Wojciech Sadurski

Giving desert its due : social justice and legal theory

One: Justice - Legal Justice - Social Justice.- 1: The Concept of Justice.- 2: Problems of Justification: Social Contract and Intuition.- 3: Substantive Justice and Equality before the Law.- Two: Justice as Equilibrium.- 4: The Principle of Equilibrium.- 5: Distribution According to Desert.- 6: Needs and Justice.- 7: Preferential Treatment.- 8: Punishment and the Theory of Justice.- Postscript.- 9: Beyond Social Justice.- Notes.- Selected Bibliography.

Freedom of Speech and its Limits

Preface. 1. Justifications of Freedom of Speech. 2. Speech and Harm. 3. Speech and Equality. 4. Discrimination and Illocutionary Acts. 5. Viewpoint Neutrality and Its Rationales. 6. Racial Vilification and Freedom of Speech. Index.

Social Justice and Legal Justice

The main aim of this paper is to challenge the validity of the distinction between legal justice and social justice. It is argued that what we usually call “legal justice” is either an application of the more fundamental notion of “social justice” to legal rules and decisions or is not a matter of justice at all. In other words, the only correct uses of the notion of legal justice are derivative from the notion of social justice and, hence, the alleged conflicts between criteria of social and legal justice result from the confusion about the proper relationship between these two concepts. Two views about the “social justice/legal justice” dichotomy are of particular importance and will provide the focus for the argument: this dichotomy is sometimes identified with a classical distinction between “distributive” and “commutative” justice and sometimes with the distinction between “substantive” and “procedural” justice.

Speech and Harm

In what became perhaps the most oft-quoted sentence in the First Amendment jurisprudence of the United States, Justice Stevens observed that “few of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice”.1 Much less celebrated is a reply by Archibald Cox: Few of us would march our sons or daughters off to war to preserve the citizen’s right to see pictures of American Nazis marching in uniform in Skokie, Illinois, or to hear advocacy of Stalinist Communism, or to read advertisements stating the price of prescription drugs. The test is both unreasoning and insufficient.2

European Constitutional Identity

The language of common European constitutional identity is distinguishable from that of common European constitutional traditions in that the former does not focus so centrally on the past, and is independent of the legal doctrinal language of the EU law. When discussing constitutional identity, there are, in particular, the following four questions which deserve to be addressed: (1) What are we doing when we are constructing the European constitutional identity; what are the features of the interpretation leading to such a construction? (2) What values/ideals/principles are a part of our constitutional identity? (3) How does European constitutional identity relate to the specific constitutional identities of European nation-states? (4) What is the relationship between the discourse about political integration within the EU and the existence of European CI, as separate from, and paramount to, identities of member states? On that last issue it is submitted that there is no simple connection between ascertaining the dominant identity at a particular level and the implications for the division of authority between the European and national levels within the EU.

Neutrality of Law Towards Religion

While the concept of neutrality does not lend itself in an obvious manner to the discussion of judicial protection of minorities and of the theories of criminal punishment — the two areas discussed in Chapters 5 and 6 — it is no doubt very much at home in the area of the relationship between law and religion. One may say that the law-religion relationship is a natural locus of the liberal neutrality. The idea of a secular liberal state, i.e. the state which neither gets involved with matters religious nor inhibits in any way religious expression and activities, has been long understood as best encapsulated by the idea of the state’s neutrality toward religion. Indeed, the Supreme Court of the United States has repeatedly declared that the Constitution requires the government to pursue a policy of neutrality regarding religion, and that, in accordance with that constitutional mandate, the Court must “enforce[] a scrupulous neutrality by the State, as among religions, and also between religious and other activities”1.

Supranational public reason: On legitimacy of supranational norm-producing authorities

The emergence of strong authorities beyond the nation state has raised questions about the absence of democratic legitimacy at the supranational level. The usual response to this dilemma has been an attempt to uncouple the strict link between national statehood and democracy, and in the process, to confer a degree of legitimacy on supranational authorities. This article argues that such an uncoupling is unconvincing, and that within the legitimacy-democracy-statehood triangle, the uncoupling of legitimacy and democracy is a more promising strategy. The legitimacy of supranational authorities is grounded in their appeal to ‘public reason’ – a legitimacy-conferring device well-suited to supranational authorities, as illustrated in this article by the examples of the European Court of Human Rights and the WTO dispute settlement system. On this basis, the article argues that we should not see the relationship between statehood legitimacy (based optimally on electoral democracy) and supranational legitimacy (based on public reason) as mutually antagonistic and engaged in zero-sum competition. Rather, this relationship allows scope for synergy, with supranational authorities often playing an important role in supporting democracy at the nation-state level.

Socio-economic Rights

Regardless of philosophical controversies over whether socio-economic rights properly belong in constitutions, the omission of such rights was never a plausible political option for constitution-makers after the fall of Communism. The chapter opens with a discussion of how the controversies over constitutionalization of those rights affected their constitutional design in CEE, and then discusses constitutional catalogues of socio-economic rights, the status of those rights, the drawing of distinctions between different categories of rights by constitutional courts (illustrated by social security cases), and two special cases regarding the right to work and the right to education. An overall picture of the output of constitutional courts in this field is ambiguous. Some decisions frustrated to a very high degree the governmental plans for reform, especially in the field of social security systems. On the other hand, there were numerous instances in which the constitutional courts reinterpreted the right in question in such a manner as to make it compatible with the new reality of a socio-economic system and thus rendered the right more realistic, more relevant, and more appropriate considering the systemic changes to, and the fiscal realities of, the post-communist state.

Reasonableness and Value Pluralism in Law and Politics

The concept of “reasonableness” is deeply engrained both in legal theory and in political philosophy. In the former, jurisprudential arguments about reasonableness are informed by the growing use of this category in international law, in European law, and also in national legal orders, in particular in constitutional and administrative law of many countries. In the latter, i.e. in political philosophy, “reasonableness” is one of the key concepts of contemporary political liberalism where it plays the role of a criterion (or of the set of criteria) of appropriateness of certain rationales for the use of coercion by the state towards individuals, and thereby is a crucial criterion of the limits of legitimacy of the liberal state. What is puzzling, however, is that these two currents: the arguments about reasonableness in law and in politics, are usually not considered jointly but rather constitute two parallel currents of thought with no common points. As far as I know, there has not been any serious attempt to identify the common denominator(s) of these two types of “reasonableness.” It is surprising given that the literature on reasonableness both in legal theory and in political theory is quite rich, so one would have thought that at least some writers would be tempted to consider them jointly. It can hardly be explained by the disciplinary separation between legal theory and political philosophy, and the inability or unwillingness of the scholars in these two fields to intrude upon each other territories. To the contrary, there have been many edifying and impressive examples of interdisciplinary work of this kind, but not with regard to reasonableness. It may well be that this has been for good reasons; perhaps indeed, the only thing which is common to reasonableness in law and reasonableness in politics is the word, and a supposition that the commonality of the word reveals the commonality of the phenomenon described by the word might be considered to be a case of a nominalist fetishism. (It would be as if someone suspected that there must be some commonality of meaning between “game” as a play and “game” as wild animals because of the identity of the word). A nominalist error of this sort should be avoided.

EU Enlargement and Democracy in New Member States

This hope was echoed in the public discourse and in the literature. At a minimum, accession was viewed as providing CEE states with a guarantee against things going really bad and thus with extra protection against potentially sliding into chaos, authoritarianism, and uncontrolled corruption. Even if it will not add any positive features to the democratic institutions of these countries, the accession (it was thought) will at least help cushion democratic institutions against the worst threats should a crisis situation occur. In a word: it will render democratization irreversible. This hope was accompanied—and supported—by a general sense of frustration with the state of democracy in the new member states. Citizens of CEE do not trust and do not particularly like their own states: 15 years after the advent of democracy, the belief in their own democratic institutions is very low. This is undoubtedly a legacy of the immediate past; as George Schopflin notes, “[T]he state, having been seen as an alien, impenetrable, inauthentic and hostile entity, continues to be regarded with suspicion, and reliance on personal connections is widely preferred, as real.”2 In all CEE countries there is a clear contrast between a very small number