In this article the author claims that Waluchow’s “living tree constitutionalism” constitutes a “copernican revolution in our thinking”, because it provides not a mere common law theory of judicial review but a general theory of judicial review and of constitutional democracy. Although agrees that something like the common law methodology is at play here, disagrees on characterizing it as bottom-up. Accordingly, intends to praise the main aspiration of A Common Law Theory of Judicial Review: The Living Tree, (...) i.e. to provide a better understanding of charters and judicial re- view in a constitutional democracy by “the living tree” metaphor; to appraise an unwarranted claim, i.e. to reduce it to the common law bottom-up methodology; and, to raise the alternative with a friendly amendment, i.e. to identify the community’s constitutional political morality via, a method that is both bottom-up and top-down, which is already explicit —or at least implicit— in his account.Resumen:En este artículo el autor sostiene que el “constitucionalismo del árbol viviente” de Waluchow constituye una “revolución copernicana en nuestro pensamiento”, dado que proporciona no sólo una teoría del judicial review, sino una teoría general del judicial review y de la democracia. No obstante que el autor coincide en que en esta teoría de Waluchow existe un lugar para una metodología del common law, discrepa en caracterizarla como una que va de “abajo hacia arriba”. Por lo tanto, el objetivo del artículo es resaltar la importancia del argumento principal del libro A Common Law Theory of Judicial Review: The Living Tree por medio del cual se intenta proporcionar un mejor entendimiento de las garantías individuales y del judicial review, pero advertir una consecuencia innecesaria, es decir, reducir la explicación a una metodología del common law de “abajo hacia arriba”. A su vez el autor pretende proporcionar una corrección amigable: identificar la moralidad política constitucional de la comunidad a través de un método que es tanto de “abajo hacia arriba” como de “arriba hacia abajo”, metodología que se encuentra implícita en el libro de Waluchow. (shrink)

Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow neatly sidesteps the critique of judicial review based on the con- tention that constitutional rights are unacceptably indeterminate by arguing that it is this very indeterminacy that makes a common law method of legal interpretation appropriate. However, his contention that judges are able to ‘discover’ the underlying ‘authentic’ moral views of citizens is insufficiently grounded to meet the objection that common law reasoning utilising such unspecific material will result (...) in controversial decisions that reflect the val- ues and experience of an unrepresentative social and professional elite. He also ignores the important fact that electoral democracy is partly about the protection of vulnerable majorities against powerful minorities. However, Waluchow’s approach could be rendered more acceptable where there is the practical possibility of effective legislative on law style decision-making in the arena of human rights.Resumen:En su libro A Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow de manera elegante y sutil evita la crítica al judicial review con el argumento de que los derechos constitucionales son irremediablemen te indeterminados y sostiene que precisamente por este aspecto de inde terminación un método basado en el common law es adecuado para la in terpretación de los derechos. Sin embargo, su postura de que los jueces son capaces de “descubrir” las perspectivas morales “auténticas” de los ciudadanos no está bien fundamentada como para hacer frente a la crítica de que el método del common law, al utilizar dicho material poco específico, da como resultado decisiones controvertidas que reflejan los valores y experiencia de una elite profesional y social no representativa. También el argumento de Waluchow ignora que la democracia electoral tiene como objetivo proteger a mayorías vulnerables de poderosas minorías. No obstante lo anterior, la tesis de Waluchow puede ser más viable donde exista la posibilidad práctica de una revisión efectiva de las leyes a través de las decisiones propias del método del common law en el ámbito de los derechos humanos. (shrink)

As a metaphysic of human persons, constitutionalism in its most general form is the view that human persons are constituted by their bodies, but are not strictly identical to them. The relation between human persons and their bodies is that of constitution, a type of unity relation whose relata are strictly nonidentical; “constitution is not identity”, as the phrase goes. As the literature on constitutionalism is plentiful the proponents and critics of the view are many the author will (...) interact principally (though not exclusively) with the brand of constitutionalism defended by Lynne Rudder Baker. Constitutionalism runs afoul of an independently plausible principle regarding the relationship between persons and their mental lives, what Andrew Bailey has called the priority principle. The principal motivating factor behind the priority principle is that human persons are the ultimate source or originator of their mental lives. (shrink)

This paper deals with the nature and direction of constitutional thinking and practice in Pakistan. It is argued that the country reflects a general malaise of postcolonial societies, characterized by tension between the locus of power in the politico-administrative machinery and the source of legitimacy in the constitution. Under the classical formulation, the constitution represents the way a nation wants to live its collective life in terms of various laws and institutions, as well as the powers and duties of public (...) office-holders. In other words, the institutional-constitutional edifice of the state functions as the vehicle of a nation's life’. One finds comparable theories in the tradition of structural Marxism, for example in Poulantzas, which consider the state as a condensate of the power structure of the society. It is argued that there is a conceptual tension in the formulation of such theories. In the context of postcolonial societies, transplantation of institutions and constitutions from a different era and a different continent played a formative, almost deterministic, role in the way the state's authority was conceived and opera-tionalized. For more than a hundred years, British India remained a laboratory for the implementation of political, economic, legal and administrative values and norms. On the one hand, this shaped the way people came to look at their relations with the state in terms of new implements of power such as non-arbitrary sources of authority, codified law, rational-legal bureaucracy and rule of public representatives. On the other hand, it created the mass public itself which, in due time, rose to stake a claim for societal input into the business of the state. In other words, our discussion needs to go beyond the ahistorical approach to constitutionalism in Pakistan and elsewhere, as embedded in such concepts as the reflection of either the nation's will or the social power structure in a microcosm. The relative autonomy of the state apparatuses of the military, the bureaucracy and the judiciary, as well as constitutional provisions ranging from writ jurisdiction, equality before the law and equality. (shrink)

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints on (...) what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

We know that law is a major enabler of the human activities that cause climate change, biodiversity destruction, and related ecosocial crises. We also turn to the law to regulate, mitigate, and attempt to transform these unsustainable human activities and systems. Yet, these regulatory regimes are often “recaptured” or “overridden” in turn by the very anthropogenic processes causing the crises. The resulting vicious cycles constitute the global trilemma of the twenty-first century that is rapidly rendering the living earth uninhabitable (...) for humans, in radically unequal ways, and for thousands of other species. Integral, non-violent, sustainable democratic constitutionalism is one modest, experimental, trial-and-error response to this trilemma. (shrink)

ABSTRACT This article begins with a consideration of whether the January 6, 2021, attack on the United State’s Capitol building can be considered a form of “legitimate political discourse” and compares the insurrectionists to the Black Lives Matter protest movement. Both movements, as different and antithetical as they are, raised meta-questions about how it is that we establish by means of law the forms to express dissent. It is proposed that “constitutionalism,” namely, the doctrine that the primary means to (...) create and sustain free institutions are constitutions, which were and are result of historical events, i.e., revolutions such as the French, the American, and Haitian, that nonetheless unleashed normative powers and aspirations. After an analysis of constitutionalism through the lens of the US Constitution, the text turns to an analysis of what here are called “constitutional deconstructions.” Six such deconstructions are discussed: of the written constitution itself, of the law, of rights, of the people, of the state, and finally, of the Supreme Court as the protector and ultimate reader of the constitition. In this last section, the 2021 Report of the Presidential Commission on the Supreme Court of the United States is considered. (shrink)

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen” at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected (...) in the new originalist theories that have been developed principally in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 , is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: the doctrine of progressive interpretation; the use of a purposive methodology in progressive interpretation; the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and the presence of other constraints on judicial interpretation. (shrink)

"The Liberty for which Patriot Patrick Henry was willing to die was more than a rhetorical flourish. The American Patriots and Founders based their ideas about Liberty upon almost 200 years of experience on their own as well as the heritage of English Common Law and even back to the natural order of Thomas Aquinas, not to mention the philosophy of Aristotle and the Biblical Exodus of the Israelites from Egypt. In over 50-years of scholarship Ellis Sandoz has researched, documented (...) and contemplated the governance of man throughout the ages. The erudition brought to bear in this compact tome reflects a depth and breadth of learning that illuminates the subject with dazzling insight. Yet, he always reminds us that principles of Liberty are readily comprehensible to the common man. Sandoz worries that the present day adherence to political correctness limits our response to obviously murderous terroristic movements. He attacks academia for ignoring the spiritual nature of existence and events. He even chastens "social dogoodism" when it is provided instead of, rather than as a reflection of, spiritual nourishment. The book revolves around the motivation and context of the American Founding and drives home its relevance to contemporary living. The Founders fought against tyranny that attempted to control their physical and spiritual lives. Unjust governance was deemed to be without authority. Aristocrats and commoners ultimately must answer to the Final Authority. These concepts are reflected in the Declaration of Independence: "all men are created equal and they are endowed by their Creator with certain unalienable rights -- that among these are life, liberty and the pursuit of happiness." Sandoz is not only a scholar, but a grandfather; his words will engender Liberty for future generations."--Publisher's website. (shrink)

In recounting some of the key sociological insights offered by over 30 years of research on emotion management, or emotion regulation, we orient our discussion around sociological answers to the following questions: What is emotion management? How does emotion management occur? Why does it occur? And what are its consequences or benefits? In this review, we argue that emotion and its management are profoundly social. Through daily interactions with others, individuals learn to differentiate which emotions are appropriate when, as well (...) as the most effective ways to bring their feelings in line with culturally agreed-upon emotion norms. Emotion management is also functional, not only for the individuals who perform it, but also for the dyads, groups, institutions, and societies in which they are embedded. The social processes through which individuals learn to display culturally appropriate emotions have important implications on many levels, from interpersonal interactions to the development of social movements. (shrink)

Situational and experiential factors provide a moral lens through which people judge the morality or otherwise of actions. The research in this volume goes a step further and illustrates that individual differences may interact with these situational and experiential factors to explain the acquisition of positive attitudes to immoral behaviour.

This study aimed to identify the antibiotic-relevant lessons from the controlled drug regimen for narcotics. Whereas several elements of the United Nations Single Convention on Narcotic Drugs could be advantageous for antibiotics, we doubt that an international legally binding agreement for controlling antibiotic consumption would be any more effective than implementing stewardship measures through national AMR plans.

One of the central debates amongst U. S. constitutional theorists for more than a generation has been between (conservative) ‘originalists’ arguing that, in interpreting and applying the Constitution, judges are duty bound to adhere to the original understandings at the time of the Constitution’s adoption and (liberal/progressive) ‘living constitutionalists’ arguing rather that, when appropriate, judges should read the Constitution in light of contemporary needs and moral aspirations. While acknowledging the significance and legitimacy of the originalist call for fidelity to (...) history and newly incorporating elements of their arguments into his theory, Fleming, in Fidelity to Our Imperfect Constitution, re-affirms moral aspirationalism as the ultimate foundation of the interpretive project. I argue here, as against Fleming, that the opposition that he (and other American constitutional theorists) have drawn between originalism’s historicism and living constitutionalism’s moral aspirationalism is a false binary – the contingent product of a developmental succession of political battles between American conservatives and progressive/liberals over the course of the twentieth century. I argue here, contra Fleming, that in both theory and practice, in the U. S. at least, history and moral aspiration are and have always been inextricably intertwined —inseparable— and that, going forward, U. S. constitutional historians and theorists would do better by forthrightly acknowledging and accounting for this fact, and dynamic. (shrink)

Caring for unrepresented patients encompasses legal, ethical, and moral challenges regarding decision-making, consent, the patient’s values, wishes, best interest, and the healthcare team’s professional integrity and autonomy. In this article, I consider the impact of the aging population and the effects of the social determinants of health and suggest that without preventive intervention, the number of unrepresented patients will continue to increase. The health, social, and legal risk factors for becoming unrepresented require a multidisciplinary response. Medical-Legal Partnerships (MLPs) bring healthcare (...) and legal professionals together to address risk factors and health-harming legal needs. The article discusses the role of MLPs in identifying at-risk individuals, providing preventive interventions, and providing support. I make recommendations and conclude that proactive MLPs offer a sustainable approach to the ethical challenges in caring for unrepresented patients by providing interventions to prevent individuals from becoming unrepresented. (shrink)

Historically, the sociology of emotion has been relatively long on theory and short on methods. This collection of articles seeks to remedy this by introducing new ways to capture the four factors of emotion, as articulated by Thoits : meaning, expression, label, and physiology. As a group, these studies reify existing dichotomies in the literature—that is, emotional experience versus emotional expression—and seek to reconcile them. Additionally, they all champion the use of mixed methods—either simultaneously or sequentially—adopting some combination of direct (...) or indirect observation, subjective understanding/experience, and physiological change. Using examples drawn for their own research, the authors provide new ways to capture emotion that will carry emotion scholars into the next four decades of research. (shrink)

It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation (...) for rulings. In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions—variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation—appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy—are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism—not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation. (shrink)

In this Article, I assess James E. Fleming’s Fidelity to Our Imperfect Constitution. For Moral Readings and Against Originalisms. For that purpose: in Part II, I reexamine Ronald Dworkin’s “moral reading”; in Part III, I reevaluate Fleming’s argument both “for moral readings and against originalisms”, which can be characterized as “fidelity to our imperfect constitution”; in part IV, I explicit three very helpful dichotomies to distinguish between moral readings, originalisms and legal pragmatism aka living constitutionalism: (1) fidelity and (...) anti-fidelity; (2) interpretation and non-interpretation aka (re)construction, (re)invention and (judicial) legislation; and (3) perfectionimperfection. Additionally, I reintroduce Lon L. Fuller’s distinction between “intelligent and unintelligent fidelity”, to point out the kind of fidelity that moral readers and everyone else must adopt: an intelligent fidelity; and, finally, I present my general conclusion. (shrink)

Originally published in 1926 and whilst not a biography in the strictest sense, this volume presents John Bridges’ life and character against the social and political background of the nineteenth century as well as examining his legacy for current generations.

Theorising about politics and society has never had firm and settled boundaries. In the past, political theorists have sometimes been moralists, sometimes moral philosophers; now apologists for the existing order, now social engineers; they have tried both to explain society and to discuss social values; and their explanations have been variously based on empirical generalisations, a priori assumptions about human nature or general metaphysical theories. Very few aspects of knowledge have been thought irrelevant to social enquiry, and no problem has (...) been isolated as its central and necessary concern. (shrink)

What I wish to do in this paper is to look at a part of John Stuart Mill's ‘one very simple principle’ for determining the limits of state intervention. This principle is, you will remember, that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’.

Scholarly analysis of the political philosophy of the eminent 19th century Frenchman.