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Title:Basic rights and disagreement: is persistent disagreement about basic rights a reason to specify rights by democratic procedures?
Author(s):Strauss, Gregg
Director of Research:Solum, Lawrence
Doctoral Committee Chair(s):Solum, Lawrence
Doctoral Committee Member(s):Moore, Michael; Sussman, David; Varden, Helga
Department / Program:Philosophy
Degree Granting Institution:University of Illinois at Urbana-Champaign
Subject(s):political philosophy
public reason
judicial review
fundamental rights
basic rights
Abstract:Reasonable disagreement about rights is commonly thought to challenge the legitimacy of political liberalism and judicial review. If citizens persistently and reasonably disagree about basic rights, how can any state adopt laws that all citizens can reasonably accept? Why can a handful of judges impose their beliefs about rights on other citizens? I develop a Kantian theory of legitimacy and public reason that responds to these common challenges. Conscientious people will inevitably disagree about their basic rights, because those rights involve vague or contested concepts. In the face of such disagreement, individuals can interact rightfully only if they accept a third-party authority to specify the positive content of rights through general laws. Accordingly, individuals are morally obligated to adopt and support some authority capable of adopting and enforcing general laws that specify their rights. However, citizens may accept the choices of a purported authority only if it remains accountable to citizens in the right way. A legitimate state need not let citizens define rights or adopt definitions that they endorse, even indirectly. Rather, a legitimate state adopts institutions that empowers citizens to challenge its definitions of rights and responds to those challenges in reasons citizens “appreciate,” even if they do not and will never endorse those reasons. Using possible worlds semantics, I disambiguate the idea of “reasons that all can accept” and defend “appreciation” as the foundation of public reason. On this theory, a moderate form of judicial review can enhance a state’s political legitimacy. Unlike other forms of political accountability such as elections, judicial review gives individual citizens the right to demand the state justify its decisions and enables the state as a collective entity to articulate a justification.
Issue Date:2013-05-24
Rights Information:Copyright 2013 Gregg Strauss
Date Available in IDEALS:2013-05-24
Date Deposited:2013-05

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