Rawlsian Jurisprudence and the Limits of Democracy

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The present article analyses John Rawls’s advocacy of judicial review via a close reading of Rawls’s discussions of his “principles of paternalism” and his “four-stage sequence” in A Theory of Justice (1971). The article surveys Rawls’s political “principles of paternalism,” the limits, checks, and constraints he imposes on majority rule and civic participation, and finally the role Rawls assigns to courts, judges, and judicial review within his political conception of justice. Following upon this survey, this article contends that the particular relations of supremacy and domination (Herrschafts-Verhältnisse) at which Rawls’s political thought aims are judicial or juridical—the supremacy of judges over citizens, of courts over legislatures, and of the judiciary over participatory politics.