Abstract
In this chapter, I consider a final objection to the project of developing criteria of constitutive justice, posed by the paradoxical character of the endeavor of, as I have called it, bringing justice to bear on its own foundations. Ultimately, it may be the case that the entire conception of constitutive justice founders because the problem it addresses is simply insoluble, either logically or practically.
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Notes
Stephen Holmes, “Precommitment and the Paradox of Democracy,” in Jon Elster and Rune Slagstad, eds, Constitutionalism and Democracy, (Cambridge: Cambridge University Press, 1988), pp. 195–240, at 222.
Jason Frank, Constituent Moments: Enacting the People in Postrevolutionary America (Durham, NC: Duke University Press, 2010), p. 29.
Jacques Derrida, “Declarations of Independence,” New Political Science 7.1 (1986): 7–15;
Seyla Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” Journal of Political Philosophy 2.1 (1994): 1–23.
On the general problem of constituent power, see the essays in Martin Loughlin and Neil Walker, eds, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007).
Claus Offe, “‘Homogeneity’ and Constitutional Democracy: Coping with Identity Conflicts through Group Rights,” Journal of Political Philosophy 6 (1998): 115–18.
For influential statements of the problem, see also Frederick G. Whelan, “Prologue: Democratic Theory and the Boundary Problem,” in R.J. Pennock and J.W. Chapman, eds, Liberal Democracy (New York: New York University Press, 1983), p. 16;
Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989), pp. 119–31, 193–209;
Ian Shapiro and Casiano Hacker-Cordón, eds, Democracy’s Edges (Cambridge: Cambridge University Press, 1999), pp. 1–3.
As noted above, Amartya Sen identifies a similar problem linked to Rawls’s theory of justice, pointing out that with respect to the justness of population policies, determining the number of people to include in the original position would seem to be dependent on the decision reached. See his “Justice Across Borders” in Pablo de Greiff and Ciaran Cronin, eds, Global Justice and Transnational Politics (Cambridge: Cambridge University Press, 2002), pp. 37–52.
Sofia Näsström, “The Legitimacy of the People,” Political Theory 35.5 (2007): 624–58, at 625.
Kevin Olson, “Paradoxes of Constitutional Democracy,” American Journal of Political Science 51.2 (2007): 330–43.
See also Frank Michelman, Brennan and Democracy (Princeton, NJ: Princeton University Press, 1999), pp. 4–11;
Jürgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” William Rehg, trans., Political Theory 29 (2001): 766–81;
Christopher S. Zurn, “The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional Democracy,” Legal Theory 16 (2010): 191–227.
Virginia R. Domínguez, People as Subject, People as Object: Selfhood and Peoplehood in Contemporary Israel (Madison, WI: University of Wisconsin Press, 1989), p. 21. Danielle Allen makes a similar point about modern polities, noting that, “‘[t]he people’ exists finally only in the imaginations of democratic citizens who must think themselves into this body in order to believe that they act through it. Democratic politics cannot take shape until ‘the people’ is imaginable.” Talking to Strangers: Anxieties of Citizenship Since Brown vs. Board of Education (Chicago, IL: University of Chicago Press, 2004), p. 69.
Giorgio Agamben, “What Is a People?” in Means Without Ends: Notes on Politics, Vincenzo Binetti and Cesare Casarino, trans. (Minneapolis, MN: University of Minnesota Press, 2000), pp. 29–36.
Linda Bosniak, The Alien and the Citizen: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006), p. 81.
Jacques Rancière, Dis -Agreement: Politics and Philosophy, trans. Julie Rose (Minneapolis, MN: University of Minnesota Press, 1999), p. 10.
Chantal Mouffe, The Democratic Paradox (London: Verso, 2000), p. 4.
Seyla Benhabib, “On the Alleged Conflict between Democracy and International Law,” Ethics and International Affairs 19.1 (2005): 85–100, at 90.
Seyla Benhabib, Another Cosmopolitanism (Oxford: Oxford University Press, 2006), pp. 17–18.
Robert B. Talisse, Democracy and Moral Conflict (Cambridge: Cambridge University Press, 2011), pp. 14–15.
On the democratic voter paradox, see Michael Clark, Paradoxes from A to Z, 2nd ed. (London: Routledge, 2007), pp. 48–51.
Paul Ricoeur, “The Plurality of Instances of Justice,” in David Pellauer, trans. The Just (Chicago, IL: University of Chicago Press, 2000), pp. 76–93.
Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), esp. pp. 3–30, 281–311.
Cf. Peter Suber, The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence, and Change (New York: Peter Lang, 1990).
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© 2015 William A. Barbieri Jr.
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Barbieri, W.A. (2015). Constitutive Justice — A Paradox?. In: Constitutive Justice. Palgrave Macmillan, London. https://doi.org/10.1057/9781137263254_4
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DOI: https://doi.org/10.1057/9781137263254_4
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