The Devil's account: men, morals, and constitutional goods

Constitutional Goods, a work of political theory presented as constitutional theory, foregrounds law. Law is central to its method. The dialogic (or inclusive) theory developed in the book is based, we are told, on ‘a unity of elements found in actual case law.’ Law provides, then, much of the raw material on the basis of which the three conceptions of liberalism (libertarian, egalitarian and communitarian) are identified. And court cases are vital to the process of ‘sifting’ through which aspects of each conception that are of enduring value are identified and synthesized within a final ‘inclusive conception’ of the liberal constitution. Law is also central substantively. It plays a role in the high moment of the theory—the mutual recognition of citizen and ethos—and permeates (and justifies) every mode of social and political interaction within the ideal political community that Constitutional Goods presents. State, community, and individual are wrapped up and enfolded within law (or, as Brudner prefers to style it, ‘the Law’) within the inclusive theory. This paper looks closely at the role law plays in Constitutional Goods. Part I examines relevant legal aspects and makes some general claims about the way in which law is conceived within the inclusive theory. Part II concentrates on the legal aspects of the theory’s emphasis on Aristotelian perfectionism and the pedagogical role for the state. While interesting and important in their own right, these aspects of the theory allow us to shed light on the conception of law that predominates within the theory. Part III offers something of a Devil’s account, offering in response to Brudner’s Hegelian idealism an alternative approach grounded in Humean scepticism. I pursue this avenue of inquiry as a basis from which to argue that the ‘heaven of laws’ that Brudner imagines is a goal which is neither particularly liberal nor especially desirable