CONSTITUTIONAL RIGHTS, JUDICIAL REVIEW, AND THE DISTRIBUTION OF BENEFITS.

Abstract

The thesis approaches the question of distributive justice through an analysis of legal rights, focusing in particular on constitutional rights. In Part I (Chapters 1, 2, 3) conceptual issues of the meaning of rights are considered. The concept of a right is analyzed generally as (1) a claim to something; (2) which is logically correlated with a duty; and (3) which is justified, in the case of constitutional rights, by reference to constitutional grounds. The more specific Hohfeldian analysis of legal rights is then coordinated with the general account. Analyzing rights as justified claims leads to the question of what counts as constitutional justification which is in turn intimately tied to a correct account of judicial review. In Part II (Chapters 4,5) a definitive account of judicial review is attempted. After examining the logical base of legal reasoning and concluding that it is essentially dialectical, the major normative theories of judicial review are considered. In particular natural law, legal realism, reasoned elaboration, and legal positivism are considered and all are rejected in part. An attempt is then made to incorporate significant elements of each in a general theory using the coherence methodology of Ronald Dworkin. Finally the results are applied to a paradigm of the sort of judicial reasoning that seems to capture the elements picked out in the earlier analysis. It is argued that the thesis advanced here explains and justifies the judicial reasoning used in that case (Griswold v. Connecticut).