Since legitimacy determinations are judgments of degree, they can fine-tune the existence and effectiveness of such mechanisms. Openness to the experiences in self-government of other political communities, for instance, in the use of foreign law in constitutional interpretation, is part of the strategy for self-correction. I argue that the authority of foreign law in constitutional interpretation is grounded in the liberal constitutionalist commitment to freedom and equality.
Before I begin, let me add a few words about my approaching the task at hand in dialogue with John Rawls. Second, Rawls's later work offers a comprehensive and helpful philosophical structure for thinking about the question of liberal legitimacy in modern constitutional democracies. Built in to Rawls's political liberalism is the idea of society as a closed system. Self-government, correctly understood, is about autonomy, not closedness. However distracting one might find it, this issue is no mere detail but an integral part a liberal theory of legitimacy—including his own.
The fact of reasonable pluralism challenges the basic terms of the interaction between citizens and their institutions. Through what mechanisms can these institutions interpret and process claims originating in diverging life plans in ways that respect and reinforce the free and equal status of each claimant?
Recent political philosophy has shown a tendency toward the extremes when processing the fact of social pluralism into normative political thought. At one extreme, pluralism has been invoked to challenge the fundamentals of liberal political orders which, under the false guise of neutrality, deny to some citizens opportunities that they make available to others.
Against this background, Rawls's evenly calibrated approach to pluralism stands out. He explains the intensity of pluralism by reference to the very framework established by institutions whose claims to authority pluralism challenges: Rawls approaches the challenge of pluralism for what it is: Note that these are questions, ultimately, about the terms of the interaction between citizens and public institutions. The continuing promise of self-government depends on the success of institutions to channel the exercise of political power, fairly and effectively, under conditions of pluralism without denying the equality and freedom of any of its members.
Pluralism has a pervasive impact on those channels. It widens the pool of perspectives on social and political life from which claims are drawn while, at the same time, deepening the need for justification of specific institutional responses in ways acceptable to a pluralist citizenry. Pluralism makes justification more difficult to the extent that claims may target entrenched institutional practices whose legitimacy, heretofore, had been taken for granted.
It also expands the social space that claims must travel, heightening the risk that by the time a claim reaches its destination its representation of the claimant's original interests has become so distorted that the claimant can no longer assume ownership over the claim. To be sure, the construction of social space is not identical across societies. The perception of that space, like the social experience of pluralism itself, differs across societies in substance, form, and intensity. For instance, the constellation of concerns surrounding linguistic diversity is unknown, historically, to linguistically homogeneous societies.
Similarly, the struggle for racial justice, and its traces in the dimensions of constitutional equality, does not find an historical anchor in racially homogeneous political communities. Such variations are not surprising given that comprehensive, political doctrines are clustered, in part, according to the historical starting point and social circumstances of a society's journey toward freedom and equality for all.
Only some forms of pluralism pose challenges to legitimacy. Many of our disagreements are shallow and can be resolved intersubjectively.
Freedom and Time: A Theory of Constitutional Self-Government
Others are rooted in deep and irreconcilable comprehensive conceptions of the good that are unreasonable or irrational. A conception of equality that condones the practice of slavery is one such example. The facticity of all forms of pluralism must be acknowledged. And while they all pose practical challenges to the stability of constitutional democracy, only reasonable pluralism poses theoretical challenges to the legitimacy of a constitutional system.
One effect of reasonable pluralism is the shift from an exclusive concern with justice to an emphasis on legitimacy. Citizens of modern democracies disagree, deeply and oftentimes legitimately, about what is just and fair. Yet, the capacity of institutions to function remains indispensable to social ordering and stability. In a democracy, all citizens are and must act as reasonable sovereigns. Rawls traces this continuity to the shaping role of the basic structure of society: As with individuals, so too with institutions.
That duty demands constitutional mechanisms for self-correction through the heuristic appropriation of the experiences of other constitutional democracies. Let us start with the duty of citizens not to desist from dialogue. Recall the distinction in the previous section between shallow and irreducible disagreements. How can citizens tell them apart? Given that only the latter are intractable, it seems that an efficient allocation of time and energy would be to devote ourselves to the kinds of disagreements that can be overcome.
Such an approach would not be risk-free. Just as toleration can in time lose its normative edge and become mere social etiquette, so awareness of the irreducibility of disagreement can act as a disincentive for sustained social engagement. Rawls avoids this risk by making the irreducibility of pluralism a theoretical feature. This becomes clear when we distinguish between two types of disputes. The first type includes disputes where participants in dialogue are unburdened by energy or time constraints.
In such cases, they must seek to solve their disagreements by way of persuasion. However unpleasant that effort might at times become, progress is sometimes possible since even disagreements that are ultimately irreducible may allow for relative convergence. Political deliberation in this second category is structured by constraints that arise either at some point in the process of deliberation or, as is the typical case, are present from the outset.
To repeat, the distinction between shallow and irreducible disagreements does not lead to social disengagement because, should the parties disagree about the nature of their dispute, they must treat the dispute as a shallow disagreement of the type they must pursue until, and unless, objective brings their conversation to an end. Protracted social engagement is possible because participants adhere to rules that signal to one another their mutual recognition as free and equal.
That is, citizens are to think of themselves and their peers not only as rational, in the sense of being capable of selecting means appropriate for achieving the goals they set for themselves, but also as reasonable—where reasonableness is the mark of their having internalized the existence of fellow human beings with whom, they share a political community. It forms the basis of social unity, and a relatively stable basis at that. That same duty shapes the moral reasoning of citizens regarding how they interact with one another as well as how they interact with institutions and vice versa.
Civility forms the moral basis of responsiveness—a dimension of legitimacy. In that context, reciprocity makes it so that citizens register not only instances of institutional unresponsiveness to their own demands but also unresponsiveness to the demands of their fellow citizens, whose claims on the same institutions they cannot reasonably expect to deserve a lesser treatment than their own. This point is especially important. Just as citizens are under a duty not to desist from argument with one another until and unless objective constraints require it, so social institutions must retain their capacity to respond to the claims of a pluralist citizenry.
Exactly what responsiveness entails depends on the particular tenets of a political philosophical approach. As the next sections show, it may entail that institutions must grant access to citizens, interpret away distortion effects in their claims, reply in a timely fashion and with reasoned responses to those claims, and other mechanisms, including those for deprogramming unresponsiveness.
For now, we conclude that the basis for the duty of civility both justifies and requires measures of self-correction in the name of the commitment to freedom and equality. Judgments of legitimacy are, in part, judgments about responsiveness of this kind. Rawls's work is relevant to this inquiry given the prominent role of the constitution in his theory of political legitimacy. The legitimacy potential of a constitutional order increases to the degree that order has effective self-correcting mechanisms that preserve its responsiveness to the claims of individuals.
Freedom and Time: A Theory of Constitutional Self-Government by Jed Rubenfeld
Later sections will argue that openness to the experiences in self-government of other political communities is a self-correcting mechanism. According to this principle, free and equal citizens can be coerced into obeying laws whose wisdom they may legitimately contest so long as the acts of coercion conform to the essential parts of the constitution. Rawls distinguishes two kinds of constitutional essentials. The first sort includes fundamental principles that specify the general structure of government and of the political process; the powers of the legislative, executive, and the judiciary; the scope of majority rule, and so forth.
Academic commentary has dwelled on both the selection procedure of essential from nonessential constitutional provisions as well as on the specific content of each type of constitutional essential.
I assume arguendo that a tenable distinction between essential and nonessential constitutional provisions is possible, and I focus on the former because of their role in the formation of legitimacy judgments. The turn to constitutional essentials, which are enforceable rights, brings into sharp focus the duty of responsiveness that institutions—in this case, courts—have toward citizens claimants. Constitutional essentials have a stabilizing social function. Rawls sees them as a background normative and institutional framework that slows the pace of politics, lowers its stakes, and allows social cooperation to become routine.
Freedom and Time: A Theory of Constitutional Self-Government
It is apparent that, for such social rhythm to develop, constitutional essentials must be difficult to change. But how about change through interpretation? This is an important question. One effect of formal entrenchment is to heighten the depth, frequency, and stakes of interpretative battles over the meaning of the constitutional essentials—a centrally important realm for testing institutional responsiveness in a constitutional democracy.
2. Citizens and institutions under conditions of social pluralism
When the language of constitutional essentials is not amendable, then the build-up of social pressure, which pluralist societies produce aplenty, will be channeled toward interpreting the existing language. Students of the law are intensely aware how far-reaching the impact of legal interpretation can be.
How can constitutional essentials fulfill their stabilizing social function when their meaning is in constant flux? One possible answer would be to dispute the presuppositions that give the interpretative challenge its strength. Constitutional essentials have a core of settled meaning that is surrounded by a periphery where difficult interpretative disputes occur.
Interpretative challenges can, of course, be mounted against that core of settled meaning; however, they are almost always unsuccessful. It thus follows, in this view, that however vigorous in nature interpretative challenges might be, their effect on constitutional essentials is bound to be limited. The meaning of a constitutional essential is open to contestation, but it is not in flux.
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This is a good answer, but not good enough. Its main fault is to ignore how, ex ante, the odds of a claim's success are irrelevant to the attention the claim deserves from the institution to which it is addressed. Put differently, the institution has the same obligation of responsiveness to the claimant regardless of the claim's likelihood of success as gauged from past experience or from any other factor exogenous to the claim itself.
Thus, even the meaning of constitutional essentials must be up for grabs ex ante the submissions that seek to interpret it. Does that mean that everything is up for grabs, and that any claim—slavery? The answer has to be in the affirmative to the extent institutions must respond even to claims rooted in unreasonable comprehensive conceptions. There are strong reasons why slavery is repugnant to constitutional equality and liberty, and it is good to air those reasons from time to time. In those situations, only a vote in the apical decisional forum, where such claims are adjudicated, has the authority to settle the meaning, at least until the next claimant comes around.
A decision that occurs before that vote is one reached by definition and without deliberating on the substance of the proposed interpretation. That is evidence of an unresponsive institution. But is not this demand too burdensome? Will not the fact that no issue is ever closed fuel unending disputes?
Of course it will—and that is a consequence of what it means to live under free institutions. There are far-reaching implications of an understanding of pluralism as the natural outcome of the development of human reason under free institutions. Since it is impossible to minimize the challenges of interpretation, let us, instead, attempt another answer to the problem of the impact of interpretation on the stabilizing social function of constitutional essentials. This answer will bring us closer to the common normative foundations of legitimacy and responsiveness.
Recall that, because the constitutional essentials have a stabilizing social function, Rawls argues that they should not be changed easily. However, should change prove inevitable, the process by which change occurs must not be politicized, in the sense that it must not mirror shifts in the balance of political influence among differing comprehensive doctrines at a particular point in time.
Rawls assumes, here, a kind of normative continuity between the original and subsequent formal processes of meaning creation, which is similar in nature to the continuity of vertical and horizontal interaction in the context of the duty of civility. Yet, the same continuity extends to the processes of informal meaning creation, such as those at play in the process of interpretation.
In good liberal tradition, the challenge of interpretation is not left to chance. Hobbes said it first, after noting that all laws are in need of interpretation: For else, by the craft of an Interpreter, the law may made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator. These conceptual resources are necessary to secure the continuity between principle and its application. In a constitutional democracy, the essential provisions of a constitution and the principles of their interpretation have common roots in the foundational commitments to freedom and equality.
The mechanisms for institutional responsiveness are also rooted in foundational constitutional commitments to freedom and equality. By burdens of translation, I refer to obstacles in the processes by which a legal system interprets and processes the claims of its citizens, such as claims for enforcing the constitutional essentials. An important social function of judicial remedies is to restore the fair terms of social cooperation and, with them, the conditions for self-government.
Given the state's monopoly over the legitimate use of violence, no other public institution can deliver the immediate satisfaction of a citizen's particular need, should the institutions of the legal system also prove unresponsive. I referred above to the social space that a constitutional claim travels from its initial framing to the moment when it receives an answer—a route marked by successive translation processes, each more or less burdensome.
Along this path, the claim might become so distorted, compared with how it was first formulated, that the claimant might no longer recognize it as her own. When that happens, the claimant is bound to perceive the institutional answer as an answer not to her claim and, thus, conclude that the institution is unresponsive. It would help to develop a vocabulary to identify the origins and the destination of a constitutional claim. Humans operated with a social imaginary well before they ever got in the business of theorizing about themselves.
To be sure, citizens might not routinely think of interpretations of freedom, equality, dignity, and the like as specifically constitutional interpretations, at least in contexts that do not involve their violation. These interpretations appear constitutional once they are reconstructed within the discourse that constitutional democracy reserves for political approaches to freedom and equality.
Subscriber Login Email Address. Front Matter Title Pages. Part I Living in the Present. One The Moment and the Millennium. Two The Age of the New. Six Reason over Time. Seven Being over Time. Nine Constitutionalism as Democracy. Ten Reading the Constitution as Written: Socialist market economy Socialist-oriented market.
First International International Workingmen's Association. World Federation of Democratic Youth. International Union of Socialist Youth. International Committee of the Fourth International. Ancient Greek Religion 2nd ed. Human Rights in the World: Human Rights and Asian Values. A history of India. Retrieved 17 August Retrieved 23 June On Liberty 2 ed. On Liberty 3 ed. Stanford Encyclopedia of Philosophy. Retrieved 16 August Summary of Give Us Liberty: Haidt, Jonathan 16 October Retrieved 17 March Formisano 4 April Reflections on the Revolution in France: Genuine freedom as Marx described it, would become possible only when life activity was no longer constrained by the requirements of production or by the limitations of material scarcity…Thus, in the socialist view, freedom is not an abstract ideal but a concrete situation that ensues only when certain conditions of interaction between man and nature material conditions , and man and other men social relations are fulfilled.
Socialists consider the pleasures of creation equal, if not superior, to those of acquisition and consumption, hence the importance of work in socialist society. This vision of 'creative man', Homo Faber, has consequences for their view of freedom Socialist freedom is the freedom to unfold and develop one's potential, especially through unalienated work. Affluence and increased provision of free goods would reduce alienation in the work process and, in combination with 1 , the alienation of man's 'species-life'.
Greater leisure would create opportunities for creative and artistic activity outside of work. Marxism, Morality, and Social Justice. Marx believed the reduction of necessary labor time to be, evaluatively speaking, an absolute necessity. He claims that real wealth is the developed productive force of all individuals. It is no longer the labor time but the disposable time that is the measure of wealth. It would instead be a society in which individuals freely act as the truly human individuals they are.
Marx's radical communism was, in this way, also radically individualistic. What is considered a human right is controversial and not all the topics listed are universally accepted as human rights. Cannabis rights Equality before the law Freedom from arbitrary arrest and detention Freedom of assembly Freedom of association Freedom from cruel and unusual punishment Freedom from discrimination Freedom from exile Freedom of information Freedom of movement Freedom of religion Freedom from slavery Freedom of speech Freedom of thought Freedom from torture Legal aid Liberty LGBT rights Nationality Personhood Presumption of innocence Right of asylum Right to die Right to a fair trial Right to family life Right to keep and bear arms Right to life Right to petition Right to privacy Right to protest Right to refuse medical treatment Right of self-defense Security of person Universal suffrage.
Economic, social and cultural. Digital rights Equal pay for equal work Fair remuneration Labor rights Right to an adequate standard of living Right to clothing Right to development Right to education Right to food Right to health Right to housing Right to Internet access Right to property Right to public participation Right of reply Right of return Right to science and culture Right to social security Right to water Right to work Trade union membership. Civilian Combatant Freedom from genocide Prisoner of war Wartime sexual violence. Retrieved from " https: Views Read Edit View history.
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