In her Dunwody Lecture, Professor Anita Allen insightfully calls our attention to the social contract tropes that pepper American case law. She claims that these tropes function ideologically, disguising politics, biases, and raw power in judicial decision-making. To examine this claim, I distinguish two versions of social contract theory Professor Allen groups together. Metaphors drawn from classical social contract theory-epitomized by the work of John Locke and Jean-Jacques Rousseau may well function as Professor Allen suspects. Tools taken from twentieth century neo-Kantian social contract theory-inaugurated and developed by John Rawls-could have precisely the opposite effect. Rawlsian social contract theory might function critically in case law, forcing judges to shed unconsidered or irrelevant prejudices.
51 Fla. L. Rev. 67
Scholarly Commons Citation
Feldman, Heidi Li, "Rawls’ Political Constructivism as a Judicial Heuristic: A Response to Professor Allen" (1999). Georgetown Law Faculty Publications and Other Works. Paper 1714.