DEMOCRACY, JUDICIAL REVIEW AND DISAGREEMENTS ABOUT JUSTICE Dean Machin* Abstract Jeremy Waldron claims to have identified the core of the case against judicial review. He argues that as citizens have fundamental but reasonable and good faith disagreements about justice (ie, we live in the circumstances of politics ) it is morally obnoxious for unelected judges to strike down primary legislation. Waldron, though, does accept the permissibility of judicial review of administrative and executive decision-making. This paper offers an account of what makes a disagreement about justice fundamental and, in light of this, argues that the intrinsic fairness considerations that imply that the judicial review of primary legislation is impermissible apply equally to the judicial review of administrative and executive decision-making. So, either both are permissible or neither is. The paper concludes by showing that the circumstances of politics have considerably fewer implications for the issue of the proper role of judicial review than Waldron s arguments imply. Keywords Democracy, judicial review, Jeremy Waldron, fundamental disagreements about justice, circumstances of politics. A. INTRODUCTION There are few more determined opponents of judicial review than Jeremy Waldron and recently he claims to have identified the core of the case against judicial review. 1 His argument is important because, unlike other political and legal philosophers who approach this question through the relationship between * Department of Philosophy, University of Warwick. 1 See J Waldron, The Core of the Case Against Judicial Review (2006) 115 Yale Law Journal 1346-1406.
44 Machin democracy and justice 2 Waldron predicates his argument against judicial review on the fact that we disagree about justice, ie, that we live in what he calls the circumstances of politics. Waldron argues that in the face of fundamental and good faith disagreement about justice it is morally obnoxious for unelected judges to second-guess or over-ride the declared will of the people. Waldron s argument is very powerful both because it is analytically clear and because it fits well with widely-held views about the role of judicial review. However, in this paper I argue that it cannot pass muster. More specifically I aim to show that the existence of good faith disagreements about justice is irrelevant to the case for or against judicial review and that, contrary to some of Waldron s claims, in the circumstances of politics one can justify a decision-making procedure by appealing to the kinds of outcomes it is likely to produce. In sections B-E I set out Waldron s claims, I outline the circumstances of politics and explain the role that it plays in Waldron s case against judicial review; I also explain what form of judicial review Waldron thinks is permissible. We will see that Waldron s argument relies on the idea that some disagreements about justice are fundamental and that these disagreements must be resolved democratically. This requirement rules-out the judicial review of primary legislation but not of executive or administrative decisions. In sections F-J I look at the ways in which one might label disagreements about justice fundamental and argue that there is no principled way of saying what kind of disagreement is, in the relevant sense, fundamental. Therefore, if Waldron s argument rules out the judicial review of primary legislation it also rules out the judicial review of executive and administrative decisions. In light of this I claim that the kind of disagreement about justice is no guide to how that disagreement should be resolved. Finally, in section K I interrogate the idea of the circumstances of politics a little further and show that it has considerably fewer implications for the permissibility of judicial review than Waldron s arguments imply. Principally, I argue that we should assess claims about judicial review s permissibility in terms of its relative ability to deliver substantively just decisions whether citizens agree with those decisions or not. I should note, though, that my interests are both broader and narrower than Waldron s. At the general level my interests are broader because the issue in which I am interested is the role of democracy and the general utility and acceptability of non-democratic decision-making. Waldron s (much narrower) primary concern is the role of judicial review within a democratic society. However, so far as this paper is concerned my interests are narrower than Waldron s. While Waldron s claims constitute an argument for democracy my 2 For examples of attempts to justify the role of judicial review on the basis of its relationship to justice-values see J Rawls, Political Liberalism (New York, Columbia University Press, 1996) and T Christiano, The Constitution of Equality (Oxford University Press, 2008).
Democracy, Judicial Review and Disagreements About Justice 45 claims are not a case against democracy. All that I intend to show is that one cannot base an argument for democracy on Waldron s specific claims; this does not rule out other ways of justifying democracy. One final introductory comment: what do I mean by democracy? I mean simply that, subject to a generous definition of citizenship issues of justice are addressed democratically where all citizens together have one vote each to make decisions or, more likely, where all citizens have one vote each to appoint and remove those (ie, their representatives) who makes decisions and where there is some form of majority-rule. B. DISAGREEMENTS ABOUT JUSTICE John Rawls has argued that we can expect pluralism about the good life to be a permanent fact of a free society. People differ about what constitutes a good life there are Christians, atheists, Millian liberals and Aristotelians and given people s different experiences and understandings, their limited reasoning capacities and life s complexities, there is no reason to expect that disagreement to disappear. 3 The free operation of people s reason will always lead to different people prioritizing different values and reaching different conclusions about what is and what is not a meaningful life. The only way to alter this, claims Rawls, is through the oppressive use of state power 4. However, despite this widespread disagreement about the good life Rawls does think that it is possible to reach agreement on matters of justice, such as his account of justice as fairness 5 ; it is this second claim about the possibility of agreement about justice that Waldron challenges. 6 Waldron argues that the considerations that imply permanent reasonable disagreement about the good life show that we can also expect there to be permanent and reasonable disagreement about justice. Issues of justice are as complex as issues about the good life and they are also informed by the different experiences and understandings of different citizens. Furthermore, different conceptions of the good life often contain within them their own conceptions of justice: 3 Rawls explains the fact of reasonable disagreement about the good life in terms of the burdens of judgement. See Rawls, supra, n 2, 54-58. 4 J Rawls, The Domain of the Political and Overlapping Consensus, in S Freeman (ed), John Rawls: Collected Papers (Cambridge, MA, Belknap Press of Harvard University Press, 1999), 474 5 For a concise statement of justice as fairness, see J Rawls, Justice as Fairness: A Restatement (Cambridge, MA, Belknap Press of Harvard University Press, 2001). 6 See in particular J Waldron, Law and Disagreement (Oxford University Press, 1999), chapter seven.
46 Machin If a religious or philosophical tradition has nurtured a rich and resourceful conception of the good, it would be odd to expect its priests, ideologues, or philosophers not to have developed that conception also in a social and political direction. Social and political concerns are, after all, among the most pressing concerns we have: it would be odd if a tradition had views about what made life worth living but no views at all about the basis on which we ought to live our lives together. 7 For Waldron, then, we can expect widespread reasonable disagreement about justice to be a fact of contemporary life; this fact Waldron labels the circumstances of politics. C. THE CIRCUMSTANCES OF POLITICS For our purposes, there are four key features to the circumstances of politics. They are (i) that unlike questions about the good life, disagreements about justice must be resolved, (ii) the fact of fundamental disagreement about justice, (iii) that citizens disagreements about justice are reasonable and in good faith, and (iv) that neither (ii) nor (iii) imply any form of moral relativism. I will explain each of these points in turn. 8 Political decisions must be made. For example, while a political community need never make any decision about the nature of the Eucharist it must permit or prohibit faith schools; and while any political decision can be undone or reversed, at any one time it must be resolved one way or another and all citizens are required to respect the decisions made. Furthermore, a determination not to resolve some issues is itself a resolution. The fact of fundamental disagreement about justice is also important to Waldron s argument because, while he introduces the circumstances of politics as a contrast to Rawls, it is certainly not the case that Rawls envisages agreement on 7 Ibid, 161. 8 These points are taken from both Waldron, ibid, chapters five, seven and eight and Waldron, The Core of the Case Against Judicial Review, supra, n 1. In the latter piece Waldron does not use the phrase the circumstances of politics nor does he talk about disagreement about justice; instead he talks about disagreements about rights. However, I take it that the same ideas are in operation. For example, Waldron s idea of rights includes the possibility of socio-economic rights so I take him to be talking about justice as we ordinarily understand the term; and as justice rather than rights fits better with ordinary usage I employ the former term. I should add, though, that this account of the circumstances of politics is an (in my view good) interpretation of Waldron s views; this is because Waldron seems loose in some of his claims.
Democracy, Judicial Review and Disagreements About Justice 47 justice on all issues. Rather Rawls thinks that agreement on principles of justice is possible but that there will be lasting disagreement on what legislation and social policies the agreed conception of justice requires; in fact Rawls bases part of his case for democracy on this fact. 9 The key difference between Rawls and Waldron, then, is that, for Waldron, citizens will always disagree about the basic terms and principles of their association 10. There will always be fundamental disagreements about justice 11 and arguments for and against judicial review should be informed by this fact. The third important point is that, for Waldron, disagreements about justice in the circumstances of politics are, for the most part, reasonable and in good faith. [T]here is a strong commitment [to rights/justice] on the part of most members of society [citizens] accept that individuals have certain interests and are entitled to certain liberties that should not be denied simply because it would be more convenient for most people to deny them. 12 Moreover, citizens: care about [rights/justice], they keep their own and others views on rights under constant consideration and lively debate, and they are alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst. 13 One reaction to this claim may be that it is straight-forwardly false: many actual disagreements about justice seem not to be reasonable at all. Often disagreements seem to be caused by no more than a deliberate attempt by one group of people to foist their values on to everyone else, and such disagreements are often characterized by each side s distinct lack of respect for those with whom they disagree. As an empirical claim perhaps this is correct but Waldron has good reasons for ignoring unreasonable and bad faith disagreements about justice. First, Waldron wants to develop the core case against judicial review; this requires that his argument applies where all parties have some meaningful commitment to justice (as they differently understand that idea). If Waldron s argument assumes that some citizens reason strategically, are manipulative or have no respect for their opponents his argument may lack scope and may count only as an argument 9 See J Rawls, A Theory of Justice (Oxford University Press, 1999), 36-37. 10 Waldron, supra, n 6, 152. 11 Ibid, 158 (italics in original). 12 Waldron, supra, n 1, 1364. 13 Ibid, 1365.
48 Machin against judicial review in fractured societies. 14 The second reason follows from the comments above about the free operation of people s reason: even if selfinterested disagreements about justice cease to exist, fundamental reasonable and good faith disagreements will not so we will still need some account of how such disagreements ought to be resolved. The question of the proper role of judicial review, then, will remain a live one should everyone become reasonable overnight. But how should we explain and understand the permanence of fundamental, and good faith disagreements about justice? Is it the case that citizens disagree about justice because there are no facts of the matter about justice and its requirements? More generally, do the circumstances of politics imply some form of moral relativism? Perhaps citizens disagree because, unlike science, in politics there is no independent subject matter about which they can agree or disagree. Waldron is clear that the circumstances of politics do not imply any form of moral relativism and nor does his argument tacitly assume it: The assumption of disagreement has nothing to do with moral relativism. One can recognize the existence of disagreement on matters of rights and justice without staking the meta-ethical claim that there is no fact of the matter about the issue that the participants are disputing. The recognition of disagreement is perfectly compatible with there being a truth of the matter 15 For Waldron, then, we can meaningfully talk about substantively better and worse decisions; it is just that citizens disagree about which decisions are in fact better or worse. This point is important because I take it that, generally speaking, people are not moral relativists; they do think that laws, judicial rulings etc. can be substantively good or bad and so decisions can be better or worse. It is true that different people will cash out the ideas of better and worse differently some will appeal to the authority of God, others to utility, and yet others will appeal to a privileged decision-making procedure that yields principles of justice but, generally, I take it that most citizens in Western Europe and the USA accept that we meaningfully talk about substantively better or worse laws, and judicial and democratic decisions. 16 14 In fact Waldron is very critical of those who argue for judicial review precisely on the grounds that some citizens are unreasonable. See Waldron, ibid, 2. Waldron identifies the non-core case for and against judicial review as applying to societies in which the commitment to rights is tenuous and fragile. (ibid, 1366). 15 Ibid, 1368. Also see Waldron, supra, n 6, chapter eight. 16 Also, if Waldron s argument was predicated on some form of moral relativism it would lose scope quite significantly. For example, to show that his argument was wrong one would be required only to show that there are very few moral relativists or, more laboriously, to argue that moral relativism is itself false. Equally, while the issue of moral relativism is important and interesting, people disagree
Democracy, Judicial Review and Disagreements About Justice 49 With the background explained, let us now turn to Waldron s argument. D. RESOLVING DISAGREEMENTS ABOUT JUSTICE IN THE CIRCUMSTANCES OF POLITICS While Waldron s most recent argument against judicial review has invoked what he labels outcome-related reasons, ie, claims about the substance of democratic and judicial decisions, I will develop my argument against him with reference to what, in the same piece, he labels process-related reasons, ie, reasons about the process through which the decisions are made. 17 This is because I take the argument based on process-related reasons to be more central to Waldron s concerns and because, as he himself notes, the argument against judicial review on the basis of outcome-related reasons is less clear cut. Waldron s core claims are as follows: 1. We live in the circumstances of politics, ie, citizens have permanent, fundamental and good faith disagreements about justice which must be resolved. 2. The procedure used to resolve questions of justice must not re-ignite, the controversies whose existence called for a decision-procedure in the first place 18. 3. Disagreements about justice can either by resolved collectively by the citizens (either directly or by their elected representatives) or they can be resolved by some sub-set of the citizenry (e.g., the judiciary). 4. Of whatever decision-making procedure used to resolve issues of justice citizens can ask (i) why did those decisions-makers get to decide? (or [w]hy them? Why not me? 19 ) and (ii) [i]n the decision-procedure that was used, why wasn t greater weight given to the views of those decision-makers who felt as I do about the matter? 20 5. Given 1-2 above, we cannot appeal to outcomes to answer (i) and (ii). 6. Resolving disagreements collectively by the citizens (either directly or by their elected representatives) is intrinsically fairer than allowing some sub-set of the citizenry to resolve disagreements. This is because a about its truth so Waldron would be unwise to rest any weight on it when offering an argument against judicial review in the face of fundamental disagreement. 17 Waldron, supra, n 1, esp. 1376-95. 18 Ibid, 1371. 19 Ibid, 1387. 20 Ibid.
50 Machin collective resolution resolves disagreements about justice in a way that gives citizens the greatest say possible compatible with an equal say for 21 everyone affected by the decisions. Judicial review necessarily excludes most citizens from decision-making and so is intrinsically less fair. 7. Therefore, disagreements about justice must be resolved collectively by the citizens (either directly or by their elected of representatives). This argument is plausible and is, so it seems to me, an argument that is widelyaccepted both inside and outside of academic circles. It is, then, worth interrogating to see whether we should accept its conclusion. We should also note how central the circumstances of politics are to the conclusion. If, say, we assume that society is well-ordered in the Rawlsian sense, ie, that there is agreement on a single conception of justice, then the case for democracy will be different. In a well-ordered society premise 1 is false (and by implication so is 5). If we are all committed to a single conception of justice, then, when determining which procedure to use to address questions of justice there is absolutely no reason why we cannot appeal to the likely outcomes of different decision-making procedures. This is not to say that in the well-ordered society there is no case for democracy; my claim is only that in the well-ordered society any case for democracy will be based on its connection to justice-values, either as a constitutive or intrinsic feature of justice or as the most reliable means to identify the requirements of justice. 22 Importantly, for Waldron, such appeals are illegitimate. The central virtue of Waldron s argument, then, is that, if correct, it rules out judicial review without making any substantive claims about what justice is or what it requires. 23 E. IS JUDICIAL REVIEW ALWAYS IMPERMISSIBLE? So far I have been quite general but to do justice to Waldron s argument and show why it is problematic we need to be more specific. Must all disagreements about justice be resolved democratically? Does Waldron think that there are any circumstances in which judicial review is permissible? Waldron intends his 21 Ibid, 1389. 22 For Rawls, democracy is justified both on intrinsic and instrumental grounds. See Rawls, supra, n 9, 37. Also, see Christiano, supra, n 2 for a different argument with similar conclusions. 23 For another argument that tries to rule out non-democratic decision-making without appealing to justice-values see D Estlund, Making Truth Safe for Democracy, in D Copp, J Hampton and J Roemer (eds), The Idea of Democracy (Cambridge University Press, 1993), 71-101. For an account of why that argument fails, see D Machin, The Irrelevance of Democracy to the Public Justification of Political Authority (2009) Res Publica, published online 19 April 2009.
Democracy, Judicial Review and Disagreements About Justice 51 argument to apply only to primary legislation enacted by the elected legislature of a polity 24; it does not apply to executive or administrative decision-making. Therefore, his argument is compatible with some kinds of judicial review; it rules out only strong judicial review that strikes down democratically-enacted legislation. This qualification is plausible and is also widely-shared. While many people think that judicial review has a role in establishing whether the executive has behaved in accordance with the law there is often a sense of outrage when unelected (and by implication unrepresentative) judges strike down legislation that may have sound democratic provenance and be the considered will of the people. However, is there a significant distinction between the judicial review of primary legislation and the judicial review of executive action? The fact of fundamental disagreement about justice is central to Waldron s argument and it does seem that it enables us to draws the distinction that Waldron requires. Intuitively it makes sense to describe a disagreement between two citizens about whether their society should have any free speech laws as, in some sense, a fundamental disagreement about free speech. In contrast, we would not similarly describe a disagreement between the same citizens over whether their society s extant free speech laws require decision A or decision B. The latter kind of disagreement does not seem to be fundamental in the way the former disagreement is. In the next section I will try to establish whether it is possible to draw the distinction Waldron requires. I will argue that the most plausible understanding of what makes a disagreement about justice fundamental is ill-suited to Waldron aims of only ruling out judicial review of primary legislation. I will claim that either Waldron s argument should be rejected or it commits him to the impermissibility of judicial review of executive decisions as well. F. FUNDAMENTAL DISAGREEMENTS ABOUT JUSTICE In order for Waldron s argument to be successful we need an account of why disagreements about primary legislation are fundamental disagreements. Any such account must meet the following conditions: i. It must be informative Waldron cannot simply define fundamental disagreements about justice as disagreements about primary legislation. 24 Waldron, supra, n 1, 1354.
52 Machin ii. iii. iv. It must cleave the distinction in the correct place Waldron requires that disagreements about primary legislation are fundamental disagreements but that disagreements about executive and administrative decisions are not. It cannot appeal to any substantive considerations that, to some parties to the disagreement, seem like considerations of justice. Any account of why fundamental disagreements about justice are disagreements about primary legislation that does appeal to substantive justice-like considerations would violate the restrictions imposed by the circumstances of politics and so would be illegitimate by Waldron s own lights. It must be normatively significant any account must attach some normative weight to the idea of a disagreement being fundamental. After all, the issue before is whether such disagreements about justice ought to be resolved democratically. Normative significance is different to condition i. because condition i. can be met by an explanatory account. For example, one important debate in political philosophy is the degree to which it is permissible to treat some people, such as one s conationals or fellow EU citizens, differently to others. 25 One account might refer to the division of the world into states, or claims about shared language and shared history and, in some explanatory sense, this is informative; but such accounts would not justify differential treatment. A further account is needed to show why these facts are morally significant. 26 The next task is to develop a plausible account of what makes a disagreement about justice fundamental and to see if it maps on to conditions i-iv in the right way. I will do this by looking at different kinds of disagreement about justice (in section G) and the different senses in which disagreements can be fundamental (section H). Then (in section I) I will argue that the most plausible understanding of what makes a disagreement about justice fundamental does not satisfy condition ii. Overall, I argue that Waldron s argument fails. In section J I summarize my main claims. 25 For arguments in this debate see T Nagel, The Problem of Global Justice (2005) 33 Philosophy and Public Affairs 113-47 and A J Julius, Nagel s Atlas (2006) 34 Philosophy and Public Affairs 176-92. 26 It should also be noted that, in light of condition iii, what makes the account normatively significant cannot appeal to justice-like considerations.
Democracy, Judicial Review and Disagreements About Justice 53 G. TYPES OF DISAGREEMENT ABOUT JUSTICE There are many types of disagreement about justice and table 1 below identifies three different types. While table 1 is not exhaustive it is sufficient for our purposes. 27 Table 1: Levels of disagreement about justice 1 Disagreement Disagreements about principles Illustration Rawls and Nozick disagree about principles of justice. 2 Legislative disagreements Should there be laws permitting abortion? If so, under what circumstances? 3 Disagreements about law s application Does a freedom of speech law require that permission be granted to David Irving to visit university X at t? One important thing to note about these three levels of disagreement is the degree of independence between each kind of disagreement. People who disagree at the level of principle can nevertheless agree on what laws there should be. So while Rawls and Nozick disagree about principles of justice, given the history of property rights violations in the USA, they may agree on the sorts of laws that the USA should currently have. For Rawls such laws would be justified by (among other things) his difference principle, and for Nozick they would be justified by his principle of justice in rectification 28. Disagreement at the level of principle, then, does not prohibit agreement at the level of legislation. Similarly, two people can agree on what the law should be but disagree about its application. Two people may, say, agree on a permissive abortion law but disagree that in this case 27 For example, one could add another type of disagreement that is prior to disagreements about principles of justice. People can disagree about what sort of thing justice is about and so what sorts of things are relevant to questions of justice. For example, Rawls and Nozick disagree about what considerations are relevant to justice. For Rawls justice is about freedom and citizens social and economic shares. For Nozick justice is about no more than the protection of people s property rights. 28 See R Nozick, Anarchy, State, and Utopia (Oxford, Blackwell, 1974), chapter seven.
54 Machin woman A at t1 should be permitted an abortion. 29 The general point is that agreement or disagreement at any level does not imply agreement or disagreement at another level. 30 Waldron claims that it is acceptable for type 3 disagreements to be resolved through judicial review but that type 2 disagreements disagreements about the content of primary legislation must be resolved democratically. Where do type 1 disagreements fit? As we saw in sections C-D, the circumstances of politics is central to Waldron s argument against judicial review but given the points made above it seems not to be. If there is a degree of independence between agreements and disagreements of type 1 and 2 and as Waldron claims only that disagreements about primary legislation must be addressed democratically perhaps he does not need to invoke the circumstances of politics for his argument. Moreover, as there is no way to resolve disagreements about principles of justice except perhaps through people s convergence on good reason (which seems unlikely) the existence of type 1 disagreements seems irrelevant to Waldron s claims. This, though, is incorrect. The significance for Waldron of disagreements about principles of justice is that they are normatively significant in the same way as disagreements about primary legislation; both should be thought of as fundamental disagreements about justice. Equally, for Waldron, disagreements about law s application are not normatively significant in the same way and so are not fundamental disagreements about justice. Our task, then, is to establish whether there is some account of the idea of a fundamental disagreement about justice that differentiates type 1 and 2 disagreements from type 3 disagreements in a way that respects conditions i-iv above. H. WHAT MAKES A DISAGREEMENT ABOUT JUSTICE FUNDAMENTAL? Below are three ways in which disagreements can be fundamental; as above, this list is not exhaustive but it is sufficient for our purposes: 29 For example, perhaps they disagree about whether a woman in the seventh month of pregnancy should be permitted an abortion so that she can go on a trip abroad. See J J Thomson, A Defense of Abortion (1971) 1 Philosophy and Public Affairs 65-66. Thomson thinks that, in this case, an abortion would be indecent. 30 Although it may in fact be the case that people use differences at one level as proxies or short-hand for differences at other levels. For example, socialists may use their disagreement with conservatives principles to imply that they should disagree with conservatives legislative proposals as well. There may be many reasons for this but they will probably include the fact that an assessment of legislative proposals is more time-consuming,
Democracy, Judicial Review and Disagreements About Justice 55 a) Basic disagreements: A disagreement can be fundamental when there is no more basic disagreement to be had, such that if two people disagree they no longer have anything to say to each other. An example of this could be a disagreement between an atheist and a Christian. If an atheist claims that she has never seen any reason to believe in God and has never felt the need to believe in God there is very little the Christian can say to continue the discussion, except perhaps by appealing to the role of faith. Beyond this probably unsuccessful appeal, though, any discussion must probably end. b) Justificatory disagreements: A disagreement can be fundamental in a justificatory sense. So, if you ask X why she went to the shops and she says that she went to get some apples you can press her and ask why she wants apples. Ultimately, she may say to make apple pie because I like apple pie. It is X s liking of apple pie that explains and justifies her actions. A disagreement in this sense, then, would be about whether apple pie is in fact likeable. If it is likeable, X s actions are justified; if is not, they are not. As this example neatly illustrates, justificatory disagreements may admit of no uniquely correct resolution. c) Disagreements over interests (or interest-disagreements): A disagreement can be fundamental when it is a disagreement about a person s interests in living their life the way they want to or think is valuable. So, for example, a parent and child can have a fundamental disagreement about whether the child should go to university. The parent may want the child to go and the child may resist. In making her case the parent may appeal to the child s long-term interests but the child may respond that she has other plans for her life and she does not want to live the kind of life her parent describes. This kind of disagreement would be about the child s interest in living the life she wants to and in becoming a certain kind of person. It is clear that each kind of disagreement is, at least in some sense, fundamental and many actual disagreements can be fundamental in more than one sense: but in what sense is Waldron using fundamental and is it the most appropriate understanding of the term? Superficially it may seem that disagreements about principles of justice are basic disagreements. For example, at some point Nozick and Rawls will cease to have anything to say to each other about justice and this seems to be because they disagree about principles of justice; they have very few shared premises. Conceiving of disagreements about principles of justice as basic disagreements, though, is incorrect. People can disagree about principles of
56 Machin justice but agree about what sorts of things are relevant to principles of justice. So even where they disagree about principles they will still have things to say to each other, and while there may be some kind of basic disagreement between the two at some point it will not be over principles of justice. 31 We should also reject the idea that disagreements about primary legislation are basic disagreements; this is because, as was noted above, two people can disagree about primary legislation but agree on principles of justice. Citizens who disagree about what the law should be then may still have many things to say to each other and to agree on. In light of this, we will focus on b) and c). It seems that Waldron wants us to understand the idea of a fundamental disagreement as a justificatory disagreement. For example, when citizen A is coerced to desist from Z-ing and is taken to the police station, any answer to A s protestations about why this is happening would refer to the law prohibiting Z- type acts; it is the existence of the law that in this case justifies the coercive acts of the police. The idea of a justificatory disagreement as a fundamental disagreement, then, makes legislative disagreements fundamental but not disagreements about the law s application; the application of a law will always stand in need of a justification that is provided by the law itself. 32 Furthermore, fundamental disagreements as justificatory disagreements also makes disagreements about principles of justice fundamental. This is because in explaining and justifying any law reference will be made to the principles that underpin it. So, if Z is an act of hate-speech, when justifying A s arrest the police or the courts may refer to the reasons why hate-speech is unacceptable; this will invoke ideas and principles about citizens entitlements and what counts as the just treatment of other people. Conceiving of fundamental disagreements about justice as justificatory disagreements, then, enables us to identify a similarity between a) disagreements about justice and b) legislative disagreements that distinguishes them from c) disagreements about law s application. In doing this it enables us to satisfy condition ii. above, ie, it cleaves the fundamental/non-fundamental distinction in 31 The disagreement between Sen and Rawls about the importance of primary goods is an illustration of people who disagree about principles of justice but who still have a great deal to discuss and so agree and disagree about. See A Sen, Equality of What? (1979) The Tanner Lecture on Human Values, delivered at Stanford University May 22, 1979. See http://www.tannerlectures.utah.edu/lectures/documents/sen80.pdf (last accessed on 23 May 2006). 32 It is for this reason that a legislature is seen as the fundamental decision-making body within a polity; it determines what justice requires while other decision-making bodies exist only to implement whatever the legislature determines. For example, if a law is passed that demands certain health and safety features in all workplaces an executive decision-making body will implement this law; it will determine what it requires in different kinds of workplace and it will administer the law. If there are questions of the law s violation judicial decision-making bodies will determine whether any violation has occurred and what punishment, if any, is necessary. However, if the law becomes problematic, inadequate or, due to changing circumstances, redundant only the legislature can change or revoke it; otherwise it must continue to be implemented.
Democracy, Judicial Review and Disagreements About Justice 57 the correct place. Furthermore, because the distinction is found at the level of justification this account is informative and it does not appeal to any justice-like considerations. Conditions i and iii, then, are also met. But what of condition iv? As outlined, justificatory disagreements are normatively significant but, so I will argue, they are not as normatively significant as interest-disagreements about justice. To see why this is the case let us turn to interest-disagreements. Interest-disagreements about justice are fundamental because they are disagreements about the connection between citizens beliefs and their actions, in particular what they are required to do and prohibited from doing. So, in the example above the disagreement between the parent and child is over what actions the child should perform in light of the beliefs she has, or (to take the parent s side) the beliefs the child ought to have, or even about what the child s future beliefs will be about the actions she wished she had performed in the past. Do interest-disagreements map the distinction Waldron draws? Unfortunately, they do not. Disagreements over citizens interests can occur at any level. Some citizens may be Rawlsians and so will disagree at the level of principle with other citizens; while other citizens may want to live in the sort of society that prohibits bloodsports and so will disagree with other citizens about what the law should be. It will also be the case that citizens interests in living the life they want to or think is valuable will be determined not just by what the law is but also by how it is applied. For example, two citizens may agree that their society should have a law permitting abortion where pregnancy and/or child-rearing will cause hardship to the prospective mother but disagree that in this case there will be any hardship. And if we imagine that one of the parties to this disagreement is the prospective mother in question we can see how this is a disagreement about a citizen s interests in living the life she wants to or thinks is valuable; it is not, though, a disagreement at the level of principle nor is it a disagreement about what the law should be. Fundamental disagreements as interest-disagreements, then, can occur at any of the levels outlined in table 1. So, if we should understand fundamental disagreements about justice this way condition ii is not met: there is no distinction to draw that makes only some types of disagreement about justice fundamental. Clearly this is not how Waldron wants us to interpret the idea of fundamental disagreements about justice. So, which of the two accounts is to be preferred? Both are informative and neither appeals to considerations that to some citizens may seem justice-like and both appeal to normatively significant ideas about why that type of disagreement is fundamental. What is to be done? As our enquiry is about whether disagreements about justice ought to be resolved democratically the appropriate next step is to interrogate the normative significance of the two accounts a little further.
58 Machin I. INTEREST-DISAGREEMENTS AS FUNDAMENTAL DISAGREEMENTS It is reasonably clear why interest-disagreements are fundamental. After all, that citizens have a fundamental interest in living the life they want to or think is valuable makes sense without any specification of what individual citizen s interests are. Moreover, all things equal, all citizens are entitled to live the life they want to or think is valuable. 33 Is it equally clear why justificatory disagreements are fundamental? 34 In spite of the account in section H we can still ask of J-disagreements what is significant about them? They are not directly about what citizens are required to do; they are primarily about why citizens are required to behave in certain ways. Obviously, there is some connection between the-what and the-why but as there is also a degree of independence between justification and action after all different reasons can justify the same action we are entitled to further explanation. If this is the case the next logical step is to explain why J-disagreements are fundamental in terms of their connection to citizens interests in living the life they want to or think is valuable. For example, in the hate-speech illustration above presumably A is forced not to Z because it is believed that Z-ing has a detrimental effect on some citizens ability to freely move around without feeling oppressed and/or because it affects citizens self-conception as others moral equals. So conceived, the best way to understand the prohibition on Z is because Z is generally incompatible with some citizens interests in living the life they want to or think is valuable. After all, if no-one were negatively affected by hatespeech it would be odd to prohibit it. The general point is that in completing the account of the normative significance of J-disagreements we appeal to how J-disagreements are also I- disagreements and so we appeal to the greater normative significance of I- disagreements. But completing the account this way also gives I-disagreements greater explanatory power than J-disagreements. This is because I-disagreements can explain why justificatory disagreements are fundamental disagreements. We should, then, explain why justificatory disagreements are fundamental in terms of interest-disagreements; the latter are more fundamental. If this is correct Waldron s argument is in trouble. I-disagreements do not identify legislative disagreements or disagreements about principles as any more 33 Of course, not all things are equal citizens have contrary interests, some have offensive or pernicious preferences, and the world has finite resources for which we all compete. This is why these disagreements require some kind of authoritative resolution. 34 In this section the phrases interest disagreements and justificatory disagreements will occur a lot, often in the same sentence. To ease the reader s burden I introduce abbreviations and refer to the disagreements as I-disagreements and J-disagreements respectively.
Democracy, Judicial Review and Disagreements About Justice 59 or less fundamental than disagreements about law s application. Waldron s rationale for the impermissibility of the judicial review of primary legislation then falls. I will look into the implications of this in sections J-K; for the moment I want to consider two objections that Waldron may make. The first invokes an affecting all, non-affecting all distinction; the idea that law affects all citizens is important for Waldron. He notes that: If we believe that everyone affected by a problem has the right to a say in its solution, then there is nothing to do but set up a procedure for counting and somehow assessing millions of different opinions. 35 and that: if the problem affects millions, then a respectful decision procedure requires those millions to listen to one another to settle on a common policy in a way that takes everyone s opinion into account. 36 And again : What touches all should be decided by all. 37 The idea here, then, is that legislation is fundamental because all citizens are affected by it. This seems plausible and it may also help Waldron to draw the distinction he needs because it can seem that disagreements over a law s application do not affect all citizens; rather they affect only those who are party to any particular decision. If this is correct, then there is a normatively significant difference between the judicial review of primary legislation and the judicial review of its application. The problem with this objection is easy to spot: all that has been achieved is to replace one claim that needs explanation (ie, what makes a disagreement fundamental?) with another that requires just as much explanation. What is it to be affected by a law? On a common sense level it is simply false to claim that everyone is affected either by all laws or by the problems that laws are intended to solve. For example, is a single male who intends on maturity to enter the Catholic priesthood affected by an abortion law? Perhaps we can presume that he believes that abortion is wrong but we need some account of why that constitutes being affected by an abortion law. This is particularly important because, at an empirical level, it is simply not true that the judicial review of a 35 Waldron, supra, n 6, 110. 36 Ibid. 37 Ibid, 114.
60 Machin law s application will affect fewer people than the judicial review of legislation. Judicial review of executive decisions can set precedents which in turn will affect how similar cases are dealt with in the future whereas some legislation may only ever affect very few people. Certainly there will be ways of cashing out affectedness appropriately but they will not be unproblematic. For example Christiano 38 argues that citizens have fundamental interests in feeling at home in their society where feeling at home constitutes some form of emotional identification with one s polity. This could form the basis of an argument to show that one is affected by the existence of laws with which one disagrees or thinks are wrong even if one is materially unaffected by such laws. But Christiano s claim is part of a broader conception of justice and, so it seems me, it will be very difficult to cash out any appropriate conception of affectedness that does not seem, to some citizens at least, like a substantive consideration of justice. The inference to draw from this is that without unpacking affectedness what it is to be affected by a law or a decision is simply too vague to enable us to pick out classes of, or kinds of, disagreements about justice. The second objection is that I am focusing on the wrong issue. Waldron could claim that it is not the kind of disagreement that is normatively significant but it is the kind of things the law and principles of justice are that makes them fundamental. Let me explain the claim then show why it, too, fails. The key idea is that what appropriate principles of justice are and what the law should be are essentially contested hence the circumstances of politics but that once we have established some law (whatever it is) its application is primarily a technical enterprise that is not essentially contested and so can be carried out without controversy by appointed specialists. These specialists, ie, judges, need only know what the law is, understand how their legal system works, and grasp the idea of the rule of law in order to adjudicate cases properly. When making decisions judges need not invoke their own moral views nor rely on their own judgement (beyond, of course, identifying the relevant points of law). If this contrast is valid, it may warrant treating disagreements about the application of law very differently to disagreements about what the law should be. The problem is that in reality this contrast is nowhere near as clear as these comments imply. It is beyond the scope of this paper to offer an assessment of essential contestability 39 so I will confine my comments here to showing that the 38 See T Christiano, The Authority of Democracy (2004) 12 Journal of Political Philosophy 266; and Christiano, supra, n 2, chapters two and three. 39 Although on the issue see J Gray, On the Contestability of Social and Political Concepts (1977) 5 Political Theory 331, and J Gray, On Liberty, Liberalism and Essential Contestability (1978) 8 British Journal of Political Science 385.
Democracy, Judicial Review and Disagreements About Justice 61 application of the law is not merely a technical enterprise. I do not want to claim that the model of the law just outlined does not fit many actual legal cases; all I hope to show is that it does not fit all cases, and in particular it does not fit those cases that are likely to come become subject to judicial review. There are two reasons for this. First, many cases of judicial review will be about citizens (and non-citizens ) fundamental rights 40, such as their right to die, their rights to free speech or their right to marry; and in such cases it will be very difficult for the judgement of the decision-makers to be completely unaffected by their own moral views of the matter. Second, many citizens will have firmly-held views on these matters that will be incompatible with whatever decisions are made in particular cases; this is in part because laws are not self-applying; they must be interpreted and this requires judgement and there will always be room to disagree about whether any particular judge s judgment is the correct one. For example, to elaborate on the abortion illustration from section H, if there is a law permitting abortion in cases of physical or mental hardship then, whatever judgements are made in particular cases, some citizens will disagree that the judgements are correct. They will have their own views about what constitutes hardship and will weigh the relevant factors differently. So, if such cases are addressed by the judiciary, some citizens will in good faith ask of those judgements why was I excluded? I would have weighed the relevant issues differently. Or, Why didn t a judge who agrees with me hear the case? 41 The considerations that tell against judicial review of primary legislation, then, tell just as much against judicial review of a particular law s application. I conclude, then, that the contrast between the essentially contested task of law-making and the technical enterprise of applying the law does not reflect how the law does work or can reasonably be expected to work. The second objection fails. Overall, I conclude that the most plausible way of understanding the idea of fundamental disagreements about justice does not map the kinds of disagreements outlined in table 1 in the way Waldron requires. Let me now summarize the argument. We will see that Waldron may not be too dissatisfied with its conclusion. 40 I use fundamental here in a loose intuitive sense. 41 This is premise four of Waldron s argument from section D.