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Fairness, Consensus, and the Justification of the Ideal Liberal Constitution

  • Philip Cook
Extract

In Constitutional Goods, Alan Brudner seeks to articulate a novel conception of justice that will inform the content of the ideal liberal constitution. The content and justification of this conception ofjustice are the topics of this paper. The content of this novel conception ofjustice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner’s conception ofjustice. Brudner is unable to construct an inclusive conception of liberalism from elements of libertarianism, egalitarianism, and communitarianism, and his account of public reason lacks the properties of fairness and reciprocity that differentiate a reasonable agreement from a modus vivendi. This paper therefore defends a Rawlsian political conception ofjustice and justification from Brudner’s criticisms and proposed alternatives.

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Thanks to participants at the LSE Forum in Legal and Political Theory Symposium for comments and contributions on an earlier draft, and in particular to Alan Brudner for his generous and comprehensive contributions at the symposium.

1. Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004).

2. Ibid. at 13-15.

3. Ibid. at viii-ix.

4. Brudner points to the examples of the constitutions of Canada, South Africa, and Germany, ibid. at 21.

5. See Rawls, John, Political Liberalism (New York: Columbia University Press, 1993); Rawls, John, “The Idea of Public Reason Revisited” (1997) 64 U. Chicago L. Rev. 765 ; Rawls, John, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001).

6. A political conception of justice is a moral conception of justice that applies to the fundamental economic, democratic, and legal institutions of society that comprise the basic structure.

7. Alan Brudner, supra note 1 at 19.

8. Ibid. at 431.

9. Brudner has in mind a luck egalitarian variant of egalitarianism. See Brudner, supra note 1 at 254-76.

10. Ibid. at 22.

11. Dworkin, Ronald, ‘What is Equality? Part 2: Equality of Resources’ (1981) 10 Phil. & Pub. Affairs at 283.

12. For example, see Anderson, ElizabethWhat is the Point of Equality?’ (1999) 109 Ethics 287 and Frankfurt, HarryEquality as a Moral Ideal’ (1987) 98 Ethics 21.

13. For example, Nagel, Thomas, Equality and Priority (New York: Oxford University Press, 1991).

14. Dworkin, Ronald, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000) and Cohen, G. A., If You're an Egalitarian, How Come You're So Rich? (Cambridge, MA: Harvard University Press, 2000).

15. Temkin, Larry, Inequality (New York: Oxford University Press, 1993) and Temkin, Larry, ‘Harmful Goods, Harmless Bads’ in Frey, R.G. & Morris, Christopher W, eds., Value, Welfare, and Morality (Cambridge: Cambridge University Press, 1993).

16. Steiner, Hillel, An Essay on Rights (Oxford: Blackwell, 1994).

17. Vallentyne, Peter, ‘Libertarianism and the State’ (2007) 24 Soc. Phil. & Pol’y 187.

18. Otsuka, Michael, Libertarianism without Inequality (Oxford: Clarendon Press, 2003).

19. Kukathas, Chandran, The Liberal Archipelago (Oxford: Oxford University Press, 2003).

20. Cited in Brudner, supra note 1 at 10.

21. John Rawls, ‘The Independence of Moral Theory’ (1974-1975) 48 Proceedings and Addresses of the American Philosophical Association at 5.

22. Brudner, supra note 1 at 183-84.

23. Reasonable agreement also involves a commitment to an agreement on the basis of reasons and values that are authoritative to all. We will consider this point in the next section.

24. Gaus, Gerald, Justificatory Liberalism (Oxford: Oxford University Press, 1996) at 152 , see also Swartzman, Micah, ‘The Completeness of Public Reason’ (2004) 3 Pol., Phil. & Econ. 191 for employment of this distinction in defence of public reason.

25. Gaus, supra note 24 at 153.

26. Rawls, Political Liberalism, supra note 5 at 59.

27. Brudner, supra note 1 at 432.

28. Ibid. at 431.

29. Ibid. at 432.

30. Thanks to Conrad Heilmann for discussion on this point.

31. See Rawls, Political Liberalism, supra note 5 at 16-17.

32. Rawls says that reasonableness has two aspects ‘… the willingness to propose fair terms of cooperation and to abide by them provided others do. The second basic aspect … is the willingness to recognize the burdens of judgment and to accept their consequences for the use of public reason in directing the legitimate exercise of political power in a constitutional regime.’ Ibid. at 54. Having considered the burdens of judgment argument, we are now considering the fairness argument.

33. Ibid. at 70.

34. Darwall, Stephen, The Second-Person Standpoint (Cambridge, MA: Harvard University Press, 2006).

35. Ibid. at 8.

36. Rawls, Political Liberalism, supra note 5 at 50 where the general good would be the third-person point of view.

37. Ibid. at 53-54.

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Canadian Journal of Law & Jurisprudence
  • ISSN: 0841-8209
  • EISSN: 2056-4260
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