Law and Disagreement

Law and Disagreement. By Jeremy Waldron. Oxford and New York: Oxford University Press, 1999. 332p. $65.00.

I once attended a lecture in which a famous law professor declared that the time had arrived to abandon critiques of judicial activism in the name of rights because "we now have available the definitive public philosophy upon which constitutional adjudication may rest, that of John Rawls." In Law and Disagreement, Jeremy Waldron provides serious arguments against every tenet of this smug thesis.

Waldron argues that such general theories of justice and rights as those of Rawls and Ronald Dworkin are flawed because they disrespect politics, which consists, first and foremost, of disagreement over fundamental principles. Rawls's notion of "public reason" holds that although we might disagree over particular conceptions of the details of justice, we nonetheless "still agree in accepting a conception's more general features" (Rawls, Political Liberalism, 1993, p. 226). Waldron refuses to take a bite of this apple: "We should pause to consider how remarkable this view is. In the world we know, people definitely disagree-and disagree radically-about justice. Moreover, their disagreement is not just about details but about fundamentals" (p. 153). The inescapable fact of disagreement means we must engage in politics, which involves making a community out of the plurality of perspectives that constitutes the human world. "Politics exists, in Arendt's words, because 'not man but men inhabit the earth and form a world between them'" (p. 112).

Waldron's theory points to renewed respect for democratic politics and its ultimate product, legislation. Yet, Waldron is not dreamy about the nature of democratic politics. He has little patience for what he calls the "dewy-eyed" school of "deliberative democracy," which stresses conversation and the achievement...