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Disagreement and Response

Published online by Cambridge University Press:  04 July 2014

Jeremy Waldron
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Israel Law Review , Volume 39 , Issue 3 , Winter 2006 , pp. 50 - 68
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Professor of Law, New York University Law School.

References

1 Waldron, Jeremy, Law and Disagreement (1999)CrossRefGoogle Scholar.

2 Id. at 1.

3 See the discussion of Rawls's theory, id. at 149-63.

4 For “the circumstances of politics,” see id. at 102-114.

5 See id. at 107-116 and 232-54.

6 See id. at 49-68 and, see more generally Waldron, Jeremy, The Dignity of Legislation (1999)CrossRefGoogle Scholar. For discussion of the legal implications, see Waldron, supra note 1, at 69-87 & 119-46.

7 Waldron, Law and Disagreement, id. at 211-231 and 255-312. For a more recent version of this argument, to which I believe some of my critics in this symposium also refer, see Waldron, Jeremy, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346 (2006)CrossRefGoogle Scholar.

8 Sussmann, Naomi, Law and Disagreement: Some Disagreements, 39(3) Isr. L. Rev. 36, 39 (2006)Google Scholar.

9 I ought to have said more about this in the book. The idea is as follows: people need political procedures when (i) they disagree about what to do on a certain subject, but (ii) prefer to do something together rather than each act righteously but unilaterally on the basis of his or her own convictions. Circumstances (i) and (ii) define what is sometimes called a “Battle of the Sexes” game (or a partial conflict coordination problem) see Waldron, supra note 1, at 104-5. Now condition (ii) may apply for some people only within a certain range of coordinative options: John Brown may be willing to cooperate with his fellow citizens on many things, but not on slavery; he would rather take his chances acting as a lone abolitionist on that issue than accept the coordinative outcome that political processes were yielding in the mid-1800s. But other citizens who opposed slavery were prepared to comply with a pro-slavery settlement at that time. So everything that is said in my book about the importance of coordination in the context of disagreement is going to be relative to individual views in this way. I have discussed these matters at greater length in Waldron, Jeremy, Lex Satis Iusta, 75 Notre Dame L. Rev. 1829, 1840–1 (2000)Google Scholar.

10 Sussmann, supra note 8, at 39.

11 Id.

12 Id.

13 See my discussion of this in Waldron, Jeremy, What Plato Would Allow, in Nomos XXXVII: Theory and Practice 138 (Shapiro, Ian & Wagner, Judith eds., 1995)Google Scholar.

14 Roe v. Wade, 410 U.S. 113 (1973).

15 Sussmann, supra note 8, at 44.

16 Harel, Alon, Notes on Waldron's Law and Disagreement: Defending Judicial Review, 39(3) Isr. L. Rev. 13, 19 (2006)Google Scholar. But Harel notes that “not all legislative assemblies are solely concerned with justice and rights” (Id. at 15).

17 I discuss the relation between theories of justice and theories of rights at length in the introductory chapter of Waldron, Jeremy, Liberal rights: Collected Papers 1981–1991 26–34 (1993)Google Scholar.

18 Sussmann, supra note 8.

19 See the arguments in Barry, Brian, Culture and equality 271–9 (2001)Google Scholar and Barry, Brian, Why Social Justice Matters (2005)Google Scholar.

20 Enoch, David, Taking Disagreement Seriously: On Jeremy Waldron's Law and Disagreement, 39(3) Isr. L. Rev. 23, 24 (2006)Google Scholar.

21 See Waldron, supra note 1, at 91-3; see also Waldron, Jeremy, Deliberation, Disagreement and Voting, in Deliberative Democracy and Human Rights 210 (Koh, Harold & Slye, Ron eds., 1999)Google Scholar.

22 Enoch, supra note 20, at 24.

23 See Rawls, John, Political Liberalism 48–54 (1996)Google Scholar.

24 Id. at 190-3.

25 Id., at 55-6.

26 Id. at 58.

27 Harel raises a similar issue about another phrase that 1 use to qualify “disagreement,” namely “good faith.” He says that is unclear whether I am making a factual observation that most political disagreements are good faith disagreements, or whether I believe that we ought to assume that they are if we are to treat the parties struggling to promote their understandings of justice with respect (Harel, supra note 16, at 14.). To describe a disagreement as a bad faith disagreement is to imply that, on one side at least, what looks like a reasonable view (e.g. about rights or justice) is really just a cover for the maintenance of some position affirming self-interest or class-interest, which is unreasonable in sense (1) above. And again, I wanted to insist in Law and Disagreement that it is usually a mistake to think of disagreement in this way.

28 See Waldron, supra note 1; see also Waldron, Jeremy, A Right-Based Critique of Constitutional Rights, 13 Oxford J. Legal Stud. 18 (1993)CrossRefGoogle Scholar.

29 Harel, supra note 16, at 19.

30 Locke, John, Two Treatises of Government 357, II, section 135, (Laslett, Peter ed., 1988)CrossRefGoogle Scholar.

31 Enoch, supra note 20, at 28.

32 See Locke, supra note 31, 351 and 352 II, section 124 & 127.

33 Id. at 358-9 II, section 136.

34 Enoch, supra note 20, at 29.

35 Id. at 30.

36 Unfortunately, the usage of “justification” and “legitimacy” differs among political philosophers. For somewhat different usage, see Simmons, A. John, Justification and Legitimacy, 109 ETHICS 739 (1999)CrossRefGoogle Scholar.

37 Christiano, Thomas, Waldron on Law and Disagreement, 19 L. & Phil. 513, 521 (2000)Google Scholar: “We can expect disagreement at every stage, if Waldron is right; so if we must have recourse to a higher order procedure to resolve each dispute as it arises, then we will be unable to stop the regress of procedures.” But Christiano makes no attempt to show that this is a vicious regress. For discussion of the regress, see Waldron, supra note 1, at 298-301.

38 Some of this stage 3 debate will overlap with stage 2. But some of it may not: many people believe that the considerations that are relevant for choosing procedures for choosing procedures (e.g., the considerations that are relevant to the choice of procedures involved in constitution-making) are different from the considerations that are relevant for choosing procedures for choosing policy.

39 I addressed these issues also in Waldron, supra note 7, at 1371-2. There, referring to a critique by Christiano (supra note 37), I said this:

I have heard philosophers say that …since we disagree as much about legitimate decision-procedures as we do about the justification of outcomes, and since (on my own account) it is plain that we have to take a stand on something—namely decision-procedures—despite such disagreement, why can't we just take a stand on the issue of substance and be done with it? The response to this is that we must go to the issue of legitimacy whether we are likely to find disagreement there or not. For one thing, we do need to design a decision-procedure and we need to consider reasons relevant to that design. For another thing, there are important reasons relating to legitimacy—e.g. fairness, voice, participation—that arise because of disagreement and do not arise apart from our addressing the question of decision-procedures. Even if we disagree about these too, we have no choice but to consider them. The fact that we will disagree about them is not a proper ground for pushing them to one side and simply taking a stand one side or the other in the prior (or substantive) disagreement.

40 Enoch, supra note 20, at 30.

41 Waldron, supra note 1, 101-3.

42 Enoch, supra note 20, at 30, 31.

43 See supra note 7.

44 See Waldron, supra note 7, at 1359-69. 1 have even argued that my own dear homeland, New Zealand, is in danger of falling outside these conditions with its overly-peremptory legislative processes: see Waldron, Jeremy, Compared to What?—Judicial Activism and the New Zealand Parliament, 2005 N.Z. L. J. 441 Google Scholar.

45 Waldron, supra note 7, at 1372-5.

46 Id. at 1376-86.

47 Harel, supra note 16, at 18.

48 Enoch, supra note 20, at 25.

49 Waldron, supra note 7, at 1375-6.

50 For some discussion, see Waldron, Jeremy, Rights in Conflict, 99 ETHICS 503 (1989)CrossRefGoogle Scholar and Kamm, F. M. Conflicts of Rights: Typology, Methodology, and Nonconsequentialism, 7 Legal Theory 239 (2001)CrossRefGoogle Scholar.

51 Harel, supra note 16, at 17 and Harel, Alon, Rights-Based Judicial Review: A Democratic Justification, 22 L. & Phil. 247 (2003)Google Scholar.

52 Harel, supra note 16, at 18, 19.

53 Harel, supra note 16, at 20.

54 Waldron, The Core of the Case, supra note 7, 1379-80.

55 Harel, supra note 16, at 20.