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Fairness, Consensus, and the Justification of the Ideal Liberal Constitution

Philip Cook

University of Leicester

January 22, 2009

LSE Legal Studies Working Paper No. 4/2009

In Constitutional Goods Brudner argues that the justification of the ideal liberal constitutional must be based on an alternative conception of public reason from that that presented by Rawls in Political Liberalism. This paper sets out the disagreement between the two notions of justification, and argues that Brudner's proposed account is problematic on two accounts. Firstly, it seems internally inconsistent. Brudner's alternative to Rawls's overlapping consensus, a convergent consensus on an inclusive conception of liberalism, will be impossible given the plural and often contradictory nature of differing liberal doctrines. Secondly, even if such a consensus is possible it will be characterized by modus vivendi rather than a reasonable agreement based on the value of fairness. Consequently, Brudner's notion of public justification will lack both fairness and consensus, and should therefore be rejected as the basis for the ideal liberal constitution.

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Date posted: January 26, 2009  

Suggested Citation

Cook, Philip, Fairness, Consensus, and the Justification of the Ideal Liberal Constitution (January 22, 2009). LSE Legal Studies Working Paper No. 4/2009. Available at SSRN: https://ssrn.com/abstract=1331374 or http://dx.doi.org/10.2139/ssrn.1331374

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Philip Cook (Contact Author)
University of Leicester ( email )
University Road
Leicester, LE1 7RH
United Kingdom

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