This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is (...) stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints. (shrink)

This article reviews David Strauss's recent book,The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the (...) common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action. (shrink)

John Stuart Mill has often been charged with inconsistency in his social thinking. The reason given is usually that he tries to combine too many different traditions of thought into an ideological whole. Too deeply affected by his father and his severely purposeful early education ever to repudiate utilitarianism, he was yet too sensitive to disregard criticism of his inherited creed, and too open-minded to ignore areas of thought and experience generally allen to the utilitarian mind. Professor Robson, whose editing (...) of Mill’s works has already put social theorists and historians of ideas in his debt, disputes this view. He argues that, beneath Mill’s eclecticism, beneath his perhaps over-generous acknow-ledgements of his obligations to others, there is a basic unity of ideas. His discussion of the influences on Mill’s thought covers some fairly well-trodden ground but he brings a good deal of common sense to bear on an area where the excitement of the academic chase for sources has sometimes obscured the obvious. On the whole, he claims, the influence of Coleridge, the Suint-Simonians, Carlyle and Comte was limited; some of their specific ideas Mill accepted and used, but he was clearly aware of the differences of emphasis and context that did exist. Harriet Taylor and Tocqueville contributed more, the first by extending Mill’s vision of desirable social ends and by emphasising the difficulties of applying social theory in the world of practice, the second by his insights into democratic society and his demonstration of a proper sociological method. The deepest influence was, however, his early Benthamite upbringing and it is this life-long commitment to a utilitarian ethic that constitutes, for Professor Robson, the still, calm centre of his mind. There are other unifying ideas—his bias towards practicality and his constant concern with evolving a satisfactory methodology for the social sciences—but even these centred on a continual examination of the adequacies and inadequacies of his father’s doctrine. (shrink)

There is a growing consensus that the offer of a reasonable compensation for oocyte donation for reproductive treatment is acceptable if it does not compromise voluntary and altruistically motivated donation. However, how to translate this ‘reasonable compensation’ in practice remains unclear as compensation rates offered to oocyte donors between different European Union countries vary significantly. Clinics involved in oocyte donation, as well as those in other medical contexts, might be encouraged in calculating a more consistent and transparent compensation for donors (...) if the elements that constitute a reasonable compensation are explicated. In doing so, lessons can be learnt from living organ donation and medical research participation. Practices in which the elements of a reasonable compensation for the individuals involved have already been more defined in the literature. By means of analogical reasoning, we will outline the different components of a reasonable compensation and subsequently apply these to the context of oocyte donation. We will argue that oocyte donors should first of all be reasonably reimbursed direct expenses related to the donation, without standard remuneration of lost wages. Second, donating oocytes requests a serious time investment, therefore donors are entitled to suitable compensation for their time spent and efforts made. Finally, we will explain that a reasonable compensation consisting of these two components allows for altruism to remain the key value of oocyte donation for reproductive treatment. However, if we acknowledge that donors’ motives are more complex and often include reasons from self-interest, the reasonable compensation may be complemented with modest (non)monetary benefits. (shrink)

The original text of the Constitution of the United States of America, written over 200 years ago, constitutes the supreme source of law in the American legal system. The seven articles and twenty seven amendments dictate understanding of fundamental principles of the federation’s functioning and its citizens’ rights. The paper aims to present the evolution of the U.S. Constitution’s language interpretation as provided by its final interpreter - the Supreme Court of the United States. Example of the Second (...) Amendment will be analyzed to present the change in understanding of the language grammar and, as a consequence, the sense of the right to keep and bear arms in the light of the Supreme Court’s decision in the case of District of Columbia v Heller ). It will argue for the accuracy of statement of Charles Evans Hughes, former Chief Justice of the U.S. Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is...”. (shrink)

In this article the author aims to assess Wilfrid J. Waluchow’s more recent book, by depicting its main aim, namely to provide a better understanding of judicial review in a constitutional democracy via the “living tree” metaphor; by disapproving an unwarranted claim, purposely to reduce the metaphor to the common law (bottom-up) methodology; and by re-developing his alternative, specifically to identify the community’s constitutional political morality, with a friendly amendment, which is already explicit —or at least somehow implicit— on (...) it, i.e. not only by judges but also by legislators, including framers, amenders or reformers, and other legal officials, including lawyers and citizens, which at the end will grant him the point.Resumen:En este artículo el autor intenta evaluar el libro más reciente de Wilfrid J. Waluchow, al caracterizar su objetivo principal, a saber: proporcionar una mejor explicación del control judicial de la constitucionalidad en una democracia constitucional mediante la metáfora del “árbol viviente”; al cuestionar un argumento, precisamente el que reduce dicha metáfora a la metodología (de abajo hacia arriba) del common law; y, al re-desarrollar una alternativa, específicamente al identificar la moralidad política constitucional de la comunidad, a partir de una enmienda amigable, misma que ya está explícita —o hasta cierto punto implícita— en ella, i. e. no sólo por los juzgadores sino también por los legisladores, incluidos los constituyentes originarios y revisores o reformadores, y otros operadores jurídicos, incluidos abogados y ciudadanos, lo cual al final de cuentas le dará el punto. (shrink)

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures (...) and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order. (shrink)

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

At its meeting on 16 June 2005, the European Council decided to postpone its introduction of the European Constitution, originally planned to come into force on 1 November 2006. As the Treaty establishing a European Constitution could in principle only take effect if all the Member States agree, following the clear rejections in the French referendum on 29 May 2005 and the Dutch referendum on 1 June 2005 , the Member States needed a period of reflection, a search (...) for explanations and debate. The European Council did not feel that the date initially planned for a report on the ratification of the treaty was still tenable, since those countries which had not yet ratified the treaty would be unable to provide a clear reply before mid- 2007. But the process of ratification by the Member States was not abandoned. The timetable was adjusted to reflect the circumstances in the countries which had not yet ratified the treaty. This period was intended to regain the trust of the general public. (shrink)

In this comment I consider Jack Balkin’s general argument for his method of constitutional interpretation – the question of why interpret (the United States Constitution) in this way (as presented in his book Living Originalism). I contrast this question with the way in which the conclusion of this argument should be implemented with regard to specific clauses – the question of how to interpret (the United States Constitution). While the former question is concerned with the general form (...) of the argument, the latter is concerned with a substantiation of one premise in the argument. (shrink)

Moral or ethical questions are vital because they affect our daily lives: what is the best choice we can make, the best action to take in a given situation, and ultimately, the best way to live our lives? Health ethics has contributed to moving ethics toward a more experience-based and user-oriented theoretical and methodological stance but remains in our practice an incomplete lever for human development and flourishing. This context led us to envision and develop the stance of a “ (...) class='Hi'>living ethics”, described in this inaugural collective and programmatic paper as an effort to consolidate creative collaboration between a wide array of stakeholders. We engaged in a participatory discussion and collective writing process known as instrumentalist concept analysis. This process included initial local consultations, an exploratory literature review, the constitution of a working group of 21 co-authors, and 8 workshops supporting a collaborative thinking and writing process. First, a living ethics designates a stance attentive to human experience and the role played by morality in human existence. Second, a living ethics represents an ongoing effort to interrogate and scrutinize our moral experiences to facilitate adaptation of people and contexts. It promotes the active and inclusive engagement of both individuals and communities in envisioning and enacting scenarios which correspond to their flourishing as authentic ethical agents. Living ethics encourages meaningful participation of stakeholders because moral questions touch deeply upon who we are and who we want to be. We explain various aspects of a living ethics stance, including its theoretical, methodological, and practical implications as well as some barriers to its enactment based on the reflections resulting from the collaborative thinking and writing process. (shrink)

In our target article, “Learning and the evolution of conscious agents” we outlined an evolutionary approach to consciousness, arguing that the evolution of a form of open-ended, representational, and generative learning (unlimited associative learning, UAL) drove the evolution of consciousness. Our view highlights the dynamics and functions of consciousness, delineates its taxonomic distribution and suggests a framework for exploring its developmental and evolutionary modifications. The approach we offer resonates with biosemioticians’ views, but as the responses to our target article show, (...) our proposal also faces challenges and has led to suggestions that extend, develop and qualify it. Our response to the 14 varied and rich commentaries starts with the recurring and deep question raised by many of them – the relation between life and sentience. We explore this question by introducing and expanding on “vivaciousness”, a term we coined to describe the turbulent, flexible exploration-stabilization processes inherent in the living condition, as well as addressing the related concepts of Umwelt and selfhood. We then consider the question of the adequacy of unlimited associative learning (UAL) as an evolutionary transition marker (ETM) of minimal consciousness (rather than as a marker of a complex form of sentience), and the possible precursors of sentience. The engagement with these broad themes is entangled with a discussion of evolutionary transitions, constitutive emergence and the function/s of consciousness. The suggestions of our commentators, urging us to explore new concepts and new avenues of research within the framework of a richer view of evolution are then discussed. We end by briefly considering what we regard as a conceptual lacuna, which is leading to the indiscriminate use of the term “sentience” and which awaits further investigation. (shrink)

Bernard Suits’ account of play as an autotelic activity has been greatly influential in the philosophy of sport. Suits borrows the notion of ‘autotelicity’ from Aristotle’s ethics, formulating diff...

To discover affects within Husserl’s texts designates a difficult investigation; it points to a theme of which these texts were forced to speak, even as they were explicitly speaking of regional ontologies and the foundations of sciences. For we may at first wonder: where can affection find a positive role in the rigor of a pure philosophy that seeks to account for its phenomena from within the immanence of consciousness? Does this not mean that the very passivity and foreignness of (...) affect will be overlooked; will it not be continually linked to a Vorstellung that issues as a ray of the pure ego? That is, will the phenomenological account of affect be reduced to the cognition of an object, as Emmanuel Levinas suggests? Yet there are affects in Husserl’s texts that maintain their autonomy and resist subsumption to an objectivating intentionality.We may see this in the Lectures On the Phenomenology of the Consciousness of Internal Time: in the longitudinal intentionality of retention, through which consciousness becomes aware of its elapsed phases without making them into objects—a passive synthesis that gives the flow of time-constituting consciousness the form of a continually deferred auto-affection.1We find it again as early as the fifth Logical Investigation, 2 providing us with the impetus to radicalize Husserlian phenomenology. (shrink)

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

Building on the original formulation of the autopoietic theory (AT), extended enactivism argues that living beings are autopoietic systems that extend beyond the spatial boundaries of the organism. In this article, we argue that extended enactivism, despite having some basis in AT’s original formulation, mistakes AT’s definition of living beings as autopoietic entities. We offer, as a reply to this interpretation, a more embodied reformulation of autopoiesis, which we think is necessary to counterbalance the (excessively) disembodied spirit of (...) AT’s original formulation. The article aims to clarify and correct what we take to be a misinterpretation of AT as a research program. AT, contrary to what some enactivists seem to believe, did not (and does not) intend to motivate an extended conception of living beings. AT’s primary purpose, we argue, was (and is) to provide a universal individuation criterion for living beings, these understood as discrete bodies that are embedded in, but not constituted by, the environment that surrounds them. However, by giving a more explicitly embodied definition of living beings, AT can rectify and accommodate, so we argue, the enactive extended interpretation of autopoiesis, showing that although living beings do not extend beyond their boundaries as autopoietic unities, they do form part, in normal conditions, of broader autopoietic systems that include the environment. (shrink)

After the emergence of a popular resistance movement to direct rule by an absolutist monarchy, and several years of civil war, King Gyanendra of Nepal yielded power to an elected Congress in 2006. Within one year, Nepali citizens saw the signing of a Comprehensive Peace Accord, the establishment of a Constituent Assembly, the declaration of the Nepali state, and the declaration of the Nepali Republic a year after that. An Interim Constitution was adopted by 2007, which endowed the Constituent (...) Assembly with the authority to draft Nepal’s permanent Constitution, and established the limitations under which the Assembly must operate — all apparently legitimate steps in establishing a Constitutional order. What initially appeared to adhere to an established model of post-sovereign constitution-making failed in its first attempt. Indeed, the drafting and ratification of a permanent constitution is no easy task. Why did the first Constituent Assembly fail? Where did the constitution-making process divert from the post-sovereign model, and what caused it? I examine the process from the establishment of Nepal’s first Constituent Assembly to the short-lived deliberations of the Assembly, followed by the dissolution of the Assembly for failing to achieve its mandate. I also trace Nepal’s constitution-making process along the post-sovereign model, and assess whether they adhered to or diverted from the model. It is understood that no political models are fixed in the sense that adherence or divergence is necessarily incompatible with success or failure. However, I use Andrew Arato’s post-sovereign model as a guide for identifying the stages in the constitution-making process, and for a background to the discussion on where the first Assembly failed. (shrink)

After reviewing the history, rationale, and Jim Rachels’ varied uses of the notion of biographical lives, the essay further develops its social dimensions and proposes an ontological analysis. Whether one person is leading one life or more turns on the number of separate social worlds he or she creates and maintains. Furthermore, lives are constituted by narrated events in a story. Lives, however, are not stories, but rather are extended “verbal objects,” that is, “narrative objects” with a hybrid character, both (...) linguistic and by inference non-verbal. In this they are like facts, propositions, and histories, grasped only through their verbal expression. Being narrative and socially embedded, lives can arguably be extended beyond the death of the principal liver of a life by the commemorative actions of those who shared it. Jim hoped to persuade doctors to shift from a traditional Sanctity of Life principle to a Sanctity of Lives principle. Accordingly, they could stop pointless prolongation of biological life once a patient permanently loses consciousness, his criterion of the end of a biographical life. It might seem that allowing lives to be extended past that point or death would forego that clinical benefit, but that is not so. (shrink)

In “Mad Narratives: Self-Constitutions Through the Diagnostic Looking Glass,” by using narrative approaches to the self, I explore how the diagnosis of mental disorder shapes personal identities and influences flourishing. My particular focus is the diagnosis grounded on the criteria provided by the Diagnostic Statistical Manual of Mental Disorders (DSM). I develop two connected accounts pertaining to the self and mental disorder. I use the memoirs and personal stories written by the subjects with a DSM diagnosis as illustrations to bolster (...) my claims. First, expanding on the narrative approaches to the self, I explain how narratives about a subject shape her self-constitution. I elucidate how this process is generated by drawing on research in developmental psychology, cognitive science, and social psychology. Next, using this account as a springboard, I argue that the DSM diagnosis of mental disorder serves as a source of narrative, entering into the patients’ autobiographical and social narratives. This plays an important role in the diagnosed subjects’ self-understanding, self-constitution and flourishing. In this vein, how mental disorders are classified is not only a theoretical question about accurately taxonomizing the various experiences related to mental distress but also an ethical question about which ways of talking about mental disorders will allow subjects to respond effectively to their psychological distress, to flourish and to live autonomous and fulfilling lives. Finally, I suggest that the DSM-based narratives wield a double-edged sword when it comes to the subject’s flourishing: On the one hand, there are problems with some DSM-based narratives that stem from the DSM diagnostic schema and the culture of DSM diagnoses. These problems render these DSM-based narratives unbeneficial for flourishing as they constrain the range of adoptive social, cognitive and emotional responses the subjects can give to their mental disorders. On the other hand, there are grounds to believe that some DSM-based narratives help subjects to flourish. For instance, they provide certainty to subjects' otherwise puzzling symptoms and help them reach out to others with similar experiences. Understanding how the DSM-based narratives can both benefit and harm will help us address problems with psychiatric diagnoses and the dissemination of knowledge about mental disorders in popular culture. The project aims to convince both philosophers and psychiatrists that no plausible theory of the self can be developed without attending to the topic of mental disorder and that no theory of mental disorder can be complete without devising the tools provided by the philosophical approaches to the self as well as developmental and social psychology. It also calls for methodological alterations in mental health ethics research, arguing that a careful scrutiny of mental disorder memoirs can advance the ethical underpinnings to the practice of psychiatry. (shrink)

The lively debate over the constitutional foundations of judicial review has been marred by a formalism which obscures its point and value.ed from genuine issues of substance, the rival positions offer inadequate accounts of the legitimacy of judicial review; constitutional theory must regain its connection with questions of political principle and moral value. Although the critics of ultra vires have rightly emphasized the foundational role of the common law, they have misconceived its nature and implications. On the one hand, they (...) have invited the charge of judicial supremacism by marginalizing the role of legislative intent; on the other, their affirmation of absolute parliamentary sovereignty (within the context of this debate) undermines the critique of ultra vires. In substance, therefore, the rival camps occupy essentially the same ground, equally trapped by a formalism that entrenches a stark confrontation between parliamentary sovereignty and the rule of law. A conception of shared sovereignty, or interdependent sovereignties, provides a better foundation for judicial review. (shrink)

This article is a review and reflection of the new elements of rights and laws, applied to the principle of justice and sovereignty, but above all in the demonstration that law as a science once again allows us to conceive that as a science it evolves and must be modified according to the new conducts that the State and society require, such is the case of the constitutional recognition that this type of rights have. In the last decades, human beings (...) have evidenced that the way in which they interact with nature is causing serious consequences to the ecosystems that compose it. In the past, these consequences were not yet evident and, therefore, the environmental awareness that exists today did not exist. Therefore, it is necessary to analyze and reflect on certain conditions of this right in Ecuador. (shrink)

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

Lynne Rudder Baker and many others think that paradigmatic instances of one object constituting another—a piece of marble constituting a statue, or an aggregate of particles constituting a living body—involve two distinct objects in the same place at the same time. Some who say this believe in the doctrine of temporal parts; but others, like Baker, reject this doctrine. Such philosophers, whom one might call “coincidentalists”, cannot say that these objects manage to share space in virtue of sharing a (...) temporal part confined to just that place and time. But what can or should coincidentalists say about the nature of constitution? Many have analyzed the relation as one of sharing, “at some level”, all and only the same parts. Most have agreed that such massive part-sharing is at least a central component of and necessary condition for constitution. The heart of Baker’s Persons and Bodies, and its most significant contribution to the development of coincidentalism, is a theory of constitution that makes no appeal to mereology. The leading idea in Baker’s account is, instead, a modal one: objects belonging to constituted kinds are the necessary result of putting objects belonging to appropriate constituting kinds in the right circumstances, circumstances which the constituting objects need not have been in. So putting a piece of man-shaped marble in the right circumstances necessarily results in the existence of a second object, a statue, constituted by the marble; but the piece of marble need not have fallen into these circumstances or any others in which it would constitute a statue. (shrink)

Constitutional politics has returned in our time in a truly dramatic way. In the last 25 years, not only in the new or restored democracies of South and East Europe, Latin America and Africa, but also in the established liberal or not so liberal democracies of Germany, Italy, Japan, Israel, New Zealand, Canada and Great Britain, issues of constitution-making, constitutional revision and institutional design or redesign have been put on the political agenda. Even in the United States, given the (...) new or renewed problems of our versions of presidentialism, federalism and electoral regime, Article V has come to be experienced as a veritable prison house, and judicial constitution-making (think of Buckley v Valejo) is often seen as much as a threat to, as the protection of, democratic mechanisms. And, most recently, in countries currently experiencing externally imposed revolutions, namely Afghanistan and Iraq, constitution-making has turned out to be a central stake in the ongoing political process. We are living in an epoch in which the nations seem to be slouching, or being prodded, toward Philadelphia and Americans, as the heirs of Madison and MacArthur, are sorely tempted to try teaching others the secrets of its success as a supposedly continuous 200-year-old constitutional democracy. But to be an effective teacher, it is not enough to be in a position of political-military superiority. One must first relearn to learn and even to re-learn. (shrink)

An authoethnography explores the lived experiences of patients being in control and self-managing their chronic illness among their families and friends. Findings show that the current health discourse narrows down people to mere patients and gives rise to tensions. This article indicates that people with one or several chronic illnesses or disabilities are first of all full citizens with needs, values, and drives seeking a meaningful life. Fair possibilities ought to exist to satisfy their needs to belong, to care for (...) and to matter to others since these constitute an essential aspect of being human. (shrink)

David Benatar argues that being brought into existence is always a net harm and never a benefit. I disagree. I argue that if you bring someone into existence who lives a life worth living (LWL), then you have not all things considered wronged her. Lives are worth living if they are high in various objective goods and low in objective bads. These lives constitute a net benefit. In contrast, lives worth avoiding (LWA) constitute a net harm. Lives worth (...) avoiding are net high in objective bads and low in objective goods. It is the prospect of a LWA that gives us good reason to not bring someone into existence. Happily, many lives are not worth avoiding. Contra Benatar, many are indeed worth living. Even if we grant Benatar his controversial asymmetry thesis, we have no reason to think that coming into existence is always a net harm. (shrink)

One of biology's fundamental aims is to generate understanding of the living world around—and within—us. In this chapter, I aim to provide a relatively nonpartisan discussion of the nature of explanation in biology, grounded in widely shared philosophical views about scientific explanation. But this discussion also reflects what I think is important for philosophers and biologists alike to appreciate about successful scientific explanations, so some points will be controversial, at least among philosophers. I make three main points: (1) causal (...) relationships and broad patterns have often been granted importance to scientific explanations, and they are in fact both important; (2) some explanations in biology cite the components of or processes in systems that account for the systems’ features, whereas other explanations feature large-scale or structural causes that influence a system; and (3) there can be multiple different explanations of a given biological phenomenon, explanations that respond to different research aims and can thus be compatible with one another even when they may seem to disagree. (shrink)

Context: The majority of contemporary enactivist work is influenced by the philosophical biology of Hans Jonas. Jonas credits all living organisms with experience that involves particular “existential” structures: nascent forms of concern for self-preservation and desire for objects and outcomes that promote well-being. We argue that Jonas’s attitude towards living systems involves a problematic anthropomorphism that threatens to place enactivism at odds with cognitive science, and undermine its legitimate aims to become a new paradigm for scientific investigation and (...) understanding of the mind. Problem: Enactivism needs to address the tension between its Jonasian influences and its aspirations to become a new paradigm for cognitive science. By relying on Jonasian phenomenology, contemporary enactivism obscures alternative ways in which phenomenology can be more smoothly integrated with cognitive science. Method: We outline the historical relationship between enactivism and phenomenology, and explain why anthropomorphism is problematic for a research program that aspires to become a new paradigm for cognitive science. We examine the roots of Jonas’s existential interpretation of biological facts, and describe how and why Jonas himself understood his project as founded on an anthropomorphic assumption that is incompatible with a crucial methodological assumption of scientific enquiry: the prohibition of unexplained natural purposes. We describe the way in which phenomenology can be integrated into Maturana’s autopoietic theory, and use this as an example of how an alternative, non-anthropomorphic science of the biological roots of cognition might proceed. Results: Our analysis reveals a crucial tension between Jonas’s influence on enactivism and enactivism’s paradigmatic aspirations. This suggests the possibility of, and need to investigate, other ways of integrating phenomenology with cognitive science that do not succumb to this tension. Implications: In light of this, enactivists should either eliminate the Jonasian inference from properties of our human experience to properties of the experience of all living organisms, or articulate an alternative conception of scientific enquiry that can tolerate the anthropomorphism this inference entails. The Maturanian view we present in the article’s final section constitutes a possible framework within which enactivist tools and concepts can be used to understand cognition and phenomenology, and that does not involve a problematic anthropomorphism. Constructivist content: Any constructivist approach that aims for integration with current scientific practice must either avoid the type of anthropomorphic inference on which Jonas bases his work, or specify a new conception of scientific enquiry that renders anthropomorphism unproblematic. (shrink)

Probably written by a student of Aristotle, The Athenian Constitution is both a history and an analysis of Athens' political machinery between the seventh and fourth centuries BC, which stands as a model of democracy at a time when city-states lived under differing kinds of government. The writer recounts the major reforms of Solon, the rule of the tyrant Pisistratus and his sons, the emergence of the democracy in which power was shared by all free male citizens, and the (...) leadership of Pericles and the demagogues who followed him. He goes on to examine the city's administration in his own time - the council, the officials and the judicial system. For its information on Athens' development and how the democracy worked, The Athenian Constitution is an invaluable source of knowledge about the Athenian city-state. For more than seventy years, Penguin has been the leading publisher of classic literature in the English-speaking world. With more than 1,700 titles, Penguin Classics represents a global bookshelf of the best works throughout history and across genres and disciplines. Readers trust the series to provide authoritative texts enhanced by introductions and notes by distinguished scholars and contemporary authors, as well as up-to-date translations by award-winning translators. (shrink)

This article presents a normative‐theoretical account of democratic legitimacy that meets the challenge of moral and cultural pluralism in a way that takes the avoidance of oppression and violence to be a fundamental imperative. The discourse‐theoretical perspective of jürgen Habermas reveals that reasoned agreement among citizens is the only alternative to political oppression. Pace Habermas, however, the legitimacy of even basic constitutional principles does not require us to agree with one another for the same reasons. While we can affirm such (...) principles for a wide range of different reasons, the process of achieving reasoned agreements on contentious issues draws us together as citizens in loyalty to a particular, historical set of political institutions. The reasoned commitment to our constitution that we come to share in this ongoing process acts as an identity‐forming bond that allows us to live in peace with deep moral and cultural differences. (shrink)

Epicurus, though popularly and indeed nominally associated with a doctrine advocating the procurement of rather expensive pleasure, lived very simply in his garden with a circle of friends. The 14th of his Sovran Maxims or Cardinal Tenets (kuriai doxai), as collected by Diogenes Laertius, reads: ‘When tolerable security against our fellowmen is attained, then on a basis of power sufficient to afford support and of material prosperity arises in most genuine form the security of a quiet private life withdrawn from (...) the multitude’ R. D. Hicks, the translator, gives, as an alternative to ‘power sufficient to afford support’, ‘power to expel’, but on either reading, we are to think of Epicurus's garden, both the real place and the conceptualized, or tropologized, topos of wisdom and earthly felicity, as enclosed and exclusive. This enclosure, exclusivity, and—what is also implied—abstention of its inmates from participation in the affairs of state are given apophthegmatic expression in ‘Live hidden!’ We contemplate this adage, or slogan, from an enormous cultural distance and, for most of us, ‘Live hidden!’ is much more likely to trigger secondary reflections about the relations between ethics and politics, private and public, perfection of self and improvement of the world, than it is to constitute an actual, or potential, piece of advice we might think about whether, and how, to follow. (shrink)

In this paper I argue that there is an urgent need for more empirical research into everyday experiences of living with datafication, something that has not been prioritised in the emerging field of data studies to date. As a result of this absence, the knowledge produced within data studies is not as aligned to the aims of data activism as it might be. Data activism seeks to challenge existing, unequal data power relations and to mobilise data in order to (...) enhance social justice, yet data studies has focused primarily on identifying the former and not on imagining the latter. To build a picture of what more just conditions of datafication might look like, I argue that it is important to take account of everyday experiences of datafication, of what people themselves say would enable them to live better with data and would constitute more just data arrangements, based on their experiences. I explore two possible approaches to this endeavour, both of which suggest the need for a vocabulary of emotions in researching everyday living with data. (shrink)

Living in Words: Literature, Autobiographical Language, and the Composition of Selfhood pursues three main questions: What role does literature play in the constitution of a human being? What is the connection between the language we see at work in imaginative fiction and the language we develop to describe ourselves? And is something more powerful than just description at work -- that is, does self-descriptive or autobiographical language itself play an active role in shaping and solidifying our identities? This (...) adventurous book suggests that interdisciplinary work interweaving philosophy and literature can answer these questions. Main sections investigate the relational model of the self derived from American pragmatism, the sense of rightness that can attach to descriptions of ourselves and our actions, the analogy between interpreting works of art and the interpretation of persons, the special power of literature as a self-compositional tool and the "architecture" of self-narratives and the corresponding growth of self-understanding, what we can learn from cautionary tales concerning the tragic lack of self-knowledge, the possibility of "rewriting" and "rereading" the self, and overall, the assembly of real-life structures of self-definition through our reflective engagement with literature. Throughout, the book develops a model of active, self-constitutive literary reading that provides language for, and sharpens, self-individuation and sensibility. Conjoining a relational conception of selfhood to a narrative conception of self-understanding, Living in Words makes a powerful claim that aesthetic experience and our engagement with the arts is a far more serious matter in human life and society than it in some quarters is taken to be. (shrink)

The essay uses the second moment of Hegel’s “absolute method,” namely, the moment of the advancing action, in order to shed light on the constitution of the dynamic universal in society, politics, and history through the moment of stasis or crisis. In the action that advances or in the middle moment of the method lies the “crisis” of the unfolding process. Dialectically, action advances by stalling and imploding but also by emerging from this frozen state, moving on from it. (...) I indicate the moment of crisis-stasis as the predicament of “living in the interregnum” and examine it by appealing to Thucydides, Gramsci, and Gordimer. (shrink)

The essay uses the second moment of Hegel’s “absolute method,” namely, the moment of the advancing action, in order to shed light on the constitution of the dynamic universal in society, politics, and history through the moment of stasis or crisis. In the action that advances or in the middle moment of the method lies the “crisis” of the unfolding process. Dialectically, action advances by stalling and imploding but also by emerging from this frozen state, moving on from it. (...) I indicate the moment of crisis-stasis as the predicament of “living in the interregnum” and examine it by appealing to Thucydides, Gramsci, and Gordimer. (shrink)

Biology is in a unique position among the natural sciences. It is not simply complex physics and chemistry, for living organisms have a psychological as well as a physical side. Even as physical systems their character is highly special, largely because their material substance is continually changing; perhaps it was from them that Heraclitus derived his idea that all is flow. The comparison with vortexes and candle flames is an old one. Wilhelm Ostwald included living organisms in his (...) class of “stationary systems”: they represent not a static but a kinetic equilibrium, what we now often call a “steady state”; there is a balance of constitutive and dissipative processes. Materials and energy converge to the living center, undergo there characteristic transformations, among which complex chemical and structural syntheses are conspicuous, and are again distributed at random to the surroundings. The living organism is thus the seat of a special type of physical and chemical activity found nowhere else in nature, and it is significant that this is associated with psychical activity—demonstrably in the higher organisms, by implication in the lower. (shrink)

Games Studies reveals the performative nature of playing a character in a virtual-game-world (Nitsche 2008, p.205; Pearce 2006, p.1; Taylor 2002, p.48). Tbe Player/Character relationship is typically understood in terms of the player’s in-game “presence” (Boellstorff 2008, p.89; Schroeder 2002, p.6). This gives the appearance that living-into a game-world is an all-or- nothing affair: either the player is “present” in the game-world, or they are not. I argue that, in fact, a constitutive phenomenology reveals the Player/Character relationship to be (...) a multi-dimensional matter of empathy. I advance a broadly Schutzian framework, drawing on his 1932 discussions of “face-to-face encounters” and ”historical predecessors,” showing how at- tention to empathy reveals a variety of “presences” that different kinds of Player/Character relationships afford. The central determinants of empathetic affordances which I focus on here are (i) how much players know about a character (especially the character’s past) and (ii) how players learn this information.The purpose of this discussion will be to show that a phenomenological analysis reveals that the relationship between a player and their character is complex, highly variable, and inherently social. Furthermore, it will add to the growing body of scholarship that demonstrates that video games are rich social objects deserving of study. (shrink)

We argue that friendship is constituted in the practice of narration, not merely identifi ed through psychological or sociological criteria. We show that whether two people have, as Aristotle argues, ‘lived together’ in ‘mutually acknowledged goodwill’ can be determined only through a narrative reconstruction of a shared past. We demonstrate this with a close reading of Thomas Bernhard’s Wittgenstein’s Nephew: A Friendship (1982). We argue that this book provides not only an illustration but also an enactment of the practice of (...) friendship as the urge to redeem—and thus to instantiate—Aristotelian suzên (‘living together’) by means of its telling. (shrink)

We live in an era of constitution-making. New constitutions are appearing in historically unprecedented numbers, following regime change in some countries, or a commitment to modernization in others. No democratic constitution today can fail to recognize or provide for gender equality. Constitution-makers need to understand the gendered character of all constitutions, and to recognize the differential impact on women of constitutional provisions, even where these appear gender-neutral. This book confronts what needs to be considered in writing a (...) constitution when gender equity and agency are goals. It examines principles of constitutionalism, constitutional jurisprudence, and history. Its goal is to establish a framework for a 'gender audit' of both new and existing constitutions. It eschews a simple focus on rights and examines constitutional language, interpretation, structures and distribution of power, rules of citizenship, processes of representation, and the constitutional recognition of international and customary law. It discusses equality rights and reproductive rights as distinct issues for constitutional design. (shrink)