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Jeremy Waldron and the Circumstances of Politics

Published online by Cambridge University Press:  14 December 2020

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Abstract

This article examines Jeremy Waldron's concept of the “circumstances of politics” (CoP), which he describes as the felt need for a common decision in the face of disagreement. Waldron uses the CoP to detach certain issues surrounding civic virtue and institutional design from questions about substantive principles such as justice and human rights. While emphasis is often placed on the fact of disagreement, I argue that the other aspect of the CoP, the need for collective action, is in fact the more fundamental. Waldron's arguments rely on an understanding that there is expressive value in citizens affirming commitment to the political community and on an awareness of how the nature of politics as public collective action is structured by the constitutional architecture. I argue that a lopsided focus on disagreement threatens to obscure the fact that the political sphere is itself a fragile achievement that is in need of continual support.

Type
Research Article
Information
The Review of Politics , Volume 83 , Issue 2 , Spring 2021 , pp. 242 - 263
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of University of Notre Dame.

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Footnotes

For comments, I would like to thank Elizabeth Craig, Dimitrios Kyritsis, Bal Sokhi-Bulley, Felipe Oliveira de Sousa, Lindsay Stirton, three anonymous reviewers for Review of Politics, and audiences at the Edinburgh Constitutional Law Discussion Group and the University of Lucerne. I am grateful to the Society of Legal Scholars for funding.

References

1 Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999), 102CrossRefGoogle Scholar.

2 Waldron, Jeremy, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999), 154CrossRefGoogle Scholar.

3 Many of these arguments are collected in Waldron, Dignity of Legislation; Waldron, Law and Disagreement; and Waldron, Jeremy, Political Political Theory: Essays on Institutions (Cambridge, MA: Harvard University Press, 2016)CrossRefGoogle Scholar.

4 The literature is vast, here I can only cite a selection: Eisgruber, Christopher L., “Democracy and Disagreement: A Comment on Jeremy Waldron's Law and Disagreement,” New York University Journal of Legislation and Public Policy 6, no. 1 (Fall 2002): 35–47Google Scholar; Kramer, Larry, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004)Google Scholar, chap. 9; Kyritsis, Dimitrios, “Representation and Waldron's Objection to Judicial Review,” Oxford Journal of Legal Studies 26, no. 4 (Winter 2006): 733–51CrossRefGoogle Scholar; Estlund, David M., Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008)Google Scholar, chap. 5; Mason, Andrew, “Rawlsian Theory and the Circumstances of Politics,” Political Theory 38, no. 5 (Oct. 2010): 658–83CrossRefGoogle Scholar; Wendel, W. Bradley, Lawyers and Fidelity to Law (Princeton: Princeton University Press, 2010)CrossRefGoogle Scholar, chap. 3; Dworkin, Ronald, Justice for Hedgehogs (London: Harvard University Press, 2011)CrossRefGoogle Scholar, chap. 18.

5 See Galston, William, “Realism in Political Theory,” European Journal of Political Theory 9, no. 4 (Oct. 2010): 391CrossRefGoogle Scholar; Sleat, Matt, Liberal Realism: A Realist Theory of Liberal Politics (Manchester: Manchester University Press, 2013), 45CrossRefGoogle Scholar; and Bellamy, Richard, “Turtles All the Way Down? Is the Political Constitutionalist Appeal to Disagreement Self-Defeating? A Reply to Cormac Mac Amhlaigh,” International Journal of Constitutional Law 14, no. 1 (Jan. 2016): 207CrossRefGoogle Scholar. Waldron has disassociated himself from the realist movement: see Waldron, Political Political Theory, 5.

6 See Hume, David, A Treatise of Human Nature, ed. Fate, David Norton and Mary Norton (Oxford: Oxford University Press, 2000), 3.2.2Google Scholar; Hume, David, An Enquiry concerning the Principles of Morals, in Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. A., L. Selby-Bigge (Oxford: Clarendon, 1975)CrossRefGoogle Scholar, sec. iii; Rawls, John, A Theory of Justice (Oxford: Clarendon, 1973)Google Scholar, §22.

7 Waldron, Dignity of Legislation, 154.

8 Hume, Treatise, 3.2.2.

9 Rawls, Theory of Justice, §22; John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Belknap Press of Harvard University Press, 2001), §24; and John Rawls, Political Liberalism (New York: Columbia University Press, 1993), lecture 1, §2.

10 Waldron, Law and Disagreement, 3.

11 Jeremy Waldron, “Political Political Theory,” in Political Political Theory, 6.

12 Waldron, Law and Disagreement, 102.

13 This is not to say that substantive views about justice (etc.) are irrelevant in political political theory. People who hold certain theories of justice (particularly nonliberal theories) might be led to reject ideals such as civility, toleration and so on, and will thus not accept that they ought to bracket their substantive conception of justice when considering constitutional issues. This is directly parallel to Rawls's claim that those who hold “unreasonable” comprehensive doctrines will be unable to accept a political conception of justice (see Rawls, Political Liberalism, lecture 2, §3).

14 Waldron, Law and Disagreement, 252–54.

15 Charles R. Beitz, Political Equality: An Essay in Democratic Theory (Princeton: Princeton University Press, 1989), 64.

16 Waldron, Law and Disagreement, 116 (emphasis added).

17 Ibid., 117.

18 Ibid., 253.

19 See Ibid., 159–61. See also Habermas, J., “Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism,” Journal of Philosophy 92, no. 3 (March 1995): 109–31Google Scholar, for an argument along similar lines.

20 Waldron, Law and Disagreement, 102.

21 Waldron, Dignity of Legislation, 154: “We may say . . . that disagreement among citizens as to what they should do, as a political body, is one of the circumstances of politics.”

22 Waldron, Jeremy, “Kant's Legal Positivism,” Harvard Law Review 109, no. 7 (May 1996): 1538CrossRefGoogle Scholar: “Because we disagree about which position should stand and be enforced in the name of the community, we need a process—a political process—to determine what the position should be.”

23 My categorization of disagreements about principles of political morality as “theoretical” is not as controversial as it might sound. I do not mean to call into question the place of political philosophy within “practical” as opposed to “theoretical” philosophy. I mean only that philosophical disagreements about principles of justice and so on are not, in themselves, about which specific actions ought to be carried out in the real world.

24 Waldron is not always as clear as he might be on this distinction. For example, at one point in Law and Disagreement he announces: “In this book I am concerned with disagreements about matters like social policy, social justice, and individual rights,” which he refers to later on the same page as “the disagreements we have in politics (and in political philosophy) concerning the fundamental principles of justice and right” (Waldron, Law and Disagreement, 149). Similar conflation of the kind of disagreement in the CoP with theoretical disagreement about political morality appears at 1, 93, and 105.

25 Ibid., 102.

26 Jeremy Waldron, “The Constitutional Politics of Hannah Arendt,” in Political Political Theory, 291.

27 Rawls, Theory of Justice, 196.

28 Waldron discusses this issue directly with reference to the work of Hannah Arendt: see Waldron, “Constitutional Politics,” 203–12.

29 See Waldron, “Kant's Legal Positivism”; Waldron, Law and Disagreement, 99–107; Waldron, Jeremy, “Lex Satis Iusta,” Notre Dame Law Review 75, no. 5 (Aug. 2000): 1829–58Google Scholar; and Jeremy Waldron, “Authority for Officials,” in Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of Joseph Raz, ed. Lukas H. Meyer, Stanley L. Paulson, and Thomas W. Pogge (Oxford: Oxford University Press, 2003).

30 See especially Waldron, “Kant's Legal Positivism,” 1539–40; and Waldron, Law and Disagreement, 103–5.

31 By “resolution” of disagreement I do not mean that the disagreement ceases: when we agree upon a collective binding standard we do not abandon our individual opinions, we merely agree to abide by the collective standard while it remains in force, notwithstanding the persistence of our disagreement.

32 Of course, the former involves an element of what might be called “we-thinking”: to think about justice is to think politically, which, as I argued in the previous section, presupposes a commitment to collective action. The distinction I am making here is between (i) determining one's own individual view about what should be done collectively and (ii) determining the collective view about what should be done collectively. We might say that the former is an exercise in “applied political theory,” while the latter an exercise in “applied political political theory.”

33 Riggs v. Palmer, 115 N.Y. 506 (1889).

34 Judge Gray, dissenting, said: “If I believed that the decision of the question could be affected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience. But the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination of this question is confined” (ibid., 515–16).

35 At times Waldron explicitly suggests this: e.g., Waldron, “Kant's Legal Positivism,” 1539; Waldron, Law and Disagreement, 103–5.

36 Jeremy Waldron, “Civility and Formality,” in Civility, Legality, and Justice in America, ed. Austin Sarat (Cambridge: Cambridge University Press, 2014), 59.

37 Ibid.

38 Jeremy Waldron, “The Principle of Loyal Opposition,” in Political Political Theory, chap 5.

39 Ibid., 104.

40 Waldron, “Civility and Formality,” 57.

41 Cf. Jeremy Waldron, “Citizenship and Dignity,” in Understanding Human Dignity, ed. Christopher McCrudden (Oxford: Oxford University Press, 2013).

42 For evidence of this, one need look no further than the current discourse surrounding Brexit in the UK, in which those opposed to leaving the European Union, and even those in favor of leaving but not without an ongoing trade deal, are regularly denounced by politicians and the right-wing press as “traitors” (see Veronika Koller, “Traitors, Betrayal, Surrender: British Politics Now Dripping with Terms That Fuel Division,” The Conversation [London], Sept. 27, 2019).

43 Waldron, “Loyal Opposition,” 116–22.

44 Ibid., 122.

45 Ibid. (emphasis in original).

46 Ibid., 120–21.

47 Waldron's reference to the “Parti Québecois in Canada” is misleading, as the Parti Québécois participates only at the Quebec state level. The Bloc Québécois is their sister party at the federal level.

48 E.g., Alain Noël, “Distinct in the House of Commons: The Bloc Québécois as Official Opposition,” in Canada: The State of the Federation 1994, ed. Douglas M. Brown and Janet Hiebert (Kingston, ON: Institute of Intergovernmental Relations, 1994); Young, Lori and Bélanger, Éric, “BQ in the House: The Nature of Sovereigntist Representation in the Canadian Parliament,” Nationalism and Ethnic Politics 14, no. 4 (Nov. 2008)CrossRefGoogle Scholar; Henry Mance, “SNP Morphs into Measured Opposition Force at Westminster,” Financial Times (London), May 9, 2016.

49 Strictly speaking, Sinn Fein are not an opposition party in Northern Ireland, as the consociational system in Stormont has ensured that they have been part of every government since the Good Friday Agreement was concluded in 1998.

50 The Good Friday Agreement provides that the parties (which include Sinn Fein) “recognize the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status.” Sinn Fein had previously maintained that the island of Ireland comprised a single irreducible polity, thus denying Northern Ireland any legitimate right to self-determination.

51 See Waldron, Dignity of Legislation; Waldron, Law and Disagreement, part 1; and Waldron, Jeremy, “Representative Lawmaking,” Boston University Law Review 89, no. 2 (April 2009): 335–55Google Scholar (reprinted, without substantive amendment, in Waldron, Political Political Theory, chap. 6).

52 Waldron, “Representative Lawmaking,” 346. However, contrast Jeremy Waldron, “The Core of the Case against Judicial Review,” Yale Law Journal 115, no. 6 (April 2006): 1388, in which he states that a legislative vote provides “a reasonable approximation of the use of [majority decision] as a decision-procedure among the citizenry as a whole.” I discuss this problematic argument below.

53 Waldron, Law and Disagreement, 55–56.

54 Ibid., 66.

55 Ibid., 66–67 (emphasis in original).

56 Waldron, “Core Case” (reprinted, without substantive amendment, in Waldron, Political Political Theory, chap. 9). For an earlier formulation of this argument see Jeremy Waldron, “A Rights-Based Critique of Constitutional Rights,” Oxford Journal of Legal Studies 13, no. 1 (Spring 1993): 18–51.

57 Waldron, “Core Case,” 1372–76.

58 Ibid., 1376–86. It might seem surprising to see Waldron considering such reasons, given his earlier opposition to rights instrumentalism, and it is tempting to view this as a volte-face (see Enoch, D., “Taking Disagreement Seriously: On Jeremy Waldron's Law and Disagreement,” Israel Law Review 39, no. 3 [Winter 2006]: 25–26CrossRefGoogle Scholar). But there is a crucial difference between Waldron's outcome-related reasons and the kind of rights instrumentalism that he rejected in Law and Disagreement: while the critique of rights instrumentalism precludes us from designing a decision-making procedure that is likely to uphold a particular conception of rights (for instance a pro-choice over a pro-life stance on abortion), it does not prevent us from asking which procedures “are most likely to get at the truth about rights, whatever that truth turns out to be” (“Core Case,” 1373).

59 Waldron, “Core Case,” 1375.

60 Ibid., 1387.

61 Ibid.

62 Ibid., 1387–89.

63 Ibid., 1388.

64 Ibid., 1388–89.

65 Ibid., 1389–93.

66 Ibid., 1392.

67 Waldron sets out these circumstances in a series of assumptions. The political community is presumed to have (i) democratic institutions in reasonably good working order; (ii) judicial institutions in reasonably good working order; (iii) a commitment on the part of most members of society to the idea of individual and minority rights; and (iv) persisting, substantial, and good-faith disagreement about rights (ibid., 1359–69).

68 For the potential weaknesses of plebiscite in this regard, one need only look at the starkly polarizing effect that the UK referendum on membership of the EU has had on British politics. See Elliott, Cathy, “All-Out War? Brexit, Voting and the Production of Division,” Renewal: A Journal of Labour Politics 25, no. 3 (July 2017)Google Scholar.

69 See note 27 above.

70 Note that Waldron does not actually answer Cn's initial question. Cn asks why she should “accept, comply, or put up with” a decision with which she disagrees, not whether the decision has been reached by the most democratic procedure possible. Following Waldron's arguments about the authority of law, the appropriate response to Cn is surely that she should accept the decision because it represents the community's collectively decided position, regardless of whether that position has been determined by the legislature or by a court!

71 He even goes so far as to say that “the theory of such a process-based response is the theory of political legitimacy” (Waldron, “Core Case,” 1387).

72 As I argued in my PhD thesis: Alexander Latham, “Visions of Self-Government: Constitutional Symbolism and the Question of Judicial Review” (PhD diss., University of Edinburgh, 2016).

73 As has been argued, for example, by Scanlon, T. M., “Due Process,” in Due Process, ed. Ronald, J. Pennock and John W. Chapman (New York: New York University Press, 1977)Google Scholar.

74 See, for example, Marquand, David, The Decline of the Public: The Hollowing Out of Citizenship (Oxford: Polity, 2004)Google Scholar; Brown, Wendy, Undoing the Demos: Neoliberalism's Stealth Revolution (Brooklyn: Zone Books, 2015)CrossRefGoogle Scholar; Davies, William, “The Neoliberal State: Power against ‘Politics,’” in The SAGE Handbook of Neoliberalism, ed. Cahill, Damien, Melinda Cooper, Martijn Konings, and David Primrose (Los Angeles: SAGE Reference, 2018)Google Scholar.

75 Müller, Jan-Werner, What Is Populism? (Philadelphia: University of Pennsylvania Press, 2016), 77CrossRefGoogle Scholar. See also Galston, William, “The Populist Challenge to Liberal Democracy,” Journal of Democracy 29, no. 2 (April 2018)CrossRefGoogle Scholar; Mudde, Cas and Kaltwasser, Cristóbal Rovira, Populism: A Very Short Introduction (New York: Oxford University Press, 2017)CrossRefGoogle Scholar.