Explanatory Causes in Aristotle’s Constitutional Theory

2022 ◽  
Vol 117 (1) ◽  
pp. 45-62
Author(s):  
George Duke
Author(s):  
W. Elliot Bulmer

The rise of the Scottish national movement has been accompanied by the emergence of distinct constitutional ideas, claims and arguments, which may affect constitutional design in any future independent Scotland. Drawing on the fields of constitutional theory, comparative constitutional law, and Scottish studies, this book examines the historical trajectory of the constitutional question in Scotland and analyses the influences and constraints on the constitutional imagination of the Scottish national movement, in terms of both the national and international contexts. It identifies an emerging Scottish nationalist constitutional tradition that is distinct from British constitutional orthodoxies but nevertheless corresponds to broad global trends in constitutional thought and design. Much of the book is devoted to the detailed exposition and comparative analysis of the draft constitution for an independent Scotland published by the SNP in 2002. The 2014 draft interim Constitution presented by the Scottish Government is also examined, and the two texts are contrasted to show the changing nature of the SNP’s constitutional policy: from liberal-procedural constitutionalism in pursuit of a more inclusive polity, to a more populist and majoritarian constitutionalism.


Author(s):  
Benjamin A. Schupmann

Chapter 4 analyzes Schmitt’s constitutional theory and how it complements his state theory. It begins with Schmitt’s criticism of the predominant positivist conception of the constitution. Schmitt argued that the positivists’ “relativized” conception of the constitution was committed above all to the equal chance of any belief to be enacted into law. This chapter then analyzes Schmitt’s counterargument that, without a prior and “absolute” commitment to some substantive value, a constitution could not fulfill its basic purpose of providing a clearly defined and stable public order. Schmitt’s typology of Relative and Absolute Constitution maps onto his state theoretical distinction between mechanical state and absolute state. This chapter concludes by discussing Schmitt’s later analysis of the concept nomos and how his analysis builds on and develops his earlier work on the concept of the absolute constitution.


Author(s):  
Alec Stone Sweet ◽  
Clare Ryan

The book provides an introduction to Kantian constitutional theory and the European system of rights protection. Part I sets out Kant’s blueprint for achieving Perpetual Peace and constitutional justice within and beyond the nation state. Part II applies these ideas to explain the gradual constitutionalization of a Cosmopolitan Legal Order: a transnational legal system in which justiciable rights are held by individuals; where public officials bear the obligation to fulfil the fundamental rights of all who come within the scope of their jurisdiction; and where domestic and transnational judges supervise how officials act. The authors then describe and assess the European Court’s progressivie approach to both the absolute and qualified rights. Today, the Court is the most active and important rights-protecting court in the world, its jurisprudence a catalyst for the construction of a cosmopolitan constitution in Europe and beyond.


1990 ◽  
Vol 3 (1) ◽  
pp. 91-112
Author(s):  
Peter H. Halewood

Is there the possibility of a critical standpoint from which to adjudicate the correctness or validity of constitutional interpretation? This basic question has been given considerable attention in contemporary constitutional theory and has been the focus of the pragmatist law as literature movement born of the interpretive turn in legal theory. At issue is the very purpose of constitutional practice: is it to recover the truth of a set of foundational, moral ideals from the constitution and apply it to a particular factual conflict? Or is it to preserve continuity between the various elements of our cultural practices, to keep the peace?


Author(s):  
Adrienne Stone ◽  
Lael K Weis

Abstract In The Principles of Constitutionalism, Nicholas Barber provides a sophisticated yet highly readable introduction to fundamental constitutional principles. At the same time, Barber seeks to reorient constitutional theory scholarship away from a mistaken ‘negative’ understanding of constitutionalism towards a ‘positive’ understanding. This essay examines that argument. We suggest that the idea of ‘positive constitutionalism’ has a weaker and a stronger sense. In its weak form, the argument calls for greater attention to what constitutions enable as well as what they restrict, and thus serves as a welcome reminder of the full potential of constitutional principles. However, it cannot be regarded as the correction of a widespread mistake. In its strong form, the argument calls for greater recognition that the state’s essential function lies in advancing the ‘well-being’ of its members. Although this amounts to a significant reorientation, it weakens the theory’s claim to universalism. These tensions indicate limitations to efforts to construct general theories of constitutionalism.


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