The article deals with problems of the doctrine of reinterpretation of constitutional provisions, which are settled in the constitutional jurisprudence on correction of the official constitutional doctrine. This correction is typical or constitutional jurisprudence of most countries’. Under the Constitution, only the Constitutional Court enjoys the power to construe the Constitution officially. Official constitutional doctrine is to be developed in the acts of Constitutional Court gradually, disclosing (...) new aspects of it, and supplementing it. The development of constitutional jurisprudence law in some cases involves correction of the official constitutional doctrine. (shrink)

Article 14 Chapter I ‘The State of Lithuania’ of the Constitution of the Republic of Lithuania of 1992 reads as follows: ‘Lithuanian shall be the State language’. This principle is not new in the Lithuanian history of constitutionalization, as Lithuanian was the official language of the State in the interwar period but lost this status during the Soviet occupation. After 1988, when many political, economic and social changes crucial for further development of the State took place in Lithuania, linguistic (...) issues re-emerged. It was recognized back then that language played a vital role in the life of the State and the society, and the Lithuanian language was given back its status of the official language by the Constitution. The principle that Lithuanian is the official language of the State, enshrined in Article 14 of the Constitution of the Republic of Lithuania, was further elaborated by the Constitutional Court of the Republic of Lithuania in its rulings and judgments. According to its official constitutional doctrine, the Lithuanian language should be treated as a very specific constitutional value, as it forms the basis of the ethnic and cultural identity of the Lithuanian nation and is the guarantor of the national identity and survival. The status of Lithuanian as the official language means that the Lithuanian language must be used in all spheres of public life. The Court also holds that having this principle enshrined in Chapter I ‘The State of Lithuania’ of the Constitution implies that the Lithuanian language enjoys particular protection since the provisions of this Chapter may be amended only by a referendum. (shrink)

The article underlines the significance of social rights as important constitutional rights of a human being and emphasises the peculiarities of their nature from the point of view of not only national, but also international law. The article presents an analysis of the constitutional doctrine of the protection of guarantees of social rights, which has been formulated by the Constitutional Court of the Republic of Lithuania in the course of considering the issues of reduction of social (...) guarantees—pensions and remuneration, which were determined by the economic crisis. In the Constitutional Court’s jurisprudence the personal right to social security has been construed in the most broad and comprehensive terms. The human rights and freedoms enshrined in the Constitution have been treated as constituting an integrated and harmonious system, and social rights have been interpreted not only as certain obligations of the state to the public, which inter alia are determined by the social purpose of the state, but also as a person’s individual rights, for which judicial defence is guaranteed. Such concept of the said rights has also been influenced by international law, inter alia the jurisprudence of the European Court of Human Rights. Social rights, while being an object of regulation of international law, have been forming the European doctrine of guarantees of these rights and have influenced the concept of these rights in national law. The main attention in the article is devoted to the analysis of the doctrine formulated in the Constitutional Court’s jurisprudence in relation to the correction (limitation) of social rights (payment of pensions and remuneration) under the conditions of economic crisis. In the article the period of formation of this doctrine is divided into two stages: the period of 2002–2006, when the Constitutional Court had to decide regarding the compliance of the legal acts whereby social guarantees had been constricted with the Constitution, and which was caused by the consequences of the so-called Russian economic crisis for the economic development of the state of Lithuania; and the period from 2009 to date, during which the Constitutional Court has been forming the constitutional doctrine of limitation of social rights, which was conditioned by the outcomes of the global economic crisis for the economy of the state of Lithuania. The article raises a question as to whether the constitutional doctrine being formed by the Constitutional Court in relation to the limitation of social rights under the conditions of economic crisis may be assessed as an independent one or whether it still remains to be a separate case of limitation of rights within the general doctrine of limitation of human rights. On the basis of the analysis of the Constitutional Court’s jurisprudence, a conclusion is drawn that the criteria established in the Constitutional Court’s doctrine of limitation of social rights under the conditions of economic crisis are even stricter than the universally recognised criteria for the limitation of human rights in the law of human rights, therefore, it is possible to assess the doctrine of limitation of social rights under the conditions of economic crisis, as formulated by the Constitutional Court during 2009–2012, which is the continuation of the previous doctrine, as an independent doctrine, the basis of which, undoubtedly, remains to be formed by the general principles of limitation of human rights recognised in the law of human rights. The article is not only confined to the analysis of the jurisprudence of the Constitutional Court of the Republic of Lithuania, it also provides examples of construction of the doctrine of social rights (inter alia those influenced by the economic crisis) by certain other constitutional courts. (shrink)

Most legal theorists, including almost all positivists and many others, take for granted or are implicitly committed to an assumption that is not an official part of positivism. The assumption is that the content of the law is determined by the contents of legally authoritative pronouncements. I call it the Pronouncement View (PV, for short). The kind of determination at issue here is constitutive, not epistemic. That is, PV concerns what makes the content of the law what it is, (...) not how we ascertain the content of the law. PV is more of an organizing principle or core idea, than a precise doctrine. I have introduced PV in an unqualified form, but there are a variety of ways in which its claim could be moderated. For example, a qualified version of PV could hold that the contents of legally authoritative pronouncements play a central or predominant role in determining the content of the law. The debate between positivists and anti-positivists is often framed in a way that takes PV for granted. For example, one typical characterization takes the debate to concern whether laws must pass a moral test in order to be valid. The use of “laws” here betrays an assumption that the starting point is legally authoritative pronouncements. Given this starting point, if morality is relevant it will have to be as a way of screening the content of authoritative pronouncements. I suggest that the issue of whether a PV-based view of law is correct is more fundamental than the issue that divides legal positivists and anti-positivists, at least as the latter issue is commonly understood. For example, one common understanding of the latter issue is that positivists claim, and anti-positivists deny, that the criteria of legal validity – the criteria that determine whether a norm is legally valid – need not include moral facts. As will become clear, however, the picture of law presupposed by this way of framing the debate – according to which candidate norms qualify as legal norms by satisfying criteria of validity – is closely associated with PV and need not be accepted by non-PV-based views of law. PV leads to a characteristic set of concerns and problems, and yields a distinctive way of thinking about how law is supposed to operate. In this paper, I will offer an alternative to PV, which I call the Dependence View (DV, for short). I begin to develop the picture of law that it yields. The discussion throughout is exploratory and tentative. The goal is to sketch the alternative picture and identify problems and possible ways of developing it, not to refute the picture associated with PV. (shrink)

There are some problems in the implementation of rulings of the Constitutional Court. The legislator should make more efforts for implementing the concept of the provisions of the Constitution provided in the reasoning parts of rulings of the Constitutional Court. The Statute of the Seimas should be supplemented with provisions obligating structural sub-units of the Seimas to carry out permanent and systemic analysis of reasoning parts of rulings of the Constitutional Court. It would allow timely to prepare (...) proposals how to amend still unchallenged legal regulation which, however, from the constitutional standpoint is doubtful. One should consider whether the norm of Item 4 of Paragraph 1 of Article 64 of the Law on the Constitutional Court, which allows one to challenge the compliance of a legal act with the Constitution on the grounds of the procedure for adoption regardless of any terms expired after the adoption of a law or other legal act, should be amended. It is to be presumed that the principles of legal certainty and legal security entrenched in the Constitution, as well as other constitutional provisions, imply a certain reasonable period of time within which the subjects provided for in the Constitution may apply to the Constitutional Court with a petition requesting to investigate whether a law or other legal act is not in conflict with the Constitution according to the procedure of their adoption. This period of time should not be a long one, for example, half a year or a year since the official publishing of the law; this term should be a prescriptive one–after it has finished, it would not be allowed to challenge the compliance of a law or other legal act with the Constitution according to the procedure of their adoption. In order to speed up the consideration of cases at the Constitutional Court, one would have to change the procedure of consideration of cases in this Court in essence. (shrink)

The article focuses on the new institute of the Lithuanian law of constitutional justice procedure – the dissenting opinion of a Constitutional Court justice as it is consolidated in the Law on the Constitutional Court. It is argued that the current statutory regulation is defective in essence because it creates preconditions for diminishing the quality of both the final act of the Constitutional Court (especially when the dissenting opinion is to be filed by the judge rapporteur) (...) and the dissenting opinion under preparation. The narrative is half-normative and half-behavioural: the institute is analysed in the context of established procedural practice of the Constitutional Court as an extremely collegial institution (also due to the statutory regulation), as well as in the context of the current condition of the public discourse in Lithuania. Namely, statutory regulation allows filing a dissenting opinion (which is not distinguished from the concurring opinion) within three working days after the public announcement of the decision (ruling, conclusion) of the Constitutional Court. Consequently, it is hardly possible to argue that the justice who filed the opinion did not do this in view of the immediate reaction to the decision by the media, the society, or the establishment, and even that he or she did not do this because such reaction took place. Also, the three-day period mentioned above puts any justice ready to file a dissenting (or concurring) opinion into the position where he or she simultaneously needs to participate in the collegial activity of the Court in deciding cases, as well as to write the dissenting (concurring) opinion. In the article, the legislative proposal is presented that the Law on the Constitutional Court should be amended so as to allow for a relatively long time span between the adoption of the decision (ruling, conclusion) and its announcement to the public at large. However, it is not suggested that the general mode of collectivism as dictated by the Law and as implemented in the established practice of the Constitutional Court shall be abandoned. By this article, the author continues his research on the matter as commenced in his two earlier articles (of 2011 and 2012). (shrink)

Amongst the recent documents released by the Greek Ecumenical Patriarchate of Constantinople, the one titled ‘For the Life of the World’, published before the beginning of the COVID-19 pandemic, touches upon an important section of the life of the Orthodox Church, namely, the social one. As a result of the fact that, so far, there is no official document of the aforementioned Church dedicated to this aspect, whilst the Reformed Churches and the Catholic one have already issued similar documents, (...) I consider the existence of such an article, with all its minuses, important. Moreover, it can constitute a bridge and an invitation to dialogue with other Christian traditions or backgrounds. Being aware of this fact, I have decided to analyse this document in this article to emphasise its influence and its elements of novelty and to speak about both its utility and its weaknesses. As a result of the fact that the Ecumenical Patriarch Bartholomew has had an important contribution to its drafting, I will also try to present this aspect and to show how the ecological vision that he has, amongst other aspects, influenced its content. Contribution: Considering the importance of the recent document ‘For the Life of the World of the Ecumenical Patriarchate of Constantinople’, I will try to analyse it and to present its social relevance and meaning. (shrink)

Shifts in the national cultural identity of the US have been reflected in shifts in the US’ dominant constitutional narratives. For the United States, “inter-legality” has been less a matter of dealing with alternative non-state legal narratives than of contending with constantly arising and competing narratives about the “correct” nature of the “official” legal order of the state. The US Supreme Court has claimed to have the “last word” in resolving these arguments but because that Court is so (...) often sharply divided and because the Court membership and the nature of its “last words” changes so often, where a significant element of the society seeks to advance its ideas and interests, it will often do so in legal and constitutional terms. As the national culture undergoes changes, a competing constitutional narrative may gain ground and even ultimately prevail, at least for a time, and achieve Supreme Court “endorsement” for its claims. (shrink)

Unwritten constitutional conventions also known as lex non scripta, are under permanent scholarly scrutiny. This does not happen only in the Anglo-Saxon scholarly tradition. When analyzing the issues of unwritten law, a considerable number of representatives of this tradition, starting with W. Blackstone and finishing with contemporary British and American scholars, also talk about the existence of constitutional conventions. It should also be noted that issues pertaining to unwritten law and issues of conventions in particular, are often mentioned (...) and analyzed in the works of scholars of the Roman-Germanic legal tradition. Italian, French, German and Czech scholars take account of constitutional conventions, analyze their features and hold discourse on their future. However, in the course of scholarly debate, the issues of constitutional conventions have been dealt with in a fairly controversial manner. Even though individual scholars recognize constitutional conventions, the variety of opinions and conceptions is too large to form a uniform understanding. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Catholic Postliberalism in the Ruins of "the Catholic Moment"James F. KeatingA historically conversant reader interested in the current state of discourse regarding Catholicism and American politics will find a good amount of familiar discord. He will discover, for example, that the life issues continue to bedevil. Can a Catholic vote in good conscience for an abortion-rights candidate over a pro-life competitor if that candidate is more supportive of other (...) policies in line with Catholic Social Teaching? This issue has, of course, been with the American Church for some time now, even if it has taken on renewed urgency given the coincidence of the overturning of Roe v. Wade with the presidency of Joseph Biden, the second Roman Catholic to hold that office and a recent convert to pro-choice stridency. The action of the Supreme Court and the battles within the various states will ensure that abortion remains at the political heart of American Catholicism for years to come. One can say something similar about other issues, such as immigration, gun control, and economic justice. None of this will be found to be particularly surprising. The same cannot be said, however, of the return of a more fundamental question, one thought to have been settled since the mid-1960s. That question is whether Roman Catholicism and American liberal democracy are incompatible to the extent that Catholics ought to seek, if possible, another constitutional arrangement, one more friendly to the Catholic cause.Our reader would be familiar with the standard narrative that, while the existence of a medieval Church in a modern polity that upholds religious freedom had been a matter of concern since the dawn of the Republic, it [End Page 991] became serious only in the first half of the twentieth century as the number of Catholics and their influence grew. Until that time, American bishops, such as Archbishop John Ireland (1815–1918), made a special point of speaking publicly on the benefits of American freedom for the Church, just as they made clear that Catholics could be as patriotic as any other citizen. If there were tensions, they came primarily from anti-Catholic bigotry and governmental overreach. Things changed, however, when the point at issue was no longer primarily a religious one of Catholic believers infecting their Protestant neighbors with erroneous doctrine, but rather the threat so many Catholics posed to the fate of American freedom itself. In a postwar America concerned with the spread of Soviet communism, Paul Blanshard found a ready audience for his scholarly anti-Catholic diatribes, American Freedom and Catholic Power (1949) and Communism, Democracy, and Catholic Power (1951).1 Without much difficultly, he pointed to various statements of Gregory XVI and Pius IX condemning the separation of Church and state, the freedom of religious conscience, and democracy as the best governmental form. To top things off, he had Leo XIII's Testem Benevolentiae, an 1899 letter to the Cardinal Archbishop James Gibbons of Baltimore, warning him and his fellow bishops not to speak of the constitutional arrangement of the United States as a political ideal. While Leo had positive things to say about the American system, his admonition followed the traditional line: while constitutional protections of religious freedom are necessary when Catholics are in the minority, the ideal situation is a state that officially confesses and supports the Catholic religion. Of more recent vintage, Blanshard could quote the response of America's best-known Catholic theologian, Monsignor John A. Ryan, to the question of whether non-Catholics would be permitted to practice their religion in this ideal state:If these are carried on within the family, or in such inconspicuous manner as to be an occasion neither of scandal nor of perversion to the faithful, they may be properly tolerated by the State,... Quite distinct from the performance of false religious worship and preaching to the members of the erring sects, is the propagation of the false doctrine among Catholics. This could become a source of injury, a positive menace, to the religious welfare of true believers. Against such an evil they have a right of protection by the Catholic State... If there is only one true religion, and... (shrink)

The constitution’s standing as a legal act of the highest power not only ensures its exclusive status in the legal system but also determines the hierarchic certainty of all norms within that system. The explicit character of the constitution does not preclude it from ensuring the hierarchical functionality of the legal system. This latter function requires that the limitation “problem” of explicitness be addressed by interpreting the constitution as a systemic document. Applying the constitution, therefore, requires a continuous effort in (...) comprehending it. The official doctrine of constitutional judicial institutions reflects the standard for understanding the constitution. This standard becomes the sole source, not only de jure, but significantly de facto, for determining the legality of legal acts. The constitution, as the prime and foremost law in a country, determines the functionality of the entire system of legal norms. As a legal source, it takes on the role of the material arbiter of final legality. The constant need to ensure the functioning of the system of legal norms hence informs yet another necessity–to apprehend and understand the constitution and the norms and principles established within. A few factors induce this perpetual need for interpretation, those being (a) the abstractness of constitutional norms, (b) “competition” among constitutional norms, (c) the integral and systemic nature of the constitution, and (d) the problem of legislative/regulative omission in the constitution. (shrink)

A rare survival provides unmatched access to the medieval classroom. In the academic year 1330-31, the Franciscan theologian, William of Brienne, lectured on Peter Lombard's Sentences and disputed with the other theologians at the University of Paris. The original, official notes of these lectures and disputes survives in a manuscript codex at the National Library of the Czech Republic, and they constitute the oldest known original record of an entire university course. An analysis of this manuscript reconstructs the daily (...) reality of the University of Paris in the fourteenth century, delineating the pace and organization of instruction within the school and the debates between the schools. The transcription made during William's lectures and the later modifications and additions reveal how the major vehicle for Scholastic thought, the written Sentences commentary, relates to fourteenth-century teaching. As a teacher and a scholar, William of Brienne was a dedicated follower of the philosophy and theology of John Duns Scotus (+1308). He constructed Scotist doctrine for his students and defended it from his peers. This book shows concretely how scholastic thinkers made, communicated, and debated ideas at the medieval universities. Appendices document the entire process with critical editions of William's academic debates (principia), his promotion speech, and a selection of his lectures and sources. (shrink)

In the past few decades a remarkable change occurred in Kant scholarship: the "other" Kant has been discovered, i.e. the one of the doctrine of virtue and the anthropology. Through the rediscovery of Kant's investigations into the empirical and sensuous aspects of knowledge, our understanding of Kant's philosophy has been enriched by an important element that has allowed researchers to correct supposed deficiencies in Kant's work. In addition, further questions concerning the nature of Kant's philosophy itself have been formulated: (...) the more the "other" Kant comes to the fore, the stronger the question concerning the connection between pure philosophy and empirical investigation becomes. The aim of this study is to show that the psychological and anthropological interpretations of Kant's pure philosophy are not convincing and at the same time to illustrate some connections between his critical and anthropological investigations by means of an analysis of the theory of the faculties. Against both a "transcendental psychological" and an "anthropological" reading, the book presents Kant's theory of the facultiesas a constitutive part of his critical philosophy andshows that there is a close connection between Kant's pure philosophy and his moral aesthetic. (shrink)

Spinoza’s interpretation of the election of the Hebrews in the third chapter of the Theological Political Treatise enraged quite a few Jewish readers of the nineteenth and twentieth centuries. The rise of nationalism, and the demand of loyalty to one’s own genos brought about a certain style of patriotic writing aimed at Spinoza’s “betrayal.” In a series of lectures on the eve of the Great War, Hermann Cohen portrayed Spinoza as a person of “demonic spirt” and as “the great enemy (...) who emerged from our midst.” In a stream of words more akin to shouting than to analytic discourse, Cohen protested against what he took to be the universal complacency regarding Spinoza’s treachery: “When Spinoza, with merciless severity, makes his own nation the object of contempt – at the time that Rembrandt lived on the same street and immortalized the ideal type of the Jew - no voice rises in protest against this humanly incomprehensible betrayal.” Cohen was right in identifying in Spinoza an absence of ethnic patriotism. I, for one, find this absence a virtue rather than a vice, and in this chapter I will argue, inter alia, that in rejecting ethnic normativity Spinoza was consistent with a dominant strand of rabbinic thought. What precisely was so offensive in Spinoza’s words in chapter three of the TTP? A common reading of this chapter suggests that Spinoza presents the election of the Hebrews as merely political and not spiritual in nature, thus downgrading the importance of the election. This reading is not absolutely groundless, but it is highly imprecise, for as we shall shortly see, for Spinoza, God’s (genuine) election of the Hebrews indicates the political weakness of their state, rather than its strength. Apart from pointing out this important corrective, I will also attempt in this essay to evaluate Spinoza’s critique of the election of the Hebrews, the result of which might lead us to some highly unexpected conclusions. In the first section of this chapter I present an outline of Spinoza’s interpretation of the connection between the Hebrews’ belief in being chosen, and the xenophobic nature of their ancient state. In the second section, I discuss Spinoza’s interpretation of the election of the Hebrews in chapter three of the TTP, and show that on Spinoza’s sardonic reading it was nothing but luck which allowed the Hebrew state to survive for a rather long time in spite of its poor political constitution. The third and final part provides a defense of Spinoza’s critique of the notion of chosenness. I will argue, first, that chosenness has never been granted the status of theological doctrine or principle of faith within rabbinic Judaism. I will then point out the significant religious problems with the notion of chosenness, suggesting however two exceptions in which belief in chosenness might still be defensible. I will conclude this section with a discussion of rabbinic views on the conversion of minors, arguing that according to the mainstream rabbinic view, being a Jew is a merit only on the condition that a person is pious, a view which is not far from Spinoza’s own claims in the third chapter of the TTP. (shrink)

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding (...) and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’. -/- . (shrink)

One of the most important issues in Islamic law is that either partially or completely, or temporary or permanently, a rule can be changed for a particular group of people or everyone. Since the concept of necessity can lead to a change of an important rule like ḥarām/prohibition, this concept should be examined meticulously both in theory and in practice. The thşs study aims to analyze how and why necessities make some ḥarāms permissible and to reveal the ultimate cause for (...) this ibāḥa (permission) from the point of view of Islamic legal theory and philosophy. To achieve this aim, first, the nature of the relationship between the prohibition and the act is examined. To understand how and why necessity gives permission to some ḥarāms, it is necessary to determine the changing and unchanging elements in the case at issue. In the case of necessity, there is no change in the nature of the act and the evil, which is considered as the reason of banning. Indeed, there is a change in the conditions surrounding the act and in the state of the obligated person. However, the main factor that enables the change in ḥarām is the change in the addressing of Shāri‘, who takes into account the changes mentioned. It is seen that the changes stemming from necessity do not lead to the same results as in all permitted ḥarāms. This observation requires a thourgh examination and elaboration on what the scholars of legal theory mean by abolition of prohibition and turning it into permissible. As a result, it has been observed that permitted ḥarāms do not equally function in terms of turning into permissible and that they do not have an equal effect on other acts in the field of mubāḥ. In that case, it is possible to evaluate the permitted ḥarām acts as al-maʻfuw ʻanh/forgiven acts. Although the act could be considered part of the category of mubāḥ, it would be more correct to place them close to the line of makrūh. From the point of view of the servant, the reason why necessity makes a ḥarām act permissible is the priority of avoiding greater evil. However, to reveal His sincere servants, Allah's command to them to avoid all ḥarāms even if they die, does not contradict with His wisdom. For this reason, the ultimate cause why Allah considers the case of necessity in passing judgment is His endless mercy. All these points helped reaching some broader conclusions about legal theory, as well as some conclusions specific to the case of necessity. It turns out that to understand how necessity makes some ḥarāms permissible, one needs to comprehend the relation between the act, the obligated person, the conditions surrounding them and the Shari‘ correctly. Understanding this relationship well is also extremely important to understand the theory of ruling and the Islamic legal theory. This research has substantiated once again that the issues addressed by the Islamic legal theory and practice are linked to the theological doctrines, more than, it is commonly perceived or considered. It turns out that it is important to know the deep or subtle differences between the terms such as ḥarām-ḥalāl, maḥẓūr-ḥarām, mubāḥ-ḥalāl, fundamental mubāḥ-ma‘fuw ‘anh, etc. as well as grasping each of the rule categories. Comprehending all these concepts constitutes an important step in acquiring a true understanding of religion and the maqāṣid al-sharī‘a. In this research, it has been proven once again that each category of the rule includes different levels of ruling in itself. The reason why the acts are categorized in different levels even if they are in the same rule category is the concepts of worldly and otherworldly; evil or good arising from the the ḥarām act. This study also confirmed that the obligated person is at the center of the law. This fact reveals how difficult it is to argue that the rules of Allah are based on divine will that is independent of and disregards the act, obligated person, and conditions. On the contrary, it is understood that the interests of the servant are considered both in the rules of necessity and in the whole of the divine legislation (and even the genesis). On the other hand, this indicates a legal system that is not inflexible and dull, but rather dynamic and parallel to life. Both the fact that the real and absolute source of the rule is Shāri‘ Almighty,and that a very large area of legislative was left to the mujtahid should be considered together. This truth has been observed once again in the matter of making prohibitions permissible on the basis of necessity, and the task of determining which evil is greater was often left to the mujtahid’s consideration. (shrink)

I scratch your back, you scratch mine—how must these services relate in order to constitute a quid pro quo exchange? In the ordinary quid pro quo exchange, each party agrees to do their part in order to get the other party to do theirs; each conditions their own willingness to perform on the willingness of the other; and each regards the other as obligated to do their part in light of their agreement. But not all exchanges are ordinary, and a (...) proper analysis is of considerable practical and theoretical significance. In the law alone, quid pro quo figures prominently in a wide range of contexts—civil as well as criminal, public as well as private—and lies at the core of a number of raging controversies concerning official corruption, insider trading, and other matters. This Article offers the first philosophical analysis of quid pro quo exchange in the Anglophone tradition. (shrink)

I focus on the question as to what rationale could possibly underlie the doctrine of double effect or related principles. I first briefly review the correct critiques of the claim that people who intend some evil as a means to a good must be “guided by evil,” and that this is allegedly always wrong. I then argue that Quinn’s claim that violations of the DDE express certain negative attitudes of the agent and that agents violating the DDE must make (...) an additional morally problematic presumption regarding their victims is mistaken. Tadros claims that an agent violating the means principle must force his victims to adopt his goals. I demonstrate that the difference Tadros tries to construe between an agent inflicting intended harm and an agent inflicting merely foreseen harm is non-existent. Sarch’s official rationale for the DDE also fails to distinguish harming as a means from side-effect harming, and reformulations of his rationale that suggest themselves run into severe problems. Walen’s defense of the means principle in terms of the “restricting claims principle” and Øverland’s appeal to “moral obstacles” are susceptible to counter-examples and appear to be question-begging. Recently, Walen has offered a revised formulation of his Restricting Claims Principle, claiming that it overcomes counter-examples and explains the means principle. I will argue that it contradicts the means principle and does not overcome the counter-examples. Thus I conclude that so far we are still left without a reasonable rationale for the DDE or related principles. (shrink)

This article examines Abu Nasr al-Farabı (c. 872–950/1) on the topic of intentionality, with particular focus on how intentionality is integral for the constitution of the intellect within his psychology. Unfortunately, targeted study of al-Farabı’s doctrine of intentionality has been largely neglected since Kwame Gyekye’s 1971 essay, The Terms ‘Prima Intentio’ and ‘Secunda Intentio’ in Arabic Logic. Gyekye showed that the Arabic (and thus the Latin) doctrine of first and second intention originated within the texts of al-Farabı,not the (...) texts of Avicenna, as had been previously thought. In response, this article aims to show three things. First, while the doctrine of first and second intention appears in al-Farabı’s texts, it is not as clearly developed or defined as is presented in Gyekye’s 1971 article. al-Farabı both lacks consistent technical terminology for the doctrine (as he discusses it across disparate sciences, in unrelated contexts) and develops it far too little to fully flesh out his doctrine. Second, even given the fact that al-Farabı’s discussion of intentionality is underdeveloped, Gyekye was right to credit the doctrine to him. And third, al-Farabı’s doctrine of first and second intention is not merely important to understand his positions regarding signification and universals; they play a pivotal role in the constitution of the human intellect. (shrink)

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done (...) in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication. Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist? This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. (shrink)

The article discusses the certain features of the constitutional doctrine of human rights developed by the Constitutional Court of Lithuania which were influenced by the jurisprudence of the European Court of Human Rights, the role of the European Convention on Human Rights as a legal source in the system of sources of constitutional law. The intersection of the jurisprudences, which came into being due to different assessments of the legal regulation in cases where the same legal (...) act was recognized by the Constitutional Court being in compliance with the Constitution and the European Court of Human Rights recognized that the application of the said act was a cause of the violation of a certain person’s rights protected by the Convention (or vice versa) is one of the most important questions and raises many theoretical and practical problems. Different assessment of the legal acts made by the European Court of Human Rights with regard to their compliance with the Conventionshould not be regarded as such an essential circumstance which could lead to possible repeated review of such legal act at the Constitutional Court, such intersection of the jurisprudences, should be solved by ordinary courts while following the doctrine that in cases where legal acts contain the legal regulation which competes with that established in the international treaty, the international treaty should be applied. (shrink)

Pollitt and Bouckaert and their neo-Weberian state (NWS) have been chosen as the subject for this essay because the book has become a standard work in the public management movement. It is frequently cited and has been re-published in multiple editions (most recently in 2017). The authors also refer explicitly to Max Weber.This contribution seeks to draw attention to three important aspects, which inevitably overlap with one another:1. There is no Weber in the neo-Weberian State (introduction, 1; section II). Pollitt (...) and Bouckaert fail to grasp that Weber’s understanding of the state [the state as an “institution” (Anstalt); and the state as an “idea of validity” (Geltungsvorstellung)] is not identical to his ideal type of modern bureaucracy; it is the features of the latter on which they draw. The ideal type is a standard measure constructed in order to establish how close any concrete, given instance of bureaucracy comes to it (introduction, 3). Meanwhile, the “neutral official” insisted upon by Weber has “taken their leave” in Germany from important positions (section III, 3). Furthermore, Weber did not address those structures and processes internal to the administration which are precisely the object of interest for the new public management reformers. Weber’s lack of interest arises from the fact the members of anAnstalt, whether it is the state or the Church (WuG, § 15, no. 2), are subject to imposed orders (oktroyierte Ordnungen) and, as such, do not enjoy the “right to have a say”. Scharpf (1973a) was the first to pay particular attention to the problems brought about by specialisation and by the division of labour within the administration that are responsible for an incremental form of politics (section III, 3); even if he later ascribes advantages to the combination of “negative” and “positive coordination” (Scharpf 1991: 18ff.).2. The “legalistic culture” that characterises Germany will be considered in a more differentiated way, drawing on empirical studies which provide information, for example, on how laws (i.e. programmes)actuallyoriginate inside the ministerial apparatus (introduction, 2; section III, 2 and 3) or how use is made of the power of authority (Weisungsrecht) in practice (introduction, 2; section III, 2 and 3), even when, formally, it claims to have validity (section III). In this way, only empirical studies (Benz 1994; Bohne 1981; Dose 1997; Dose/Voigt 1995; Treiber 2007a) prove that the administration that implements laws has often, in practice, become a “negotiative administration” (introduction, 2). Such a phenomenon as a “co-operative administration”, which negotiates rather than rules, is a “foreign concept” in Weber’s discussion of the state and modern bureaucracy. Scharpf’s (1970) comparison between constitutional governance in Germany and legal relief in America is enlightening when it comes to the meaning of the constitutional state (Rechtsstaat) (introduction, 2; section III); the same applies to his discussion of the failed federalist reforms, which sought, among other things, to mitigate, if not entirely eliminate, the opportunities for blockades provided by political entanglement (Politikverflechtung) (section III). Neither was it possible to realise long overdue proposals to reform administrative law (Verwaltungsrecht) (section III, 1), which involved weakening or removing altogether three important assumptions in the dominant administrative doctrine (the “dogmatic normality”) and which also included the ambitious intention for the law to achieve tangible impact (Hoffmann-Riem 1994). Nonetheless, while no-one would dispute that reform of the federal government and administration remained “on the agenda” (Scharpf 1991, Mayntz/ Scharpf 1973), the priorities of such a reform were, and still are, different to those of new public management reform [the key terms here arePlanung(“planning”) and the term that replaced it,Steuerung(“management”)]1.3. Pollitt and Bouckaert ascribe to the neo-Weberian state extremely varied functions without providing any (theoretical) basis for them. In this way, the notion of public management reform that they present acquires the status of a “reformist philosophy” (introduction, 3; section IV). See Scharpf (1991) for a theoretically well-founded argumentation on the State’s ability to act in our days. Scharpf’s essay will be discussed briefly (section IV).ConclusionThere is no Weber in the neo-Weberian state. According to the discussion presented here, the neo-Weberian state can only mean: how would a modern state constituted by Weber look today? (shrink)

The article deals with the doctrine of the returning of the powers of the Government upon the election of the President of the Republic formulated in the Constitutional Court ruling of 10 January 1998. Attention is focused on the arguments of the Constitutional Court upon which this doctrine is based–these are the arguments regarding the expression of no-confidence in the Prime Minister and the new empowerment of the Government (after more than a half of the ministers (...) are changed). In the opinion of the author, some of such arguments are subject to discussion. The constitutional regulation regarding the returning of the powers of the Government upon the election of the President of the Republic is inexhaustive and unclear. Although the wording of the provisions of the Constitution regarding the returning of the powers of the Government after the elections of the Seimas and after the elections of the President of the Republic is almost the same, there is one essential difference: the Constitution provides that after the elections of the Seimas the Government must return its powers to the President of the Republic and must resign, whereas the Constitution does not provide that the Government must resign after the elections of the President of the Republic as well. (shrink)

Purpose: The primary objective of this study was to determine the role of church in state and public affairs during the Kibaki Era, 2002-2013Methodology: The methodology employed in this study was qualitative in nature. The study relied mainly on the analysis of an existing dataset from secondary sources. The data was gathered from technical reports, scholarly journals, reference books, past sermons, church publications, official and unofficial doctrine, theologies and from the Kenya National Archives in Nairobi. Other sources of (...) data collection for the study included official statistics collected by government and the various agencies, bureaus and departments. The target population for this study was the mainland churches in Kenya and the role these churches played in state and public affairs in Kenya between 2002 and 2007.Results: The Kibaki era has been characterized by many an events that have attracted by far and wide the attention of the clergy. In 2005, the most significant development of the 2005 constitutional referendum is not the defeat of the draft, but the emergence of strains and tensions not just between Christians and Muslims, but also between church and state. Another significant development was the fact that the mainline clergy were increasingly viewed as partisan and divided along ethnic lines and serving narrow political interest depending on the ethnic group to which its leaders belonged. The prophetic role and voice of the church to act as the conscience of society was lost, and the church did nothing to evaluate its own role even after the people voted to soundly reject the draft constitution.Unique contribution to Theory, Practice and Policy: The study recommended that the government should put in place laws that would involve the church in government matters. This can be done by introducing motions into parliament that advocate for the direct involvement of the church. This would involve laws which ensure that a portion of all members sitting in any committee represents the church. This can also be done by the introduction of electoral posts for church representatives just as there are positions for women representatives. The study also recommends that amendments be made to the constitution to make a legal requirement that one of the nominated MPs must be from the church. (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)

In this paper, I take up the problem of the self through bringing together the insights, while correcting some of the shortcomings, of Indo–Tibetan Buddhist and enactivist accounts of the self. I begin with an examination of the Buddhist theory of non-self ( anātman ) and the rigorously reductionist interpretation of this doctrine developed by the Abhidharma school of Buddhism. After discussing some of the fundamental problems for Buddhist reductionism, I turn to the enactive approach to philosophy of mind (...) and cognitive science. I argue that human beings, as dynamic systems, are characterized by a high degree of self-organizing autonomy. Therefore, human beings are not reducible to the more basic mental and physical events that constitute them. I critically examine Francisco Varela’s enactivist account of the self as virtual and his use of Buddhist ideas in support of this view. I argue, in contrast, that while the self is emergent and constructed, it is not merely virtual. Finally I sketch a Buddhist-enactivist account of the self. I argue for a non-reductionist view of the self as an active, embodied, embedded, self-organizing process—what the Buddhists call ‘I’-making ( ahaṃkāra ). This emergent process of self-making is grounded in the fundamentally recursive processes that characterize lived experience: autopoiesis at the biological level, temporalization and self-reference at the level of conscious experience, and conceptual and narrative construction at the level of intersubjectivity. In Buddhist terms, I will develop an account of the self as dependently originated and empty, but nevertheless real. (shrink)

The article examines the doctrine of thing in the “Metaphysics” created in the early 1330s by an original Franciscan theologian and philosopher Nicholas Bonetus. The article points to the historical-philosophical significance of this work. In the scholastic tradition, Bonetus’s “Metaphysics’ is argued to be one of the first large and independent treatises on metaphysics, i.e. it is not related to the tradition of commenting on Aristotle. It is also the first treatise in the history of philosophy under the title (...) “Metaphysics”, named so by the author himself. First, we present the biography of the author of the treatise and briefly characterize the structure of his four-part “Opus philosophicum”, as well as emphasize the importance of the division between metaphysics and natural theology, for the first time in the history of the scholastic tradition not only declared as a project, but also im­plemented by Bonetus. Secondly, we examine the place that book III of the “Meta­physics” occupies in Bonetus’s entire metaphysical treatise, and determine the two main themes of this book: the doctrine of res and the doctrine on distinctions and identities. Thirdly, through the analysis of the Ist and IIIrd books of “Metaphysics” we demonstrate the connection, opposition and partial coincidence of two fundamental concepts of Bone­tus's metaphysics: the concept of being as being and the concept of thing. Additionally, the leading meaning of the concept of a thing as a simul totum, that is, a single “consti­tuted whole” from metaphysical elements (formalities, quidditative and individual differ­encies, intrinsic modes, properties), is clarified. Finally, we analyze the relationship be­tween the doctrine of res and the doctrine on distinctions in Bonetus and explain how the doctrine of real and formal distinction and identity is subordinated to the goal of ana­lytics of the metaphysical “constitution of res” and is built into the treatise on the thing. This, in turn, allows us to conclude that the main difference between the “formalist trea­tise” on distinctions and identities (and this is exactly how the content of the IIIrd book of Bonetus’s “Metaphysics” was perceived in the subsequent Scotist tradition), in com­parison with the corresponding treatises of Francis of Meyronnes and Peter Thomae, is precisely the role of the ontological concept of a thing as a “metaphysical whole” or in­dividual in Bonetus that determines his understanding of “formalities”. (shrink)

Across a number of countries including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken presidential term limits. In some cases, these efforts to extend terms have been part of broader projects to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of incumbents. From a legal perspective, these cases are interesting because they highlight the limits of tools limiting (...) constitutional change, such as eternity clauses and the unconstitutional constitutional amendment doctrine, to constrain potentially anti-democratic or anti-liberal forms of constitutional change. Although constitutional texts in most of these cases gave courts ample ammunition to reject attempts to eliminate term limits or at least to force those changes down more demanding paths, courts did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of doctrines controlling constitutional change may fail to block, and indeed may promote, forms of constitutional change that threaten liberal democratic constitutionalism. It also suggests possibilities for deepening the effectiveness of transnational dialogue on these issues. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is that (...) policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 5, Page 655-673, June 2022. The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the (...) rule of law is simultaneously before, after, concurrent and synonymous with democracy: It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: (...) It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: (...) It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: (...) It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: (...) It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

From the end of the First World War, a broad discussion took place within the framework of the revived German constitutional teaching on the question of the physical normality of man. The founder of the so-called statistical concept of normality, which preceded the still widespread normal (reference) interval concept, is H. Rautmann, who gave it the character of a tool for discriminating between health and disease. Among some of his successors (Bauer, Borchardt, Günther), however, it was considered more a (...) means of establishing a type, without supposing any precise relation between the frequency of a character in the population and the probability of the occurrence of disease. The concept of a statistical norm as a certain region of the variation range of a character determined by the parameters of Gaussian distribution was criticized both by the supporters of the ideal norm (Hildebrandt) and those who were in favour of a ‘personal’ norm (Grote). The underlying motifs of these three conceptions of normality influenced German constitutional doctrine until after the end of the Second World War, but without a satisfactory solution to the diagnosis of physical normality being found. Since the 1950s, world medicine has moved more and more in the direction of prevention, with the emphasis on a study of individual dispositions to disease and its precursors. In this connection a new view of health has gained importance whereby it is considered a smoothly gradated condition, not sharply distinguished from disease (‘continual’ model of health and disease as opposed to the previous ‘alternative’ model). The purpose of diagnostic characters is no longer merely to place patients in clearly defined categories as healthy or affected by one disease or another, but has taken on the function of indices of the disposition to disease among those who exhibit ‘gross normality’. Discrimination between the alternative and continuous models allows a clarification to be made of the sources of the confusion in which the pre-war concept of statistical normality had found itself. Today many exceptions are known to the rule that the functional optimum lies in the region of the population mean, both for the population as a whole and for individuals; and immense variability has been found in the manner in which individuals in the population attain health. Thus a distinction between health and disease by statistical means alone (such as establishing some sort of species design) is not possible at all. The ideal of a personal norm is pursued today through the concept of a multivariate norm backed up by modern data processing methods, though it was anticipated in principle by Kaup even in the 1920s. CiteULike Connotea Del.icio.us What's this? (shrink)

The Aeolic dimeter and trimeter constitute so considerable a part of Greek lyric and dramatic poetry that the correct apprehension of their form is a matter of great moment. The Greek metricians comprehended this rightly, in the main, but in the first half of the nineteenth century the doctrine of these learned men was supplanted by a new theory that attempted to apply the principles that underlie modern poetry to the explanation of the undoubtedly complex rhythm of these clauses. (...) Many scholars persistently maintain this theory. It is not difficult to discover why it was invented and why it remains attractive. That the quantitative rhythms and metres of Greek poetry should seem complicated to men whose language is accentual is inevitable, whereas modern metres and rhythms are notoriously simple. The limitations imposed upon poetic form by accentual speech are extreme. No modern poet, for example, has attempted Ionic or Cretic measures. Again Greek music was simple, and both music and dance were under the control of the singers, but modern music is a complex art, and casts language in an iron mould. Nevertheless musical expression must be the basis of comparison, so far as we allow ourselves to institute it, between ancient and modern rhythms. The attempt to conform Greek lyrics to the elementary—and uncertain—rhythms of modern poetry that is merely read or recited implies a fundamental misconception of relations. Greek lyrics were melic. Agathon, in the Thesmophoriazusae, sings as he composes. These Greek songs were never intended to be read by anybody, Greek or barbarian. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:HAPPINESS: THE NATURAL END OF MAN? KEVIN M. STALEY St. Anslem Oollege Manchester, New Hampshire I AONG THE QUESTIONS the philosopher considers, none perhaps ris more important than that of ' the good life.' This question looks for the distinguishing marks of a. life which is fully human and which constitutes the actualization of one's uniquely human potential. For the ancient philosophers, such a life was considered the highest (...) good that one could achieve, the end and the raison d' etre of one's activity. This end was known as happiness. As a Christian theologian well versed in the writings of the ancients, Thomas Aquinas also had occasion to reflect on the nature of happiness. His inquiry possessed a dimension which was completely lacking to the ancients, namely, the belief that man is destined to enjoy the ' face to face ' vision of God. Thomas left no doubt that this, man's most ultimate end, was to be possessed after death through the gifts of grace. On the other hand, in his Sententia Libri Ethicorum he gives Aristotle his due, commenting with approval on many 0£ Aristotle's conclusions. In his discussion of happiness in the Summa Theo~ logiae, one can also find the Philosopher's doctrine of happiness, here distinguished from ·supernatural beatitude as imperfect from perfect beatitude. Are we to assume then that inquiry rinto the nature of happiness is twofold, admitting of a. theological and philosophical dimension? A philosopher would, on this showing, be concerned ·with the natural, albeit imperfect, end and the theologian with the supernatural end of man. Many philosophers within the Thomistic tradition have ~15 216 KEVIN M. STALEY been comfortable with this assumption. Recently, for example, John Finnis has stated, St. Thomas very plainly says, the task of ' considering and determining the ultimate end of human life and human affairs' belongs to the principle practical science; Aristotle called it ethics and Thomas moral philosophy.1 Others do not share Finnis' confidence in this regard. Alan Dona.gan, for example,,argues to the contrary that Thomas' final word on the end of man was that Aristotle was simply mistaken. According to Donagan, Thomas saved Aristotle's thesis that the ultimate end of human life is eudaimonia by two drastic amendments. First, he reinterpreted eudaimonia as what he called beatitudo: the total satisfaction of desires of an intellectual creature by a vision of God's essence.... Secondly, he denied that human beings could either attain beatitudo, or even learn what it really is, except by grace.2 If Donagan is correct, then the philosopher is clearly not competent to discuss the end o£ man, since the consideration of supernatural beatitude lies beyond the power of unaided.reason. Finnis recognizes the distinction between perfect and imperfect beatitude, and his position need only entail that it is the latter which is the concern of philosophy proper. However, although the notion of 'imperfect beatitude' served well Thomas' purpose of integrating the thought of the Philosopher within the framework of Christian theology, the fact remains that Thomas did not disengage this notion from its theological context. That is rto say, he did not carry out 'an explicit treatment of imperfect beatitude as the natural end of man. In itself, this need not imply that such an inquiry is impossible or ill-conceived. Nevertheless, the notion of ' imperfect beatitude ' (construed as some sort of natural end of man 1" Practical Reasoning, Human Goods, and the End of Man", Proceedings of the American Catholic Philosophical Society, v. 58, 1984, p. 26. 2 Human lilnds and Human Actions (Milwaukee: Marquette University Press, 1985), p. 38. HAPPINESS: THE NATURAL END OF MAN? 217 amenable to philosophical treatment), is still quite problematic ; and Finnis himself has recognized the difficulty. Happiness signified, even for Aristotle, a good which is perfect and in every way final.3 Finnis observes that "the 'perfect,' the 'fully satisfactory,' is what the concept of eudaimooia /bemitudo is about; an 'imperfect beatitude' is, by definition, a state which is not ' adequate to the aspira.tion of human nature '." 4 Thus, the very concept of ' imperfect happiness ' appears at best to be paradoxical, at worst self-contradictory -at least to the philosopher. This... (shrink)

The branch of science that examines the spelling features of the words of the Qur'an is called resm-i mushaf/resm-i Osmânî. This science is the source of the mushaf copying activity, which was carried out according to the correct Arabic rules of the period during the caliphate of ʿUthmān b. ʿAffān (d. 35/656). It is accepted that the spelling used in this study, which was carried out by the Companions, was based on the mushafs written in later periods. Today, there is (...) no known mushaf that was spelled under the auspices of ʿUthmān. Therefore, we learn the details of the writing styles in the ʿUthmān mushafs only from the works that began to be copyrighted in the 3-4th (A.H.) centuries. However, it is known that there are some hesitations about the adequacy/soundness of the information given in the works written more than 3 centuries after the activity of copying the mushaf. In this article, in the context of the official writing rules in the main works of the field, Topkapı Palace Museum / Relics Treasure 2 nr. mushaf is examined. The Mushaf, of which there is no doubt that it belongs to the first centuries, is attributed to ʿAlī b. Abī Ṭālib. The aim of this research, which is carried out in a fairly new field in terms of the number of existing studies, is to compare the spelling of the Mushaf in the Topkapı Palace, which was written in the early periods with the rules that can be reached through the works copyrighted a few centuries after the Hijrah, and to see how the rules were applied at that time. In the first part of the article, which consists of two parts, introductory and technical information about the Mushaf is given and its relation to ʿAlī has been examined. It has been reached the conclusion that although the Mushaf was spelled in the early period, it was not possible for ʿAlī to write it. In the second part, the writng of the Mushaf with the spelling characteristics of a total of 1406 words included in the related Works under the headings of "omit, proof, replace, cut/attached spelling, hamza, spelling differences that differ according to the towns where the mushafs were sent" has been compared to TMSK E.H. 2 nr. Mushaf. As a result of the examination of this entire Mushaf, which is almost perfect in terms of the lack of page and verse, it has been determined that there are spellings against the rules in a total of 319 words. This spelling inconsistency, which is also seen in all the ancient Mushafs studied, strengthens the existing question marks about the soundness of the official mushaf rules. This should be accepted as an indication that the spelling of ancient mushafs should be taken into account in order to determine the limits of the science of official mushaf, and for this reason, it is necessary to conduct more research on the writing styles of the mushafs written in the early period. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Mind of Charles Hartshorne: A Critical Examination by Donald Wayne Viney and George W. ShieldsLeon NiemoczynskiThe Mind of Charles Hartshorne: A Critical Examination. Donald Wayne Viney and George W. Shields. Anoka, MN: Process Century Press, 2020. 584 pp. $40.00 cloth.Over the past decade process philosophy has undergone a significant renaissance most notably due to the towering presence of the thought of Alfred North Whitehead in that tradition. (...) Charles Hartshorne by manner of contrast has not had such a towering presence. Part of the reason this is the case is due to a paucity of introductory literature on the thought of Charles Hartshorne—literature that might contribute to a “starter kit” so to speak in mastering Hartshorne’s massive oeuvre. The Mind of Charles Hartshorne: A Critical Examination by Donald Wayne Viney and George W. Shields, both former students of Hartshorne and experts in process philosophy themselves, have authored a welcome contribution to an introductory literature that will most certainly elevate awareness of Hartshorne’s importance to its rightful place alongside that of Whitehead. The book is successful in its aims of “giving a reasonably comprehensive account of Hartshorne’s philosophy with an eye of presenting his best arguments...” (the “correcting what we see as misunderstandings of his views appearing in the critical literature” part may have been best left out) and “updating Hartshorne scholarship” (viii). There are ten chapters in total, appendix essays, the aforementioned bibliography, endnotes, and name and subject indexes.The Preface situates the mind of Charles Hartshorne as spanning the twentieth century and engaging metaphysics even when it was unfashionable to do so. Hartshorne thought about a wide-ranging and diverse range of subjects in both philosophy and science, aesthetics, metaphysics, applied philosophy, and theology. He never questioned modern science or evolution and believed that while metaphysics and empirical science have different methods each ensures its own way to objectivity. One learns that Hartshorne’s process metaphysics is also called “neo-classical” philosophy or speculative philosophy. His thought “gave full weight to the dynamic, relational, processive temporal and creative, affective dimensions of the universe” (vi). Hartshorne was known as much for his “panentheism,” or view that God transcends nature but also may be found immanently within it, as he was for his critique of traditional or scholastic classical theology—especially in his logic of theism where he recreates a modal version of the ontological argument. [End Page 94]Chapter 1, “The Career and Personality of Charles Hartshorne,” discusses just that. What seemed most important to me was the discussion of Hartshorne’s formative background of reading novels and poetry by Emerson, Melville, or Camus as a way of intensely living, his studying under William Ernest Hocking, and his Sheldon Traveling Fellowship where he studied for a time with Husserl and read and reviewed Heidegger. Probably the most important biographical details are that Hartshorne was given the assignment of editing the Peirce papers along with Paul Weiss as a Research Fellow while at Harvard University and he also met and graded for Whitehead, who along with C.S. Peirce, would become the twin pillars of all his thinking as a “Peircean and Whiteheadian” (11). From Peirce, we learn that Hartshorne took “possibility is best conceived of as a continuum with no least member” and from Whitehead, “actuality is discrete and discontinuous (atomistic), composed of momentary flashes of experiences” (11). For Hartshorne process and relativity are metaphysically basic.Chapter 2 begins with Hartshorne’s idea that, “Nature comes to us as constituted by feelings, not as constituted by lifeless, insentient matter” (28). Reality has an affective tone in which there is a layered complexity of feeling and social relation. In other words, contra Locke or Hume, feeling is objectively part of an objective affective continuum and is not nominalistically “painted on bare sense impressions” (46). Such might be described as a doctrine of “panexperientialism”— “the view that the basic constituents of reality are flashes of experience” (46). Experience and feeling stretch in their continuity to meet the bounds of nature. Chapter two continues with a wonderful discussion of Hartshorne’s aesthetics: “beauty is the mean between extremes” (48).Chapter 3 provides a... (shrink)

Przemiany społeczno-ekonomiczne, kryzysy polityczne, zmiany w kulturze, nauce i technice mogą postawić prawnika oraz „zwykłego” obywatela nie tylko przed koniecznością odpowiedzi na pytanie, „co jest zgodne z konstytucją?”, ale również przed kwestią, „czym jest sama konstytucja?”.Prezentowana monografia poświęcona jest dwóm teoriom konstytucji, których analiza pozwala uwydatnić dwa aspekty jej pojęcia. Konstytucja bowiem z jednej strony stanowi tzw. prawo wyższe, a z drugiej realizuje określoną ideę polityczną. Rozważania zawarte w niniejszej książce rozpoczynają od analizy odpowiedzi Immanuela Kanta na pytanie, w jaki (...) sposób w pojęciu konstytucji łączą się kwestie jej prawnej ważności oraz normatywnej słuszności. Następnie autor przechodzi do zbadania dwóch teorii, które wyrastają z Kantowskiej filozofii: czystej teorii prawa Hansa Kelsena i liberalizmu politycznego Johna Rawlsa. Pierwsza jest nastawiona na deskrypcję norm pozytywnych. Druga formułuje idee o charakterze normatywnym. Pierwsza chce opisywać, druga wyznaczać ustrojowe maximum, do którego powinniśmy zmierzać. W obydwu teoriach konstytucja zajmuje szczególne miejsce. Zawarta w niniejszej monografii ich interpretacja podporządkowana jest zagadnieniu istoty demokratycznej konstytucji, która w formie prawa wyższego wyraża demokratyczną treść.Na ich podstawie następuje próba odpowiedzi na pytanie o naturę demokratycznej konstytucji. (shrink)

The author of the paper considers the influence of the jurisprudence of the Constitutional Court as the only official entity entitled to interpret the Constitution on the criminal procedure. The paper contains the review the following three trends of impact of the constitutional jurisprudence: influence on the legislature in criminal procedure law, influence on the practice of implementation of criminal procedural law and on the science of criminal procedural law. The paper mostly relies on the works by (...) professionals in the field of constitutional law, including publications by prof. dr. Juozas Žilys, the first Chairman of the Constitutional Court of the Republic of Lithuania and the former dean of the Law Faculty of Mykolas Romeris University, as the area of criminal procedure has so far included only several publications, the direct objective of which was to study issues on the constitutionalisation of criminal procedure. (shrink)

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)

The author of the article analyzes the constitutional doctrine of the dismissal of a judge from office upon the expiration of the term of powers. The author discusses the guarantees of the independence of courts and judges, one of which is the guarantee of the inviolability of the length of powers of judges. The previously valid Law on Courts used to provide that the President of the Republic could appoint a person as a judge of a local court (...) when such an appointment is made for the first time, for a five-year term, and that upon the expiration of the five-year term, the President of the Republic could appoint such a person as a judge of a local court without examination or selection until the person reaches the age of 65. Under the Law on Courts valid at present, judges of all courts are appointed at once for the term until they reach 65 years of age. It is asserted in the article that the Constitution of the Republic of Lithuania has not established the right of a person, who was for the first time appointed as a judge of a local court for a five-year term, to be appointed as a judge until he reaches 65 years of age. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS Unbaptized God. The Basic Flaw in Ecumenical Theology. By ROBERT W. JENSON. Minneapolis: Fortress Press, 1992. Pp. v + 152. $16.95 (paper). The thesis of this potentially revolutionary book is nicely summarized in its title: the basic flaw in ecumenical theology is the unbaptized-that is, insufficiently trinitarian-God of Christians East and West, Protestant and Catholic. The book is revolutionary because it proposes a new way of reading (...) the logic of a myriad of ecumenical dialogues over the last quarter century; as a result, ecumenical theology and praotice for which God is among the " settled " issues ought be appropriately chastised by this book. But I think that Unbaptized God is only "potentially " revolutionary because I think Jenson leaves two crucial questions unanswered. Jenson's daring argument is made with rare clarity and compactness. Consider the argument in three stages. First, in an introduction, Jenson describes " the frustration of dialogue." He does not mean the frustration created by the meager knowledge or acceptance of the results of ecumenical dialogues on the popular level-or the reception without action of these results by Church officials (p. 2). He focuses on " a third mode of frustration ": a dialogue will proceed toward a " convergence," not without "tolerable divergence "; but the initially tolerable divergence eventually yields " a newly virulent division." The process is seemingly "circular" (p. 3). "No set of convergences ever seems to be enough, once the separations are there " (p. 4). Why? And what can be done about this? Second, Jenson illustrates the frustration and starts showing the way beyond it in several different ways. He describes the dialogues in the first two parts of the book. In Part One, Jenson takes up "The Early Ecumenical Convergences " on issues central to the sixteenth century reformations, Ca.tholic and Protestant: Justification (ch. 1), Real Presence (ch. 2), and Eucharistic Sacrifice (ch. 3). Part Two takes up Churchly Office (ch. 4), Episcopacy (ch. 5), Roman Primacy (ch. 6), and The Church's Mediation (ch. 7). The distinctions between the issues of Part One and Part Two seem to be both historical and logical. Historically, the issues of Part Two are what Walter Kasper called the surprising "displacement of the problematic" (p. 44) from issues 677 678 BOOK REVIEWS considered central by Trent and the Reformers (especially justification and the eucharist) to issues that emerged after the Reformation (especially ecclesiology). Logically, the distinction between Part One and Part Two is the distinction between the traditional matters of controversy (Part One) and what are claimed to be differences "hidden at some conceptual level deeper than that occupied by the traditional matters of controversy" (Part Two) (p. 7). I will not rehearse Jenson's splendid summaries of the many dialogues in English, French, and German (although the book ought be recommended on these grounds alone). The unofficial Groupe des Dombes is regularly regarded as the most ecumenically insightful, and the Dominican J. M. R. Tillard plays a particularly crucial role among Roman Catholic theologians. It is enough to say that Jenson successfully shows how each dialogue can be read as an instance of the frustration he initially mentioned: a " convergence " occurs on each topic which later turns into a " divergence " which later is converted into a " convergence " and so forth. By the end (ch. 7), everything seems to circle back to the doctrine of justification (ch. 1). But the appearances, Jenson argues, are deceiving. "The pattern of the dialogue's history proves to be more like a spiral than a circle on a plane" (p. 103). Thus, besides describing the dialogues, Jenson must also prove that the dialogues exhibit a non-circular movement. One of the fascinating features of Jenson's argument at this stage is that he does this in a slightly different way in each of the first seven chapters. For example, he sometimes clears away "illusory dissensus" (p. 22). He sometimes concludes that "the Catholic side is right." Indeed, the Catholic side seems right on most crucial issues-on convictions about the temporal constitution of persons that constitute the background for arguments over Real Presence (p. 32); on the "new" Catholic theology of eucharistic sacrifice (p. 41) ; on episcopal succession (p. 74... (shrink)

The article analyses the problem of using European constitutional heritage in the practice of the Constitutional Court of the Republic of Latvia when interpreting the Constitution of the Republic of Latvia. The author analyses several judgments of the Constitutional Court of Latvia, wherein the Court refers to European legal heritage, when interpreting separate norms of the Constitution of the Republic of Latvia. Such practice is particularly evident in two categories of cases. The influence of European legal heritage (...) is most clearly expressed in cases where the Court ascertains the essence of the continuity doctrine and when interpreting human rights enshrined in the Constitution (the Satversme). The author notes that constitutional courts reveal two tendencies. On the one hand, a constitutional court cannot ignore the international context. European courts are influenced by European Union law and the jurisprudence of the European Court of Justice. On the other hand, constitutional court judges in every country have sworn to be loyal to the national constitution and thus have a duty to exercise constitutional control. These tendencies are not necessarily objectionable. On the contrary–knowledge of the international legal context helps the Constitutional Court exercise its mission. (shrink)

Aristotle states that ‘there is only one constitution which is everywhere according to nature the best.’ This constitution is unqualifiedly just and ‘according to nature’ because it promotes the common advantage. The interpretation of ‘common advantage’ is problematic: does it consist in the advantage of the citizens considered as distinct individuals or the advantage of the polis considered as a whole? Only on the former, individualistic interpretation would the best constitution be deeply committed to individual rights, and it is argued (...) that a moderate version of individualism is the correct interpretation of Aristotle's best constitution. The chapter goes on to consider difficulties in Aristotle's account of the best constitution, including his views on education and the question of which is better: virtuous kingship or the rule of law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS Search for the Absent God: Tradition and Modernity in Religious Understanding. By WILLIAM J. HILL, O.P., MARY CATHERINE HILKERT, 0.P., ed. New York: Crossroad, 1992. Pp. 224. $27.50 (cloth). In presenting the fruit of a lifetime of exploration on the part of this theological craftsman of the highest merit, the editor has performed an unparalleled service. For William Hill is a clear and courageous thinker, and one (...) whose selfless editorial duties have perhaps curtailed his own writing over the years. Yet these essays make up for that, and afford younger students of theology a starting point for their reflections beyond the fads of the moment, yet seizing the challenge of contemporary proposals. His grasp of classical and of modern idiom, together with his range of reading, make him a theologians' theologian par excellence. For with his classical mentors he is concerned with conceptual coherence, yet equally anxious to respond to the anthropological perspectives of contemporary theological inquiry. Briefly characterized, the work brings Thomas Aquinas into dialogue with Heidegger and with Whitehead, using each of the latter figures to challenge an earlier " Thomistic" synthesis of the thought of Thomas Aquinas, and highlight dimensions of his theology hitherto left quite implicit. This creative recovery of medieval thought begins with an established interpretation of Aquinas's metaphysical transformation of the neoplatonized Aristotle of Avicenna: his insistence that esse {existing ) precedes essence (or possibility). The identification of God as that One in whom essence and existing are identical sets the stage for Hill's explicitly theological treatment of free persons, by analogy with the " persons " of the divine triunity: " each divine person ' posits ' the others as over and against himself and thereby posits himself in his hypostatic identity. What all this bases itself upon is the understanding that the Christian revelation of freedom as radically constituting personhood enables it to function as a category which surmounts the Greek dichotomizing of reality into contingency and necessity " (117). If the identification of existing with essence in God confronts Heidegger's critique of " ontology," Hill's use of classical trinitarian thought to suggest a fruitful distinction in human creatures between nature and freedom allows him at once to correct the caricature of Aquinas proffered by process theologians as "classical theism," and 521 522 BOOK REVIEWS also to profit by their criticisms of the use of hellenistic categories like impassibility in divinity. "The key... lies in the mystery of freedom. Abstractly, freedom is a property of nature, but its exercise is the pre· rogative of person as the existential instantiation of nature. The person viewed ontologically (as subject of the act of existing) thus determines itself though its nature to be the sort of person it is, viewed psychologi· cally and historically" (127). Finite natures need to negotiate all sorts of causal influences in effecting such a determination of themselves; not so " an infinite nature whose freedom is transcendent." Yet when that One freely determines itself to be source and goal of all, and espe· cially of rational creatures (cf. Summa Theologiae 1.2 Prol.), then " that choice is one of willing to be constituted, personally and so relationally, and in this sense to be determined, by other free beings" (127). So the God who (in Aquinas' idiom) is not "really related" to the world in the sense of enduring (in Hill's words) "passive influx," nonetheless freely relates to intentional creatures in such a way as to be responsive to their freedom. So his response to Moltmann's conten· tion that God suffers " in his very deity " is an explicitly Christological one: "first, that God remains immutable and impassible in his own intrinsic godhead, so that his genuine love for creatures cannot entail suffering within divinity as such; but second, that God does choose to enter personally and relationally into the heart of humankind's suffering in his transcendentally free and loving response to it. God truly suffers... in and through his humanity which is one with the humanity of all men and women" (162). If this resolution sounds "classical," it is, both in its concern for conceptual coherence and for bringing out the radical implications of doctrines like that of Chalcedon... (shrink)