Constitutionalism and Justice

This chapter is founded on the conviction that legal institutions and legal procedures are not mere means to achieve some desirable contingent outcomes: the protection of rights, the flourishment of democracy, coherence, and stability, and so forth. Instead, often institutions which are typically justified on these grounds are valuable as such. More specifically, it argues that constitutionalism can be justified not merely as a contingent means to bring about justice (or other desirable ends) but as a necessary component of a just polity. This chapter disputes the methodological starting point of what has been labelled in the past as ‘instrumentalist constitutionalism’ and defends robust constitutionalism. This chapter is organized as follows. Section II exposes some of the difficulties in traditional constitutional instrumentalism. Section II defends two aspects of constitutionalism on non-instrumentalist grounds: binding constitutional directives and judicial review.

Republicanizing Rights?

This chapter contends that the republican argument against judicial review is misplaced, illustrating this argument by reference to the doctrine of proportionality. Whereas constitutional rights are often understood as placing fixed limits on politics, transcending historical and political contingencies, the doctrine of proportionality in particular enables the understanding of constitutional adjudication as accounting for the instability, the contestability, and even the indeterminacy of rights. In short, the doctrine is consistent with an understanding of rights as falling within the ‘circumstances of politics.’ In particular, constitutional rights can be understood not as guaranteeing spheres of presumptive immunity for particular kinds of activities presumed as essential to human dignity or autonomy, but rather as requiring public authorities to provide special kinds of justifications for specific kinds of acts (just as Forst, in particular, suggests).

Proportionality and Justification

This chapter presents a normative defense of proportionality’s absolute validity, arguing that proportionality is one of the central rules that establish the space of reasons. Proportionality enables the construction of a justified and well-founded basis for the rational application of human rights. The normative basis of proportionality lies in a moral right to justification. To explore this idea, the chapter begins by explaining the meaning of a right to justification. Next, it explores how it relates to the proportionality test. Building upon the distinction between internal and external justification of rights reasoning, it also addresses the universality problem that consists in doubts about the global validity of the right to justification. It defends the international and transnational validity of the right to justification against claims to cultural relativity by discussing the application of human rights. This, in turn, allows a defense of Forst’s right to justification as a robust fundament of discursive global constitutionalism.

Distributions, Relations, and Justifications

In political philosophy, it has become common to distinguish two paradigms of egalitarian thought: distributive and social egalitarianism. While the former focuses on who should get how much of what, the latter conceives of equality as a certain relationship between the members of society. This chapter first provides a rough reconstruction of those two paradigms and their respective strengths and weaknesses. It then offers some doubts about Rainer Forst’s discourse-ethical version of the social- egalitarian approach to justice. Finally, it draws an egalitarian picture of justice with the notion of rights at its center that blends the focuses on distributions, relations, and justifications.

The Constitution of Justification

This chapter presents Rainer Forst’s responses to the authors of the preceding chapters. According to Forst, the topics that need to be addressed cover a very wide terrain, ranging from foundational questions about moral universality and the reflexivity of practical reason to questions of legal, political, and social justice, critical theory, the value of democracy, the justificatory practice of judicial review or the European polity. He attempts to address them from within the theory of justification that he has been developing over the years since writing his first book, Contexts of Justice (published in German in 1994). In order to do justice to the individual authors, Forst’s responses follow the order of the contributions, and are divided broadly into replies to the chapters that directly address his work and comments on the chapters that develop an argument in dialogue with his work without focusing directly on it.

The Concepts of Non-Domination and Justification in EU Security-Related Context

This chapter explores the implications of a non-domination oriented view for understanding EU security regulation. It asks how the non-domination template fits the constitutional legal model, and what it adds for the understanding of the establishment of an ‘Area of Freedom, Security and Justice’ in the specific case of the European Union. The concept of non-domination is commonly seen as one of the most central concepts in republican theory. Therefore, this chapter looks at the relationship between coercion, which is the common term in legal vocabulary for describing force, and the concept of domination in political theory as such. It also discusses the implications of non-arbitrariness and the right to justification in a new security-related context. Specifically, this chapter links the question of security regulation to the longstanding debate in political theory on the connection between freedom and non-domination and to the constitutional debate on the formation of security regulation in Europe.

Democracy as Good in Itself

This chapter addresses the problem of the justification of democracy. It begins with an investigation of political-legal instrumentalism in general and democratic instrumentalism in particular. This is followed by three sections, each of which presents and discusses the three kinds of democratic non-instrumentalism. The argument here proceeds progressively, in the sense that objections to the first kind of justification (Aristotelian non-instrumentalism) lead to the second kind (justice-first non-instrumentalism), and similarly with the transition from the second to the third kind of non-instrumentalism (Kantian non-instrumentalism). The chapter includes an extra section on Kantian non-instrumentalism, since this justification of democracy is the main contribution of the chapter. It argues that the Kantian justification is a justification of a specific form of democracy, namely, constitutional democracy.

Practical Justice

This chapter examines practical justice, the practice of solving problems that are generally understood as problems pertaining to justice, wherever these arise. It juxtaposes Forst’s paradigm of justice as justifiability with a paradigm of distributive justice. Contradicting Adorno’s famous dictum that there could be no right life within the false one, the chapter follows an ethos of practice which consists in acting in accordance with the demands of justice notwithstanding unjust contexts around us. It then defends the distributive paradigm against criticism, noting that justice also distributes the burden of argumentation in a particular way, as well as the close relation between equality and freedom.

The Limits of Justification

This chapter focuses on the limits of Forst’s right to justification. It argues that Forst failed to integrate the transcendental and the critical dimension of justification by establishing an immanent connection. Rather, he oscillated inconsequently between these dimensions in a methodologically indecisive manner. Forst shielded the right to justification, qua universal principle, in a self-contradictory way from systematic and self-reflective criticism, thereby hiding the presumptions, blind spots, and potential exclusions of his own theory. The main reason for these failures lies in Forst’s concept of noumenal power. This concept was incapable of advancing beyond on empty formalism, thus preventing an adequate analysis of indirect perpetuations of inequality and oppression.

Noumenal Power, Reasons, and Justification

This chapter addresses the connection between the right to justification and power. It reconstructs Forst’s noumenal understanding of power by analyzing his argumentative steps from the recognition of reasons by subjects of power to the thesis that this recognition requires justification and, ultimately, to the conclusion that power requires justification. It then challenges different aspects of this account related to a conceptual link and a normative link between power and justification. As far as the conceptual link is concerned, the chapter critically explores Forst’s various premises in order to challenge his conclusion that power requires justification. This critical exploration raises doubts about Forst’s starting point that to be a subject of power is to be moved by reasons.