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Concluding Reflections

Bryan Frances

in Scepticism Comes Alive

The importance of what was argued in the book was evaluated, with comments on which elements are of lasting significance for epistemology as a discipline. Notions treated include epistemic deference, ... More

The importance of what was argued in the book was evaluated, with comments on which elements are of lasting significance for epistemology as a discipline. Notions treated include epistemic deference, liveness of hypotheses, mere mortality with respect to a hypothesis, epistemic superiority, responsibility to one’s epistemic community, the epistemic significance of expert disagreement, epistemic externalism, and content externalism.Less

Non‐Domination as a Political Ideal

Philip Pettit

in Republicanism: A Theory of Freedom and Government

The superior value of non‐domination needs to be established in a comparison with freedom as non‐interference. It comes out in the fact that its maximization would require the promotion of three ... More

The superior value of non‐domination needs to be established in a comparison with freedom as non‐interference. It comes out in the fact that its maximization would require the promotion of three benefits that the maximization of non‐interference could ignore; these are the absence of uncertainty, the absence of a need to defer strategically to the powerful, and the absence of a social subordination to others. The connection between freedom as non‐domination and these benefits is such that that freedom is a primary good, in John Rawls's sense; it is something that people have reason to want for themselves, no matter what else they want. But freedom as non‐domination is not the sort of good that can be left to people to pursue for themselves in a decentralized way; all the signs are that it is best pursued for each under the centralized, political action of all: it is best pursued via the state. The political pursuit of freedom as non‐domination should be attractive, not just for small homogeneous polities but also in the modern, pluralistic state. The natural way to cast freedom as non‐domination is in the role of a value that the state should try to promote, not in the role of a constraint that it has to honour; this, moreover, is the way in which it is generally cast in the republican tradition: the tradition is consequentialist in character. There are two dimensions that need to be taken into account in the promotion of freedom as non‐domination—the intensity of non‐domination and the extent of undominated choice—but some plausible assumptions mean that we should look to intensity first and extent only in the second place. When non‐domination is promoted by certain political and other institutions—when people are guarded against possibilities of arbitrary interference in their lives—that effect is not causally distinct from the institutions; like the immunity produced by antibodies in the blood, the non‐domination is constituted by such institutional arrangements: it has an inherently institutional existence.Less

Signals from the Executive

Michael A. Bailey and Forrest Maltzman

in The Constrained Court: Law, Politics, and the Decisions Justices Make

This chapter provides general answers to questions about executive influence on the Court, which will help us to understand decision-making on the Court—what matters and when. It considers whether ... More

This chapter provides general answers to questions about executive influence on the Court, which will help us to understand decision-making on the Court—what matters and when. It considers whether the Court is beyond democratic control. If the solicitor general's briefs influence justices, this could provide at least some measure of democratically accountable influence on Court decision-making. Motivated by such questions, the chapter focuses on whether the solicitor general and the executive branch shape judicial decision-making. In particular, it asks whether justices defer to the solicitor general. If so, is it non-ideological deference or does ideology condition the nature of deference? The chapter develops and tests a signaling model of deference to show that non-legal and non-attitudinal forces influence the Court. It also shows that the nature of the deference depends on ideological factors as well.Less

Human Rights and Judicial Technique

Jack Beatson

in The United Kingdom's Statutory Bill of Rights: Constitutional and Comparative Perspectives

This chapter assesses changes in judicial approach and technique since the enactment of the Human Rights Act (HRA), and whether they are irreversible. It considers the language of analysis; the ... More

This chapter assesses changes in judicial approach and technique since the enactment of the Human Rights Act (HRA), and whether they are irreversible. It considers the language of analysis; the significance of terms such as ‘deference’, ‘institutional competence’, and ‘weight’; and the interpretative obligation in s.3 HRA enabling radical re-interpretation, and its relationship with the s.4 power to make declarations of incompatibility. It asks whether the ‘no less, but certainly no more’ than Strasbourg approach, with its need to predict outcomes in Strasbourg, reflects a ‘domestic remedy for breach of international obligations’ view of the HRA, or is an indication of the courts' understanding of their constitutional role and its limits. Finally, it suggests it is important not to sideline or forget the potential of the common law and the continued relevance and importance of traditional common law public law techniques.Less

Analytic Justification

Gillian Russell

in Truth in Virtue of Meaning: A Defence of the Analytic/Synthetic Distinction

It is largely because of the anticipated a priori status of analytic truths that philosophers have been interested in analyticity, but the existence of a priori justification is itself a difficult ... More

It is largely because of the anticipated a priori status of analytic truths that philosophers have been interested in analyticity, but the existence of a priori justification is itself a difficult topic. This chapter explores the epistemological significance of analyticity. It examines three theories of analytic justification, (while remaining neutral about whether or not that analytic justification can be considered a kind of a priori justification), and uses the failures of the first two to motivate acceptance of the third.Less

The Real Moral

Joseph Mendola

in Anti-Externalism

This chapter considers three clusters of facts about reference and truth. They depend on the vagueness and indeterminacy of reference, deference to experts about the notion of reference, and the way ... More

This chapter considers three clusters of facts about reference and truth. They depend on the vagueness and indeterminacy of reference, deference to experts about the notion of reference, and the way in which extensions of terms rest on quirky and arbitrary social facts. It explores the dark side of the linguistic division of labour. It argues that internalism is correct on these grounds, and that truth and reference are flawed semantic notions.Less

Deference and Abstention

Jason Brennan

in The Ethics of Voting

This chapter studies and rebuts a variety of objections to the argument that hold that abstention involves a loss of autonomy for the individual. Some might see abstention as a violation of autonomy. ... More

This chapter studies and rebuts a variety of objections to the argument that hold that abstention involves a loss of autonomy for the individual. Some might see abstention as a violation of autonomy. To abstain means to cede political judgment to others and to give up one's own independent judgment. The chapter argues against this. First, deferring to others does not always involve a troubling loss of autonomy. Second, the idea that voting gives the voter significant autonomy or control is implausible anyway. So long as one has an equal right to vote, choosing not to vote can be an autonomous act, a way of expressing one's will that the best outcome be achieved.Less

Societal Boundaries, Paranoia and Ill Humor, and the Role of the Courts Under the Free Exercise Clause

Catharine Cookson

in Regulating Religion: The Courts and the Free Exercise Clause

Unusual societal flux and social stress causes fear, and a fearful, paranoid society is tempted greatly to take extreme measures to protect itself. Pressured politicians may be unable or unwilling to ... More

Unusual societal flux and social stress causes fear, and a fearful, paranoid society is tempted greatly to take extreme measures to protect itself. Pressured politicians may be unable or unwilling to enact reasonably narrow and limited legislation designed to address the actual harm, and, indeed, not only may cast a wide net but also limit if not disregard individual protections under the Constitution. While the courts may be tempted (if not politically pressured) to give a conclusive presumption deferring to the legislature, this chapter argues that it is the duty of the courts, especially in times of moral panic or societal “ill humors” (Alexander Hamilton's phrase), to protect the individual's right to the free exercise of religion by a searching scrutiny of the context of each case. The courts must be exceptionally careful to understand both the religious framework within which the religiously compelled behavior is situated and the actual, paradigmatic harm anticipated by the statute.Less

A Critique of the Court's Free Exercise Clause Jurisprudence in the U.S. Supreme Court Case of Employment Division v. Smith

Catharine Cookson

in Regulating Religion: The Courts and the Free Exercise Clause

The 1990 case of Employment Division v. Smith was decided against the defendants, but when analyzed using casuistry it is found to be an easy case for upholding their free exercise right. The state ... More

The 1990 case of Employment Division v. Smith was decided against the defendants, but when analyzed using casuistry it is found to be an easy case for upholding their free exercise right. The state lacked specific expert testimony and hard data against the use of sacramental peyote, while the evidence produced by the Native American Church's experts showed that the Native American Church was successful in fulfilling the paradigmatic goals of the War on Drugs (no addiction, productive lives, etc.) and that the nonaddictive sacramental peyote lacked the same social harms endemic to addictive drugs (illegal market traffic, gangs, etc.). The Court, however, ignored the particulars of the case and fixated solely on the illegality of the ingestion of peyote. Accordingly, the particulars are explored in great detail, placing the facts in their larger, societal contexts and highlighting the Court's conclusive presumption and radical deference to the state and total disregard of the facts and other particulars both of the defendants’ unemployment compensation context and of the Native American Church and its practices.Less

The Shackles of Virtue: Allegiance to Government

Rachel Cohon

in Hume's Morality: Feeling and Fabrication

This chapter considers a virtue that is obviously created after the founding of human governments: deference to the civil authorities. There are difficulties in conceiving this as a virtue or even a ... More

This chapter considers a virtue that is obviously created after the founding of human governments: deference to the civil authorities. There are difficulties in conceiving this as a virtue or even a character trait at all. There is also a fundamental puzzle in political philosophy that interests Hume: that of how masses of people can ever, by any means, be induced to obey the laws or their rulers, given that the people are so much more numerous than the enforcers. It is argued that Hume's account overcomes these difficulties and is consistent with the rest of his understanding of the artificial virtues. Hume identifies yet another fundamental human disability (the preference for the near-term good over the distant but greater good) that can be outmaneuvered by collectively fabricating a character trait and manufacturing approval of it (using our natural tendencies as raw materials). The disability is different, and so the prosthesis is different, but the basic strategy is the same.Less

Tea and Memory

Margot Minardi

in Making Slavery History: Abolitionism and the Politics of Memory in Massachusetts

This chapter centers on the private spaces of sociability and everyday life where memories were made in the context of personal relationships. Drawing on texts commemorating individual people of ... More

This chapter centers on the private spaces of sociability and everyday life where memories were made in the context of personal relationships. Drawing on texts commemorating individual people of color whom whites deemed exemplary and “respectable,” including Phillis Wheatley and Chloe Spear (a property‐owning Baptist woman in Boston), the chapter explores how the personal histories of freedpeople were appropriated by their white friends, neighbors, employers, and masters or masters' relatives. Especially prevalent in the second quarter of the nineteenth century, white‐authored memoirs, biographies, obituaries, and anecdotes about freedpeople engaged white Bay Staters' nostalgia for the “deference politics” of a previous generation. When nineteenth‐century white writers reminisced about former slaves, they perceived in this first generation of free black Bay Staters a model for black agency and respectability that accommodated racial hierarchy to the ideals of the American Revolution. There was a gender as well as a race dimension to these representations of black agency, which emphasized humility and deference (traits associated with femininity) as desirable for both women and men of color.Less

Overview of an Originalist Theory of Concepts

R. M. Sainsbury and Michael Tye

in Seven Puzzles of Thought and How to Solve Them: And How to Solve Them: An Originalist Theory of Concepts

This chapter sets out the main thesis of the book: concepts are individuated by their origin. It also gives a preliminary indication of how this approach can help solve the puzzles.

Chapter Eight. Creating an Orderly Society

LARRY GRAGG

in 'Englishmen Transplanted': The English Colonization of Barbados 1627-1660

This chapter reveals the extraordinary efforts English planters made to replicate on Barbados the ordered society of their homeland, where deference to superiors and authority were an expectation. ... More

This chapter reveals the extraordinary efforts English planters made to replicate on Barbados the ordered society of their homeland, where deference to superiors and authority were an expectation. Immorality, threatening language, vagabonds, and rebellious servants and slaves all received the attention of government and church leaders. Planters also sought to replicate other important English ways: house design, furnishings, apparel, and diet, along with the tradition of aristocratic hospitality.Less

The Relationship between the Administration and the Other Branches

Eoin Carolan

in The New Separation of Powers: A Theory for the Modern State

This chapter briefly considers the way in which the relationship between the administration and the other branches of government might operate. Because the institutions each represent a particular ... More

This chapter briefly considers the way in which the relationship between the administration and the other branches of government might operate. Because the institutions each represent a particular constituent social interest, their input into the governance process is both legitimate and provisional. This means that the institutions must co-operate with each other in exercising public powers. It is argued that they ought to engage in an inter-institutional dialogue which should produce outcomes whichthat take appropriate account of all relevant perspectives. The institutions must justify their actions to each other with a view to providing more reasoned and informed government outcomes. The particular skills of each institution make them more equipped to perform particular tasks, but these outcomes can be reviewed by other bodies.Less

Identifying Judicial Activism

Stefanie A. Lindquist and Frank B. Cross

in Measuring Judicial Activism

To assess judicial activism empirically, this chapter looks more explicitly at the potential for dimensions of judicial activism to be identified and measured. Because the exercise of judicial review ... More

To assess judicial activism empirically, this chapter looks more explicitly at the potential for dimensions of judicial activism to be identified and measured. Because the exercise of judicial review is so important to the debate over activist judging, the chapter begins its analysis by identifying the justices' willingness to strike state and federal legislation as a critical element to the concept of judicial activism. It also suggests that invalidating the choices made by executive agencies also constitutes a dimension to judicial activism given the electoral connection to the President. In addition, institutional aggrandizement by the judiciary—by expanding access to the judiciary via doctrines of justiciability (standing, mootness and the like) and invalidating existing precedent—are also identified as dimensions to activist decision making. Finally, the chapter concludes, to distinguish activist from “principled” decision making, that these dimensions must be evaluated in light of the justices' willingness to vote in furtherance of their own ideologies. Thus, the chapter identifies two basic dimensions to judicial activism: institutional activism (reflecting the justices' willingness to vote to strike legislation, etc.) and ideological activism (reflecting their willingness to do so in accordance with their personal policy preferences). The chapter also identifies the data sources (the United States Supreme Court Judicial Database) for the project, and the empirical/statistical approach the book will employ.Less

Supranational Delegation and National Judicial Review since the 1960s

Peter L. Lindseth

in Power and Legitimacy: Reconciling Europe and the Nation-State

This chapter focuses on the effort to translate the judicial dimension of the postwar constitutional settlement into supranational form. The chapter initially summarizes the critical role played by ... More

This chapter focuses on the effort to translate the judicial dimension of the postwar constitutional settlement into supranational form. The chapter initially summarizes the critical role played by the European Court of Justice (ECJ) in the integration process. The focus of the chapter, however, is on the national high courts and their role in legitimizing European integration from the perspective of the postwar constitutional settlement. As this chapter shows, the national high courts have been caught between two competing tendencies: first, between the 1960s and the 1980s, the tendency toward strong deference to the political choice in favor European integration; and second, since the 1990s, with the German Federal Constitutional Court (Bundesverfassungsgericht) at the forefront, the desire to limit that strong deference in their Kompetenz-Kompetenz jurisprudence. This chapter revises conventional understandings of that latter jurisprudence by showing its foundations in normative principles which were central to the postwar constitutional settlement of administrative governance on the national level, notably delegation and mediated legitimacy. This grounding suggests an idea of European governance as less sui generis than normally supposed. Rather, it is seen as a new dimension of the diffusion and fragmentation of regulatory power away from the historically constituted bodies of the nation-state, which remain the locus of democratic and constitutional legitimacy in the European system.Less

The Challenge of Legitimizing Europeanized Administrative Governance

Peter L. Lindseth

in Power and Legitimacy: Reconciling Europe and the Nation-State

After summarizing the arguments of the preceding chapters, this concluding chapter reflects on the principle challenge of European governance going forward: how to legitimize the novel system of ... More

After summarizing the arguments of the preceding chapters, this concluding chapter reflects on the principle challenge of European governance going forward: how to legitimize the novel system of supranational administrative governance. This system enjoys significant regulatory power but significantly less autonomous capacity for self-legitimation, for which it depends on the mechanisms of national oversight described in the prior chapters. This concluding chapter asserts that it would be wrong, as some have argued, to view the system of European governance as “beyond delegation,” in which supranational regulatory power now demands an autonomous form of democratic and constitutional legitimation “beyond the state.” This assertion ignores both the history of administrative governance as well as the fundamentally administrative character of the EU. Europeanized administrative governance is no doubt complex, but it still remains dependent on the historically constituted bodies of the nation-state for ultimate democratic and constitutional legitimation. In that regard, the concepts of delegation and mediated legitimacy remain essential to understanding the institutional development of European integration going forward. With an eye to the future, this chapter explores possible institutional innovations in the EU, notably the establishment of a European Conflicts Tribunal to rule on Kompetenz-Kompetenz disputes. The chapter then concludes with reflections on the sovereignty, the nation-state, and integration history.Less

Comparative Constitutional Reasoning: Recasting its Justification and Operation

Aida Torres Pérez

in Conflicts of Rights in the European Union: A Theory of Supranational Adjudication

This chapter analyzes the implications of judicial dialogue for the mode of judicial reasoning in interpreting fundamental rights. In particular, it explores the comparative method and judicial ... More

This chapter analyzes the implications of judicial dialogue for the mode of judicial reasoning in interpreting fundamental rights. In particular, it explores the comparative method and judicial self-restraint as mechanisms contributing to ECJ's authority-building. These mechanisms have been highly contested in the literature. First, the chapter articulates a normative justification of the comparative method for giving meaning to EU fundamental rights. In addition, it expands on how the ECJ should operationalize this method, eschewing lowest and highest standard approaches. The comparative method should be aimed at better understanding the values informing the meanings attributed to fundamental rights across the states. This inter-state comparison would help to strengthen common understandings, while fostering an in-depth appraisal of pervasive particularities. Thereafter, ECJ's deference to state courts allowing for diversity in rights interpretation are explored.Less