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Waldron: Law and disagreement

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Waldron. 1999. Law and disagreement. Oxford University Press.

Main Argument

There is a substantial literature arguing about the arbitrary nature of voting. Counting heads seems like the opposite of what something like justice requires--individuals may not be present at assembly or a whim of a voter could reverse decision entirely. Agenda setting and cycling also makes it arbitrary. Waldron's intention is to present legislation in a better light than it appears in jurisprudence.

On Deliberative Democracy (dismissive)

Tends to demand consensus, but in the real world, even after discussion, people will tend to disagree in good faith about what is good, just and right.

The Circumstances of Politics (Two)

Like Rawls's discussion about the circumstances of justice, where conditions of moderate scarcity and limited altruism make justice a virtue and necessity, the circumstances of politics can be said to be (1) the need for common framework or decision on some matter and (2) in the face of disagreement on what that action should be.

Coordination and Cooperation

Source of legal authority/Laws not PD or CP, but a hybrid conflict coordination problem (battle of the sexes). A legal system can contribute by associating sanctions to one of the coordinative options.

(Refraining from rape for ex. has nothing to do with respect for law, but respect for women--clearly it is not a collective action problem for rape is wrong even in societies where it is common and no law exists. But what constitutes rape is controversial: consider statutory rape laws, marital rape laws, homosexual rape laws, etc. Each would prefer some law to none at all)

Disagreement

Every single decision that has been made in all democracies has come against the backdrop of disagreement, yet has retained the loyalty of both parties.

When there is disagreement on the coordination, is majority rule just a technical solution? Does a purely aggregate method fail to take individuals who have given serious thought to a problem seriously since their reasons are reduced to a vote and lost in the large numbers?

  • No better alternative for large numbers. Games often assume 2 people so deliberation easy.
  • Does not require anyone's vote to be silenced. Requires each of us to not pretend that there is consensus, that opposition does not exist, or worse, that it be treated as below respectable deliberation by assuming it is prejudiced, ignorant, or self interested.
  • Superior to alternatives of random coin tossing and Hobbesian leadership

Conclusion

Began with idea that legislation is an unsatisfactory source of law since it can be arbitrary (single swing vote). This sense is unfounded since every feature of majority-decision method that seems arbitrary can be defended as reasonable in circumstances of politics and is the most robust conception of respect for a person. It is a crude mechanical/statistical device precisely because substantive procedure would reproduce, not resolve the problem.

Sharing Power

Rawl's principle of liberty embodies a commitment to equality. Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others". But constrained by the liberty of others, an individual among millions can never exercise his own liberty fully. Same is true for individual political participation rights--one's own influence is unperceivable and arguably inadequate. But right to vote not based on its capacity to affect decision, but giving stake in something that will affect the person who desires vote.

Does participation have an instrumental justification?

Elster argues that any defense of the right to participate be an instrumental defense. Response against expressivist theories. Voting addresses serious outcomes--war, liberty, oppression, etc. But not purely instrumental either--since decisions are important, individuals are entitled to press for reasons.

Principle and Authority--Who is to have authority?

When there is disagreement, authority must lie somewhere. With a supreme court, with the majority, with a king. Any complete political philosophy must have a theory of authority along with a theory of liberty, equality, justice, etc, since eventually decisions are made. Someone can endorse a particular form of authority, for example majority rule, and while they believe option A to be just, endorse option B if it is the decision of legitimate authority.

A Rights Based Solution

Rights originally conceived of not only as a participatory device, but an acknowledgement that rights bearers are rights thinkers. Idea is that natural rights were predicated precisely on the absence of lawyerly thinking, but a respect for each individual as a creature of God. On this account it is impossible think of an individual as a rights bearer and not think of him as someone who has the capacity to figure out what those rights are. A belief that individuals who are affected have the right and capacity to decide what those laws will be.