Article

The Constitution and Justice

Roberto Gargarella

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0018

Series: Oxford Handbooks in Law

The Constitution and Justice

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This article is organized as follows. Section I examines a procedural approach to the constitution. According to the procedural reading, a just constitution has to be neutral among different views and establish a fair procedure through which rival parties seek approval from the people. In order to study the procedural approach, it seeks support in John Rawls's Theory of Justice, where the constitution is examined as an exemplar of imperfect procedural justice. Section II distinguishes between two different interpretations of the procedural constitution, one related to libertarianism and the other to egalitarianism. These interpretations allow us to reflect on the neutral character of the procedural constitution. Section III contrasts the procedural approach with an alternative, republican understanding of the constitution. In order to illustrate the differences between these theories, the article examines their conflicting views on whether or not a just constitution should incorporate a list of social rights in its bill of rights.

Keywords: theory of justice; John Rawls; procedural constitution; libertarianism; egalitarianism; social rights; bill of rights

Article.  8518 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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