Constitutional Law

Democracy has been hailed as a global phenomenon and the most popular feature of modern political thought. Several notable efforts have been made by the global community to promote and extend democracy to cover billions of people, with their varying histories, cultures, and disparate levels of affluence. In 2007, the United Nations General Assembly resolved to support the efforts of governments to promote and consolidate new or restored democracies. The GA in this regard stated that “democracy is a universal value (...) based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. Also, while democracies share common features, there is no single model of democracy, and that democracy does not belong to any country or region, reaffirming further the necessity of due respect for sovereignty, the right to self-determination, and territorial integrity. In 2005, the United Nations Democracy Fund was created to implement projects aimed at enhancing democratic practice, promoting human rights, and encouraging participation of all groups in democratic processes. In contrast to its growing popularity, democracy has also been closely looked at with suspicion by experts- academic, political, and otherwise. Skeptics assert that “ the meaning of democracy is contested with no universal definition that is applicable.”. (shrink)

Much attention has been devoted recently to cases where a controversial speaker is invited to speak on campus and subsequently some members of the university seek to have that speaker disinvited. Debates about such scenarios often blur together legal, normative, and empirical considerations. I seek to help clarify issues by separating key legal, normative, and empirical questions. Central to my examination is the idea of the university as a multi-forum institution—i.e. a complex public institution whose parts contain different types of (...) forums. I conclude that it is sometimes legally and normatively permissible (1) for universities to disinvite speakers, and (2) for students to seek to get speakers they consider unacceptable disinvited. I also suggest that my arguments sometimes extent to shouting down speakers. (shrink)

This book brings recent insights about sovereignty and citizen participation in the Belgian Constitution to scholars in the fields of law, philosophy, history, and politics. Throughout the Western world, there are increasing calls for greater citizen participation. Referendums, citizen councils, and other forms of direct democracy are considered necessary antidotes to a growing hostility towards traditional party politics. This book focuses on the Belgian debate, where the introduction of participatory politics has stalled because of an ambiguity in the Constitution. Scholars (...) and judges generally claim that the Belgian Constitution gives ultimate power to the nation, which can only speak through representation in parliament. In light of this, direct democracy would be an unconstitutional power grab by the current generation of citizens. This book critically investigates this received interpretation of the Constitution and, by reaching back to the debates among Belgium's 1831 founding fathers, concludes that it is untenable. The spirit, if not the text, of the Belgian Constitution allows for more popular participation than present-day jurisprudence admits. This book is the first to make recent debates in this field accessible to international scholars. It provides a rare source of information on Belgium's 1831 Constitution, which was in its time seen as modern constitutionalism's greatest triumph and which became a model for countless other constitutions. Yet the questions it asks reverberate far beyond Belgium. Combining new insights from law, philosophy, history, and politics, this book is a showcase for continental constitutional theory. It will be a valuable resource for academics and researchers in constitutional law, political and legal philosophy, and legal history. Chapters 3, 4, 11, and 15 of this book are freely available as a downloadable Open Access PDF under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license available at https: //www.taylorfrancis.com/books/sovereignty-civic-participation-constitutional-law-brecht-deseure-raf- geenens-stefan-sottiaux/e/10.4324/9781003039525. (shrink)

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. How can the allocation of scarce treatments for COVID-19 and similar public health threats fairly and legally respond to these racial disparities? Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who (...) have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust. I argue that, to pass muster under current law, policymaking in this area must recognize a crucial distinction: prioritizing minority communities, such as hard-hit neighborhoods, without regard to individual race is typically legal, but prioritizing individuals on the basis of their racial identity faces is likely not. I also explain how prioritization on the basis of Native American status is allowable and legally distinct from prioritization on the basis of individual race. -/- In Part II, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part III, I argue that randomly allocating scarce medical interventions, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part IV, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require focusing on factors other than race, or potentially considering race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part V, I examine two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in hard-hit occupations, potentially alongside race-sensitive aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in education, would narrow disparities without classifying individuals by race. The other strategy would address the starkly disparate racial impact of deaths early in life by limiting the use of age-based exclusions from vaccine or treatment access that explicitly deprioritize the prevention of early deaths and so disparately exclude minorities, and by considering policies that prioritize the prevention of early deaths. (shrink)

(Introduction) Dignity is regarded today as a fundamental, or even the most fundamental, value across legal systems, at both international and national levels. It seems to be one of the values which provide a common axiological basis for different constitutional traditions across Europe (de Lange 2007: esp. 3-6). Moreover, taking account of its prominent place in the law of the United Nations, human dignity is one of the values on which the international community rests. The expression “human dignity” belongs to (...) the vocabulary of the “common language” of the international community and constitutionalism at a domestic level. The common understanding of this expression is paramount. One of the crucial questions, and one that will lie at the heart of our considerations, pertains to the foundations of human dignity. Europe is facing an essential change in understanding of the foundations of dignity, and this seems to be happening unnoticed. At the core of this change lies an abandonment of recognition of the inherent character of dignity, which is among the crucial elements of a universal paradigm for understanding human rights (Piechowiak 1999). This paradigm is based on the international law of human rights established in the framework of the United Nations after the Second World War, and – it should be added – in the face of the terrible experiences of two world wars. The considerations here serve to explain some of the consequences of this change for the understanding of human rights, especially their claim to be universal. It is argued that recognition of the inherency of dignity is interrelated and interdependent with recognition of the universality and equality of dignity, and – in consequence – with recognition of the universality and equality of human rights. The exclusion of inherency from the qualities of dignity recognized by law results in a rejection of the universality and equality of dignity and rights, or at least in fundamental changes in the understanding of universality and equality (cf. Piechowiak 2012). (shrink)

(OPEN ACCESS) This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External Restriction Approach to the justification of electoral quotas. The External Restriction Approach sees electoral quotas as at best justified restrictions on political participatory rights. I (...) argue for the Internal Restriction Approach instead, which can justify electoral quotas by specifying the pro tanto scope of political participatory rights rather than by justifying restrictions on the pro tanto scope of these rights. On this approach, adequately set electoral quotas do not even conflict with and are not balanced against political participatory rights, while electoral quotas—when justified—are pro tanto required rather than merely permitted. (shrink)

In three essays I consider how American constitutional law might be refashioned according to status egalitarian principles. In “In Defense of Immutability,” I take up the immutability criterion in 14th Amendment jurisprudence. In short, under the immutability criterion, social groups defined by the possession of an immutable trait receive heightened legal protection. Yet the Court has never clearly or persuasively defined “immutable,” and most legal scholars now reject the immutability criterion as descriptively inadequate and morally implausible. In this chapter I (...) offer a defense of the immutability criterion. In my view, the immutability criterion accurately captures an essential feature of unjust status hierarchies, namely, that dominant groups in a status hierarchy will tend to identify subordinate groups on the basis of stigmatized traits that possess a fixed social meaning. Equal Protection therefore requires the Court to look not to immutable physical or psychological traits but to the existence of immutable, stigmatized social identities. I conclude this Chapter by showing how my account of “social immutability” extends legal protection to traits such as language, hair, and gender presentation. In “The Badges of Slavery Revisited,” I consider Congress’s authority under Section 2 of the 13th Amendment to abolish racial status hierarchy. Since at least the late 19th century Section 2 has been understood as granting Congress the authority to abolish the “badges and incidents” of slavery. Surprisingly, however, there has been little historical inquiry into the meaning of the badges metaphor. Recently, legal historians have argued that Congressional authority to remove the badges of slavery should extend only to practices that mirror chattel slavery. In fact, as I argue in this Chapter, the badges metaphor was widely used in the antebellum period to condemn political subordination of many sorts, including misogynistic gender norms, exploitative labor relations, and segregation. Contemporary legal scholars who invoke the badges metaphor to condemn a wide variety of injustices, and not just those due to the legacy of chattel slavery, are thus correct in thinking that Section 2 remains an untapped font of legislative authority. Finally, in “The Case for Unconditional Birthright Citizenship,” I examine the moral justification for unconditional birthright citizenship. Contemporary egalitarians increasingly dismiss the practice as arbitrary and unjust; yet, in this essay I demonstrate that in multi-ethnic liberal democracies characterized by relatively high levels of immigration, unconditional birthright citizenship is necessary for creating a non-racialized, egalitarian national identity. Birthright citizenship expresses a fundamental legal commitment to incorporating, on equal terms, potentially vast demographic change into the body politic. Overall, I conclude that birthright citizenship has proven to be a deeply effective means by which to eliminate inherited status hierarchies and so deserves the support of contemporary egalitarians. (shrink)

The purpose of this article is to analyse world-view and mythological expressions in Russian and Soviet Constitutional acts that implicitly or explicitly refer to any kind of idea legitimising the shape of the state, its political system or the nature of political power. The object of the argument will be exclusively such provisions of fundamental laws which: having neither a purely regulatory nor a purely programmatic character, model mental representations of the world of the legal text by reference to ‘situationally (...) transcendent’ ideas in Mannheim’s sense ; justify the content of the legal provision by means of such imagery, without being part of the preamble or any different integral part of the Constitution, characterised by a different ontology of the text; justify the content of provisions linked to political power and/or the nature of the state. The materials of the analysis are: Fundamental Laws of the Russian Empire of 1906, the Constitutional texts of the Union of Soviet Socialist Republics of 1924, 1936 and 1977, and the current Constitution of the Russian Federation. Consecutive Constitutions of the Russian Soviet Federative Socialist Republic are also referred to. The analysed formulations, legally irrelevant in a conventional reading of a legal text, participate in the semiosis of both the provisions that contain them and the entire texts of the fundamental laws. In this way, the Constitutions incorporate into their complex of meanings either religious expressions, mythologised ideological figures or figures of historical memory associated with collective identity. (shrink)

Konstitution der Gemeinschaft Rus’. Herausgeber: Dr. Andrej Poleev, Stiftung für die Errichtung der konstitutionellen Ordnung, 2021.

This article aims to evaluate the contribution of Bentham’s ideas to the jurisprudential debate in view of their relevance vis a vis their contemporary reception. The focus is on Bentham’s revolutionary idea of publicity with its spill-over effects on contemporary debates on the rule of law and accountable and transparent governance. As far as the method is concerned, after having examined Bentham’s ideas on the rule of law and the debate they raised, the focus in the second section of this (...) article is specifically on his conception of publicity. Some critical remarks then show that Bentham’s focus on publicity and transparency has been rightly interpreted in the contemporary debate as an important contribution. However, it is their justification that it is judged to be problematic. In fact, the assessment of the fundamental importance of publicity for the rule of law and transparent and accountable governance leads to a critical engagement with contemporary readings of Bentham’s scholarship, in primis that of Gerald Postema, with a development of the latter’s republican interpretation. The direction of travel that is proposed is towards a more liberal republicanism. The article not only shows how Bentham’s contribution should be revaluated in view of contemporary interpretations, but also proposes directions for further research developments according to which contemporary conceptions of regulation need to take a reflexive turn while aiming at legitimate legality at the same time. (shrink)

I claim that hate speech is actually antithetical to free speech. Nevertheless, this claim invokes the misconception that one would be jeopardizing free speech due to a phenomenon known as "false polarization" – a “tendency for disputants to overestimate the extent to which they disagree about whatever contested question is at hand.” The real polarity does not lie between hate speech (as protected free speech) vs. censorship. Rather, hate speech is censorship. It is the censorship of entire sectors of the (...) population, a violation of their right to be heard, and at worse, an incitement to their extinction. The liberal attempt to try to fit the metaphorical round peg of hate speech into the square hole of free speech is impossible without revealing one’s reluctance to endow people of color, the LGBTQ community, women, and other socially oppressed groups as equal and deserving of full human dignity. I start by providing a clear definition of "hate speech", then I remind the reader of the original/historical political intent of the freedom of expression, and finally I illuminate the very real physical, psychological and social consequences of hate speech. (shrink)

Where the law protects human rights, the executive branch of government does well if it complies with the law, and goes wrong if it does not comply. And then you may think that the paradigmatic fun...

The concept of human dignity has been criticized as either too thick or too thin. However, according to the non-positivistic standpoint, the legal normativity of human dignity can be justified and thus strengthened by means of its moral correctness. From the individual perspective, Mencius’ understanding of human dignity as an intrinsic value and Kant’s formula of ‘man as an end in itself’ can be adequately understood based on the differentiation of, as well as the connection between, principium diiudicationis and principium (...) executionis, between will and choice, and between homo phaenomenon and homo noumenon (that is, ‘humanity in the personality’). From the social perspective, since the dual dimensions of the individual and the social person are both fictive constructions, even Radbruch, once as a supporter of social law, has not replaced the concept of ‘legal person’ and, in the post-War period, acknowledges individualistic human dignity as the criterion for applying the famous ‘disavowal formula’. On the one hand, human dignity shows at least a weak normative character, which requires, firstly, balancing between the exercise of state powers and the constitutional review under the guidance of the dual dimensions of man and, secondly, optimization of the principle of human dignity in individual cases. On the other hand, through the necessary connection between the concept of dignity and that of personality, human dignity can exhibit a strong normative character, which unavoidably requires a metaphysical justification. (shrink)

The author considers ethical and legal aspects of a developing of AI systems. He examines the ethical aspect through the prism of Kant’s philosophy and outlines moral prospects of (quasi)intelligent robots. The author considers the legal aspect in context of normative regulation of risks that arise with a creating of AI systems. In conclusion the author makes an assumption on forthcoming transformation of a legal system because of a new type of legal acts that combine classical form of legal act (...) and machine protocol. -/- В статье затрагиваются этический и правовой аспекты развития систем искусственного интеллекта. Этический аспект автор рассматривает с позиций философии И. Канта и обрисовывает нравственные перспективы создания (квази)разумных роботов. Правовой аспект рассматривается в контексте нормативного регулирования рисков, возникающих при создании систем ИИ. В заключении делается предположение о грядущей перестройке правовой системы в связи с возникновением нового типа НПА, которые сочетают в себе классическую форму НПА и машинного протокола. (shrink)

It appears that we know surprisingly little about how judges frame linguistically the rationale behind their decisions and how such texts are structured. Using the concept of rhetorical moves, this paper adopts a genre-based approach to examine the rhetorical structure of legal justifications provided in the decisions of the Polish Constitutional Court. The goal of the study is to verify the claim that the way justifications are drafted is becoming more and more uniform and conventional. The results show that there (...) is a common core of rhetorical structure realized by means of recurrent functional segments of text. This paper proposes a prototypical move structure of a Constitutional Tribunal justification and it argues that that the way justifications are drafted are subject to very concrete, even if not explicitly stated constraints. (shrink)

Поскольку до сих пор нет никакого судебного решения в отношении правомерности совершённых в прошлом и совершаемых в настоящем деяний, квалифицируемых как подлог и предательство, правовая оценка перестройки адресуется как юристам, так и всем прочим гражданам.

This essay is designed to do two things: -/- First, review and critique Katharine Bartlett and Mitu Gulati's Discrimination by Customers, 102 Iowa L. Rev. 223 (2016). -/- Second, stand alone as a piece that more generally evaluates (1) efficacy and (2) autonomy- and constitutional-based objections to the regulation (both in direct and indirect form) of customer discrimination.

It is commonly stated, by both whistleblower protection laws and political philosophers, that a breach of state secrecy by disclosing classified documents is justified if it serves the public interest. The problem with this defense of justified whistleblowing, however, is that the operative term – the public interest – is all too often left unclarified. This is problematic, because it leaves potential whistleblowers without sufficient certainty that their disclosures will be covered by the defense, leading many to err on the (...) side of caution and remain silent, depriving the public of much-needed information. Failing an agreed upon definition of the public interest or a process to determine it, judges’ applications of the public interest in whistleblowing cases have been criticized for demonstrating ‘judicial idiosyncrasy’. The present paper, therefore, sets out to provide some clarity concerning the concept of the public interest, and to ascertain the extent to which a public interest defense for whistleblowing is feasible and desirable. (shrink)

The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity has one more purpose; namely, it allows for the process of decision-making—and not just (...) for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness. (shrink)

The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity has one more purpose; namely, it allows for the process of decision-making—and not just (...) for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness. (shrink)

Текст проекта конституции был написан и опубликован летом 2013 года, и в 2017 году был принят в качестве основного закона общности Русь.

While agreeing with Seana Shiffrin that any free speech theory must depend on assumptions about our need for free thinking, I am sceptical about her claim that her thinker-based approach provides the best explanation for freedom of speech. Her argument has some similarities with Mill’s argument from truth and with self-development theories, though it improves on the latter. But the thinker-based approach does not show why political discourse, broadly construed, is protected more strongly in all jurisdictions than gossip and sexually (...) explicit speech. Nor does it explain why the ‘mass’ speech of corporations and the mailings of political parties and charities are fully protected by provisions such as the First Amendment. My article concludes with some reflections on the relationship of abstract political theory such as Shiffrin’s to constitutional law; abstract theory must inevitably make some compromises if it is fully to explain constitutional jurisprudence. (shrink)

This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show (...) that there are three major legal roadblocks for such a case to succeed in US law. First, US privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the US is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal, and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies. (shrink)

In his new book, IDENTITY, THE DEMAND FOR DIGNITY AND THE POLITICS OF RESENTMENT, Stanford University political scientist Francis Fukuyama addresses themes which might more properly be considered matters of political and legal philosophy. In particular, though he affirms the importance of the concepts of human dignity and identity, more or less as these are commonly understood in contemporary political debates and judicial decisions, he also sets himself against the contemporary phenomenon of identity politics which he views as a danger (...) to liberal democracy. “The rise of identity politics in modern liberal democracies,” writes Fukuyama, “is one of the chief threats that they face;” and moreover, “unless we can work our way back to more universal understandings of human dignity, we will doom ourselves to continuing conflict” (p. xvi). Readers learn in the Preface that “This book would not have been written had Donald J. Trump not been elected president in November 2016” (p. ix). Fukuyama warns of “political decay,” though he holds it had set in well before the shocks of Brexit and Trump in 2016, “as the state was progressively captured by powerful interest groups” viz. vetocracy, “a rigid structure that was unable to reform itself” (p. ix). In the Preface, Fukuyama also draws lines to his earlier works, including his essay “The End of History?” (1989), his related book, THE END OF HISTORY AND THE LAST MAN (1992) and his impressive recent volumes, THE ORIGINS OF POLITICAL ORDER (2011) and POLITICAL ORDER AND POLITICAL DECAY (2014). (shrink)

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously form (...) their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all cititizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production. (shrink)

The principle of equality before the law is often characterized as procedural or formal in nature. Recent scholarship has offered a more nuanced representation of this critique, maintaining that the principle is procedural in nature but emphasizing its instrumental value. This paper challenges that characterization, arguing that equality before the law is best interpreted as a foundational constitutional principle which manifests substantive restrictions on the content of legal rules. Equality before the law, as an independent constitutional principle, should not be (...) confused with the broader value of equality, nor with the rule of law: it incorporates aspects of both, mandating that legal subjects, including legal officials, be treated as prima facie equals in the creation, interpretation, and application of the law. As such, it in an integral normative foundation for the common law constitutional order. Any analysis of the common law constitution must adequately account for and give proper recognition to this foundational constitutional principle. (shrink)

Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of the logic of (...) normative standards—the determinate threshold conception—that the critic attributes to the putatively undermined account of legitimacy. The paper further claims that when we abandon threshold conceptions of the logic of legitimacy in favor of regulative-ideal conceptions, then the objections, from bootstrapping paradoxes to the very idea of constitutional democracy, disappear. It concludes with considerations in favor of adopting a more demanding conception of the regulative ideal of constitutional democracy, advanced by Habermas, focusing on potentials for developmental learning. (shrink)

This paper proposes a critical analysis of the essential criteria to define the concept of the political as presented by German jurist and philosopher, Carl Schmitt. Based on the essence of the political -i.e. the friend-enemy duality-, the objective is to explore the practical implications resulting from the actual possibilities of confrontation, the key scope being the analysis of a totalitarian potential from a Schmittian´s perspective. In Schmitt´s thought, this distinction is the fundamental reason for the definition of the political. (...) Not every opponent is necessarily the enemy --the other one, the unknown- and likely to be physically destroyed and exterminated but only a public enemy (hostis). Given its indeterminate nature, the enemy may be prescribed according to the sovereign design or, in the context of Nazi Germany where Carl Schmitt lived, in accordance with the President of the Reich´s designs. A hypothetical-deductive methodology is used in this work based on bibliographical research, in particular regarding Carl Schmitt´s theoretical constructions. (shrink)

La FIV puede llevar aparejada la acumulación de embriones humanos excedentes. Aunque la ley prevé varios posibles destinos, las clínicas de reproducción asistida, que con frecuencia han de decidir qué hacer con ellos, buscan criterios para hacerlo de la forma más razonable posible. Este trabajo pretende aportar razones jurídicas y éticas que ayuden a esa decisión.

Según la teoría contemporánea, un sistema jurídico existe cuando es eficaz en general. Así, identificar las normas jurídicas válidas en tal sistema sólo requiere cumplir con los requisitos establecidos en su correspondiente regla de reconocimiento.**** De modo que ni en la cuestión de la existencia del sistema ni en la de la identificación de sus normas tiene que ver la de la moralidad del derecho. Esto se pone en cuestión en este trabajo a través del análisis del derecho de la (...) represión durante la dictadura franquista y las medidas reparadoras adoptadas a partir de la transición a la democracia hasta nuestros días. (shrink)

Thomas Jefferson’s famous proposal; whereby a state’s constitution should be re-enacted every 19 years by a majority vote; purports to solve the intergenerational problem caused by perpetual constitutions: namely that laws which were enacted by people who are already dead bind living citizens without their consent. I argue that the model fails to fulfil its own normative consent-based aspirations. This is because it produces two groups of people who will end up living under laws to which they did not give (...) their consent: citizens who reach the voting age after the re-enactment process; citizens who did not assent to being obliged by the majority vote’s results. I reject possible responses to my argument by showing that they result in making the model either impractical or redundant. The remainder of the paper discusses whether implementing the model would enhance the consent-based legitimacy of the modern state. (shrink)

Conservadurismo y dogmática constitucional en Japón. Conservatism and the dogmatic part of constitution in Japan.

Modernity believed that processes of secularization and rationalization are universally applicable. What is taking place in the 21st century, however, suggests that the reverse, a process of de-secularization, is becoming the hallmark of the present age. In the case of Islamic civilization, in which law is shari'a, the challenge to secularization takes the form of a process of shari'atization. This is not the traditional or inherited shari'a, restricted to civil matters and to a penal code, but an invented shari'a, one (...) which also claims to be a constitutional law. Moreover, the constructed shari'atized constitutional law, in conflict with secular constitutionalism and appearing to offer no middle way, has been universalized to engender an international conflict between secularization and de-secularization. Since, for most Muslims, Islam without shari'a is unthinkable, this article examines the potential for religious reform of the shari'a in the direction of cultural change, freedom and democratic constitutionalism. (shrink)

Was liberalism really an outdated ideology in post-1945 European political systems, as claimed by some scholars? The great success of socialism on one side and various forms of Christian Democracy on the other could make that claim appear reasonable. In fact a closer view shows how postwar constitutions in some countries presented once again fundamental liberal values, reformulated in different words. One of the roots of that difference is the gap between the Anglo-Saxon approach to liberalism, which takes into account (...) history and communities, and the continental tradition of liberalism, linked to an abstract philosophical approach and highly dependent on long-standing struggles between Churches and the body politic. (shrink)

This article is the first step toward developing a general and systematic account of constitutional directive principles. Directive principles are an increasingly common way of constitutionally entrenching social values and provide an alternative to conventional rights provisions that has yet to be adequately understood. They place binding but typically non-justiciable obligations on the state to promote social values, and they are designed to be given effect by means other than direct judicial enforcement—predominantly, by legislation. This innovative design inserts an element (...) of political constitutionalism within legal constitutionalism. Understanding directive principles thus presents important challenges for the standard legal constitutionalist picture of social values constitutionalism, associated with judicially enforceable rights provisions. This article both defines these challenges and presents a new theoretical framework for analysing directive principles. In doing so, it challenges the adequacy of the dominant judicial rights-enforcement paradigm that continues to frame the analysis of social values constitutionalism. (shrink)

In a modern, plural society, there can be no settled agreement on the concrete legal content of a country's constitution. The idea of the constitution is nonetheless pivotal in contemporary, liberal‐minded theories of political justification, such as the ones advanced by Jürgen Habermas and John Rawls. Justification in these theories depends finally on “constitutional patriotism,” a consciously shared sentiment arising from an ethical assessment of their country by the country's people, according to which the country credibly pursues a certain regulative (...) political ideal for which the constitution stands. (shrink)

Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise act (...) reasonably. The defendant was a professional gambler who knew enough about police techniques to use a public telephone to make his business calls. Police agents attached a listening device to the outside of the phone booth, and sought to use the recordings against the defendant. The Supreme Court agreed with the defendant that the Fourth Amendment had been violated. Justice John Marshall Harlan's influential concurring opinion asserted that a person's privacy, in the sense of control over information, depended on two factors: “that a person have exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Fourth Amendment cases like Katz involve informational control; they define the circumstances under which the government may acquire information from or about a person without first obtaining the person's agreement. In contrast, cases like Griswold v. Connecticut, which barred the state from making it a criminal offense to use contraceptives, and Roe v. Wade, which restricted the state's power to prohibit or regulate abortions, used the language of privacy rights to protect a much broader interest in autonomous decision-making. Seeing these cases and related ones through lenseees provided by moral and political philosophy, scholars have attempted to describe what a morally sound constitutional law of privacy would be, and the broadest sense, dworkinian. That is, they seek to provide an account of privacy with two characteristics: it is broadly consistent with the relevant constitutional decisions, and it is the most morally attractive account possible that satisfies the requirement of consistency with the decisions. (shrink)

For anyone who teaches the philosophy of law this is an indispensible volume. Currie's intent is to provide a critical history of the Court's constitutional work for the first hundred years. In writing that history he displays the multiple methods of constitutional analysis and the techniques of opinion writing employed under seven Supreme Court justices. Not surprisingly, he concludes that judicial performance is not uniform. Currie makes no attempt to hide the vantage point from which he is writing. He assumes (...) that the Constitution is a law binding the judges no less than the other officials whose action the Court undertakes to review. He flatly states his conviction that judges have no right to ignore those constitutional limitations with which they disagree and adds that when Congress has acted within the powers granted by the Constitution, it is not for the Court to interfere. The same is true for state laws that do not offend the Constitution. "It follows," says Currie, "that the judges have no more right to invent limitations not found in the Constitution than to disregard those put there by the Framers. In short, when a judge swears to uphold the Constitution, he promises obedience to a set of rules laid down by someone else.". (shrink)

In the following paper is put in question the present-day dominant Italian ideology of the so called ‘new constitutionalism’, which considers human rights as an open-texture catalogue of claims which only the Constitutional Courts are entitled to interpret and implement. This ideology is considered as a tool for overcoming the traditional liberal rule of law in favor a of more and more developed rule of the courts.

In this article, I defend the justifiability of both concealed uses of executive prerogative as consistent with the end of self-preservation for which government is constituted by the people and its disobedient disclosure as consistent with the rational interest of the citizens of the constitutional state in non-subordination. Indeed, I argue both prerogative and disclosure are justifiable, despite the latter clearly operating at cross-purposes with the former. I also contend that disobedient disclosure aligns more closely with the justificatory conditions of (...) executive prerogative than more traditions forms of civil disobedience. My discussion is limited to the question of justification, highlighting the normative stakes of delegitimizing either mode of extra-legal discretionary judgment by executive or disclosers respectively. (shrink)