In this paper, I aim to show that the arguments offered and conclusions at which Rawls aims in his book, The Law of Peoples, are telling as to the intellectual legitimacy of his larger theoretical project. To show this I first investigate how (1) non-liberal peoples fit within the limitations Rawls describes in The Law of Peoples and (2) how liberal peoples would react to such rules. I argue from the answers to these questions to the further conclusion that by spreading the principles and tools of A Theory of Justice and Political Liberalism to the international realm some assumptions implicit in the earlier works come out more clearly. The final section of the paper analyzes some of the implications of the newly exposed assumptions for Rawls's project of liberal justice.
The 2000 Presidential election with its undeniable complications has forced most legal and constitutional scholars, legal journalists and Supreme Court journalists to examine critically the status of the Supreme Court's power. For example, articles related to the Court's accountability or lack thereof, Supreme Court appointments and possible reform and constitutional interpretation, have filled newspapers, weekly magazines and professional journals alike. Perhaps most problematic is the fact that the Court's opinion has been, for the most part, considered a partisan opinion. I maintain that the Court's decision is both reasonable and valid based on a particular interpretation of the purpose, not only of the law, but of the judiciary. There exists a tension in Florida Law between finality, namely, meeting the deadline, and disenfranchising the voters, namely, attempting to count all votes. I argue that the Majority decision upheld the importance of "finality" in rendering their decision. Like the Majority decision, I argue that the Minority dissent and opinion was valid. Unlike the Majority's concern with the issue of finality, the dissent attempts to uphold the importance of suffrage. They argue that the right to have all votes counted clearly outweighs the concern with "finality." As a consequence, I argue that the Majority and the Minority of the Supreme Court argue past one another. In other words, both positions can be considered valid if the underlying guiding principle is made explicit, i.e., finality with the Majority opinion and suffrage with the Minority opinion.
In Bush v. Gore, the U.S. Supreme Court raises an important question about the nature of political fairness. The Court seems to have endorsed a demanding view, according to which inequality may be unfair simply because it is "arbitrary." In contrast, critics of the Court's decision hold that political inequalities are acceptable unless they can be expected to disadvantage specific persons. The critics view is arguably the dominant view among democratic theorists. And it shapes their position on some of the key controversies about democratic institutions--the choice between proportional and winner-take-all representation, the system of political finance, and the design of ballot access requirements. Yet I shall argue that this common view is mistaken. The Court is right to suppose that arbitrary political inequalities may be objectionable, even when they do not create predictable patterns of discrimination or disadvantage. And this conclusion may lead us to rethink the controversies about representation, political finance, and ballot access.
Before the Supreme Court effectively installed George W. Bush as President, James Baker repeatedly told the national media that you cannot change the rules of the game after it has been played. The public perception of the Florida vote counting crisis was framed by this analogical association between the presidential election and a game or sporting event. The thrust of this analogy was to imply to the American people that the Florida election was over and had been fair; hence, that Bush had won Florida, and the presidency. I show that, even if we accept, prima facie, the analogy between the election and a game or sport, Baker's remarks, and subsequent follow-ups by him and others, fail to justify the claims that Bush was elected and that the election was fair. Next, I argue that our presidential election is a democratic institution, not an analogue to a game. The proper virtue of such an institution is not fairness in the sense of evenhandedness to the contestants and their allies, but justice to the American electorate. Perhaps the most ominous consequence of this sports/game-think approach to the presidential election is that this way of describing the matter distorts the fundamental character of the democratic institution we refer to as "electing the president"; and this caricature leads the supposed "winners" of such contests to assume power--and authority--not justified by the electoral process.