The Rule of Law as Liberal Justice

The nature of the connection between public law, on the one hand, and moral and political philosophy, on the other, is a matter of the deepest perplexity in constitutional theory. It sometimes appears that we are forced to choose between the pretence of a text-based constitutional jurisprudence, supposedly divorced from the most fundamental questions of political theory, and a legal regime in which each judge or commentator is free to interpret legal sources in the light of whatever political and theoretical commitments he or she prefers. If it is true that legal interpretation is inexorably tied to competing and controversial philosophical stances, what hope can there be for anything amounting to a broadly shared, or 'objective,' set of constitutional norms? Does the deep disagreement that marks both political practice and moral philosophy entail the radical incoherence of constitutional law or impugn its claim to legitimacy? And if we cannot escape these bleak conclusions, should we retreat into unchecked majoritarianism, rejecting constitutional claims of right as dishonest, or at least misguided, efforts to frustrate the general political will?

Alan Brudner's book, Constitutional Goods, is a valuable and highly sophisticated response to these fundamental questions about democratic constitutionalism. Its special strength lies in an unusual and attractive combination of qualities: it is both extremely bold in the majestic sweep of its prescriptions for constitutional law, wherever the rule of law is accorded its due, and at the same time cautious, scholarly, and nuanced in its treatment of rival perspectives, seeking to give each its proper recognition, within carefully defined boundaries. Brudner correctly and bravely places written constitutions in their appropriate context – that provided by the unwritten constitution of liberal-democratic justice. But his account of liberal democracy is a complex vision that encompasses aspects of competing philosophical stances, accepting those elements that make an essential contribution to the conditions of human dignity but rejecting their imperialist claims to settle the content of public law. Legal precedents are exhibited in the light of the different approaches, their doctrines sifted to distinguish the genuine elements of the rule of law (or Law) from the bogus – those informed by an overweening imperialism.

Distinguishing between political and constitutional theory, Brudner seeks to elaborate principles of constitutional law acceptable to all members of a liberal democracy, in which there are divided loyalties to contrasting conceptions of fundamental justice. He does not, however, endorse Rawls's attempt to sever constitutional theory from political philosophy (or downgrade the latter's ambition) by seeking an impartial standpoint independent of all comprehensive moral outlooks.¹ Rawls's 'political liberalism' fails even to justify the idea of justice as fairness to liberals because, in assuming that comprehensive moral views are ultimately irreconcilable, Rawls has no public standpoint from which to argue with liberals of a different stripe. Brudner proceeds from a presupposition of the individual's final worth or end-status – the 'liberal confidence' underlying such diverse conceptions of public reason as libertarianism, egalitarian liberalism, communitarianism, and Aristotelian perfectionism. He aims, indeed, to reveal the various constitutional paradigms these conceptions generate as merely constituent parts within a broader, or 'inclusive,' account of public reason. In this way, objectivity or truth is affirmed as the proper end of theorizing but limited, on grounds of (present) practicality, to the truth about what the liberal confidence entails.

Taking a Hegelian approach towards the problem of reconciling legal authority and individual autonomy, Brudner charts an elegant and persuasive course between rival liberal perspectives, seeking to transcend the limitations and deficiencies of each. He shows how the dominant liberal-egalitarian paradigm can be seen as emerging in response to shortcomings in the earlier libertarian version of liberalism and how communitarianism then seeks to displace the atomistic conception of the self underlying liberal-egalitarianism. The author's 'inclusive' conception, transcending earlier versions of public reason, seeks to incorporate the valuable elements of each paradigm, while rejecting what is erroneous, giving us the advantage of a polity capable of fully securing the conditions for human dignity.

Brudner thereby seeks the truth (not mere overlapping consensus) about the principles of legitimate governance, insofar...