Rock Bottom

Thomas Nagel

  • The Dignity of Legislation by Jeremy Waldron
    Cambridge, 210 pp, £35.00, July 1999, ISBN 0 521 65092 5

This short, assertive and engaging book has a chip on its shoulder, hence the title. In the academic culture of legal theory that Waldron partly inhabits, legislatures come in for a lot of distrust or even contempt, by comparison with courts. Courts are widely thought to arrive at their results by reasoning, whereas legislatures are thought to operate by the crude clash of partisan interests. In the United States there is substantial support for the role of courts in guarding individual rights from the depredations of legislative majorities that would otherwise trample them underfoot: this is the famous institution of judicial review, whereby laws passed by Congress or the state legislatures can be struck down as unconstitutional if they violate certain individual rights – to personal freedom as in the case of abortion, or to equal treatment in the case of racial segregation. Britain, too, may soon acquire some version of this system, in the form of a Bill of Rights.

No one who followed the recent impeachment proceedings can find it easy to associate the US Congress with the concept of dignity. But Waldron has an important argument to make, which applies even more sharply to the ideological pandemonium of the United States than to the relatively civilised conflicts of British politics. He believes that the defining ‘circumstances of politics’ are such as to make the legislature, and not the courts, the appropriate arena for deciding the most fundamental questions that face a society. The reason is that there is no consensus about basic principles of justice in modern societies, and it is better that these conflicts be argued out in a larger, representative body than in a smaller, highly selective one like the Supreme Court. Since that court also operates by voting and often decides cases by a 5 to 4 majority, the issue is not whether majorities should be permitted to decide fundamental disputes of justice and rights, but who it should be a majority of, how the members of the group should be selected, and what kind of debate should lead to the vote. Courts and legislatures are very different in these respects, and many liberty-loving Americans would be profoundly uneasy if the protection of freedom of speech, for example, were entrusted entirely to elected representatives of the popular will like Henry Hyde and Trent Lott. But that doesn’t prove they’re right.

The question concerns the relation between theories of justice and conceptions of institutional design. Waldron faults John Rawls for treating the institutional question only for the case of a ‘well-ordered society’, one whose members are agreed on the fundamental principles of justice and committed to supporting institutions that conform to them. He argues that since there are no well-ordered societies the real problem is how to design institutions that will command the allegiance of people who disagree over fundamental questions of justice – not just over means or interests or purely personal values – but who nevertheless have to live together and arrive at collective decisions that will be ‘resilient to disagreement’, decisions that even the losers can accept with good grace.

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