Special Issue: Law and the Liberal State: Volume 65

Subject:

Table of contents

(12 chapters)
Abstract

Post-Enlightenment liberalism faces a paradox: The liberal principle of legitimacy demands states justify their constitutional order in terms citizens can accept, but there is no uncontroversial comprehensive conception of justice on which to form the requisite consensus. Rawls resolves the paradox by embracing a pragmatism that abandons the concept of truth in the political forum to secure consensus and legitimacy. Philosophers have challenged the idea of justice without truth as incoherent, and social critics have attacked it as naïve. This chapter defends Rawls’s pragmatism against such critics and argues that the future of liberal constitutionalism may depend on its success.

Abstract

Neoliberalism has profoundly influenced the relationship between law and the state. Market rhetoric and ideology have fostered Janus faces of law, a double vision of law where both sides of the face adhere to one another through neoliberalism. One face relies on market values and individual liberty, seemingly favoring the reduction of state authority, actually to enhance law’s power. The other Janus face, also drawing on values of market efficiency and individual responsibility, expands criminal justice and its role in the state. Together the Janus faces of law diminish democratic values and practices of law in favor of economic growth, efficient governance, and punishment.

Abstract

This chapter examines jury nullification, through which American juries refuse to convict criminal defendants in the face of overwhelming evidence of guilt to express disapproval of specific criminal laws or of their application to particular defendants, through the political theory of Carl Schmitt. It distinguishes liberal components of American jurisprudence, especially the rule of law, from democratic sovereignty, and shows how the two are in deep tension with one another. In light of this tension it argues that jury nullification amounts to democratic sovereignty applied counter to the liberal state in a way that paradoxically upholds individual liberty.

Abstract

How did gays in the military go from being characterized as dangerous perverts threatening to the state, to victims being persecuted by the state, to potential heroes fighting on behalf of the state? What implications does this shift have for understanding the means by which the liberal state uses law to include the previously excluded? Offering a critical account of the inclusion of gays in the military, I argue that while the lifting of the ban can be seen as an important step in a classic civil rights narrative in which the liberal state gradually accommodates the excluded, pop culture allows us also to see state and minority group interest convergence as well as divergence, revealing the costs of inclusion.

Abstract

This chapter problematizes the body politics of American liberalism, as viewed through the lens of health policy. The author suggests that American efforts to pursue basic health goals are undercut by the particular way in which American liberals – and their state – conceptualize bodies. To understand the theoretical basis of this body politics, the chapter examines policy preoccupations such as the institution of informed consent, malpractice reform, and efforts to establish a Patients’ Bill of Rights. Finally, considering the ideological contexts that have given rise to the Patient Protection and Affordable Care Act, the author gestures toward the establishment of a stronger liberal – and possibly post-liberal – health care system that takes the embodiment of its subjects seriously.

Abstract

The law in a liberal state is often a violent instrument. So said Robert Cover. Among those communities to which the law has been particular cruel are Native Americans. Indeed, the traditions and practices of Native American tribes have spawned rich and fascinating narratives. Each tribe has created its own “nomos – its own normative universe” – with a distinct set of rules, expectations, and tenets. Even still, the state and federal governments have historically challenged Native American traditions and culture with various legal and judicial policies. Insofar as the state-imposed law is blunt and imprecise, certain Native American narratives are thus threatened. Over the past decade, several judicial cases have highlighted the clash between the state’s imperial authority and Native American narratives. Our chapter explores these court cases with an eye to the inevitable conflicts that emerge when law exists uneasily in a liberal state.

DOI
10.1108/S1059-4337201465
Publication date
2014-09-27
Book series
Studies in Law, Politics, and Society
Editor
Series copyright holder
Emerald Publishing Limited
ISBN
978-1-78441-239-5
eISBN
978-1-78441-238-8
Book series ISSN
1059-4337