A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism

Cover Page
Half Title
Title Page
Copyright
Acknowledgments
Contents
List of Abbreviations
Introduction: Liberal Constitutional Democracy, its Illiberal Challengers, and the Question of Distributive Justice
	I Situating the Nexus between Liberal Constitutionalism and Distributive Justice in its Historical and Theoretical Context
	II Searching for Liberal Constitutionalism’s Distributive Justice Baseline: The Journey from Rawls’s “Constitutional Essentials” to the Constitution’s “Justice Essentials”
	III Organization of the Book
1. Disembodied Law, Reinvigorated Religion, and Tribal Politics
	I Imagining an Ideal of a Just Constitution and Laws for Each, All, and their Multiple Competing Ideologies
	II The Road to Alien and Disembodied Law
		(a) Transnationalization and multiplication of a plurality of legal regimes that foster layering and segmentation
		(b) Fragmentation and compounding complexity through administrative regulation, selection of applicable law by the economically powerful, and the move from public adjudication to private arbitration
		(c) Asymmetrical uses and evasions of existing legal norms to foster unprecedented relationships based on domination and control of the individual’s needs and objectives
	III The Redeployment of Religion as a Politic Against Institutional Secularism
	IV From Adversary to Enemy: The Rise of Tribal Politics
2. Local versus Global, Material Well-​Being, States of Stress, and the Erosion of Justice
	I Introduction
	II The Justice Essentials Confront the Divide between Redistribution and Recognition
	III The Global Economy, Exacerbation of Economic Inequalities, and the Justice Essentials
	IV The Minimum of Justice and the Contrast Between First-​ and Second-​Generation Constitutional Rights
		(a) Philosophy and the correlation between right and duty
		(b) Social and economic rights in comparative constitutional law
		(c) Second-​generation rights versus first-​generation rights and their respective policy-​based and budgetary implications
	V Economic Globalization, Transnational Plurality of Legal Regimes, and Constitutional Redistribution under Minimum Justice
	VI Constitutional Democracies Confront the Stress of Global Terrorism and Worldwide Pandemics
		(a) Conditions of stress as halfway between ordinary times and times of crisis
		(b) The stress of global terrorism
		(c) Stress and the COVID-​19 pandemic
3. Confronting the Gulf between Law and Solidarity: Kelsen Encounters Freud
	I Introduction
	II Kelsen’s Kantian Pure Theory of Law and the Minimum of Universal Justice According to Law
	III Freud’s Psychoanalytic Account of the Passage from Individual Singularity to Group Identity
	IV Kelsen’s Turn to Freud to Bolster his Conception of the State as Pure Law
	V The Broader Implications of the Encounter between Kelsen and Freud
4. Law Redux: Schmitt, CLS, and the Drift to Politics; from Posner Back to Marx and the Absorption of Law into Economics
	I Introduction
	II Schmitt’s Secular Theology and its Politics of Division Rallying Friends Against Enemies
	III Critical Legal Studies (CLS) and Law as Indeterminate and Political All the Way Down
	IV Posner’s Economic Framing of Law to Conform with the Ideology of Wealth Maximization
	V Rereading Marx on Law as a Tool in the Arsenal of a Materialist Political Economy
5. Kantian Universalism Reframed for a Post-​Totalitarian Age: The Legacy of Rawls, Habermas, and Dworkin
	I Introduction
	II Kant’s Categorical Imperative and the Severing of Justice from the Good
	III Rawls’ Hypothetical Social Contract, His Two Principles of Justice, and the “Constitutional Essentials”
	IV Habermas’ Dialogical Proceduralism, the Dynamic between System and Lifeworld, and the Call for Constitutional Patriotism
	V Dworkin’s Substantive Political Philosophy and Liberal Egalitarian Constitutional Jurisprudence: A Path to the Justice Essentials?
6. Tragic Deconstruction Set Against the Impenetrable Singular and Reconstruction as Spectacle and Administration: From Derrida to Agamben
	I Introduction
	II Derrida’s Deconstruction of the Nexus between Law and Justice: Confronting Irreducible Fissures in the Context of Interpretation and Ethics
	III The Nietzschean and Heideggerian Roots of Derrida’s Radical Conception of Singularity
	IV Derrida’s Insurmountable Gap between Law and Justice: A Pure or Merely Relative Tragedy?
	V Agamben’s Reconstruction: Law’s Split into the Glow of Divine Glory and the Minutiae of Administration
	VI Assessing the Coupling of Derrida’s Deconstruction and Agamben’s Reconstruction from the Standpoint of the Justice Essentials
7. The Dialectics of Comprehensive Pluralism: Approaching the Justice Essentials from the Middle
	I Introduction
	II Comprehensive Pluralism’s Negative and Positive Dialectical Moments and Their Hegelian Origins
	III The Normative Case for Comprehensive Pluralism
	IV Comprehensive Pluralism’s Responses to Critics
8. Justice Essentials Minima and Comprehensive Pluralism’s Fixed-​core Minimum Set Against its Plural Maximum
	I The Justice Minima under Comprehensive Pluralism: Linking Justice to Identity, Autonomy, and Solidarity
		(a) The bare bones of pluralist justice
		(b) Minimal identity as mediation between inward retreat and outward lurch
		(c) The combined minimum of autonomy and solidarity within a 
				just constitutional order: care and concern for insiders without demeaning the dignity of outsiders
	II Comprehensive Pluralism’s Approach to the Justice Essentials: The Dialectic between the Fixed-​core Minimum and the Plural Maximum
	III Challenges and Pathologies Confronting Comprehensive Pluralism’s Quest to Meet the Justice Essentials
Conclusion: Projecting the Nexus between Liberal Constitutionalism and the Justice Essentials into Its Conceivable Futures
Bibliography
Index