“Constitution (Written or Unwritten)”: Legitimacy and Legality in the Thought of John Rawls

Michelman, Frank I.

doi:10.1111/raju.12222

Cited by 4 publications

(1 citation statement)

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“…197-198. For more extended treatment of the procedural character of the LPOL solution to the problem of political liberalism, see Michelman (2018a), pp. 384-386.…”

Section: Proceduralism Thick and Thin The Scheme Of Liberties And Tmentioning

confidence: 99%

Political-Liberal Legitimacy and the Question of Judicial Restraint

Michelman

2019

Jus Cogens

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The term Bjudicial restraint,^applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as Bquiescent,^Btolerant,^and Bweak-form.^A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.

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“…197-198. For more extended treatment of the procedural character of the LPOL solution to the problem of political liberalism, see Michelman (2018a), pp. 384-386.…”

Section: Proceduralism Thick and Thin The Scheme Of Liberties And Tmentioning

confidence: 99%