Jeremy Waldron

The Core of the Case Against Judicial Review

This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions. 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, Veronique Munoz-Darde, 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. WALDRON 3/23/2006 6:53:29 PM the core of the case against judicial review

Dignity, rank, and rights

Introduction Meir Dan-Cohen Dignity, Rank, and Rights Jeremy Waldron 1. Dignity and Rank 2. Law, Dignity and Self-Control Comments Response to Jeremy Waldron Wai Chee Dimock Aristocratic Dignity? Don Herzog Dignity, Rank and Rights Michael Rosen Reply to Commentators Jeremy Waldron Reply Index

Rights in Conflict

This paper is about conflicts of rights. It asks whether, in our moral thinking, we should regard rights as considerations that are capable of conflicting with one another, and, if they are to be thought of in this way, how such conflicts should be resolved. I do not have any definitive answers to these questions, partly because how we answer them depends on how we conceive of rights. However, I shall argue as follows: first, that if rights are understood along the lines of the Interest Theory proposed by Joseph Raz, then conflicts of rights must be regarded as more or less inevitable; second, that rights on this conception should be thought of, not as correlative to single duties, but as generating a multiplicity of duties; and third, that this multiplicity stands in the way of any tidy or single-minded account of the way in which the resolution of rights conflicts should be approached.

Democratic Theory and the Public Interest: Condorcet and Rousseau Revisited.

Bernard Grofman and Scott Feld argued in the June 1988 issue of this Review that Jean-Jacques Rousseaus contributions to democratic political theory could be illuminated by invoking the theorizing of one of his eighteenth-century contemporaries, the Marquis de Condorcet, about individual and collective preferences or judgments. Grofman and Felds claims about collective consciousness and the efficacy of the public interest provoke debate. One focus of discourse lies in the application of Condorcets jury theorem to Rousseaus theory of the general will. In this controversy David M. Estlund and Jeremy Waldron in turn raise a variety of issues of theory and interpretation; Grofman and Feld then extend their argument, and propose clarifications.

Dignity and Rank

This paper considers the meaning conveyed by the term “dignity” in human rights discourse. It considers various ambiguities associated with the term (e.g. Does it describe the content or the ground of certain rights?) as well as alternative accounts of the kind of meaning that “dignity” has (descriptive or evaluative, technical or ordinary language). The second part of the paper argues that the distinctive contribution that “dignity” makes to human rights discourse is associated, paradoxically, with the idea of rank : once associated with hierarchical differentiations of rank and status, “dignity” now conveys the idea that all human persons belong to the same rank and that, that rank is a very high one indeed, in many ways as high as what were formerly regarded as ranks of nobility.

John Locke: Social Contract Versus Political Anthropology

In the Second Treatise , John Locke presents two stories about the development of political society: (1) the dramatic story of the state of nature and social contract; and (2) a more gradualist account of the evolution of political society “by an insensible change” out of the family group. The relation between these two accounts is analyzed in order to deal with familiar objections about the historical truth and internal consistency of contract theory. It is argued that Locke regarded story (2) as the historically accurate one, but that he believed historical events needed moral interpretation. Story (1) represents a moral framework or template to be used as a basis for understanding the implications — for political obligation and political legitimacy — of story (2). Even if the whole course of the evolution of political institutions out of prepolitical society cannot be seen as a single intentional or consensual process, still individual steps in that process can be analyzed and evaluated in contractualist terms. The task of political judgment is to infer the rights and obligations of politics from this representation of political development as an overlapping series of consensual events.

Can communal goods be human rights

There is talk today of a ‘new generation’ of human rights. An idea which was associated in the first instance with civil and political liberties (‘first generation’ rights), and which was used after the Second World War to express popular aspirations to economic and social well-being (‘second generation’ rights), is now being invoked as a vehicle for claims about the importance of the environment, peace, and economic development, particularly in the Third World. No one doubts that these are worthy aims. But instead of merely saying that Third World countries need to develop their economies, instead of saying simply that peace is essential in a nuclear world, and that we must maintain and respect the eco-systems on which human life depends, the proclamation is being made that these are human rights —things to which people are entitled in the same way that they are entitled to democratic freedom or the right not to be tortured.

The role of rights in practical reasoning: Rights versus needs

This paper considers the proposal, associated with the CriticalLegal Studies movement (CLS) that the language of rights shouldbe replaced with the language of needs. It argues that thelanguage of needs is no less contestable, and has an even lesssecure relation to the idea of social duty than the idea ofrights. The paper rejects the notion that rights are usuallynegative claims on others – claims to their forbearance –and argues that rights can be understood perfectly well as adiscourse in which affirmative claims are articulated. Moreover,rights are naturally associated with the idea of a moral system– a well-thought-through set of demands, in which potentialconflicts have been addressed and resolved. The concept ofneed does not have such systemic implications.

Mill and the Value of Moral Distress

People are sometimes distressed by the bare knowledge that lifestyles are being practised or opinions held which they take to be immoral. Is this distress to be regarded as harm for the purposes of Mills Harm Principle? I argue, first, that this is an issue that is to be resolved not by analysis of the concept of harm but by reference to the arguments in On Liberty with which the Harm Principle is supported. Secondly, I argue that reference to those arguments makes it clear beyond doubt that, since Mill valued moral confrontation and the shattering of moral complacency as means to social progress, he must have regarded moral distress as a positive good rather than as a harm that society ought to intervene to prevent. Thirdly, I relate this interpretation to Mills points about temperance, decency and good manners. I argue, finally, that my interpretation is inconsistent with Mills underlying utilitarianism only if the latter is understood in a crudely hedonistic way.

Hobbes and the Principle of Publicity

A common view is that Hobbesian authoritarianism is quite indifferent to whether people know or understand the truth about politics and political arrangements: obedience is all that counts. I try to show that this view is mistaken. Hobbes believes it is important for people to understand the true basis of the sovereigns claims. This is partly because the shape of Hobbesian political obligation is so counter-intuitive, that only a true understanding will produce the right results. But it is also due in part to an inherent respect for individual reason in Hobbess writings. In this regard, Hobbess political theory anticipates the Enlightenment commitment to rationality and transparency in social and political arrangements.