Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique mounted (...) by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...) argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. (shrink)

This article presents a critical reevaluation of the thesis—closely associated with H. L. A. Hart, and central to the views of most recent legal philosophers—that the idea of state coercion is not logically essential to the definition of law. The author argues that even laws governing contracts must ultimately be understood as “commands of the sovereign, backed by force.” This follows in part from recognition that the “sovereign,” defined rigorously, at the highest level of abstraction, is that person or entity (...) identified by reference to game theory and the philosophical idea of “convention” as the source of signals with which the subject population has become effectively locked, as a group, into conformity. (shrink)

The family of a patient who is unconscious and respirator-dependent has made a decision to discontinue medical treatment. The patient had signed a donor card. The family wants to respect this decision, and agrees to non-heart-beating organ donation. Consequently, as the patient is weaned from the ventilator, he is prepped for organ explantation. Two minutes after the patient goes into cardiac arrest, he is declared dead and the transplant team arrives to begin organ procurement. At the time retrieval begins, it (...) is not certain that the patient's brain is dead or that cardiac function cannot be restored. Procurement follows uneventfully, and two transplantable kidneys are retrieved.Many people now consider such cases of non-heart-beating organ donation to be ethically permissible. However, widespread disagreement persists as to how such practices are to be justified and whether such practices are compatible with the Uniform Declaration of Death Act. In this paper, I argue that non-heart-beating organ donation can be ethically justified, that in the justified cases the patients are in fact dead, and that the early declarations of death required for such donation do comply with the UDDA. (shrink)

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)

Whether the US Constitution guarantees a right to conduct scientific research is a question that has never been squarely addressed by the United States Supreme Court. Similarly, the extent to which the First Amendment protects the right to communicate the results of scientific research is an issue about which there is scant judicial authority. This article suggests that a crucial guidepost for exploring both these uncharted areas of constitutional law should be whether restrictions on scientific research or communication truly implicate (...) fundamental individual rights or instead primarily concern issues of general social welfare—issues that in a democracy are properly decided by the representative branches of government or their delegates, not by the judiciary. (shrink)

Although Kant’s final work in moral philosophy,Die Metaphysik der Sitten, currently attracts much scholarly attention, there is still a lot to explore. This article is an attempt to get to grips with a particular, often neglected passage of theRechtslehre, namely §35. Here Kant defends the view that not only can a person’s good reputation can be tarnished after his death, but also that this constitutes a violation of this dead person’s property. Here I will not be able to fully clarify (...) what Kant means when he holds that persons can be harmed after their death, but I will put Kant’s view in a few perspectives. (shrink)

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

Political liberalism’s central commitments to recognizing reasonable pluralism and institutionalizing a substantive conception of justice are inconsistent. If reasonable pluralism applies to conceptions of justice as it applies to conceptions of the good, then some reasonable people will reject even many liberal conceptions of justice as unreasonable. If so, then imposing these conceptions of justice on citizens violates the liberal principle of legitimacy and related public justification requirements. This problem of justice pluralism requires that political liberals abandon their commitment to (...) institutionalizing a substantive conception of justice. Instead, political justification should be limited to the public justification of a modest scheme of rights and a set of constitutional rules. Justice pluralism chastens the ambitions of political liberalism while pushing the political liberal research program in new and promising directions. (shrink)

Anti-Porn activists have argued for decades that pom is discrimination, it hamis women as a class. The Pro-porn response has been to dismiss these concems, laud the First Amendment, or argue that pornography is a valuable contribution to society. The debate has progressed little beyond this stage. In this article, I argue that it is time to frame the pomography debate as a discussion on sexualized media in general. Recent research indicates that the negative results often attributed to hard-core pornography, (...) such as sexist attitudes, lack of empathy for women, objectification, etc., are attributable to sexualized media as a whole. Pornography is, therefore, an infelicitous target. The solution to this problem is not the prohibition or litigation of one narrow aspect of this phenomenon, hard-core pornography, but the regulation of the producers of sexualized media in conjunction with efforts to educate consumers. (shrink)

The renewed interest on political realism can offer a new reading of the traditional dichotomy between normative and realist conception of constitutionalism. The purpose of this article is to analyse this renewed discussion, especially by focusing on the relationship between “political realism” and “political constitutionalism,” in the light of some theorists and authors—such as Richard Bellamy and Jeremy Waldron. After a brief introduction in which political realism will be discussed, especially through Bernard Williams’ reinterpretation, the article proposes a rereading of (...) democratic constitutionalism from the classical dichotomy between normativism and realism in political theory. The focus will be set on three key issues: 1. Richard Bellamy’s constitutional theory in a realist perspective; 2. An insight of legal constitutionalism under a normative banner; 3. A brief conclusion in which the risks of a majoritarian and populist constitutionalism will be discussed. (shrink)

Jiirgen Habermas is a radical democrat. The source of that self-designation is that his conception of democracy-what he calls "discursive democracy"-is founded on the ideal of "a self-organizing community of free and equal citizens," co- ordinating their collective affairs through their common reason. The author discusses three large challenges to this radical-democratic ideal of collective self-regulation: 1) What is the role of private autonomy in a radical-democratic view? 2) What role does reason play in collective self-regulation? 3) What relevance might (...) a radical- democratic outlook have for contemporary democracies? The author addresses these questions by considering Habermas' answers, and then presenting alternative responses to them. The alternatives are also radical-democratic in inspiration, but they draw on a richer set of normative-political ideas than Habermas wants to rely on, and are more ambitious in their hopes for democratic practice. (shrink)

Monarchy is liberalism’s little secret. Given the number of articles and books appearing every year dealing with liberal democracy as the hallmark of contemporary Western societies, it is astonishing that monarchy is rarely ever mentioned despite the fact that monarchy, and not a republic, is the constitutional form of quite a number of Western liberal states. I argue that considering the political reality of the established monarchies in Europe leads into a dilemma: either contemporary liberalism is not the kind of (...) theory it claims to be or it has to reconsider its central tenets. In conclusion, I show that the dilemma cannot be solved or avoided but needs to be embraced by conceiving liberalism not as a applied moral theory but as a political theory that leaves room for various symbolic self-understandings and acknowledges the crooked timber of historical realities. (shrink)

This article calls for a paradigm shift in the language, theory and practice of human rights: it calls for human rights to be reconceptualized as sentient rights. It argues that human rights are not qualitatively distinct from the basic entitlements of other sentient creatures, and that attempts to differentiate human rights by appealing to something distinctive about humanity, their unique political function or their universality ultimately fail. Finally, the article claims that moving to sentient rights will not lead to intractable (...) conflicts between rights, but to a more inclusive, fair and rationally defensible normative enterprise. (shrink)

At a 1990 conference on freedom of expression Wayne Sumner presented a paper arguing that there were good reasons to grant Canada’s hate propaganda law constitutional protection under the Canadian Charter of Rights and Freedoms. Fourteen years on he has repudiated the same thesis at much greater length in this meticulously researched, beautifully written, and exhaustively argued book. The book was a finalist for the 2005 Donner Prize, a prestigious book prize for a non-fiction work on Canadian public policy. The (...) book is written in an easy and accessible style, despite presenting arguments of considerable sophistication. It is the first time a philosopher has been so honoured by the Donner judges, and Sumner richly deserves such an honour. The book is resolutely consequentialist in its argumentation. In fact, it represents the most sustained and articulate application of Mill’s so-called Harm Principle to issues of practical policy that we have seen for some time. The book is appropriately dedicated to H.L.A. Hart and Joel Feinberg. They would have been proud to be associated with it. (shrink)

Anticipation is one of the main goals of new governance models, such as Responsible Research and Innovation. However, there is not a single mode of anticipation in this model. Two approaches can be addressed within the RRI framework: a socio-empirical one, which tends to underline the role of the democratic processes, aimed at identifying values on which governance needs to be anchored ; and a normative one, which stresses the role of EU goals as ‘normative anchor points’ in governance. These (...) two approaches also address two different models of anticipation: one based on the construction of shared pathways for reflexivity on the purposes of innovation, the other based on the progressive implementation of constitutional goals in risk assessment and management tools. However, both can be deemed partially unsatisfactory from the standpoint of human rights since one puts individual rights in the middle of the ‘values lottery’ where any participatory process ultimately leads; the other can be inadequate since fundamental rights are balanced alongside other goals and thus can be sacrificed, exposing the system to possible adverse court decisions. The normative framework of human rights can help to counterbalance both models aimed at maximising inclusion and those aimed at pursuing constitutional normative principles at the basis of technologically advanced societies, strengthening their dimension of anticipation according to a rights-based perspective. (shrink)

Empirical research has transformed our understanding of autocratic institutions. Yet democratic theorists remain laser-focused on ideal democracies, often contending that political equality is necessary to generate democratic authority. Those analyses neglect most nonideal democracies and autocracies – regimes featuring inequality and practices like gerrymandering. This essay fills that fundamental gap, outlining the difficulties of applying theories of democratic authority to nonideal regimes and challenging long-standing views about democratic authority. Focusing on autocrats that lose elections, I outline the democratic authority of (...) nonideal, flawed procedures. Flawed elections are unjustifiably biased toward incumbents. But under certain conditions, ignoring an incumbent’s loss would require not treating one’s fellow citizens as equals. Under those conditions, therefore, citizens are bound to obey those electoral outcomes – that is, flawed procedures can possess democratic authority. (shrink)

Much discussion of the ethics of participation focuses on electoral participation and whether citizens are obligated or can be coerced to vote. Yet these debates have ignored that citizens must first pay attention to politics and make up their minds about where they stand before they can engage in any form of participation. This article considers the importance for liberal democracy of citizens paying attention to politics, or attentive citizenship. It argues that the democratic state has an obligation to cultivate (...) interest in politics and that this obligation authorizes means up to and including some forms of coercion. The argument is that when citizens are inattentive to politics, it undermines political equality and social justice because it undermines what John Rawls called the fair value of the political liberties. The importance of these ends for liberal democratic states requires them to take steps to promote attentive citizenship. (shrink)

Why do the United States reserve the right to be called “America” by conferring the “Americas” to the whole continent?, is that a clear sign of discrimination or supremacy or both? Ideologically, America refers to the United States of “America” excluding other regions such as Latin America, central or South America. This leads some scholars to explain convincingly that, beyond this subtle grammatical difference, the Anglo-ethnocentrism in the United States has been drawn to make their citizens believe they are unique, (...) outstanding, and special. Basically, this belief allowed not only to fight against the political enemies in Europe or in any other geographical point, but also to control the incipient worker union leaderships. What merits further attention, anyway, is the sentiment of exemplarity instilled by the founding parents of this nation. Fear was historically a mechanism of control employed by US governments at different stages in several ways. Our intention is not only to review how the fear disciplined by the claims of work-force, but also explain why the sentiment of exemplarity and fear are inextricably intertwined. (shrink)

O objetivo desse artigo é mostrar de que modo um problema no domínio da teoria contemporânea do direito suscita questões que podem encontrar esclarecimentos na filosofia de Thomas Hobbes. Para tanto, será primeiramente analisada uma decisão da Suprema Corte norte-americana que retoma um debate constitucional aberto há já quase vinte anos e que versa sobre os direitos civis1. Nesse contexto, a noção de República em Hobbes será apresentada enquanto fornecendo uma teoria sobre a interpretação jurídica que permite apanhar o bom (...) lado nesse debate. (shrink)

In this article, I argue that political philosophers like Rawls and Habermas that characterize their methods as non-metaphysical or postmetaphysical depend on constitutions in order to provide a positive and public reference point for democratic participants. Michelman shows how this dependency is problematic, by contending that disagreement about the meaning of constitutional rights and the indeterminacy of their application undermines the rationality of consensus. I argue that his concerns raise serious problems for Rawls’ theory. Habermas, on the other hand, has (...) some tools to deal with Michelman’s critique — namely, his distinction between discourses of justification and application, and his idea of constitutional patriotism — but he must concede that much of the substance of constitutional democracy is basically up for grabs. I conclude by suggesting why these consequences are less threatening than they may seem. (shrink)

Among contemporary forms of constitutionalism, Luigi Ferrajoli’s Garantismo may be considered as the rather unfashionable attempt to build up a comprehensive and multi-layered theory, which still takes seriously the positivist heritage. This paper offers, in brief outline, a synthetic view of the social setting, the philosophical background, and the basic features of this conception of constitutionalism, when compared with legal positivism and other mainstream forms of (neo)constitutionalism.