Law and Disagreement
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Product details:
- Publisher Clarendon Press
- Date of Publication 11 March 1999
- ISBN 9780198262138
- Binding Hardback
- No. of pages344 pages
- Size 243x164x24 mm
- Weight 628 g
- Language English 0
Categories
Short description:
Jeremy Waldron is one of the world's leading legal and political philosophers. This collection brings together thirteen of his most recent essays which, in the course of working the book up for publication, the author has revisited and thoroughly revised. He addresses central issues within the liberal tradition, focusing on the law and its role in a pluralistic state which experiences deep disagreements about values and rights, and about the role of the state itself.
MoreLong description:
When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent and the limits of religious toleration?
The most familiar answer is that these decisions should be made democratically, by majority voting among the people or their representatives. Often, however, this answer is qualified by adding providing that the majority decision does not violate individual rights.
In this book Jeremy Waldron has revisited and thoroughly revised thirteen of his most recent essays. He argues that the familiar answer is correct, but that the qualification about individual rights is incoherent. If rights are the very things we disagree about, then we are quarrelling precisely about what that qualification should amount to. At best, what it means is that disagreements about rights should be resolved by some other procedure, for example, by majority voting, not among the people or their representatives, but among judges in a court. This proposal although initially attractive seems much less agreeable when we consider that the judges too disagree about rights, and they disagree about them along exactly the same lines as the citizens.
This book offers a comprehensive critique of the idea of the judicial review of legislation. The author argues that a belief in rights is not the same as a commitment to a Bill of Rights. He shows the flaws and difficulties in many common defences of the democratic character of judicial review. And he argues for an alternative approach to the problem of disagreement: when disagreements about rights arise, the respectful way to resolve them is by decision-making among the right-holders on a basis that reflects an equal respect for them as the holders of views about rights. This respect for ordinary right-holders, he argues, has been sadly lacking in the theories of justice, rights, and constitutionalism put forward in recent years by philosophers such as John Rawls and Donald Dworkin.
But the book is not only about judicial review. The first tranche of essays is devoted to a theory of legislation, a theory which highlights the size, the scale and the diversity of modern legislative assemblies. Although legislation is often denigrated as a source of law, Waldron seeks to restore its tattered dignity. He deprecates the tendency to disparage legislatures and argues that such disparagement is often a way of bolstering the legitimacy of the courts, as if we had to transform our parliaments into something like the American Congress to justify importing American-style judicial reviews.
Law and Disagreement redresses the balances in modern jurisprudence. It presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle, for it is a form of law making that does not attempt to conceal the fact that our decisions are made and claim their authority in the midst of, not in spite of, our political and moral disagreements.
This timely rights-based defence of majoritarian legislation will be welcomed by scholars of legal and political philosophy throughout the world.
... shrewd observations about the place of majority voting.
Table of Contents:
Introduction
I. A JURISPRUDENCE OF LEGISLATION
Legislation in jurisprudence
Legislation by assembly
Text and polyphony
Legislation, authority and voting
Legislative intent and unintentional legislation
II. DISAGREEMENT IN PRINCIPLE
Rawls's Political Liberalism
The irrelevance of moral objectivity
The circumstances of integrity
III. RIGHTS AND JUDICIAL REVIEW
Between rights and Bills of Rights
Participation: the right of rights
Disagreement and precommitment
The constitutional conception of democracy
