Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral (...) constraints on what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

This article challenges Jeremy Waldron's arguments in favour of participatory majoritarianism, and against constitutional judicial review. First, I consider and critique Waldron's arguments against instrumentalist justifications of political authority. My central claim is that although the right to democratic participation is intrinsically valuable, it does not displace the central importance of the `instrumental condition of good government': political decision-making mechanisms should be chosen (primarily) on the basis of their conduciveness to good results. I then turn to (...) an examination of Waldron's claim that individuals are entitled to participate in decisions which affect their lives. Furthermore, I respond to his claim that justifications of constitutional judicial review rely on an objectionable distrust of democratic politics, and is inconsistent with a view of the person as a morally responsible, autonomous agent. Finally, I seek to show that judicial review can itself become a valuable channel of political participation, especially for those who are marginalized and disempowered in the normal political process. (shrink)

Jeremy Waldron is one of the world's leading legal and political philosophers. This collection brings together thirteen of his most recent essays which, in the course of working the book up for publication, the author has revisited and thoroughly revised. He addresses central issues within the liberal tradition, focusing on the law and its role in a pluralistic state which experiences deep disagreements about values and rights, and about the role of the state itself.

Author Jeremy Waldron has thoroughly revised thirteen of his most recent essays in order to offer a comprehensive critique of the idea of the judicial review of legislation. He argues that a belief in rights is not the same as a commitment to a Bill of Rights. This book presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of (...) principle. (shrink)

Can the right to private property be claimed as one of the `rights of mankind'? This is the central question of this comprehensive and critical examination of the subject of private property. Jeremy Waldron contrasts two types of arguments about rights: those based on historical entitlement, and those based on the importance of property to freedom. He provides a detailed discussion of the theories of property found in Locke's Second Treatise and Hegel's Philosophy of Right to illustrate this (...) contrast. The book contains original analyses of the concept of ownership, the ideas of rights, and the relation between property and equality. The author's overriding determination throughout is to follow through the arguments and values used to justify private ownership. He finds that the traditional arguments about property yield some surprisingly radical conclusions. (shrink)

ABSTRACT This essay considers Mary Kate McGowan's contention that no account of hate speech is adequate if it does not explain how such speech constitutes harm to those targeted by it. ‘Constitutes’ is suppose dot mean something different than ‘causes.’ McGowan's suggestion that the speech enacts a norm offers an interesting dimension to our understanding of the harm of hate speech. But I argue that it is important to distinguish carefully between ‘norm-enactment’ and ‘norm-application’ in this model. Failure to attend (...) to that distinction blunts the force of the normative account. (shrink)

author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to (...) James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Véronique Munoz-Dardé, John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks. (shrink)

This chapter contains sections titled: Introduction The Weakest Meaning of “Constitutionalism” Constitutionalism as a Theory Particular and General Constitutionalism Explicit and Implicit Constitutions Constitutionalism and Written Constitutions Constitutionalism and Constraint Empowerment and Authority Democracy: Constraint or Empowerment? Constitutionalism versus Democracy Popular Sovereignty Judicial Review of Legislation Concluding Remark Notes.

This collection seeks to ground political theory in the study of institutions, particularly the constitutional relationship between different branches of government. It makes the case that ‘constitutionalism’ has become a thin doctrine of political restraint. Waldron wants to identify a fuller conceptual understanding of how the functions of government can be empowered and articulated. In doing so, he sets out a position that is distinct from both moralism and realism in contemporary political theory. I explore how well the later (...) distinction holds up: how successfully does Waldron’s approach marry realist concerns with the rigour of analytical political theory? I also discuss the role it leaves for the history of political thought and whether it can deal with the populist strain in contemporary politics. (shrink)

Jeremy Waldron’s Law and Disagreement1 is an extremely important and influential book. Not only is it probably the best known recent text presenting the case against judicial review, but it is also rich in details and arguments regarding related but distinct issues such as the history of political philosophy, the relevance of metaethics to political philosophy, the desirable structure of legislative bodies, the justification of democracy and majoritarianism, Rawls’ political philosophy, and much more. In commenting on such (...) rich work, then, the difficulty is not to find things to disagree (or indeed agree) with, but rather to pick and choose among the many topics one can discuss. Below I focus on what seem to me like central difficulties in the more general political philosophy Waldron seems to endorse, and in its application to the topic of judicial review. (shrink)

The biopsychosocial model of challenge and threat posits that resource and demand appraisals interact in situations of acute stress to determine affective responses, and concomitant physiological responses, motivation, and decisions/behaviors. Regulatory approaches that alter appraisals to regulate challenge and threat affective states have the potential to facilitate coping. This reply clarifies the conceptualization of one such regulatory approach, arousal reappraisal, and suggests avenues for future research. However, it is important to note that arousal reappraisal is not a “silver bullet” for (...) improving stress outcomes, nor should this strategy be expected to positively impact all individuals. More work is needed to better elucidate how psychological and biological stress processes interact to shape health. (shrink)

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in (...) the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative —or complemen- tary— riposte in order to meet Waldron’s challenge; and, finally, he insists in the importance of taking Ronald Dworkin seriously.Resumen:En este artículo el autor se enfoca principalmente en la última parte de Justice for Hedgehogs (Justicia para erizos), de Ronald Dworkin y en su argumento a favor de la concepción asociativa o societaria de democracia. Para tal propósito, primero, recuerda algunas de las características centrales que Dworkin ha adelantado en obras anteriores, pero intrínsecamente relacionadas, acerca de moralidad política, la igualdad y la democracia; segundo, reevalúa los argumentos a favor de la concepción asociativa o societaria de democracia; tercero, reconsidera la resistencia producida por Jeremy Waldron en su “A Majority in the Lifeboat” (“Una mayoría en el bote salvavidas”), y la respuesta ofrecida por Dworkin, pero toda vez que puede parecer insuficiente, trata de presentar una respuesta alternativa —o complementaria— para responder al reto de Waldron. Finalmente insiste en la importancia de tomar a Ronald Dworkin seriamente. (shrink)

This paper provides a defense of the following thesis: When there is reasonable disagreement over the design of morally necessary collective action schemes, it would not be reasonable to reject the authority of a democratic decision procedure to settle these disputes. My first argument is a straightforward application of contractualist reasoning, and mirrors T. M. Scanlon's defense of a principle of fairness for the distribution of benefits produced by a cooperative scheme. My second argument develops and defends the intuition that (...) treating others morally requires respecting their exercise of moral judgment, or a sense of justice. I conclude by addressing the problem of disagreement over the design of the democratic decision procedure itself, and rebutting Jeremy Waldron's claim that democratic authority is incompatible with judicial review. (shrink)

This article considers the relationship between moral philosophy and constitutional theory through a detailed examination of the work of Jeremy Waldron—an unavoidable voice in contemporary constitutionalist debate. Through a rigorous, original and holistic deconstruction of his work and its philosophical implications, I argue that Waldron’s engagement with core philosophy within his constitutional scholarship is wholly problematic, containing a number of ambiguities and apparent inconsistencies. These issues, I suggest, may stem from an at times rather casual treatment of (...) the realist/anti-realist issue of core philosophy, perhaps owing something to his view that it is in fact safely irrelevant to his constitutional pursuits. In any case, this view, I argue, is misguided, and the problems which result are real: they not only create issues of theoretical consistency and clarity; they put Waldron’s constitutional theory in danger. Like all good tales, I suggest there are lessons to be learned from this: one must think, and think carefully, about the philosophical background of one’s work, and take care in setting this out in a clear, thorough and coherent way—the stakes are too high not to. With this in mind, this article also lays some groundwork for a path into constitutional theory firmly grounded in my own anti-realist moral scepticism. (shrink)