Chicago Journal of International Law


I construct Professor Tushnet's article as offering an account of societies on a legal continuum. At one end lies the classical liberal state. Here the legal system articulates a thin set of background rules that regulate the market transactions through which goods are distributed. Courts enforce rules against force, fraud, and breach of contracts. By means of police power courts have some discretion to identify forms of force, fraud, or breach of contract not explicitly articulated by legislated code. In the classical liberal state, courts also strike down laws that intentionally deprive a class of people of goods they would normally receive through market transactions in the absence of these restrictions. At the other end of this continuum lies the social democratic state. Constitutional rules and legislation set out a wide system of entitlements, for example, to goods such as pensions, healthcare, education, nursery care, basic income support, and protection for union organizing. These goods are either provided directly by the state and publicly-owned enterprises through tax revenues and income, respectively, or by regulated private institutions. Whatever form the implementation of social democratic entitlements takes, the state has well developed, legally coherent, and democratically legitimate bureaucracies for doing so. In the social democratic state the system of entitlements is a central aspect of the state's constitution, with which its other provisions must be consistent. The system also conditions the background rules of property, contract, and tort throughout the legal system. [CONT]