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Published online by Cambridge University Press: 20 July 2015
Constitutional Goods, a work of political theory presented as constitutional theory, foregrounds law. Law is central to its method. The dialogic (or inclusive) theory developed in the book is based, we are told, on ‘a unity of elements found in actual case law.’ Law provides, then, much of the raw material on the basis of which the three conceptions of liberalism (libertarian, egalitarian and communitarian) are identified. And court cases are vital to the process of ‘sifting’ through which aspects of each conception that are of enduring value are identified and synthesized within a final ‘inclusive conception’ of the liberal constitution. Law is also central substantively. It plays a role in the high moment of the theory—the mutual recognition of citizen and ethos—and permeates (and justifies) every mode of social and political interaction within the ideal political community that Constitutional Goods presents. State, community, and individual are wrapped up and enfolded within law (or, as Brudner prefers to style it, ‘the Law’) within the inclusive theory.
This collection of essays examines important aspects of Constitutional Goods, Alan Brudner's magnum opus. The essays in this issue were initially presented at a symposium organized by the LSE Legal & Political Theory Forum and hosted at the London School of Economics on 9-10 May, 2008. The organizers, Philip Cook and Thomas Poole, would like to thank both the LSE and the LSE Law Department for supporting this event. We would also like to thank Alan Brudner for his participation at the symposium and for his comments on the original papers. His response to the essays collected here will appear in a later issue of the Canadian Journal of Law and Jurisprudence. I would also like to thank Philip Cook for his remarks on the present essay.
1. Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004) at 1 [CG].Google Scholar See also at 12: ‘the aim of constitutional theory is to gain the public standpoint from which to sift from the constitutional jurisprudence of liberal-democratic courts principles of political justice for a liberal democracy and from which to present the best available justification of these principles to adherents of various philosophic views of justice, all of whom share a core belief that makes them liberals.’
2. For an account of the argument and method of Constitutional Goods see Poole, T., ‘The Return of Grand Theory in the Juridical Sciences?’ (2007) 70 Mod. L. Rev. 484.CrossRefGoogle Scholar
3. Hegel, G.W.F., Elements of the Philosophy of Right, ed. by Wood, A.W. (Cambridge: Cambridge University Press, 1991), § 257.Google Scholar See also at § 261: ‘the state is on the one hand an external necessity and the higher power to whose nature their [the spheres of the family and civil society] laws and interests are subordinate and on which they depend. But on the other hand, it is their immanent end, and its strength consists in the unity of its universal and ultimate end with the particular interest of individuals, in the fact that they have duties towards the state to the same extent as they also have rights.’
4. CG, supra note 1 at 305.
5. Although it is unarguable, to my mind, that in Hegel’s theory—on which Brudner draws heavily—the state retains its status as ultimate telos even within what Brudner describes as Hegel’s notion of developed ethical life (Sittlichkeit). The state, Hegel tells us, has its immediate (or undeveloped) existence in custom and its mediate (or developed) existence in the self-consciousness of the individual. See, e.g., Hegel, supra note 3 at § 258: ‘The state is the actuality of the substantial will, an actuality which it possesses in the particular self-consciousness when this has been raised to its universality; as such, it is the rational in and for itself. This substantial unity is an absolute and unmoved end in itself, and in it, freedom enters into its highest right, just as this ultimate end possesses the highest right in relation to individuals [die Einzelnen], whose highest duty is to be members of the state …. The state in and for itself is the ethical whole, the actualization of freedom, and it is the absolute end of reason that freedom should be actual. The state is the spirit which is present in the world and which consciously realizes itself therein …. The state consists in the march of God in the world, and its basis is the power of reason actualizing itself as will.’
6. CG, supra note 1 at 318-19.
7. See Poole, supra note 2 at 494.
8. CG, supra note 1 at 318.
9. Levy, Bernard-Henri, Left in Dark Times: A Stand Against the New Barbarism (New York: Random House, 2008) at 71.Google Scholar See also Levinas, E., Difficult Freedom: Essays on Judaism, trans. by Hand, S., (Baltimore, MD: Johns Hopkins University Press, 1990).Google Scholar
10. CG, supra note 1 at 319. Brudner has another stab at making the point on the following page: ‘Though atomism is in one sense false, the mistaken claim that the individual is self-supporting is itself supported in public reason, for ethical life would not be the form of valid Law without an independent self to confirm it as such.’
11. Hegel, supra note 3 at § 260. See also Taylor, C., Hegel and Modern Society (Cambridge: Cambridge University Press, 1979) at 51 Google Scholar: ‘Freedom is only real (wirklich) when expressed in a form of life; and since man cannot live on his own, this must be a collective form of life; but the state is the collective mode of life which is backed by the full power of the community; and thus freedom must be embodied in the state.’
12. CG, supra note 1 at 306.
13. Ibid. at 320.
14. Ibid.: ‘the civil and political rights of equal moral agents are confirmed within a framework that also vindicates the communitarian claim that the self-sufficient community is a bounded political community rather than a cosmopolitan order of free and equal selves.’
15. See ibid. at 320-21.
16. Ibid. at 304.
17. Ibid. at 302.
18. Brudner uses interchangeably the terms: communities (including religious communities); cultures; cultural groups.
19. CG, supra note 1 at 363.
20. See ibid. at 364.
21. See ibid. at 380.
22. Ibid. at 428.
23. Ibid. at 386.
24. Hegel, supra note 3 at § 270. See also ibid. ‘It is philosophical insight which recognizes that Church and state are not opposed to each other as far as their content is concerned, which is truth and rationality, but merely differ in form.’
25. CG, supra note 1 at 428: ‘Dialogic community is itself a communitarian conception of public reason.’
26. The relationship probably goes deeper than this analysis suggests. Brudner’s recipe for democracy—‘representation by corporation’—is essentially group-based democracy (in which individuals are represented by groups or corporations—organizations to which they have a ‘life-pervasive commitment’).
27. CG, supra note 1 at 425.
28. Ibid. at 426.
29. Ibid. at 368.
30. Ibid. at ch. 11.
31. Teubner, G., ed., Juridification of Social Spheres (Berlin u.a: de Gruyter, 1987).CrossRefGoogle Scholar
32. CG, supra note 1 at 432.
33. Ibid. at 434.
34. See ibid. at 264-67.
35. Ibid. at 277.
36. See ibid. at 276-85.
37. Ibid. at 284: ‘there is required the possibility of a democratic veto of a court’s decision roughly along the lines of section 33 of the Canadian Charter.’
38. See, e.g., Tushnet, M. ‘New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’ (2003) 38 Wake Forest L. Rev. 813.Google Scholar
39. CG, supra note 1 at 438.
40. Ibid. at 429.
41. Ibid. at 323. Brudner also claims that there is ‘a teleological impetus toward constitutional orders whose end-point is the order governed by the inclusive conception’ (ibid. at 429).
42. Ibid. at 430.
43. Ibid. at 426.
44. Ibid. at 368.
45. Ibid. at 367.
46. Rosenfeld, M., ‘Hate Speech Laws in Constitutional Jurisprudence: A Comparative Analysis’ (2003) 24 Cardozo L. Rev. 1523.Google Scholar
47. Canadian Criminal Code R.S.C. 1985 c. C-46, s. 319(1)(a) & (2)(a).
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49. See, e.g., Chaplinksy v. New Hampshire 315 US 568 (1942)Google ScholarPubMed; R.A.V v. City of St Paul 505 US 377 (1992).Google ScholarPubMed
50. CG, supra note 1 at 384.
51. Recall that this discussion occurs in the text after the mutual recognition process and is thus applicable to the inclusive theory in its final form.
52. CG, supra note 1 at 385-86.
53. Ibid. at 387.
54. The use of religion in this way must also count as an insult to the religious believer’s sincerity, since it instrumentalizes religious belief for non-religious ends.
55. CG, supra note 1 at 57.
56. Ibid. at 414.
57. The prima facie anti-egalitarianism of this measure is justified, casuistically, in the following way: ‘having two votes to your neighbour’s one only ensures proportional equality between determinate individuals whose politically representable private interests are different’ (ibid. at 419).
58. Ibid. at 418.
59. Ibid. at 417.
60. Ibid. at 418.
61. Hegel, supra note 3 at § 250.
62. Ibid. at § 251.
63. Ibid. at § 252.
64. Ibid. at § 207.
65. Ibid. at § 302.
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67. Bebchuk, L.A., ‘A Case for Increasing Shareholder Power’ (2005) 118 Harv. L. Rev. 833.Google Scholar
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69. I am grateful to Philip Cook for revealing to this line of argument.
70. Rawls, J., Political Liberalism (New York: Columbia University Press, 1993).Google Scholar
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72. CG, supra note 1 at 417 [emphasis added].
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76. Although this analysis arises in an essay on political factions, it can be taken as typical of his moral theory as a whole. For a similar approach, see Kukathas, C., The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford: Oxford University Press, 2003) at 43.CrossRefGoogle Scholar
77. D. Hume, ‘Of Parties in General’ in supra note 74 at 59.
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83. ‘There is one mistake, to which they seem liable, almost without exception; they confine too much their principles, and make no account of that vast variety, which nature has so much affected in all her operations. When a philosopher has once laid hold of a favourite principle, which perhaps accounts for many natural effects, he extends the same principle over the whole creation, and reduces to it every phaenomenon, though by the most violent and absurd reasoning.’ (Hume, ‘The Sceptic’ in supra note 74 at 159).
84. Miller, supra note 81.
85. Hume, ‘Of Civil Liberty’ in supra note 74 at 87.
86. Elster, Cf. J., Alchemies of the Mind: Rationality and the Emotions (Cambridge: Cambridge University Press, 1999) at 403.Google Scholar
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88. For those unfamiliar with the intricacies of English football, this is a highly unlikely (although not strictly impossible) scenario.
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93. CG, supra note 1 at 438.
94. Compare Hume’s ‘The face of the earth is continually changing’ from his essay on the original contract, or his belief on civil liberty that the ‘world is still too young to fix many general truths in politics.’
95. J. Milton, Paradise Lost, Book I: (Satan)—
‘We may with more successful hope resolve
To wage by force or guile eternal Warr
Irreconcileable, to our grand Foe,
Who now triumphs, and in th’ excess of joy
Sole reigning holds the Tyranny of Heav’n.’ (PL 1.120-22)
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