Table Of ContentConstitutive Justice
Constitutive Justice
William A. Barbieri J r.
The Catholic University of America
© William A. Barbieri Jr. 2015
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ISBN 978-1-349-55695-3 ISBN 978-1-137-26325-4 (eBook)
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For Sophia, Maximilian, Felix, and Lukas
Contents
Preface and Acknowledgments ix
Introduction: What If We Held a Constitutional
Convention and Everybody Came? 1
The structure of the bookk 7
1 T he Scope and Scale of Justice 12
Justice and its types 15
The limits of justice: Aristotle 20
Scope and scale 23
On the relationship between the scope and scale of justice 29
Constitutive debates 31
Constitutive justice: why now? 34
2 Reservations about Constitutive Justice 39
The contingency objection 40
Excursus: historical justice 44
The political objection 48
The global distributive justice objection 55
The commutative justice objection 65
3 C onstitutive Justice – A Paradox? 70
Constitutive paradoxes I: founding 72
The paradox of civic virtue 74
The paradox of precommitment 75
The paradox of revolutionary authorityy 76
The demos paradox 77
The constitutional paradox 78
Constitutive paradoxes II: revisions 79
The semiotic paradox of peoplehood 79
The democratic paradox 81
The paradox of democratic justification 83
The paradox of legal interpretation 83
The political paradox 84
4 J ustice between Communitarianism and
Cosmopolitanism 90
Spheres of justice 91
vii
viii Contents
Membership 94
Between people and cosmopolis 101
The cosmopolitan imaginaryy 107
5 Four Transcommunal Approaches 118
Interdependence and the “Circumstances of Justice”:
Hume, O’Neill, Young 118
Recognition and the common good: Hegel, Ferrara, Tietz 130
Democracy and pragmatism: Dewey, Hurley, Fraser, Bohman 138
Deconstruction and reconstruction: Derrida 149
6 Constituents of a Theory 154
Stories of peoplehood 155
Agencyy 159
Boundary-making 173
Justice and injustice 184
7 T oward a Theory of Constitutive Justice 192
The just-war model 194
Cardinal values: responsibility, equilibrium, non-domination 198
Middle axioms 204
Territory and constitutive justice 214
Secession and constitutive justice 221
Immigration and constitutive justice 225
Coda 230
Bibliography 232
Index 253
Preface and Acknowledgments
This book is about the ethics of boundaries.
Boundaries of all sorts surround us, all of the time. The football match
is bounded in space and time, and the players are marked to distinguish
them from one another, as from the officials and the spectators. The
objects on the field, the ball and boots, bodies and goals, have surfaces
and outlines that separate them from their surroundings. The match
and its immediate locale are pervaded with boundaries delineating
facial features, offside traps, halves, cheering sections, genders, sponsor
logos, hairstyles, zoning restrictions, power grids, religious identities,
news beats, league standings, and many, many more things. Boundaries
are omnipresent, and indispensable. We rely on them as we gather in
perceptions, organize our thoughts, coordinate our actions and navigate
through our physical and social environs. They are constitutive of our
everyday mode of existence. Boundaries are so central to the way in
which we organize our world that we tend to take them for granted.
Consequently, we rarely notice how elusive they are. Yet there is some-
thing mysterious about boundaries. Although they are necessary compo-
nents of divisions between continuous objects, they are somehow not
part of the things they separate. They are located in time and space,
but they do not take up time or space. And they raise this puzzle: can
boundaries be understood to be natural and objective entities, or are
they in essence mind-dependent products of human artifice?
There is no need to agonize over such conundrums so long as bounda-
ries remain inconsequential. But sometimes boundaries matter greatly.
Precisely where a geographical border runs, or when one becomes an
adult, or what it means to be part of a given racial group, or nation, or
religion, can have dire consequences for people and indeed be a matter
of life and death. Social boundaries, especially, can produce suffering,
large and small. When that happens, it makes a difference whether we
think of boundaries as natural or artificial. Sometimes such suffering
is the result of attaching improper distinctions to boundaries, and we
condemn such cases as instances of discriminatory treatment. We may
tend, however, to continue to think of the boundaries in question – of
race, territory, nationality, gender, and so on – as essentially natural,
and hence morally unproblematic in themselves. To do so is to fail to
give the proper due to the ineliminably artificial aspect of boundaries in
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