“Constitution (Written or Unwritten)”: Legitimacy and Legality in the Thought of John Rawls

• Published date: 01 December 2018
• Date: 01 December 2018
• DOI: http://doi.org/10.1111/raju.12222

© 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

Ratio Juris. Vol. 31 No. 4 December 2018 (379–395)

“Constitution (Written or Unwritten)”:

Legitimacy and Legality in the Thought

of John Rawls

FRANK I. MICHELMAN

Abstract. John Rawls proposed, as what he ca lled “the liberal principle of legitimac y,” that

coercive exercises of pol itical power can be justified to fre e and equal dissenters when “in

accordance with a const itution (written or unwritten) the e ssentials of which all c itizens, as

reasonable and rationa l, can endorse.” Does “unwritten constitution” there refer to nor ms

of constitutional i mport, but that subsist only as custom, not as law? To norms that subsist

as common law but not as code law? To empirical regula rities of political practice, as op-

posed to normative rule s and standards? Which inter pretation is best?

1. Introduction: “Constit ution” in the “Liberal Pr inciple of Legitimacy”

Inevitably, in our world, a free and democratic society is a home to persons and

groups holding to a clashing plural ity of moral, philosophical, and religious orienta-

tions.1 But then how does such a societ y handle the always latently coercive, but

never practically dispensable, regulatory p ower of a democratic state—the “political

power,” as John Rawls named and described it, “of free and equal citizens as a col-

lective body,” which “they impose on thems elves and one another as free and

equal?” “In the light of what reasons and values,” Rawls wanted to know, could

democratic citizens hope to just ify to each other as free and eq ual their coercive

impositions—political majorities over dissenters—by votes touching fundamenta l

matters over which they are morally, philosophically, and religiously divided?2

Rawls called that a problem of democratic political “legiti macy.”3

In Political Liberalism (hereinafter someti mes PL), Rawls responded to that prob-

lem with a proposition that does indeed ma ke its appeal to reasons and values, but

which quite striki ngly stipulates also for a specified i nstitutional form, that is, a

constitution. “Our exercise of political power is proper and hence justifi able,” Rawls

offered in PL,

1 See Rawls 1993, 36–7 (“fact of reasonable pluralism”); ibid., xviii (taking as a prem ise that “a

plurality of reasonable yet i ncompatible doctrines is t he normal result of the exerc ise of human

reason withi n [a] framework of [...] free institutions”).

2 Rawls 2001, 40–1; see Rawls 1993, 136–7, 216–7 (all posing the same question in es sentially

identical terms).

3 Rawls 2001, 40–1. Rawls also called thi s “the problem of political liberalism” (ibid., ix–xx).

Frank I. Michelman

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Ratio Juris, Vol. 31, No. 4© 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

only when it is exercised i n accordance with a constitution t he essentials of which all c itizens

may reasonably be expect ed to endorse in the light of principles a nd ideals acceptable to them

as reasonable and rationa l. This is the liberal pr inciple of legitimacy.4

Rawls named that, as you see, “the liberal principle of legitimacy.” I call it

hereinafter Rawls’s LPL. The LPL presents us with an obje ct-class, “constitution,”

of which some members do and some do not, in certai n essential respects, meet

a test of hypothetical reason able acceptability spelled out (more or less) by the

LPL. The LPL, then, lets justif ication ride on the back of a constitution that meets

the test.

I ask you now, before going on, to draw your mental picture of the “constitu-

tion” Rawls here has in view. What does it look like? Is it the kind of constitu-

tion Americans k now, a canonically scripted f ixture in a country ’s system of

positive prescriptive law? Did Rawls, then, by his statements of the LPL (“proper

and hence justifiable only when [...]”), render his stance adverse to that of those

Britons (say) who resist or deplore an introduction into their country’s political

practice of legal limitations on t he sovereignty of Parliament?5 The work in PL

contains a sign that he did not wi sh or mean to do so;6 but did he do so all the

sam e?

1.1. An Exegetical Question

PL’s statement of the LPL is not the only one Rawls penned at about the same t ime.

In Justice as Fairness: A Restatem ent (hereinafter sometimes JF), the LPL appears as

follows:

Political power is legitimate on ly when it is exercised in accordance with a co nstitution (writ-

ten or unwritten) the es sentials of which all citiz ens, as reasonable and rational, can endorse

in the light of thei r common human reason. This i s the liberal principle of legitimac y. (Rawls

200 1, 41)

In the place of “constitution” in the PL version of the LPL, the JF rendition uses

“constitution (written or unwritten).” By a “written” constitution, Rawls would seem

to have meant the American model I strongly suspe ct you have just been picturing

in your own head. And what, then, of “unwritten?” Did Rawls thus mean, in JF, to

convey a significant modificat ion to the LPL of PL? Does “constitution (written or

unwritten)” in JF signify h is acceptance there of the possible sufficiency, to bear the

load of the justification of the force of democratic law, of something that is identi fi-

able as a country’s “constitution” but deviates from the standard written model? In

what way deviates?

If or insofar as the t wo works—PL and JF—might be in some such respect at

odds, presumably the more recent text should rule. PL appeared i n 1993. The man-

uscript for JF—so that book’s editor advises—was mai nly completed by 1989, but

4 Rawls 1993, 217. Compare Rawls 1993, 137: “Our exercise of politica l power is fully proper

only when it is exercised i n accordance with a constitution t he essentials of which all c itizens

as free and equa l can be expected to endorse in t he light of principles and ideals acceptable to

their common huma n reason. This is the li beral principle of legitimacy.”

5 See Delaney 2014, 548–55 (reviewing Br itish debates).

6 See Rawls 1993, 234–5, discuss ed below, six paragraphs into the section titled “T he Evidence

of Lecture IV.”