Oxford Journal of Legal Studies 

About: Oxford Journal of Legal Studies is an academic journal published by Oxford University Press. The journal publishes majorly in the area(s): Common law & Jurisprudence. It has an ISSN identifier of 0143-6503. Over the lifetime, 1162 publications have been published receiving 17228 citations.

The Idea Of An Overlapping Consensus

Abstract: Thus, when justice as fairness begins from the fundamental intuitive idea of society as a fair system of cooperation and proceeds to elaborate that idea, the resulting conception of political justice may be said to be abstract. It is abstract in the same way that the conception of a perfectly competitive market, or of general economic equilibrium, is abstract: that is, it singles out, or focuses on, certain aspects of society as especially significant from the standpoint of political justice and leaves others aside. But whether the conception that results itself is general and comprehensive, as I have used those terms, is a separate question. I believe the conflicts implicit in the fact of pluralism force political philosophy to present conceptions of justice that are abstract, if it is to achieve its aims; but the same conflicts prevent those conceptions from being general and comprehensive. This content downloaded from 157.55.39.186 on Sun, 09 Oct 2016 04:21:46 UTC All use subject to http://about.jstor.org/terms x6 THE IDEA OF AN OVERLAPPING CONSENSUS view in our model case: namely, a political conception of justice regarded not as a consequence of a comprehensive doctrine but as in itself sufficient to express values that normally outweigh whatever other values oppose them, at least under the reasonably favourable conditions that make a constitutional democracy possible. Here the criterion of a just regime is specified by that political conception; and the values in question are seen from its principles and standards, and from its account of the cooperative virtues of political justice, and the like. Those who hold this conception have, of course, other views as well, views that specify values and virtues belonging to other parts of life; they differ from citizens holding the two other views in our example of an overlapping consensus in having no fully (as opposed to partially)25 comprehensive doctrine within which they see all values and virtues as being ordered. They don't say such a doctrine is impossible, but rather practically speaking unnecessary. Their conviction is that, within the scope allowed by the basic liberties and the other provisions of a just constitution, all citizens can pursue their way of life on fair terms and properly respect its (non-public) values. So long as those constitutional guarantees are secure, they think no conflict of values is likely to arise that would justify their opposing the political conception as a whole, or on such fundamental matters as liberty of conscience, or equal political liberties, or basic civil rights, and the like. Those holding this partially comprehensive view might explain it as follows. We should not assume that there exist reasonable and generally acceptable answers for all or even for many questions of political justice that might be asked. Rather, we must be prepared to accept the fact that only a few such questions can be satisfactorily resolved. Political wisdom consists in identifying those few, and among them the most urgent. That done, we must frame the institutions of the basic structure so that intractable conflicts are unlikely to arise; we must also accept the need for clear and simple principles, the general form and content of which we hope can be publicly understood. A political conception is at best but a guiding framework of deliberation and reflection which helps us reach political agreement on at least the constitutional essentials. If it seems to have cleared our view and made our considered convictions more coherent; if it has narrowed the gap between the conscientious convictions of those who accept the basic ideas of a constitutional regime, then it has served its practical political purpose. And this remains true even though we can't fully explain our agreement: we know only that citizens who affirm the political conception, and who have been raised in and are familiar with-the fundamental ideas of the public political culture, find that, when they adopt its framework of deliberation, their judgments converge sufficiently so that political cooperation on the basis of mutual respect can be maintained. They view the political conception as itself normally sufficient and may not expect, or think they need, greater political understanding than that. 25 For the distinction between a doctrine's being fully vs partially comprehensive, see footnote 23 in Sec IV. This content downloaded from 157.55.39.186 on Sun, 09 Oct 2016 04:21:46 UTC All use subject to http://about.jstor.org/terms

A Right-Based Critique of Constitutional Rights

Abstract: 'Individuals have rights, and there are things no person or group may do to them (without violating their rights)." 'Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.'2 'There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient.'3 These are familiar propositions of political philosophy. What do they imply about institutions? Should we embody our rights in legalistic formulae and proclaim them in a formal Bill of Rights? Or should we leave them to evolve informally in dialogue among citizens, representatives and officials? How are we to stop rights from being violated? Should we rely on a general spirit of watchfulness in the community, attempting to raise what Mill called 'a strong barrier of moral conviction' to protect our liberty?4 Or should we also entrust some specific branch of government-the courts, for example-with the task of detecting violations and with the authority to overrule any other agency that commits them?

The emergence of children's rights

Abstract: Until recently, social historians held the surprising consensus that parents of old felt little affection for their children.2 This opinion is sometimes thought to be derived from the thesis expounded by Philippe Aries that, in medieval times, there was no concept of childhood as a period with a character distinct from adulthood. While, as Aries himself admits, this fact (if fact it be) does not necessarily imply that there could be no affection for them, nevertheless his assumption is that it indicated actual indifference.3 But how do we define, and measure, affection? Aries argues that the growth of the idea of childhood was related to increasing perception of the importance of education as the agrarian economy declined, which, as then understood, imposed rigorous, often cruel, regimes upon children. To inquire whether parents in any period loved their children more, or less, than in another, is to examine the nature of love. This did not deter Lloyd de Mause, who claimed that 'it is, of course, not love which the parent of the past lacked, but rather the emotional maturity needed to see the child as a person separate from himself'.4