This chapter offers a brief overview of the basic thesis of the book – that we are currently in a period of widely understood instrumentalism with respect to the creation of common law by appellate courts in the United States. This modern era follows, almost by default, a long and traditional period of formalism, during which it was presumed that the nature of common law creation by appellate courts was fundamentally logical, objective, and mechanistic in nature. Belief in this understanding of appellate court lawmaking was discredited by the legal realist movement, which began in the first third of the twentieth century, and left a void that was filled by instrumentalism.

The current era of common law lawmaking is characterized by a conceptually incoherent and frequently inconsistent amalgam of formalist and instrumentalist elements. This has resulted in practice by, and before, appellate courts in the United States that is often opaque and confusing.

Starting in the 1920s, the traditional conception of what appellate judges were actually doing when they made common law became the subject of sustained critique. Often collectively labeled as the Legal Realists, or the Legal Realist Movement, those advancing this critique aggressively challenged the formalist claim that the lawmaking work of appellate judges was fundamentally an objective, value-neutral, and preference-free enterprise that relied heavily upon formal deductive logic to select among possible versions of legal doctrine.

Instead, the legal realists argued that no matter how much appellate court opinions presented in realist terms the ultimate choices being made, those choices were nearly always the product of the judges’ reliance upon personal social judgments and preferences. They asserted that there was, in fact, little objective, detached, or scientific in these judges’ decisions to make one or another possible version of legal doctrine the binding and authoritative law of the jurisdiction.

During the middle period of the twentieth century, the legal realist critique of traditional formalism came to enjoy a consensus among the professional and academic legal community. Little sincere belief in the formalist paradigm remained by the last half of the twentieth century.

Scientific realists defend the proposition that successful scientific theories in the mature sciences should be regarded as at least approximately true because that provides the best explanation of the fact that scientists use such theories successfully. Two important types of arguments against scientific realism are then considered. The historical argument appeals to the fact that seemingly successful theories have in the past turned out to be not even approximately true. The empiricist argument holds that because scientific realists believe claims about things that can never be observed, they violate the scientific commitment to subject claims to empirical assessment. Responses on behalf of scientific realism are considered. The chapter concludes by surveying engagements with realism in science that depart from the dialectic just sketched. These include considerations based on experimentation and experimental practice, varieties of structural realism, and perspectival realism.

This is a reprinting of Flint’s response to EPR, originally signed only as ‘H.T.F.’ Flint begins with a fairly accurate outline of the argument in the EPR paper – with which he agrees – but then he expresses doubts as to the validity of the reality criterion. Without describing the nature of these doubts, he concludes by further agreeing with EPR in desiring a more direct description of reality than the one currently provided by quantum mechanics.

I introduce the topic, theme, central argument of the study, and its setting in Gulf petro-monarchies. I discuss the relevant scholarly literature, especially as it concerns ways in which religion (and specifically, Islam) has been used by political actors to advance particular interests. I provide a detailed elaboration of the argument and its various parts, as well as the method of analysis and justification for the choice of cases. I then discuss the context and cases in greater detail, with attention to key features of the historical development of the petro-monarchies from their pre-oil contact with the British imperial power, the arrival of oil companies, the importation of labor, the definition of borders and emergence of “modern” states. I illustrate noteworthy structural peculiarities of each of the four states. Finally, I outline the architecture of the manuscript, with an overview of each chapter.

Chapter 6 turns to affirmative action. I begin with a discussion of two affirmative action-based hypotheses, one instrumental and the other symbolic. Both hypotheses point to these race-targeted policies as explanations for the reclassification reversal. I then test these hypotheses in several ways. First, I analyze priming and list experiments to probe for evidence of strategic manipulation in response to affirmative action. Second, I return to the municipal panel dataset and conduct a difference-in-difference analysis of state-level affirmative action on identification. And finally, I analyze an original panel dataset of university students, constructed from embargoed surveys held by the Ministry of Education in Brazil, to compute difference-in-difference estimates of the effects of affirmative action usage on the identifications of university applicants. Overall, evidence is mixed and inconsistent. Evidence suggests that, as part of the broader array of policies that expanded education, affirmative action does boost the effects of education. But the reclassification reversal cannot be reduced to, nor solely explained by, affirmative action policies.

Chapter 2 explains that the traditional framework through which economic development is analyzed creates a puzzle when applied to the Chinese market. Regarding clearly defined, strong, and predictable rights and reliable legal institutions as preconditions for financial market development does not align with the ways in which China’s financial market evolved. The chapter highlights the resulting marginalizing view of the role of law in China. It ponders the dissonance that was created between the common devaluing of Chinese law and the Party-state’s sophisticated use of law to govern markets. To resolve this dissonance, the chapter offers law & political economy as an alternative analytical framework through which to address China’s market development puzzle and the role of law within it.

The chapter also provides notes on methodology, including data collection and methods of analysis, as well as important caveats about the study.

This chapter discusses the background, thesis, significance and implications of researching the theme of the sources of Chinese law in both comparative and Chinese legal scholarship. It also identifies the significant components of positive law in China’s legislative system and provides a general overview of China’s legislative system, along with the theoretical claims and interdisciplinary analysis involved in the detailed discussion presented in the following chapters.

As it transitioned from its late medieval into its early modern forms, the Christian just war tradition did more than shape colonialization, law, and the nation-state; it significantly shaped modernity itself. Its emphases on four big modern ideas – autonomy, immanence, instrumentalism, and universalizability – manifest throughout the modern social imaginary, including in the way both religion/theology and the nonhuman natural world are removed from view in the political realm. Viewing this transition through explicitly theological lenses helps make sense of modernity’s preoccupation with (state) violence, its struggles to negotiate ambiguity, and its commitment to a myth of progress that conceals the ironies, disjunctions, and ambivalences of history. It also helps to explain why modern political thought ignores the nonhuman natural world at a time when the costs of such ignorance are growing exponentially.

We propose a rational reconstruction of Sraffa’s strategy for theory assessment with a focus on the issue of the realism of the premises and the role of internal logical consistency as distinct from formal rigour. Sraffa appears to follow a two-stage strategy: first, a rigorous logical reconstruction of the theory under scrutiny and the identification of its explicit and implicit assumptions; second, an accurate description of the empirical phenomena the theory, once logically reconstructed, is able to explain. The explanatory value of a given theory depends on its ability to select among the various economic forces and mechanisms in action in a given situation the one(s) that the theorist holds to be the most relevant and provide a logically consistent description of the chosen mechanism(s). No theoretical explanation of a given economic phenomenon may be considered acceptable if it is based on ill-defined theoretical notions since such notions stand in the way of an exact theoretical measurement of the magnitudes under investigation and thus prevent the theory of being correctly applied to the phenomena it was designed to explain.

This introductory chapter uses the framework of pedagogical choice to articulate and compare competing visions of how the field should be conceptualized and taught. Part 2 explicates the practical challenge that renders pedagogy in the field of comparative constitutional law unusually difficult – namely, the problem of capacity. Part 3 articulates and evaluates five competing models of pedagogy, which might be called instrumentalism, tourism, immersion, abstraction, and representation. Each model is defined by a distinctive set of pedagogical goals and a practical strategy for pursuing those goals in the face of the problem of capacity. Part 4 uses the contents of Constitutionalism in Context to illustrate how the representation model might be implemented in textbook form, and what intellectual and pedagogical benefits might result. Many of the representation model’s unique benefits stem from the fact that it invites and even demands that we explore what might be called boundary cases – namely, extreme, novel, or otherwise nonstandard cases that require us to test or apply familiar concepts and strategies in unfamiliar ways. Part 5 concludes by arguing that the challenges of teaching comparative constitutional law call for pedagogical pluralism.

In Chapter 3, I discuss scientific instrumentalism, or the notion that scientific findings are morally neutral and that scientific activities are justified primarily in terms of their pragmatic utility. I argue that an instrumentalist approach to psychology disguises the moral and political agendas of those who deploy psychological research, conflating these with a neutralist account of “what works.” I provide a broad historical sketch of those for whom psychology has worked – primarily, large institutions – and of those for whom psychology has not worked – principally, those in disenfranchised social positions. I detail some of the most egregious examples of harm, exploitation, and injustice in the history of psychology, providing a general analysis of the ways that psychologists have encoded racism, sexism, and other forms of prejudice under seemingly neutral categories like intelligence. Concluding Part I, I outline how scientism, objectivism, and instrumentalism combine to undermine the moral responsiveness of psychology.

This chapter outlines how theories of ethnicity and nationalism have been applied to the Sikhs. It reviews the distinction between primordialists and instrumentalists, the modernist and ethno-symbolic theories of nationalism and discusses the postcolonial approaches. The most recent methodological approaches applied to the Sikhs are evaluated with reference to the literature on diasporas, long-distance nationalism, globalisation and religious nationalism The approach taken in this study is integrative. It draws on theories of ethnicity and nationalism, in particular Smith’s ethno-symbolic approach, to understand the emergence of modern Sikh nationalism. It locates the nation and state-building processes in the colonial and postcolonial world which shaped Sikh destinies as a highly conscious minority in the Punjab up to 1947 and beyond. The diaspora and the politics of the Sikhs in the Punjab as seen as mutually dependent variables. And the literature on religious nationalism is taken as the point of departure for critiques of how the secular Indian state has managed the Sikh question since 1947. Like the Jews, who have struggled with self-identities of religion, nation and an ethnic minority, a reading of modern nationalism among Sikhs is possible if its religious and ethnic roots and character are acknowledged.

Thee authority of human rights has diminished, even in liberal constitutional systems, international relations, and international human rights law. This enables illiberal democracies to depart from international standards. Majority will as the embodiment of the nation’s existential interest is entitled to overrule the foreign, doctrinal dictates of human rights. In many respects, this ideology corresponds to the antielitist criticism of human rights that is common in anticolonialist literature. However, in illiberal EU member states, the conflict with “international forces” does not extend to denying such rights; rather, it is limited to deceitful reinterpretation, relying on the ambiguities of the current system, pitting rights against rights and inventing new grounds for limitation. Such reinterpretation changes the meaning of existing rights, grants new powers to traditional grounds for limitation, and uses the concept of the state’s positive obligation to promote rights to instead promote the causes of the government, its values, and the interests of organizations allied with it.

In education and society, resilience and mindfulness are valued more for their instrumental benefits, than for their moral value. They both assist specifically with the evasion of what are seen as negative and harmful emotions, and with the related development of positive emotions and behaviours, for functioning in schools and in society. Yet while resilience and mindfulness are regarded as educational assets today, there are also problematic aspects of their promotion and cultivation in schools and society. Additionally, these qualities can be cultivated for good or ill use, as with other emotional virtues explored here. This chapter examines each of these traits in turn, tracing from philosophical, psychological, and political perspectives how they are framed in relation to emotional virtues, and approached within education and society. As with the emotional virtues explored here thus far, resilience and mindfulness may be useful for the emotional development of young people, but there are also limitations to promoting them, particularly in relation to education for social justice.

The dialectical relation of long-form scholarly work and short-form blogs, social media and other contemporary public writing about how the political meanings of sex in Chaucer’s time speak vividly to our own experience cannot simply be dismissed as crudely instrumentalist or naively transhistoricist. Such approaches can provide a powerful justification for why we teach Chaucer and for his cultural significance today. Flagging the Canterbury Tales as “our cultural legacy” in the context of current considerations of “rape culture” is a rhetorical move that makes a claim for the continued liveliness and urgency of past literatures by showing how the past still inheres in the present, how present discourses can suddenly make the past newly familiar, how the past is still lively.

In modern times, the familial–political analogy broke down with the emergence and ascendance of liberalism. The collapse of that traditional analogy, it is contended, dissociated the two realms and required new argumentations, definitions, and justifications for the relationships and structure inside each. With the collapse of the analogy, it is argued, the traditional political meaning of the family changed and its standing as a social institution became eroded. Consequently, the political meaning of the family and its relation to justifications for the state and its authority became a fundamental challenge for modern liberal societies. The focus in this chapter is the endeavors of John Locke to define anew parental authority and political authority as unparallel phenomena