Separation of powers is one of the ideas with profound theoretical and practical significance, especially in the field of political science. The birth of the theory of separation of powers marked the transition from the barbaric use of power in authoritarian societies to the exercise of civilized power in democratic societies. Therefore, separation of powers is considered an objective necessity in democratic states, a condition to ensure the promotion of liberal values, and a criterion (...) for assessing the existence and development of the Rule of Law where people's sovereignty plays a paramount role. On the way to perfecting political thinking, the theory of separation of powers has developed into a complete system in the main philosophy of John Locke. Within the scope of the article, the author focuses on analyzing Locke's ideology of separation of powers in terms of the nature of separation of powers, the basis and some principles of power division, and the roles of the different parts of government power and the relationship between them. (shrink)

Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of (...) the separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances. (shrink)

Constitutional scholarship has put much emphasis on Montesquieu's principle of separation of powers as developed in the chapter of 'The Spirit of the Laws' devoted to the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu's masterpiece. The starting point of this paper is that there is an alternative, second model of separation powers based on (...) the French monarchy of intermediate powers, which is also an instantiation of limited government. From this premise, the paper's aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is 'in between' ancient and modern, as it is exemplified by Montesquieu's take on the functioning of parliaments. As is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch's legislative rationality, and legally contains political action. (shrink)

In the science of administrative and constitutional law, administration science and many other sciences, including political science, it is widely accepted that the basic, inherent feature of a municipality, deciding the essence of the territorial self-government unit as an entity of public administration, is the self-reliance it is entitled to. The self-reliance of territorial self-government units is even defined as a constitutional norm.In principle, self-reliance is perceived as a fundamental attribute of a decentralised public authority and constitutes one of (...) the fundamental systemic principles of the Republic of Poland. It was formulated expressis verbis in art. 165 par. 2 of the Constitution of the Republic of Poland, which states that the self-reliance of territorial self-government units is subject to judicial protection, meaning that TSGUs can defend themselves against illegal attempts, not grounded in the law to interfere in their self-reliance. This protection seems to encompass both the private-law and public-law spheres of territorial self-government activity.The essence and guarantees of territorial self-government units’ self-reliance also arise from other constitutional principles, including the aforementioned decentralisation principle, subsidiarity principle, separation of powers, supremacy of the nation and democratic state under rule of law.The goal of this article is to interpret the principle of municipal self-reliance in the context of constitutional principles of law, in the light of the Polish Constitution. The studies were conducted based on analysis of normative acts, doctrinal views and case law. (shrink)

The article deals with the criteria upon which the powers of the Seimas (the Parliament of the Republic of Lithuania) and the Government are delimited in the constitutional jurisprudence of Lithuania. It analyses how the Constitutional Court construes the principle of separation of powers as entrenched in the Constitution and evaluates the meaning of the provision of the Constitution that corresponding ‘relations are regulated by law’. If the Constitution provides that certain relations are regulated by means (...) of a law, such relations may be regulated only by means of a legal act, which takes the form of a law, and it is, therefore, not permissible to regulate such relations by Government resolutions or other acts of the executive. The most important elements of legal relations must be regulated (established) by means of a law, whereas Government resolutions might establish the procedure for the implementation of such laws. Rulings of the Constitutional Court reveal that once the powers of a specific branch of state power have been directly established in the Constitution, an institution of state power may not assume the said powers fr om another state institution. It may not transfer or waive them; and such powers may not be amended or limited by means of a law. The question remains, whether the provision of the Law on the Diplomatic Service wh ereby the candidacy of a diplomatic representative must be reviewed by the Seimas Committee on Foreign Affairs in advance is not in conflict with the Constitution. (shrink)

Kant's views on revolution have been widely discussed, and commentators have long been astounded that the philosopher who made famous the principle that persons are ends in themselves could reach such abhorent conclusions as that citizens owe unqualified obedience to their supreme ruler. I address an important and ignored sub-issue of this topic: the relations between Kant's doctrine of the division of governmental powers and his doctrine of absolute obedience. I argue that these two doctrines are not compatible; (...) Kant's defense of absolute obedience undermines his own division of powers. Examining exactly why this is the case leads to several further results. First, a constitutional court is crucial to a republic. Second, Kant is closer to a consistent view of government and obedience than first appears. Third, Kant's account of the division of powers was theoretically behind his times. Fourth, there is a crucial distinction between the separation of governmental powers and a system of checks and balances among the three branches of government. Fifth, Kant did grasp the relevant principles governing impeachment - a far more drastic measure than a constitutional court. Finally, most of the principles needed to revise Kant's constitutional theory are already contained in his published writings. Kants Thesen zur Revolution sind viel diskutiert worden, und lange Zeit waren Kommentatoren darüber verwundert, daß der Philosoph, der das Prinzip berühmt gemacht hat, wonach Personen Zwecke an sich selbst sind, insbesondere zu der abschreckenden Schlußfolgerung kommen konnte, die Bürger eines Staates hätten dem Herrscher unbedingten Gehorsam zu leisten. Ich befasse mich mit einem wichtigen und regelmäßig übersehenen Aspekt dieses Problemfeldes: Dem Verhältnis zwischen Kants Lehre von der Gewaltenteilung und seiner These vom absoluten Gehorsam des Staatsbürgers. Ich behaupte, daß diese beiden Lehren nicht miteinander vereinbar sind; Kants Verteidigung des absoluten Gehorsams unterminiert seine Gewaltenteilungsthese. Eine genaue Untersuchung der Frage, warum das so ist, führt zu weiteren Resultaten: Erstens ist ein Verfassungsgericht wesentlich für eine Republik. Zweitens ist Kant näher an einer konsistenten Auffassung von Staat und Gehorsam als dies auf den ersten Blick zu sein scheint. Drittens bleibt Kants Auffassung zur Gewaltenteilung hinter der Entwicklung seiner Zeit zurück. Viertens besteht ein wesentlicher Unterschied zwischen der Trennung der Staatsgewalten einerseits und einem System von "checks and balances" der drei Zweige der Staatslenkung andererseits. Fünftens hat Kant durchaus die relevanten Prinzipien eines "impeachment" erkannt - eine wesentlich drastischere Einrichtung als die eines Verfassungsgerichts. Schließlich sind die meisten der Prinzipien, die für eine Revision von Kants Verfassungstheorie notwendig sind, bereits in seinen eigenen Werken enthalten. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to fill this (...) void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

This book is written for anyone, anywhere sitting down to write a constitution. The book is designed to be educative for even those not engaged directly in constitutional design but who would like to come to a better understanding of the nature and problems of constitutionalism and its fundamental building blocks - especially popular sovereignty and the separation of powers. Rather than a 'how-to-do-it' book that explains what to do in the sense of where one should end up, (...) it instead explains where to begin - how to go about thinking about constitutions and constitutional design before sitting down to write anything. Still, it is possible, using the detailed indexes found in the book, to determine the level of popular sovereignty one has designed into a proposed constitution and how to balance it with an approximate, appropriate level of separation of powers to enhance long-term stability. (shrink)

One unique part of Rousseau's Social Contract is his argument that a just society must have a specific constitutional arrangement of powers centred around what he calls the Sovereign and the Prince. This makes his philosophy different from other contractualists, such as Hobbes and Locke, who think that the principles of good government are compatible with any number of institutional structures. Rousseau's constitutional theory is thus significant in a way that has no parallel in Hobbes or Locke. More to (...) the point, any problems that exist in his constitutional theory will have consequences for his political thought as a whole. This article argues that there is a contradiction at the center of Rousseau's theory of institutions that threatens the cogency of the Social Contract. Key Words: Rousseau • separation of powers • social contract • sovereignty. (shrink)

The American administrative state is a feature of the new liberalism that is largely irreconcilable with the old, founding-era liberalism. At its core, the administrative state, with its delegation of legislative power to the bureaucracy, combination of functions within bureaucratic agencies, and weakening of presidential control over administration undercuts the separation-of-powers principle that is the base of the founders' Constitution. The animating idea behind the features of the administrative state is the separation of politics and administration, (...) which was championed by James Landis, the New-Deal architect of the administrative state for President Franklin Roosevelt. The idea of separating politics and administration, and the faith such a separation requires in the objectivity of administrators, did not originate with Landis or the New Deal but, instead, with the Progressives who had come a generation earlier. Both Woodrow Wilson and Frank Goodnow were pioneers in advocating the separation of politics and administration, and made it the centerpiece of their broad arguments for constitutional reform. (shrink)

Todo Estado de Derecho moderno tiene su fundamento en ciertos principios que rigen la manera en cómo se ejerce el Poder Público, y es el modo en que efectivamente se aplican, lo que ciertamente determinará la naturaleza y característica de dicho Estado. En el caso venezolano, tales principios se encuentran expresamente plasmados en nuestra Carta Magna y son: El principio de competencia administrativa, el principio de legalidad, el principio de separación y colaboración entre los poderes y el principio de responsabilidad (...) del Estado y sus funcionarios. La intención es definir y desarrollar brevemente estos principios, a fin de poder establecer las características del Estado Venezolano, desde el punto de vista Constitucional (positivo) y desde el punto de vista real. Palabras clave: Principios constitucionales; Responsabilidad del Estado; Competencia; Legalidad; Separación de poderes. Constitutional principles concerning the exercise of public power.Every modern law-ruled State has its foundation on certain principles which govern theway Public Power is exercised. It is the manner in which those principles are in fact applied what will actually determine the nature and characteristics of such a State. In Venezuela’s case such principles are explicitly presented in our Constitution. They are: the principle of administrative competence, the principle of legality, the principle of separation and cooperation between powers and the principle of responsibility of the State and its officials. The aim is to define and briefly unfold these principles, so as to establish the characteristics of the Venezuelan State, both from the Constitutional (positive) and reality standpoints. Keywords : Constitutional Principles; State Responsibility; Competence; Legality; Separation of Powers. (shrink)

Separability is roughly the principle that, in comparing the value of two outcomes, one can ignore any people whose existence and welfare are unaffected. Separability is both antecedently plausible, at least as a principle of beneficence, and surprisingly powerful; it is the key to some of the best positive arguments in population ethics. This chapter surveys the motivations for and consequences of separability. In particular, it presents an ‘additivity theorem’ which explains how separability leads to total utilitarianism and (...) closely related axiological views. It then examines systematically how this family of views can avoid the Repugnant Conclusion by incorporating lexicality, a critical level, or a neutral range. (shrink)

In this article, the authors introduce the POWER perspective of police wellness and ethics. POWER stands for Police Officer Wellness, Ethics, and Resilience. The perspective represents the view that wellness and ethics cannot be discussed separately; they are inextricably connected to each other. Initiatives to address one should always, simultaneously, include the other. Although there is a need for wellness and ethics to be addressed on an organizational level, the present article emphasizes the importance of POWER for individual police officers. (...) The authors make the argument that officers need to expand the way in which they conceptualize their own wellness to include efforts to maintain ethical decision-making. Specifically, officers will remain psychologically healthier when they take active steps to stay steadfastly committed to their ethical principles. Likewise, officers who utilize a comprehensive wellness program, including strategies to boost resilience, will be far less likely to experience lapses in ethical decision-making. Further recommendations for action and implication of this matter in law enforcement are presented and discussed. (shrink)

This dissertation argues that the current tendency to define liberal constitutionalism in terms of the impersonal and formalistic ideals of the rule of law diverges from early liberal theories of constitutionalism, which were sensitive to the occasional need for extra-legal discretionary exercises of power to deal with the unpredictable contingencies of politics. This understanding of politics shaped the constitutional and political thought of liberal thinkers from John Locke, David Hume, and William Blackstone to Alexander Hamilton, James Madison, and other Federalists (...) who defended the extraordinary powers of the American presidency. Since these early liberals recognized that it would sometimes be necessary for an executive to perform extraordinary actions in response to unforeseeable events, they were reluctant to place excessive legal checks on executive power. Consequently, they emphasized the importance of limiting executive power to those with "fit characters." In particular, they looked to those politico-moral virtues associated with republicanism to supplement and enhance the constitutional machinery of government that was designed with the ordinary course of politics in mind. Although early liberal theorists and the designers of the American Constitution abandoned many of the core principles of republicanism, particularly its reliance on a virtuous and active citizenry as the best guarantee of free government, they preserved a place for distinctively republican virtues such as patriotism and disinterestedness in the office of the executive. In fact, the Federalists made the American presidency the primary repository of republican virtue in the new government. The first century of liberal constitutional theorists was actually skeptical of the ability of impersonal institutional devices such as the separation of powers and checks and balances to secure a free and effective government without the presence of fit characters. Since formal institutions are imperfect and often inadequate---both in dealing with political contingencies and in checking the executive---these thinkers supplemented legal and institutional safeguards with character requirements to minimize potential abuses of largely indeterminate executive powers irreducible to law. An abiding conviction that uncertainty is the only certainty in politics led them to prefer flexible approaches rather than the rigid formulas in theorizing constitutionalism. (shrink)

The text of the Constitution is silent on the topic of executive agreements. This essay attempts to overcome that silence by examining the doctrine of separation of powers as found in the writings of Locke and Montesquieu, the historical material leading up to the Constitutional Convention, and the early practice of the framers under the Constitution. From the theory of executive power thus deduced the most important issues surrounding executive agreements can be addressed. In brief, while the text (...) of the Constitution is silent about executive agreements, the framework upon which that text rests is not. A proper understanding of separation of powers provides an introduction to the study of the existence, scope, and control of executive agreements. This is the first of two essays on the topic of executive agreements. A second essay, appearing next year in the American Journal of Jurisprudence, will examine in detail all military-related agreements between 1946 and 1976. (shrink)

While Montesquieu (1689–1755) is often regarded as the thinker who discovered the importance of fundamental principles such as the rule of law and the separation of powers, systematic research of his theory of the state is surprisingly limited. In this article, I argue that his masterpiece, The Spirit of the Laws (1748), points to a theory of the non-arbitrary state. Montesquieu’s comparative study of various governments demonstrates that modern liberty depends on the rule of law. Since many states (...) have laws but few of them guarantee liberty, he stressed that the rule of law requires the separation of the judicial from the legislative and executive powers. The constitution of an independent judicial branch separates the sphere of justice from the political sphere, which creates the basic structure of the non-arbitrary state. Depending on the distribution of power in either of the two spheres, non-arbitrary states can guarantee their citizens more or less liberty. The concept of the non-arbitrary state thus illuminates Montesquieu’s significance for the variety of political projects that emerged in the age of revolutions. (shrink)

What I dub the “worst-result” principle is a criterion that identifies civil war and tyranny as the worst evils that could befall a state, and prescribes their prevention. In this thesis, I attempt to define the worst-result principle’s concrete prescriptions and institutional arrangements to meet these. To do so, I explore different understandings of the worst-result principle, that each contributes to the general argument. Montesquieu’s crucial insight concerns the separation of powers to prevent the state (...) from collapsing into despotism. Judith Shklar shows that ‘damage control’ needs to be constantly performed so as to minimize chances of governmental brutality. Roberto Unger points at the importance of encouraging citizens’ involvement in the political process to safeguard freedom. I finally argue, in the light of historical evidence, that it would be unreasonable to think that the task of preventing tyranny can be effectively performed in the absence of courts entrusted with checking powers. (shrink)

In this article the author analyzes the first written constitutions adopted at the end of the eighteenth century (the Constitution of the United States of 1787, the Constitution of Polish – Lithuanian State and the Constitution of France of 1791). These constitutional acts mark the beginning of the era of constitutionalism. These are the constitutions of the first phase (‘wave’) of constitutional development, which laid the foundations for the further establishment of constitutionalism in the world. The history of the first (...) modern constitutions confirms that the nations adopt constitutions in order to protect individuals from possible abuses of state power. The essence of constitutional regulation is the restriction of this power. The three countries differ in many ways, but all had certain tradition of the restriction of powers. The first modern constitutions established the separation of powers and protected classical individual rights. They have become an example for the authors of later constitutions. These constitutions propose legal standards for constitutional development. Each of these constitutions is an original system of principles and norms. (shrink)

The theory of prophet hood, based on a competent imagination, is one of the original contributions of al-Farabi to Islamic thought. The purpose of this article is to examine the imaginative power that underlies the prophet's law-making in al-Farabi's political thought. In our research, we have concluded that the prophet can put the universal truths in the form of laws only with the representation ability of a competent imaginary. Emanation, overflowing from the separate intellects that form the supralunary world, also (...) constructs the sublunary world through the imagination of the prophet. In this system, the power of imagination is a central faculty that embodies and organizes the imaginary from Active Mind and makes it accessible to all levels of people. Without the imagination that transforms the reasonable into sensible forms, it is not possible to put laws and to deliver them to people. In order to be in contact with the higher principles, the prophet must also have a competent mental faculty. Finally, in our study, the connection of the imaginary, which represents the emanation coming from the Active Mind, with the intellect faculty in this context is also questioned in terms of law-making. (shrink)

Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what (...) problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy. (shrink)

The exact nature of the relation between science and Scripture in the thought of Francis Bacon is a well-studied but controversial field. In this paper, it is shown that Bacon, though convinced that there exists no enmity between the book of God's wisdom and the book of God's power, usually tries to separate knowledge acquired by reason from knowledge acquired by faith. In his exposition of the principle of the conservation of matter, however, Bacon seems to find himself constrained (...) to invoke Scriptural truths in a manner that he usually disapproves of. In order to establish this principle, which is so essential to his overall scientific program, he appeals both to the Bible and Greek mythology in a way that points to certain conceptual tensions within his natural philosophy. (shrink)

The exact nature of the relation between science and Scripture in the thought of Francis Bacon is a well-studied but controversial field. In this paper, it is shown that Bacon, though convinced that there exists no enmity between the book of God's wisdom and the book of God's power, usually tries to separate knowledge acquired by reason from knowledge acquired by faith. In his exposition of the principle of the conservation of matter, however, Bacon seems to find himself constrained (...) to invoke Scriptural truths in a manner that he usually disapproves of. In order to establish this principle, which is so essential to his overall scientific program, he appeals both to the Bible and Greek mythology in a way that points to certain conceptual tensions within his natural philosophy. (shrink)

Not long ago, under the influence of Michel Foucault, one spoke of the conjunction of knowledge and power, but in this post-truth era power appears singularly uninterested in knowledge, even as the supporters of Donald Trump claim that he alone of all politicians speaks the truth. This essay proposes to examine the relations of power and knowledge under the present populist assault. This analysis begins in the work of Claude Lefort, who spoke of the separation of knowledge and power (...) in democracy’s symbolic regime, and is then counterposed to Ernesto Laclau’s understanding of ‘populist reason’ in order to explore the present torsion of this relation to the point where power can appear not just separated from, but opposed to knowledge. It will be argued that it is less a question of post-truth than of different forms of truth with different truth claims, borne by different imperatives, and tied to different forms of representation – truth claims that can, in relation to each other, be indifferent, complementary, or conflictual. With this in mind, the essay asks: what is the relation of the people to truth? Do those who claim to represent the people seek possession of a different kind of truth? What is the relation of populism to ideology? And what is populism’s relation to ‘post-modernism’? (shrink)

The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.

This paper argues that Wolff’s rejection of Leibnizian monads is rooted in a disagreement concerning the general notion of substance. Briefly, whereas Leibniz defines substance in terms of activity, Wolff retains a broadly scholastic and Cartesian conception of substance as that which per se subsists and sustains accidents. One consequence of this difference is that it leads Wolff to interpret Leibniz’s concept of a constantly striving force as denoting a feature of substance separate from its static powers, and not (...) as their replacement. For Wolff, powers are essential possibilities of acting in subjects suited for independent existence. Force is a further ingredient that provides a reason for the contingent operation of powers. Unlike Leibniz, Wolff conceives force narrowly as a principle of actuality, which he calls the nature of substance, as distinct from its principle of possibility, or essence. (shrink)

What should authorities establish as the job of ethics committees and review boards? Two answers are: review of proposals for consistency with the duly established and applicable code and review of proposals for ethical acceptability. The present paper argues that these two jobs come apart in principle and in practice. On grounds of practicality, publicity and separation of powers, it argues that the relevant authorities do better to establish code-consistency review and not ethics-consistency review. It also rebuts (...) bad code and independence arguments for the opposite view. It then argues that authorities at present variously specify both code-consistency and ethics-consistency jobs, but most are also unclear on this issue. The paper then argues that they should reform the job of review boards and ethics committees, by clearly establishing code-consistency review and disestablishing ethics-consistency review, and through related reform of the basic orientation, focus, name, and expertise profile of these bodies and their actions. (shrink)

Judicial review of statutes presupposes the establishment of a clear hierarchical supremacy of the constitution, which can serve as a standard of review, as well as an independent and assertive judiciary. The conditions for such a hierarchical supremacy of the constitution were only partly fulfilled in nineteenth‐century Germany. In addition, the concept of the separation of powers was rejected and the judiciary was in a weak position. Therefore the judicial review of ordinances was slow to develop. The judicial (...) review of statutes began only at the end of the nineteenth century and was restricted to formal review as opposed to a review of the content of statutes. (shrink)

A recurrent issue in the vast amount of literature on reasoning models in ethics is the role and nature of moral intuitions. In this paper, we start from the view that people who work and live in a certain moral practice usually possess specific moral wisdom. If we manage to incorporate their moral intuitions in ethical reasoning, we can arrive at judgements and (modest) theories that grasp a moral experience that generally cannot be found outside the practice. Reflective equilibrium (RE) (...) provides a framework for balancing moral intuitions, ethical principles and general theories. Nevertheless, persisting problems associated with the use of intuitions need to be addressed. One is the objection that moral intuitions lack the credibility necessary to guide moral reasoning. Ethicists have tried to solve this problem by formulating criteria to separate the “bad” intuitions from the “good” ones at the beginning of the reasoning process. We call this the credible input-justified outcome strategy. An example is the appeal to the common morality by Beauchamp and Childress. We think this approach is unsuccessful. As an alternative, we outline the good reasoning-justified outcome strategy. It connects to a variant of RE in which intuitions from different sources are incorporated. We argue that the elements of RE have different levels of justificatory power at the start of reasoning. In our strategy, each element can gain or lose justificatory power when it is tested in a reasoning process that meets several criteria. (shrink)

The critical concept of commodity fetishism and its developed forms of money and capital fetishism ground the contemporary shape of social life under the rule of capital. This chapter offers a novel interpretation based on Marx’s Capital, elucidating the oft-overlooked interconnection of the fetishism triptych that accounts for domination, as well as the normalisation of exploitation as experienced in capitalist life. In commodity fetishism, a market-based pseudo-social ‘thing-hood’ preponderates over commodity owners and producers, concealing the double inversion that constitutes the (...) ‘world of commodities’. Money’s fetish form makes it appear as the ‘sovereign’ of the commodity world, possessing the exclusive social power to establish the value hierarchy of all persons and objects relativised in regard to it. The universal condition of monetisation of the life process in bourgeois society necessitates the adoption of the competition principle, leading to the generalised formation of a commodity self, shaped by competitive individualism. The social separation of the great mass of commodity producers from the means of production and the consequent need to sell themselves as commodities in the form of wage labour constitutes the social basis of capital fetishism, through which the process of capital ‘valorisation’ is enfolded within the process of use value production, disappearing into its socio-material character and thus naturalised. Capital fetishism dissimulates the production of surplus value by social labour and constructs the harmonised appearance of an equitable contribution of ‘factors of production’ in the sharing of the surplus product, thereby obscuring distributional struggles over it. Such antagonisms over surplus undergird the logic of neoliberal capitalism’s two-pronged strategy, pursuing ‘deregulation of labour relations’ on the one hand and dismantling the welfare state on the other. (shrink)

We aim at developing a systematic method of separating omniscience principles by constructing Kripke models for intuitionistic predicate logic $\mathbf {IQC}$ and first-order arithmetic $\mathbf {HA}$ from a Kripke model for intuitionistic propositional logic $\mathbf {IPC}$. To this end, we introduce the notion of an extended frame, and show that each IPC-Kripke model generates an extended frame. By using the extended frame generated by an IPC-Kripke model, we give a separation theorem of a schema from a set of schemata (...) in $\mathbf {IQC}$ and a separation theorem of a sentence from a set of schemata in $\mathbf {HA}$. We see several examples which give us separations among omniscience principles. (shrink)

This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test - states of emergency. States of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive - in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with the nature (...) of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law. The rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers. (shrink)

Montesquieu is the first political writer who scientifically studies all human institutions, ancient and modern, Asiatic and European, African and American; the first to formulate the principles of the separation of powers and the independence of justice; the first to theorize the Federal Democracy and the first to systematically track down the roo.

The theory of the separation of powers between a legislature, an executive and a judiciary is still the foundation of modern representative democracy. It was developed by Montesquieu and came to replace the older theory of the mixed constitution which goes back to Plato, Aristotle and Polybios: there are three types of constitution: monarchy, oligarchy and democracy; when institutions from each of the three types are mixed, an interplay between the institutions emerges that affects all functions of state: (...) legislation, implementation of laws and jurisdiction. Today Montesquieu's separation of powers is riddled with so many exceptions that it is an obstacle rather than a help to understand the structure of modern democracy. The mixed constitution deserves to be revived as a corrective to the prevailing view that Western states are pure democracies and that democracy is rule by the people. (shrink)

John Dewey delivered two sets of related lectures at the University of Chicago in the fall quarter 1895 and the spring quarter 1896. Designed for graduate students, the lectures show the birth of Dewey’s instrumentalist theory of inquiry in its application to ethical and political thinking. From 1891 through 1903, Dewey attempted to develop a revolutionary experimentalist approach to ethical inquiry designed to replace the more traditional ways of moral theorizing that relied on the fixed moral knowledge given in advance (...) of the situations in which they were applied. In the lectures on the logic of ethics, he sets forth and defends the view that the "is" in a moral judgment such as "This is good" is a coordinating factor in an inquiry. Although the subject matter of the lectures is highly technical, its significance is paramount. It provides the key to and opens the door for a theory that preserves the difference between strictly scientific inquiry and moral inquiry even while it provides a "scientific treatment" of the latter. The lectures on political ethics apply Dewey’s theory of inquiry to the logical problems created by three disciplines designated as politics, economics, and ethics, which appear to have separate and antagonistic subject matters. Politics is a quest for political power; economics is based on self-interest; ethical inquiry is about morality. These lectures carry on the experimental theory of inquiry developed in the previous lectures by explaining how the distinction between these subject matters can be developed without the antagonism. These lectures enable us to make much better sense of Dewey’s later works on moral and political topics. (shrink)

One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by (...) a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia. (shrink)

Locke's conceptualization of sovereignty and its uses, combining theological, social, and political perspectives, testifies to his intellectual profundity that was spurred by his endeavour to re-traditionalize a changing world. First, by relying on the traditional, personalistic notion of polity, Locke developed a concept of sovereignty that bore the same sense of authority as the “right of commanding” attributable only to real persons. Second, he managed to reconcile the unitary nature of sovereignty with the plurality of its uses, mainly through a (...) conception of the dual, vertical separation of functions, which implied degrees rather than kinds of sovereignty. While absolute sovereignty belongs to God, Locke argued, relative sovereignty, separated into “potential” and “actual” sovereignty, is vested in the community on the grounds of the Edenic testament with God. The community, established by a fundamental, single contract, is divided into “society”—to fulfil the function of legislation, which signifies the potential sovereignty of the community, so as to cultivate common law , and into “government”—to undertake the execution, which signifies the actual sovereignty of the king, of common law so as to procure common wealth. (shrink)

Research Articles Michael Zuckert, Social Philosophy and Policy, FirstView Article.

This article explores the conditions of possibility for democracy through the analysis of power and authority. Political power, as distinct from coercion, is the key to democracy, as a set of institutions for managing conflict. These institutions presuppose authority, which constitutes a performative act that is validated relative to local perceptions of reasonableness. Democratic power constitutes a nonzero-sum institutionalization of conflict reproduced through the structuring of authority relative to certain principles that allow for repeat play, including equality, impartiality and (...) class='Hi'>separation of spheres. This presupposes a democratic subject who is restrained and accountable. (shrink)

This article explores the conditions of possibility for democracy through the analysis of power and authority. Political power, as distinct from coercion, is the key to democracy, as a set of institutions for managing conflict. These institutions presuppose authority, which constitutes a performative act that is validated relative to local perceptions of reasonableness. Democratic power constitutes a nonzero-sum institutionalization of conflict reproduced through the structuring of authority relative to certain principles that allow for repeat play, including equality, impartiality and (...) class='Hi'>separation of spheres. This presupposes a democratic subject who is restrained and accountable. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Persons and Passions: Essays in Honor of Annette BaierLorenzo GrecoJoyce Jenkins, Jennifer Whiting, and Christopher Williams, eds. Persons and Passions: Essays in Honor of Annette Baier. Notre Dame IN: University of Notre Dame Press, 2005. Pp. 368. ISBN 0-268-03263-7, Cloth, $53.00.Annette Baier stands out as a figure of prime importance on the contemporary philosophical horizon. This volume finally brings the proper recognition she deserves, presenting a rich collection (...) of essays in her honor. Persons and Passions proves to be extremely interesting both for the discussion of Baier’s own philosophical reflection and as an example of how Baier represents an unparalleled source of inspiration for anyone concerned with the philosophers who have been at the forefront of her interests. Although Baier’s preference is surely for David Hume, her intellectual curiosity and scholarly mastery cover a wider area spanning from Descartes to Kant.This is well represented by the structure of Persons and Passions: the volume is composed of sixteen essays which broadly fall into three groups, respectively concerned with the philosophy of Hume, Descartes or Kant. Lisa Shapiro, William Beardsley, Amy Morgan Schmitter, and Cecilia Wee are all concerned with the philosophy of Descartes, in particular as it is presented in the Meditations on First Philosophy. A major segment of the volume is devoted to examining diverse tenets of Hume’s thought, with essays by Saul Traiger, Lilli Alanen, Donald Ainslie, Janet Broughton, Alasdair MacIntyre, David Gauthier, and Robert Shaver. Then, in their papers, Sergio Tenenbaum and Michele Moody-Adams defend a Kantian explanation of the notions of friendship and cruelty. Finally, Karen Jones and Jennifer Whiting close the book by exploring the specular notions of trust and distrust. Baier’s lessons have been carefully absorbed by all contributors. A detailed analysis of the essays would take more space than a review allows, so I will concentrate only on those concerned with Hume, and try to single out from them the trace of Baier’s teaching.The notions of person and passion (as Christopher Williams explains in his useful introduction) are central to Baier’s general approach to philosophy, and they play an important part in the section of the book dedicated to Hume. Traiger looks into the relation between reason and the passions starting from the example of the man hanging over a precipice in an iron cage Hume introduces in A Treatise of Human Nature 1.3.13, and investigates how other philosophers before Hume had explained the reason-passions relation by means of the same argument. Traiger’s conclusion is that whereas for Montaigne, Pascal and Malebranche the precipice phenomenon proves that our passions will always overwhelm our best reasoning (in turn, demonstrating the separation of mind and body), for Descartes and Hume [End Page 229] it is not so. But whereas in Descartes this is because of the power reason possesses as a separate and independent faculty to silence the passions, in Hume the instance of the fear we feel before a precipice is a clear illustration of the interdependence of reason, passion, and imagination, which occupy “a shared arena, where regularities can be investigated and appropriate conclusions drawn” (114).Many of the essays echo one of the main features of Baier’s interpretation of Hume, namely the necessity of defining a peculiar kind of naturalism which has to be conceived within the frame of the reflective practices in which human beings are engaged as social animals. Alanen offers an analysis of the structure of the passions in Hume, starting from a consideration of the various ways the notion of reflection can help clarify the nature of passions and their intentionality. She defends a form of “natural intentionality” (133), according to which passions are intentional acts with bodily expressions which do not need to presuppose conceptually articulated propositions or judgments. In doing this Alanen discusses the role played by emotional exchange among human beings in the constitution of a unified notion of the self. A similar topic is at the center of Ainslie’s essay, which presents a thorough exploration of the principle of sympathy and of the role the self occupies within its mechanism. Ainslie... (shrink)

Abū Ishāq al-Ṣaffār was one of scholars of the Western Qarakhānids’ period who followed the Kalām thought of al-Māturīdī (d. 333/944). His theological works Talkhīs al-adilla and Risāla fī al-kalām, his method in kalām, and frequent reference to his works by Ottoman and Arab scholars indicate that al-Ṣaffār is a respected and authorative Māturīdī theologian. The article focuses on his defense of the kalām. By adding a long introduction to Talkhīs about the naming, importance, and religious legitimacy of the science (...) of kalām, Saffār asserted that the kalām should be learned. When systematical vindication of the science of kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the kalām among Ḥanafī-Māturīdīs. Even though he does not state its systematic, it can be understood that vindication of kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation. Al-Ṣaffār’s defending the science of kalām shows that there were opposite thoughts against kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania. In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists. His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- SUMMARY: Abū Ishāq Ibrahīm b. Ismāil Zāhid al-Ṣaffār al-Bukhārī is a scholar belonging to the Ḥanafī theological tradition which was improved by the contribution of Ḥanafī theologians who used thinking system of Abū Ḥanīfa (d. 150/767) as base and adopted Abū Manṣūr al-Māturīdī (d. 333/944) and his thoughts in historical process. The contents of his theological works Talkhīs al-adilla li-qawāʿid al-tawḥīd and Risāla fī al-Kalām, the method that he used, and references to his works made by Ottoman and Arab scholars indicate that he is an important Māturīdī theologian. The article focuses on his defense of the science of Kalām. -/- In Talkhīs al-adilla, there are two sections including the subject of naming, and importance and necessity of Kalām discipline. Here, the necessity of learning Kalām and its value are defended in detail. -/- Besides, rumors “Abū Ḥanīfa turned away from the science of Kalām in his doomsdays” and that “He prohibited to make occupation with Kalām completely” are evaluated. -/- When systematical vindication of the science of Kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the Kalām among Ḥanafī Māturīdīs. Even if Abū Manṣūr al-Māturīdī, Abū al-Yusr al-Bazdawī (d. 493/1100) and Abū Muʿīn al-Nasafī (d. 508/1115) defend that the science of Kalām is not wrong for religion; yet, the vindication of Kalām does not take a place under a separate title and in a detailed manner in any of Māturīdī theologians works. -/- The method that al-Ṣaffār used when he is defending the science of Kalām, differs from strategy of Abū Ḥanīfa. While Abū Ḥanīfa has mentioned that there is a need for the science of Kalām under these new circumstances, al-Ṣaffār has defended theologians who were charged with being Ahl al-Bidaʿ, by trying to prove that the prophets especially the Prophet Ibrāhīm, even the Companions of the Prophet Muḥammad (Ṣaḥāba) and the Successors of the Companions (Tābiʿūn) scholars use their minds and make arguments in religious matters. In this respect, he emphasizes that the Qurʾān orders to think and discuss gently, not to be stay in silence: “And dispute with them, using what is best” (16.125-126). Therefore, he states that this discipline which took a mission to explain and defend the creed of Islam (ʿaqīda), cannot be characterized as an innovation (bidʿah) or illicit. -/- His vindication method can be defined as a more developed type of method that Abu’l-Ḥasan al-Ash’arī’s (d. 324/935) used in Risāla fī istiḥsān al-khawḍ fī ʿilm al-kalām. Even though he does not state its systematic, it can be understood that vindication of Kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation: -/- a) Explanation: Explaining the necessity and importance of the science of Kalām by giving information about its definition, names, value and place among other principles. -/- b) Demonstration: Revealing the religious basics of the science of Kalām from the Qurʾān, the Sunna of the Prophet Muḥammad, the Companions of the Prophet, and the Successors of the Companions thus specifying that it is legitimate for religion. -/- c) Refutation: Replying the claims having aim to weaken the value of Kalām principle and its religious legality. -/- Al-Ṣaffār describes ‘the science of Kalām’ as ‘Knowing the Real with the evidences which help to reach the absolute information’. By allocating the concept of 'Ḥaqq', he repeats the definition of Kalām as “it is to know God with certain evidences” in a part of his work, and “it is to know the principles of religion (uṣūl al-dīn) with certain evidences” in another part. He describes Kalām as “Knowing ḥaqq / God / uṣūl al-dīn by depending on evidence”, and tries to prove that it is wrong to consider a science which performs the stated duty, as illicit and abominable and thus turn away from it. -/- Al-Ṣaffār thinks that it is right to call this principle as ‘Kalām’ because of the certain evidences leading to the truth that this science has used. This thought was defended by other theologians as well. -/- For example, according to Saʿd al-Dīn Masʿūd al-Taftazānī (d. 792/1310) it seems like to say “This is the word (kalām), not the other knowings” by the way of the power of evidences used in Kalām.Thus, it is appropriate to give name Kalām for this science which based on certain evidences. -/- Al-Ṣaffār’s explanations revealed in scope of vindication of the Kalām are adopted by some of following scholars. Ḥusām al-Dīn al-Sighnāqī (d. 714/1314) in his book called al-Tasdīd sharḥ al-Tamhīd fī qawāʿid al-tawḥīd quotes Saffâr’s explanations as the same. -/- Al-Ṣaffār indicates that the method told in the Qurʾān is to reply questions about religion, beliefs and rejection instead of remaining in silence. The duty taken on by Kalām is this vindication activity performed by the prophets whose examples are described in the Qurʾān and which is legal and demanded. His way of thinking and vindication of the Kalām resembles that of Abū Manṣūr al-Māturīdī. Al-Māturīdī says, “Prophets and we were ordered to invite infidels to Islam. When this invitation happens, the respondents will ask for evidence and explanation, and discussion will be inevitable. Therefore, discussing and talking about subjects of Kalām is not objectionable”. -/- Thoughts of al-Māturīdī and al-Ṣaffār regarding the vindication of the Kalām were repeated by Nūr al-Dīn al-Ṣābūnī (d. 580/1184), and Fakhr al-Dīn al-Rāzī (d. 606/1210) later. According to al-Ṣābūnī, the evidences put against deniers and especially the discussion made by the Prophet Ibrāhīm to defend his own belief, prove the legality of Kalām discipline. Likewise, according to al-Rāzī, the duty of Kalām is just an activity performed already in the Qurʾān and ordered to the prophets. At this point of view, since the prophets were leading to Kalām, banning this activity is nonsense. -/- According to al-Ṣaffār, the reason for why Abu Hanifa avoids his son Hammād from these discussions is that Abu Hanifa does not like discussions based on obstinate. Otherwise, it cannot be that Abū Ḥanīfa prohibits to learn Kalām and make discussion about Kalām. According to him, this behavior of Abū Ḥanīfa results from that people discussing with him are ignorant about the subject of Kalām, discussion turns to an obstinate, and coming to an end of discussion seems impossible. This comment of al-Ṣaffār is quoted in Miftāḥ al-saʿāda wa-miṣbāḥ al-siyāda by ʿIṣām al-Dīn Aḥmed b. Muṣṭafā Tashköprüzāde (d. 968/1561) and in Minaḥ al-rawḍ al-azhar fī sharḥ al-Fiqh al-akbar by ʿAlī b. Sulṭān Muḥammad al-Qārī (d. 1014/1606) as same as his words. -/- Al-Ṣaffār’s defending the science of Kalām shows that there were opposite thoughts against Kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania.In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of Kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists (fuqahāʾ). Because some of the Ḥanafī jurists thought that Abū Ḥanīfa forsook occupation with the science of Kalām and even he prohibited his son to have interest in this discipline. But some of Ḥanafī theologians such as al-Māturīdī, al-Nasafī and al-Ṣaffār protested this thought which describes Abū Ḥanīfa as a banner for Kalām. -/- His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- His book Talkhīs al-adilla li-qawāʿid al-tawḥīd is a unique source in terms of containing vindication of the Kalām in detail and also influencing the approaches of the next period scholars. (shrink)

Gallicanism is specifically related to the Catholic Church of France, and it is a set of ecclesiastical and political doctrines and practices which tried to limit the powers of the Papacy in France in general. In particular, it characterized the situation of the Catholic Church in France at certain periods. The emergence of Gallicanism as a specific idea came about in the 14th century and was first used as a term in 1810. Almost everything expressed by Gallicanism is a (...) distinctive development within the French Catholic Church. Gallicanism was mostly about the riches of the Catholic Church and administrative matters rather than a theological movement. These issues were mostly related to episcopal jurisdiction, appointments of bishops, church properties and revenues, and at the core of all these issues lay the sharing of church revenues. The French Crown began to acquire gains, especially regarding the property and financial income of the church with the weakening of the power of the Papacy. This new situation left the bishops between the popes and the kings, and prepared the ground for the development of Gallicanism in the country. However, Gallicanism did not come around as a separatist movement and did not lead to the separation of the Catholic Church of France from the Roman Catholic Church. Due to the conflicts of interests between the king, parliament and the clergy, Gallicanism could not develop into a monolithic thought or doctrine, it manifested itself in different perspectives. These manifestations have been treated as Episcopal, Parliamentary, and Royal Gallicanism in most academic studies. Each of these different Gallican ideas brought to the fore the institutions indicated in their naming and received support from them. However, all three versions of Gallicanism shared some common ideals. These are the common ideals of different Gallicanisms: (1) the independence of the king of France in worldly affairs, (2) the supremacy of an ecumenical council over the pope, and (3) the restriction of the pope's intervention in the French Catholic Church. Royal Gallicanism aimed to gather the powers snatched away from the Papacy in the hands of the king. Parliamentary Gallicanism shared similar principles with Royal Gallicanism. (shrink)