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

Liberal political thought has traditionally been hostile to the arbitrary power of rulers. It has, however, qualified this hostility through its promotion of what Locke calls ?prerogative?, the need for rulers to act in defence of the public good ? but on occasion outside the constraints of law. Liberal thought has tended to overlook the arbitrary powers of citizens and private organisations. This is due, first, to its commitment to individual liberty. But it is also due ?more (...) substantially ? to the belief that private agents and corporations, even when not constrained by law, are none the less subject to the non?legal sanctions and rewards imposed by the market and other aspects of civil society. Neo?liberalism is not rendered distinctive by its promotion of arbitrary power, since this has always featured in liberal government. Neo?liberalism is distinguished rather by its promotion of arbitrary powers across the full range of organs of governance ? from departments of government, through publicly and privately owned corporations, to ostensibly non?governmental bodies like charities, churches and so on. This advance in liberal promotion of arbitrary power has significant implications for the evolution of contemporary democracy. (shrink)

Arbitrary Rule is the first book to tackle political slavery’s discursive complexity, engaging Eurocolonialism, political philosophy, and literary studies, areas of study too often kept apart.

Following an Open conception of Divine Foreknowledge, that holds that man is endowed with genuine freedom and so the future is not definitely determined, it will be claimed that human freedom does not limit the divine power, but rather enhances it and presents us with a barrier against arbitrary use of that power. This reading will be implemented to reconcile a well-known quarrel between two important interpreters of Duns Scotus, Allan B. Wolter and Thomas Williams, each of (...) whom supports a different interpretation of the way God acts according to right reason. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on (...) Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

The current debate on why colonialism is wrong overlooks what is arguably the most discernible aspect of this particular historical injustice: its exreme violence. Through a critical analysis of the recent contributions by Lea Ypi, Margaret Moore and Laura Valentini, this article argues that the violence inflicted on the victims and survivors of colonialism reveals far more about the nature of this historical injustice than generally assumed. It is the arbitrary nature of the power relations between colonizers and (...) the colonized which is at the heart of the injustice of colonization, and violence was the way arbitrariness and domination was cemented. The example of colonialism in the Caribbean during the 16th and 17th centuries is used to expose the full extent of this historical injustice. (shrink)

The article considers what arbitrary law-making is and what may count as arbitrary law-making in the field of migration policy. It contributes to the discussion of arbitrary law-making in relation to migration policy in two ways. First, it offers an analysis of arbitrariness, pointing out that rhetorical definitions abound – perhaps not surprisingly, given that migration is a highly-contested policy area – and argues for why transposing a conception developed in ethical theory to the law has high (...) theoretical costs. An alternative conception is described and found to be better equipped to deal with arbitrary law-making in migration policy. It is argued that if we want to understand how arbitrariness plays out in the field of migration law – which is necessary to find ways to hinder its spread by the adoption of specific law-making practices – we first need to distinguish arbitrariness from legitimate choices of legislators. Secondly, a typology of forms of arbitrariness is fleshed out in relation to contemporary migration policy. The policy area is here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The examples are taken from a broad selection of countries. They have been chosen for illustrative purposes only. Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy. (shrink)

This article seeks to problematize Agamben’s interpretation of sovereignty in light of the “archaeological method” he uses in his Homo Sacer project. In contrast to Agamben’s exposition, which treats biopolitics as the original and ontological paradigm of Western politics, the essay discusses how, historically, sovereign power has been conceived as a “double body”—transcendent and immanent, sacred and sacrificial, absolute and perpetual—from whose tension conceptual and political metamorphoses of sovereignty arise. The first attribute of sovereignty—absoluteness, on which Agamben has often (...) focused—should be seen as an ordering and essentially modern function of its second “body”: the perpetuity of power. The article illustrates, then, how the retrospective projections through which the Italian philosopher constructs his ontological reading of sovereignty depend on some logical and epistemological lacunae that characterize his “archaeological method,” which is based, essentially, on an arbitrary use of historical analogies. (shrink)

It is shown that in ZF Martin's $ \aleph_{0}^{}$-axiom together with the axiom of countable choice for finite sets imply that arbitrary powers 2X of a 2-point discrete space are Baire; and that the latter property implies the following: the axiom of countable choice for finite sets, power sets of infinite sets are Dedekind-infinite, there are no amorphous sets, and weak forms of the Kinna-Wagner principle.

It is shown that in ZF Martin's -axiom together with the axiom of countable choice for finite sets imply that arbitrary powers 2X of a 2-point discrete space are Baire; and that the latter property implies the following: (a) the axiom of countable choice for finite sets, (b) power sets of infinite sets are Dedekind-infinite, (c) there are no amorphous sets, and (d) weak forms of the Kinna-Wagner principle.

While Montesquieu (1689–1755) is often regarded as the thinker who discovered the importance of fundamental principles such as the rule of law and the separation of powers, systematic research of his theory of the state is surprisingly limited. In this article, I argue that his masterpiece, The Spirit of the Laws (1748), points to a theory of the non-arbitrary state. Montesquieu’s comparative study of various governments demonstrates that modern liberty depends on the rule of law. Since many states have (...) laws but few of them guarantee liberty, he stressed that the rule of law requires the separation of the judicial from the legislative and executive powers. The constitution of an independent judicial branch separates the sphere of justice from the political sphere, which creates the basic structure of the non-arbitrary state. Depending on the distribution of power in either of the two spheres, non-arbitrary states can guarantee their citizens more or less liberty. The concept of the non-arbitrary state thus illuminates Montesquieu’s significance for the variety of political projects that emerged in the age of revolutions. (shrink)

The freedom theme has always been in the centre of life and philosophical and political discourse. Freedom is one of the magic words causing many positive emotions in everyday life. Certain social and philosophical studies highlight the ways of replacing traditional and, sometimes, spontaneous absolutization of human freedom at an empirical level of social consciousness. It lies in achieving desired results and being entitled to choose what to achieve. The difference between these “formulas” is obvious. In the second case, one (...) can observe one's acceptance of certain restrictions of freedom due to social reality and understanding that it can only be fully realized through self-restraint. However, one needs to come to such conclusions on one’s own. Practice shows that the categorical power of authorities in terms of citizens’ duties mostly leads to opposite results. Therefore, more than ever, it is essential to develop a permanent, well-developed, multi-level humanitarian programme for working with the population based on social and philosophical studies. The state needs to build the “net” of permanent special state-owned institutions since it will improve the quality of public administration, pave the way for tolerance and successful compromises. The ultimate goal of this article is to form a conscious civic position and self-determination as a result of one’s full awareness of responsibility for one’s decisions. (shrink)

For a cardinal, we write for the cardinality of the set of permutations with finitely many non‐fixed points of a set which is of cardinality. We investigate the relationships between and for an arbitrary infinite cardinal in (without the axiom of choice). It is proved in that for all infinite cardinals, and we show that this is the best possible result.

The administrative practices of officials who process the admission of immigrants show severe variations in the ways in which migration policy is enforced on the ground. For the author, inequality of treatment lies in the very hierarchy of tasks and services of what he dubs, following Pierre Bourdieu, the immigration "field". According to the author, the governments’ securitizing priorities favour the sort of suspicion towards foreigners that the media then reproduces, thus authorizing so-called street-level bureaucrats to act with great leeway (...) with regard to immigrants. Under pressure, governments implement what the author calls a "trompe-l’oeil policy" that explores the ambivalence between international and domestic law: while the state enforces repressive laws that apparently comply with fundamental human rights, it leaves to low-ranking civil servants enough discretion to make those rights ineffective. This point is the author’s central contention. The arbitrariness of these officials is neither contingent nor accidental: it actually constitutes a purposive "front-line policy" to enlarge the discretionary power of street-level bureaucrats in charge of regulating admissions. Unequal treatment comes in three flavours in this context. First, officials are asked to ensure that each right granted to a foreigner will not threaten the national order, which means the economic, social and political order. They are therefore in a position to judge the suitability of each application in view of their own arbitrary interpretation of what such "threats" consist of. The question of discretionary power is in this way intimately linked to the problem of equality before the law. Second, the scarcity of material and human resources allocated to services in charge of welcoming migrants starkly contrasts with the expenditure incurred to deport foreigners. Inequality also arises from how agents perceive users and the leeway they have to implement the law. Third, inequality is related to foreigners’ abilities and means to challenge discretionary power, especially through the legal tools they use or through legal intermediaries. The author thus concludes that such "front-line policy" has increasingly been used as a weapon against migrants, especially since the early 2000s, when immigration and detention policies were generalized in France. More broadly, in Europe as well as in United States, immigration reforms have made greater use of detention and focused on enforcement rather than on hosting programs and services for asylum seekers. But they have also strengthened the role of legal intermediaries. Hence the need to investigate how discretionary power is challenged as it sheds light on the power relations between states and migrants. Keywords: foreigners, discretion, sociology, participant observation, front-line policy, illegalism, jobs, insecurity, legal intermediaries. (shrink)

In this thesis, I argue that physicalism should be understood to be the view that mental properties are realized by physical properties. In doing this, I explore what the realization relation might be. Since realization is the relation that should help us formulate physicalism, I suggest that the theoretical role of realization consists in explaining some of the things that physicalists wish to explain. These are: How are mental properties metaphysically necessitated by physical properties? How are mental properties causally efficacious? (...) A theory of realization should provide resources for answering these questions. Having identified the theoretical role of realization, I discuss several theories of realization, but then focus on the subset view of realization. According to the subset view, a property P realizes a property Q if and only if the causal powers of Q are a proper subset of the causal powers of P. I argue that the realization relation as it is formulated by the subset view is a promising candidate to play the theoretical role that I want realization to play. I then investigate how this theoretical role is occupied. In doing so, I provide a general metaphysical framework that the defenders of the subset view can appeal to. This framework specifies in what ways properties are related to their causal powers. Discussing some problems that the subset view faces, I propose my own version of the subset view. I argue that a property P realizes a property Q if and only if the causal powers of Q are a proper subset of the causal powers of P, and P is more fundamental than Q. Thanks to the requirement that a realized property is less fundamental than its realizers, two things that the original version of the subset view cannot explain are guaranteed: first, fundamental properties are not realized; second, arbitrary conjunctions of properties do not realize their conjuncts. By showing how a theory of realization can help us explain some of the things that physicalists typically wish to explain, I also show that a non-reductive variety of physicalism does not face the problems that it is commonly thought to face. (shrink)

Even long after their formal exclusion has come to an end, members of previously oppressed social groups often continue to face disproportionate restrictions on their freedom, as the experience of many women over the last century has shown. Working within in a framework in which freedom is understood as independence from arbitrary power, Mary Wollstonecraft provides an explanation of why such domination may persist and offers a model through which it can be addressed. Republicans rely on processes of (...) rational public deliberation to highlight and combat oppression. However, where domination is primarily social rather than legal or political (such as where cultural attitudes, traditions and values exert an arbitrary and inhibiting force) then this defence against domination is often negated. Prejudice, she argues, ‘clouds’ people’s ability to reason and skews debate in favour of the dominant powers, thereby entrenching patterns of subjection. If they are to be independent, then, citizens require not only political rights but a platform from which to add their perspectives and interests to the background social values which govern political discussion. (shrink)

This essay demonstrates that the management and contestability of power is central to Dewey's understanding of democracy and provides a middle ground between two opposite poles within democratic theory: Either the masses become the genuine danger to democratic governance (à la Lippmann) or elites are described as bent on controlling the masses (à la Wolin). Yet, the answer to managing the relationship between them and the demos is never forthcoming. I argue that Dewey's response to Lippmann for how we (...) ought to conceive of the relationship between citizens and elites if power is not to become arbitrary is located within a larger framework that avoids the problematic distinction Wolin draws between the demos and representative government. For Dewey, the legitimacy of decision-making, and, indeed, the security of freedom, is determined not merely by our actual involvement, but the extent to which non-participation does not preclude the future contestability of power. (shrink)

Minimal genetic pre-formationism is defended, in that primacy is ascribed to DNA in the structuring of molecules through molecular codes. This together with the importance of such codes for stability and variation in living systems makes DNA categorically different from other causal factors. It is argued that post-transcriptional and post-translational processing in protein synthesis does not rob DNA of this structuring role. Notions of structuring causal powers that may vary in degree, of arbitrary molecular codes that are more or (...) less realized, of partial templating and of genetic information as a subspecies of mechanistic information are brought in to support this and to rival causal and semantic notions of information. It is concluded that the primacy of genes in their structuring of molecules goes together with parity between genes and non-genetic causal factors in regulation of living systems. This is seen to hold independently of the radical reconceptualization of organism cum environment that has been suggested in developmental systems theory. (shrink)

This article examines the lasting phenomenological consequences of inhabiting “spaces” of exception by rethinking the operation of sovereign violence therein. Taking as its point of departure Giorgio Agamben’s suggestion that the ‘state of exception’ is the ‘rule’ of modern politics, I argue that arbitrary sovereign violence has taken the place of the ‘sovereign decision’ of Carl Schmitt’s original theory. However, recognizing that it is neither enough simply to articulate the institutional grid of intelligibility of the state of exception nor (...) expose the logics of sovereignty that make possible arbitrary violence, it draws on phenomenology, affect theory, and trauma studies to reorient our focus from the sovereign to the subject upon whom sovereign power is executed. Ultimately it proposes a new understanding of modern subjecthood as one of existential insecurity generated by the ‘new age of anxiety’ permeating social and political life today. (shrink)

This paper explains Wittegnstein’s understanding of the ‘grammar’ of our language, tracing its origins in the Tractatus’s concept of logical syntax, and then examining the senses in which Wittegnstein, in his later work, viewed grammar as being ‘arbitrary’. Then, armed with this understanding, it moves on to the task of examining how, within the framework of a Wittegnsteinian view of language, we should understand the inescapable ‘compellingness’ of logical necessity – what Wittegnstein calls the “hardness of the logical must”. (...) Whereas it is often thought that Wittegnstein’s views on the nature of the ‘grammar’ of our concpets leads him towards a vitiatingly conventionalist or anti‐realist understanding of necessity, in which its logical ‘superhardness’ becomes problematic, this paper will argue that there is actually no such tension in Wittegnstein’s thought. In fact, it will be argued, an understanding of the ways in which our conceptual grammar is arbitrary casts a great deal of light on how it is that our concepts can nevertheless support a logically superhard, and normatively commanding, notion of necessity. In support of this view, I distinguish Wittegnstein’s views on necessity from the ‘classical’ conventionalism of the Vienna Circle, and from the radical conventionalism of Michael Dummett, and defend Wittegnstein’s view from a powerful recent attack from Quassim Cassam. (shrink)

This paper explains (in Part A) Wittegnstein’s understanding of the ‘grammar’ of our (or any) language, tracing its origins in the Tractatus’s concept of logical syntax, and then examining the senses in which Wittegnstein, in his later work, viewed grammar as being ‘arbitrary’. Then, armed with this understanding, it moves on (in Part B) to the task of examining how, within the framework of a Wittegnsteinian view of language, we should understand the inescapable ‘compellingness’ of logical necessity – what (...) Wittegnstein calls the “hardness of the logical must”. Whereas it is often thought that Wittegnstein’s views on the nature of the ‘grammar’ of our concpets leads him towards a vitiatingly conventionalist or anti‐realist understanding of necessity, in which its logical ‘superhardness’ becomes problematic, this paper will argue that there is actually no such tension in Wittegnstein’s thought. In fact, it will be argued, an understanding of the ways in which our conceptual grammar is arbitrary casts a great deal of light on how it is that our concepts can nevertheless support a logically superhard, and normatively commanding, notion of necessity. In support of this view, I distinguish Wittegnstein’s views on necessity from the ‘classical’ conventionalism of the Vienna Circle, and from the radical conventionalism of Michael Dummett, and defend Wittegnstein’s view from a powerful recent attack from Quassim Cassam. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Rhetoric and Power: An Inquiry into Foucault’s Critique of ConfessionDave TellOn October 10, 1979, Michel Foucault revised his thesis on confession. On that day, some three years after the publication of his magisterial treatment of confession in the first volume of The History of Sexuality, Foucault argued that the Pythagoreans, Stoics, and Epicureans had, before the advent of Christianity, their own practices of confession. Yet these practices, unlike (...) their Christian variants, were not complicit with practices of domination (OS 310, 312). In the context of Foucault’s thought theretofore, in which the confession consistently figured as an essential component in the exercise of modern power, this is a radical shift. In lectures given at both Berkeley and Dartmouth in the fall of 1980, Foucault made similar arguments. On these occasions he argued that Seneca’s De ira constituted a “stoic confession,” the object of which was to enable the subject to “live differently, better, more happily, than other people” (AB 210, 205). Judith Butler captures the gravity of the shift: “In the last years of his life, Foucault returned to the question of confession, reversing his earlier critique in the first volume of the History of Sexuality, where he indicts confession as a forcible extraction of sexual truth, a practice in the service of a regulatory power” (2005, 112).This reversal was short lived. Although Foucault would celebrate ancient Greek techniques of the self for the rest of his life, he would not [End Page 95] long refer to these techniques in terms of confession. Thus, in another reading of De ira, this one in March 1982, Foucault again noted that the Stoics have “confessional practices” that are “very close to what is found in Christianity” (Herm 482). This time, however, he insisted that the Stoic practices were fundamentally different: “However, all these elements seem to me to be profoundly different from what we should call ‘confession’ in the strict, or anyway, spiritual sense of the word” (Herm 365). In The Care of the Self, Foucault again conceded that De ira—what he now called “the most detailed description” of antique practices of the self—looked “at first glance” like a Christian confession, but he again maintained that it is something quite different: “The purpose of the examination is not therefore to discover one’s own guilt, down to its most trifling forms” (CS 61–62). Foucault concluded that the various “discourses of the self”—the confession and the Greek techniques of the self—could not be placed into a single category (see GE 250). Indeed, the “profound difference” (Herm 299) between these two discourses of the self was perhaps Foucault’s most repeated claim of the 1980s (see Herm 222, 237–44, 299, 308; GE 247–48; WS 237; AB 207–8; RFT 27; UP 89; CS 239; SS 5; FI 5, 12; FS 30, 35, 44, 87, 96, 97, 143–45, 147).It is worth asking why Foucault returned so consistently to the distinction between these two discursive forms. This question gains even more relevance for readers of this journal when we remember that, on at least two occasions, Foucault defined one of these forms, the ancient techniques of the self, in terms of its opposition to rhetoric: the techniques of the self, he claimed, are “nonrhetorical” (Herm 368; FS 20). Thus the question that drives this essay is not so much why Foucault attached such importance to the distinction but rather how rhetoric itself might differentiate the confession from the techniques of the self. Stated differently, Foucault’s work on the confession vis-à-vis the technologies of the self provides a valuable opportunity to study the role of rhetoric in Foucault’s thought—not because they are both rhetorical forms but, curiously, because Foucault insists that one is not.In order to foreground the work of rhetoric in Foucault’s thought, I situate his discourses of the self in the context of Nietzsche’s critique of metonymy. Although this may seem arbitrary, it gains initial plausibility from three facts. First, we know that Foucault understood rhetoric in terms of tropes (OT 84; Cooper 1988, 4). Second, we know too that Foucault had a deep... (shrink)

This article contends that black feminist conceptions of ‘pussy power’ have prematurely foreclosed an examination of both pussy and its powers, thereby missing the erotic potential inherent in a ‘pussy power’ that is distinctly black – what I term black pussy power. Taking Pam Grier’s Blaxploitation performances in Coffy (1973) and Foxy Brown (1974) as my primary case studies, I use black pussy power as a conceptual framework through which to read Grier’s performances of black eroticism, (...) which enable her to resist racialised gendered sexual subjection and tap into modes of erotic agency otherwise denied to her. Moving away from delimited understandings of pussy as female genitalia or an objectified entity of female sexuality, I mobilise black queer feminist theorisations of the ‘arbitrary relation between black sex and gender’ to theorise the polymorphous potential of black pussy to signify beyond the narrow gender and sexual grammars currently available to us.1 At the same time, black pussy’s discursive connection to black feminine sexuality animates the insurgent potential of black pussy power to secure nominal black freedoms in the face of state-sanctioned infringements on black erotic life. (shrink)

The paper examines some philosophical aspects of translation as a metaphor for education—a metaphor that avoids the closure of final definitions, in favour of an ongoing and tentative process of interpretation and revision. Translation, it is argued, is a complex process involving language, within and among cultures, and in the exercise of power. Drawing on Foucault's analysis of power, Nietzschean contingency, and the inversion of meaning that characterises the work of Heidegger and Derrida, the paper points towards Ricoeur's (...) notion of linguistic hospitality as the ethical dimension to the inevitably inadequate representation of the ‘other’. In this exploration, translation is posited as a creative and interpretive act—involving neither image nor copy, but poetic transposition.The power of language emerges in the close association between power and knowledge, in which the ability to define what is real generates the realm of future possibilities. From a Foucauldian perspective, language functions as a creative strategic relation—a form of power that structures the field of other possible actions. It is through the mediation of translation, the paper argues, that language communicates, leaving us with a world of difference (i.e. ‘lost in translation’), as both our curse and our blessing as part of the human condition and as part of our ethical endeavour as educators. The contingent and arbitrary nature of language problematises what appears natural and necessary, generating the possibility of creative dialogue. (shrink)

This paper is devoted to discussion of Abelard’s account of the Christian doctrine of the Atonement. It defends his account against charges of Exemplarism and Pelagianism. It also argues that his account contains material that ought to be incorporated into Christian thinking about the Atonement. Abelard’s constructive contribution to such thinking is the idea that divine love, made manifest in the life and death of Jesus, has the power to transform human sinners, if they cooperate, in ways that fit (...) them for everlasting life in intimate union with God. (shrink)

This essay demonstrates that the management and contestability of power is central to Dewey's understanding of democracy and provides a middle ground between two opposite poles within democratic theory: Either the masses become the genuine danger to democratic governance (à la Lippmann) or elites are described as bent on controlling the masses (à la Wolin). Yet, the answer to managing the relationship between them and the demos is never forthcoming. I argue that Dewey's response to Lippmann for how we (...) ought to conceive of the relationship between citizens and elites if power is not to become arbitrary is located within a larger framework that avoids the problematic distinction Wolin draws between the demos and representative government. For Dewey, the legitimacy of decision-making, and, indeed, the security of freedom, is determined not merely by our actual involvement, but the extent to which non-participation does not preclude the future contestability of power. (shrink)

We study the notion of non-trivial elementary embeddings under the assumption that V satisfies ZFC without Power Set but with the Collection Scheme. We show that no such embedding can exist under the additional assumption that it is cofinal and either is a set or that the scheme of Dependent Choices of arbitrary length holds. We then study failures of instances of Collection in symmetric submodels of class forcings.

In lieu of an abstract, here is a brief excerpt of the content:Rhetoric and Power: An Inquiry into Foucault’s Critique of ConfessionDave TellOn October 10, 1979, Michel Foucault revised his thesis on confession. On that day, some three years after the publication of his magisterial treatment of confession in the first volume of The History of Sexuality, Foucault argued that the Pythagoreans, Stoics, and Epicureans had, before the advent of Christianity, their own practices of confession. Yet these practices, unlike (...) their Christian variants, were not complicit with practices of domination (OS 310, 312). In the context of Foucault’s thought theretofore, in which the confession consistently figured as an essential component in the exercise of modern power, this is a radical shift. In lectures given at both Berkeley and Dartmouth in the fall of 1980, Foucault made similar arguments. On these occasions he argued that Seneca’s De ira constituted a “stoic confession,” the object of which was to enable the subject to “live differently, better, more happily, than other people” (AB 210, 205). Judith Butler captures the gravity of the shift: “In the last years of his life, Foucault returned to the question of confession, reversing his earlier critique in the first volume of the History of Sexuality, where he indicts confession as a forcible extraction of sexual truth, a practice in the service of a regulatory power” (2005, 112).This reversal was short lived. Although Foucault would celebrate ancient Greek techniques of the self for the rest of his life, he would not [End Page 95] long refer to these techniques in terms of confession. Thus, in another reading of De ira, this one in March 1982, Foucault again noted that the Stoics have “confessional practices” that are “very close to what is found in Christianity” (Herm 482). This time, however, he insisted that the Stoic practices were fundamentally different: “However, all these elements seem to me to be profoundly different from what we should call ‘confession’ in the strict, or anyway, spiritual sense of the word” (Herm 365). In The Care of the Self, Foucault again conceded that De ira—what he now called “the most detailed description” of antique practices of the self—looked “at first glance” like a Christian confession, but he again maintained that it is something quite different: “The purpose of the examination is not therefore to discover one’s own guilt, down to its most trifling forms” (CS 61–62). Foucault concluded that the various “discourses of the self”—the confession and the Greek techniques of the self—could not be placed into a single category (see GE 250). Indeed, the “profound difference” (Herm 299) between these two discourses of the self was perhaps Foucault’s most repeated claim of the 1980s (see Herm 222, 237–44, 299, 308; GE 247–48; WS 237; AB 207–8; RFT 27; UP 89; CS 239; SS 5; FI 5, 12; FS 30, 35, 44, 87, 96, 97, 143–45, 147).It is worth asking why Foucault returned so consistently to the distinction between these two discursive forms. This question gains even more relevance for readers of this journal when we remember that, on at least two occasions, Foucault defined one of these forms, the ancient techniques of the self, in terms of its opposition to rhetoric: the techniques of the self, he claimed, are “nonrhetorical” (Herm 368; FS 20). Thus the question that drives this essay is not so much why Foucault attached such importance to the distinction but rather how rhetoric itself might differentiate the confession from the techniques of the self. Stated differently, Foucault’s work on the confession vis-à-vis the technologies of the self provides a valuable opportunity to study the role of rhetoric in Foucault’s thought—not because they are both rhetorical forms but, curiously, because Foucault insists that one is not.In order to foreground the work of rhetoric in Foucault’s thought, I situate his discourses of the self in the context of Nietzsche’s critique of metonymy. Although this may seem arbitrary, it gains initial plausibility from three facts. First, we know that Foucault understood rhetoric in terms of tropes (OT 84; Cooper 1988, 4). Second, we know too that Foucault had a deep... (shrink)

The aim of this paper is to address the question: Can an artificial neural network (ANN) model be used as a possible characterization of the power of the human mind? We will discuss what might be the relationship between such a model and its natural counterpart. A possible characterization of the different power capabilities of the mind is suggested in terms of the information contained (in its computational complexity) or achievable by it. Such characterization takes advantage of recent (...) results based on natural neural networks (NNN) and the computational power of arbitrary artificial neural networks (ANN). The possible acceptance of neural networks as the model of the human mind's operation makes the aforementioned quite relevant. (shrink)

Using coding devices based on a theorem due to Zsigmondy, Birkhoff and Vandiver, we first define in terms of successor S and coprimeness predicate $\perp$ a full arithmetic over the set of powers of some fixed prime, then we define in the same terms a restriction of the exponentiation. Hence we prove the main result insuring that all arithmetical relations and functions over prime powers and their opposite are $\{S, \perp\}$ -definable over Z. Applications to definability over Z and N (...) are stated as corollaries of the main theorem. (shrink)

The essential nature of legislative power is to make the laws; that of executive power is to execute those law. The difference between the two is both substantial and significant; it is the difference between the rule of arbitrary power and the rule of law. This paper will seek to trace the genesis of an independent judicial power, in both theory and practice, through an examination of sections of The Constitutions of Clarendon, The Assize of (...) Clarendon, Hobbes’ Leviathan, Locke’s Second Treatise, Montesquieu’s Spirit of the Laws, as well as The Federalist Papers. Moreover, it will seek to establish its executive nature and to explain why it is so often (at least presently) misunderstood to be akin to the legislative power. (shrink)

This article argues that the moral right to be discharged only for good cause and like rights can be contracted away by employees in appropriate circumstances. It maintains that the rights in question are not inalienable, and that there is nothing irrational about an employee''s wishing to deal them away. It also maintains that inequalities in bargaining power between employers and employees are insufficiently pervasive to justify a flat ban on the alienation of these rights. For a waiver of (...) such rights to be valid, however, employees must have full knowledge of its terms.The question addressed here bears on several legal and policy issues affecting termination of the employment relation. If employees can contract away their right to a goodcause discharge, the American doctrine of employment at willmight find justification in the face of that right. In addition, the alienability of such discharge rights may be necessary to justify express disclaimers of wrongful discharge liability and the waiver provision of the new U.S. Draft Uniform Employment-Termination Act. (shrink)

Integrated Information Theory posits a new kind of information, which, given certain constraints, constitutes consciousness. Searle objects to IIT because its appeal to information relies on observer-relative features. This misses the point that IIT’s notion of integrated information is intrinsic, the opposite of observer-relative. Moreover, Searle overlooks the possibility that IIT could be embraced as an extension of his theory. While he insists that causal powers of the brain account for consciousness, he maintains that these causal powers aren’t tied to (...) protoplasmic material. Whatever these causal powers are, they don’t consist in mere information-processing or computation. IIT agrees, and also positively characterizes the relevant causal powers as those involved in generating integrated information. Examining the further commitments of each theory reveals that IIT renews a fundamentally ontological challenge to information-processing and computational theories of mind. (shrink)

Integrated Information Theory posits a new kind of information, which, given certain constraints, constitutes consciousness. Searle objects to IIT because its appeal to information relies on observer-relative features. This misses the point that IIT’s notion of integrated information is intrinsic, the opposite of observer-relative. Moreover, Searle overlooks the possibility that IIT could be embraced as an extension of his theory. While he insists that causal powers of the brain account for consciousness, he maintains that these causal powers aren’t tied to (...) protoplasmic material. Whatever these causal powers are, they don’t consist in mere information-processing or computation. IIT agrees, and also positively characterizes the relevant causal powers as those involved in generating integrated information. Examining the further commitments of each theory reveals that IIT renews a fundamentally ontological challenge to information-processing and computational theories of mind. (shrink)

This article presents some modern philosophical reasons that lay behind the introduction of the concept of the hermeneutical horizon to explain scientific change; cf. [1], chapter 17. These reasons reveal arbitrariness of sociological variabilism following from its elimination of the objective intellectual factors, essential in knowledge creation.

While a large body of literature on pejorative language has emerged recently, derogatory communication is a broader phenomenon that need not constitutively involve the use of words. This paper delineates the class of non-verbal pejoratives and sketches an account of the derogatory power of a subset of NVPs, namely those whose effectiveness crucially relies on iconicity. Along the way, I point out some ways in which iconic NVPs differ from wholly arbitrary NVPs and ritualized threat signals in the (...) animal kingdom, such as the wolf’s snarl, which do not threaten or demean targets by virtue of any kind of iconographic depiction. An iconic portrayal such as a racist caricature disparages its target by inviting recipients to entertain an unflattering image of the target. “Blackface” performers in the nineteenth-century, for example, promulgated an unflattering image of African-Americans by means of make-up, costumes, and vocal impersonations. (shrink)

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise (...) is no less pernicious than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

In this paper we prove three theorems about first-order theories that are categorical in a higher power. The first theorem asserts that such a theory either is totally categorical or there exist prime and minimal models over arbitrary base sets. The second theorem shows that such theories have a natural notion of dimension that determines the models of the theory up to isomorphism. From this we conclude that $I(T, \aleph_\alpha) = \aleph_0 +|\alpha|$ where ℵ α = the number (...) of formulas modulo T-equivalence provided that T is not totally categorical. The third theorem gives a new characterization of these theories. (shrink)

We prove that, for each countable ordinal ξ≥1, there exist some -complete ω-powers, and some -complete ω-powers, extending previous works on the topological complexity of ω-powers [O. Finkel, Topological properties of omega context free languages, Theoretical Computer Science 262 669–697; O. Finkel, Borel hierarchy and omega context free languages, Theoretical Computer Science 290 1385–1405; O. Finkel, An omega-power of a finitary language which is a borel set of infinite rank, Fundamenta informaticae 62 333–342; D. Lecomte, Sur les ensembles de (...) phrases infinies constructibles a partir d’un dictionnaire sur un alphabet fini, Séminaire d’Initiation a l’Analyse, 1, année 2001–2002; D. Lecomte, Omega-powers and descriptive set theory, Journal of Symbolic Logic 70 1210–1232; J. Duparc, O. Finkel, An ω-Power of a Context-Free Language Which Is Borel Above , in: S. Bold, B. Löwe, T. Räsch, J. van Benthem , in the Proceedings of the international conference foundations of the formal sciences V : Infinite Games, November 26th to 29th, 2004, Bonn, Germany, in: Studies in Logic, vol. 11, College Publications at King’s College, 2007, pp. 109–122]. We prove effective versions of these results; in particular, for each recursive ordinal there exist some recursive sets A2<ω such that , where and denote classes of the hyperarithmetical hierarchy. To do this, we prove effective versions of a result by Kuratowski, describing a set as the range of a closed subset of the Baire space ωω by a continuous bijection. This leads us to prove closure properties for the pointclasses in arbitrary recursively presented Polish spaces. We apply our existence results to get better computations of the topological complexity of some sets of dictionaries considered in [D. Lecomte, Omega-powers and descriptive set theory, Journal of Symbolic Logic 70 1210–1232]. (shrink)

This paper seeks to remedy in part the lack of empirical studies on practices of.political speech in Australia by investigating local governments’ powers and perceptions of their role in regulating practices of political speech. It reports on the results of an empirical study conducted in 2003–04 of local government regulation of political speech within the public space constituted by pedestrian malls. Regulatory provisions are considered in the context of attitudes towards, and experiences of, practices of political speech within these arenas. (...) I argue that local governments possess wide ranging powers to regulate political speech in pedestrian malls, but further and more importantly that those powers are mediated via their inconsistent and at times arbitrary application, combined with a cultural hostility to political speech. We therefore see a precarious level of protection of opportunities for political communication, as well as an important politico-cultural component in determining the fate of political speech in Australia. I conclude by outlining an alternative ‘enabling principle’ against which local governments may reconsider and reconfigure their regulatory practices in relation to this important political freedom. (shrink)

The focus of my dissertation is a general and comprehensive examination of Locke’s view of divine power. My basic argument is that John Locke is a theological voluntarist in his understanding of God’s creative and providential relationship with the world, including both the natural and moral order. As a voluntarist, Locke holds that God freely imposes both the physical and moral laws of nature onto creation by means of his will: this contrasts with the intellectualist perspective in which the (...) laws of nature emerge from the essences of things. For Locke, there are no intrinsically necessary laws in the created order: both physical and moral laws are arbitrary determinations of the divine will. While these laws are not intrinsically necessary, they are hypothetically necessary. Hypothetical necessity involves things that could have been otherwise, but which are necessary based on the supposition of a free action and other relevant conditions pertaining to the actor. Concerning God, we can understand hypothetical necessity in the following way: □ [ → Y]. X is a variable that ranges over a subset of contingent propositions about actions. ‘P’ is the proposition ‘God is perfect’. And Y is any proposition that is a necessary consequent of both X and P. In any possible world in which God performs X, it is the case that Y will obtain. Supposing that God decides to create beings like us, God must of necessity craft the moral laws of nature in a way that harmonizes with our nature. What grounds this necessity is that God must act consistently with the perfection of the divine nature: to give us a different law would be less than perfect. Furthermore, I argue that certain physical laws of nature – those that help to realize our nature – are also hypothetically necessary. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Grand Theory on Trial:Kafka, Derrida, and the Will to PowerNina Pelikan StrausIn summa: so that man may respect himself he must be capable of doing evil.(Nietzsche, The Will to Power)1IThe following pages offer evidence that in The Trial Kafka invents characters who deploy a Nietzschean-sourced language of deconstruction related to what we now call theory; that in "Before the Law" Kafka's priest deconstructs The Law to which K. (...) is subjected, and that Kafka exposes the discursive devices by which laws can be deconstructed. Kafka's text then opens the way to another kind of deconstruction of that-which-is-already-deconstructed as performed by Jacques Derrida in his 1987 essay, "Before the Law."2 Although this claim may seem self-evident or rhetorically circular to some readers of Kafka and his commentators, it is the result of years of puzzlement concerning the impact of Grand Theory in American criticism.This puzzlement, often accompanied by antagonism, is shared by critics whose essays comprise Patia's and Corral's Theory's Empire: An Anthology of Dissent. The 2005 volume includes major reassessments of poststructuralist theory, notably Derrida's, by Tzetan Todorov, Thomas Nagel, M. H. Abrams, Kwame Anthony Appiah, Frederick Crews, René Welleck, David Bromwich, and others. While the deconstructionist idea of the arbitrariness of the signifier appears to be a central target of these critics' analysis, it is precisely the arbitrariness of the signifier called the Law that Kafka explores in The Trial.Kafka's intended relation to what he exposes has been much debated. [End Page 378] Stanley Corngold refers to the "undecidability" of Kafka's work and its "narrative mood of neutrality."3 The emphasis on "undecidability" in Kafka can be viewed as symptomatic of the influence of French Theory embraced by the American literary academy in the 1970s and 1980s. This latter view of Kafka's writing contrasts sharply with an earlier view, such as Hannah Arendt's, that The Trial, for all its ambiguity and multivalence, carries precise political meanings and warnings that Kafka fully intended. The deconstructionist moment did not bury convictions such as Adorno's or Canetti's that "from the beginning, Kafka sided with the humiliated,"4 or that for "a generation of early readers Joseph K.'s arrest was... a prophetic anticipation of the fate awaiting Hitler's victims."5 But deconstruction's skeptical effect undermined the certitude that Kafka was a politically important novelist. For its detractors, the deconstructionist view that there is "nothing outside of the text" ignores that texts like Kafka's have shaped human lives and human history. Wellek, who helped to introduce French theory to American literature departments, now asserts that theory has destroyed literary studies, while Frederick Crews argues that "Derrida's judgment that 'there is nothing outside the text' automatically precludes recourse to evidence." In Crews's view, "both Derrida and his myriad followers think nothing of appropriating and denaturing propositions from systems of thought whose premises they have already rejected." Thomas Nagel goes further in condemning "post-modern relativism" as a "quick fix" which puts reason to sleep. In Theory's Empire, Derrida's language is described as a "maze," a "prison house of language," a "limbo of combined attention and nonassertion."6The arguments against deconstruction theory can scarcely be summarized here, but a sampling of the commentaries in Theory's Empire on Derrida can lead us through and eventually back to what is or isn't at political stake in reading The Trial. Two questions are of concern: How much of Kafka's political acumen does Derrida ignore or misread in his commentary on "Before the Law"? And: to what degree do Derrida's rhetorical devices and ingenious language games resemble the language of the Courtiers who torture Joseph K.? What might such an analogy imply? Other questions follow, such as David Bromwich's very important ones. "About the status of Derrida's procedures there was always a puzzle," he writes. "Was deconstruction a technique proper to the commentator, and necessary as a tactic against the naïve constructionism of the author? Or was it something the author's writing practiced for itself, in... (shrink)

In the TTP Spinoza addresses in its full complexity the question of whether a republican theorist, committed to the view that the primary goal of political life is freedom conceived as the absence of slavery or dependence on arbitrary will, has any need for the notion of a right. His answer is designed to draw us away from many of the assumptions that run through the natural law tradition. Rather than accepting that our rights are stable, located in individuals, (...) and absolute, we should be prepared to accept that the only natural right we possess, our power to do what we can to maintain ourselves, is manifested in claims that are fluctuating, collective and come in degrees. The overriding advantage of this outlook is that it directs our attention to the practical business of politics – to the project of creating rights that will secure our freedom. (shrink)

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property, antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In (...) particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily. (shrink)

It is outstanding in its originality and brilliance, its force of argument, and the relevance of its diagnosis. It is also outstanding in the arbitrariness of its argumentation from history and in the partiality with which the central problem is posed and developed. Its over-all impression, at least upon this reader, is not unlike Spengler's: irritation over much that is obviously one-sided and false and admiration for a political thinker of the first order who has something important to say. It (...) should be noted in parenthesis that Professor Brogan's Preface and the excellent translator's footnotes and epigraph add nothing to the merits of the book. They only add to the irritation: the Preface in its pretentiousness is mere advertisement, the translator's contributions are partly superfluous, partly misleading, and partly obnoxious in their gloating exploitation of the author's grosser prejudices. (shrink)

Structural Injustice advances a theory of what structural injustice is and how it works. Powers and Faden present both a philosophically powerful, integrated theory about human rights violations and structural unfairness, alongside practical insights into how to improve them.

The first step in education's long road to respectability lay in the ability of its proponents to demonstrate that it was worthy of collaborating with traditional disciplines in the syllabus of higher learning. The universities where the infant discipline of education was promoted benefited from scholars who engaged in teaching and research with enthusiasm and preached the gospel of scientific education. These schools-Teachers College/Columbia University, the University of Chicago, and Stanford University-gained a reputation as oases of pedagogical knowledge. Soon, public (...) and private colleges alike introduced professional academic programs for the preparation of teachers. Foremost among the subjects for these programs was education philosophy, with its long history and the impeccable credentials of its ancient and modern expositors. Although the principal focus of this study is the history of educational philosophy in colleges and universities, it also recognizes educational philosophy's antecedents. Chapters cover ancient roots, Christian educational theory, educational theory and the modern world, philosophy and education in early America, development of philosophies of education, disciplinary maturity for educational philosophy, and prospects. There is a bibliography and an index. (shrink)