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Title: Constitutional Rights and "Private" Legal Relations: a Note on a Rawlsian Review
Authors: Michelman, Frank I.
Keywords: Basic libertiesbasic structurebill of rightshorizontal applicationJohn Rawlsliberal principle of legitimacyparadox of toleranceprivate sphere
Issue Date: 2021
Publisher: EUT Edizioni Università di Trieste
Source: Frank I. Michelman, "Constitutional Rights and 'Private' Legal Relations: a Note on a Rawlsian Review" in: "Etica & Politica / Ethics & Politics (2021) XXIII/3", EUT Edizioni Università di Trieste, Trieste, 2021, pp. 133-147
Journal: Etica & Politica / Ethics & Politics 
Whether or how a constitution’s guarantees respecting basic right and liberties are to take effect in “horizontal” cases, those involving relations among persons and groups outside of government, has been and remains a matter of debate in liberal-democratic societies. The liberal political philosophy of John Rawls has sometimes been charged with a normative tilt against full extension of the guarantees to these “private” relations. I find the opposite to be true. Given Rawls’s conception of the constitution as a society’s higher-legal framework for assurance of fairness in its basic structure, along with the justificatory function that Rawls assigns to the guarantees in a constitution thus conceived and the idea of these guarantees comprising a unified “scheme of liberties” guaranteed equally to all, it follows that norms of private law allowing constriction of basic of liberties of some by acts of others in civil society should be subject to review for proportional justification. But not every liberty-hostile exercise of a protected basic liberty will come under the scope of such review. For those that do not, liberalism must find some other response.
Type: Article
ISSN: 1825-5167
DOI: 10.13137/1825-5167/33982
Rights: Attribution-NonCommercial-NoDerivatives 4.0 Internazionale
Appears in Collections:Etica & Politica / Ethics & Politics (2021) XXIII/3

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