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)

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)

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)

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)

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)

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)

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)

In “Missing the Forest for the Trees: Aduhelm, Accelerated Approvals & the Agency,” Dr. Matthew Herder argues that agency capture and politicized discretion drive delays in confirmatory trials of accelerated approval drugs amongst other concerns at US Food and Drug Administration (FDA). In highlighting this important problem and offering nuanced insight into agency workings based in part on interviews with twenty-three unnamed FDA officials and a three-drug case study, Dr. Herder suggests two innovative solutions. However, amidst broader debates balancing agency (...) expertise, data, and delegation, these proposed policy solutions would benefit from more corroborative evidence and consideration of institutional advantages within constitutional limits. (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)

The Ainu are still in existence, but their reduced numbers, now around 20,000, indicate how marginal their presence is even in Hokkaido, their ancestral territory. Moreover, they have undergone much metissage, in both ethnic and cultural terms. Legally, the Ainu do not yet constitute an indigenous ethnic minority; they have only recently obtained some gestures of recognition from the government, such as the interruption of a dam project on a ritual site. In 1994, for the first time in history, an (...) Ainu, Kay ano Shigeru, was elected to the senate. The legislation concerning the Ainu lands, dating from 1899, has finally been revised. And with a boost from the International Year of Ethnic Minorities, in 1992, Ainu organizations managed to inflect the official Japanese doctrine that Japanese soil is home to only one community, that of the Japanese. (shrink)

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes (...) that confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials. (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)

The doctrine of “sovereign immunity” holds that the U.S. government cannot be sued without its consent. This is not found in the Constitution’s text; it is justified on philosophical grounds as inherent to being a sovereign state: a sovereign must be able to issue commands free from constraint. The sources of this understanding of sovereignty—Hobbes, Bodin, and others—are, in turn, condemned by opponents of sovereign immunity as absolutists whose doctrines are incompatible with limited, constitutional government. This debate, and (...) thus the usual conception of sovereign immunity, rests on a fundamental mistake. Hobbes and his peers were careful to avoid the conflation of government with sovereignty. “Sovereign” immunity, then, is an imposter doctrine that protects government officials by falsely draping them in the sovereign’s cloak. The only sovereign actor, in the American polity, is the people in the act of making or amending the Constitution. Our true, Hobbesian sovereign immunity is nothing more than our unbounded freedom to enact constitutional law. (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 official documents of the Parisian Faculty of Arts (starting from the Statute of March 1255) show a close identification between the philosophical sciences and the corresponding textbooks: to learn a particular science means essentially to read certain, prescribed books. The case of theology seems to be different, however. In spite of the fact that the Bible served as a paradigm for the ‘textualization’ of all kinds of knowledge, and even of the whole world, it did not fit perfectly (...) the epistemological criteria which Aristotle’s Posterior analytics established as necessary for every science. Already in the second half of the 13thcentury, both Thomas Aquinas and Henry of Ghent tried to construct theology as a science, in the Aristotelean sense, by appealing respectively to the theory of the subalternation of the sciences and to the doctrine of the lumen medium. The different reactions to these two models by Godfrey of Fontaines, Durandus of Saint-Pourçain and Peter Auriol seem to indicate a process in which theology can constitute itself as a true science only through a broadening of its textual basis, outside the scope of Sacred Scripture. (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)

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)

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)

This essay claims that ‘access to justice’ has erroneously been assumed to be synonymous with invisible concepts instead of access to a lawyer’s language. The Paper outlines how a language concerns the relation between signifiers, better known as word-images, on the one hand, with signfieds, better known as concepts, on the other. The signifieds are universal, artificial and empty in content. Taking the Canadian Charter of Rights and Freedoms as an example, officials have assumed that Charter knowledge has involved signifieds (...) (such as rules, principles, doctrines and tests) as if the signifiers were transparent. But any one signifier differs from another signifier without the lawyer ever accessing the invisible signifieds. Ironically, although the lawyer, law professor or law student believes that s/he is studying legal ‘practice’ and although legal knowledge has been considered a matter of signified concepts, the knowledge has really concerned the differentiating relations of signifiers. As a consequence, the moment of accessing the concepts (signifieds) has been forever deferred. ‘Access to justice’ has become access to the special language of signifiers, a language which lawyers alone are privileged to enforce. Turning to the Charter, lawyers claiming to know the special Charter language became indispensable to social life. Even the meaning-constituting human subject became a signifier, better known as ‘the legal person’ defined by Charter rights. Charter language, however, has deferred an access to the invisible concepts such as ‘freedom’ or ‘democracy’, terms in Section of the text. Access to justice’ has become access to the language of the privileged class of lawyers. The lawyer’s language has become a theoretical language in the name of access to justice. And yet, because the theoretical language has been propagated as concerned with ‘practice’, it has been difficult to challenge the social-cultural content of the language of lawyers. (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)

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)

Indonesian Buddhism has many sects such as Theravada, Mahayana, Buddhayana, Tantrayana, Maitreya, Tridharma, Kasogatan, Nichiren and so on. These sects historically come from the same source, the Buddha's teachings, but now they have differences in terms of doctrines and practices. This article analyses the differences with regard to their doctrines and beliefs in relation to the concept of God as required by the Indonesian Constitution. The discussion focuses on the debate among three sects, namely, Buddhayana, Theravada and Mahayana, about the (...) name and nature of God and sources of doctrines on which they rely. The research was conducted in Jakarta and Bogor which focused mainly on the organisation of Nichiren Shoshu Indonesia (NSI). The data were collected through book and document study, observations and interviews with NSI followers. Additional data was performed in Bandung in 2019 by interviewing Buddhayana and Theravada adherents. The research finds that Buddhayana was successful in formulating the concept of God based on an old manuscript, Sang Hyang Kamahayanikan, so that Buddhism has met constitutional requirements and eventually has been accommodated as one of the official religions. However, it has been challenged by both Theravada and Nichiren, which rely on other sources of doctrines. CONTRIBUTION: This article contributes to the theological discourse among Buddhist sects, which are rarely discussed by Buddhist scholars. Buddhist adherents in Indonesia not only have political responsibility as required by the Constitution, but also have a socio-ethical responsibility in terms of religious tolerance both within and outside other religions. (shrink)

Many liberal political philosophers hold that the state should not impose or even promote any particular conception of the good life or human flourishing. It should not, for instance, enact laws and policies designed to elevate citizens' tastes, to refine their sensibilities or to perfect their characters. Instead, the state should restrict itself to maintaining a fair framework of rights and opportunities within which all citizens can pursue their own beliefs about what constitutes a good life. Against this backdrop, Collis (...) Tahzib develops a version of perfectionist political philosophy. Whereas previous perfectionists have argued that the promotion of flourishing ways of life is permissible or legitimate, Tahzib casts perfectionism as a doctrine of justice. On this view, the implementation of laws and policies designed to promote sound ideals of the good life--ideals such as moral, intellectual and artistic excellence--is not merely a legitimate complement to justice but an essential constituent of justice. Over the years, perfectionism has faced various objections: that it is premised on values and judgements that are controversial within modern pluralistic societies; that it is unduly restrictive of freedom or autonomy; that it treats citizens as if they are children, unable to run their own lives; that it expresses the meddlesome mentality of a village busybody; that it mistakenly assumes that there are objective truths about human flourishing; and that it risks the abuse of power by incompetent, overzealous or corrupt state officials. These ideas represent some of the deepest, most vibrant and most powerful strains in liberal thought. In defending perfectionism against these charges, the arguments in A Perfectionist Theory of Justice make a novel and important contribution to longstanding debates about the philosophical foundations of liberalism. (shrink)

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition (...) of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

The relationship between Sacred Scripture and sacred Tradition is one of the areas that Pope John Paul II indicated in the encyclical Ut unum sint as being in need of fuller study in the ecumenical dialogue. The studies carried out during Vatican II with the aid and reflection of theologians and the preparation of alternative proposals, both official and unofficial, helped to change the whole approach, thus paving the way for the doctrinal Constitution on Divine Revelation. An essential component (...) of this approach is the introduction to the first chapter on Revelation. It introduced a qualitative rather than quantitative approach to the relationship between Scripture and Tradition. Moreover, when these are both linked to the one and only source, Revelation, Tradition is mostly presented as a vibrant and dynamic process guided by the Spirit, necessary for the conservation of the Gospel. This vision, in consonance with the reflection that was being made on the theme by the ecumenical movement during the years of the Council, has contributed to an opening up of dialogue that aims for consensus in areas that have divided Christian Churches for so long. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Buddhist-Christian Studies 21.1 (2001) 157-161 [Access article in PDF] Book Review Toward a Christian Theology of Religious Pluralism Toward a Christian Theology of Religious Pluralism. By Jacques Dupuis, S.J. Maryknoll, New York: Orbis Books. 1997. xiv + 433 pp. There may not be another individual more qualified than Jacques Dupuis to write this book. He has not only spent a lifetime teaching and serving in a part of the (...) world where the encounter between Christianity and other faiths has been particularly pressing (India), but he has also previously reflected intensively and published widely on this topic. Even more impressive, however, is the fact that the scholarship that emerges in this volume reflects Dupuis as a faithful Catholic Christian, both in the sense of paying sincere heed to the wide range of the Roman Church's official teachings on this and related topics (he taught for years at the Gregorian University in Rome and edited, with Josef Neuner, the massive The Christian Faith in the Doctrinal Documents of the Catholic Church 1 ) and in the sense of thinking along with others in the universal community of faithful Christians. Here we have a master theologian practicing his craft, working within a community of theological inquirers, bringing out, displaying, and putting to work old things and new in the effort to understand one of the most crucial issues of our time.The result is a comprehensive and lucid discussion of Christian theology of religions that is indispensable as an introduction to students without any knowledge of the landscape even while it also serves as a handy status questionis to those already [End Page 157] familiar with the terrain. The first half of the book (part 1) is an overview of the history of Christian approaches to other faiths, beginning with the biblical material, continuing through the Logos spermatikos theology of the early Fathers, the developments surrounding the Extra ecclesiam nulla salus ("no salvation outside the Church") axiom over the centuries, and the pre- and post-Vatican II attempts to develop a theology of religions in the Catholic Church. This part concludes by summarizing the paradigm shifts from ecclesiocentrism to (in order) christocentrism, theocentrism, and regnocentrism/soteriocentrism. Throughout the discussion--especially of the pre-twentieth-century history that focused much more so on the fate of the unevangelized--Dupuis manages to provide important connections to developments in Christian thinking about the role of the religions in the divine scheme of things.The second half of the volume (part 2) presents seven of the most difficult theological questions in Christian theologia religionum today. First, concerning the covenant: is there only one, or are there many? Is salvation history particular, or universal? Dupuis' provisional response is that there is one cosmic covenant that is never revoked. This covenant is revealed according to what he calls a "trinitarian rhythm" whereby God covenants through his Word, in his Spirit, and this covenant includes the witnesses of God left in other religions as well. Second, concerning revelation: does revelation come to us from "without," or emerge from "within" ourselves? What about the sacred texts of other traditions? How are Christians to understand the fullness of the revelation in Jesus Christ vis-à-vis other faiths? Dupuis' answer is that divine revelation is indeed scattered among the various religions, even if fully captured only in Christ, and that these revelations are thereby differentiated but complementary. 2 Third, concerning the divine mystery: is the "Real" beyond the categories of "personal" and "impersonal"? Is God one, or many (triune)? Dupuis responds that the religions have complementary and converging insights into the divine reality. Fourth, concerning Jesus Christ: is he one among many savior figures? What does the uniqueness of Christ mean? Is there a distinction or an absolute identity between Jesus and Christ? Is the Christ particular, or universal? Dupuis posits a "searching christology" whereby God reveals Godself in and through the images and symbols of the religions and through which humankind therefore responds to the divine graciousness. Jesus' uniqueness is thereby both "constitutive" (of universal significance) and "relational" (inserted in the overall plan of... (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)

Stawarska considers the ambiguities surrounding the antagonism between the phenomenological and the structuralist traditions by pointing out that the supposed foundation of structuralism, the Course in General Linguistics, was ghostwritten posthumously by two editors who projected a dogmatic doctrine onto Saussure’s lectures, while the authentic materials related to Saussure’s linguistics are teeming with phenomenological references. She then narrows the focus to Merleau-Ponty’s engagement with Saussure’s linguistics and argues that it offers an unusual, if not an uncanny, reading of the (...) Course, in that it identifies a phenomenological dimension within the text, against the grain of the dominant structuralist claim. This phenomenological dimension is corroborated by the authentic sources of Saussure’s linguistics, even though the latter were beyond the philosopher’s own power to know. Merleau-Ponty’s unorthodox reading of the Course as being broadly compatible with the tradition of Husserlian phenomenology has been dismissed as an error and a contresens, but Stawarska proposes that such deviant appropriations of foundational texts are the ones to cherish the most, since they effectively dismantle the received dogmas and official doctrines stuffing the cabinets of canonical philosophy. She argues specifically that Merleau-Ponty’s contested distinction between “a synchronic linguistics of speech ” and “a diachronic linguistics of language ”, which gives primacy to la parole over la langue, and raises the possibility of a systematic study of la parole, contains a more faithful response to Saussure’s own project than the received structuralist view that la langue alone constitutes the proper object of linguistic study. (shrink)

The Letters of Chan Master Dahui Pujue offers a complete annotated translation, the first into English, of a Chan Buddhist classic, the collected letters of the Southern Song Linji Chan teacher Dahui Zonggao (1089-1163). Addressed to forty scholar-officials, members of the elite class in Chinese society, and to two Chan masters, these letters are dharma talks on how to engage in Buddhist cultivation. Each of the letters to laymen is fascinating as a document directed to a specific scholar-official with (...) his distinctive niche, high or low, in the Song-dynasty social-political landscape, and his idiosyncratic stage of development on the Buddhist path. Dahui is engaging, incisive, and often quite humorous in presenting his teaching of "constantly lifting to awareness the phrase (huatou)," his favored phrases being No (wu) and dried turd. Throughout one's busy twenty-four hours, the practitioner is not to perform any mental operation whatsoever on this phrase, and to "take awakening as the standard." This epistolary compilation has long constituted a self-contained course of study for Chan practitioners. For centuries, Letters of Dahui has been revered throughout East Asia. It has exerted a formative influence on Linji Chan practice in China, molded S. (shrink)

I argue that some instances of constitutional religious establishment can be consistent with an expressivist interpretation of democratic legitimacy. Whether official religious endorsements disparage or exclude religious minorities depends on a number of contextual considerations, including the philosophical content of the religion in question, the attitudes of the majority, and the underlying purpose of the official status of the religious doctrine.

Stawarska considers the ambiguities surrounding the antagonism between the phenomenological and the structuralist traditions by pointing out that the supposed foundation of structuralism, the Course in General Linguistics, was ghostwritten posthumously by two editors who projected a dogmatic doctrine onto Saussure’s lectures, while the authentic materials related to Saussure’s linguistics are teeming with phenomenological references. She then narrows the focus to Merleau-Ponty’s engagement with Saussure’s linguistics and argues that it offers an unusual, if not an uncanny, reading of the (...) Course, in that it identifies a phenomenological dimension within the text, against the grain of the dominant structuralist claim. This phenomenological dimension is corroborated by the authentic sources of Saussure’s linguistics, even though the latter were beyond the philosopher’s own power to know. Merleau-Ponty’s unorthodox reading of the Course as being broadly compatible with the tradition of Husserlian phenomenology has been dismissed as an error and a contresens , but Stawarska proposes that such deviant appropriations of foundational texts are the ones to cherish the most, since they effectively dismantle the received dogmas and official doctrines stuffing the cabinets of canonical philosophy. She argues specifically that Merleau-Ponty’s contested distinction between “a synchronic linguistics of speech ” and “a diachronic linguistics of language ” , which gives primacy to la parole over la langue, and raises the possibility of a systematic study of la parole, contains a more faithful response to Saussure’s own project than the received structuralist view that la langue alone constitutes the proper object of linguistic study. (shrink)

In recent years, Karl Rahner's theology of concupiscence as a «pre-ethical appetite» has been subjected to some negative criticism as «un-Thomistic» and as presupposing modern philosophy's dualistic understanding of being. The present essay tries to situate Rahner's interpretation within the theological context of the time when it was originally published; the major debate then was on the nature of the supernatural and the desiderium naturale videndi Deum. It then tries to reconstruct the usage Rahner himself made of Aquinas's theology and (...) Heidegger's philosophy, as presented in the latter's Sein und Zeit . In 1941, Rahner's major contribution consisted in reformulating Aquinas's theology on concupiscence in Heideggerian terminology. The Incarnation and the gift of integrity constituted two benchmarks that Rahner used to test his own understanding of concupiscence. Finally, Rahner's contribution is placed within the context of the Catholic-Lutheran Joint Declaration on the Doctrine of Justification and the definition of concupiscence as presented in the accompanying Official Common Statement. (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)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 41.1 (2003) 121-122 [Access article in PDF] Harold Tarrant. Plato's First Interpreters. Ithaca, NY: Cornell University Press, 2000. Pp. viii + 263. Cloth, $55.00. This is Tarrant's third book on the ancient Platonist tradition, following his Scepticism or Platonism? (1985) and Thrasyllan Platonism (1993). In those earlier volumes his focus was on the first centuries bc and ad. Here his scope is much (...) wider. Stating that "Platonic interpretation is today at a crossroads," he has written a book that explores "ancient attempts to wrestle with this corpus," with the ultimate objective "to encourage a fresh, almost primitive reading of Plato himself" (vii).He begins engagingly by confronting the ancients with questions any modern reader of Plato must ask: What kind of text is this? Are there doctrines here? Where do I look for Plato's doctrines? The second part of his book is a historical survey, taking us from Plato, the early Academy and Aristotle, through the Hellenistic and early Roman Imperial period, and concluding with the principal Neoplatonist interpreters. In the third and longest part, he focuses on the interpretation of specific dialogues, giving most space to the Gorgias and Theaetetus, but also dealing in particular detail with the Meno, Parmenides, and Philebus. Something is said about every dialogue, but Tarrant writes only briefly about such major works as the Republic and Timaeus. He explains his selectivity (not very convincingly) as due to his wish to "discuss issues of meta-interpretation, with emphasis on the period before Plotinus" (198).Taking his book as a whole, one realizes that few strands of modern interpretation were not prefigured to quite a large extent in antiquity. The two most obvious exceptions are the chronological and developmental approach (Early, Middle, and Late), at present under strong attack from some quarters, and the theological, numerological, and allegorical readings practiced by Neoplatonists. Plato's ancient interpreters were doctrinal unitarians, but they implicitly anticipated our tendency to distinguish "Socratic dialogues," which some of them called "gymnastic" and "inquisitive," from such "canonical" works as the Phaedo,Republic, Symposium, and Timaeus, to which they applied the labels "dogmatic" and "expository." And they recognized that both types of characteristics could be found in the same dialogue, as in the Meno and Theaetetus. Plato himself, they proposed, spoke primarily through the voices of Socrates, Timaeus, and the Eleatic and Athenian strangers; but other characters, such as Pausanias in the Symposium, or Protagoras in the dialogue of that name, utter thoughts with some philosophical value. In explaining difficult passages of one dialogue, they would typically refer to passages from other parts of the corpus. An especially intriguing instance is the strategy of the Anonymous Commentator on the Theaetetus, who reads the Meno into the dialogue on which he is officially commenting.Ancient scholars, just like ourselves, asked questions about the unifying themes of complex dialogues. Hence the sub-titles given to certain works: "On the soul" for the Phaedo, and "On justice" for the Republic, etc. For Olympiodorus (whose commentary on the Gorgias Tarrant has recently co-edited [Leiden, 1998]), earlier interpreters have seriously erred by giving too limited an account of that dialogue's scope. It is not, he says, simply about rhetoric, nor about justice and injustice; nor is its theme the divine demiurge (as some Neoplatonists had strangely proposed, on the basis of the concluding myth). Rather, the subject of the Gorgias is "the ethical principles that lead to constitutional well-being" (125). [End Page 121] However, Olympiodorus's eminently "sensible" reading (as Tarrant calls it) is deeply embedded in the Neoplatonic contrast between the "purificatory virtues" of the Phaedo and the "constitutional virtues" of Republic4.Strong or weak scepticism, esotericism, unwritten doctrines, spurious versus genuine, a canon of central dialogues, dramatic considerations, and the philosophical importance or non-importance of the dialogues' prologues—all of these are interpretive approaches that Tarrant surveys in this immensely learned book, and all of them continue to resonate for us. Modern scholars, who emphasize the literary and philosophical unity of each dialogue, are walking... (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)

In lieu of an abstract, here is a brief excerpt of the content:HUME, MOTIVATION AND MORALITY Hume remarks, in the Abstract, that his account of the passions in Book II of the Treatise has 'laid the foundation' (A 7 Ì1 for his theory of morals. Pall Ardal has shown how Hume's theory of certain indirect passions (pride, humility, love, hatred) underpins his theory of the evaluation of character. I propose to explore the links between Hume's account of motivation and his (...) treatment of an agent 'ß moral assessment of prospective action. Where Ardal stresses the moral spectator, my focus is on the agent. Hume himself attends primarily to the moral spectator, but the agent's perspective is central in two of his chief arguments concerning morals, that for the thesis that moral distinctions are derived from a moral sense, and that for the artificiality of justice. I shall take it that the argument of Treatise II, iii, 3 ("Of the influencing motives of the will") provides the framework for analysis: acting for moral reasons is like acting for any other reason; citing his moral principles to explain a man's actions is like citing his desire to preserve his health as an explanation of his taking exercise; deliberating about moral matters is like pondering the purchase of a pair of shoes. Of course there are differences; I shall look to them shortly. It is essential, however, to begin with the similarities. To a first approximation, the central doctrine is that the reasons that explain actions are rational causes of those actions. Reasons for actions are constituted by suitably related desires and beliefs; volitions are somehow implicated in intentional actions. Reasons are causes: the desires and beliefs that constitute reasons cause volitions, and thus actions. They are rational causes: there are links of special kinds between the contents of the desires and beliefs that constitute an agent's reasons for what he does, and the content of the volitions implicated in the actions done. Hume is at pains to deny that "reason [here: belief] alone can... be a motive to any action of the will" (T 413). But he insists there are "two principal parts [of human nature], which are requisite in all its actions, the affections and understanding' (T 493). I suggest that by "affections" he here means specifically (if broadly) desires, and so both the "direct passions" of desire and aversion and such "indirect passions" as benevolence, anger, pity, compassion and malice. Hume's official doctrines both of desires and of volitions are unsatisfactory as they stand; he treats each as simple impressions. To be sure, these simple impressions are said always to be accompanied by thoughts of (in Hume's phrase) their objects. Even such complex states, however, can play no satisfactory role in psychological theory. The insights that Hume's official doctrines mishandle can, I suggest, be incorporated into more defensible, and more-or-less Humean, analyses of the internal structure of desire and volition. Having made efforts along these lines elsewhere, however, I shall here concentrate on other features of desire and volition that are germane to Hume's moral psychology. Desires and volitions are alike in two linked respects, among others: neither takes a truth value (and so each differs from belief); each is a conative, not a cognitive, psychological state (and so, again, each differs from belief). Because desires and volitions are not capable of "an agreement or disagreement either to the real relations of ideas, or to real existence and matter of fact" it is "impossible... they can be pronounced either true or false" (T 458). Their general functional role is that of "propense and averse motions of the mind" (T 574). To be sure, there are differences. The principal difference is that of specific functional location: desires are constituents in reasons for acting: volitions are constituents of (or otherwise implicated in) actions done for such reasons. This functional difference is tied to differences of content. To grasp the many relations among belief, desire and volition, when the first two serve as 4 reason for (and so cause of) the third, it is useful to plot their causal relations onto the elements in an Aristotelian practical syllogism. Desires function as causally salient major premises... (shrink)

This paper considers the cause for canonization of Gianna Beretta Molla, a pediatrician who died in 1962 because during her pregnancy she refused medical treatment that would have caused her to abort. The acts of Gianna’s cause contribute to the creation of a specific example mirroring and sustaining the position adopted by the Church in the 1960s and 1970s in matters of abortion, motherhood, family, and right to life. These issues were particularly delicate in those years, when the Catholic Church (...) was facing the rise of liberal and radical positions that contrasted with its doctrine; in particular, law n. 194 of 22 May 1978 constituted the first act of abortion legalization in Italy. In this context, the sanctification of Gianna had strategic importance for the Church as a way of presenting the faithful with the Catholic ideal of motherhood through a concrete example to follow. In this paper, I argue that the way in which the figure of Gianna is represented in the acts of her cause for canonization can be read as the figurativization of the axiology laid out in more abstract terms in Church texts with a normative value, such as the constitutions it issued during the Second Vatican Council and other official documents expressing the pontifical magisterium. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Seventeenth-Century Catholic Polemic and the Rise of Cultural Rationalism: An Example from the EmpireSusan RosaIn Galileo’s Dialogue Concerning the Two Chief World Systems Sagre-do, an intelligent, cultivated, and well-traveled young man who is persuaded of the truth of arguments in favor of the Copernican opinion presented by the philosopher Salviati, dismisses the counter-arguments of the Aristotelian Simplicio with sympathetic condescension: “I pity him,” he proclaims,no less than I should (...) some fine gentleman who, having built a magnificent palace at great trouble and expense, employing hundreds and hundreds of artisans, and then beholding it threatened with ruin because of poor foundations, should attempt, in order to avoid the grief of seeing the walls destroyed, adorned as they are with so many lovely murals; or the columns fall, which sustain the superb galleries, or the gilded beams, or the doors spoiled, or the pediments and the marble cornices, brought in at so much cost—should attempt, I say, to prevent the collapse with chains, props, iron buttresses, and shores. 1 [End Page 87]This elegant simile, which suggests that the fine gentleman can only preserve his palace by destroying its beauty, is meant to evoke the dilemma of the scholastic philosopher who is confronted by the evident disintegration of his intellectual home. Like the desperate owner who seeks to shore up his real palace, he must rebuild a philosophical edifice whose apparent beauty and coherence have been achieved at the expense of substance and can only be preserved by recourse to means so ugly and inadequate that they destroy even the illusion of credibility.Such a dilemma, I would argue, was the legacy bequeathed to many defenders of traditional religion in the seventeenth century by more than one hundred years of confessional rivalry. To simplify a complex process, this lengthy period of controversy and apologetic, to say nothing of warfare and mutual persecution, had generated a discourse which objectified and prob-lematized religion, making it something to think about rather than to think with. 2 In other words, the formal statements of conviction issued in the wake of the Reformation by competing denominations within Christendom, like the Catechism of the Council of Trent, the Augsburg Confession, the Genevan Confession, or the Thirty-Nine Articles of the Church of England had encouraged the development of the notion of religion as adherence to a set of propositions. As Peter Harrison has explained, this creation of a propositional religion in turnenabled discussion of the merits of other “religions” conceived to exist similarly as sets of beliefs. The truth or falsity of a religion had become a function of the truth or falsity of the propositions which constituted it. True religion... [had become]... a body of certain knowledge. 3Harrison’s remarks are significant because they suggest that the origins of rationalized discourse about religion and its consequent transformation from a way of thinking to an object of thought are to be found squarely within orthodoxy itself. 4To be specific, the competing content of official doctrinal pronouncements led not only to the comparison of the religions but implicitly to their emergence as subjects of a discourse which proposed reason as the norm, a [End Page 88] development clearly reflected in the wave of pamphlets, broadsides, printed disputations, and formal polemical treatises written in both Latin and the vernacular languages which poured from the presses of Catholic and mainstream Protestant denominations in England and on the continent throughout the seventeenth century. In this literature, Protestants accused Catholics of “superstition” and “idolatry,” while Catholics urged potential converts to compare the religions with a view to discovering their “marks of truth,” argued for the compatibility of Catholic faith and “natural light,” and identified heresy, on the contrary, with unreason, passion, lust, and self-contradiction. On both sides of the confessional fence, polemicists frequently insisted that religious discussion conform to the rules of logic, accusing one another of failing to argue from incontrovertible first principles, and of succumbing to the fatal dangers of petitio principii and circular reasoning. In other words, they claimed that in religious matters poor argumentation is a sure sign of error, and it would not be... (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)

In lieu of an abstract, here is a brief excerpt of the content:Conquest and English Legal Identity in Renaissance IrelandBrian LockeyLike the Spanish administrators of the American territories, English administrators of Ireland attempted to impose their own native legal system on the Irish inhabitants. Nonetheless, important differences existed between the two kingdoms' legal approaches to their respective colonial contexts. Because Spanish jurisprudence was allied with universalist Catholic doctrine and was officially based on Justinian's Corpus Iuris Civilis (the ancient Roman (...) legal code which had close affinities to natural law discourse), Spanish administrators expected New World inhabitants to accept what they considered to be the "universal values" that were inherent in Spanish law.1 In contrast English common law had its roots not in natural law but in the peculiar customs of the English people. Thus, while the Spanish were able to claim that they were replacing unnatural Indian customs with a legal system rooted in universal natural law, the English were attempting to reform what they considered to be the unnatural practices of the Irish by imposing a legal system defined by its insularity and its peculiar affinity with English institutions.2 In this essay I show that Renaissance ethnographies on Ireland by such English administrators of Ireland as Edmund Spenser, Sir John Davies, and Fynes Moryson are fractured by a conflict between a commitment to natural-law theory, which had its origin in continental writings, and a corresponding commitment to the native English tradition of common law. I examine how works by Spenser, Davies, and Moryson dealt with this conflict within their collective project of articulating a legal justification and strategy for the pacification of Ireland. [End Page 543]Despite reports throughout Europe of Spanish-perpetrated cruelty throughout the Americas, the idea that war or conquest could be just or even charitable when prosecuted against oppression originated within the Catholic tradition of scholastic just-war theory.3 Many of the sixteenth-century writers who were writing about war and conquest in legal or ethical terms were Spanish or continental theologians who had attempted to evaluate Spanish imperial policy in the New World. On the one side were such figures as the Scottish theologian John Major and Spanish historian Juan Ginés de Sepúlveda, both of whom had justified Spanish conquest and treatment of the Indians using arguments based on the foundation of natural law.4 On the other side were those who had, on similar terms, voiced criticisms of the cruelties which Spanish forces were inflicting on the Indians. Francisco de Vitoria and Bartolomé de las Casas were certainly the most notable Spanish writers who favored more ethical treatment of New World inhabitants.5 Other prominent defenders of Indian rights were Domingo de Soto and Melchor Cano.6 Whether directly or through intermediaries, the ideas of many of these writers permeated the ideological fabric of England.Sir Fulke Greville's famous statement about Sir Philip Sidney's goal of fostering alliances with New World inhabitants in order to overthrow the Spanish authorities included an awareness of the "inhuman cruelties" of the Spanish forces, an awareness that probably originated in the English translation of Las Casas's Brevissima relación de la destrucyión de las Indias (1552).7 Beyond [End Page 544] this significant text, however, there were others. One important book that captured the ideas of the early Spanish debates on the ethics and justice of the New World conquests was Antonio de Guevara's Relox de príncipes (1529), a work twice translated into English during the sixteenth century.8 The third book of the Relox de príncipes, which treats the princely virtues of justice, peace, and magnificence, contains several sections that together constitute a polemic against violent imperialism and unjust conquest. In one notable episode Guevara employs the example of ancient Roman imperialism to produce a veiled critique of the injustices which Spain had committed against New World polities. A "villain of Danuby" from a German province newly conquered by Rome makes a speech to the Roman senate in which he criticizes the injustice of his Roman oppressors. The German villain characterizes the conquest of Germany in the following terms: "For I let you know, if you do not know it, that when... (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)

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)

Critics charge that Kantian conceptions of human dignity and normative agency, which some suggest underwrite the modern doctrine of human rights, are parochial, unable to account for the dynamism and context-dependence of human rights, aloof from human rights practice, and incapable of distinguishing human rights from the vast array of other political rights constitutional democracies generally recognize as demands of justice. I argue here that whatever force these charges might have against human rights theories inspired by Kant’s work, (...) they do not impugn Kant’s own conception of human rights. By tying human rights to official attitudes toward justice rather than, as familiar approaches do, to concrete conformity with ‘minimum prerequisites’ of justice, Kant’s approach fits core features of human rights practice while providing a dynamic, context-sensitive guideline for auditing the conduct of states and public officials. Just as Kant’s critical writings argue that agents must be able to assume that the natural world of efficient causes is purposive for morality’s ultimate ends, we can profitably understand Kant’s political philosophy as claiming, analogously, that agents must also be able to assume that the juridical world of state action is purposive for justice. Kant’s conception of human rights, I suggest, identifies the conditions under which that assumption is warranted. (shrink)

Critics charge that Kantian conceptions of human dignity and normative agency, which some suggest underwrite the modern doctrine of human rights, are parochial, unable to account for the dynamism and context-dependence of human rights, aloof from human rights practice, and incapable of distinguishing human rights from the vast array of other political rights constitutional democracies generally recognize as demands of justice. I argue here that whatever force these charges might have against human rights theories inspired by Kant’s work, (...) they do not impugn Kant’s own conception of human rights. By tying human rights to official attitudes toward justice rather than, as familiar approaches do, to concrete conformity with ‘minimum prerequisites’ of justice, Kant’s approach fits core features of human rights practice while providing a dynamic, context-sensitive guideline for auditing the conduct of states and public officials. Just as Kant’s critical writings argue that agents must be able to assume that the natural world of efficient causes is purposive for morality’s ultimate ends, we can profitably understand Kant’s political philosophy as claiming, analogously, that agents must also be able to assume that the juridical world of state action is purposive for justice. Kant’s conception of human rights, I suggest, identifies the conditions under which that assumption is warranted. (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)