The Vital Roots of European Enlightenment is a collection of essays dealing with the influence of Ibn Tufayl, a 12th-century Arab philosopher from Spain, on major European thinkers. Had Edward Said known about the impact of Hayy Ibn Yaqzan on Europe throughout the 17th and 18th centuries, he might have reached different conclusions in his book Orientalism.

The Vital Roots of European Enlightenment is a collection of essays dealing with the influence of Ibn Tufayl, a 12th-century Arab philosopher from Spain, on major European thinkers. Had Edward Said known about the impact of Hayy Ibn Yaqzan on Europe throughout the 17th and 18th centuries, he might have reached different conclusions in his book Orientalism.

The First Amendment’s Free Exercise and Establishment Clauses were meant to guarantee freedom of religion for all persons living in the United States. This was to be done by ensuring that government could not establish a state religion nor interfere with individual practices and beliefs so long as they did not violate public morals. The idea was to have the two clauses operate together to ensure state separation in matters of religion. However, recent caselaw involving government accommodations to religious organizations (...) has emphasized the Free Exercise Clause with little or no attention afforded the Establishment Clause. As a result, intermediate factors like entanglement, endorsement, general applicability, and neutrality, that previously were used to assist the separation of church and state, are now called into question. This Article attempts to rekindle these factors by attaching a public/private distinction to the way the two clauses are understood, to ensure a more certain and clearer basis for the separation of church and state. (shrink)

The Supreme Court’s antiabortion opinion in Dobbs v. Jackson Women’s Health Org., which overruled Roe v. Wade and Planned Parenthood of S.E. Penn. v. Casey, on the one-hand suggests that the Court may be moving toward eliminating all non-enumerated fundamental rights not deeply rooted in the Nation’s longstanding history and tradition. On the other hand, it may suggest only that the Court might be just opening the door to overruling specific non-enumerated rights with which it no longer agrees. Either way, (...) many long-recognized, non-enumerated, human rights, beyond abortion that are essential to individual autonomy and human dignity are now up for grabs. Such rights in the area of privacy law will most likely include not just abortion, but also contraception, interracial marriage, and the Court’s more recent recognition of same-sex marriage, and possibly still other precedents, including whether states can criminalize adult consensual same-sex behavior in private. More importantly, the proposed foundation for this Court’s potential departure from its past case precedents cannot be justified even by claiming such rights are not deeply rooted in the Nation’s history and tradition. As I hope to show in this article, neither from the point of view of looking to this Nation’s longstanding history and traditions, if properly understood, nor from the point of view of allowing Equal Protection to aide in identifying forms of discrimination not previously recognized or afforded much attention, can departures from past human rights precedents based in autonomy be justified. (shrink)

In an era where conditions for education are rapidly changing globally, online assessment presents several opportunities as well as challenges in the higher education landscape. The forceful transition from face-to-face to online assessments, as part of the emergency implementation of online learning due to the COVID-19 pandemic, has affected teaching, learning, and assessment experiences worldwide. This study explores how faculty members in Saudi universities secured their online assessment during phase one of the COVID-19 pandemic. The research aims were: 1) identifying (...) faculty assessment practices before the onset of COVID-19 and comparing these with practices during the pandemic, and 2) identifying the major challenges faced by the faculty members of the study in securing their online assessment to ensure that academic integrity and assessment standards remained intact. Data were collected from seven university professors through a self-reporting survey, followed by semi-structured interviews. The faculty members found the pandemic period to be the best time to change their assessment methods, and incorporate innovative ideas that conformed to both their own beliefs and students’ needs. The factors that influenced the faculty’s assessment alterations were their personal beliefs and learnings from others’ experiences, in addition to the guidelines issued by Saudi Arabia’s Ministry of Education. The results of this study have implications for the development of post-COVID-19 assessment practices and professional development priorities. (shrink)

Where did the right to privacy come from and what does it mean? Grappling with the critical issues involving women and gays that relate to the current Supreme Court appointment, Vincent J. Samar develops a definition of legal privacy, discusses the reasons why and the degree to which privacy should be protected, and shows the relationship between privacy and personal autonomy. He answers former Supreme Court nominee Robert Bork's questions about scope, content, and legal justification for a general right (...) to privacy and pays particular attention to issues involving gays and lesbians. (shrink)

AIDS and the Politician’s Right to Privacy.

A Gerwithian Framework for Protecting the Basic Human Rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) People.

In this article, I argue that public education should provide a constructive forum for discussing aspects of lesbian and gay lifestyles in both primary and secondary schools. My argument is that such action is necessary to offset the way the dominant culture limits the capacities of gays and lesbians to achieve human self-fulfillment. In making this argument, I recognize that I am going beyond merely promoting social tolerance to legitimizing an actual place for discussion of the needs and interests of (...) gays and lesbians in the society at large. The principles I will apply to make this argument are not specifically situated in legal philosophy (concerning the nature of law and its evaluation), but rather, principles of normative political philosophy (concerning ethical justifications of governmental institutions) as we might find in the Universal Declaration of Human Rights adopted by the UN in 1948. (shrink)

A Moral Justification for Gay and Lesbian Civil Rights Legislation.

Is the current state of international governance by the United Nations and related organizations a preface to what eventually might become a world government? Is it at all similar to what was the structure of government in the United States after the adoption of the Articles of Confederation in 1781 and before adoption of the Constitution of 1787? Are changes in the way international institutions like the United Nations operate related to changes in our conceptions of the role of these (...) institutions in providing international governance? When governmental institutions prove to be too weak to adequately perform the tasks expected of them is there a natural evolution toward greater centralization of power? If so, might an early sign of this evolution be decisions by public officials that afford greater deference to the decrees of international institutions that previously might have been sidestepped? (shrink)

At the Intersection of Due Process and Equal Protection: Expanding the Range of Protected Interests.

More than thirty-four years after the United States Supreme Court initially recognized a woman’s constitutional right to choose whether or not to terminate a pregnancy (at least within the first two trimesters) in its landmark abortion decision Roe v. Wade, the issue of whether women ought to have this right continues to affect public debate. Presidential candidates are asked about the issue, and potential Supreme Court nominees and their prior judicial decisions, academic writings, and speeches are thoroughly scrutinized for any (...) inkling of how they would likely rule in a future case on the issue. Perhaps even more important is the way the debate over this issue has impacted federal funding for stem cell research in the United States. Because of moral concerns regarding the personhood status and level of dignity owed to the human embryo as a form of human life, in September of 1999, the National Bioethics Advisory Commission recommended against providing federal funding for the use and derivation of embryonic stem (ES) cells and embryonic germ (EG) cells except when obtained from “cadaveric fetal tissue” or “embryos remaining after infertility treatment.” In this article, I will suggest that the abortion debate and its offshoots into embryonic medical research persist because of a failure to properly separate human personhood from human biology. I will argue further that a proper analysis of the problem will not only enlighten the abortion and fetal tissue research debate, but will have implications for end-of-life issues as well. (shrink)

Is there an independent legal method separate from the political process for handling a constitutional amendment that may be inconsistent with, or contrary to, the basic structure and rights the Federal Constitution currently inaugurates, or are courts stuck with having to accept the amendment on its face? This problem is not unique to the United States. Nor is it the same problem as whether a state constitutional amendment may violate the Federal Constitution. While I initially focus on the U.S. Constitution, (...) I plan, before the end of this piece, to broaden out to other national constitutions as well, and certainly some of the arguments might also apply to state constitutional amendments, as we see with the controversy over the constitutionality of California’s Proposition 8. In this vein, it will make sense to consider cases from other nations, like Kesavananda Bharati v State of Kerala, in which the Supreme Court of India held that the judiciary could strike down amendments to the constitution passed by Parliament that conflict with the constitution’s “basic structure.” The U.S. Supreme Court has never addressed what constitutes the basic structure of the U.S. Constitution. This is the question addressed in this article. (shrink)

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal restrictions on such (...) collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself becomes a consumer of this information to fight off a domestic instantiation of the global Covid-19 pandemic. This Article proposes some definite ways in which the courts and Congress might limit both the private sector and the government’s use of such data to ensure individual autonomy will not be sacrificed. (shrink)

The article argues that lesbian, gay, bisexual, and transgendered (LGBT) rights are a particular instantiation of human rights. But in order to make this argument several things must be done first. Preliminarily, it should be noted that some transgendered issues fall under the rubric "gay rights," even though strictly speaking, they center most prominently on gender and not sexual orientation. Still, there gender aspects are often ignored because of concerns related to sexual orientation, such as whether a transgendered female can (...) use a woman's washroom. Arguably, the reverse may also be true of gays, lesbians, and bisexuals, as many of society's concerns regarding this group involve their following gender roles, even though the discrimination against them is not usually seen as sex discrimination. Bearing that in mind, among the various responsibilities of this article is to define--in the broad sense--what gay and lesbian rights are. This is followed by a similar set of expressions defining what human rights are and an argument for how such rights get justified. Once that is done, the connection between gay and lesbian rights and human rights is pursued within the context of a theory of political morality that establishes the centrality of human rights to all moral concerns. (shrink)

This Article discusses what a “super-precedent” is in American Constitutional Law. Additionally, it describes the current criteria used to identify super-precedents and the limitations of these criteria. It then mentions the various precedents that have been afforded this august title and suggests the need for an additional criterion to ensure the continued protection of those precedents most closely associated with the protection of human rights. Finally, the article identifies three additional precedents, beyond those usually recognized, that ought to be ranked (...) super-precedents and provides a basis for ranking all precedents, grounded in autonomy, when they either conflict with one another or encounter a compelling state interest. (shrink)

In this essay, I maintain that the issue of whether the right to die is viable as a constitutionally protectable right remains open. I intend to reconcile the Supreme Court's holdings in Glucksberg and Quill by examining the different rationales the Justices offered for their decisions. I do not believe this issue can be resolved simply by asserting that the intention of the actor is different when assisting suicide, as compared to when life-sustaining treatment is withdrawn. Rather, the right to (...) die continues to be viable due to the level of abstraction at which the Court chose to frame the issue in these cases. (shrink)

In this Article, I take up the thesis that international and comparative law sources are relevant to interpreting the U.S. Constitution because the Constitution itself warrants respect only insofar as it is a means for achieving minimal protections for human dignity. I argue a narrow version of this thesis: Our domestic constitutional interpretations should be checked by looking to the minimal set of rights recognized in other systems that share certain contents. And I take up the problem that what may (...) appear as shared values at one level may reflect different understandings at a deeper, more reflective level. For example, the framers of our Constitution clearly sought to advance liberty. But the liberty they sought to advance may not have been the same liberty that became of concern during the Fourteenth Amendment's period of ratification, and in the subsequent history of Supreme Court constitutional cases following its adoption. In this article I propose to consider the set of rationally based aspirations that our system of constitutional rights and many other related systems seem to presuppose as a ground for developing a growing conception of liberty and dignity that the U.S. Supreme Court should adopt. (shrink)

We propose a Lorentz-covariant deformed algebra describing a -dimensional quantized spacetime, which in the nonrelativistic limit leads to undeformed one. The deformed Poincaré transformations leaving the algebra invariant are identified. In the classical limit the Lorentz-covariant deformed algebra yields the deformed Lorentz-covariant Poisson brackets. Kepler problem with the deformed Lorentz-covariant Poisson brackets is studied. We obtain that the precession angle of an orbit of the relativistic particle in the gravitational field depends on the mass of the particle, i.e. equivalence principle (...) is violated. We propose a condition for the recovery of the equivalence principle in the space with the deformed Poisson brackets. Comparing our analytical result with the experimental data for the precession angle of Mercury’s orbit we provide an estimation of minimal length. (shrink)

I here advance the thesis that if there is a general right to privacy, it follows that each person has a right not to be intruded upon in respect to their HIV status. I shall call this right RNIH (the Right to Non-Intrusion on HIV Status). Closely related to RNIH is society's compelling interest to protect against the spread of a fatal disease. In cases where the two conflict, the state's interest dominates but only to a point. In this article (...) I sketch out a theoretical basis for believing RNIH exists. I also provide a serious legal mechanism for the protection of the right to privacy in the context of AIDS. (shrink)

The unexpected passing of United States Supreme Court Justice Antonin Scalia left a vacancy on the Court in the midst of a presidential election year. As a result, the appointment process did not proceed in the same fashion as previous appointments. Instead, the Senate declared shortly after Justice Scalia’s death that it would not consider any candidate to fill the vacancy until the next president is elected. The Senate remained steadfast in this decision throughout the remainder of President Obama’s term. (...) -/- This Article analyzes the constitutional questions surrounding the Senate’s refusal to consider any nominee and argues the Senate has a duty to advise and consent in a timely manner. Additionally, it demonstrates how a politically-motivated delay threatens the integrity of the constitutional process for selecting judges, violates separation of powers concerns by politicizing the Court, and contradicts the express intent of the Framers of the Constitution. (shrink)

This Article examines recent claims that the fetus be afforded the status of a person under the Fourteenth Amendment. It shows that such claims do not carry the necessary objectivity to operate reasonably in a pluralistic society. It then goes on to afford what a better view of personhood that could so operate might actually look like. Along the way, this Article takes seriously the real deep concerns many have for the sanctity of human life. By the end, it attempts (...) to find a balance for those concerns with the view of personhood offered that should engage current debates about abortion and women’s rights. (shrink)

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human (...) rights pro-pounded was never adopted. Even at the level of the International Court of Justice, its failure to include an ethical modality in the way it interprets treaties generally, and human rights treaties in particular, can leave it floundering to present any consistent framework for its own human rights decision-making. The article then presents a philosophical theory to justify the human rights that are recognized, based on an objective criterion that can be developed to assist courts in deciding conflicts of rights cases. Especially with respect to state domes-tic courts, the International Court of Justice can serve as a model to be emulated were it to adopt this theoretical framework for future hu-man rights decision-making. (shrink)

Recent U.S. Supreme Court decisions regarding the scope of the Establishment Clause have failed to provide a clear framework for determining what government actions are prohibited. Part of the problem concerns what kinds of actions constitute an establishment of religion. What criteria should determine the boundaries of an establishment challenge? Are governmental actions that may only indirectly affect religion (either positively or negatively) prohibited? This article aims to provide a coherent and normatively justified understanding of the Establishment Clause to help (...) answer these questions by considering not just the history of the Clause or the cases the Court has decided under it, but also considering overlaps from various philosophical justifications for the Clause—including justifications from rights theory, political liberalism, utilitarianism, and communitarianism. In the process, the article eliminates from consideration the Supreme Court’s so-called “accommodationist” approach and presents a new understanding of the neutrality test that anchors itself between strict separation and the current neutrality approaches. This it does by also taking into account what in moral theory is known as the doctrine of double effect and by showing how the doctrine further limits the various judicial views to just neutrality in the new sense I suggest, while also providing both clearer and firmer conditions. (shrink)

The purpose of this essay is to suggest a new direction in our thinking about substantive due process that recognizes human rights in the lived experience of our fellow human beings. The applicability of the approach, at least for equal protection purposes, was hinted at by the Supreme Court’s majority opinion in Romer v. Evans, but it has never been given full consideration.1 There, Justice Kennedy noted the very real impact of a state group of people. What he did not (...) say is how such an amendment might also impact the self-impression gays and lesbians have of themselves, although this would certainly be part of such an amendment’s impact. Moreover, legal and philosophical research in this area suggests that there may be more here than previously thought. While I do not hope to resolve every philosophical question at the heart of my legal analysis, I do intend to bring forth enough substance to answer the indeterminacy charge levied by certain Supreme Court justices and others concerning which rights should count as “fundamental” under substantive due process in part by looking at the impact such rights have on individual self-esteem. I. (shrink)

In June 2015, in Obergefell v. Hodges, the Supreme Court of the United States determined that there is a fundamental right to marriage that extends to same-sex couples. This Article analyzes the Obergefell decision in light of the Court’s 2014 decision in Burwell v. Hobby Lobby regarding religious protections that might by analogy be afforded under state Religious Freedom Restoration Acts. In particular, the article considers whether a government official may claim the right to religious freedom to deny issuing marriage (...) licenses to same-sex couples. Additionally, the article suggests that a new standard for the separation of church and state may be required. Although the 2015 decision prevents the government from denying marriage to same-sex couples, the decision does not directly affect private businesses that choose not to provide services for same-sex weddings. It may, however, have an important indirect effect if laws are already present that prohibit sexual orientation discrimination. Therefore, the article explores possible avenues for protection from private. (shrink)

Is there an obligation by nations, who do not themselves recognize same-sex marriage to recognize such marriages when they have been consummated abroad? Is the right to such recognition a human right? If so, what obligations do the domestic courts of various countries have to incorporate the right to same-sex marriage for their own people? Must international law recognize a right to same-sex marriage as a human right, especially if some nations have already begun to move on that track? These (...) questions are moving to center stage as more and more countries in the EU and elsewhere are being forced to address various rights claims especially by lesbian, gay, bisexual and transgendered communities. At their core, these questions are troublesome not so much because of the communities they affect, but because they draw attention to a deeper set of problems concerning the relationship of domestic to international human rights law. What are the similarities and differences between these two areas of law, is there a hierarchy where one area dominates the other, do international human rights norms arise out of various domestic constitutional provisions, and what are the duties of courts (especially domestic courts) in declaring the law? Can local traditions, religious beliefs, or constitutional requirements justifiably stand in the way of extraterritorial recognition of international human rights law? (shrink)

Terrorist attacks throughout the world and particularly within the United States have given rise to a new chapter in the ongoing debate over liberty versus security. The most recent manifestation of this dispute focuses on whether Muslim refugees can be denied entry as a class into the United States, based on their religion alone, for fear they might be harboring potential terrorists. This Essay shows that such a policy cannot be justified under the First Amendment Establishment Clause, as well the (...) United States’ expressed international commitments to preserving international human rights. What can be done is to engage a broader set of investigative approaches that are more likely to provide greater security than any policy focused on religion alone. (shrink)

Where did the right to privacy come from and what does it mean? Is there an underlying principle uniting various applications of the right? When privacy conflicts with another right, how does one decide which right takes precedence? And how does privacy relate to the government's 'compelling interest' in protecting the health and welfare of its citizens?