Atnaujinkite slapukų nuostatas

El. knyga: Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism

(University Professor of Law and Comparative Democracy and Sydney L. Robins Professor of Human Rights, Benjamin N. Cardozo School of Law, Yeshiva University)
  • Formatas: 312 pages
  • Išleidimo metai: 17-Oct-2022
  • Leidėjas: Oxford University Press
  • Kalba: eng
  • ISBN-13: 9780192607379
  • Formatas: 312 pages
  • Išleidimo metai: 17-Oct-2022
  • Leidėjas: Oxford University Press
  • Kalba: eng
  • ISBN-13: 9780192607379

DRM apribojimai

  • Kopijuoti:

    neleidžiama

  • Spausdinti:

    neleidžiama

  • El. knygos naudojimas:

    Skaitmeninių teisių valdymas (DRM)
    Leidykla pateikė šią knygą šifruota forma, o tai reiškia, kad norint ją atrakinti ir perskaityti reikia įdiegti nemokamą programinę įrangą. Norint skaityti šią el. knygą, turite susikurti Adobe ID . Daugiau informacijos  čia. El. knygą galima atsisiųsti į 6 įrenginius (vienas vartotojas su tuo pačiu Adobe ID).

    Reikalinga programinė įranga
    Norint skaityti šią el. knygą mobiliajame įrenginyje (telefone ar planšetiniame kompiuteryje), turite įdiegti šią nemokamą programėlę: PocketBook Reader (iOS / Android)

    Norint skaityti šią el. knygą asmeniniame arba „Mac“ kompiuteryje, Jums reikalinga  Adobe Digital Editions “ (tai nemokama programa, specialiai sukurta el. knygoms. Tai nėra tas pats, kas „Adobe Reader“, kurią tikriausiai jau turite savo kompiuteryje.)

    Negalite skaityti šios el. knygos naudodami „Amazon Kindle“.

In recent years, liberal constitutionalism has come under sharp attack. Globalization has caused huge disparities in wealth, identity-based alienation triggered by mass migration, and accompanying erosions of democracy. Liberal populists have also adapted the framework of liberal institutionalism, masking their aim to subvert its core values. These developments bring the links between justice and the constitution to the fore, particularly concerning distributive justice in its three dimensions of redistribution, recognition, and representation.

A Pluralist Theory of Constitutional Justice provides a systematic account of the central role of distributive justice in the normative legitimation of liberal constitutions. The requirements of distributive justice are highly contested, and constitutions are susceptible to influencing those they govern. By drawing on Rawls' insight that distributive justice calls for "constitutional essentials", Rosenfeld advances the thesis that liberal constitutions must incorporate certain "justice essentials".

This book is divided into three sections. Part one examines the current legal, economic, political and ideological developments that pose challenges to the normative viability of liberal constitutionalism. Part two offers a rereading of philosophical and jurisprudential literature that sheds crucial light on the relationship between constitution and justice. Finally, part three makes a case for using a thoroughly pluralistic approach in the quest for a constitution's justice essentials.

Recenzijos

The book as a whole is one of great erudition. More importantly, it does make a valid contribution to the case for securing the future of liberal democracies through the strength of their constitutions. * David Glass, consultant solicitor at Excello Law, The Law Society Gazette * As the threat to liberal constitutionalism has become increasingly ubiquitous, the urgency of an appropriate response is glaringly palpable. The challenge extends beyond the need to counter the danger posed by malignly intended authoritarians, but at least as much to well-intended constitutionalists who lack the intellectual resources to defend what needs to be secured. And so, we must be grateful to Michel Rosenfeld for providing the rich theoretical perspective within which the effort to comprehend and support what is fundamental for the survival of the liberal democratic constitutional project. Indeed, in this moment of genuine peril for that project's future, his magisterial account of constitutionalism's justice essentials is essential reading. * Gary J. Jacobsohn, Malcolm Macdonald Professor of Constitutional and Comparative Law in the Department of Government and Professor of Law at the University of Texas at Austin * An indispensable analysis of our current crisis by one of our most literate exponents of comparative constitutional law and jurisprudence. * Robert Post, Sterling Professor of Law, Yale Law School * A Pluralist Theory of Constitutional Justice adds to this scholarship with a coherent theoretical framework, for a very interesting proposal on how to respond to populism. It is therefore an important read for all those interested in the subject. * Anthony Kennelly, Irish Jurist *

List of Abbreviations
xi
Introduction: Liberal Constitutional Democracy, its Illiberal Challengers, and the Question of Distributive Justice 1(30)
I Situating the Nexus between Liberal Constitutionalism and Distributive Justice in its Historical and Theoretical Context
4(15)
II Searching for Liberal Constitutionalism's Distributive Justice Baseline: The Journey from Rawls's "Constitutional Essentials" to the Constitution's "Justice Essentials"
19(3)
III Organization of the Book
22(9)
PART I NEW CHALLENGES AND THREATS
1 Disembodied Law, Reinvigorated Religion, and Tribal Politics
31(34)
I Imagining an Ideal of a Just Constitution and Laws for Each, All, and their Multiple Competing Ideologies
31(9)
II The Road to Alien and Disembodied Law
40(13)
(a) Transnationalization and multiplication of a plurality of legal regimes that foster layering and segmentation
44(4)
(b) Fragmentation and compounding complexity through administrative regulation, selection of applicable law by the economically powerful, and the move from public adjudication to private arbitration
48(2)
(c) Asymmetrical uses and evasions of existing legal norms to foster unprecedented relationships based on domination and control of the individual's needs and objectives
50(3)
III The Redeployment of Religion as a Politic Against Institutional Secularism
53(8)
IV From Adversary to Enemy: The Rise of Tribal Politics
61(4)
2 Local versus Global, Material Well-Being, States of Stress, and the Erosion of Justice
65(40)
I Introduction
65(2)
II The Justice Essentials Confront the Divide between Redistribution and Recognition
67(1)
III The Global Economy, Exacerbation of Economic Inequalities, and the Justice Essentials
68(7)
IV The Minimum of Justice and the Contrast Between First- and Second-Generation Constitutional Rights
75(12)
(a) Philosophy and the correlation between right and duty
75(3)
(b) Social and economic rights in comparative constitutional law
78(6)
(c) Second-generation rights versus first-generation rights and their respective policy-based and budgetary implications
84(3)
V Economic Globalization, Transnational Plurality of Legal Regimes, and Constitutional Redistribution under Minimum Justice
87(2)
VI Constitutional Democracies Confront the Stress of Global Terrorism and Worldwide Pandemics
89(16)
(a) Conditions of stress as halfway between ordinary times and times of crisis
90(4)
(b) The stress of global terrorism
94(4)
(c) Stress and the COVID-19 pandemic
98(7)
PART II REVISITING AND RECONFIGURING THE PHILOSOPHICAL GROUNDING OF LIBERAL CONSTITUTIONALISM'S IDEAL OF JUSTICE
3 Confronting the Gulf between Law and Solidarity: Kelsen Encounters Freud
105(24)
I Introduction
105(2)
II Kelsen's Kantian Pure Theory of Law and the Minimum of Universal Justice According to Law
107(6)
III Freud's Psychoanalytic Account of the Passage from Individual Singularity to Group Identity
113(9)
IV Kelsen's Turn to Freud to Bolster his Conception of the State as Pure Law
122(2)
V The Broader Implications of the Encounter between Kelsen and Freud
124(5)
4 Law Redux: Schmitt, CLS, and the Drift to Politics; from Posner Back to Marx and the Absorption of Law into Economics
129(31)
I Introduction
129(3)
II Schmitt's Secular Theology and its Politics of Division Rallying Friends Against Enemies
132(8)
III Critical Legal Studies (CLS) and Law as Indeterminate and Political All the Way Down
140(5)
IV Posner's Economic Framing of Law to Conform with the Ideology of Wealth Maximization
145(6)
V Rereading Marx on Law as a Tool in the Arsenal of a Materialist Political Economy
151(9)
5 Kantian Universalism Reframed for a Post-Totalitarian Age: The Legacy of Rawls, Habermas, and Dworkin
160(37)
I Introduction
160(1)
II Kant's Categorical Imperative and the Severing of Justice from the Good
161(6)
III Rawls' Hypothetical Social Contract, His Two Principles of Justice, and the "Constitutional Essentials"
167(7)
IV Habermas' Dialogical Proceduralism, the Dynamic between System and Lifeworld, and the Call for Constitutional Patriotism
174(11)
V Dworkin's Substantive Political Philosophy and Liberal Egalitarian Constitutional Jurisprudence: A Path to the Justice Essentials?
185(12)
6 Tragic Deconstruction Set Against the Impenetrable Singular and Reconstruction as Spectacle and Administration: From Derrida to Agamben
197(30)
I Introduction
197(2)
II Derrida's Deconstruction of the Nexus between Law and Justice: Confronting Irreducible Fissures in the Context of Interpretation and Ethics
199(3)
III The Nietzschean and Heideggerian Roots of Derrida's Radical Conception of Singularity
202(8)
IV Derrida's Insurmountable Gap between Law and Justice: A Pure or Merely Relative Tragedy?
210(2)
V Agamben's Reconstruction: Law's Split into the Glow of Divine Glory and the Minutiae of Administration
212(7)
VI Assessing the Coupling of Derrida's Deconstruction and Agamben's Reconstruction from the Standpoint of the Justice Essentials
219(8)
PART III BUILDING A COMMONLY SHARED BASIS TOWARD A PLURALIST INCLUSIVIST CONSTITUTION
7 The Dialectics of Comprehensive Pluralism: Approaching the Justice Essentials from the Middle
227(22)
I Introduction
227(2)
II Comprehensive Pluralism's Negative and Positive Dialectical Moments and Their Hegelian Origins
229(9)
III The Normative Case for Comprehensive Pluralism
238(7)
IV Comprehensive Pluralism's Responses to Critics
245(4)
8 Justice Essentials Minima and Comprehensive Pluralism's Fixed-core Minimum Set Against its Plural Maximum
249(38)
I The Justice Minima under Comprehensive Pluralism: Linking Justice to Identity, Autonomy, and Solidarity
249(22)
(a) The bare bones of pluralist justice
249(5)
(b) Minimal identity as mediation between inward retreat and outward lurch
254(9)
(c) The combined minimum of autonomy and solidarity within a just constitutional order: care and concern for insiders without demeaning the dignity of outsiders
263(8)
II Comprehensive Pluralism's Approach to the Justice Essentials: The Dialectic between the Fixed-core Minimum and the Plural Maximum
271(11)
III Challenges and Pathologies Confronting Comprehensive Pluralism's Quest to Meet the Justice Essentials
282(5)
Conclusion: Projecting the Nexus between Liberal Constitutionalism and the Justice Essentials into Its Conceivable Futures 287(6)
Bibliography 293(10)
Index 303
Michel Rosenfeld is the University Professor of Law and Comparative Democracy, Justice Sydney L. Robins Professor of Human Rights and Director of the Program on Global and Comparative Constitutional Theory at the Benjamin N. Cardozo School of Law of Yeshiva University. He teaches in the areas of legal philosophy and US and comparative constitutional law. He has lectured throughout the world and is the author of numerous books, which have been translated into eleven foreign languages. He was the founding editor-in-chief of the International Journal of Constitutional Law (2000-2014) and the president of the International Association of Constitutional Law (1999-2004).