Remixing Rawls: Constitutional Cultural Liberties in Liberal Democracies

66 Pages Posted: 1 Oct 2018 Last revised: 18 May 2020

See all articles by Jonathan Gingerich

Jonathan Gingerich

King's College London - The Dickson Poon School of Law

Date Written: March 31, 2019

Abstract

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously form their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all citizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production.

Keywords: philosophy of law, constitutional theory, anti discrimination, copyright, property, Rawls

JEL Classification: K00

Suggested Citation

Gingerich, Jonathan, Remixing Rawls: Constitutional Cultural Liberties in Liberal Democracies (March 31, 2019). Northeastern University Law Review, Vol. 11, No. 2, 2019, Available at SSRN: https://ssrn.com/abstract=3249314

Jonathan Gingerich (Contact Author)

King's College London - The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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