The Second-Class Citizen in Legal Theory

Modern Law Review (2023)
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Abstract

This essay is a critical notice of David Dyzenhaus's book, The Long Arc of Legality. I argue that Dyzenhaus’s criterion for distinguishing legal pathologies that undermine law's contractarian claim to legitimacy and political pathologies that do not is unsustainable. It relies on a categorical distinction between the threat to law's legitimacy posed by treating some subjects as de jure second-class citizens, whose formal legal status is compromised, and other threats to political legitimacy grounded in the treatment of some subjects as de facto second-class citizens, who retain full formal legal equality but suffer from thoroughgoing substantive subordination. But some forms of de facto second-class citizenship are a greater threat to contractarian legitimacy than some forms of full formal equality. So formal equality for subjects and legal legitimacy come apart. I consider and respond to several responses on Dyzenhaus's behalf, and conclude by proposing a version of his jurisprudential theory that relaxes this distinction.

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Jack Samuel
New York University

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Persons and bodies.Japa Pallikkathayil - 2017 - In Sari Kisilevsky & Martin Jay Stone (eds.), Freedom and Force: Essays on Kant’s Legal Philosophy. Bloomsbury Academic. pp. 35-54.

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