ecientemente hemos podido asistir a una revitalización del debate sobre la primacía del Derecho de la Unión Europea y los eventuales límites de la misma que algunos tribunales constitucionales defienden para preservar la identidad constitucional y otros principios esenciales del orden jurídico interno. -/- El Tribunal Constitucional Federal alemán ha declarado, en sentencia de 5 de mayo de 2020, que la sentencia Weiss y otros del Tribunal de Justicia de la UE es ultra vires. La reacción mayoritaria institucional y doctrinal (...) ha sido la de cuestionar la decisión del Tribunal alemán, así como el pluralismo constitucional que entienden está detrás de la misma. -/- Este trabajo, desde una perspectiva abierta y plural, trata de aproximarse al debate constitucional, identificar algunos de los problemas existentes en el orden jurídico multinivel europeo, y defender que, no siendo las cosas fáciles, se hace más necesario que nunca huir de posiciones absolutas y buscar el diálogo entre tribunales. (shrink)

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 Constitution is the highest law of the country, while international law is a field of law that deals with the rights and obligations between countries. The essence of international community is of decentralized nature, in which the legal order is formed according to the principle of sovereign equality. However, there are many perspectives that approach the international community and international law from a universalistic and idealistic viewpoint. In other words, if the positivist and pseudo-oriented view of international law is (...) the reality of international community and international law, the universalist or idealist perception of international law can be said to be their goals. It is true that those two perspectives on international community and international law are neither omnicient nor all-perceiving, but complexly intertwined. The Constitution and international law, which can be considered the two axes of public law, are closely interrelated to the formation of a modern absolute state and civic democracy. The absoluteness of state power and civic democracy are doomed to fate our present and our future. This is not only such fundamental political order, but it also has become a foundation for the development of modern and contemporary order of law. And the two dimensions of order, politics and law, are developing in a dialectical manner. Under this background, this paper aims to provide a harmonious view sprucing up the reality of public law that penetrates both of the international and domestic society within a large framework. It is for research purpose and needs an effort of work by reviewing and analyzing the essence, commonalities, and differences among various adjacent concepts of the Constitution and international law discourse. This paper first begins with a discussion by presenting the historical development of existing hard legal system that penetrates the Constitution and international law through their realistic framework. Furthermore, we look at the softness of international law, conceptual discourse on the international law and world law, international constitutionalism and constitutional theory, and a compendium of world administrative law. We look at the background for the development of these commentaries, the main topics of discussion, and their commonalities or differences. Finally we briefly diagnose and place the future of new sermons that needs to be adduced due to changes in the international community. (shrink)

This book can be useful for college seniors or graduate students who have studied law to some extent. It also can inspire law professors, business people, Members of the National Assembly, administrative officials, in addition to all intellectuals who suffer from whipping or beating due to an incomprehensible legal structure and mandates relevant with their routine desk work. -/- Chapter 1 of this book examines the essence of existing constitution and international law theories directed to the nature of state power, (...) market and civil democracy in a rapidly developing international society in the age of globalization. Most of discussions had been expended to introduce and survey a new legal perception and its logic of reasoning as a law indebted to the concept of world law theory. Chapter 2 studies the core contents of international law according to the chapter on international law and international relations of the United States. It was spelled out to comply with the explanations and comments incorpated within the 4th edition of the Restatement of the United States. -/- Chapter 3 refers to the legal system characterized as a public law and concerning a regulatory measure over the world market by states. An idealistic class of citizens, who emerged for a capitalist hegemony, generally have a status of sovereign, which came into being as owed to their revolution. However, it is also true that the citizens as an individual or laity are required to obey the regulations of state in the market. The interstate commerce clause of the United States Constitution is generally viewed as being shunned with an intention that state governments' measures to regulate the market should not hinder the prosperity of US market at the federal level. WTO laws known to be the most important international trade law, in fact, have a structure similar to the interstate commerce clause of United States Constitution. In this point of view, scholars gave a name to WTO as the world economic constitutional system. In the same vein, WTO member countries should not hinder the prosperity of a single world market as if the Clause requires pursuing that of a single federal market. Chapter 4 summarizes the core of legal norms, which is purported to study the jurisprudence of global market in coverage of fundamental principles espousing the freedom of contract, laws of sales, contract, documentary letter of credit, basic rule on the agencies of civil law. Therefore, we will be exposed to the laws of United Nations convention on the sales contract (CISG), the United Nations contract law, popularly cllled Principles as well as short introductions for the agency laws and cases relating the civil dispute of documentary L/Cs. -/- I am unfeigned to confess that this book is neither thorough nor complete in terms of the craftsmanship of necessary exhaustiveness. So its contents may insufficiently cover issues or discussions as contrary to the author's purpose. However, I have exerted utmostly to include and cover as much as possible what I think is necessary for readers to grasp new theories and basic principles. I plan to add necessary revisions and supplements as opportunities arise. As a scholar, I always feel cautious and sorry about publishing books. However, the development of global market, civil democracy, and the universal legal system related to them is certainly Darwinistic and an evolutionary joy that can be duly sensed in the field of law. I dare to recommend that readers can enjoy. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular conceptions (...) of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

The present religious constitution of the Federal Republic of Germany is the product of protracted historical conflicts and political settlements that began in the sixteenth century. The mediation of these conflicts and settlements and the piecemeal establishment of the constitution was the achievement of imperial public law and diplomacy. Germany’s religious constitution—a secular and relativistic juridical framework protecting a plurality of confessional religions—pre-dated liberalism and democracy, and owes nothing to normative philosophical constructions of individual freedoms and rights, or social justice (...) and moral community. Rather, it was the product of a political compromise between warring confessional blocs, and of the institutions of public law that were the instruments and effects of this compromise. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three (...) desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

Reasoning by default is a relevant aspect of everyday life that has traditionally attracted the attention of many fields of research, from psychology to the philosophy of logic, from economics to artificial intelligence. Also in the field of law, default reasoning is widely used by lawyers, judges and other legal decision-makers. In this paper, a philosopher of language (Carlo Penco) and a philosopher of law (Damiano Canale) attempt to explore some uses of default reasoning that are scarcely considered by legal (...) theory. In particular, the dialogue dwells on the notion of literal meaning, witness testimony, and the problem of disagreement among experts in legal proceedings. The paper is intended as a sort of brain storming useful to identify new lines of research straddling philosophy of law, cognitive psychology and philosophy of language. (shrink)

This paper develops a normative framework for both conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change, with special attention to the recent ferment of constitutional experimentation. The paper’s basic methodological orientation is interdisciplinary, combining research in comparative constitutionalism, political science and normative political philosophy. In particular, it employs a form of normative reconstruction: attempting to glean out of recent institutional innovations the deep political ideals such institutions embody or attempt to realize. Starting from the (...) assumption that contemporary constitutional democracies are attempting to realize the broader ideals of deliberative democratic constitution (ideals outlined briefly in the first section), the paper proposes an evaluative framework, comprised of six criteria, for assessing various mechanisms of constitutional change. It argues that democratic forms of constitutional change embody six distinct ideals—operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness—and that these ideals can be used to gauge the normative worth of different mechanisms for carrying out such change. The framework is developed with reference to recent constitutional developments (e.g., in Venezuela, South Africa, Columbia, Bolivia, and Iceland) highlighting distinct criteria and showing how they appear to capture the general direction of institutional innovation. The paper conjectures that the set of six criteria yield the best normative reconstruction of the crucial ideals embodied in the constitutional change mechanisms of contemporary constitutional democracies, and so, ought to be used for purposes of evaluating institutional design proposals. (shrink)

A recent attitudinal change towards animals has led many people to recognize their family structures as multispecies families, that is, a family composed of human members and animals of other species, united by affective ties, and solidarity, in a horizontal relationship, and even where there is mutual recognition. This social phenomenon requires that the legal concept of family, which today more than ever accepts the plurality of family structures, also includes multispecies families. The protection of multispecies families is necessary and (...) possible if one considers that in Latin America today, a post-positivist legal system prevails that is aimed at protecting fundamental rights and freedoms. This legal system allows for a broad interpretation of rights such as the right to free development of personality and the right to family integrity, rights that already serve as foundational for the recognition and protection of multispecies families in Latin America. (shrink)

The rise of constitutional self-government in early modern Europe, I argue, owes much to a nationalist liberation narrative pioneered by French Huguenot François Hotman in Francogallia (1573). In response to appeals by absolutist thinkers to Ro- man law, which put the power of the king beyond legal or constitutional restraint, Hotman wove together tales of the heroism of ancient Gauls and Franks wresting their native liberties back from the Romans with a theory of constitutionally limited government grounded in (...) the common law of France. This type of narrative was adapted by Dutch and English thinkers who sought to defend constitutionalism in their respective countries. Through this examination of early modern liberation narratives, I argue we can gain insight on the relationship between nationalism and resistance to autocratic governments and the formation of regimes consistent with the principles of constitutional self-government. (shrink)

The rise of populism and its consequences – such as democratic backsliding, the erosion of constitutional principles, and the weakening of the rule of law – are among the most pressing issues facing comparative constitutional scholars today. To address these emerging challenges, the Unconstitutional Constitutional Amendment Doctrine (UCAD) has emerged as the most promising remedy for the “third counterwave of democracy”. However, a fundamental problem with UCAD is how to apply it effectively without undermining constitutional democracy, (...) as it is often criticised and deemed illegitimate from the perspective of democratic principles. (shrink)

The aim of this study is to proof the argument – i.e. ‘there are significant linkages amongst tolerance, hybrid identities and migration.’ These linkages can be comprehended by means of conceptualising extensions of hybrid identities in aggregate trans/inter-migration processes. It can be put forward that arising hybrid identities are embedded in a blurring structure of thoughts, beliefs, states of affairs, facts, belongings and so forth. From multiculturalism and cosmopolitanism viewpoints, it is argued that tolerance and migration ought to be analysed (...) in frame of sociology of law, human rights, international migration law, and of course the European Union law. So far, normative arguments and soft law approaches are very much well integrated with social aspects of migration, tolerance, identity and culture. In this context, the study examines to what extent cultural and human components are protected by law in multiple levels from an interdisciplinary perspective. In this framework, it is crucial to raise the research enquiries: What are possible criteria for the limits of tolerance? To what extent tolerance is related to human rights and morality? What ought to be the limit of tolerance towards hybrid identities in multicultural and cosmopolitan societies? In a consistent manner, the criteria and standards developed by some leading scholars were reconstructed and discussed throughout this paper. These criteria and standards are both moral (part of a universal system of morality) and legal (international, supranational, or national – i.e. constitutional). In order to apply such standards their validity was discussed (i.e. the respective normative power has the norms at the various levels). In the case of morals, their difference to particular ethnic systems was established (i.e. criteria by which the two can be distinguished). Then the research argument was elaborated on whether and how the legal standards comply with the moral standards, how national standards comply with supranational or international standards. Likewise, the study highlights the crucial contributions of “World Society and World System Paradigms” that are associated with social space, global civil society, cosmopolitanism, ethnic diversity, cultural hybridity, human rights activism and public sphere. Recent debates in Refugee Studies (e.g. Syrian Refugee Crisis, Dual and Multiple Citizenship Issues and so forth) highlight the fact that the European Union needs to consider new aspects of tolerance for hybrid identities and tolerate cultural rights of hybrid identities, create cohesion in communities and establish intercultural dialogue amongst home-states and host-states. Sanguinely, the efforts of hybrid identities are strengthening the relations between home-host states and these ought to attract some considerable attention. The authors of this study hope that their endeavours may contribute somewhat towards that. (shrink)

Phenomenological discussions of sociality have long been concerned with the relations between the I, the You, and the We. Recently, dialogue between phenomenology and analytic philosophical work on collective intentionality has given rise to a corpus of literature oriented around the first-person plural 'we'. In this paper, I demonstrate how these dominant accounts of the 'we' are not exhaustive of first-person plural experiences as such. I achieve these aims by arguing for a phenomenological distinction between an experience (...) of being part of a 'we' compared to an experience of being part of an 'us'. To have a 'we-experience' there must be a plurality of (unified) subjects sharing in an experience together such that the experience has the phenomenal character of being ours. An 'us-experience', on the other hand, requires the experiential salience of an external 'Third' in a way which is constitutively significant. Drawing on Sartrean social ontology, I argue that the 'us' is distinct from the 'we' on three levels, all of which pertain to the constitutive and unifying role of the Third. I then outline two forms of us-experiences: (1) the experience of being grouped and (2) the experience of apprehending one's seriality. (shrink)

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely (...) originate with human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? -/- This open access book traces the promise and paradox of the American rule of law in three interwoven ways. -/- It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional (...) framers to see the rule of law ambitions its foundational institutions express? -/- It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. -/- Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals. (shrink)

Global law settings are characterized by a structural pre-eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply (...) chains and human rights. Both colonial law and human rights can be understood as serving a constitutionalizing function aimed at stabiliz- ing and facilitating connectivity. This allows for an understanding of colonialism and contemporary global governance as functional, but not as normative, equivalents. (shrink)

Sometimes constitutions fail. The unprecedented election of Donald Trump, a populist insurgent who lacks the prior political experience or military service of all presidents before him, is such a sharp break in American historical experience that it raises questions as to whether something is deeply amiss with the constitutional order. Constitutional failure is not uncommon. A path-breaking global study of national constitutions shows that on average, they last only nineteen years. The U.S. Constitution is an uncommon outlier and, (...) as such, is accounted by many a long-running success story. But could a bell be tolling for American constitutionalism? In this Essay, I assess the meaning of Trump’s shocking rise for the future of our constitutional order. The shock, of course, was not the election of a Republican president. There have been many Republican presidents since Lincoln, each making their own distinctive contribution to the American tradition. Yet, there are good reasons to think this time around is different. The efficacy and, perhaps, stability of our constitutional order are in question, and we should try to understand why. (shrink)

Offers an original interpretation of Plato’s Laws and a new account of its enduring importance. Ballingall argues that the republican regime conceived in the Laws is built on "reverence," an archaic virtue governing emotions of self-assessment—particularly awe and shame. Ballingall demonstrates how learning to feel these emotions in the right way, at the right time, and for the right things is the necessary basis for the rule of law conceived in the dialogue. The Laws remains surprisingly neglected in the (...) scholarly literature, although this is changing. The cynical populisms haunting liberal democracies are focusing new attention on the “characterological” basis of constitutional government and Plato’s Laws remains an indispensable resource on this question, especially when we attend to the theme of reverence at its core. (shrink)

Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of (...) the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order. (shrink)

Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis. -/- The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision (...) is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance. -/- The clause meaning thesis claims that the semantic content is given by the conventional semantic meaning (or original public meaning) of the text with four modifications. The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time. The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts. The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say. The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself. -/- The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis. -/- The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law. -/- We can summarize semantic originalism as a slogan: The original public meaning of the constitution is the law and for that reason it should be respected and obeyed. The slogan recapitulates each of the claims made by semantic originalism, but it is potentially misleading because it does not clearly distinguish between the semantic claims made by the fixation and clause meaning theses, the legal claim made by the contribution thesis, and the normative claim made by the fidelity thesis. -/- Part I introduces the four theses. Part II is entitled An Opinionated History of Constitutional Originalism, and it provides the context for all that follows. Part III is entitled Semantic Originalism: A Theory of Constitutional Meaning, and it lays out the case for original public meaning as the best nonnormative theory of constitutional content. Part IV is entitled The Normative Implications of Semantic Originalism, and it articulates a variety of normative arguments for originalism. Part V is entitled Conclusion: Semantic Originalism and Living Constitutionalism, and it explores the broad implications of semantic originalism for living constitutionalism and the future of constitutional theory. (shrink)

About Plato's Laws, Aristotle rather uninspiringly wrote, "Most of the Laws consists, in fact, of laws, and [Plato] has said little about the constitution. He wishes to make it more generally attainable [κοινοτέραν] by actual city-states, yet he gradually turns it back towards the Republic". Julia Annas's new volume seeks to counter such dismissive interpretations of Plato's Laws. Rather than view the work as Plato's final written dialogue, written by a crabby, old, pessimistic author, she argues that "the Laws (...) presents us with a remarkably fresh and original approach to social and political issues", one grounded in views about law-abidingness and cosmic law which is novel in the... (shrink)

The Section 230 debate is a proxy for reevaluating constitutional fundamentals. The modern right and the modern left, both attacking Section 230, have abandoned liberalism, together with free speech, public private divide, and the politics of neutrality. Instead of believing in First Amendment value pluralism, each side of the spectrum wishes to realize their own positive normative vision for the political community which, today, is largely defined in the realm of digital culture. Each side recognizes the political other as (...) an enemy to their own utopia, wishing to control, censor, or simply become sovereign thereover. These existential politics of the “culture war” are formally circumscribed by liberal constitutionalism, including the state action doctrine. Regardless of any formal change of the First Amendment interpretation, the government will continue to exercise soft pressures on platforms, thus outsourcing censorship, and creating a novel regulatory dialectic of pressure and cooperation. The government, to become truly sovereign, realize its normative vision, and exclude the other, needs to delegate part of its sovereignty to virtual governments. The Constitution of the United States may thus be undergoing an informal amendment conducted through the private hands of internet intermediaries, which has largely gone unnoticed in the scholarly debate over Gonzalez v. Google, digital sovereignty, and platform regulation. (shrink)

This paper surveys, not exhaustively but rather in summary, the development of legal philosophy surrounding the constitutional and international laws as corresponding that of world politics from the first world war through the formation of WTO governance. The world has changed gradually thus far while the westerners have long forge their hegemony through the recent US one. Before the dusk of new millennium, the political scientists entertained the version of US uni-pole in terms of world politics. Its version have (...) confront new development of world politics surrounding the rise of EU, China, and Japan. In this backdrop, they frequently mention bi-polar or multi-polar consequence of world politics. The politics are normally juxtaposed to the legal regime where the constitutional and international law reflect the fare of world politics. In other words, it subjugates in some form of legal regime whether the constitutional law surfaces strongly over international dimension for some superpower. In other dimension of power balance, the international law surges to legally govern the world politics. According to Rubenfeld, the first case represents a democratic constitutionalism while the later case, in legal terms, is related with the international constitutionalism. I would propose in thesis purpose to divide three stage of world politics. The first one is surge of the German empire to pursue world hegemony at the start of two world wars. In this period, the constitution has highlighted in ways of resolutionism, incorporatism or unilateralism. The second period runs from post world war to 190's while the pacifists or cold war dominate the world politics. In this era, UN works in the least as a symbol of world politics, and the international laws mater over the domestic laws. Hans Kelsen, a German legal positivist, led the post-war world politics in legal ways as demonstrated in his foundational influence over the formation of United Nations. In this flow, I suppose that the world politics turned on the pacificist road until the rise of US hegemony. As the bipolar system collapse upon the dismantlement of Soviet Union, US rise as a unitary world hegemony. In reflection, the unilateral constitutionalism enjoys an influential passion of that nation. As EU and China started to voice as political power in the international dimension, the international law and constitutionalism flourish while we cognize WTO as one of crucial products in such point of view. Hart, a European legal positivist is again contested to prove who governs the world in terms of legal theory adapted to the WTO's intrinsic and its function. (shrink)

In the midst of rapid transformation and interstate competition within the global village, the effectiveness and prestige of national government should be any priority to measure a good order of constitutional democracy, especially for the nations to be called on service provision and public welfare. The times of ideology and philosophy had waned while the diverse civilizations clash, in which the technological advance and socio-economic environment inflict a tremendous change for the private and public mode of our contemporary livings. (...) In fact, the increasing diversity and volatility of community has brought the crisis and challenge against the constitutional tradition. In this backdrop, the paper examines the relationship of those two values embedded on the states of modern constitutionalism - limited toward the modern administrative state through this new millenium. The law or right and democracy as a political ideals is not futile merely with tweaks, but foundational or inseparably entwined into the value system of modern minds. We can be clear if to imagine of the times for the divinity of monarchy or feudal piety. The civil revolution for modern constitutionalism created a new order of society and nations began or manage to practice their national politics and administration on its basis. The recent tumultus in South Korea, stretching from the candlelight vigil through theimpeachment and incrimination of lady president, actually imprinted a deep wake for the politics of Koreans. In this line of thought alignment, the concept of democratic experimentalism engrafted with the rule of constitution was revisited that could give a lesson as a sedative meliorism for the radicalism or mob politics. Additionally, I presented some of brief evaluation about the Korean ways by gathering my thoughts on the candlelight vigil. Despite both of strengths and weaknesses on the theory of democratic experimentalism, I cordially suggest that it could work as a model to meet the increasing need of national competitiveness, participation, information sharing and learning as well as the protection of civil rights embedded on the constitutional tradition. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated (...) unequally, while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

Abstract: In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by (...) the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802. -/- Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV). -/- My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis. -/- Keywords: Equal protection, double effect, intention, physician-assisted suicide, Constitutional Law, Bioethics. (shrink)

The separation of powers principle deeply heritaged in the US constitutionalism affected and continues to influence the law and public policy in the nation. The tripartite scheme of government was quarreled over the history how we have to perceive any best adequate interaction among the Congress, Executive and Judiciary. The Constitution itself merely quibbles on this point, and the Supreme Court justices, in some cases, would not be done as a clear cut for the scope of constitutional power conferred (...) on each branch. As the stare decisis is a rule in the common law countries, it is less prospective to anticipate that a quantum leap can be made for the new paradigm of constitutional government in the US. In this challenge, the paper deals with the sensitive area of three powers involving the issue of presidential privilege and immunity, justiceability and standing, as well as judicial control of public agencies. In the course of discussion, several landmark cases were illustrated to make a point for the angulated controversies, typically involving the pressing pubic issues and officers of absolute or qualified immunity. Given the diverse structure of government, the US model had been followed by many new born republics in 20th centuries. The author would wish that the paper provides a comparative lesson for the circle of those countries. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

Resumen: Tomado en serio, el empirismo parece abocar a la negación de los derechos humanos; al menos entendidos como expresión de la naturaleza humana. Bajo esta óptica, K. Olivecrona rechaza explícitamente todo Derecho natural, por considerarlo una noción metafísica. En cambio, cuando describe el Derecho positivo, se encuentra con que éste parece asegurar un determinado orden de valores. Olivecrona, además de describir este dato, en diversos escritos asume dichos valores e incluso los defiende. Esta última postura no es muy coherente (...) con una metodología que niega el conocimiento moral. Seguramente por ello, con el paso del tiempo, Olivecrona va abandonando la defensa de dichos valores e, incluso, marginando su interés por constatarlos empíricamente. El Derecho queda reducido a mera fuerza organizada y monopolizada por el Estado. Pero esta renuncia escamotea otro hecho empírico: la opción general y radical a partir de la segunda Guerra mundial de los modernos sistemas constitucionales por separar ley y derechos, constituyendo a los más básicos como fundamento del orden político y jurídico. A la vista de este fenómeno, pensamos que no sólo es posible explicarlo, sino que incluso se puede justificar, en la medida en que la institucionalización de estos derechos fundamentales no es sólo moralmente debida, sino, de un modo más específico, jurídicamente debida. -/- Abstract: Seriously taken, empiricism seems to lead to the denial of human rights; at least if they are understood as the expression of human nature. In this optic, K. Olivecrona explicitly rejects any natural law, for being a metaphysical notion. However, when he describes positive law, he finds that it apparently assures a specific set of values. Olivecrona, besides describing this datum, accepts and defends these values in various writings. This last choice is not very coherent with a methodology which denies moral understanding. Probably this is the reason why he gradually abandons the defence of those values and progressively drops his interest in validate them empirically. Law is reduced to a mere organized force monopolized by the State. But this renunciation overlooks another empirical fact: after the Second World War modern constitutional systems have generally and radically opted to separate Law and rights and moreover some of these have been set up as the basis of the political and legal order. In view of this phenomenon, we strongly believe that it is possible to explain it, but even to justify it, considering that the institutionalization of these fundamental rights is based on a specific demand of justice. (shrink)

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)

This article advances a critical analysis of John Rawls’s justification of liberal democratic nuclear deterrence in the post-Cold War era as found in The Law of Peoples. Rawls’s justification overlooked how nuclear-armed liberal democracies are ensnared in two intransigent ethical dilemmas: one in which the mandate to secure liberal constitutionalism requires both the preservation and violation of important constitutional provisions in domestic affairs, and the other in which this same mandate requires both the preservation and violation of the liberal (...) commitment to international legal arrangements and to the rule of law generally. On this view, the choice to violate constitutional provisions and international legal arrangements is evidence of nuclear despotism. Moreover, this choice does not imply that the ethical foreign policy dilemmas were resolved. Instead, it implies that the dilemmas force liberal democratic governments into implementing ethically paradoxical policy outcomes. (shrink)

The main claim of this chapter is that planetary defense against asteroids cannot be implemented under a decentralized model of democratic global governance, as espoused elsewhere in this book. All relevant indices point to the necessity of establishing a centralized global political authority with legitimate coercive powers. It remains to be seen, however, whether such a political system can be in any recognizable sense democratic. It seems unconvincing that planetary-wide physical-threat, all-comprehensive macrosecuritization, coupled with deep transformations of international law, global (...) centralization of core decision-making powers, de-stigmatization of nuclear weapons and the like can proceed, succeed, and be implemented in a non-hierarchical international system where planetary defense constitutes only one regime among many, and where states basically remain the decisive actors. Although rationally and scientifically robust, the project suffers from oversimplification, as well as naivety with respect to how both international and domestic politics works. Among other topics, this chapter discusses problems associated with the rule of law and constituent powers, political representation and sources of legitimacy, conditions of multilevel collective action, or limits of theoretical idealization. The general message is that the planetary defense community needs to be more aware of the social and political context of its own enterprise. (shrink)

Within the classical tripartition of powers, courts and tri- bunals have always held the most marginal role, limited by the interpretation of laws. In the last decades, however, judiciaries have been increasingly addressed with the task of resolving moral issues and political questions, drawing power away from representative institutions. The intention of this essay is to analyse the judicialisation of politics and how this emergent phenomenon is slowly reshaping the skeleton of political structures and mutating the political environment — particularly (...) within the United Kingdom. In order to provide beneficial outcomes, this phenomenon should be accompanied by an attempt to embrace more democratic principles, seeking to promote a more inclusive space in the light of greater political responsibility, dialogue, and plurality of opinion. (shrink)

Health data processing fields face ethical and legal problems regarding fundamental rights. As we know, patients can benefit in the Digital Era from having health or medical information available, and medical decisions can be more effective with a better understanding of clinical histories, medical and health data thanks to the development of Artificial Intelligence, Internet of Things and other Digital technologies. However, at the same time, we need to guarantee fundamental rights, including privacy ones. The complaint about ethical and legal (...) requirements – including constitutional ones – is particularly relevant in the processing of health data. This paper is focused on the problem of the consent required to the processing of health data and the exceptions established in the new European Union General Data Regulation, which cover the processing of this special data -within other aims- for scientific, historical and statistical research as legitimate purposes, which include biomedical research. The conclusion is that these open concepts are problematic both for the protection of privacy rights and for the legal security/certainty of research. On one hand there are several interpretation problems, regarding the processing of health data and the protection of information privacy. On the other hand, professionals must follow the Multilevel legal framework and to guarantee fundamental rights in the processing of health data, so there are also problems of interpretation for researchers. Therefore, we need a clearer legal framework for biomedical research. (shrink)

The historical roots of despotism in Russia are long, the tradition of arbitrariness seems to be unbreakable. But this status quo can't persist endless: Growing mass protests indicate that the time nears when Russia will unhorse the self-constituted disposers and will demonstrate again its re-invention potential. -/- This expected and hoped egression from despotism into a new phase of Russian history needs to be carefully elaborated and arranged. Starting with the writing and publishing of my essays following mass political protests (...) in the former Soviet Union, namely, in the Russian Federation in fall and winter of the year 2012, I work permanently on redesigning political system. One year later, i.e. 2013, I released a book dedicated those events, and in the same year I wrote the draft of a new constitution, now revised and adopted by the community Rus’ whose member I am since 12.12.2018. -/- 2017 I registered an internet domain reserved for the Foundation intended to promote the constitutional order in Russia. Since that time, I designed the site of the Foundation, fashioned the identity card, and published several documents related to promotion and establishing of the constitutional order (CO). -/- All skilled designers and creative thinkers are invited to take part in this process as co-workers and creators of a new political system. (shrink)

The chapter tackles the complex, tension-ridden, and often paradoxical relationship between relativism and conservatism. We focus particularly on radical conservatism, an early twentieth-century German movement that arguably constitutes the climax of conservatism’s problematic relationship with relativism. We trace the shared genealogy of conservatism and historicism in nineteenth-century Counter-Enlightenment thought and interpret radical conservatism’s ambivalent relation to relativism as reflecting this heritage. Emphasizing national particularity, historical uniqueness, and global political plurality, Carl Schmitt and Hans Freyer moved in the tradition of historicism, (...) stopping short of full relativism. Yet they utilized relativistic elements – such as seeing irrational decisions or the demands of “life” as the basis of politics – to discredit notions of universal political morality and law, thereby underpinning their authoritarian agendas. Oswald Spengler, by contrast, took the relativistic impulses to the extreme, interweaving his conservative authoritarianism and nationalism with full-fledged epistemic, moral, and political relativism. Martin Heidegger has recently been perceived as the key philosopher of radical conservatism, and his thought arguably channeled antimodern aspects of historicism into contemporary political thought. We conclude by analyzing how some radical conservative arguments involving cultural relativism and plurality still reverberate in contemporary theorists such as Samuel Huntington, Aleksandr Dugin, and Alain de Benoist. (shrink)

1 Introduction1 In the 1980s, hermeneutics was often incorporated into deconstructionism and literary theory. Rather than focus on authorial intentions, the nature of writing itself including codes used to construct meaning, socio-economic contexts and inequalities of power,2 Gadamer introduced a different perspective; the interplay between effects of history on a reader’s understanding and the tradition(s) handed down in writing. This interplay in which a reader’s prejudices are called into question and modified by the text in a fusion of understanding and (...) topic revitalized the study of the printed word. Gadamer’s turn to language for understanding the meaning of Being also appealed to the post-modern antipathy toward modernity and metaphysics.3 If the truth and validity of interpretations are limited to communities of language, then our mode of being in history cannot but be historical. This point of view rendered Gadamer’s phenomenological hermeneutics vulnerable to the critique of moral and epistemological relativism. However, Gadamer’s theory of interpretation also stems from re-examination of the beginning of knowledge in the Pre-Socratics and Plato, and on this basis, is receptive to another dimension of inquiry than that which was trending in North America. -/- At the East-West Center, University of Hawai’i at Manoa in 1982, Chung-ying Cheng for the first time introduced onto-hermeneutics to an audience of esteemed philosophers including Li Zehou, Ren Jiyu, Feng Youlan, and Zhang Liwen.4 In contrast to schools of deconstruction and literary theory that had disengaged the interpreter from trans-historical sources of meaning and truth, Cheng explained that interpreters exist within a cosmological order inextricable from responsibility to harmonize Heaven and Earth in creative acts of interpretation. By integrating Chinese cosmology into hermeneutics through ontology, he tacitly challenged philosophers in the West to re-examine assumptions about humanity’s place in nature and by implication, Gadamer’s recovery of the beginnings of knowledge in Western philosophy. -/- Cheng’s Neo-Confucianism is inspired by the method and goals of Thomé H. Fang. The following words by Fang seem to prefigure, although in an indistinct and bundled way, aspects of Cheng’s philosophy including a Mencian theory of human nature, comprehensive observation, and creativity: “In the very process of living in concord with creative Nature, Man is charged with an ideal to be fully realized in the light of the principle of comprehensive harmony.”5 Like Fang, Cheng reinvigorates Chinese culture and language, but not solely in order to vindicate the insights of Neo-Confucianism. He has studied Western thought, from pragmatism and the analytic school to German idealism and phenomenology, to unlock and clarify philosophical concepts within the Yijing tradition and thereby render them intelligible to Anglophones. The result has been an awakening of Western scholars to the moral and cultural consequences of decoupling their thought from metaphysical foundations that are neither dogmatic nor doctrinal. -/- Not unlike the dialectic of Gadamer’s dialogue form, onto-generative hermeneutics integrates contrary positions on the same topic in order to blend both sides into a world philosophy, or as Cheng says, a “totalizing or integrative theory,”6 not to be confused with a theoretical rewording of a theory. On the contrary, the universal scope and relevance of hermeneutics stems from personal experience. Just as Gadamer, in response to faction and strife, immersed himself in Plato during the war years, and developed a method with which to harmonize opposites, so too, according to On-cho Ng, was Cheng moved by faction, strife and political persecution to develop a path toward unity.7 Gadamer taught at McMaster University in Hamilton, Ontario, and Cheng at the University of Hawai’i at Manoa among other institutions in North America. They facilitated trans-continental educational and cultural ties. Similar experiences yield similar insights irrespective of differences of time and place. Hence, authors in this issue who reside in Europe, China and North America, delineate the differences between Gadamer and Cheng, yet also, in light of Cheng’s onto-generative method and cosmology, develop integrative theories. Due to the page-budget restriction of the publisher, certain articles of this special theme will be subsequently published in the next issue. -/- 2 Integrative Theory This special issue of The Journal of Chinese Philosophy confirms a dimension of hermeneutics that Cheng has both motivated and inspired. The contributors do not abide by the conviction that since thought is mediated by language, interpretations cannot transcend culture. On the contrary, their research exemplifies the fruits of trans-historical onto-dialogical hermeneutics within limits defined by their field inquiry, organized into Parts I and II, around three themes: language, the philosophy of history and ethics. -/- Andrew Fuyarchuk introduces the theme of ontology in relation to Gadamer’s turn to language. Fuyarchuk argues that Chung-ying Cheng’s criticism of Gadamer’s hermeneutics is informed by Heidegger’s concept of Dasein and thereby overlooks how Gadamer’s Platonic-Pythagorean problem of the division between the One and Many is harmonized in the event of language, which in turn positions Gadamer in proximity to the presupposed grounds of receptivity in Cheng’s onto-generative hermeneutics. Lauren Pfister’s contributing article addresses the year 2000 meeting between Cheng and Gadamer in Heidelberg and expands the transhistorical grounds of meaning in Gadamer to matters of theology. Pfister’s summary of the written Chinese record of their conversation indicates that Cheng does not address the role of Christian philosophy and hence, the role of the inner word in Gadamer’s hermeneutics. This is important not only for detecting changes in Cheng’s philosophical development, but also for modifying his hermeneutics along the lines of a living conversation, possibilities explored by Pfister in a sequel to the article submitted to this issue. Nevertheless, by raising the issue of how Gadamer’s turn to language for understanding the meaning of Being extends possibilities in Cheng’s thought, Pfister anticipates the article by Katarina Gajdosova. She returns to the roots of Chinese thought during the Warring States period and broadens the meaning of names in recently excavated texts. Contrary to the conventions about how to understand terms, she appeals to both Heidegger’s ontology and Cheng’s notion of receptivity and creativity to reinterpret naming in relation to cosmology. Along the same lines, insofar as the event of Being is lingual, Jay Goulding captures its emergent structure in an evolving community of scholars and scholarship. He recalls his philosophical journey toward Cheng’s philosophy that begins in conversations with Gadamer at McMaster University in Hamilton, leads to Heidegger and Asian thought, expands into turning points with teachers and colleagues from various backgrounds that by increments contributed to Goulding’s formulation of “Daoist phenomenology.” -/- Although differing traditions guide their inquiries and research, Cheng and Gadamer recall the wisdom of the past to ameliorate the fragmentation in contemporary life. This leads them to re-examine the origins of philosophy; historical roots and thus sources of creative re-interpretations East and West whose affinities are developed in contributions by Hyun Höchsmann and Friederike Assandri. Höchsmann assesses convergences and divergences in the origins of Chinese and Western philosophy (Confucius and Socrates, the Yijing and Pre-Socratics) that culminates in pairing Gadamer’s understanding of paideia in the context of Plato’s political cosmology in the Timaeus with moral and social cultivation in The Western Inscription. She delineates the limits of this comparison which in turn justifies introducing Vattimo’s notion of locality. Assandri’s comparative analysis moves between India and China, Buddhism and Tang Daoism. Based on Gadamer’s argument that writing detaches concepts from their cultural moorings, she defines and applies three levels of understanding in onto-generative hermeneutics to Buddhist terms that were assimilated into the Benji Jing and in so doing clarifies essential dimensions of Daoism. -/- Contributions by Stephen Palmquist and Nicholas Brasovan position Cheng in relation to Kant and Gadamer by way of Aristotle’s ethics respectively. On the one hand, Palmquist plots Cheng’s evolving criticism of Kant’s moral philosophy and draws on crucial dimensions of Gadamer’s hermeneutics to reposition that criticism in a constructive relation to Kant’s emphasis on the philosophical conditions of morality while also indicating how religious dimensions of his thought answer Cheng’s concerns for lived moral action. For Palmquist, Gadamer enables a constructive criticism of Cheng. On the other hand, Brasovan compares Cheng’s Yijing-based account of moral deliberation with Gadamer’s Aristotelian-based ethics and reasons that in contrast to Cheng, Gadamer’s hermeneutical consciousness is disengaged from practical knowledge. For Brasovan, Cheng is a constructive critic of Gadamer. Palmquist and Brasovan’s divergent angles on Gadamer and Cheng map onto a dialectic of contrast and complementarity that constitutes the inner logic of Cheng’s philosophy. In other words, Gadamer and Cheng ought to be read alongside one another for the sake of removing discrepancies and contradictions, which constitutes the organic structure of their thinking. -/- 3 Our Mode of Being in History Is Not Historical The conversations between Cheng and Gadamer in this issue of The Journal of Chinese Philosophy pivot on language, philosophy of history and ethics within a comparative framework of analysis, but also explore the grounds that make the comparisons possible. Those grounds are informed by Chinese cosmology, and function to wrest Gadamer from the shadow of Heideggerian facticity and reposition him within the range of Cheng’s ideas about our place in nature that is embedded in his question about how mind emerges from inorganic matter.8 -/- For Gadamer scholars of Heidegger, human finitude, our ownmost individuating death ensures that hermeneutics is always open to the other as other, always on the way toward understanding the meaning of Being. To arrest the process in a concept of “the Absolute” cannot but represent someone’s point of view, and thereby render hermeneutics indistinguishable from ideology. However, insofar as finitude is defined by them in terms of an onto-theological concept of immorality, finitude is a metaphysical concept consistent with epistemologies and confuse beings with the meaning of Being. As a result, the celebrated political value of hermeneutics to always be on the way toward an understanding of the meaning of Being admits subtle variations on the same worldview that are insufficiently self-critical. -/- Gadamer scholars of Heidegger are right. A transformation in ethos and opening to the meaning of Being depends on awareness of finitude. Yet this awareness does not yield openness to more of the same, i.e., discourse structurally incapable of coming to unity but instead, for both Gadamer and Cheng, openness to a distinctly different ontological dimension of reality. As Sandra Wawrytko and So-Seong Park indicate,9 this ontological dimension is prefigured in the experience of being-as-a-whole or the totality of all possible relations in both Chinese totemic shamanistic rituals,10 and Greek Dionysian festivals.11 Through these religious experiences human ethos and therefore consciousness is expanded and elevated from being centered on one’s ownmost concerns toward an affinity with all sentient beings from insects and plants to animals. The channel for this affinity is an auditory disposition and hence, the emotions, compassion, and feeling response. -/- The capacity for an auditory disposition, or as Gadamer calls it, listening consciousness to respond to the inter-relationality and therefore inherent balance of nature is developed through music, song and dance of the religious rituals and festivals. They facilitate the unity of mind with nature. This use of music, that transforms ordinary consciousness, explains Cheng’s emphasis on the receptivity of feeling response in comprehensive observation, and Gadamer’s emphasis on openness to the other in attunement. However, an auditory disposition characteristic of pre-literate oral cultures that reveals the “All” need not rely on religion. As theorists about the evolution of language have explained,12 modern languages preserve their pre-historical past in music or prosody. That is to say, the song and dance that revealed the totality of inter-related beings to an ethos of comprehensive observation and attunement toward beings in classical civilizations is retained in the back-and-forth movement or rhythm of the dialogue form. Our mode of being in history is a mode of being in nature – through the music of language. -/- While alerting the reader to the limits of a nominalist interpretation, Gadamer expresses the inner law of the nature as follows: “in perishing there is always becoming, and in becoming there is always perishing.”13 Considered in process, opposites generate and blend into each other. This law of nature applies to everything.14 Hence, in a manner comparable to Pfister’s concluding insights, onto-dialogical hermeneutics is not only open to discrete events of otherness but moreover, to the moving structure of reality expressed, as Gajdosova suggests, in the existential moment of naming. Considered as interplay of tension and resolution with a life of its own, the dialectic of a dialogue is self-similar to the way in which an organism grows (by instinct). There is, therefore, a sense in which the art of interpretation extends the human mind into the eternal cycles of nature such that we participate in the articulation of the inner telos/homeostasis toward which all beings strive and importantly for Gadamer scholars of Heidegger, within the material limits of energy to which our embodied minds are self-evidently subject. In mortality there is always immortality. (shrink)

ABSTRACT The individual-community relationship has always been one of the most fundamental topics of social sciences. In sociology, this is known as the micro-macro relationship while in economics it refers to the processes, through which, individual actions lead to macroeconomic phenomena. Based on philosophical discourse and systems theory, many sociologists even use the term "emergence" in their understanding of micro-macro relationship, which refers to collective phenomena that are created by the cooperation of individuals, but cannot be reduced to individual actions. (...) "Emergence" theories attempt to explain the nature of society as a complex system by examining how individuals and their relationships lead to the creation of integrated and macro-social phenomena such as markets, educational systems, cultural beliefs, and shared social practices. As a prelude to activity, every researcher has to answer the question from the methodological point of view, how is it possible to study the behavior of social groups and how can we gain knowledge about the laws related to social groups? Anyone who deals with humanities and social sciences or any reality and phenomenon that affects human beings, inevitably deals with the reality that is emerging. In fact, emergence occurs when one level of reality emerges radically from another level. Examples of emergent levels of reality include how the mind emerges from the body; or the way society emerges from human beings. Therefore, when there is an emerging factor, different scientific disciplines should be used, because it is inevitable to talk about social affairs, psychology and neurobiology, as well as physical and even chemical. -/- INTRODUCTION Since its beginning in the 19th century, sociology has faced the fundamental question of what a social phenomena stands for? At a glance, sociologists deal with the study of social groups, collective behavior, institutions, social structures, social networks, and social dynamics, and ultimately all such phenomena are composed of individuals. Therefore, social phenomena seem to have no independent ontological status, and in this case, sociology is ultimately about reducible individuals. Different approaches about the micro-macro relationship, using the concept of "emergence", argue that although collective phenomena are created by individuals, they cannot be reduced to individual action. The term "emergence" is used to distinguish "emergent results" from " Procedural results". Results are called Procedural that can only be calculated by adding or subtracting the causes that act together. On the contrary, they are emergent outcomes that are qualitatively novel compared to the causes from which they originate. An example of such emergent results is mental characteristics that emerge from neural processes, but are not considered among the characteristics of neural processes of components - which are their origin. Philosophical debates about emergentism and reductionism focus on the mind-brain relationship, but as many philosophers have noted, they can be generalized to apply to any hierarchical set of features. The cognitive revolution reactivated a 19th century controversy between theorists of Identity and dualism. The theorists of Identity believe in reductionist materialism and elimination of metaphysics, according to which the mind is nothing more than the biological, while the dualists believe that the mind and the brain are distinct from each other. Emergence has been considered as a third way between the theories of Identity and dualism. -/- METHODOLOGY Interdisciplinarity Is fundamentally indicated by the dominance of open systems as well as social and emerging systems at different levels. Therefore, as long as we are facing a new emergentism, there will necessarily be different fields and an interdisciplinary method. The commonality of social sciences and cognitive sciences on the issue of emergence provides the possibility of interaction and exchange of concepts between these two for deeper research. Therefore, in this research, apart from the concepts of Subvenience and downward causation, we have used multiple realization and wildly disjunctive, which are used to explain the emerging concept in cognitive sciences, including neurobiology, psychology, and philosophy. For analytical and interdisciplinary approaches, after examining the concepts of subvenience, and wildly disjunctive, Individualistic and collectivist emergentism have been reviewed. And then their adequacy is criticized and evaluated in meeting strong emergence conditions. -/- FINDINGS Philosophers of the mind have been able to define the conditions of irreducibility and downward causation, which are essential for strong emergence, by using the principle of subvenience with the help of multiple realization and wildly disjunctive principles. Therefore, by definition, emergentist individualism suffers from the problem of how to explain downward causality and irreducibility, and emergentist collectivism faces the challenge of reification. The analysis of the challenges facing the two methodological approaches of individualism and collectivism leads us to three unresolved issues about the emerging phenomenon, which are realism, downward causality, and mechanism. Despite the differences in the stances of these two approaches regarding the aforementioned triple problems, individualists and collectivists both agree that some social characteristics are reducible; and some others are irreducible due to their complexity, the determination of which, depends on the case study of the mechanism of emergence of each social characteristic. -/- CONCLUSION An emergence that is consistent with reductionism is called a weak emergence. And strong emergence includes the principle of irreducibility and downward causality. According to strong emergence, the characteristics of social phenomena have downward causal power, which cannot be reduced to the causal forces. The principle of subvenience, together with multiple realization and wildly disjunctive, can provide the conditions of irreducibility and downward causality, which are essential conditions of strong emergence. Based on the philosophical analysis of two methodological approaches, individualist and collectivist, it can be concluded that emergentist individualism suffers from the problem of how to explain downward causality and irreducibility, and reification collectivism faces the challenge of reification. The analysis of the problems faced by these two approaches leads us to three unresolved issues, which are realism, downward causality, and mechanism. individualist emergentists acknowledge the existence of emergent social characteristics, but despite this, they believe that these characteristics are not real but merely analytical constructs that require explanation based on individuals and their mutual actions. But collectivists argue that emergentism yields a categorical ontology and supports social realism. They accept the dependence of social characteristics on individuals, but claim that social entities and structures are ontologically independent. Individualists and collectivists both agree that some social characteristics are reducible; and others are irreducible due to their complexity; and the only way to recognize this is to engage in empirical studies of the mechanisms and temporal processes of "emergence" that create social characteristics. -/- NOVELTY The newness of this compact article is as follows: a) Presenting an interdisciplinary approach using the analysis of philosophy of cognitive sciences, including the philosophy of mind, neurobiology and psychology to formulate the issue of social emergence; b) Criticizing individualist and collectivist methodological approaches to the issue of social emergence and explaining the sufficiency and shortcomings of both in providing weak and strong emerging conditions; c) Explaining and categorizing the challenges facing methodological approaches in explaining the phenomenon of social emergence, in three categories: realism, downward causality, and mechanism. BIBLIOGRAPHY Beckermann, A., Flohr, H., & Kim, J. (eds.) (1992). Emergence or reduction? Essays on the prospects of nonreductive physicalism. Berlin: Walter de Gruyter. Bhaskar, R. (1979). The possibility of Naturalism. New York: Routledge. Bhaskar, R., Danermark, B. & Price, L. (2018). Interdisciplinarity and wellbeing: A critical realist general theory of interdisciplinarity. London and New York: Routledge. Blau, P.M. (1981). Introduction: diverse views of social structure and their common denominator. In Blau, P.M. & Merton, R.K. (eds.), Continuity in Structural Inquiry (pp. 1–23). Beverly Hills: Sage. Blau, P.M. (1987). Microprocess and macrostructure. In K.S. Cook (ed.), Social Exchange Theory (pp. 83–100). Newbury Park, CA: Sage. Brooks, R.A., & Maes, P. (eds). (1994). Artificial life IV; proceedings of the Fourth International Workshop on the Synthesis and Simulation of Living Systems. Cambridge, Mass: MIT Press. Clark, A. (1997). 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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)

Joseph Priestley was a man of many and varied intellectual interests. This thesis surveys his philosophical thought, with a central focus on his philosophical theology. The subject can be divided into two parts, natural theology and moral theology. Priestley's natural theology is a perhaps unique attempt to combine and harmonize materialism, determinism and theism, under the auspices of Newtonian methodology. His materialism is based on three arguments: that interaction between matter and spirit is impossible; that a dynamic theory of matter (...) breaks down the active/passive dichotomy assumed by many dualists; and that Newton's "Rules of Reasoning in Philosophy" require the rejection of the "hypothesis" of the soul. His determinism arises from his theory of causation. He attempts to show that the only acceptable account of causation is one in which every cause is invariably followed by the same effect, and that libertarianism violates this central assumption of scientific thought. His theism rests on the Argument from Design. He defends the Argument by trying to show that none of the alternatives to Design advanced in Hume's Dialogues concerning Natural Religion constitute a plausible scientific hypothesis. His critics accused his synthesis of materialism, determinism and theism of leading to atheism or pantheism. His defence against these charges is that his system is essentially theistic, and that its ontology is determined by the Argument from Design. Priestley's moral theology is also in part a response to Hume's Dialogues. He offers a number of replies to the "problem of evil". Evil and adversity heighten our appreciation of good; they are a consequence of the finitude of the creation; they follow from the desirability of having a world governed by general laws; and they make possible the achievement of moral character. Character-formation is his main defence, and his methodology requires him to show that adversity leads more often than not to positive results. This requirement is embodied in his progressivist philosophy of history. History, he holds, exhibits temporal purpose and Design, just as nature exhibits atemporal purpose and Design. Priestley's political thought can be seen as arising from his moral theology, mediated by the notions of "luxury", which he regards as morally harmless, and "idleness", which is the main source of moral evil. His combination of liberalism and radicalism is examined both for internal consistency and as a response to the events of his day, ending with the French Revolution. Priestley is interesting partly for his unorthodoxy, partly for the inter-connectedness of his diverse concerns, and partly because he debated with distinguished contemporaries. Throughout the thesis his views are juxtaposed with those of Hume, Reid, Price, Boscovich, Burke and a number of other thinkers. (shrink)

The Article addresses itself to immigration law governing the admission and expulsion of aliens, exploring the gap between the "plenary power" doctrine––the notion that Congress and the executive branch have broad and often exclusive authority over immigration decisions––and the actual practice of many federal courts in the immigration field. Federal courts, the author argues, often apply two distinct sets of constitutional norms in immigration cases, one set drawn from immigration law proper and applied directly to constitutional cases, and (...) a second, "phantom norm" set, borrowed from mainstream public law and applied in the interpretation of immigration statutes. The result is an immigration law regime in which the plenary power doctrine has been undermined, but not reversed, through statutory interpretation. The Article explores the reasons for the application of "phantom norms" to immigration statutes and the problems created by that practice, ultimately recommending a direct reassessment of plenary power as a constitutional doctrine. In so doing, the Article serves not only as an examination of the interpretive dynamics peculiar to immigration law but also as an exemplary study of a general problem of legal process––the relationship between statutory interpretation and constitutional law. (shrink)

Amongst the entities making up social reality, are there necessary relations whose necessity is not a mere reflection of the logical connections between corresponding concepts? We distinguish three main groups of answers to this question, associated with Hume and Adolf Reinach at opposite extremes, and with Searle who occupies a position somewhere in the middle. We first set forth Reinach’s views on what he calls ‘material necessities’ in the realm of social entities. We then attempt to show that Searle has (...) not identified a sustainable position somewhere between the Humean and the Reinachian extremes. This is because Searle’s position is threatened by circularity, and to steer clear of that danger it must incorporate at least some elements of Reinach’s essentialism. (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...) and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

The problem addressed in this article is the relationship between law and morality. It is asked (1) to what extent law and morality are connected and separated and (2) since when has it been so. To the extent that law and morality are distinct normative orders, it is asked (3) whether they rule exactly the same behaviors or whether each order rules dierent kinds of behaviors. If they rule at least some of the same behaviors, it is asked (4) whether (...) there can be antinomies (contradictions) between them. If there are an- tinomies, it is asked (5) whether the antinomies are only apparent (prima facie) and are therefore mistakes of human reason, or are definite and real. If the antinomies are apparent or real, it is asked (6) whether law or morality prevails (or should prevail) in the case of an antinomy. If one of these prevails, it is asked (7) whether this is always so, or whether law sometimes prevails (and should prevail) over morality and vice versa. In the case of existing coherence or at least solvable antinomies between law and morality, it is asked (8) whether the consequent achieved unity of practical reason is a specifically moral unity and whether it is a matter of cognition, of institutionalization, of individual or collective construction, or of consensus. (shrink)

In this work, touched on some social issues whatever the result, and a raising awareness was aimed by some new technological upgrades for the vital infrastructures of states, social order and economic plans. The main aim is one world order which has no king and accepts nations as local governance as a requirement of hierarchical order. It is completely based on economic benefits of all nations as there is no alternative to establish a healthy economic order as economic management is (...) directly related with laws. As the important is a law exists or not, or is just or not for justice, also it encourages to develop organic laws in state institutions as it recognizes any state institution as autonomous. No state has this constitution. This work is only an offer. (shrink)

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

Forests, cars and orchestras are very different ontological entities, and yet very similar in some aspects. The relationships they have with the elements they are composed of is often assumed to be reducible to standard ontological relations, like parthood and constitution, but how this could be done is still debated. This paper sheds light on the issue starting from a linguistic and philosophical analysis aimed at understanding notions like plurality, collective and composite, and propos- ing a formal approach to characterise (...) them. We conclude the presentation with a discussion and analysis of social groups within this framework. (shrink)

The law confers rights on non-human entities, namely nature, machines (AI), and animals. While doing so, the law is either viewed as progressive or sometimes as abstract and ambiguous. Despite the critique, it is undeniable that many of the rights of non-humans have come to solidify in statutory and constitutional rules of different systems. In the context of these developments, the article sheds light on the core justifications for advancing the rights of non-human entities. In addition, it discusses the (...) conditions for the emergence of these rights and the non-binding normative statements adopted by different stakeholders for advocacy. These include the Charter on the Law of the Living (2021), the Toulon Declaration (2019), and the Vienna Manifesto on Digital Humanism (2019), etc. The paper also discusses the relevant theoretical frames, namely post-humanism, digital humanism, and multi-species justice, followed by selective critical views on the subject. (shrink)

In Plato's Laws, the Athenian Visitor says that the best constitution is a mixture of monarchy and democracy. This is the theoretical basis for the institutions of Magnesia, and it helps the citizens to become virtuous. But what is meant by ‘monarchy’ and ‘democracy’, and how are they mixed? I argue that the fundamental relations in Plato's discussion of constitutions are those of authority and equality. These principles are centrally about the extent to which citizens submit to the judgment of (...) an authority and the extent to which they decide for themselves respectively—the extent to which they are ruled by themselves or ruled by another. The institutions of Magnesia reflect these principles in practice and provide a more nuanced way to understand Plato’s assessment of democratic institutions. (shrink)