Hobbesian Impartiality in Constitutional Law: Claims of Justice and Claims for Justice

Abstract

Starting from Hobbes’s silver rule of impartiality “quod tibi fiery non vis, alteri ne feceris” the paper discusses the constitutional tensions between claims of justice, which ground their impartiality on the equality between men, regarding their dependence on basic needs; and claims for justice, which are also made in the name of impartiality, but are grounded on liberty and responsibility, resulting out of the common capability of men to pursue their interest as rational planners. Their difference, in terms of impartiality, is that the former present redistribution, for purposes of guaranteeing equal opportunities for all, as a matter of procedural impartiality, while the latter take distribution to be a matter of personal responsibility, falling primarily within the ambit of proportional equality and distributive justice. The paper discusses the corresponding constitutional forms and sociopolitical implications, depending on the prevailing conception of impartiality. Each notion of impartiality has its proper power structure, for the realization of the respective constitutional ends: the focus of the former is on legislation providing for social rights; the focus of the latter is on individual rights and judicial review. But the interplay between claims of justice and claims for justice cannot be settled once and forever. Constitutional democracy, to overcome their friction and tension without undermining political liberalism, has to disprove Hobbes’s pessimism on rhetoric and public deliberation; for this to happen, however, it is necessary to recognize that impartiality is more than a matter of prudence; rather it is a virtue associated with civility.