Constitutional Law

This study aims to identify various meanings of the expression (name) “dignity”, with particular emphasis on the meanings of this expression as it appears in the text of the Constitution of the Republic of Poland. The meaning of the name “dignity” is the concept of dignity; in turn, the different concepts of dignity encompass dignity of particular types. Twelve different meanings of the expression “dignity” are indicated – twelve different concepts of dignity, and thus twelve types of dignity. Half of (...) them are meanings (concepts) that recognize dignity as something belonging to a human being as a subject of law. They were considered in the essay Godność jako właściwość osoby. Typy godności – propozycja systematyzacji [Dignity as a Quality of Person – a Proposed Systematisation]. This group of meanings includes three concepts of dignity which recognize dignity as something constitutive of being a person: (1) inherent dignity of the person, (2) dignity established by qualities specific to a thinking being, and (3) dignity as a historically emergent social status of all human beings. The second group of meanings, treating dignity as something with which the human being (the person) is endowed, includes concepts which encompass (4) personal dignity (honour and good reputation), (5) dignity as moral excellence, and (6) dignity as appropriateness of attitude or behaviour. -/- Dignity as an attribute of collective entities and dignity as an institutionally grounded attribute are a subject of this paper. The Constitution of the Republic of Poland speaks of (1) the dignity of the Nation, (2) the dignity of office or function, and (3) public dignity. The expression “the dignity of the Nation” can be understood in four different ways: (i) analogously to the understanding of dignity of the person, (ii) of personal dignity, (iii) of dignity as moral excellence, and (iv) of dignity as appropriateness of attitude or behaviour. The expression “dignity” when designating something institutionally grounded can designate (4) the dignity of social roles, (5) the dignity of a profession, and – specifically to the Polish language – (6) dignity meaning a surname. -/- The author argues that it is unacceptable to ascribe different concepts of dignity to the expression “dignity” appearing in a specific legal provision. (shrink)

El concepto de dignidad humana ha sido considerado o demasiado denso o demasiado delgado. Sin embargo, desde el punto de vista del no-positivismo, la normatividad jurídica de la dignidad humana puede ser justificada y reforzada por medio de su corrección moral. Desde una perspectiva individual, la comprensión de Mencio sobre la dignidad humana como un valor intrínseco y el imperativo categórico de Kant (el ser humano como un fin en sí mismo) podrían ser adecuadamente comprendidos con base en la diferencia (...) (así como la conexión) entre el principium diiudicationis y el principium executionis, entre voluntad y “elección”; así como entre homo phaenomenon y homo noumenon (es decir, humanidad en la persona de los seres humanos). Desde una perspectiva social, las dimensiones del individuo y la persona social son construcciones ficticias; inclusive Radbruch -alguna vez defensor del derecho social- no remplazó el concepto de “persona jurídica” y, en el periodo de posguerra, reconoció la dignidad humana individual como el criterio para aplicar su famosa “fórmula de Radbruch". Por una parte, la dignidad humana muestra cuando menos un carácter normativo débil, el cual requiere, primero, ponderar entre el ejercicio de los poderes estatales y el control de constitucionalidad bajo la guía de la dimensión dual del ser humano y, segundo, la optimización del principio de la dignidad humana en casos particulares. Por otra, a través de la conexión necesaria entre el concepto de dignidad y personalidad, la dignidad humana puede exhibir un carácter normativo fuerte, el cual requiere inevitablemente una justificación metafísica. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and Criminal Law, (...) Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

Democracy has been hailed as a global phenomenon and the most popular feature of modern political thought. Several notable efforts have been made by the global community to promote and extend democracy to cover billions of people, with their varying histories, cultures, and disparate levels of affluence. In 2007, the United Nations General Assembly resolved to support the efforts of governments to promote and consolidate new or restored democracies. The GA in this regard stated that “democracy is a universal value (...) based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. Also, while democracies share common features, there is no single model of democracy, and that democracy does not belong to any country or region, reaffirming further the necessity of due respect for sovereignty, the right to self-determination, and territorial integrity. In 2005, the United Nations Democracy Fund was created to implement projects aimed at enhancing democratic practice, promoting human rights, and encouraging participation of all groups in democratic processes. In contrast to its growing popularity, democracy has also been closely looked at with suspicion by experts- academic, political, and otherwise. Skeptics assert that “ the meaning of democracy is contested with no universal definition that is applicable.”. (shrink)

Much attention has been devoted recently to cases where a controversial speaker is invited to speak on campus and subsequently some members of the university seek to have that speaker disinvited. Debates about such scenarios often blur together legal, normative, and empirical considerations. I seek to help clarify issues by separating key legal, normative, and empirical questions. Central to my examination is the idea of the university as a multi-forum institution—i.e. a complex public institution whose parts contain different types of (...) forums. I conclude that it is sometimes legally and normatively permissible (1) for universities to disinvite speakers, and (2) for students to seek to get speakers they consider unacceptable disinvited. I also suggest that my arguments sometimes extent to shouting down speakers. (shrink)

Konstitution der Gemeinschaft Rus’. Herausgeber: Dr. Andrej Poleev, Stiftung für die Errichtung der konstitutionellen Ordnung, 2021.

This article aims to evaluate the contribution of Bentham’s ideas to the jurisprudential debate in view of their relevance vis a vis their contemporary reception. The focus is on Bentham’s revolutionary idea of publicity with its spill-over effects on contemporary debates on the rule of law and accountable and transparent governance. As far as the method is concerned, after having examined Bentham’s ideas on the rule of law and the debate they raised, the focus in the second section of this (...) article is specifically on his conception of publicity. Some critical remarks then show that Bentham’s focus on publicity and transparency has been rightly interpreted in the contemporary debate as an important contribution. However, it is their justification that it is judged to be problematic. In fact, the assessment of the fundamental importance of publicity for the rule of law and transparent and accountable governance leads to a critical engagement with contemporary readings of Bentham’s scholarship, in primis that of Gerald Postema, with a development of the latter’s republican interpretation. The direction of travel that is proposed is towards a more liberal republicanism. The article not only shows how Bentham’s contribution should be revaluated in view of contemporary interpretations, but also proposes directions for further research developments according to which contemporary conceptions of regulation need to take a reflexive turn while aiming at legitimate legality at the same time. (shrink)

The concept of human dignity has been criticized as either too thick or too thin. However, according to the non-positivistic standpoint, the legal normativity of human dignity can be justified and thus strengthened by means of its moral correctness. From the individual perspective, Mencius’ understanding of human dignity as an intrinsic value and Kant’s formula of ‘man as an end in itself’ can be adequately understood based on the differentiation of, as well as the connection between, principium diiudicationis and principium (...) executionis, between will and choice, and between homo phaenomenon and homo noumenon (that is, ‘humanity in the personality’). From the social perspective, since the dual dimensions of the individual and the social person are both fictive constructions, even Radbruch, once as a supporter of social law, has not replaced the concept of ‘legal person’ and, in the post-War period, acknowledges individualistic human dignity as the criterion for applying the famous ‘disavowal formula’. On the one hand, human dignity shows at least a weak normative character, which requires, firstly, balancing between the exercise of state powers and the constitutional review under the guidance of the dual dimensions of man and, secondly, optimization of the principle of human dignity in individual cases. On the other hand, through the necessary connection between the concept of dignity and that of personality, human dignity can exhibit a strong normative character, which unavoidably requires a metaphysical justification. (shrink)

The author considers ethical and legal aspects of a developing of AI systems. He examines the ethical aspect through the prism of Kant’s philosophy and outlines moral prospects of (quasi)intelligent robots. The author considers the legal aspect in context of normative regulation of risks that arise with a creating of AI systems. In conclusion the author makes an assumption on forthcoming transformation of a legal system because of a new type of legal acts that combine classical form of legal act (...) and machine protocol. -/- В статье затрагиваются этический и правовой аспекты развития систем искусственного интеллекта. Этический аспект автор рассматривает с позиций философии И. Канта и обрисовывает нравственные перспективы создания (квази)разумных роботов. Правовой аспект рассматривается в контексте нормативного регулирования рисков, возникающих при создании систем ИИ. В заключении делается предположение о грядущей перестройке правовой системы в связи с возникновением нового типа НПА, которые сочетают в себе классическую форму НПА и машинного протокола. (shrink)

Поскольку до сих пор нет никакого судебного решения в отношении правомерности совершённых в прошлом и совершаемых в настоящем деяний, квалифицируемых как подлог и предательство, правовая оценка перестройки адресуется как юристам, так и всем прочим гражданам.

Текст проекта конституции был написан и опубликован летом 2013 года, и в 2017 году был принят в качестве основного закона общности Русь.

This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show (...) that there are three major legal roadblocks for such a case to succeed in US law. First, US privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the US is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal, and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies. (shrink)

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously form (...) their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all cititizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production. (shrink)

Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of the logic of (...) normative standards—the determinate threshold conception—that the critic attributes to the putatively undermined account of legitimacy. The paper further claims that when we abandon threshold conceptions of the logic of legitimacy in favor of regulative-ideal conceptions, then the objections, from bootstrapping paradoxes to the very idea of constitutional democracy, disappear. It concludes with considerations in favor of adopting a more demanding conception of the regulative ideal of constitutional democracy, advanced by Habermas, focusing on potentials for developmental learning. (shrink)

This paper proposes a critical analysis of the essential criteria to define the concept of the political as presented by German jurist and philosopher, Carl Schmitt. Based on the essence of the political -i.e. the friend-enemy duality-, the objective is to explore the practical implications resulting from the actual possibilities of confrontation, the key scope being the analysis of a totalitarian potential from a Schmittian´s perspective. In Schmitt´s thought, this distinction is the fundamental reason for the definition of the political. (...) Not every opponent is necessarily the enemy --the other one, the unknown- and likely to be physically destroyed and exterminated but only a public enemy (hostis). Given its indeterminate nature, the enemy may be prescribed according to the sovereign design or, in the context of Nazi Germany where Carl Schmitt lived, in accordance with the President of the Reich´s designs. A hypothetical-deductive methodology is used in this work based on bibliographical research, in particular regarding Carl Schmitt´s theoretical constructions. (shrink)

La FIV puede llevar aparejada la acumulación de embriones humanos excedentes. Aunque la ley prevé varios posibles destinos, las clínicas de reproducción asistida, que con frecuencia han de decidir qué hacer con ellos, buscan criterios para hacerlo de la forma más razonable posible. Este trabajo pretende aportar razones jurídicas y éticas que ayuden a esa decisión.

Según la teoría contemporánea, un sistema jurídico existe cuando es eficaz en general. Así, identificar las normas jurídicas válidas en tal sistema sólo requiere cumplir con los requisitos establecidos en su correspondiente regla de reconocimiento.**** De modo que ni en la cuestión de la existencia del sistema ni en la de la identificación de sus normas tiene que ver la de la moralidad del derecho. Esto se pone en cuestión en este trabajo a través del análisis del derecho de la (...) represión durante la dictadura franquista y las medidas reparadoras adoptadas a partir de la transición a la democracia hasta nuestros días. (shrink)

Conservadurismo y dogmática constitucional en Japón. Conservatism and the dogmatic part of constitution in Japan.

Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact. -/- First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, (...) and people arose as a main class or pillar of nation. As we take a precept of chaotic years from the Articles of Confederation thorough the Constitution, the earlier ambition was mixed between the diplomatic unity and one strong national government. This context implicates much over the centuries and can also be illustrated with a residue of classic and present practice of international politics. The characteristics as temporal for the years would more properly be sensible with the kinds of description, for example, “atmosphere of war, interstate comity or discredit, chaos from the heterogeneous regional power and social incongruence nationally.” A threat from the mainland Europe had been constant at considerable period of time upon the independence. For the nation, it is more urgent to make it clear who will decide the will of nation, how to effectively consolidate the function of government, or how to manage the least of nation with the subjects than active interaction with the people, although the people are one distinct element of new Constitution and ideologically pronounced in the preamble of Constitution. This generally led to recognition that the role of Constitution and Supreme Court were minimal in terms of public policy making and that their policy contained in the opinion often is sheer of internal issues among the public power other than those of people. The kind of Kantian ambition for the universal justice on liberty and equality, hence, should wait for more prosperous time afterwards that people tend to be conscious of their basic rights or public good from the arbitrary rule of majority, given our concocted recognition from the kind of public policy ideals from Bentham, “the greatest happiness of greatest number,” and “revolutionary spirit on people.” It perhaps would not be irrelevant, in understanding of the impact of judicial rulings on public policy, that the US is other than unitary system of government. Oftentimes the kind of rulings on criminalization of adultery or right to privacy would surprise the people, but the kind of oxymoron or public debate, as likely persistent over the decades and diverse reaction, would normally not be present in the jurisdictions of unitary system. The people of such jurisdictions would be more than receptive, and be readily marshaled to adapt with the public guidelines elucidated by the court ruling. We also chat on the multiculturalism in the society and workplace. Given the judicial activism, the Supreme Court justices might be clairvoyant, who would be equipped with goodwill, wisdom and almighty intelligence to assuage an untreatable scope of interests and state specificities. Foreign lawyers would find such ample source of laws in surprise, who might envy a wide coverage of judicial interests. They perhaps would take the US context as the kind of insightful classroom and learn the lessons from their case laws. (shrink)

The human rights often are cited as an ultimate goal for the discipline of social science. It guides the UN in the pursuit of its organizational mission, and the civil democratic government generally endorses this paradigm of state rule as supreme. Nonetheless, it seems a mishap if the human rights are thought to be valued only in the courtroom or police office. They are the kind of ubiquitous concept that we could share and must share, who would be the scientists (...) in ideological pursuit, the policy makers and administrators in state engineering, and even the business enterprises in the emerging influence. It is typically regrettable if the human rights are not one of foremost concern, but a penumbra from the callous public officers while the human rights allow them to stand fundamentally. They comprise the magic code they are required to respect than any other priority, and also provide the basis of ethics on which the administrators deliberate. The paper attempts to deal with the theme of human rights, and delineates the elements of them with the aid of history and philosophy as well as comparative summary if adequate. Then the author leads the discussion to any new perspective or suggestion in the face of modern administrative state and social progress. (shrink)

This is a review of Seana Shiffrin's _Speech Matters_.

This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on the concept of human dignity (...) in the two constitutions, each one of us from his own philosophical perspective. (shrink)

The Canadian Truth and Reconciliation Commission on Indian Residential Schools is a novel foray into a genre previously associated with so-called “transitional” democracies from the post- Communist world and the global South. This basic fact notwithstanding, a systematic comparison with the broader universe of truth commission-hosting countries reveals that the circumstances surrounding the Canadian TRC are not entirely novel. This article develops this argument by distilling from the transitional justice literature several bases of comparison designed to explain how a truth (...) commission’s capacity to promote new cultures of justice and accountability in the wake of massive violations of human rights is affected by the socio-political context in which the commission occurs; the injustices it is asked to investigate; and the nature of its mandate. It concludes that these factors, compounded by considerations unique to the Canadian context, all militate against success. If Canadian citizens and policymakers fail to meet this profound ethical challenge, they will find themselves occupying the transition-wrecking role played more fami- liarly by the recalcitrant and unreformed military and security forces in the world’s more evidently authoritarian states. (shrink)

There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, the legitimacy of proportionality analysis is (...) a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis. | A previous version of this article was published in Chinese Yearbook of Constitutional Law, Vol. 2010, 221–235. (shrink)

I argue that the dispute between two leading theories of interpretation of legal texts, textual originalism and textual evolutionism, depends on the false presupposition that changes in the way a word is used necessarily require a change in the word’s meaning. Semantic externalism goes a long way towards reconciling these views by showing how a word’s semantic properties can be stable over time, even through vicissitudes of usage. I argue that temporal externalism can account for even more semantic stability, however. (...) Temporal externalism is the theory that the content of an utterance at time t may be determined by developments in linguistic usage subsequent to t. If this semantic theory is correct, then the originalist and evolutionist positions effectively collapse. Originalism is correct in that the original meaning of the text is the meaning that is binding on jurists, but evolutionism is vindicated, as it is the current practices and standards that determine the meaning the text now has, and has always had. Objections to temporal externalism, and to its application to the interpretation of legal texts, are considered and addressed. (shrink)

New technologies of surveillance such as Global Positioning Systems (GPS) are increasingly used as convenient substitutes for conventional means of observation. Recent court decisions hold that the government may, without a warrant, use a GPS to track a vehicle’s movements in public places without violating the 4th Amendment, as the vehicle is in plain view and no reasonable expectation of privacy is violated. This emerging consensus of opinions fails to distinguish the unreasonable expectation that we not be seen in public, (...) from the reasonable expectation that we not be followed. Drawing on a critical discussion of the plain view doctrine, analysis of privacy interests in public places, and distinguishing privacy from property interests, the article contends that government use of GPS to track our movements should require a warrant. (shrink)

Duties constitute an integral part of the constitutional scheme of values. The nature and influence of duties is of great interest to practitioners and scholars. The literature on the subject is primarily concerned with the exactness of duties as operational values within constitutions. In general, Bauer and Bolsinger attribute three functions to constitutional values. Namely, they regulate by directing human action at the desired target, enabling legitimation and justification of actions, and simplifying decision-making. While debating whether duties have a functional (...) quality, several questions gain prime importance. To name a few- do constitutional duties enable positive action? Is there a universal binding framework on duties? How are duties related to other constitutional values within constitutions? Are duties within constitutions interpreted in light of international standards? Are there unenumerated or un-written duties? etc. (shrink)

From the scholarship available we can gather that fraternity has been subjected to several interpretations and linked with several virtues. For a few, it stands close to the actualities of solidarity, humanity, compassion, companionship, and brotherhood. For others, it is the “glue that binds equality and liberty to the civil society” and “presents a sense of continuity with the past and the future”. Omvedt replaces the word fraternity with “community” as an important component of a human vision for the new (...) millennium along with equality and justice. Historically, ‘liberty, equality, and fraternity became a major influence on political thought since the French Revolution. The Revolution marked the triumph of the people and pronounced the Declaration on Rights of Man and of the Citizen in 1789. In modern societies, although there are many differences in interpretation, the idea of fraternity is less directly accepted, but the principles of collective action and social responsibility are widely recognized’. According to Johnston, 'fraternity' was rather less central to the preconceptions of the enlightenment predecessors of the revolutionary era, their emphasis being given rather to the 'rights of man' and to the equality of entitlement to those rights. To date, our pre-occupation with liberty and equality has left vacant a conceptual upbringing of fraternity in the postcolonial context. (shrink)

Efficiency requires legislative political institutions. There are many ways efficiency can be promoted, and so an ongoing legislative institution is necessary to resolve this choice in a politically sustainable and economically flexible way. This poses serious problems for classical liberal proposals to constitutionally protect markets from government intervention, as seen in the work of Ilya Somin, Guido Pincione & Fernando Tesón and others. The argument for the political nature of efficiency is set out in terms of both Pareto optimality and (...) aggregate welfare maximisation, and similar arguments can be generalised to other social values. (shrink)

Vor wenigen Tagen hat das Hamburger Kabarett-Theater Schmidts Tivoli die Zusammenarbeit mit dem Komiker Kay Ray beendet, offenbar weil rassistische Witze in der Show einen zentralen Platz einnehmen. Kurz nach der Cancel-Affäre zwischen Lisa Eckhart und dem Hamburger Nochtspeicher sieht sich nun auch Ray als Opfer von „Cancel Culture“, die die Kunstfreiheit immer weiter einschränke. Um die Kunst und Kunstfreiheit geht es dabei aber eigentlich gar nicht. Sie ist nur der Austragungsort gesellschaftspolitischer Auseinandersetzungen um Sexismus, Rassismus und Transphobie. Dabei sind (...) Kunstfreiheit und Meinungsfreiheit zentrale Argumente – oder besser: Waffen – des konservativen politischen Projekts geworden, mit dem emanzipative Änderungen abgewehrt werden (s. auch Schubert, in: Leviathan, 48 (1), S. 29–51). Dieser machtpolitische Missbrauch muss klar von der grundrechtlichen Dimension unterschieden werden. Dafür ist zwischen drei Ebenen Kunstfreiheit zu differenzieren: im nichtstaatlichen, parastaatlichen und staatlichen Bereich. Die Neuregelungen von Diskurs, Kultur und Kunst durch „Politische Korrektheit“, „Cancel Culture“ oder „Identitätspolitik“ bedeuten nicht den Zerfall der Demokratie, sondern sind ein Schritt in Richtung ihrer vollständigeren Realisierung. (shrink)

The debate on the argumentative turn in Public Policy and Administration (PPA), as reflective of the influence of politico-legal theory on the discipline, is reviewed with a thorough and indepth engagement with the Argumentation Theory (AT) literature. The focus in this article is in fact of a methodological nature since we argue that critical scholars - who have contributed to the general and specialized (i.e. political discourse analysis and critical contextualism) literature of AT as well as politico-legal theory - pave (...) the way to a novel methodology which will be exemplified through the analysis of the transparency concept. (shrink)

In the wake of high profile and recent events of blatant privacy violations, which also raise issues of democratic accountability as well as, at least potentially, undermining the legitimacy of current local and international governance arrangements, a rethinking of the justification of the right to privacy is proposed. In this paper, the case of the violation of the privacy of a bullied autistic youngster and the consequent prosecution of 3 Google executives will be discussed first. We will then analyse the (...) arguments made by both academic experts and pundits who agree with Google’s claim that if the first sentence had been left unchallenged, it would have opened the floodgates to several other jurisdictions that would as a consequence have used it as a pretext to increase control on the internet, jeopardising in such a way free speech, which has been seen so far as an inalienable right which should not be censored. Finally, by going beyond the sentences and their immediate contexts, we will propose a theoretical justification of our analysis. Our main claim is that the value of the right to privacy is based on the argument that its violation would undermine citizens’ capacity to participate effectively in democratic politics. (shrink)

The purpose of this article is to discuss Kant’s concept of juridical state as the foundation of the contemporary rule of law. Therefore, the article tries to answer two questions: (1) what character can be attributed to Kant’s concept of juridical state taking into account the obligations arising from it; (2) can the analysis of the Kantian juridical state have any impact on the contemporary understanding of the rule of law and if so, what can this impact be. In order (...) to accomplish this task, moral presuppositions of Kant’s juridical state are discussed, according to the commonly accepted view that Kant’s political philosophy is closely linked with his moral and ethical reflection. Then, two interpretations of Kant’s juridical state – the liberal one and the authoritarian one – are analysed. The crucial difference between these interpretations lies in establishing the circumstances in which the duty of obedience to state power should be carried out. Then, Kantian juridical state is compared with two ways of understanding the rule of law – the material one and the formal one – in order to evaluate whether the rule of law should be considered as continuity of or rupture with the Kantian concept. (shrink)

The principle of self-determination, like Janus, has two faces: negative and positive. Often understood as enabling the fracture of states into national components, the principle is better seen as facilitating the creation of multinational frameworks that foster toleration and human rights.

This paper explicates the influential Confucian view that “people” and not “institutional rules” are the proper sources of good governance and social order, as well as some notable Confucian objections to this position. It takes Xunzi 荀子, Hu Hong 胡宏, and Zhu Xi 朱熹 as the primary representatives of the “virtue-centered” position, which holds that people’s good character and not institutional rules bear primary credit for successful governance. And it takes Huang Zongxi 黃宗羲 as a major advocate for the “institutionalist” (...) position, which holds that institutional rules have some power to effect success independently of improvements in character. Historians have often called attention to this debate but left the major arguments and positions relatively unspecified. As I show, the Confucian virtue-centered view is best captured in two theses: first, that reforming people is far more demanding than reforming institutional rules; second, that once the rules have reached a certain threshold of viability, further improvements in those rules are unlikely to be effective on their own. Once we specify the theses in this way, we can catalogue the different respects and degrees to which the more virtue-centered political thinkers endorse virtue-centrism in governance. Zhu Xi, for example, turns out to endorse a stronger version of virtue-centrism than Hu Hong. I also use this account of the major theses to show that Huang Zongxi, who is sometimes regarded as historical Confucianism’s foremost institutionalist, has more complicated and mixed views about the power of institutional reform than scholars usually assume. (shrink)

Abstract: The New Latin-American Constitutionalism (NCL) is a new theory represented by the last-two decades constitutions of Colombia, Venezuela, Ecuador, and Bolivia. These constitutional texts share special characteristics in their originality and their comprehension of the features of their societies, which have originated new mechanism and institutions in constitutional theory, in order to advance the development of their nations. This paper analyzes the aspects of democracy, economic regulation, and peace building, as fundamental elements of NCL, in order to prove the (...) advance in social development of those States. -/- Resumen: El Nuevo Constitucionalismo Latinoamericano (NCL) es una teoría que enmarca las cartas políticas surgidas en las últimas décadas en Colombia, Venezuela, Ecuador y Bolivia. Estas constituciones comparten características especiales respecto a la originalidad y apropiación de los elementos particulares de sus sociedades, dando paso a nuevos mecanismos y figuras innovadoras en la teoría constitucional, buscando un avance en el desarrollo de sus naciones. El artículo analiza los postulados en la democracia, la regulación económica y la construcción de paz, como elementos fundamentales del NCL, buscando evidenciar el avance presentado por los Estados en su desarrollo social. (shrink)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (...) (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)

This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

In this essay I first set out the advantages the " multivariate democratic polity " framework proposed by Ferrara offers in comparison to other more consensus-based notions of democratic legitimacy. Secondly, I highlight some ambiguities concerning the meta-theoretical status of this frame, since it is not clear whether it consists of an adaptive realistic description, or otherwise is a normative argument. Thirdly, I cast some doubts on the compatibility between the multivariate frame and the " dualist conception of democratic constitutionalism (...) " adopted by Ferrara, since the latter seems too indebted to the domestic analogy, and to a consensus-based model of legitimacy. Finally, I argue that the dualist approach does not seem a convenient way to include citizenship in deliberative processes, and the question of the emergence of a transnational demos should rather be reconsidered as crucial for this purpose. (shrink)

In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon (...) newly according legal rights to animals. Compensatory injustice would likely result from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

Religious freedom is often thought to protect, not only religious practices, but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (...) facto what conduct is justified and what is not. This determination is made ex ante by other institutional actors such as private fiduciaries, public officials, and sometimes, ordinary citizens caught in extraordinary circumstances. The court’s role is simply to review the validity of that prior exercise of decision-making discretion. More broadly, my study is intended to serve as a reminder of the importance of institutional structure in criminal law. It is almost always misleading to address issues in criminal law by way of abstract moral theorizing, as is often done, because this leaves out the crucial question of institutional division of labor. Before addressing the substantive aspect of particular questions—what conduct should be prohibited, justified, or excused—we must first address ourselves to the institutional questions that I have called the problems of authority, discretion, and legality. These institutional questions receive their most thorough treatment in two other areas of law: the private law of fiduciaries and public administrative law. If we wish to make progress in understanding justification defenses—and the institutional structure of criminal law more generally—I argue that it is to these areas of law that we should attend. (shrink)

The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution (...) is its original meaning. That is to say: the meaning is what it is, not what it should be. Accordingly, there is no sense in which the communicated content of the constitution is determined by reference to moral desiderata; linguistic desiderata do all the work. In this article, I beg to differ. In advancing their arguments for linguistic originalism, both authors rely upon the notion of successful communications conditions. In doing so they implicitly open up the door for moral desiderata to play a role in determining the original communicated content. This undercuts their claim and changes considerably the dialectical role of linguistic originalism in the debate over constitutional interpretation. (shrink)

El ensayo analiza tres tipos de neoconstitucionalismos, teórico, ideológico y metodológico, y sus contrastes con el positivismo jurídico. Se presenta también una apreciación crítica del neoconstitucionalismo.