Philosophers have rightly condemned lookism—that is, discrimination in favor of attractive people or against unattractive people—in education, the justice system, the workplace and elsewhere. Surprisingly, however, the almost universal preference for attractive romantic and sexual partners has rarely received serious ethical scrutiny. On its face, it’s unclear whether this is a form of discrimination we should reject or tolerate. I consider arguments for both views. On the one hand, a strong case can be made that preferring attractive partners is bad. (...) The idea is that choosing partners based on looks seems essentially similar to other objectionable forms of discrimination. (In particular, the preference for attractive partners is arguably both unfair and harmful to a significant degree.) One can try to resist this conclusion in several ways. I consider three possible replies. The first has to do with the possibility of controlling our partner preferences. The second pertains to attractiveness and “good genes”. The last attempts to link certain aspects of attractiveness to a prospective partner’s personality and values. I argue that the first two replies fail conclusively, while the third only amounts to a limited defense of a particular kind of attractiveness preference. So the idea that we should often avoid preferring attractive partners is compelling. (shrink)

Los procesos democráticos de toma de decisiones pueden ser evaluados por sus resultados, por su valor intrínseco o por una combinación de ambas cosas. Mostraré que analizar a fondo estas alternativas permite sacar a la luz las debilidades más serias en los modos usuales de justificación del constitucionalismo. La fundamentación teórica de la articulación entre democracia y constitucionalismo ha permanecido atrapada en una trampa que busco romper. Concluiré mostrando la necesidad de rebasar los argumentos epistémicos y contra-epistémicos sugiriendo pautas que (...) hasta ahora creo han sido poco ponderadas en la literatura clásica sobre el tema. (shrink)

In this book, I present the results of an investigation which began with an extended stay at Oxford's Balliol College during the first half of 1995. My visit to Oxford was made possible by a grant from the Spanish Ministerio de Educaci6n y Ciencia. My sincere thanks go to Joseph Raz who served as my supervisor in Oxford. For several points of the present study, conversations with Timothy Endicott in Oxford were also of great help. The book is part of (...) a larger project of investigation, directed by Albert Calsami glia, which is a joint effort of a group of legal philosophers from the Universitat Pom peu Fabra and the Universitat de Girona, and which also receives financial support from the Spanish Ministerio de Educaci6n y Ciencia. An earlier version of the manuscript was presented in June 1996 to the selection committee for a tenured professorship in Legal Philosophy at the Universitat de Girona. The members of the committee were Francisco Laporta, Albert Calsamiglia, Gregorio Peces-Barba, Camilo J. Cela Conde, and Francesca Puigpelat. I am grateful to all of them for their comments, which have been extremely useful in preparing the final ver sion of this book. (shrink)

Throughout history, women and men have been seen as "opposites" in various respects. Examples from the writings of political theorists illustrate this point, while Virginia Woolf is shown to have departed radically from the general tendency to dichotomize sexual difference. Further, this "need" to dichotomize sexual differences contributes to anxiety about and stigmatization of homosexuality. As the social salience of gender becomes reduced, it is to be expected that hostility to homosexuality will decline.

In recent years many people have suggested that rights come from traditions. More particularly, many people interested in American constitutional law have said that constitutional rights should be developed with close reference to American traditions. In this essay, I mean to challenge these claims. I argue that the enterprise of defining rights, including constitutional rights, should not be founded on an inquiry into tradition. Traditions should be assessed, not replicated. I also try to unpack some of the complexities in the (...) idea that rights should be based on traditions. The topic is highly relevant to the debate over “communitarianism.” Manycommunitarians appear to be traditionalists, at least implicitly; they are concerned to defend social practices against abstract, acontextual claims about what is to be done, or about “rights.” It is important to ask why and when communitarians believethat a community's practices deserve insulation from rights–based claims. Often the best or most interesting answer has a Burkean dimension. It involves the extent to which a community—perhaps a local community resisting national efforts, perhaps a nation resisting international goals—owes its practices to long traditions that, precisely because of their longevity, might seem to make special sense. Ideas of this sort might be thought to have special strength when we think about rights in general or about constitutional rights in particular. (shrink)

In recent years many people have suggested that rights come from traditions. More particularly, many people interested in American constitutional law have said that constitutional rights should be developed with close reference to American traditions. In this essay, I mean to challenge these claims. I argue that the enterprise of defining rights, including constitutional rights, should not be founded on an inquiry into tradition. Traditions should be assessed, not replicated. I also try to unpack some of the complexities in the (...) idea that rights should be based on traditions. The topic is highly relevant to the debate over “communitarianism.” Manycommunitarians appear to be traditionalists, at least implicitly; they are concerned to defend social practices against abstract, acontextual claims about what is to be done, or about “rights.” It is important to ask why and when communitarians believethat a community's practices deserve insulation from rights–based claims. Often the best or most interesting answer has a Burkean dimension. It involves the extent to which a community—perhaps a local community resisting national efforts, perhaps a nation resisting international goals—owes its practices to long traditions that, precisely because of their longevity, might seem to make special sense. Ideas of this sort might be thought to have special strength when we think about rights in general or about constitutional rights in particular. (shrink)

Abstract If voters do not understand the programs of rival candidates or their likely consequences, they cannot rationally exercise control over government. An ignorant electorate cannot achieve true democratic control over public policy. The immense size and scope of modern government makes it virtually impossible for voters to acquire sufficient knowledge to exercise such control. The problem is exacerbated by voters? strong incentive to be ?rationally ignorant? of politics. This danger to democracy cannot readily be circumvented through ?shortcut? methods of (...) economizing on voter knowledge costs. A truly democratic government must, therefore, be strictly limited in scope. (shrink)

Abstract Democratic control of public policy is nearly impossible in the presence of extreme voter ignorance, and this ignorance is in part caused by the vast size and scope of modern government. Only a government limited in its scope can be meaningfully democratic. David Ciepley's response to my article does not seriously challenge this conclusion, and his attempts to show that limited government is inherently undemocratic fail. Ciepley's alternative vision of a ?democracy? that does not require informed voters turns out (...) to be not a defense of democracy at all, but a rationalization for any form of government that achieves a high level of leadership skill and bureaucratic efficiency. (shrink)

This paper addresses two questions. First, how different is the ideal underlying deliberative democracy from the ideal expressed in contemporary liberal theory, especially contractualist theory and "political liberalism"? Second, what specific institutional prescriptions, if any, follow from deliberative democracy? It is argued that the deliberative ideal has become quite abstract and, in fact, does not differ significantly from many forms of contemporary liberalism. Moreover, it is something of an open question just what institutions best realize this ideal. Specifically, the ideal (...) does not necessarily require conventional, majoritarian institutions. (shrink)

Constitucionalismo” y “democracia” son dos términos con muy distintos significados, pero no me voy a detener apenas en el término “democracia” salvo para indicar que su significado común y mínimo durante los últimos siglos y en la polémica de la que voy a hablar enseguida se refiere al sistema representativo que garantiza, además de los derechos básicos de libertad y seguridad personal, la participación popular en el poder político al menos mediante la libre y reiterada elección del parlamento.

El artículo analiza la justificación deliberativa de la revisión judicial a partir los originales aportes de la obra de Carlos Nino. Propone que el deliberativismo solo puede defender consistentemente un rol para la revisión judicial si esta se orienta radicalmente a las condiciones justificatorias y deliberativas de las decisiones, prácticas y políticas públicas, y no a la evaluación sustantiva de su consistencia con los derechos fundamentales, incluso los que sean considerados precondiciones democráticas. Argumenta que la versión más difundida de las (...) tesis de Carlos Nino caía en una inconsistencia -al tratar de preservar un ámbito sustantivo para la revisión judicial relacionado con los derechos a priori- y reconstruye una versión alternativa y menos conocida, articulada en uno de sus últimos libros, en la que la revisión judicial es articulada en clave radicalmente procedimental-justificatoria. The paper analyzes the deliberative justification of judicial review centered on the original contribution of Carlos Nino’s work. It proposes that deliberativism can only defend, consistently, a role for judicial review in a democracy if the institution is radically oriented to the justificatory and deliberative conditions of public policies, practices and decisions, abandoning any substantive evaluation of their consistency with fundamental rights, even those that are considered as democratic preconditions. The paper argues that the most known version of Carlos Nino’s thesis on the subject was partially inconsistent -while trying to preserve some room for substantive judicial review related to a priori rights- and considers an alternative and less known version, presented in one of nino’s last books, where judicial review is constructed with that radically procedimental-justificatory approach. (shrink)

El trabajo reconstruye y analiza críticamente la respuesta de Jeremy Waldron a importantes problemas sobre política y derecho, justicia y autoridad. Waldron reivindica al mismo tiempo una tesis no escéptica sobre la existencia los derechos morales-políticos, una tesis escéptica sobre la existencia de procedimientos epistémicos superiores para identificarlos, y una tesis positiva sobre la legitimidad política. El trabajo argumenta que su respuesta solo resulta consistente si se añade un cuarto vértice: el presupuesto de “igualdad de agencia y capacidad epistémica” en (...) los portadores de derechos. Pero su introducción requiere abandonar y redefinir dos de los otros elementos, lo que conduce finalmente a las respuestas típicas del deliberativismo epistémico. Las críticas de Waldron a la revisión judicial se reinterpretan sobre esa nueva base. (shrink)

A frequent caveat in online dating profiles – “No fats, femmes, or Asians” – caused an LGBT activist to complain about the bias against Asians in the American gay community, which he called “racial looksism”. In response, he was asked that, if he himself would not date a fat person, why he should find others not dating Asians so upsetting. This response embodies a popular attitude that personal preferences or tastes are simply personal matters – they are not subject to (...) moral evaluation. In this paper, I argue, against this popular attitude, that a personal preference like racial looksism is indeed wrong. A preference like racial looksism is wrong because it is an overgeneralization that disrespects individuality by treating people as exchangeable tokens of one type, and such disrespect denies its objects appreciation that their dignity entitles them to. As it turns out, there is on my account a relevant moral difference between racial looksism and simple looksism. (shrink)

The dialogue focuses on the major issues of the contemporary theoretical debate on judicial review and the Supreme Court's role in American constitutional democracy. The discussion begins with the US Supreme Court's case Hamdan v. Rumsfeld, successfully argued by Prof. Katyal last year, and covers important issues such as the separation and balance of powers after 9/11, the legitimacy of the laws of terror, the relation between US constitutional law and foreign law, the counter‐majoritarian difficulties posed by the exercise of (...) judicial review, and the legal academy's influence on legal practice. (shrink)

The practice of using courts to foster social change, once confined to the USA, has emerged as a worldwide phenomenon. Foreign practice reflects indigenous forms but faces criticisms similar to that in the USA: that it is ineffective, antidemocratic, and counterproductive. The essay meets these criticisms, first, by recasting US public law litigation as a form of politics that challenges the status quo by forging alliances, changing discursive frames, and disciplining private and public decision making. Looking abroad, the essay emphasizes (...) public law litigation as a meditative institution that facilitates political action and aids in regulatory enforcement where administrative mechanisms are weak or regulation requires ongoing elaboration. Finally, the essay suggests that criticisms of public law litigation tend to neglect three factors: the actual and not assumed comparative advantages of different institutional actors, the role of temporal conditions in affecting social change, and the ubiquity of complex, not dichotomous, relations. (shrink)

Moral disagreement about public policies—issues such as abortion, affirmative action, and health care—is a prominent feature of contemporary American democracy. Yet it is not a central concern of the leading theories of democracy. The two dominant democratic approaches in our time—procedural democracy and constitutional democracy—fail to offer adequate responses to the problem of moral disagreement. Both suggest some elements that are necessary in any adequate response, but neither one alone nor both together are sufficient. We argue here that an adequate (...) conception of democracy must make moral deliberation an essential part of the political process. What we call “deliberative democracy” adds an important dimension to the theory and practice of politics that the leading conceptions of democracy neglect. (shrink)

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not (...) to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means. (shrink)

This article addresses the theoretical difficulty of justifying the use of penal coercion in circumstances of marked, unjustified social inequality. The intuitive belief behind the text is that in such a context—that of an indecent State—justifying penal coercion becomes very problematic, particularly when directed against the most disfavored members of society.

This paper deals with the relationship between law and social protests, a topic that seems particularly relevant at this time, when recent public events show the existence of growing tension between citizens and public officers. The paper does not explore the ultimate causes that triggered these social protests, but rather the normative and legal questions raised by these conflicts. The main question that it addresses is the following: How should the law act in the face of these growing expressions of (...) social discontent? The main point that it defends is that social protests are political expressions that, as such, deserve a special public (and particularly judicial) protection. The argument is particularly directed at studying the legal consequences of taking the expressive components of social protests seriously. The exploration may have a further theoretical interest for those who are interested in reflecting upon the scope and limits of the theory of deliberative democracy. (shrink)