focus on cultural globalization to a consideration of global systems as enacted in part through cultural processes. In other words, I do not want to conflate the conjunctional features of contemporary (cultural) globalization with culture as the realm of lived experience integral to the enactment of all social-systemic relations. In some respects this approach may be seen as part of a shift – perhaps a paradigm shift – in how we understand the space of the social, and in how, or whether, we construe the global as the constitutive of all social relations (Beck 2003; Shaw 2003). I will begin with a mild polemic against a well-known systemic account of world-making forces that highlights some of these issues. (shrink)

Cultural evolution, the propagation and transfer of ideas from generation to generation, as well as from one person to another and from one culture to another, is much faster than normal, genetic evolution. This could account for the speedy proliferation of humankind on this planet, at the expense of other life forms.

This article examines a fundamental theoretical aspect of the discourse on ‘intersectionality’ in feminist and anti-racist social theory, namely, the question whether intersecting social divisions including those of sex, gender, race, class and sexuality are interacting but independent entities with autonomous ontological bases or whether they are different dimensions of the same social system that lack separate social ontologies and constitute each other. Based on a historical reconstruction of its genesis, the article frames this as a dispute between (...) class='Hi'>system-theoretical and dialectical, ‘Critical Theory’-related approaches and argues that the latter better capture the dynamics of contemporary society, including the perspective of its transcendence. (shrink)

The constitutional system of the Czech Republic, which is established on the principles of a parliamentary form of government, takes into account the possibility of dissolving the Chamber of Deputies of the Parliament of the Czech Republic. The Chamber of Deputies is a chamber to which the government is accountable and this is the chamber in which the major part of the authority of Parliament is concentrated. Parliamentary systems have been also structured according to whether a certain amount (...) of balance of power is preserved between parliament and the government. A typical characteristic of every parliamentary form of government is the possibility for a vote of confidence in the government by parliament, meaning a dependency of the government on the will of parliament. Some parliamentary systems counterbalance this relationship with a greater or lesser possibility for the government of dissolving that chamber of parliament, which votes confidence in it. This makes it possible for the government to be able to more significantly fulfil the role of political leader in a given country and it can actively initiate and form a political state. (shrink)

This research examines the legal recognition of customary land in Indonesia, reflecting the complexity of the relationship between indigenous communities and the state in managing natural resources within the framework of agrarian legal politics. Legal uncertainty and weak implementation mechanisms affect the recognition of customary land, despite the Constitutional Court Decision No. 35 of 2012 providing a strong legal foundation. Using a qualitative approach, this study analyzes primary and secondary data and conducts in-depth interviews with indigenous communities and legal (...) experts. The findings reveal that despite legal recognition, its implementation on the ground still faces challenges, such as the confiscation of customary land without fair compensation and limited access of indigenous communities to natural resources. Moreover, the involvement of indigenous communities in participatory mapping has proven effective in strengthening customary land claims. This research implies the need to strengthen legal protection mechanisms and increase the involvement of indigenous communities in the recognition and decision-making processes concerning customary land within the broader context of agrarian legal politics in Indonesia. (shrink)

이 글은 현대한국철학의 역사를 정립하기 위한 예비적 시도다. 이 시도는 우선 최근 정 치적 주체로 급부상한 '페미니즘 주체'의 탈역사적 성격, 즉 선험적 통일성을 담지하지 않 는 역사 이후의 주체로서의 성격을 적극 참조한다. 이른바 칸트가 개진했던 '이성의 역사'라고 하는 이성의 자기발전에 대한 역사적 성찰에 대해 이 탈역사적 주체는 그 뿌리에서부 터 문제제기를 하고 있다. 다시 말해 현대한국철학사 역시 서양철학사와 동일하게 '철학적 문제는 어떻게 발생하는가'(철학의 체계)와 '이 문제를 정식화하기 위한 개념들의 역사적 발생(철학사)', 이 양자의 이율배반적 관계에 직면할 수밖에 없다. 현대한국철학을 규정하기 위해 (...) 우선 푸코를 따라 현대철학은 '계몽'의 문제인 동시에, 서양의 보편적, 계몽적 주체에 대해 유대인이 갖는 역사적 특수성에 유비적으로 한국의 계몽적 주체 또한 계몽의 반대항으로 역사적 경험으로서의 파국 의 축을 노정한다. 서구라는 타자에 의한 자기상실과 절망으로서의 파국 그리고 타자의 보편적 계몽주의를 번역하고 전유하려는 집단적 시도 로서의 계몽. 이 양축은 타자의 침입에 대한 민중의 '봉기'의 축과 이것을 헌법의 이념으 로 정립하는 '헌정'의 축(3ㆍ1운동 등)과 교차한다. 그렇다면 '누가 철학자인가?'라는 철학 자의 정체성과 관련한 문제에 대하여 우리는 철학이 철학자의 삶의 방식과 분리될 수 없고 도리어 철학의 성격을 규정한다고 주장한다. 그러면서 모방이 가능한 철학자의 사회적, 집단적 인격을 페르소나 라고 정의하고 이 페르소나에 바탕을 두고 자기를 형성하는 '아스케시스'가 철학자의 정체성을 규정하는 근거가 된다고도 주장할 것이다. 이 네 개의 축(계몽, 파국, 봉기, 헌정)과 두 개의 근거(페르소나, 아스케시스)는 현대한국철학의 역사를 쓰기 위한 개념적 도구들이 될 것이다. (shrink)

New Zealand is a South Pacific nation with a history of British colonization since the 19th century. It has a population of over four million people and, like other indigenous societies such as in Australia and Canada, Māori are now a minority in their land, and their experience of colonization is that of being dominated by settlers to the detriment of their own systems of society.

The possibility of group minds or group mental states has been considered by a number of authors addressing issues in social epistemology and related areas (Goldman 2004, Pettit 2003, Gilbert 2004, Hutchins 1995). An appeal to group minds might, in the end, do indispensable explanatory work in the social or cognitive sciences. I am skeptical, though, and this essay lays out some of the reasons for my skepticism. The concerns raised herein constitute challenges to the advocates of group minds (or (...) group mental states), challenges that might be overcome as theoretical and empirical work proceeds. Nevertheless, these hurdles are, I think, genuine and substantive, so much so that my tentative conclusion will not be optimistic. If a group mind is supposed to be a single mental system having two or more minds as proper parts,¹ the prospects for group minds seem dim. (shrink)

The concentration of socio-economic power and social inequality are characteristic features of contemporary society. Not the least, they tend to undermine democratic legislation: Democratic constit...

The ‘causal-constitution’ fallacy, the ‘cognitive bloat’ worry, and the persisting theoretical confusion about the fundamental difference between the hypotheses of embedded (HEMC) and extended (HEC) cognition are three interrelated worries, whose common point—and the problem they accentuate—is the lack of a principled criterion of constitution. Attempting to address the ‘causal-constitution’ fallacy, mathematically oriented philosophers of mind have previously suggested that the presence of non-linear relations between the inner and the outer contributions is sufficient for cognitive extension. The abstract idea of (...) non-linearity, however, can be easily misunderstood and has, in the past, led to incorrect and counterintuitive conclusions about what may count as part of one’s overall cognitive system. In order to prevent any further mistakes I revisit dynamical systems theory to study the nature of the continuous mutual interactions that give rise to the aforementioned non-linear relations. Moreover, focusing on these interactions will allow us to provide two distinct arguments in support of the ontological postulation of extended cognitive systems, as well as an objective criterion of constitution. Accordingly, I put forward a version of HEC that treats continuous mutual interactions (and the resultant non-linear relations) not just as sufficient but also as necessary for cognitive extension. Such a qualified version of HEC may exclude certain alleged cases of cognitive extension where the agent does not mutually interact with his artifacts (e.g., shopping lists and directory services), but it is immune both to the ‘causal-constitution’ fallacy and the ‘cognitive bloat’ worry, and it can be sharply distinguished from HEMC. (shrink)

In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of (...) the basis of constitutional democracy. This article will examine the debate between the Kelsenian and the natural law view of constitutional democracy. The debate raises questions of foundational importance, and a number of issues are of particular concern in the present global context. These issues concern the role of moral pluralism and its relevance to the structure of constitutional democracy, and the relationship between universal values and the common good of particular communities. (shrink)

Plato and Kant advance a constitutional model of the soul, in which reason and appetite or passion have different structural and functional roles in the generation of motivation, as opposed to the familiar Combat Model in which they are portrayed as independent sources of motivation struggling for control. In terms of the constitutional model we may explain what makes an action different from an event. What makes an action attributable to a person, and therefore what makes it an (...) action, is that it issues from the person''s constitution, and therefore from the person as a whole, rather than from some force working on or in the person. This in turn implies an account of what makes an action good: what makes an action good is that it is deliberated upon and chosen in a way that unifies the person into a constitutional system. Through deliberative action we constitute ourselves as unified agents. Platonic justice and Kant''s categorical imperative are shown to be normative standards for action because they are principles of self-constitution. (shrink)

While analysing constitutions of various countries in the legal literature, usually not only the form and the content but also the structure of the constitution is discussed. The structure of the constitution is an internal organisational order of the norms of the constitution. Although every state has a unique structure of their constitution, however, certain regularities can be discerned. The analysis of the structure of various constitutions leads to a conclusion that normally each constitution consists of the following standard structural (...) parts: the preamble, the main part, the final, transitional or additional provisions, in some constitutions there can also be annexes. The article ascertains that most of the constitutions begin with the introductory part, the preamble. Only the constitutions of several countries (e.g. Norway, the Netherlands, Belgium, Italy, Greece) contain no preamble. After analysing the preambles of the Lithuanian Constitutions adopted in 1918-1940, the Lithuanian Constitution of 1992, the Constitution of the United States of America of 1787, the Constitution of Federal Republic of Germany of 1949, and the constitutions of several Central and Eastern European countries (the Constitution of the Republic of Estonia of 1992, the Constitution of Czech Republic of 1992 and the Constitution of the Republic of Poland of 1997) it is stated that a preamble is considered as an inseparable part of an official text of a constitution. The preamble reflects the historical context and the circumstances of the adoption of a constitution, names the goals of the constitutional regulation, fortifies the values to be attained, declares the key political principles or even the fundamental human rights and freedoms, etc. Often the preamble reveals the methods of adoption of a constitution. The preamble is an important structural part of the constitution that helps to understand the established constitutional regulation. The principles enshrined in it can be considered as significant argument for the constitutional justice institutions while solving the case of whether the law or any other legal act in question contradicts with the constitution. While interpreting and applying the constitution as a single act, its separate sections, clauses or certain provisions it is necessary to take the content of the preamble into account, since no text of the constitution shall be interpreted in a way to contradict the statements of the preamble and its spirit. The preamble is not only a category of a political, ideological or philosophical nature, it undoubtedly has the legal burden, therefore it is considered to have legal validity. Constitutions usually do not contain any particular preamble amendment procedures. The preambles are characterised to have the so-called higher style; they are usually formulated not in compliance with the requirements of legal technique. Therefore, they differ from other constitutional provisions that are usually set out in official writing style according to certain rules of legal technique. (shrink)

Is freedom of research protected at the constitutional level? No obvious answer can be given to this question, as European and Northern American constitutional systems are not unequivocal and the topic has not been discussed deeply enough.Looking at the constitutions of some European and Northern American countries, it is possible to immediately note that there are essentially two ways to deal with freedom of scientific research. On the one hand, in Canada and in the US, constitutions have no (...) specific provisions to protect freedom of scientific research, with the result that such freedom ends up having to be protected as a specific aspect of the wider freedom of thought and expression . On the other hand, other countries’ constitutional systems, mainly European ones, expressly recognise freedom of research and teaching arts and science. For instance, article 5 of the German Constitution states that “Art and science, research and teaching are free”, article 33 of the Italian Constitution1i establishes that “The arts and sciences as well as their teaching are free” and article 59 of the Slovenian Constitution states that “Freedom of scientific research and artistic endeavor shall be guaranteed”.Within this second group, some constitutions limit their protection to the provision of freedom of scientific research, whereas other fundamental laws engage governments in promoting and supporting it. For example, the Italian Constitution, which states that “The Republic promotes cultural development and scientific and technical research” , the Spanish Constitution, according to which “public authorities shall promote science and scientific and technical research for the benefit of general interest” and, also, the Greek Constitution, whose article 16 establishes that art, science, research and their teaching are free, and their promotion is mandatory for the State.2 It …. (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)

(1991). It happens by itself: The Tao of cooperation, systems theory, and constitutive hermeneutics. World Futures: Vol. 31, Cooperation: Toward a Post-Modern Ethic, pp. 139-160.

Systems Theory and Scientific Philosophy constitutes a totally new approach to philosophy, the philosophy of mind and the problems of artificial intelligence, and is based upon the pioneering work in cybernetics of W. Ross Ashby. While science is humanity's attempt to know how the world works and philosophy its attempt to know why, scientific philosophy is the application of scientific techniques to questions of philosophy.

The notion of cognitive system is widely used in explanations in cognitive psychology and neuroscience. Traditional approaches define cognitive systems in an agent-relative way, that is, via top-down functional decomposition that assumes a cognitive agent as starting point. The extended cognition movement challenged that approach by questioning the primacy of the notion of cognitive agent. In response, [Adams, F., and K. Aizawa. 2001. The Bounds of Cognition. Oxford, UK: Wiley-Blackwell.] suggested that to have a clear understanding of what a (...) cognitive system is we may need to solve “the demarcation challenge”: the problem of identifying a reliable way to determine which mechanisms that are causally responsible for the production of a certain cognitive process constitute a cognitive system responsible for such process and which ones do not. Recently, [Rupert, R. 2009. Cognitive Systems and the Extended Mind. Oxford: Oxford University Press.] offered a solution based on the idea that the mechanisms that constitute a cognitive system are integrated in a particular sense. In this paper I critically review Rupert’s solution and argue against it. Additionally, I argue that a successful account of cognitive system must accommodate the fact that the neural mechanisms causally responsible for the production of a cognitive process are diachronically dynamic and yet functionally stable. At the end, I offer a suggestion as to how to accommodate this diachronic dynamicity without losing functional stability. I conclude by drawing some implications for the discussion on cognitive ontologies. (shrink)

New prospects for mankind in searching for and developing new sources of energy, arms race, overcrowding and ecological crises present the human with a serious choice. The choice may relate to the further existence of people on Earth. In the context of most challenging political, economic and social crises, the tandem of natural and human sciences produces unexpected results, despite the crises accompanying these processes. This article presents a model of the society and a model of the human in the (...) systemic parametrical aspect. The human is considered as part of the “society” system. The research suggests applying the systems parametric method developed by Prof. A. Uyemov in the 1960s. Humanity creates increasingly frequent bifurcation conditions for human life. As an adaptive mechanism, the human has to develop survival strategies and well-being strategies. The paper presents some aspects of the adaptive mechanisms of the 21st century man. It also considers some threats arising out of environmental variability. Cyborgization is one of such threats. The research includes dual system modelling of the “society” system based on the complementarity principle. It shows that there are two definitions which have different concepts, structures and substrates but constitute the entirety of the object of interest. (shrink)

Probably written by a student of Aristotle, The Athenian Constitution is both a history and an analysis of Athens' political machinery between the seventh and fourth centuries BC, which stands as a model of democracy at a time when city-states lived under differing kinds of government. The writer recounts the major reforms of Solon, the rule of the tyrant Pisistratus and his sons, the emergence of the democracy in which power was shared by all free male citizens, and the leadership (...) of Pericles and the demagogues who followed him. He goes on to examine the city's administration in his own time - the council, the officials and the judicial system. For its information on Athens' development and how the democracy worked, The Athenian Constitution is an invaluable source of knowledge about the Athenian city-state. For more than seventy years, Penguin has been the leading publisher of classic literature in the English-speaking world. With more than 1,700 titles, Penguin Classics represents a global bookshelf of the best works throughout history and across genres and disciplines. Readers trust the series to provide authoritative texts enhanced by introductions and notes by distinguished scholars and contemporary authors, as well as up-to-date translations by award-winning translators. (shrink)

In his paper, “The Dorsal Stream and the Visual Horizon,” Michael Madary argues that “dorsal stream processing plays a main role in the spatiotemporal limits of visual perception, in what Husserl identified as the visual horizon” (Madary 2011, p. 424). Madary regards himself as thereby providing a theoretical framework “sensitive to basic Husserlian phenomenology” (Madary 2011). In particular, Madary draws connections between perceptual anticipations and the experience of the indeterminate spatial margins, on the one hand, and the Husserlian spatiotemporal visual (...) horizons, on the other. I argue that Madary’s arguments, for a Husserlian view of the two visual systems, are not convincing. When the notion of visual horizon is adequately understood as a constitutive notion, there will be reason to regard the connections between dorsal processing and the Husserlian spatiotemporal horizons as tenuous at best. (shrink)

Resumo O autor defende uma descrição normativa fraca do constitucionalismo internacional à luz de dois factos: a contínua relevância da soberania do Estado face à hegemonia de superpotências e a necessidade imperiosa de um regime supranacional eficaz de direitos humanos. Ao defender uma institucionalização constitucional de direitos humanos, que inclui aspectos de justiça processual e material, mostra-se que, como nos casos domésticos, tal institucionalização pode e, talvez deva, incorporar um procedimento de controlo judicial que ascende ao nível de controlo constitucional. (...) De facto, o parecer do Tribunal Europeu de Justiça no caso Kadi estabeleceu um possível precedente para o controlo do Conselho de Segurança no sentido do cumprimento dos direitos humanos e outras normas peremptórias. Dada a necessidade de perícia técnico legal para a elaboração de tal controlo, um caso prima facie pode ser feito para o estabelecimento de um Tribunal Constitucional especializado ao nível internacional. Contudo, dado o impacto desempenhado pelo poder político na resolução técnica da adjudicação de casos específicos e concretos, dentro de um sistema jurídico altamente fragmentado, e dado o facto de que o controlo constitucional também toca questões mais abstractas e menos técnicos de justiça social, o autor recomenda, que a função de controlo constitucional seja disseminada por várias instituições globais, incluindo a actual Assembleia Geral das Nações Unidas e na esfera pública global. O controlo constitucional pluricêntrico, bem como a institucionalização dos direitos humanos decorre do desacordo multicultural existente acerca do significado desses direitos e da ameaça da hegemonia de superpotências sobre as instituições globais. Assim antecipa-se também a realização de uma constitucionalização mais monista no Direito Internacional com o crescimento da solidariedade global entre os povos. Palavras-chave : Constitucionalização, Controlo Constitucional, Direitos Humanos, Habermas, Nações Unidades, Pluralismo LegalI defend a weakly normative description of international constitutionalism in light of two facts: the continued salience of state sovereignty in the face of superpower hegemony and the overriding need for an effective supranational human rights regime. In arguing for a constitutional institutionalization of human rights that includes aspects of procedural and substantive justice, I show that, as in the domestic case, such an institutionalization could and perhaps should incorporate a procedure for judicial review ascending to the level of constitutional review. In fact, the European Court of Justice’s review of the Kadi case establishes a possible precedent for reviewing Security Council compliance with human rights and other peremptory norms. Given the need for technical legal expertise in elaborating such review, a prima facie case can be made for establishing a specialized constitutional court at the international level. However, given the impact that political power plays in the technical resolution of concrete, case-specific adjudication within a highly fragmented legal system, and given the fact that constitutional review also touches on more abstract and less technical issues of social justice, I recommend that the function of constitutional review be dispersed in several global institutions, including the current United Nations General Assembly and a global public sphere. The pluralization of constitutional review and the accompanying interpretation and institutionalization of human rights recognizes existing multicultural disagreement on the meaning of human rights and the threat of superpower hegemony over global institutions while anticipating the realization of a more monistic constitutionalization of international law with the growth of global solidarity between peoples. Keywords : Constitutional Review, Constitutionalization, Habermas, Human Rights, Legal Pluralism, United Nations. (shrink)

Two narratives have emerged to describe recent health care reforms in the United States of America and the United Kingdom. One narrative speaks of revolution, that the adoptions of the Affordable Care Act 2010 in the US, and the Health and Social Care Act 2012 in the UK, have resulted in fundamental, large-scale philosophical, political and legal change in the jurisdictions’ respective health care systems. The other narrative evokes evolution, identifying each new legislative scheme as a natural development of existing (...) governance structures. Policymakers in both the US and UK face the problem of a health care system which, as traditionally envisaged, cannot offer universal access to health care at a reasonable, or politically acceptable, price. (shrink)

Ethologists and others studying animal behavior in a spirit are in need of a descriptive language and method that are neither anachronistically bound by behaviorist scruples nor prematurely committed to particular Just such an interim descriptive method can be found in intentional system theory. The use of intentional system theory is illustrated with the case of the apparently communicative behavior of vervet monkeys. A way of using the theory to generate data - including usable, testable data - is (...) sketched. The underlying assumptions of this approach can be seen to ally it directly with theorizing in evolutionary biology, which has recently come under attack from Stephen Gould and Richard Lewontin, who castigate it as the Their arguments, which are strongly analogous to B. F, Skinner's arguments against point to certain pitfalls that attend the careless exercise of such thinking (and rival varieties of thinking as well), but do not constitute a fundamental objection to either adaptationist theorizing or its cousin, intentional system theory. (shrink)

The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine (...) the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada. (shrink)

The Hybrid Constitution/Melez Anayasa defines the principles upon which a Hybrid Constitution between nature and technology is based. This is an artistic task, because nature and technology cannot inscribe their Magisteria as beings and rights inside a ‘Constitution’, but a beginning for a new utopic non-human-centred vision. The Hybrid Constitution is based on the assumption that best constitution is a mixed system, including human, nature, and low- and high-tech elements. This constitution distinguishes between human citizens, who had the right (...) to participate in the state, and non-citizens and Others, who had the right to be represented. The otherness. The Hybrid Constitution/Melez Anayasa is an artwork presented at the Amber Festival in Istanbul in 2011 and the argument of an essay published in the AUT AUT issue 361/2014 and titled La condizione postumana. (shrink)

Constitution d’un grand corpus d’écrits émergents et novices : principes et méthodes Cette contribution propose une réflexion sur la construction d’un vaste corpus d’écrits qui permet d’approfondir notre compréhension des processus en jeu dans l’accès à la littératie dans sa diversité, au travers de la pluralité des genres et des types discursifs qui la constituent et chez des apprenants de profils divers : enfants/adultes, langue 1 / langue 2, entendants/sourds. La réflexion sur la mise en place de ce corpus s’inscrit (...) dans une perspective fonctionnaliste et énonciative et fait fond sur deux ensembles théoriques complémentaires. Du point de vue de l’acquisition des langues, nous souscrivons à la conception selon laquelle les productions d’apprenants ne constituent pas une déviance par rapport à la norme mais sont des manifestations (idiolectales) de systèmes linguistiques per se dont il s’agit de dégager les normes propres. Du point de vue de la littératie, nous nous inscrivons dans la tradition des travaux, d’inspiration bakhtinienne, qui considèrent l’hétérogénéité comme constitutive de toute production verbale. Ainsi, nous expliquons et justifions nos choix en matière de profils d’apprenants et de tâches rédactionnelles, en relation avec la perspective théorique adoptée, ainsi que les options retenues en matière d’outillage du corpus. (shrink)