Justice, legitimacy, and constitutional rights

Abstract

There is a tension between the idea of popular sovereignty and our understanding that basic constitutional rights and liberties have a normative authority which is independent from the results of democratic decision‐making procedures. On the one hand there is the claim that the content of political justice, at least as far as the basic liberties are concerned, is to be fixed solely by substantive moral and political argument, while on the other there is the claim that it is the people who determine the specific scheme of basic liberties that they live under. The apparent tension between the two claims can be resolved by introducing, firstly, a distinction between the concept of justice and the concept of legitimacy and, secondly, between proto‐rights and constitutional rights. Unlike constitutional rights, proto‐rights are moral, not legal, rights, and they are less specific than constitutional rights: one set of proto‐rights allows for various schemes of legal constitutional rights. Proto‐rights are part of the principles of justice and can be established only by substantive argument while constitutional rights have to be established by the procedures of democratic legitimization, and, therefore, they are a result of the exercise of popular sovereignty. The correlated distinctions between justice and legitimacy, and between proto‐rights and constitutional rights, allow us to specify the scope of the two claims and, hence, to affirm both simultaneously. The philosophical and legal relevance of the distinctions made is elucidated by a brief discussion of the constitutional rights of freedom of speech in the US and Germany.