Law and Disagreement / Edition 1

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Overview

When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues such as affirmative action, 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. 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 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 rights-based defence of majoritarian legislation will be welcomed by scholars of legal and political philosophy throughout the world.
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Editorial Reviews

From the Publisher

"An influential contribution to legal philosophy."--International Philosophical

"Waldron's view gets much of its appeal from the way he understands voting as an expression of mutual respect. He is no doubt right to maintain that mutual respect is a fundamental basis of our commitment to majority decisions making in the face of disagreement."--Liam Murphy, Philosophical Review

"...marvellously challenging, engaging and courageous...The arguments and stimulating and helpful" --William Lucy The Modern Law Review November 2000

"Waldron is making an influential contribution to legal philosophy ... Waldron is an eloquent advocate for democratic processes and the protection of autonomy." --Robert John Araujo, S. J., International Philosophical Quarterly December 2000

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Product Details

  • ISBN-13: 9780199243037
  • Publisher: Oxford University Press, USA
  • Publication date: 4/28/2001
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 344
  • Product dimensions: 9.20 (w) x 6.20 (h) x 0.80 (d)

Meet the Author

Jeremy Waldron, Maurice and Hilda Friedman Professor of Law and Director of the Center for Law and Philosophy, Columbia University

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Table of Contents

1 Introduction 1
I A Jurisprudence of Legislation 19
2 Legislatures in Legal Philosophy 21
3 Legislation by Assembly 49
4 Text and Polyphony 69
5 Legislation, Authority, and Voting 88
6 Legislators' Intentions and Unintentional Legislation 119
II Disagreement in Principle 147
7 Rawls's Political Liberalism 149
8 The Irrelevance of Moral Objectivity 164
9 The Circumstances of Integrity 188
III Rights and Judicial Review 209
10 Between Rights and Bills of Rights 211
11 Participation: The Right of Rights 232
12 Disagreement and Precommitment 255
13 The Constitutional Conception of Democracy 282
Bibliography 313
Index 327
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