Theories of social justice are either hegemonic (defending a single determinate standard), skeptical (finding social justice to be radically indeterminate if not meaningless), or pluralistic (claiming that we can disqualify all but a handful of standards, but that we cannot definitively adjudicate among these). I offer here a variation of the pluralistic view, arguing that a single standard cannotbe definitive because of what is termed the antinomies of social justice. These antinomies arise where the demands of justice collide with elements of the gratuitous that are morally valid or are practically unavoidable. Where this occurs, all possible distribution rules turn out to be unfair. An important implication of the argument is that liberal democracies cannot find their grounds for consensus, as John Rawls contends, in a common attachment to principles of justice. Instead, common interests and civic friendship will always be necessary supplements to the sense of justice as a source of social bonds in a free society.

In recent years the debate over the nature and extent of judicial power in the United States has been dominated by questions concerning moral theory, unwritten constitutions, and natural law. In a significant sense, the contemporary discussion is but the continuation of the theory of judicial review first put forth by Edward S. Corwin in 1910–1911; it was this theory that the “higher law background” of American constitutional law derived from the dicta of Sir Edward Coke's opinion in Bonham's Case (1610) that was given its most complete expression in Corwin's famous two-part article in the Harvard Law Review in 1928–29. The fact is, the influence of Coke's opinion in Bonham's Case came from within the scholarly world; its significance stems not from history but from the historians; it was largely Corwin's creation. This paper seeks to correct the record and to show the deficiencies of Corwin's understanding about the relationship of the “higher law” to the American Constitution.

The works of Kliuchevskii, from the Boyar Council of Old Russia and studies of saints and historians to the five-volume Course of Russian History, advanced philosophy of history, even though he thought creating such a view impossible. In the judgment of Russia's most influential historian, neither intellectuals nor rulers nor liberals nor conservatives determined the course of events. Instead, the endless interaction of constantly shifting elements gradually produced change, helping every period in a nation's past to ripen into its successor. Almost invisible changes within the economy, social groups, and administration and the gradual growth of Western influence over centuries constituted the steps that determined Russian history's slow flow. Kliuchevskii never read Marx and Marxist thought did not affect him, but he awakened many to the role of economic forces and helped prepare for some Russians' acceptance of Marxism.

Debates over natural law routinely confuse three quite different sets of issues. First, there are the properly philosophical questions of (i) whether a natural law exists, and (ii) whether positive laws are valid completely apart from their moral specifications. Second, there are questions that properly belong to political theory. These include, (iii) how a constitution ought to allocate responsibility to make natural justice effective, and (iv) how a particular system of positive law handles this issue. Third, assuming that a judiciary is limited by written law, it can still be asked whether this necessarily prohibits judicial uses of natural law theory. Questions at these different levels are sufficiently different that what it takes to solve a question at one level does not necessarily carry over to the others. It is vain, therefore, to search for a single method that brings closure on these issues.

The article examines the setting, in the broadest terms historically, for our contemporary sense of privacy. Given our obvious preoccupation with privacy, there is no need to recite why such an examination might pay dividends. The article has three parts, a consideration of the ancient perspective on privacy by way mostly of Plato and Aristotle, a shorter consideration of the Old Testament perspective, and a consideration of the New Testament and Christian perspective, which is taken to be the primary impulse to our present viewpoint. I conclude with a brief suggestion about a contemporary political problem inherent in this viewpoint.

Communitarian thinkers have counterposed their views to those of liberalism as providing a more adequate basis for a political morality—a morality that deals with issues relevant to a political unit, such as liberty, equality, and fairness. Communitarians face the difficulty that the common understandings they rely on to back up a political morality are not easy to find in the form they need. This is because social units fracture along various lines, giving rise to diverse and often conflicting discourses. Where, despite such fractures, common understandings emerge as a result of either desperation or the manufacture of consent, they do not seem appropriate as a basis for a valid political morality. To avoid the weaknesses of communitarianism, it is not necessary to abandon the importance of social context for political morality. Instead, one can make use of a social theory that stresses social divisions in order to lay the base for political morality. A political morality appropriate to a group can be developed on the basis of the interests associated with such divisions.

The Supreme Court's 1992 abortion decision, Planned Parenthood v. Casey, an the Due Process liberty cases of which it is among the most recent, can be fully understood only by attention to the often-neglected common law dimension of American constitutionalism. The fracture on the Court in this line of cases follows a severing of two elements of common law adjudication: the rule of precedent, on the one hand, and the authority of tradition, on the other. The authors of the joint opinion in Casey craft a rationalized rule of precedent in the manner of the modern reinterpreters of the common law, such as Justices Holmes and Cardozo. The dissenters, by contrast, here and in related cases, seek to recover the legal status of tradition in constitutional interpretation.

Critics of liberalism and even some liberal theorists themselves have criticized a liberal emphasis on autonomy, because they associate autonomy with self sufficiency. That association reinforces the worst aspects of atomistic individualism: social isolation, insulation from the views of others, and a rejection of society's values and interests. But the association of autonomy with self-sufficiency is uncalled for; those who see that association are mistaken, for self-sufficiency represents not a fulfillment of autonomy but the abandonment of it. Autonomy, it is argued, has a social nature: It not only develops through sociality, but it also requires sociality for its exercise. In short, to be autonomous one must know one is autonomous; to know one is autonomous requires giving an account to others of the reasons for a decision or action. The social nature of autonomy may incline theorists to see persons as communitarian or socially situated selves. But communitarians such as Charles Taylor find the self defined in part by communal boundaries and thus see them as context-dependent. Autonomy is bounded by language, not community. It is both context-free and context-related, but not context-dependent. Liberal theorists who champion autonomy should therefore abandon any notions of selves as social atoms or isolates and build liberalism on the implications of autonomy's social nature. Part of those implications is that social institutions that foster and exercise autonomy must involve dialogue or communicative exchange. The most important and effective institutions of that kind are those of direct democracy.

Charles Taylor has developed a powerful critique of neo-Kantian liberalism and its ontological presupposition, the unencumbered self. According to Taylor, the trouble with deontological liberalism is that its neutral state is incapable of promoting the patriotic virtue that is necessary for the maintenance of liberty. This article responds to Taylor's critique by showing how the citizens of an ideal liberal state acquire a ready willingness to meet their public responsibilities in the absence of a government that promotes patriotism as a good for everyone. In particular, it draws upon Rawls's theory of justice to suggest how liberal citizens naturally develop a deep attachment to the political institutions of their community and to their fellow citizens. The concluding section of the article returns to the relationship between politics and ontology, arguing that unencumbered and situated selves are better understood as alternate moments in the life of the liberal citizen than as mutually exclusive ontological possibilities.

Classical political philosophy does not claim to be superior to philosophy nor to revelation. Political philosophy is the highest of the practical sciences, itself a unique and legitimate source of specific knowledge that would limit politics to be politics. For the things beyond politics to be free to be confronted in their own nonpolitical order, the polity must itself be constructed in such a way as not to kill its saints or philosophers. Traditionally, theology has been its own science, not the queen of the practical sciences, but the queen of the sciences. This meant that theology, as an articulated statement of revelation, performed a needed check when politics itself became a substitute metaphysics. Since so much theology is itself modeled on the ideologies of modernity, classical political philosophy serves a double purpose, not only to limit the city to its own area, but to restrain those theologies based on modern ideologies. Thus political philosophy serves to allow revelation to be itself.

With the collapse of the Soviet Union, the People's Republic of China remains the world's only major communist society. Will China's regime go the way of its Soviet counterpart, or might it survive well into the next century and beyond? I do not undertake to answer this question directly. But my analysis of one sector of contemporary Chinese society—the legal system—suggests that the Communist party is losing its tight control over several major areas of Chinese society. In the long-run the party will be progressively weakened by current trends toward legal modernization. These trends encourage more liberal (because noninstrumentalized) forms of political, and not only legal, organization.

Book 4, chapter 8, of the Social Contract, on civil religion, presents a puzzle. According to Rousseau, no state has ever been founded that did not have religion as its base. But which religion? Christianity is not an option. Paganism is not an option. Monotheistic theocracy is not an option. What does that leave? By a process of elimination, we are left with an Enlightenment religion of tolerance and mutual forbearance, which even readers sympathetic to Rousseau (or perhaps especially readers sympathetic to Rousseau) might say is no religion at all. I argue that Machiavelli and Hobbes share Rousseau's fundamental concern, which is that the otherworldly aspirations of Christianity are subversive of political requirements, but each of them thinks he can solve the problem by “de-transcendentalizing” Christianity: Machiavelli, by treating the papacy as if it were a pagan institution; Hobbes, by reinterpreting the New Testament as if it were the Old Testament. The article examines why Rousseau rejects the Machiavellian and Hobbesian solutions to his problem, and why he has no solution of his own to offer.

Scholars often link the emergence of welfarism and socialism to a loss of religious faith. Yet an examination of the beliefs of secularists who had lost their faith suggests that the loss of faith did not result in an emotional need that social reformism sometimes met. Nonetheless, an examination of welfarists and ethical socialists such as T. H. Green suggests that there was an intellectual or rational link between faith and social reformism. Here many Victorians and Edwardians responded to the dilemmas then besetting faith by adopting immanentist theologies, and this immanentism often sustained a moral idealism that inspired various social reformers.

Based on over 75 personal interviews with members of Congress and their staffs, this article examines how three House authorization committees differ in their reactions to federal court decisions versus their reactions to federal agency decisions. In general, Congress holds the courts in higher esteem than it does the agencies. The courts are generally seen as less political than the agencies, and committee reactions to court decisions are seen as much more unusual than reactions to agency decisions. The attitudes of the three committees toward decisions of the other institutions vary in ways consonant with their institutional roles, the committees' political cultures, and the primary goals of the committee members. The domination of lawyer members on the policy oriented Judiciary Committee results in that committee being the most deferential to the courts. The constituency focused Interior Committee is oriented to local interests and members' reelection goals, and it responds to the courts or to agencies only when constituency pressures force it to do so. The power oriented Energy and Commerce Committee treats the courts and the agencies just like any other political actors.

Though little understood in the Western world, the Eastern Orthodox tradition of Christianity has a distinctive approach to politics which might well be labelled “iconic.” Based on the belief that God's kingdom is capable of having an earthly manifestation, and that the Christian empire is in some sense the image of God's omnipotent rule in the heavens, this iconic ethic has often contributed to a tradition of political absolutism in those countries shaped by Orthodox beliefs. However, more recent reflection, which sees human society as image of the Triune God himself, could serve to shape an approach which is conducive to more participatory political arrangements.

Recent cases suggest the Supreme Court may be moving toward a new era of open-ended judicial oversight of economic regulation. Viewed in strictly legal terms today's efforts to infuse economic individualism into the Constitution take a form different from that popularized in the laissez-faire era at the turn-of-the-century. The takings clause of the Fifth Amendment rather than the due process clause of the Fourteenth appears to be the favored vehicle. But, in the past and in the present, those who have insisted that the Constitution creates a significant check on the government's ability to regulate private economic activity consistently have relied upon two interrelated ideas to support their view. First they take the Framers' interest in protecting property to be an endorsement of a free market economic system. Secondly they argue that, because the very idea of liberty in the American tradition has included property, their version of individualism is reflected in constitutional jurisprudence from the time of John Marshall to at least the 1930s. This article explores the extent to which these two factors actually support a theory that the Constitution creates a broad and open-ended prohibition or limitation on government involvement in economic matters. Further, it will suggest that the relationship between liberty and property in the American constitutional tradition must take into consideration a third factor—the public ingredient of private property.

During the past several years, radical right-wing populist parties have made impressive electoral gains in a growing number of West European countries. Their dramatic surge to political prominence has obscured the fact that these parties hardly form a homogeneous party group. Generally, it is possible to distinguish between neo-liberal and national populist parties. Both types of parties are a response to the profound economic, social, and cultural transformation of advanced societies interpreted as a transition from industrial welfare to postindustrial individualized capitalism. National populist parties are primarily working-class parties which espouse a radically xenophobic and authoritarian program. Neoliberal parties appeal to a mixed social constituency and tend to stress the marketoriented, libertarian elements of their program over xenophobic ones. Rather than being mere short-lived protest phenomena, radical right-wing populist parties are a reflection and expression of new political conflicts created by the transition to postindustrial capitalism.

The ability to attach conditions to federal financial aid has contributed significantly to the establishment of federal hegemony in policymaking, allowing Congress and the executive branch to exact from those dependent upon government largesse behavior which could not be compelled through direct legislation. While questions concerning the legitimacy of conditional spending in our federal system are properly directed to the courts, problems inherent in the judicial review of allocational decisions make constitutional challenges of the national spending power no more likely to succeed in the future than they have in the past. Thus, for all practical purposes, the balance of power between levels of government as well as the rights of individual citizens may be permanently impaired.

Much of what states do in the international system they do as a response to their perceived obligations, commitments, or responsibilities. Not all of these obligations are owed to the same sort of recipient, however: some may be owed to other identifiable parties with whom one has arrived at a bargain or an exchange of benefits, but obligations may also be owed to a chosen rule of conduct or guide to action, as in the case of deterrence, and to oneself, as in the case of selfpreservation or one's sense of honor. All three types of international obligation have been recognized in international law and practice, but no one of the three categories encompasses all the duties of states. A complete understanding of international relations requires attention to all three parties to which international obligations may be owed.

In the struggle between Republicans and Democrats for the black vote half a century ago, Joseph W. Martin, Jr., congressman from Massachusetts, played a major role. Using his position as Alf Landon's East Coast campaign manager (1936), minority leader (1939–1946) and chair of the Republican National Committee (1940–1942) he managed to keep the Republican party attractive to many Afro-Americans. Furthermore, the was instrumental in preventing the GOP from abandoning its traditional commitment to blacks in order to win the allegiance of Southern white conservatives. He did this by the type of campaign he conducted, the legislation and causes he supported, and the type of Afro-American he appointed to party positions. As a result it was not until the Martin approach was abandoned in the 1960s that black support for the Republican party plummeted.