In 1856, abolition activist Woodbury Davis joined the Maine Supreme Judicial Court (SIC) and quickly became its most radical member. Davis was an antebellum enigma: a high-ranking judge who advocated ...for Black voting rights, rejected the federal consensus that Congress could not pass laws interfering with slavery, denied that the Fugitive Slave Clause even applied to slaves, and believed that the Constitution was an engine for abolition. While Davis was on the SIC, the court issued advisory opinions on two of the most explosive issues in American politics: Black voting rights after Dred Scott v. Sandford and the Fugitive Slave Act. This Note explores the evolution of the law on slavery and race in the United States prior to the Civil War, focusing on Maine and the political pressures surrounding the SIC at that time. Next, this Note examines the SIC's Voting Rights Opinion (1857) and the Personal Liberty Law Opinion (1861), focusing especially on Justice Davis's novel constitutional arguments. Finally, drawing on these two cases, this Note argues that radical modes of antislavery constitutionalism were embedded in the American judiciary prior to the Civil War and evaluates the impact of this discovery on current debates in legal history.
The paper examines the rhetorical imagination of the Catholic speaker in public discourse on the basis of the parliamentary discourses of Pope Benedict XVI. According to this researcher, Pope ...Benedict XVI’s rhetorical model in the speeches is an extended version of Michael J. Hostetler’s critical distance model supported by the translation idea of Jurgen Habermas. This conclusion is reached by analysis of the constituent elements of the arguments in three parliamentary speeches given by Pope Benedict XVI. James B. Freeman’s updated version of Stephen Toulmin’s argumentation model is used to discern the constituent element of the argument.
More than most areas of law, property causes impatience. Most of us have a sense that property is doing something important, but it does it in a somewhat mysterious way. Yes, laypeople have a clear ...sense of who owns what, and scholars can more or less expound the welter of rules that come under the heading of "property." But to many, the fact that much of the time property tells some people that they can tell other people to keep out seems selfish and rude, and more or less unrelated to the purposes for which we have property in the first place. We, speaking of course on behalf of society, have a clearer sense of what property is supposed to do than how it is supposed to do it. Gregory Alexander's 'The Social-Obligation Norm in American Property Law' shares these strengths and weaknesses. Its virtue is in being very clear about purposes, but its focus on ends ultimately undermines its account of and justification for its chosen means.
This Article rejects arguments by Christian leaders, scholars, and others who lament the secularization of the West and urge Christian dignity as the foundation of universal human rights. It argues ...instead that only a secular conception of dignity free of Christian metaphysics can create an overlapping consensus in support of human rights. Part I describes the roots of Christian dignity in medieval theology and status. Part II briefly recounts how the Renaissance and Enlightenment re-centered the end of dignity from knowing God to knowing oneself, while the Reformation's extension of original sin to the intellect left Catholicism as the primary defender of the medieval dignity tradition in modernity. Part III shows that unprecedented religious difference and moral pluralism in the West make the Christian dignity promoted by religious conservatives implausible as the ground of universal human rights. The theological and natural law underpinnings and the political implications of Christian dignity alienate and exclude unbelievers, non-Christians, and even many Christians, impeding the formation of a stable political consensus supporting human rights. Part IV concludes with observations about why conservative Christians might find the overlapping consensus attractive, and why they might not.
This articles focuses on a significant change to the curriculum in “ethics” (moral philosophy) in the University of Naples, superintended by Celestino Galiani, the rector of the university (1732–53), ...and Antonio Genovesi, Galiani's protégé and the university's professor of ethics (1746–54). The article contends that Galiani's and Genovesi's sympathies lay with the form of “modern natural law” pioneered by Hugo Grotius and his followers in Northern Europe. The transformation of curricular ethics in Protestant contexts had stemmed from an anxiety about its relevance in the face of moral skepticism. The article shows how this anxiety affected a Catholic context, and it responds to John Robertson's contention that Giambattista Vico's use of “sacred history” in his Scienza nuova (1725, revised 1730, 1744) typified a search among Catholics for an alternative to “scholastic natural law,” when the latter was found insufficiently to explain the sources of human sociability.
Summary
This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled De societate publica cum infidelibus, 'On public partnership with infidels'. In the text, Grotius ...examines the legal conditions under which Christians may enter into treaties and alliances with non-Christians. Grotius's text has been interpreted by Peter Borschberg and Martine van Ittersum as a justification of the Dutch commercial and military policies in the East Indies. However, as this article shows, Grotius probably conceived of De societate as a more general treatise, which related not only to the East Indian context, but also to the domestic debate about the legal position of non-Christians in the Dutch Republic. The same arguments that served as a justification for overseas expansionism could thus serve as a justification for religious toleration in the domestic context.
The subject. Constitutional principles as phenomenon that attracts increasing attention of researchers in the development of post-soviet national legal systems. The purpose of the paper. The purpose ...of this study is to reveal the relationship between constitutional principles and law enforcement. The methodology of the study. The author of the study used general scientific methods of cognition: analysis, synthesis, abstraction, as well as applied practical methods such as statistical and case-method. The research is also based on the regulatory legal acts and judicial practice, as well as on the opinions of representatives of legal science in the ana-lyzing sphere. The main results and scope of their application. There are several reasons for scientific attention to constitutional principles. On the one hand this is connected with the increas-ing interest in natural law, forms of its manifestation, in the crisis conditions of the de-velopment of modern States and societies. On the other hand, on the territory of the post-Soviet states, the sphere of law enforcement is at the stage of its reform, as are the na-tional legal systems themselves. In this regard, the search for effective methods of im-proving legal institutions and law enforcement relations becomes urgent. This method, according to the author, could be natural law in such a form of its manifestation as con-stitutional and legal principle. Constitutional principles as fundamental principles (ideas, requirements) fixed in the norms of law or followed from them. They reflect the essence of law and determine the content and procedure for the implementation of legal regulations in socially significant situations, determine the law enforcement sphere of the state. Judicial law enforcement is a complex process. As a result of their functioning a legal prescription as a model of behavior through the activities of a special subject - the court is embodied in real social relations. Conclusions. The constitutional principles at various levels, from ideas to specific regula-tions, relating to state and society in general and specific to their individual institutions, serve as the basis of law enforcement. They determine judicial activities, the subjects of law enforcement, procedure, jurisdiction, establish its boundaries and a measure of its quality.
In the “Appendix to the Transcendental Dialectic” of the Critique of Pure Reason, Kant contends that the idea of God has a positive regulative role in the systematization of empirical knowledge. But ...why is this regulative role assigned to this specific idea? Kant's account is rather opaque, and this question has also not received much attention in the literature. In this article, I argue that an adequate understanding of the regulative role of the idea of God depends on the specific metaphysical content Kant attributes to it in the Critique and other writings. I show that neither a heuristic principle of conceptual systematicity, nor conceiving God as a hypothesis of an intelligent designer, can satisfy the demands of reason to make the unity and necessity of the laws of nature intelligible. Regarding the positive account about the metaphysical content of the idea of God, I support my argument by referring to Kant's precritical discussion of the usefulness of the conception of God for the project of science, and by expounding Kant's critical account of the necessity of the laws of nature. Thus, my account sheds light on the continuity of Kant's conception of God and his appropriation of his own rationalistic metaphysics.
El artículo reflexiona en torno a las limitaciones del régimen internacional de los Derechos Humanos con relación a las migraciones transnacionales, al identificar utopías que concurren en su seno. A ...partir de un análisis de los documentos base de este régimen, se identifica, en primer lugar, un cariz iusnaturalista al estar sustentado en la razón, la conciencia y el reconocimiento de los seres humanos entre sí; tal utopía se caracteriza no sólo por la personificación abstracta del ser humano, sino sobre todo por atribuirle estas mismas cualidades al Estado. La segunda utopía se ubica en la idea de universalidad del régimen, al establecer que los Derechos Humanos se les reconocen a todas las personas sin excepción, independientemente de su nacionalidad, ciudadanía o condición migratoria. Por último, la tercera utopía se identifica con la actividad estatal de incorporar dentro de su normatividad, incluso a nivel constitucional, un catálogo amplio de derechos humanos y, a la vez, de emitir legislación restrictiva y discriminatoria, bajo el entendido de que con ello se pueden desalentar, frenar o transformar fenómenos masivos, como la migración, cuya etiología es de naturaleza abigarrada y extrajurídica; lo cual evidencia la paradoja de concebir al ser humano como un ser fijo.//The article reflects on the limitations of the international human rights regime in relation to transnational migrations, by identifying utopias that coexist within it. Based on an analysis of the fundamental documents of said regime, it identifies, in the first place, its iusnaturalist character, since it is founded on reason, awareness, and the recognition of human beings among themselves. This utopia is characterized not only by the abstract personification of human beings, but above all by attributing these same qualities to the State. The second utopia lies in the idea of universality of the regime, in establishing that human rights are recognized for all persons without exception, regardless of their nationality, citizenship or migratory condition. Finally, the third utopia is identified with the State's activity of incorporating an ample catalogue of human rights within its laws, including at the constitutional level, while at the same time enacting restrictive and discriminatory legislation, with the understanding that it is thus possible to discourage, restrict, or transform mass phenomena such as migration, the causes of which are highly varied and extralegal in character, a fact that demonstrates the paradox of conceiving of human beings as being fixed in nature.
PDF
