Introduction
A Pluralist Theory of Constitutional Justice offers a powerful normative theory of liberal constitutionalism: comprehensive pluralism. This theory links liberal constitutionalism with distributive justice. Comprehensive pluralism requires that the three dimensions that compose this concept of justice—redistribution, recognition, and representation—drive the attempts to balance ethos and demos in liberal constitutional democracies, as well as the attempts to balance the singular, plural, and universal dimensions that constitute such political communities. The normative proposal offered by Michel Rosenfeld in his book has numerous strengths. Three of them, which cut across the entirety of his proposal, are particularly noteworthy. On the one hand, the dialogue between theory and practice that guides the construction of the normative proposal is tremendously interesting. For Rosenfeld, liberal constitutionalism must respond to the challenges imposed by contemporary political, economic, and cultural reality. The articulation of theory must therefore be empirically informed. Normative proposals should not be constructed solely on the basis of the demands of political and legal theory.
On the other hand, comprehensive pluralism is constructed through a critical dialogue with tradition. Rosenfeld both draws on and questions the major contemporary theories of justice and legal philosophy perspectives, including Rawls’s liberal egalitarianism, Derrida’s deconstructionism, Kelsen’s positivism, Critical Legal Studies, and Kantian deontologism. Rosenfeld takes these theories seriously: he examines them rigorously and critiques them sharply but respectfully. Finally, Rosenfeld’s normative proposal offers a robust defense of the cultural, political, and moral diversity that characterizes contemporary liberal democracies. Rosenfeld offers a theory that seeks to protect the plurality that exists among individuals, groups, and the political community. Liberal constitutionalism should protect the diverse types of pluralism that constitute liberal democracies.
Despite these notable strengths, comprehensive pluralism is weakened by the following two pluralistic deficits. These deficits limit the theoretical strength and practical reach of Rosenfeld’s normative proposal. The first deficit is a consequence of the insufficiently pluralistic dialogue between theory and practice through which Rosenfeld constructs his theory. I would like to call this the empirical pluralistic deficit. It is caused by the reproduction of questionable discursive and practical patterns of comparative law and politics. The implementation of these discursive patterns, in turn, generates an epistemic injustice that contradicts the central value of Rosenfeld’s normative proposal: pluralism. The second deficit is a consequence of the monism to which comprehensive pluralism is actually committed. The normative proposal that Rosenfeld offers privileges a strong concept of individual autonomy that radically limits the space for moral and political diversity that exists in contemporary liberal democracies. The second order norms that make up comprehensive pluralism demand the radical transformation of the first order moral norms that shape the moral conceptions with which it coexists. Contrary to its purposes, comprehensive pluralism demands that the moral conceptions that coexist in a liberal democracy conform to this strong concept of individual autonomy. It also requires that conflicts between conceptions of the good be resolved in favor of autonomy. I would like to call this the theoretical pluralistic deficit. In the following two Parts I will present and substantiate these two pluralistic deficits that weaken comprehensive pluralism.