Tuesday, November 16, 2010

Law & Disagreement

I am reading once more Jeremy Waldron’s wonderful book, Law and Disagreement (1999), the complementary volume to his equally worthy Seeley Lectures, published as The Dignity of Legislation (1999) (for the record, I don’t share Waldron’s thoughts—or those of Larry Kramer or Mark Tushnet for that matter—on judicial review), which is relevant to several things I’m working on, but especially toward completing a couple of reviews of recent books treating Hobbes’s moral and political philosophy. The passage below struck me as relevant to the Republican Party and Tea Party movement’s implacable, intransigent, and vociferous opposition to the recent health care reform legislation signed into law by President Obama in March of this year: the Patient Protection and Affordable Care Act and the Health Care and Reconciliation Act of 2010. Even before the ink was dry on the bill, state attorneys general in thirteen states were filing suits challenging the constitutionality of the legislation, despite the fact that some of our best constitutional law scholars publicly proclaimed its constitutional integrity.

Consider the following from Waldron’s supplement to Raz’s “normal justification thesis”—distilled from The Authority of Law: Essays on Law and Morality (1979) and The Morality of Freedom (1986)—wherein the main demand law makes on us as subjects is that we comply with it.* In addition to or apart from this demand, writes Waldron,

“[C]onstitutions, statutes, and judicial decisions and opinions make additional demands on us as lawyers, jurists, politicians, and active, opinionated citizens. When something is enacted as law or as a source of law, I believe it makes on us a demand not to immediately disparage it, or think of ways of nullifying it or getting around it, or mobilizing the immune system of corpus juris so as to resist its incorporation. This must be stated carefully, for systems like ours also make available generous structures like appeal, constitutional amendment, legislative reversal, judicial review, periodic elections, and so on; so, in a sense, no one is ever required to accept a political or legal defeat as final or irreversible. However, the demand that interests me operates in the logical space between denying or ignoring a statute or other legal decision and working responsibly for its repeal or reversal. It is a demand for a certain sort of recognition and…respect—that this, for the time being, is what the community has come up with and that it should not be ignored or disparaged simply because some of us propose, when we can, to repeal it.” (p. 100)

Conservatives and libertarians (recalling that not a few Democrats voted against the bill) have, I think, failed to live up to the basic demand Waldron describes here as a respect for the “dignity of legislation” and other sources of law. They’ve conspicuously displayed a disconcerting failure to accord the Health Reform Acts the recognition and respect due them, a respect that is, “in part the tribute we should pay to the achievement of concerted, cooperative, coordinated, or collective action in the circumstances of modern life” (p. 101). The authority and respect due such legislation occurs in the context of what Waldron terms the “circumstances of politics” (analogous to the Humean and Rawlsian ‘circumstances of justice’), “including the circumstance of disagreement as to whether it is even a step in the right direction.” The sundry corrosive effects of this failure are of a piece with the vague and generalized disaffection with government that’s reached a feverish pitch in some quarters and is being dangerously exploited by demagogic politicians, irresponsible pundits and other public celebrities.

*The thesis claims, in particular, “that the normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.”

Update: At ReligiousLeftLaw.com, my beloved co-blogger Steve Shiffrin disagrees with Waldron's conception of the dignity and respect due legislation qua legislation, claiming it is “politically unreasonable,” that it is implicated in the promotion of political quiescence or somehow discourages dissent. Perhaps needless to say, I don't think that follows from Waldron's account, hence my somewhat inarticulate response in the comments. On such matters I find myself an unabashed Liberal!


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