Three new papers by Jeremy Waldron

Professor Jeremy Waldron has posted three new papers on SSRN:

(1) Constitutionalism: A Skeptical View

Abstract:
This paper examines the ideology that goes by the name of "constitutionalism." The first part of the paper considers the significance of "written constitutions" The second part of the paper casts a skeptical eye at conceptions of constitutionalisim that emphasize "limited" government. Once "limited government" is contrasted carefully with "restrained government" (restraints upon specific actions by government) and with "controlled government" (e.g. insistence upon democratic control), we see that the association of constitutionalism with general limitations on the scope of government ought to make it a much more controversial ideal than the general anodyne acceptance of the term "constitutionalism" might lead us to expect. Finally, the anti-democratic implications of constitutionalism are explored. The paper argues that, by insisting on limited government, constitutionalism downplays the important role that constitutions have to perform in the modern world in establishing and securing specifically democratic authority.

(2) Secularism and the Limits of Community

Abstract:
This paper addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is "gated") and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic that reinforces market exclusion and the disparagement of the claims of the poor. If religious considerations are to be used to uphold those claims and to mitigate exclusion, they need to be oriented directly to that task, and to be pursued in ways that by-pass the antithetical claims of community. Religious considerations are at their most powerful in politics - and are most usefully disconcerting - when they challenge the logic of community.

(3) Persons, Community, and the Image of God in Rawls’s Brief Inquiry

Abstract:
The idea that humans are created in the image of God – imago dei – is an idea that John Rawls deployed in “A Brief Inquiry into the Meaning of Sin and Faith,” his undergraduate senior thesis from 1942, published last year in a well-received volume edited by Thomas Nagel. Usually when talk of the image of God is in the air, emphasis is being put on the individual: the individual human person, created in the image of God, commands a certain respect and must not be used, violated, or desecrated – not even for the sake of the greater good of a community to which he or she belongs or with which he or she is associated. But in Rawls’s dissertation it is community that is said to be created in the image of God; the individual human in his or her own right is not dignified directly under these auspices. The community is dignified with the image of God, but because God Himself is a community, on the theology that Rawls is using: God is “perfect community within Himself,” as Rawls puts it, “being three persons in one as the doctrine of the Trinity states.” In this paper, I criticize the young Rawls’s use of this communal image argument. In their introduction to “Brief Inquiry” Tom Nagel and Joshua Cohen say that Rawls’s communal image argument is compatible with (even congenial to) his later insistence in “A Theory of Justice” on taking individuals seriously (and criticizing theories like utilitarianism which fail to take seriously the distinctions between persons). I argue that Cohen and Nagel are wrong about this. I also argue that if one reflects on what I call “the circumstances of (human) community,” one will see that nothing but confusion follows from any analogy (even an idealizing analogy) between human community and whatever community exists in the “social Trinity.”

Jeremy Waldron is University Professor at New York University School of Law.