Samuel Freeman

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.

In this superb introduction, Samuel Freeman introduces and assesses the main topics of Rawls' philosophy. Starting with a brief biography and charting the influences on Rawls' early thinking, he goes on to discuss the heart of Rawls's philosophy: his principles of justice and their practical application to society. Subsequent chapters discuss Rawls's theories of liberty, political and economic justice, democratic institutions, goodness as rationality, moral psychology, political liberalism, and international justice and a concluding chapter considers Rawls' legacy. Clearly setting out the ideas in Rawls' masterwork, _A Theory of Justice_, Samuel Freeman also considers Rawls' other key works, including _Political Liberalism_ and _The Law of Peoples_. An invaluable introduction to this deeply influential philosopher, _Rawls_ is essential reading for anyone coming to his work for the first time.

Each volume of this series of companions to major philosophers contains specially commissioned essays by an international team of scholars and will serve as a reference work for students and nonspecialists. John Rawls is the most significant and influential philosopher and moral philosopher of the twentieth century. His work has profoundly shaped contemporary discussions of social, political and economic justice in philosophy, law, political science, economics and other social disciplines. In this exciting collection of new essays, many of the world's leading political and moral theorists discuss the full range of Rawls's contribution to the concepts of political and economic justice, democracy, liberalism, constitutionalism, and international justice. There are also assessments of Rawls's controversial relationships with feminism, utilitarianism and communitarianism. New readers will find this the most accessible guide to Rawls currently available. Advanced students and specialists will find a conspectus of recent developments in the interpretation of Rawls.

The publicity of a moral conception is a central idea in Kantian and contractarian moral theory. Publicity carries the idea of general acceptability of principles through to social relations. Without publicity of its moral principles, the intuitive attractiveness of the contractarian ideal seems diminished. For it means that moral principles cannot serve as principles of practical reasoning and justification among free and equal persons. This article discusses the role of the publicity assumption in Rawls’s and Scanlon’s contractualism. I contend that a regard for publicity and a moral conception’s potential to provide a public basis for justification and agreement account for much of the evolution of Rawls’s account of justice after A Theory of Justice . I also discuss whether contractualism can provide a basis for justification and general agreement under the social conditions that it endorses. I contend that it cannot, and conclude with a discussion showing why this should not be a problem for contractualism. Despite appearances, contractualism is a distinctive form of contractarianism, substantially different from Rawls’s position and the social contract tradition out of which it evolved. Key Words: contractarianism • contractualism • John Rawls • public justification • T.M. Scanlon • justice.

Liberalism generally holds that legitimate political power is limited and is to be impartially exercised, only for the public good. Liberals accordingly assign political priority to maintaining certain basic liberties and equality of opportunities; they advocate an essential role for markets in economic activity, and they recognize government's crucial role in correcting market breakdowns and providing public goods. Classical liberalism and what I call “the high liberal tradition” are two main branches of liberalism. Classical liberalism evolved from the works of Adam Smith and the classical utilitarian economists; its major 20th century representatives include Friedrich Hayek and Milton Friedman. The high liberal tradition developed from John Stuart Mill's works, and its major philosophical representatives in the 20th century are John Dewey and, later, John Rawls. This paper discusses the main distinguishing features of the classical and the high liberal traditions and their respective positions regarding capitalism as an economic and social system. Classical liberals, unlike high liberals, regard economic liberties and rights of private property in productive resources to be nearly as important as basic liberties. They conceive of equality of opportunity in more formal terms, and regard capitalist markets and the price system as essential not only to the allocation of production resources, but also as the fundamental criterion for the just distribution of income, wealth, and economic powers. High liberals, by contrast, regard the economic liberties as subordinate to the exercise of personal and civic liberties. They are prepared to regulate and restrict economic liberties to achieve greater equality of opportunities, reduce inequalities of economic powers, and promote a broader conception of the public good. And while high liberals endorse markets and the price system as essential to allocation of productive resources, they do not regard markets as the fundamental criterion for assessing just distributions of income, wealth, and economic powers and positions of responsibility. The paper concludes with some reflections upon the essential role that dissimilar conceptions of persons and society play in grounding the different positions on economic justice that classical and high liberals advocate.