Content area
Full text
DAVID ESTLUNDJEREMY WALDRON ON LAW AND DISAGREEMENT1Politics is about disagreement. This is the guiding idea of Jeremy
Waldrons intriguing argument in Law and Disagreement,2 and it
guides him to a view that places unusual and inspiring faith in democratic processes of legislation. Waldrons democratic faith works to
the detriment not only of would-be dictators, but also of supreme
courts purporting to pass on legislations propriety, and even, I
believe, against accounts of political authority (or legitimacy; I will
interchange these terms) that rely on the possibility of a public
conception of justice or legitimacy. These same themes are also
present in a companion volume, The Dignity of Legislation,3 though
I will consider it only in a supplementary way.The question for Waldron is how law and politics can claim
authority over citizens in the light of widespread disagreement about
even such basic matters as justice and legitimacy. Waldron assumes
that political authority cannot exist unless it can, in principle, be
justified to each person it purports to bind, even to many who
are mistaken (LD p. 229). Ill call this general view the liberal
conception of political legitimacy.On the other hand, as Waldron recognizes, not just any disagreement could have this kind of weight in justification-an effective
veto over claims to authority. Some disagreement is crazy, as when
some proposal is rejected by a citizen who thinks it would give too
much power to the fairies. Some disagreement is unfair, as when a
citizen rejects any proposal that would not make him king. These
are only extreme examples, but they show that even if some cases
of disagreement defeat claims to political authority, not all do. For
ease of reference I will give a name to disagreement that has that
moral weight: call it reasonable disagreement. Ill say very little
about what makes some positions reasonable and other ones not.
My only point here is this: if we follow Waldrons liberal approachPhilosophical Studies 99: 111128, 2000.
2000 Kluwer Academic Publishers. Printed in the Netherlands.112 DAVID ESTLUNDto legitimacy we must make some objections matter and others not.
The only alternatives to making this distinction between reasonable
and unreasonable objections are a) to make no objections matter in
this way, contrary to the liberal approach, or b)...