Jeremy Fix, in ‘Two Sorts of Constitutivism’ (2021), makes a case for the possibility of contingent essential properties to account for the metaphysical status of constitutive standards of things. In this brief note, I will present an open problem affecting Fix's conception, namely, the explanation of the membership of particulars to a genus, which is necessary to identify particulars subject to standards.

The Supreme Court of Idaho held, in Idaho Association of Chiropractic Physicians, Inc. v. Alcorn, No. 23787,1999 WL 134677, at *1, that insurance regulations of health care services must apply equally to all providers. The Idaho legislature enacted the Small Employer Health Insurance Availability Act, Idaho Code § 41-4701, and the Individual Health Insurance Availability Act, id. § 41-5201, which is to be implemented by the Idaho Small Employer and Individual Health Reinsurance Program. The goal of the legislation is to (...) make health insurance available and affordable to small employers and their employees, and to individuals who would not otherwise have health insurance. Accordingly, the Program promulgated the following rule: “Chiropractic services will be subject to one thousand dollars per year limit.” Idaho Ass’n of Chiropractic Physicians, 1999 WL 134677, at *1.The plaintiff, the Idaho Association of Chiropractic Physicians, sought declaratory judgment and injunctive relief against defendant, James M. Alcorn, director of the Idaho State Department of Insurance, on equal protection and due process grounds. (shrink)

Agency and identity -- Necessitation -- Acts and actions -- Aristotle and Kant -- Agency and practical identity -- The metaphysics of normativity -- Constitutive standards -- The constitution of life -- In defense of teleology -- The paradox of self-constitution -- Formal and substantive principles of reason -- Formal versus substantive -- Testing versus weighing -- Maximizing and prudence -- Practical reason and the unity of the will -- The empiricist account of normativity -- The rationalist account of (...) normativity -- Kant on the hypothetical imperative -- Against particularistic willing -- Deciding and predicting -- Autonomy and efficacy -- The function of action -- The possibility of agency -- Non-rational action -- Action -- Attribution -- The psychology of action -- Expulsion from the garden : the transition to humanity -- Instinct, emotion, intelligence, and reason -- The parts of the soul -- Inside or outside -- Pull yourself together -- The constitutional model -- Models of the soul -- The city and the soul -- Platonic virtues -- Justice : substantive, procedural, and platonic -- Kant and the constitutional model -- Defective action -- The problem of bad action -- Being governed by the wrong law -- Or five bad constitutions -- Conceptions of evil -- Degrees of action -- Integrity and interaction -- Deciding to be bad -- The ordinary cases -- Dealing with the disunified -- Kant's theory of interaction -- My reasons -- Deciding to treat someone as an end in himself -- Interacting with yourself -- How to be a person -- What's left of me? (shrink)

Originally published as one of the Four Dissertations and then included in the 1758 edition of the Essays, the 1757 paper “Of the Standard of Taste” qualifies as David Hume’s official contribution to criticism.1 A few exceptions aside, no real or thorough effort has been taken by its critics to place the essay in the overall context of Hume’s science of human nature.2 Hume has certainly his share of responsibility in this: “Most of these essays were wrote with a View (...) of being published as WEEKLY-PAPERS, and were intended to comprehend the Design both of the SPECTATORS & CRAFTSMEN. But having dropped that Undertaking, partly from LAZINESS, partly from WANT OF LEISURE, and being willing to make Trial of my .. (shrink)

Allegations of bias against senior judges have not been common in English courts, so the House of Lords had little material to draw on when the Pinochet case was decided. It is therefore worthwhile to compare their Lordships» approach with that of the Federal Constitutional Court in Germany. This court has been selected because: (a) it has a comparable number of judges to the House of Lords and its decisions are unappealable, and (b) its cases have a constitutional (...) and (often) political content—as did the Pinochet case. The Federal Constitutional Court case law is comparatively prolific, so this study has been limited to the last 15 years. The case law covers a wide variety of issues, for example provision of legal opinions or representation, membership of associations, holding of public offices, public statements of opinion. If the standards set in this case law were applied to Lord Hoffmann's position in the Pinochet case, there are grounds for saying that he might not have been excluded. (shrink)

In this paper I argue that constitutive relevance relations in mechanisms behave like a special kind of causal relation in at least one important respect: Under suitable circumstances constitutive relevance relations produce the Markov factorization. Based on this observation one may wonder whether standard methods for causal discovery could be fruitfully applied to uncover constitutive relevance relations. This paper is intended as a first step into this new area of philosophical research. I investigate to what extent the PC algorithm, originally (...) developed for causal search, can be used for constitutive relevance discovery. I also discuss possible objections and certain limitations of a constitutive relevance discovery procedure based on PC. (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)

-/- In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be (...) claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy. (shrink)

The United States Court of Appeals for the Second Circuit recently upheld United States District Court for the Eastern District of New York Judge's denial of petitioner's application for a writ of habeas corpus. The Court held that it was not objectively unreasonable for the Appellate Division to conclude, in light of clearly established federal law as expressed by the Supreme Court of the United States, that a New York statute providing for the recommitment of specific defendants who plead not (...) responsible by reason of mental disease or defect under a mere “preponderance of the evidence” standard does not violate either due process or the equal protection clause of the Fourteenth Amendment. (shrink)

This paper develops Richard Wollheim’s claim that the proper appreciation of a picture involves not only enjoying a seeing-in experience but also abiding by a standard of correctness. While scholars have so far focused on what fixes the standard, thereby discussing the alternative between intentions and causal mechanisms, the paper focuses on what the standard does, that is, establishing which kinds, individuals, features and standpoints are relevant to the understanding of pictures. It is argued that, while standards concerning kinds, (...) individuals and features can be relevant also to ordinary perception, standards concerning standpoints are specific to pictorial experience. Drawing on all this, the paper proposes an ontology of depiction according to which a picture is constituted by both its visual appearance and its standard of correctness. (shrink)

Standard philosophical methodology which proceeds by appeal to intuitions accessible "from the armchair" has come under criticism on the basis of empirical work indicating unanticipated variability of such intuitions. Loose constitutivity---the idea that intuitions are partly, but not strictly, constitutive of the concepts that appear in them---offers an interesting line of response to this empirical challenge. On a loose constitutivist view, it is unlikely that our intuitions are incorrect across the board, since they partly fix the facts in question. But (...) we argue that this ratification of intuitions is at best rough and generic, and can only do the required methodological work if it operates in conjunction with some sort of further criteria of theory selection. We consider two that we find in the literature: naturalness (Brian Weatherson, borrowing from Lewis) and charity (Henry Jackman, borrowing from Davidson). At the end of the day, neither provides the armchair philosopher complete shelter from extra-armchair inquiry. (shrink)

Cancer biology features the ascription of normal functions to parts of cancers. At least some ascriptions of function in cancer biology track local normality of parts within the global abnormality of the aberration to which those parts belong. That is, cancer biologists identify as functions activities that, in some sense, parts of cancers are supposed to perform, despite cancers themselves having no purpose. The present paper provides a theory to accommodate these normal function ascriptions—I call it the Modeling Account of (...) Normal Function (MA). MA comprises two claims. First, normal functions are activities whose performance by the function-bearing part contributes to the self-maintenance of the whole system and, thereby, results in the continued presence of that part. Second, MA holds that models of system-level activities that are (partly) constitutive of self-maintenance are improved by including a representation of the relevant function-bearing part and by making reference to the activity/activities that part performs which contribute(s) to those system-level activities. I contrast MA with two other accounts that seek to explicate the ascription of normal functions in biology, namely, the organizational account and the selected effects account. Both struggle to extend to cancer biology. However, I offer ecumenical readings which allow them to recover some ascriptions of normal function to parts of cancers. So, though I contend that MA excels in this respect, the purpose of this paper is served if it provides materials for bridging the gap between cancer biology, philosophy of cancer, and the literature on function. (shrink)

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory (...) asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity. (shrink)

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

Observing that standard accounts of constitutional law - both the "conservative" and "liberal" varieties - have lost their power to illuminate, The Constitution and the Pride of Reason explores how constitutional law hangs together (and how it falls apart) by investigating the perennial claim that the Constitution and its interpretation somehow embody a commitment to governance by "reason". What does this claim mean, and is it valid? In confronting these queries, Smith offers revealing and iconoclastic assessments of constitutionalists (...) ranging from Madison and Jefferson to Dworkin and Bork. Also detailed in these pages is a provocative overview of the whole constitutional project, from its noble aspirations to its tragic failures. (shrink)

A variety of arguments have been advanced that deliberation should be at the center of any good political regime in which there is popular self-government. Deliberation is to be the basis for lawmaking, that is, for the making of the collectivity's binding decisions. Thus, John Rawls says, “[O]f course, actual constitutions should be designed as far as possible to make the same determinations as the ideal legislative procedure.” This procedure, in turn, is defined as having laws that result from “rational (...) legislators … who are conscientious, trying to follow the principles of justice as their standard.” These legislators “are not to take a narrow or group-interested standpoint.” Joshua Cohen broadly agrees with Rawls and characterizes Rawls's view as one that argues for a democratic politics that is built around public deliberation. Cohen says that “an ideal pluralist scheme, in which democratic politics consists of fair bargaining among groups each of which pursues its particular or sectional interest, is unsuited to a just society.” John Dryzek shares these views and comments that the “essence of democratic legitimacy should be sought … in the ability of all individuals subject to a collective decision to engage in authentic deliberation about that decision.” Others have argued along similar lines, including James Bohman, Amy Gutmann and Dennis Thompson, David Gauthier, and Jurgen Habermas. (shrink)

In this paper I argue that the prioritization of sensory input by top-down attention is constitutive of and essential to conscious perception. Specifically, I argue that top-down attention is required to provide informational integration at the level of the subject, which can be contrasted with integration at the level of features and objects. Since the informational content of conscious perception requires integration at the level of the subject, top-down attention is necessary for conscious perception as we know it. I present (...) this argument through a theory, which I call the “Standard Theory.” According to this theory, top-down attention brings about subject-level integration for sensory input by prioritizing that input with respect to a subject-level standard. (shrink)

John Rawls proposed, as what he called “the liberal principle of legitimacy,” that coercive exercises of political power can be justified to free and equal dissenters when “in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse.” Does “unwritten constitution” there refer to norms of constitutional import, but that subsist only as custom, not as law? To norms that subsist as common law but not as code law? To empirical (...) regularities of political practice, as opposed to normative rules and standards? Which interpretation is best? (shrink)

There is ample justification for having analogical material in standardized tests for graduate school admission, perhaps especially for law school. We think that formal-analogy questions should compare different scenarios whose structure is the same in terms of the number of objects and the formal properties of their relations. The paper deals with this narrower question of how legitimately to have formal analogy test items, and the broader question of what constitutes a formal analogy in general.

This article argues that women’s human rights were and are being violated in Afghanistan regardless of who governs the country: Kings, secular rulers, Mujahideen or Taliban, or the incumbent internationally backed government of Karzai. The provisions of the new constitution regarding women’s rights are analysed under three categories: neutral, protective and discriminatory. It is argued that the current constitution is a step in the right direction but, far from protecting women’s rights effectively, it requires substantial revamping. The constitutional commitment (...) to international human rights standards seems to be a hallow slogan as the constitution declares Islam as a state religion which clearly conflicts with women’s human rights standards in certain areas. The Constitution has empowered the Supreme Court to review whether human rights instruments are compatible with Islamic legal norms and, in case of conflict, precedence will be given to Islamic law. Keeping this in view, it is argued that Afghanistan’s ratification of the Women’s Convention without reservations has no real significance unless Islamic law dealing with women’s rights is reformed and reconciled with international women’s rights standards. (shrink)

I have stressed here and elsewhere that perspective cannot and need not claim to represent the world "as we see it." The perceptual constancies which make us underrate the degree of objective diminutions with distance, it turns out, constitute only one of the factors refuting this claim. The selectivity of vision can now be seen to be another. There are many ways of "seeing the world," but obviously the claim would have to relate to the "snapshot vision" of the stationary (...) single eye. To ask, as it has so often been asked, whether this eye sees the world in the form of a hollow sphere or of a projection plane makes little sense, for it sees neither. The one point in focus can hardly be said to be either curved or flat, and the remainder of the field of vision is too indistinct to permit a decision. True, we can shift the point of focus at will, but in doing so we lose the previous perception, and all that remains is its memory. Can we, and do we, compare the exact extension of these changing percepts in scanning a row of columns extended at right angles from the central line of vision—to mention the most recalcitrant of the posers of perspectival theory?1 I very much doubt it. The question refers to the convenient choice of projection planes, not to the experience of vision.· 1. I now prefer this formulation to my somewhat laboured discussion in Art and Illusion, chap. 8, sec. 4.E.H. Gombrich was director of the Warburg Institute and Professor of the History of the Classical Tradition at the University of London from 1959 to 1976. His many influential works include The Story of Art, Art and Illusion, Meditations on a Hobby Horse, The Sense of Order, and Ideals and Idols. An early version of "Standards of Truth" was presented at Swarthmore College in October 1976 at a symposium to mark the retirement of Professor Hans Wallach. His contributions to Critical Inquiry include "The Museum: Past, Present, and Future" , "Notes and Exchanges" , and, with Quentin Bell, "Canons and Values in the Visual Arts: A Correspondence". (shrink)

This paper addresses an important but relatively unexplored question about the relationship between conceptual ethics and other philosophical inquiry: how does the epistemology of conceptual ethics relate to the epistemology of other, more “traditional” forms of philosophical inquiry? This paper takes as its foil the optimistic thought that the epistemology of conceptual ethics will be easier and less mysterious than relevant “traditional” philosophical inquiry. We argue against this foil by focusing on the fact that that conceptual ethics is a form (...) of normative inquiry. Because of the epistemic difficulties that face normative inquiry, we should not expect conceptual ethics to constitute an epistemic panacea. Instead, although the epistemological upshots can vary from case to case, there are systematic reasons why this shift may exacerbate, rather than mitigate, the epistemic difficulties we face in pursuing philosophical inquiry. (shrink)

"The Austin of the Jurisprudence of Administrative Law" This book originated as a series of lectures presented at Johns Hopkins in 1915. It proposes a method to supplement the established doctrine of constitutional law, which enforces legislative norms through negation and review, by a system of positive principles that would guide the making of statutes and give more definite meaning and content to the concept of due process. Highly regarded since its original publication in 1917 and the winner of (...) Harvard Law School's Ames Prize in 1919, it went on to become a standard work. It was recommended, to cite two examples, in Roscoe Pound's Introduction to American Law (1919) and Arthur Vanderbilt's Studying Law (1945). A comment published at the end of Freund's career summarizes a general opinion: "The great quality which Ernst Freund brought to the study of administrative law was his capacity for analysis. He was the Austin of the jurisprudence of administrative law." -W.I.J., Law Quarterly Review 49 (1933): 588. Ernst Freund [1864-1932] was Professor of Jurisprudence and Public Law at the University of Chicago. He is widely considered to be responsible for the development of administrative law in the United States. (shrink)

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

Qualitative research has tended to evoke rather stereotyped objections from the mainstream of social science. Ten standardized responses to the stimulus "qualitative research interview" are discussed: it is not scientific, not objective, not trustworthy, nor reliable, not intersubjective, not a formalized method, not hypothesis testing, not quantitative, not generalizable, and not valid. With the objections to qualitative interviews highly predictable, they may be taken into account when designing, reporting, and defending an interview study. As a help for new qualitative researchers, (...) some of the issues, concepts, and arguments involved are outlined, and the relevancy of the standard objections is discussed. Alternative conceptions of qualitative research, coming from phenomenological and hermeneutical traditions, are suggested. The qualitative interview based on conversation and interaction here appears as a privileged access to a linguistically constituted social world. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Standards of Music Education and the Easily Administered Child/Citizen: The Alchemy of Pedagogy and Social Inclusion/Exclusion Thomas S. Popkewitz and Ruth Gustafson University of Wisconsin-Madison Educational standards are forsome a corrective device to promote the twin goals of excellence and equity by making explicit the performance outcomes ofschooling. For others, performance standards do not do what they say and install the wrong goals for teaching. But (...) various sides in the debate assume that school subjects teach the subjects and what is needed are more effective and efficient classroom practices. Our approach is different. We consider the standards of school subjects as related to the conditions of state governing. School subjects inscribe principles that administer the conduct ofthe child who is to grow into the "reasonable citizen." The Standards Movement is more than what is publicly discussed. Pedagogy embodies particular ways ofthinking or a system ofreason in which pedagogy orders who we are, who we should become, and who are not qualifiedto become that "we." If we think of modern schooling as an inscription device in the fonning of the citizen through the development ofthe child, the crux of the debate is not whether to have standards. It is how particular standards are inscribed through pedagogicalpractices. Ifwe treat school subjects as analogous to a uniform system of taxes, the developmentofuniformmeasurements, andurban planning in the modem state, our concern is with the boundaries created about the rules and standards of reason and the reasonable person. Pedagogygoverns inadoublesense: schoolmusic embodies representations that constitute the objects that children act on as real, and it generates principles to orderand patrol the borders that qualify and disqualify individuals for participation. The standards that govern music education can be thought about as an alchemy.1 The field of music is transported and translated into school subjects andpedagogical content. As the sorcerer ofthe middle ages sought to turn lead into gold, a specializedpedagogyplaces children in a new set ofrelations that is no longerthe academic field of music. Why is the alchemy important? First, the alchemy ofschool subjects is a particular system of reason that fabricates the kinds of people administered in schooling. Second, the alchemy reconfigures the sensitivities and awarenesses of the field of music to make the child's "soul" the site of administration. That soul in music and other school subjects is talked about today as personaldevelopment, self-reflection,personality, and character. Third, school subjects are sites in which the relations between the state, society, community, and individuality are worked and reworked to produce the borders ofinclusion and exclusion. The first section of this paper considers school subjects as a practice of governing that administersprinciples (orstandards ifwecanplay with that word) about who we are and should be. The second section considers psychology as the translation device that transports academic disciplines into school subjects. It may seem odd at firstglancebutthesamepsychologicaltransportation systems exist across school subjects. The historical intervention of the transportation system, we argue in the third section, has little to do with understanding music or science, but with governing the soul. In that section we examine the different cultural practices that overlap to©Philosophy ofMusic Education Review 10, no. 2 (Fall, 2002): 80-91. Thomas S. Popkewitz/Ruth Gustafson 81 generate principles that orderthe nature ofmusic, the child/childhood, teaching, and reflection and subjectivity in music education. The discussion is not about the internal structure or the goodness ofmusic education but the particular frames of reference that form the evidence and possibilities of reform in school subjects. We take up the task ofinquiry into the alchemy of music as part of a broader project to show the contingency ofthe arrangement that we live by showing how thought has played a part in holding those arrangements together and to contestthe strategiesthatgovernthehumanpossibilities. The Art ofGoverning: Standards as Mapping Who We are/to Become Themodern state governs through developing a precise system of classifications and the correct sorting devices to chart a course ofaction that will change society for the better and which will prevent any futurejoining ofthe ranks ofthe poorly performing. To govern is to develop systems ofclassification that calculate and make legiblepeople fortheadministrationofthe society and the citizen. Mass schooling is a central institution in... (shrink)

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts (...) of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Standards and Assumptions, the Limits of Inclusion, and Pluralism in PsychiatryBennett Knox*, MA (bio)Let me begin by expressing my gratitude to AAPP, PPP, and the Jaspers Award Committee—I am deeply honored to receive this award. So too let me thank Anke Bueter (2022) and Awais Aftab (2022) for their thought-provoking commentaries. Many of the concerns they bring up are ones that I share, so I am delighted to (...) have a chance to discuss them in my response. I will bring up three central issues in turn: 1) the role of shared standards versus background assumptions, 2) the limits of inclusion, and 3) pluralism in psychiatry.Shared Standards or Background Assumptions?Both Bueter and Aftab reference Longino's "shared public standards" criterion for social objectivity (1990, p. 77; 2002, p. 130), which I did not explicitly discuss in the original paper (Knox, 2022). This was a choice I made partly because in the case of psychiatry determining what constitutes an appropriate "shared public standard" is often not at all straightforward, which points to a potential problem for Longino's view. Namely, in some cases it is a matter of dispute whether some assumption shared within a scientific field should be counted as a "shared public standard" (which Longino requires that there be) or a "background assumption" (which she requires be subjected to critical scrutiny). And it is sometimes unclear how we could effectively adjudicate this type of disagreement.Take the example Bueter uses of "psychiatrists aiming for biomedical explanations of a particular mental disorder, whereas the critics value research that does not assume the existence of mental disorders" (2022, p. 273). A conflict along these lines often does arise between advocates of the pathology paradigm and the neurodiversity paradigm with regard to Autism, for example.1 A psychiatrist working within the pathology paradigm may argue that something like "psychiatry must deal only with mental disorders, understood as pathologies" constitutes a shared standard, and so psychiatric research on Autism must understand it as a pathology. An advocate of the neurodiversity paradigm, however, might argue that this same proposition [End Page 275] is merely a normative background assumption shared among many psychiatrists, which ought to be questioned and ultimately rejected. How might we adjudicate this meta-disagreement about the status of this standard/assumption?Bueter gives some helpful guidance on this issue by pointing to Carrier's requirement that participants exhibit the "epistemic attitude" (2013). I agree that if all participants commit themselves to this attitude, then "…differences in conceptual resources and standards of assessment need not make shared deliberation impossible, and the standards can be a subject of discussion themselves" (Bueter 2022, p. 273). For instance, since this attitude requires some commitment to empirical adequacy, we might search for some empirical evidence that favors one paradigm over the other. But advocates of both paradigms might actually agree on all the empirical facts, and yet still have a deep disagreement about which paradigm's understanding should be accepted as a shared standard. If participants are committed to some common standards and goals, we may often be able to resolve this sort of problem. But there is still a danger that we may arrive at an impasse, with no clear idea how to proceed.Though in many cases scientific experts must be allowed some power to set the standards in their domain (lest we dilute that expertise in ways that Aftab rightly points out would be problematic), I would also caution against accepting that something is a legitimate shared public standard just because the members of a scientific community say so. In keeping with the spirit of Longino's reliance on Quine, none of our shared standards are in principle immune from revision—save perhaps a minimal commitment to empirical evidence and rational argument.The Limits of InclusionMy impression is that Longino's response to the "Nazi problem" presented by Hicks (2011) might be to bite the bullet: her account does require allowing Nazi scientists to participate, and perhaps even cultivating their participation. But if (as seems likely) the Nazi shows themself to be unable to adhere to the shared standards... (shrink)

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate (...) some institutional modifications of democratic principles if compared with national democracy, and that Euro‐democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community. (shrink)

In this article, I consider a curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with political resentment and anti-establishment sentiments—and how we may begin to address that challenge through creative constitutional designs. Specifically, I draw upon insights from comparative constitutionalism to discuss four main areas of constitutional law and theory that appear to hold some intellectual promise in this context: formal constitutional commitment at the national level to recognizing (...) the urban/rural divide and commitment to addressing it; creative electoral system designs that take into account the spatial dimension of politics; spatial pluralization based on concepts such as “mixed constitutions,” “community standards,” and “margin of appreciation”; and rethinking elements of equalization and fiscal federalism more generally. Taken together, the four directions I discuss here offer a repertoire of constitutional design possibilities that hold promise in mitigating the resurging rural/urban gulf. More generally, they serve as an invitation to constitutional thinkers to shake up the rather stagnant constitutional thought of spatial governance, and to think creatively about the ever-expanding urban/rural divide and its consequences for the theory and practice of 21st century constitutional democracy. (shrink)

The European Union stands before a constitutional moment. While some deny the need for a constitution and others want a familiar federal form, I argue that one of the main goals of the constitutional convention ought to be to make the European Union more democratic. The central question is: what sort of democracy is suggested by some of the more novel aspects of European integration? This question demands a normative standard by which to evaluate the realization of democracy (...) in transnational polities. Along republican lines, the proper standard is nondomination. With this normative framework in mind, the problem that the constitution has to solve is juridification, or the possibility of legal domination where there is no unified sovereignty. The solution to this problem of legal domination requires that the constitution institute a reflexive legal order best realized in a deliberative federalism appropriate to a polycentric and diverse polity. Finally, the institutions of this federalism ought also to be characterized through their distinctive form of inquiry, which, borrowing from Gerald Ruggie, I call ‘multiperspectival’. In a transnational polity with multiple demoi, such a democracy is best realized through dispersed and plural forms of authority and in a differentiated institutional structure anchored in a reflexive constitution. (shrink)

Behavioral paternalism raises deep concerns that do not arise in traditional welfare economics. These concerns stem from behavioral paternalism’s acceptance of the defining axioms of neoclassical rationality for normative purposes, despite having rejected them as positive descriptions of reality. We argue that behavioral paternalists have indeed accepted neoclassical rationality axioms as a welfare standard; that economists historically adopted these axioms not for their normative plausibility, but for their usefulness in formal and theoretical modeling; that broadly rational individuals might fail to (...) satisfy the axioms for various reasons, making them unpersuasive as normative criteria; and that even if their violation did constitute irrationality, that would not justify paternalists’ choosing among inconsistent preferences to define an individual’s “true” preferences. (shrink)

Mainstream metaphysics has been preoccupied by inquiring into the nature of major kinds of entities, like objects, properties and events, while avoiding minor entities, like shadows or holes. However, one might want to hope that dealing with such minor entities could be profitable for even solving puzzles about major entities. I propose a new ontological puzzle, the Shadow of Constitution Puzzle, incorporating the old puzzle of material constitution, with shadows in the role of the minor entity to guide our approach (...) to the issues involved. I then analyze the standard answers to the original puzzle of constitution, in their role as potential solutions to the new puzzle. Finally, I discuss three views that can solve the proposed puzzle. (shrink)

The standard reply to the critique that narrative theories of the self are either chauvinistic or trivial is to “go implicit”. Implicit narratives, it is argued, are necessary for diachronically structured self-experience, but do not require that such narratives should be wholly articulable life stories. In this paper I argue that the standard approach, which puts forward a phenomenological conception of implicit narratives, is ultimately unable to get out of the clutches of the dilemma. In its place, I offer an (...) alternative approach that does avoid the dilemma, by construing implicit narrativity as an enabling condition for experiences, rather than as something that is itself present in experience. According to this constitutive account, the coherence and intelligibility of our experiences is due to the fact that they are anchored in a larger, diachronic context. This context, I argue, takes a fundamentally embodied and narrative dimension. (shrink)

The constitution’s standing as a legal act of the highest power not only ensures its exclusive status in the legal system but also determines the hierarchic certainty of all norms within that system. The explicit character of the constitution does not preclude it from ensuring the hierarchical functionality of the legal system. This latter function requires that the limitation “problem” of explicitness be addressed by interpreting the constitution as a systemic document. Applying the constitution, therefore, requires a continuous effort in (...) comprehending it. The official doctrine of constitutional judicial institutions reflects the standard for understanding the constitution. This standard becomes the sole source, not only de jure, but significantly de facto, for determining the legality of legal acts. The constitution, as the prime and foremost law in a country, determines the functionality of the entire system of legal norms. As a legal source, it takes on the role of the material arbiter of final legality. The constant need to ensure the functioning of the system of legal norms hence informs yet another necessity–to apprehend and understand the constitution and the norms and principles established within. A few factors induce this perpetual need for interpretation, those being (a) the abstractness of constitutional norms, (b) “competition” among constitutional norms, (c) the integral and systemic nature of the constitution, and (d) the problem of legislative/regulative omission in the constitution. (shrink)

Duties constitute an integral part of the constitutional scheme of values. The nature and influence of duties is of great interest to practitioners and scholars. The literature on the subject is primarily concerned with the exactness of duties as operational values within constitutions. In general, Bauer and Bolsinger attribute three functions to constitutional values. Namely, they regulate by directing human action at the desired target, enabling legitimation and justification of actions, and simplifying decision-making. While debating whether duties have (...) a functional quality, several questions gain prime importance. To name a few- do constitutional duties enable positive action? Is there a universal binding framework on duties? How are duties related to other constitutional values within constitutions? Are duties within constitutions interpreted in light of international standards? Are there unenumerated or un-written duties? etc. (shrink)

I argue that considerations pertaining to constitutive luck undermine historicism—the view that an agent’s history can determine whether or not she is morally responsible. The main way that historicists have motivated their view is by appealing to certain cases of manipulation. I argue, however, that since agents can be morally responsible for performing some actions from characters with respect to which they are entirely constitutively lucky, and since there is no relevant difference between these agents and agents who have been (...) manipulated into acting from a character bestowed upon them by their manipulators, we should give up historicism. After presenting this argument and defending it against some potential objections, I briefly criticize the standard structuralist alternative and propose a new structuralist position that is shaped by reflection on constitutive luck. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 36.2 (2003) 119-134 [Access article in PDF] The Constitution of Rhetoric's Tradition Maurice Charland Rhetoric is not a discipline. That is to say, as a domain of theoretical and practical knowledge, rhetoric is weakly institutionalized, lacking a centralized arbiter and standardized set of procedures for establishing truth claims. It also lacks the basic characteristics that Michel Foucault defines as disciplinary, for while we can identify "groups (...) of objects, methods, their corpus of properties considered to be true, the interplay of rules and definitions, of techniques and tools," these are neither universally admitted, nor do they "constitute a sort of anonymous system, freely available to whoever wishes, or whoever is able to make use of them, without their being any question of their meaning" (1972, 222). On the contrary, despite the fact that rhetoric is usually figured as offering practical and, indeed, positive knowledge, the meaning of its terms is always being questioned and at stake. While we might, by considering terms loosely, seek to identify rhetoric in terms of objects such as "persuasion," or "discourse," these are not exclusively its province. Furthermore, the ends of rhetoric are themselves unclear. Is rhetoric really the art of discovering the available means of persuasion? Or is it an art of citizenship? Or a method of enquiry? It has at times been defined as each. Consequently, none of these methods can fix its identity. At most, we can say that "rhetoric," as a domain of knowledge, signals a commitment to the idea of agency in discourse.Rhetoric, while not disciplinary, nevertheless "hangs together" as a domain of knowledge even though it does not cohere conceptually. It is, or comes close to being, a "discursive formation." That is to say, we can identify a field that produces statements concerning discourse and its operations, which is characterized by certain regularities that articulate with the term rhetoric itself. The first such regularity is the gesture of negation. Rhetoric refuses philosophy (or acts out having been refused by philosophy). [End Page 119] Rhetoric further is defined against other intellectual genres: rhetoric is not poetics, is not political science, is not ethics, though it may "speak" to them. Ultimately, though, this tells us very little about the nature of rhetoric's difference, for while refusal is effective in positing the existence of a boundary between rhetoric and other domains, the location of that boundary and what it contains remains unspecified. Rhetoric must also be attributed an at least provisional sense. This is accomplished by rhetoric's second gesture, which initially appears more substantial. Rhetoric is framed in terms of the positivity of a foundational "tradition." Indeed, the gesture toward tradition is ubiquitous. Consider, for example, both the title and principles of organization of Patricia Bizzell and Bruce Herzberg's (1990) anthology, George Kennedy's (1998) recursion to the idea of "tradition" even as he attempts to present rhetoric as a natural and cross-cultural phenomenon, recent feminist works that explicitly address "the tradition," 1 the routine citation of Classical authorities and examples, the recurrence of "new" rhetorics, including Burke's dramatism, Perelman's theory of argumentation, as well as Barthes' semiotics, which are offered as supplements to tradition's lacks, and, finally, the energy devoted to the study of the history of rhetoric. The rhetorical tradition, as something bequeathed or put in play by ancient teachers, appears to offer rhetoric a substance, a literature, and a set of problems, particularly through variants of two other principles of discursive formation identified by Foucault, commentary and the author-function. Even so, the gesture toward tradition does not imply the existence of a historically rooted and fixed corpus or model: "Tradition" is a vague term, there is no unproblematic canon of texts to be commented upon, and tradition itself, rather than Aristotle, Plato, or Cicero, stands as "author." What we debate is the meaning of the "tradition," the uneasy relationship between Socrates and Sophists, Plato and Aristotle, but as positions rather than personae. Furthermore, in the name of rhetoric, ancient and modern texts are often read against the grain, and what is... (shrink)

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

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)

Funders (located primarily in high‐income countries) and high‐income country researchers have historically dominated decision‐making within global health research collaborations: from setting agendas and research design to determining how data are collected and analysed and what happens with findings and outputs. The ethical principle of shared decision‐making has been proposed as a way to help address these imbalances within collaborations and to reduce semicolonial and exploitative forms of global health research. It is important to be clear about what shared decision‐making means (...) in order to ensure that it is not done in a tokenistic, shallow way. Thus far, the principle’s content has not been examined and articulated in detail. This paper aims to start the process of delineating a concept of fair shared decision‐making as a minimum standard for global health research. Using two hypothetical case examples, the paper will demonstrate that global health research practice is often inconsistent with ideal shared decision‐making. In such instances, it can be difficult to decide whether shared decision‐making within collaborations is fair. The paper describes how the two cases do not meet criteria for unfair or non‐ideal shared decision‐making, despite having potentially morally troubling features. The nuances of these examples of research practice help to generate clearer ideas about how to judge fairness in shared decision‐making. The paper concludes by presenting ideas about when soft power can be fairly employed between high‐income‐country and low‐ and middle‐income‐country partners and what fair compromise agreements may look like in shared decision‐making. (shrink)

In this incisive and thought-provoking book, Francois Venter illuminates the issues arising from the fact that the current language of constitutional law is strongly premised on a particular worldview rooted in the history of the states around the North Atlantic Ocean. Highlighting how this terminological hegemony is being challenged from various directions, Venter explores the problem that all constitutional comparatists face: that they all must use the same words to express different meanings. Offering a compact but comprehensive (...) class='Hi'>constitutional history, Venter investigates the ways in which the standard vocabulary does not fit comfortably in many contemporary constitutional orders, as well as examining how its cogency is increasingly being questioned. Chapters contextualize comparative constitutional methods to demonstrate how the language choices made by comparatists are shaped by their own perspectives, arguing that careful explanation of the meanings attached to constitutional terms is imperative in order to be persuasive or even understood. Tackling the foundational elements of the field, this book will be a critical read for constitutional scholars across the globe. It will also be of interest to high-level practitioners of constitutional law and political scientists for its investigation of terminology that is crucial to their work. (shrink)

The U.S. Constitution provides a framework for our laws, but what does it have to say about morality? Paul DeHart ferrets out that document’s implicit moral assumptions as he revisits the notion that constitutions are more than merely practical institutional arrangements. In _Uncovering the Constitution’s Moral Design_, he seeks to reveal, elaborate, and then evaluate the Constitution’s normative framework to determine whether it is philosophically sound—and whether it makes moral assumptions that correspond to reality. Rejecting the standard approach of the (...) intellectual historian, DeHart for the first time in constitutional theory applies the method of inference to the best explanation to ascertaining our Constitution’s moral meaning. He distinguishes the Constitution’s intention from the subjective intentions of the framers, teasing out presuppositions that the document makes about the nature of sovereignty, the common good, natural law, and natural rights. He then argues that the Constitution constrains popular sovereignty in a way that entails a real common good, transcendent of human willing and promotive of human well-being, but he points out that while the Constitution presupposes a real common good, it also implies a natural law that prescribes the common good. In critiquing previous attempts at describing and evaluating the Constitution’s normative framework, DeHart demonstrates that the Constitution’s moral framework corresponds largely to classical moral theory. He challenges the logical coherency of modern moral philosophy, normative positivism, and other theories that the Constitution has been argued to embody and offers a groundbreaking methodology that can be applied to uncovering the normative framework of other constitutions as well. This cogently argued study shows that the Constitution presupposes a natural law to which human law must conform, and it takes a major step in resolving current debates over the Constitution’s normative framework while remaining detached from the social issues that divide today’s political arena. _Uncovering the Constitution’s Moral Design_ is an original approach to the Constitution that marks a significant contribution to understanding the moral underpinnings of our form of government. (shrink)

Suppose we agree to reject the view that privacy has narrow scope and consequently is irrelevant to the constitutional privacy cases. We then have (at least) these two options: (1) We might further emphasize and draw out similarities between tort and constitutional privacy claims in order to develop a notion of privacy fundamental to informational and Fourth Amendment privacy concerns as well as the constitutional cases. We can cite examples indicating this is a promising position. Consider consenting (...) homosexuality conducted in one's home, for instance. We view it as a private matter, whether the state is seeking to regulate the behavior, or if others are attempting to gain or exploit information about it. I believe basic conceptual similarities between tort and constitutional interests can be identified by showing that there is a range of similar reasons for protecting both tort and constitutional privacy concerns. We might worry, however, that a comprehensive concept of privacy may be too general to be very useful, given that privacy violations can be so diverse, and can arise, for example, from misuse of confidential information, from conduct that is intrusive even if no information is gained or disclosed, from disturbance of an intimate relationship, or from disruption of various other important aspects of one's life.(2) We could concede that whatever “privacy” means in the tort and Fourth Amendment cases, it means something different in the constitutional cases. Nevertheless, we might take that “something else” seriously as a distinct but legitimate use of the term which is not “spurious” but is reflected in our ordinary language. This appears to me to be a fruitful alternative. After all, contrary to Henkin's view that tort privacy is “what most people mean by privacy,” the term is often used in contexts beyond informational privacy and clearly related to the interests at stake in the constitutional cases. Thus, for example, in a pamphlet explaining how to protect children by teaching them how to say “No!” to strangers without making them paranoid or antisocial, parents and teachers are told, Children have a right to privacy. Teach it. Reinforce it. One of the ways to help children prevent sexual assault is to encourage them to develop a sense of physical integrity. A sense that they have a right to their own body space and privacy. Just as we allow them to close the door when they use the bathroom, we must allow them to say no to any unwanted physical affection and touch. Flora Calao and Tamar Hosansky, “The Key to Having Fun is Being Safe: Teaching Personal Safety to Children,” The Safety and Fitness Exchange, 1123 Broadway, N.Y., N.Y. 10010. Unfortunately, the most obvious starting point for identifying the sense of private relevant to the constitutional cases is extremely worrisome. The Court itself has said ... only personal rights that can be deemed “fundamental”...are included in this guarantee of personal privacy...the right has some extension to activities relating to marriage...procreation...contraception...family relationships... and child rearing and education.Roe v. Wade, 410 U.S. 113 (1973).The difficulty, of course, is that little more is offered by way of explanation of which rights are “personal” or “fundamental” or both. Focusing on marriage makes Roe v. Wade difficult to understand given that Ms. Roe was unmarried, and attending only to family issues does not help us make sense of the Stanley case protecting one's right to view pornography in one's home. It is perhaps more problematic that decisions such as what color shoes to wear are reasonably viewed as personal, yet are far from fundamental enough to warrant protection. And regulations governing the draft and employment, for example, are not viewed as privacy invasions although they might be said to interfere with matters of one's life that are both fundamental and personal in the vague sense described.Before we give up in frustration, however, I would urge that we recall that even in tort law the notion of privacy has been evolving through a constellation of judgments. Although there is no fixed way of using the term which we then proceed to analyze, the concept of privacy has not in those cases been taken to be meaningless or empty. Similarly, there is reason to believe that the scope of a “personal and fundamental” notion of privacy relevant to the constitutional cases can be further delineated through a consideration of cases, especially since it seems to me that in many cases application of the term is clear and unproblematic. A decision to have a vasectomy, for example, can uncontroversially be said to be a personal and fundamental one, and it is in that sense private. We fail to acknowledge the personal significance in an individual's life of forcing or refusing him the operation if we deny that this important sense of privacy is relevant to such a decision merely because an interest in determining for oneself what one ought to do is also at risk.Of course, once it is settled that something is a private matter, it is a separate issue to decide whether or not, in some social context, an invasion of it can be justified. Thus, I would claim, a mandatory sterilization program for male recidivists or for those in a country suffering grave poverty and overpopulation does invade privacy, and the social or legal question is whether or not the invasion can, in the particular circumstances, be justified. Although all will agree that both individual and social interests must be balanced by moral philosophers as well as the courts, in conflicts we will not always agree on the weight to be accorded individual claims.I have not provided a constitutional defense for citing privacy as one right at stake in the constitutional privacy cases. Nor have I attempted to enter the debate about how strictly to interpret the Constitution. But if I am correct, then we can agree there is an important interest in privacy at issue in those cases without merely conflating privacy and autonomy or liberty, and can continue the process of marking out its boundaries. If we reach such agreement, we will have made considerable progress. Moreover, the implications of this view are significant. Current constitutional standards, controversial though they may be, require “strict scrutiny” for cases concerning “fundamental values,” and privacy has been judged to be one such value. Thus these privacy claims have a greater chance of being protected when they conflict with other rights or general interests than they would have if only liberty, or freedom from governmental interference, were involved. (shrink)

in a nervous system of a given species. This chapter provides a critical perspective on the role of connectomes in neuroscientific practice and asks how the connectomic approach fits into a larger context in which network thinking permeates technology, infrastructure, social life, and the economy. In the first part of this chapter, we argue that, seen from the perspective of ongoing research, the notion of connectomes as “complete descriptions” is misguided. Our argument combines Rachel Ankeny’s analysis of neuroanatomical wiring diagrams (...) as “descriptive models” with Hans-Joerg Rheinberger’s notion of “epistemic objects,” i.e., targets of research that are still partially unknown. Combining these aspects we conclude that connectomes are constitutively epistemic objects: there just is no way to turn them into permanent and complete technical standards because the possibilities to map connection properties under different modeling assumptions are potentially inexhaustible. In the second part of the chapter, we use this understanding of connectomes as constitutively epistemic objects in order to critically assess the historical and political dimensions of current neuroscientific research. We argue that connectomics shows how the notion of the “brain as a network” has become the dominant metaphor of contemporary brain research. We further point out that this metaphor shares (potentially problematic) affinities to the form of contemporary “network societies.” We close by pointing out how the relation between connectomes and networks in society could be used in a more fruitful manner. (shrink)