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« Choice of law, natural law, and interreligious love | Main | Did the Pope Answer the Questions He Was Asked? »

11/21/2010

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Patrick S. O'Donnell

Steve,

In a pluralistic, democratic society, and owing to what Waldron explains as the "circumstances of politics," people will invariably disagree about the nature of justice (and hence, injustice as well, indeed, the very existence of law is testament to the existence of moral disagreement, as Hobbes well understood), thus there will never be, in other words, absolute consensus as to the nature of justice. Therefore playing by the rules of the game that have been established by the constitution means that on occasion we will have to go along with that with which we disagree, for it's the price we pay for coordinated and collective action. To be sure, if the injustice is such that we find it egregious and thus utterly unconscionable to abide by its terms, a democratic society has formal and informal means for expressing such principled disagreement and dissent, the latter taking the form of civil disobedience (it is civil insofar as the person breaking the law accepts the legal consequences that follow, thereby communicating a commitment to the value of the rule of law or the principle of legality as such), while the former leaves open avenues for repeal, reversal, judicial review, elections, etc.

"The people" as such, does not govern nor can govern (that's a democratic fiction on par with Rousseau's 'general will') in modern nation-states, which is why we have representative bodies like legislatures and assemblies: they've been constitutionally empowered to represent our interests, to act in our best interests, etc. according to the basic constitutional structure that set the constraints upon the nature of coordinated and collective action. Should "the people" believe the institutions of government are irredeemably corrupt and subvert or are structurally incapable of meeting the very purposes for which they were instituted (or constituted) then they should amend the constitution by way of establishing alternative structures or throw out the constitution altogether and begin afresh, de novo as we say. Short of that, I think Waldon is absolutely right that we ought to respect the product of our actually existing and fundamental deliberative bodies. There is no absolute justice, nor is there completely equal participation, nor will there ever be, we therefore have to settle on the second best even as we strive for something better: it strikes me as utopianism in a pejorative sense to view anything short of that, anything short of the ideal, as not deserving of respect on its own terms, as something less than a considerable accomplishment in its own right, thus emblematic of real and remarkable historical progress. I think Waldron is right: there exists "a 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 [in a figurative not literal sense] 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.”

There are no suggestions or implications for the promotion of either political quiescence or the stifling or discouragement of dissent that necessarily follow from Waldron's conception of the "dignity" of legislation.

Best wishes,
Patrick

Jimbino

Regarding: "The legislature at its best may act for the people, but its actions are not by the people."

True enough, but:

One difference between a libertarian and a liberal is that libertarians don't want the federal gummint acting for the people in a whole boatload of areas (i.e., those for which they have no authority under the Constitution) that include:

Sex, breeding and family life
Education
Medical Care
Retirement
Radio and Television
Drinking, Texting & Driving
Health and Safety
Energy use
Smoking
Environment
Food

Another difference between libertarians and liberals is that liberals are always trying to force libertarians to participate in their liberal religion, while libertarians are happy to allow liberals to pursue their follies as long as they do not force them to participate (as in health insurance, public schools, contributions to NPR, farm subsidies).

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