Introduction
An author is privileged to have his work seriously considered and evaluated by a group of preeminent scholars from different disciplines and parts of the world. This is even much more the case with respect to my book, A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism, which was written in times of self-isolation due to the COVID-19 pandemic, thus lacking the input of the customary testing of ideas in conversations with colleagues with whom one habitually interacts while on campus. I am grateful for the live symposium on my book that took place on October 16, 2023, and for this opportunity to reply in writing to the thoughtful, incisive, critical, and challenging contributions published in the previous issue of Cardozo Law Review by Professors Bonilla Maldonado, Martinico, Michelman, Saada, and Schlink.
Articulating a worthy reply to critics who raise key questions that go to the heart of the argument made in the book and who level thoughtful, incisive, and thoroughly reasoned critiques of some of the book’s main theses certainly presents a daunting challenge. Such a reply obviously calls on the author to defend and clarify his work as best he can, but it also affords him an opportunity to broaden and deepen the horizons of the project that resulted in the book. With this in mind, I will first address the crucial question posed by Giuseppe Martinico concerning the absence of discussion in the book of the constituent power which he persuasively argues plays a crucial role in differentiating liberal constitutionalism from its populist counterparts. As Martinico elaborates—and on this point his observations are fully consistent with those advanced in the book—populist constitutionalism is in harmony with Schmittian political theology. This, as Martinico aptly emphasizes, raises the further salient question of whether liberal constitutionalism generates a constitutional theology that counters Schmitt’s and populism’s political one. In other words, does liberal constitutionalism depend on a moral creed that takes the place of the political creed that sorts out friend from foe for Schmitt and for populist constitutionalists?
By confronting Martinico’s challenges concerning the issues of constituent power and of constitutional theology in Part I below, I concentrate on two main objectives. First, I grapple with these two issues from the standpoint of my understanding of liberal constitutionalism and of its nexus with what I have referred to in the book as the “justice essentials.” I undertake this not only to defend and clarify my comprehensive pluralist approach, but also to further underscore the full scope of its potential virtues. Second, I intend to set up comprehensive pluralism’s approach to the two above mentioned issues as a perspectival platform from which I believe I can best handle the arguments advanced by three of my other critics.
In Part II, I tackle Bernhard Schlink’s systematic, eloquent, evocative, and largely persuasive inquiry into what may qualify as a minimum of justice or, to use his own terminology, as the “justice minima.” Schlink makes the case for justice minima that differ significantly from the lines I draw based on my justice essentials. From within the ambit of theories of justice, arguably Schlink and I ultimately embrace different contestable conceptions of distributive justice with varying consequences for the constitutional, moral, and political spheres. As I endeavor to clarify and elaborate below, however, my aim is not to defend one contestable conception of justice against others, but to decipher justice essentials that may guide liberal constitutionalism in its struggle against both internal threats and external ones such as those posed by illiberalism and populism.
In Part III, I respond to Frank Michelman, who concludes that my comprehensive pluralism, when it is all said and done, comes very close to the theoretical position developed by John Rawls in his Political Liberalism. Providing an adequate response to Michelman is a steep challenge given that he is the preeminent Rawls scholar among legal academics and that he has articulated the most thorough and convincing account of the implications of Rawls’ political liberalism for constitutional theory in his magisterial recent book Constitutional Essentials. On the one hand, my task is somewhat facilitated since I have already addressed Michelman’s likening my theory to Rawls’s in the context of one of my previous books, Just Interpretations, in a long ago exchange also published by Cardozo Law Review. On the other hand, however, my task this time is more arduous, as I have drawn on Rawls and on his theory of “constitutional essentials” in order to develop my conception of the constitution’s “justice essentials.” I do rely on Rawls’ A Theory of Justice, in which he articulated a comprehensive theory of justice that is liberal egalitarian in nature and that, as I emphasize in my book, is clearly distinct from the minimum of justice that liberal constitutionalism ought to guarantee. But in Political Liberalism, Rawls retreats from comprehensive to political justice, thus opening the door to a plurality of comprehensive views. Michelman seizes on that retreat to liken the consequences of my justice essentials to those following from Rawls’ political justice. Whereas there is unquestionably some congruence between the two theories—they would clearly align, as would many others such as civic republicanism, value pluralism, and liberal communitarianism, in the struggle against illiberal populism—I will draw on what I believe are two key distinctions between my theory and Rawls’s. Although Rawls’s pluralism is expanded in his Political Liberalism, it still remains significantly confined, whereas mine aims to be comprehensive all the way up and all the way down. Furthermore, even as restricted to the political sphere, Rawls’s conception of justice privileges the individual over the group, whereas comprehensive pluralism seeks to harmonize the two as best as possible without prioritizing either of them.
In Part IV, I turn to Daniel Bonilla Maldonado’s systematic critique of comprehensive pluralism based on his assessment that my approach is factually, methodologically, and theoretically flawed with the consequence that my conception of pluralism turns out to be, at best, inconsistent or, at worse, self-contradictory. On a cursory reading, Bonilla Maldonado accuses me of ignoring or misunderstanding the Global South; of methodologically modeling my approach as if a valid constitutional theory could be exclusively based on the experience and concerns of the Global North—and even worse, with respect to my discussion of social and economic rights in chapter 2 of the book, on the parochial perspective, informed by American exceptionalism; and of theoretically embracing the allure of pluralism to vindicate yet another iteration of liberal individualism. If I were to respond to Bonilla Maldonado cursorily, I would stress that I explicitly insist throughout the book that comprehensive pluralism refuses to prioritize the individual over the group; that my methodology is functional and contextual, repeating throughout the book that what the justice essentials require in any given constitutional setting differs based on the unique relationship between the actual ethnos and demos in play; and that from the standpoint of liberal constitutionalism, Bonilla Maldonado’s sharp dichotomy between the Global North and the Global South is vastly overdrawn. However, such a cursory response would be inadequate and would constitute an injustice to Bonilla Maldonado, a leading constitutional theorist from and of the Global South, who has seriously read, considered, and evaluated the book’s discussion of comprehensive pluralism and who has presented his various criticisms in a reasoned scholarly fashion. Accordingly, whereas this acknowledgement will not significantly alter the disagreement between the two of us, it will prompt me to seriously address whether my approach is suited to properly extend to constitutional democracies within the Global South, and whether, in spite of my insistence that comprehensive pluralism purports to place the individual and group on the same footing, Bonilla Maldonado’s criticism requires some clarification or adjustment on my part.
Finally, in Part V, I will address the key philosophical questions that Julie Saada raises concerning my comprehensive pluralism based on her rigorous and thorough account of the two contradictions inherent in the dialectics of the universal. The first of these contradictions is an internal one and it follows from the conclusion that any conception of the universal necessitates setting correlated inclusions and exclusions. At the same time, any iteration of the universal results in an external contradiction to the extent that it makes it unavoidable to reject all other competing plausible elaborations of the universal. What logically follows from this is that the universal’s internal contradiction seemingly culminates in monism rather than pluralism, whereas its external contradiction apparently results in relativism, thus also negating the viability of pluralism. Saada concludes her philosophical inquiry by posing the question of whether comprehensive pluralism could avoid the twin traps of monism and relativism by recourse to a “meta-universal” predicated on equality. In her appraisal of the conflicts inherent to universals, Saada draws on the distinctions between universals that purport to institute and those that are instituted. As I understand that distinction, it mirrors at a higher level of abstraction that raised by Martinico in his discussion of the constituent power in constitutional theory and in the latter’s correlation to the constituted power. More generally, Saada philosophically challenges comprehensive pluralism’s claim that it can cogently aspire to pluralism all the way up and all the way down. And in my response to this challenge, I attempt to buttress my replies to the other critics who cast me, in essence, as either a monist grounded in liberal individualism or as a relativist adhering to a contestable conception of justice among many.