Ezra's Bookshelf

Law and Disagreement

by Jeremy Waldron · 1079 pages

Jeremy Waldron, a legal philosopher now at NYU Law School, offers a comprehensive critique of judicial review that challenges both liberal and conservative defenses of the practice. Waldron's central argument is deceptively simple: in a society where people disagree about rights, the most respectful way to resolve disputes is through majority decision among those who hold the rights in question, not by deferring to unelected judges. The book engages seriously with arguments for judicial review, including claims about minority protection and the pre-commitment function of constitutional constraints, showing why these arguments fail to justify removing fundamental questions from democratic resolution. Waldron draws on the thought of democratic theorists from Rousseau to contemporary deliberative democrats while developing his own account of legislation as a dignified form of collective decision-making. The book does not claim that legislatures always reach correct conclusions but argues that courts have no special claim to moral insight and that democratic resolution treats citizens as equals in a way that judicial supremacy does not. First published in 1999 and continuously relevant to debates about constitutional interpretation, this work offers the most philosophically rigorous case against judicial review in the Anglo-American legal tradition. Essential reading for anyone thinking seriously about the proper relationship between democracy and rights.