Justifying the Natural Law Theory of Constitutional Interpretation
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The Philosophical Underpinnings of Educational Research
The Philosophical Underpinnings of Educational Research Lindsay Mack Abstract This article traces the underlying theoretical framework of educational research. It outlines the definitions of epistemology, ontology and paradigm and the origins, main tenets, and key thinkers of the 3 paradigms; positivist, interpetivist and critical. By closely analyzing each paradigm, the literature review focuses on the ontological and epistemological assumptions of each paradigm. Finally the author analyzes not only the paradigm’s weakness but also the author’s own construct of reality and knowledge which align with the critical paradigm. Key terms: Paradigm, Ontology, Epistemology, Positivism, Interpretivism The English Language Teaching (ELT) field has moved from an ad hoc field with amateurish research to a much more serious enterprise of professionalism. More teachers are conducting research to not only inform their teaching in the classroom but also to bridge the gap between the external researcher dictating policy and the teacher negotiating that policy with the practical demands of their classroom. I was a layperson, not an educational researcher. Determined to emancipate myself from my layperson identity, I began to analyze the different philosophical underpinnings of each paradigm, reading about the great thinkers’ theories and the evolution of social science research. Through this process I began to examine how I view the world, thus realizing my own construction of knowledge and social reality, which is actually quite loose and chaotic. Most importantly, I realized that I identify most with the critical paradigm assumptions and that my future desired role as an educational researcher is to affect change and challenge dominant social and political discourses in ELT. -
Legal Interpretivism by Ronald Dworkin
Legal Interpretivism by Ronald Dworkin (1931-2013): He is the greatest legal philosopher ever and is among the most influential moral and political philosopher of our time. He developed an original legal theory, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality. Interpretivism views law as being interpreted by the practice of lawyers and jurists, and claims this is the nature of law itself. Unlike other schools of legal philosophy, interpretivism views law not as something imposed from outside, but as a product of the practice of law. Interpretivists claim law has a relationship with ethics and morality, but that they are not the same. Legal interpretivism was developed in the late 20th and early 21st centuries. It emerged into a legal world dominated by two ways of thinking about the philosophy of law namely legal positivism and natural law theory. Interpretivism has some similarities to both schools of thought and some important differences. It has sometimes been thought of as a middle ground between the two. Natural law theory is the older of the two schools of thought. But there is an underlying natural law that serves as the foundation for manmade law. Natural law consists of basic principles of fairness, justice, and equity that transcend cultural boundaries, and manmade or "positive" law should respect these. In some traditions, natural law is believed to proceed from divine or supernatural sources, while others see it as inherent in human nature. Dworkin integrates morality both into the choice of legal theory and into the legal argument itself. -
Constitutional Jurisprudence of History and Natural Law: Complementary Or Rival Modes of Discourse?
California Western Law Review Volume 24 Number 2 Bicentennial Constitutional and Legal Article 6 History Symposium 1988 Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse? C.M.A. McCauliff Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr Recommended Citation McCauliff, C.M.A. (1988) "Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse?," California Western Law Review: Vol. 24 : No. 2 , Article 6. Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/6 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more information, please contact [email protected]. McCauliff: Constitutional Jurisprudence of History and Natural Law: Compleme Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse? C.M.A. MCCAULIFF* The Bill of Rights provides broadly conceived guarantees which invite specific judicial interpretation to clarify the purpose, scope and meaning of particular constitutional safeguards. Two time- honored but apparently divergent approaches to the jurisprudence of constitutional interpretation have been employed in recent first amendment cases: first, history has received prominent attention from former Chief Justice Burger in open-trial, family and reli- gion cases; second, natural law has been invoked by Justice Bren- nan in the course of responding to the Chief Justice's historical interpretation. History, although indirectly stating constitutional values, provides the closest expression of the Chief Justice's own jurisprudence and political philosophy. -
Nondelegation and the Unitary Executive
NONDELEGATION AND THE UNITARY EXECUTIVE Douglas H. Ginsburg∗ Steven Menashi∗∗ Americans have always mistrusted executive power, but only re- cently has “the unitary executive” emerged as the bogeyman of Amer- ican politics. According to popular accounts, the idea of the unitary executive is one of “presidential dictatorship”1 that promises not only “a dramatic expansion of the chief executive’s powers”2 but also “a minimum of legislative or judicial oversight”3 for an American Presi- dent to exercise “essentially limitless power”4 and thereby to “destroy the balance of power shared by our three co-equal branches of gov- ernment.”5 Readers of the daily press are led to conclude the very notion of a unitary executive is a demonic modern invention of po- litical conservatives,6 “a marginal constitutional theory” invented by Professor John Yoo at UC Berkeley,7 or a bald-faced power grab con- jured up by the administration of George W. Bush,8 including, most ∗ Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. ∗∗ Olin/Searle Fellow, Georgetown University Law Center. The authors thank Richard Ep- stein and Jeremy Rabkin for helpful comments on an earlier draft. 1 John E. Finn, Opinion, Enumerating Absolute Power? Who Needs the Rest of the Constitution?, HARTFORD COURANT, Apr. 6, 2008, at C1. 2 Tim Rutten, Book Review, Lincoln, As Defined by War, L.A. TIMES, Oct. 29, 2008, at E1. 3 Editorial, Executive Excess, GLOBE & MAIL (Toronto), Nov. 12, 2008, at A22. 4 Robyn Blumner, Once Again We’ll Be a Nation of Laws, ST. -
The Majoritarian Difficulty and Theories of Constitutional Decision Making
THE MAJORITARIAN DIFFICULTY AND THEORIES OF CONSTITUTIONAL DECISION MAKING Michael C. Dorf* Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the “counter-majoritarian difficulty.” Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel’s worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses? Do American courts, in other words, have a “majoritarian difficulty?” This Article examines that question from an interpretive perspective. It asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court’s inability to act in a strongly counter-majoritarian fashion. After highlighting difficulties with three of the leading approaches to constitutional interpretation— representation-reinforcement, originalism, and living constitutionalism—the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias. However, such third-legislative-chamber accounts rest on libertarian premises that lack universal appeal. They also lack prescriptive force, although this may be a strength: Subordinating an interpretive theory—such as representation-reinforcement, originalism, or living constitutionalism—to a view of judicial review as a form of third-legislative-chamber veto can ease the otherwise unrealistic demands for counter-majoritarianism that interpretive theories face. -
Alexander Bickel's Philosophy of Prudence
The Yale Law Journal Volume 94, Number 7, June 1985 Alexander Bickel's Philosophy of Prudence Anthony T. Kronmant INTRODUCTION Six years after Alexander Bickel's death, John Hart Ely described his former teacher and colleague as "probably the most creative constitutional theorist of the past twenty years."" Many today would concur in Ely's judgment.' Indeed, among his academic peers, Bickel is widely -regarded with a measure of respect that borders on reverence. There is, however, something puzzling about Bickel's reputation, for despite the high regard in which his work is held, Bickel has few contemporary followers.' There is, today, no Bickelian school of constitutional theory, no group of scholars working to elaborate Bickel's main ideas or even to defend them, no con- tinuing and connected body of legal writing in the intellectual tradition to which Bickel claimed allegiance. In fact, just the opposite is true. In the decade since his death, constitutional theory has turned away from the ideas that Bickel championed, moving in directions he would, I believe, f Professor of Law, Yale Law School. 1. J. ELY, DEMOCRACY AND DISTRUST 71 (1980). 2. See B. SCHMIDT, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE JUDICI- ARY AND RESPONSIBLE GOVERNMENT 1910-21 (pt. 2) 722 (1984) (describing Bickel as "the most brilliant and influential constitutional scholar of the generation that came of age during the era of the Warren Court"); Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1014 (Bickel "revered as spokesman-in-chief for a school of thought that emphasizes the importance of judicial restraint"). -
Network Map of Knowledge And
Humphry Davy George Grosz Patrick Galvin August Wilhelm von Hofmann Mervyn Gotsman Peter Blake Willa Cather Norman Vincent Peale Hans Holbein the Elder David Bomberg Hans Lewy Mark Ryden Juan Gris Ian Stevenson Charles Coleman (English painter) Mauritz de Haas David Drake Donald E. Westlake John Morton Blum Yehuda Amichai Stephen Smale Bernd and Hilla Becher Vitsentzos Kornaros Maxfield Parrish L. Sprague de Camp Derek Jarman Baron Carl von Rokitansky John LaFarge Richard Francis Burton Jamie Hewlett George Sterling Sergei Winogradsky Federico Halbherr Jean-Léon Gérôme William M. Bass Roy Lichtenstein Jacob Isaakszoon van Ruisdael Tony Cliff Julia Margaret Cameron Arnold Sommerfeld Adrian Willaert Olga Arsenievna Oleinik LeMoine Fitzgerald Christian Krohg Wilfred Thesiger Jean-Joseph Benjamin-Constant Eva Hesse `Abd Allah ibn `Abbas Him Mark Lai Clark Ashton Smith Clint Eastwood Therkel Mathiassen Bettie Page Frank DuMond Peter Whittle Salvador Espriu Gaetano Fichera William Cubley Jean Tinguely Amado Nervo Sarat Chandra Chattopadhyay Ferdinand Hodler Françoise Sagan Dave Meltzer Anton Julius Carlson Bela Cikoš Sesija John Cleese Kan Nyunt Charlotte Lamb Benjamin Silliman Howard Hendricks Jim Russell (cartoonist) Kate Chopin Gary Becker Harvey Kurtzman Michel Tapié John C. Maxwell Stan Pitt Henry Lawson Gustave Boulanger Wayne Shorter Irshad Kamil Joseph Greenberg Dungeons & Dragons Serbian epic poetry Adrian Ludwig Richter Eliseu Visconti Albert Maignan Syed Nazeer Husain Hakushu Kitahara Lim Cheng Hoe David Brin Bernard Ogilvie Dodge Star Wars Karel Capek Hudson River School Alfred Hitchcock Vladimir Colin Robert Kroetsch Shah Abdul Latif Bhittai Stephen Sondheim Robert Ludlum Frank Frazetta Walter Tevis Sax Rohmer Rafael Sabatini Ralph Nader Manon Gropius Aristide Maillol Ed Roth Jonathan Dordick Abdur Razzaq (Professor) John W. -
Retaining Judicial Authority: a Preliminary Inquiry on the Dominion of Judges
William & Mary Bill of Rights Journal Volume 12 (2003-2004) Issue 1 Article 4 December 2003 Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges Larry Catá Backer Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Courts Commons, and the Supreme Court of the United States Commons Repository Citation Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 Wm. & Mary Bill Rts. J. 117 (2003), https://scholarship.law.wm.edu/wmborj/vol12/iss1/4 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RETAINING JUDICIAL AUTHORITY: A PRELIMINARY INQUIRY ON THE DOMINION OF JUDGES Larry Catd Backer* Why do the people and institutionsof democratic states, and in particularthose of the United States, obey judges ? This article examines the foundationsofjudicial authority in the United States. This authority is grounded on principles of dominance derivedfrom the organization of institutionalreligion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionallyunderstood. Rather, the authorityof the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestlyfunction developed in the philosophy of FriedrichNietzsche. Focusing on the United States Supreme Court and the European Court of Justice, this paper examines the manner in which high-courtjudges have successfully internalizedthe characteristicsof Nietzsche's Paul and his priestly caste within the "religion" of Western constitutionalism. Paul wanted the end, consequently he also wanted the means. -
Perspectives on Ethical Leadership: an Overview Drs Ir Sophia Viet MTD
Perspectives on ethical leadership: an overview drs ir Sophia Viet MTD Paper submitted to the International Congress on Public and Political Leadership 2016 Draft version. Do not site or quote without the author’s permission Abstract There is a growing scientific interest in ethical leadership of organizations as public confidence in organizational leaders continues to decline. Among scholarly communities there is considerable disagreement on the appropriate way to conceptualize, define and study ethical leadership. This disagreement is partly due to the ontological and epistemological differences between the scholarly communities, resulting in different views of organizations, on the role of organizational leadership in general, and on ethical leadership of organizations in particular. Because of the differences in their ontological and epistemological assumptions scholars endlessly debate the concept of ethical leadership. This paper provides a comprehensive overview of the academic concepts of ethical leadership by classifying these concepts in terms of their ontological and epistemological assumptions and views of organizations into the modern, symbolic and the critical perspectives of postmodernism and communitarianism. Each category represents a particular set of perspectives on organizations, business ethics, and ethical leadership. The overview can serve as a guide to decode the academic debate and to determine the positions of the scholars participating in the debate. In addition it can serve as a multi-perspective-framework to study lay concepts of ethical leadership of (executive) directors of contemporary organizations. In this article the overview serves as a guide of how to classify some of the most common concepts in the debate on ethical leadership. Introduction There is a growing scientific interest in ethical leadership of organizations as public confidence in organizational leaders continues to decline. -
Can Legislatures Constrain Judicial Interpretation of Statutes? Anthony D'amato Northwestern University School of Law, [email protected]
Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2010 Can Legislatures Constrain Judicial Interpretation of Statutes? Anthony D'Amato Northwestern University School of Law, [email protected] Repository Citation D'Amato, Anthony, "Can Legislatures Constrain Judicial Interpretation of Statutes?" (2010). Faculty Working Papers. Paper 71. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/71 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. Can Legislatures Constrain Judicial Interpretation of Statutes? by Anthony D’Amato*, 75 Va. L. Rev. 561-603 (1989) Abstract: An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this article is that all theories of statutory interpreta- tion can only do that much and no more. Tags: legislative intent, statutory interpretation, jurisprudence, deconstruction, doctrinalists [pg561]** An aspect of the current battle over deconstruction [FN1] is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. -
Public Choice, Constitutional Political Economy and Law and Economics
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Research Papers in Economics 0610 PUBLIC CHOICE, CONSTITUTIONAL POLITICAL ECONOMY AND LAW AND ECONOMICS Ludwig Van den Hauwe Brussels, Belgium © Copyright 1999 Ludwig Van den Hauwe Abstract The various subdisciplines within the emerging ‘new institutionalism’ in economics all draw special attention to the legal-political constraints within which economic and political agents choose and therefore represent a return of economics to its appropriate legal foundations. By changing the name of his research programme to constitutional political economy Buchanan distanced himself from those parts of the public choice literature that remained too close to the traditional welfare economics approach. This chapter draws lessons for law and economics from recent developments in the re-emerging field of constitutional political economy. CPE compares alternative sets of institutional arrangements, in markets and the polity, and their outcomes, using ‘democratic consent’ as an internal standard of comparison. The chapter discusses the methodological foundation of the CPE approach, presents Buchanan’s reconstruction of the Coase theorem along subjectivist-contractarian lines and gives an overview of recent contributions to the literature. JEL classification: B41, D70, H10 Keywords: Constitutional Economics, Constitutional Political Economy, Public Choice, James M. Buchanan, Methodological Foundation A. The Manifold Legacy of Adam Smith 1. Introduction As the title of this chapter suggests, the new law and economics movement on the one hand and the now rapidly emerging field of constitutional political economy - as well as the somewhat older public choice branch of economics from which it emerged - on the other hand, are research traditi- ons that are in some respects genuinely related. -
Keep Reading Contracts, Constitutions, and Getting The
PAPERS Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right GREGORY KLASS* ABSTRACT Interpretation determines the meaning of a legal actor's words or other sig- ni®cant acts, construction their legal effect. Using contract law and two nine- teenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text's meaning is ambiguous or does not address an issue. In fact, a rule of con- struction is always necessary to determine a legal speech act's effect, including when its meaning is clear and de®nite. Construction does not supplement inter- pretation, but compliments it. Second, there exists more than one form of inter- pretation, and correspondingly more than one type of meaning. The meaning a text or other speech act has depends on the questions one asks of it. Third, which type of meaning is legally relevant depends on the applicable rule of con- struction. Rules of construction are in this sense conceptually prior to legal interpretation. This priority has important consequences for how legal rules of interpretation are justi®ed. Finally, because there exist multiple types of mean- ing, when one form of interpretation runs out, another form might step in. Whether that is so again depends on the applicable rule of construction. These four claims apply to legal interpretation and construction generally. This Article supports them with a close examination of the interpretation and construction of contractual agreements.