W10 L1: Waldron on Lawmaking and the Courts

Law Making Procedures and the Role of Courts

Jim Wardman defends constitutions that give the final say to legislative decisions.
He critiques the U.S. judicial review system where the Supreme Court resolves political disagreements.
Waldron argues for the authority and respect due to legislative government (Congress, Parliament) over judicially mediated solutions.
His book, "Law and Disagreement," explains why majoritarian procedures deserve more respect than court decisions.

Waldron explores the "dignity of legislation," emphasizing the achievement in solving social problems through majoritarian solutions.
He believes majoritarian solutions possess authority and deserve respect, unlike court decisions.
He advocates resolving controversies and political disagreements through democratic majoritarian procedures rather than court assessments of legal issues.

Waldron draws an analogy from John Rawls' account of justice.
Rawls explains the circumstances of justice where we strive for or fail to achieve justice.
Two hallmarks of the human condition:
- Moderate Scarcity: Limited resources for a comfortable and secure life.
- Limited Altruism: People often prioritize their own interests and those of close relations.
These circumstances make justice both possible and necessary.
Rawls would argue for principles of justice such as:
- No entitlement to resources based on privilege or heritage.
- Striving for equality unless inequality benefits everyone in the long run.
Rawls views justice as a matter of distribution, requiring fair reallocation of benefits and burdens.

Waldron shifts from justice to the circumstances of politics, drawing an analogy from Rawls.
He explains that the felt need among members of a group are:
- A common framework;
- Decision or cause of action for some matter;
- Even in the face of disagreement.
Two main characteristics:
- Need for Coordinated Action: Problems that cannot be solved by individuals alone.
- Disagreement: Disagreement about the form that coordination should take.
Example: Climate change - a shared need to reduce emissions, yet disagreement on the framework.
- Internalizing costs of emissions.
- Subsidizing transport or energy.
- Planting trees.
- Changing diets.

Waldron focuses on partial conflict to explain the circumstances of politics.
Example: A couple wants to spend time together but disagree on the activity (boxing match vs. ballet).
Each prefers either other coordination outcomes or non-coordination, but differs on the particular coordination outcome.
Legislation solves these conflicts by choosing one coordinated outcome.
Majoritarian processes resolve partial conflict coordination problems.
Society decides which coordinated outcome to bolster through state sponsorship or sanctions.
The ability for law making procedures to solve circumstances is key.

A key aspect of Waldron's paper is that we go along with solutions even when we disagree.
He acknowledges fundamental disagreements exist in society regarding solutions to coordination problems.
Militant democracy, which excludes certain views from political discourse, challenges this idea.
- Example: banning Neo-Nazi parties in Germany.
Liberals generally allow diverse views on religion, ethics, and philosophy.
However, liberals may struggle with the circumstance of politics.
Libertarian techniques may deny the need for collective coordination.
- Example: the invention of the carbon footprint to make people responsible instead of corporations.
Circumstances of politics arise when there's a felt need for collective engagement or coordination, or disagreement about a solution.
Waldron emphasizes resolving disagreement for a coordination solution.

Waldron argues that democratic lawmaking procedures are preferable to lawyers and judges resolving these questions.
Legislatures can change society against a backdrop of fundamental disagreement yet retain loyalty and compliance.
There is more dignity in a generic decision (voting) than an elite legal official making a decision.
He uses marriage equality as an example of how it's better to have parliament vote in favor of recognizing same-sex couples than to have judges make that decision

Majoritarianism is built on equal respect in two ways:
- Respect for difference of opinion: No one's view is hushed up, and everyone's opinion counts the same.
- Respect for each person in the processes by which views are settled, even in disagreement.
Waldron acknowledges potential concerns about the distinction between democracy and representative democracy, and the scale of problems.
He respects every decisions provided that there is a willingness to listen to one another and settle on a common policy in a way that makes everyone's opinion taken into account.
The core of modern anxiety is that some views must be right and some must be wrong, but there's no way of validating these views.
It is hard to see ways in which courts are better placed about why it's. It's hard to say, look. This one has a better track record.
We must consider which process is the right process, as the right solution is not self-certifying.
Majority decision-making is dignified because it gives equal weight to each person's views and affords equal respect.
Even disagreeing with the solution, people are often willing to go along with that respect and endorse it.

Waldron's account operates at a theoretical level, aiming to explain politics and lawmaking across all times and places.
This abstraction allows focus on fundamental features encountered in every society with lawmaking procedures.
Weakness: decontextualization.
The approach overlooks the history and social circumstances of individuals afforded equal respect.
In reality, not everyone has the same ability to participate or influence democratic procedures.
The temptation is to depart from the analytical method.
Incorporate contextual circumstances: state history, substantive inequality, intolerable viewpoints.
There is disagreement about whether solutions to problems should be legislative or judicial solutions.
There is also disagreement about how to think about our politics.
Whether we should think politics and equality in the abstract, or in the context of society.