Previous edition, 1st, published in 1971.

Since it appeared in 1971, John Rawls's A Theory of Justice has become a classic. The author has now revised the original edition to clear up a number of difficulties he and others have found in the original book. Rawls aims to express an essential part of the common core of the democratic tradition--justice as fairness--and to provide an alternative to utilitarianism, which had dominated the Anglo-Saxon tradition of political thought since the nineteenth century. Rawls substitutes the ideal of the (...) social contract as a more satisfactory account of the basic rights and liberties of citizens as free and equal persons. "Each person," writes Rawls, "possesses an inviolability founded on justice that even the welfare of society as a whole cannot override." Advancing the ideas of Rousseau, Kant, Emerson, and Lincoln, Rawls's theory is as powerful today as it was when first published. (shrink)

Decisions in democracy are binding not in virtue of being true or good, but on account of being an outcome of the majority voting procedure. For some, this is a proof of an intricate connection between democracy and moral relativism. The ‘militant democracy’ model, on the other hand, is premised on the idea that certain political actors and choices have to be banned for being fatally bad for democracy. This gives rise to the claim that protected democratic fundamental values of (...) freedom and equality enjoy the status of absolute moral standards. This article dismisses the intuition that justification of ‘militant democracy’ depends on unpacking the relation between democracy and meta-ethics. Instead, following Bernard Suits’ analytical exposition of the important features of games, it demonstrates, first, how democracy is like a game and, then, it argues that a plausible justification of ‘militant democracy’ stems from its game-like character. (shrink)

This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms (...) of legitimation to the rule of law. Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism. (shrink)

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...) the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

One under-theorized aspect of "multiculturalism and the antidiscrimination principle" is religious and ethnicity based political parties. With political organization, the fact of pluralism is made concrete for democratic purposes. When the struggle for empowerment is "waged within the world of democratic politics" it is waged through parties. That is the associational form modern democracies have settled on for participation, representation, and governing, and for countervailing power and regular opposition. Particularist parties and bloc voting are key instruments of political conflict and, (...) as important, of political integration. This Paper looks at the challenges these parties pose to democracy; specifically, at the principal reasons given for banning parties from participation in electoral politics. I identify four categories of justification for disqualification: violent overthrow, incitement to hate, altering the character of the nation, and outside support or control. This is a preliminary to setting out regulative principles of "defensive democracy.". (shrink)

Consisting of two essays, this work by a Harvard professor offers his thoughts on the idea of a social contract regulating people's behavior toward one another.

Within the author’s long-term project of updating John Rawls’s paradigm of “political liberalism” to a historical context different from the original one, this paper focuses on how political liberalism can help us understand populism and help liberal democracy survive the populist upsurge. In the first section, political liberalism is argued to be of help in directing our attention to three constitutive aspects of all sorts of populism: the conflation of “the people” with the electorate and the electorate with the nation, (...) the attribution of constituent power to the electorate, and a penchant for so-called “justified intolerance.” In the second section, enfeebled democracies and postliberal democracies are discussed as two distinctly dangerous outcomes of populist contagion. Finally, in the third section the containment of populism is argued to require targeting the socioeconomic factors undergirding the populist upsurge and the jettisoni... (shrink)

Even the thinking of professional revolutionaries progresses, as evidenced today in legal revolution. According to the German constitutional jurist, Rudolf Smend, who died in 1975, the German people suffer from a “touching need for legality.” Smend came to this conclusion not only as historian of the Supreme Court of the German Reich, but also as observer of the positivistic normativism of his own time. Recently an old and experienced Spanish revolutionary, Santiago Carrillo, put forward the same notion in a book (...) about Eurocommunism and the State. Akhough his “touching need for legality” is politically of a different nature, Carrillo is expressly convinced that die more violent mediods of Lenin's and Trotsky's illegal revolution of October 1917 are now antiquated, mat they were only justifiable in the instance of an agrarian (peasant) society breaking dirough to a modern (industrial) society. (shrink)

In the works of Kant and Rawls, we find an acute sensibility to the pre-eminent importance of freedom of speech. Both authors defend free speech in democratic societies as a private and as a public entitlement, but their conceptions markedly differ when applied to non-liberal and non-democratic societies. The difference is that freedom of speech, for Kant, is a universal claim that can serve as a test of legitimacy of all legal orders, while for Rawls, some legal orders are owed (...) full recognition even if they do not in principle guarantee freedom of speech. I explain Kant’s account of free political speech and argue that the defence of individual rights should be seen as its core feature, both in republican and in autocratic states. I then argue that a much-overlooked shift in Rawls’s development toPolitical Liberalismlikewise ties his account of free speech in democratic societies to issues concerning rights and justice. In a next step, I discuss Rawls’s perspective on some non-democratic regimes in hisLaw of Peoples, regimes that he understands as well-ordered but which do not guarantee freedom of speech. I criticize Rawls’s account from Kant’s perspective and suggest to introduce a ‘module’ from Kant’s pre-republican thought into Rawls’s conception, aiming to secure a core area of rights- and justice-related speech. My claim is that under Kant’s view of autocratic legitimacy, an important extension of speech rights is called for even in non-liberal, non-democratic states, and that a Rawlsian account should and can adopt it. (shrink)

Since ancient Athens, democrats have taken pride in their power and inclination to change their laws, yet they have also sought to counter this capacity by creating immutable laws. In Democracy and Legal Change, Melissa Schwartzberg argues that modifying law is a fundamental and attractive democratic activity. Against those who would defend the use of 'entrenchment clauses' to protect key constitutional provisions from revision, Schwartzberg seeks to demonstrate historically the strategic and even unjust purposes unamendable laws have typically served, and (...) to highlight the regrettable consequences that entrenchment may have for democracies today. Drawing on historical evidence, classical political theory, and contemporary constitutional and democratic theory, Democracy and Legal Change reexamines the relationship between democracy and the rule of law from a new, and often surprising, set of vantage points. (shrink)