Michel Rosenfeld

Affirmative action and justice : a philosophical and constitutional inquiry

A comprehensive discussion of both the interpretive and critical issues central to the question of whether affirmative action programs are constitutional. Michel Rosenfeld presents a new theory that strongly defends the justice of affirmative action from the standpoint of both philosophy and constitutional law.

Constitutionalism, identity, difference, and legitimacy : theoretical perspectives

Interest in constitutionalism and in the relationship among constitutions, national identity, and ethnic, religious, and cultural diversity has soared since the collapse of socialist regimes in Eastern Europe and the former Soviet Union. Since World War II there has also been a proliferation of new constitutions that differ in several essential respects from the American constitution. These two developments raise many important questions concerning the nature and scope of constitutionalism. The essays in this volume—written by an international group of prominent legal scholars, philosophers, political scientists, and social theorists—investigate the theoretical implications of recent constitutional developments and bring useful new perspectives to bear on some of the longest enduring questions confronting constitutionalism and constitutional theory. Sharing a common focus on the interplay between constitutional identity and individual or group diversity, these essays offer challenging new insights on subjects ranging from universal constitutional norms and whether constitutional norms can be successfully transplanted between cultures to a consideration of whether constitutionalism affords the means to reconcile a diverse society’s quest for identity with its need to properly account for its differences; from the relation between constitution-making and revolution to that between collective interests and constitutional liberty and equality. This collection’s broad scope and nontechnical style will engage scholars from the fields of political theory, social theory, international studies, and law. Contributors . Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich K. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, Andras Sajo, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West

Sotto il velo della tolleranza. Un confronto tra il trattamento dei simboli religiosi di maggioranza e di minoranza nella sfera pubblica

The essay focuses on key current questions through a comparative analysis of the treatment of displays of religious symbols in public places. These questions include: whether, assuming commitment to pluralism, multiculturalism and religious and non-religious comprehensive views, there may be ways to improve on existing models or to replace them with better-suited ones given the new religious and political realities; and whether tolerance can be redeployed to boost pluralism while avoiding irreconcilable conflicts between religious fundamentalism and secularism. The place of religious symbols in public spaces provides a particularly good case study in as much as conflicts over such symbols constitute a direct challenge to the legitimacy of the dominant conception of constitutionalism as inextricably linked to secularism. In a pluralistic society, religious symbols play a key role in identity-related dynamics. Moreover, globalization, large-scale migration and the aftermath of September 11, 2001 have dramatically increased the quest for social cohesion and strong collective identities. Religious symbols figure prominently in this quest because they evoke absolute, and therefore reassuring, truths, although they can easily turn into catalyzers of aggression, to the extent that they generate blind fixations and unquestioned adherences. Majorities and minorities seek shelter in religious symbols, as a reflex against the increasing difficulty they experience in finding a common core of shared civic values. A comparative analysis of the reactions of courts and legislators confronted with such conflicts reveals a tendency to counter or minimize pluralism, rather than to seek a reasonable accommodation of the different religions within the polity.

Equality and the Dialectic between Identity and Difference

Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism sets inequality as the baseline, modern equality sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics that call for a type of equality that accounts for differences pose vexing problems for liberalism. How should liberalism handle this? By creating exceptions to generally applicable laws? By promoting group-based autonomy and self-government at the risk of balkanizing the polity? Or, on the contrary, by rejecting demands for recognition of differences and reinforcing equality as identity? After analyzing the dialectic of equality, this paper argues that, based on commitment to the premise that all human beings share an equal status as possessing the same capacity for moral choice, pluralism offers a better framework than liberalism for the best possible reconciliation of identity and difference. This implies a departure from the monolithic nation-state toward multi-layered interconnected centers of collective autonomy and self-government.