"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

In this volume, key contributors consider various elements of constitutional theory, creating a work of immense interest to legal scholars and political scientists alike.

The concept of the political -- Constituent power -- Identity and representation -- The concept of the constitution -- Human rights -- State, Grossraum, nomos.

Carnap’s thought not only played a pivotal role for the development of formal semantics and modern philosophy of science, but also engendered the profound methodological reorientation that distinguishes analytical from traditional ontology. Historically and systematically, Carnap’s formal approach to category theory is the primary source of influence on the three research programs that have given analytical ontology its distinctive profile: the design of constructional systems, the investigation of the expressive power of first order theories, and the meta-linguistic reduction of (...) abstract terms. Each of these research programs takes off from Carnap’s deflation of traditional category theory as set out in the Aufbau and modified in Syntax. None of these programs, however, follow Carnap in his claim that category theory, even in the attenuated sense of a derivational systematization of cognitive contents, may ultimately be separated from metaphysics or remain metaphysically “neutral.” Carnap’s “neutralism thesis” is taken to imply the stronger “elimination thesis,” his explicit anti-metaphysical pronouncements that stand and fall with semantic verificationism. However, I will argue, first, that the neutralism thesis is historically and systematically independent of the elimination thesis. Second, unlike the elimination thesis, the neutrality claim and Carnap’s attempt to cash it out in the Aufbau is important for the methodology of contemporary ontology, at least where it follows constructivist predilections. Third, Carnap’s neutrality claim in the Aufbau is supported by an implicit conception of reality as invariance-structure. Yet, just as the structuralization of referential domains may be able to warrant neutrality, it threatens the explanatory aspirations of constitution theory. This tension between neutrality and explanatory power sheds new light on the notion of “foundedness,” Carnap’s curious restriction on the interpretation of the system’s basic relation that has struck some as outright incoherent. (shrink)

Abstract In the contemporary literature on self-knowledge discussion is framed by and large by two competing models of self-knowledge: the observational (or perceptual) model and the constitutive model. On the observational model self-knowledge is the result of ?cognitively viewing? one's mental states. Constitutive theories of self-knowledge, on the other hand, hold that self-knowledge is constitutive of intentional states. That is, self-ascription is a necessary condition for being in a particular mental state. Akeel Bilgrami is a defender of the constitutive model. (...) I argue that the constitutive model gives rise to a regress problem. This paper will focus on that problem as well as its application to Bilgrami's version of the constitutive model. (shrink)

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...) the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

ExcerptCarl Schmitt's recently translated Constitutional Theory (Verfassungslehre), first published in 1928 at the end of a period of relative stability in Weimar Germany, is a strangely timely work—both with regard to the continued relevance of the themes and problems it discusses and with regard to the current state of scholarship about Weimar constitutionalism. But, first things first, as befits what was originally intended as a short review article: The translation is accurate, even though it was occasionally necessary to (...) break down Schmitt's legal Germanicisms into more manageable English syntax. The long introduction, jointly written by Jeffrey Seitzer and Christopher Thornhill,…. (shrink)

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often (...) disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today. (shrink)

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their (...) commitment to particular positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue. (shrink)

The contemporary global crisis can be explored in different perspectives. This text focuses on constitutionalism. It asks whether constitutionalism still matters. Responding to this question requires revisiting the basic analytical and normative concepts that shape individual autonomy, polity, law and democracy in the context of globalization. Part I of the article introduces the question of the crisis of constitutionalism. It briefly explores the dispute between proponents of state and post-state constitutionalism, and proceeds with an analysis of societal constitutionalism. The critical (...) reading of this theory prepares the ground for a positive normative argument. Part II of the article argues for the return to the moral core of constitutionalism. It defends the claim that justice at the global stage requires establishing a minimum common denominator that would be composed of universalizable substantive principles. The institutional question follows. Its focus should be on the authoritative identification, protection and advancement of the core values of constitutionalism in the social and legal-political realms of the world society. (shrink)

We enter here upon a history of conversational traffic between the respective departments of philosophy and law in the old academy of liberalism, where lawyers hear much from philosophers, yes-and philosophers hear from lawyers, too, in what has fruitfully been a both-ways exchange. Our philosophical protagonist is John Rawls. This book comprises a study of the rise and workings, within the Rawlsian political-liberal philosophy, of the idea of a country's higher-legal constitution as a public platform for the justification of political (...) coercion. A study of Rawls on constitutionalism can help us, I believe, in scoping out and managing a cluster of constitutional lawyers' debates-interminable ones, it seems, in the constitutional-democratic precincts of our times-that I will catalogue soon below. But conversely, I believe, those seeking the best and truest readings of Rawls might have something to learn from the controversies of the lawyers. My approach to Rawls has accordingly been that of a critically leavened (while no doubt broadly sympathetic) exegesis, while with the legal-discursive materials I take more of a diagnostic turn. My hope is that a treatment of these two discourses in relation to each other will prove an aid to both political-philosophical and legal-practical reflection. (shrink)

The paper traces, historically and systematically, the influence of Carnap’s philosophical program on the writings of Nelson Goodman, focusing on the relationship between Carnap’s Aufbau and Goodman’s Structure of Appearance. In particular, drawing on unpublished material from the Carnap Research Archives, I show that Carnap had already anticipated Goodman’s criticism of the method of quasi-analysis and that Goodman misconstrued the status of this procedure on several counts. I also argue that Carnap’s anti-metaphysical stance left his approach with an explanatory deficit (...) which Goodman’s pragmatist pluralism is able to address. (shrink)

This Handbook brings together contributions from leading scholars of constitutional theory, with backgrounds in law, philosophy, and political science. Its 60 chapters not only offer an exceptional survey of the field but also provide a major contribution to it. The book explores three main areas. Firstly, the values upheld by a constitution, including rights, freedom, equality, dignity and well-being. Secondly, the modalities of a constitutional system, such as the separation of powers, democratic representation, and the rule of (...) law. Finally, the institutions through which it operates, both legal and political; including courts, elections, parliaments and international organisations. It also considers the challenges confronting constitutional arrangements from growing inequality, populism, climate change and migration. (shrink)

The book is aimed at students and scholars of law, politics and philosophy. Of unprecedented breadth, it offers both a survey of, and an original contribution to, the field by some the world's leading scholars of constitutional theory.

How is constitution‐making possible, when people disagree on so many questions about what is good and what is right? The answer lies in the existence of incompletely theorized agreements–agreements on abstract formulations and on particular practices, amidst disagreement about the largest issues in social life. Such agreements help make constitutions and constitutional law possible, even within nations whose citizens cannot concur on the most fundamental matters. Incompletely theorized agreements thus help illuminate an enduring constitutional puzzle: how members of (...) diverse societies can work together on terms of mutual respect amidst intense disagreements about both the right and the good. (shrink)

Habermas' discourse theory stresses the autonomy of public deliberation transcending the spontaneous emergence of private networks of legal relationships between individuals. Only the public discourse which is detached from the inertia of overlapping practical forms of coordination can refer to the ideally designed social work of legitimated interpersonal relationships. The democratic constitution is regarded as a legal institutionalization of the priority of the public forum of discourse. Conceptions related to classical liberalism would question the cognitive potential of public deliberation, (...) and even deny its productivity as a normative frame of reference for (post‐)modern societies which are confronted with the challenge of uncertainty and the continuous process of self‐transformation. (shrink)

Deliberation and Decision explores ways of bridging the gap between two rival approaches to theorizing about democratic institutions: constitutional economics on the one hand and deliberative democracy on the other. The two approaches offer very different accounts of the functioning and legitimacy of democratic institutions. Although both highlight the importance of democratic consent, their accounts of such consent could hardly be more different. Constitutional economics models individuals as self-interested rational utility maximizers and uses economic efficiency criteria such as (...) incentive compatibility for evaluating institutions. Deliberative democracy models individuals as communicating subjects capable of engaging in democratic discourse. The two approaches are disjointed not only in terms of their assumptions and methodology but also in terms of the communication - or lack thereof - between their respective communities of researchers. This book provides a comprehensive overview of the recent debate between the two approaches and makes new and original contributions to that debate. (shrink)

This review essay examines the contribution of Legislated Rights (Webber et al, Cambridge 2018) to a central issue in constitutional theory: namely, how the institutional division of labour between the legislature and the judiciary with respect to the task of giving effect to constitutional rights is best understood and conceived. In doing so, the essay situates the work within contemporary scholarship and adopts a broadly comparative lens — a perspective that is mindful of key developments in (...) class='Hi'>constitutional law and theory over the past several decades. Ultimately, it is suggested that a critical weakness of the capacity of Legislated Rights to contribute to contemporary debates about judicial review is its lack of engagement with these developments. As a result, the work’s intervention largely misses its mark. It speaks to an outdated view that does not reflect contemporary constitutional practice or scholarship. (shrink)

Most questions commonly asked about international politics are ethical ones. Should the international community intervene in Bosnia? What do we owe the starving in Somalia? What should be done about the genocide in Rwanda? Yet, Mervyn Frost argues, ethics is accorded a marginal position within the academic study of international relations. In this book he examines the reasons given for this, and finds that they do not stand up to scrutiny. He goes on to evaluate those ethical theories which do (...) exist within the discipline - order based theories, utilitarian theories, and rights based theories - and finds them unconvincing. He elaborates his own ethical theory, constitutive theory, which is derived from Hegel, and highlights the way in which we constitute one another as moral beings through a process of reciprocal recognition within a hierarchy of institutions which include the family, civil society, the state, and the society of states. (shrink)

Philosophical Papers Vol.32(2) 2003: 149-155.

'...a 'must read' for all students of constitutional law, whatever their academic discipline...this excellent book accomplishes the author's purpose: it forces us to take textualism seriously.'-LEGAL STUDIES FORUM.

Volume 11, Issue 1, March 2020, Page 92-100.

There has been a flood of scholarship over the years on whether there is a “right to privacy” in the Constitution of the United States.Griswold v. Connecticut(1965) was, of course, the Supreme Court decision that opened the floodgates to this river of commentary. A subject search for “privacy, right of” in the College of William and Mary's on-line library catalog located 360 book titles. A perusal of the leading law review bibliographic indices turned up still more. Whether the Constitution contains (...) some sort of “right to be let alone” is plainly one of the central questions of contemporary constitutional discourse. (shrink)

New Constitutional Horizons is a solid and innovative contribution to a debate that has acquired a central position for decades in political and legal theory, but that nonetheless has left many uns...

What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do (...) class='Hi'>constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory. (shrink)

At first, despairing of justifying the Court's new-found rights as the products of interpreting the Constitution, many of the Court's supporters bit the bullet and proclaimed the legitimacy of "noninterpretivism." As an approach to justifying purportedly constitutional decisions, however, noninterpretivism's oxymoronic quality made it an easy target for the Court's detractors, who asserted that noninterpretivism was nothing more than rule by a federal judiciary unrestrained by any positive law.

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

In the post-1945 world, constitutionalism has transcended the nation state, with an array of transnational arrangements now manifesting constitutional characteristics—so says a growing number of scholars. This article reveals an earlier but largely forgotten discourse of transnational constitutionalism: the constitutional theory of the British Empire in the late 19th and early 20th centuries. Focusing on the work of Albert Venn Dicey, the article shows that, when the Empire was at the height of its power and prestige, British (...) constitutional scholars came to see the Empire as a constitutional order and project. For Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial constitutional order was balancing British constitutional principles with imperial unity. This article focuses in particular on parliamentary sovereignty, a constitutional principle that, for Dicey, was both necessary for and dangerous to the Empire’s integrity. An exercise in intellectual history, the article rethinks Dicey’s work and the constitutional tradition in which Dicey has played such an integral part, seeking to reveal empire's forgotten significance. (shrink)

The Constitution of Independence is a contribution to the newly rejuvenated subject of comparative Commonwealth constitutional law, politics, and history. In Australia, Canada, and New Zealand, a series of fascinating developments have been under way for more than a decade, characterized by independent thinking, experimentation, and cross-Commonwealth borrowing of constitutional ideas. These include the final termination of constitutional ties with the United Kingdom Parliament and the emergence of controversial issues including variably entrenched or implied rights and freedoms; (...) wide-ranging claims by indigenous peoples; republicanism; and assertions of national, popular, and sectional sovereignty.This book explores the development of constitutional thinking in Australia, Canada, and New Zealand from early domination by Imperial ideas, through the adoption of the Statute of Westminster and the contemplation of severing Imperial connections, to irreversible acquisition of constitutional independence in the 1980s. This book focusses primarily on sovereignty and the legal system, concepts which are also central to contemporary constitutional theory in Europe and the United States. The book closes with an evaluation of recent varied and often contradictory accounts of the constitutional foundations of Australia, Canada, and New Zealand, which depict a wide range of scenarios: from constitutional continuity and respect for the rule of law, to popular sovereignty and disguised revolution. Oliver argues that explanations of constitutional independence are characterized by their reliance on independent, country-specific constitutional thinking that evolved over the last century. on. (shrink)

Constitutional adjudication straddles law and politics, legal and political theory. Referring to legal controversies in Canada (free expression), Ireland (sexual morality) and Italy (religion), this book examines how constitutional judgements rely upon unarticulated political commitments. This interaction between "law" and "morality" allows us to escape the dichotomy of natural law versus positivism in a time when judges increasingly act as moral guardians.

Modal constitution theory is one of the most influential solutions to the paradoxes of coincidence, and the problem of personal identity. It rests on three fundamental premises: common-sense objects exist; sometimes objects coincide in space; the coincidence of objects in space requires explanation. In this article, the author offers a critique of the modal theory of constitution. First, the definition of the constitution is examined and a new argument is offered that modal theory either does not provide (...) asymmetry of the constitution or leads to an infinite series of constitutive objects, unsatisfactorily extending ontology. Also, the author demonstrates that possible additions to the constitutive definition, which can make the definition sufficient for asymmetric relation, lead to additional theoretical difficulties, leading to the logical impossibility of constitution relation. Second, the author demonstrates that the theory of constitution offers an unsatisfactory theory of identity because it faces three problems: the overpopulation problem, the epistemic problem, and the personal problem. All of these considerations lead the author to conclude that modal constitution theory is not metaphysically satisfactory. (shrink)

스피노자가 자신의 정치적 관점과 분석을 기술한 『신학정치론』과 『정치론』은 상당한 분량을 여러 형태의 국가형태(군주정, 민주정, 신정, 과두정 등) 간의 비교 및 각 국가형태의 헌정제도에 대한 분석에 할애하고 있지만, 정치제도학자로서 스피노자의 모습은 그간 활발히 논의되지 못하였다. 본 논문은 『신학정치론』에서 스피노자가 수행한 고대 히브리 국가의 신정 제도에 대한 분석을 재구성하면서, 그가 히브리 국가의 제도와 역사에서 민주공화정의 제도에 대한 어떤 교훈을 도출했는지를 탐구한다. 스피노자는 종교와 정치의 분리가 불가능하다고 보며, 종교적 제도들이 오히려 대중의 정치적 역량과 단합을 증진시킬 수 있다고 주장한다. 그러나 이를 위해서는 종교 엘리트의 (...) 권력을 제한하고, 다양한 종교 사이의 조화를 유지하는 정책이 필수적임을 강조한다. 논문은 신정 체제의 안정성이 정치적, 사회경제적 평등과 권력의 분배를 제도화하는데 성공했다는 점에 기인한다고 결론지으며, 스피노자의 히브리 신정 분석이 근대 민주주의에 주는 시사점을 모색한다. (shrink)