Disagreement in politics is ubiquitous. People disagree about what makes a life worthy or well-lived. They disagree about what they owe to each other in terms of justice. They also disagree about the proper manner of dealing with the consequences of disagreement. What is more, they disagree about the normative significance of moral and political disagreement. Disagreement has been, for at least three decades now, the focus of a series of major works in political philosophy. It has been called one (...) of the fundamental ‘circumstances of politics’ by Waldron. Rawls took disagreement to be at the heart of the problem of political legitimacy. Gerald Gaus takes it to be the most important task of liberal political theory to justify political institutions in the face of ‘evaluative diversity’. For Thomas Christiano, disagreement is part of the basis of the authority of democracy.Political institutions make decisions and rules that are binding f. (shrink)

Democracy can be a means to independently valuable ends and/or it can be intrinsically (or non-instrumentally) valuable. One powerful non-instrumental defence of democracy is based on the idea that only it can publicly justify political authority. I contend that this is an argument about the reasonable acceptability of political authority and about the requirements of publicity and that satisfying these requirements has nothing to do with whether a society is democratic or not. Democracy, then, plays no role in publicly justifying (...) political authority. I also show that any non-instrumental defence of democracy must make claims about what justice requires and make several further claims that require substantial justification. (shrink)

This article looks at Bernard Williams’s relevance to particular debates in constitutional theory about the legitimacy of two competing models of institutional design: political constitutionalism which endorses giving the final say on the meaning of constitutional rights to legislatures; and legal constitutionalism which endorses giving the final say on the meaning of rights to courts. Recent defences of political constitutionalism have made claims about the realism of their accounts when compared with legal constitutionalism and have co-opted Bernard Williams’s realism to (...) support their case. This article examines these claims, concluding that these accounts of political constitutionalism rely on a distinctly non-Williamsian form of political moralism in that they assume a legitimacy for political constitutionalism which is prior to politics and political disagreement. It offers an alternative defence of political constitutionalism, a partial defence, which, it argues, is closer to the realism of Bernard Williams than these accounts. (shrink)

This paper provides a defense of the following thesis: When there is reasonable disagreement over the design of morally necessary collective action schemes, it would not be reasonable to reject the authority of a democratic decision procedure to settle these disputes. My first argument is a straightforward application of contractualist reasoning, and mirrors T. M. Scanlon's defense of a principle of fairness for the distribution of benefits produced by a cooperative scheme. My second argument develops and defends the intuition that (...) treating others morally requires respecting their exercise of moral judgment, or a sense of justice. I conclude by addressing the problem of disagreement over the design of the democratic decision procedure itself, and rebutting Jeremy Waldron's claim that democratic authority is incompatible with judicial review. (shrink)

This article challenges Jeremy Waldron's arguments in favour of participatory majoritarianism, and against constitutional judicial review. First, I consider and critique Waldron's arguments against instrumentalist justifications of political authority. My central claim is that although the right to democratic participation is intrinsically valuable, it does not displace the central importance of the `instrumental condition of good government': political decision-making mechanisms should be chosen (primarily) on the basis of their conduciveness to good results. I then turn to an examination of Waldron's (...) claim that individuals are entitled to participate in decisions which affect their lives. Furthermore, I respond to his claim that justifications of constitutional judicial review rely on an objectionable distrust of democratic politics, and is inconsistent with a view of the person as a morally responsible, autonomous agent. Finally, I seek to show that judicial review can itself become a valuable channel of political participation, especially for those who are marginalized and disempowered in the normal political process. (shrink)

Los procesos democráticos de toma de decisiones pueden ser evaluados por sus resultados, por su valor intrínseco o por una combinación de ambas cosas. Mostraré que analizar a fondo estas alternativas permite sacar a la luz las debilidades más serias en los modos usuales de justificación del constitucionalismo. La fundamentación teórica de la articulación entre democracia y constitucionalismo ha permanecido atrapada en una trampa que busco romper. Concluiré mostrando la necesidad de rebasar los argumentos epistémicos y contra-epistémicos sugiriendo pautas que (...) hasta ahora creo han sido poco ponderadas en la literatura clásica sobre el tema. (shrink)

For many liberal democrats toleration has become a sort of pet-concept, to which appeal is made in the face of a myriad issues related to the treatment of minorities. Against the inflationary use of toleration, whether understood positively as recognition or negatively as forbearance, I argue that toleration may not provide the conceptual and normative tools to understand and address the claims for accommodation raised by at least one kind of significant minority: democratic dissenting minorities. These are individuals, or aggregates (...) of them, who oppose, on principled grounds, the outcomes of the majoritarian decision-making process. I argue that democratic dissenting minorities' claims are better understood as calls for respect for a person's capacity for self-legislation. I view respect as the cornerstone of justice in a liberal democracy: all norms resulting in a constraint on a person's conduct should be appropriately justified to her. I argue that the reconciliation of democratic dissenting minorities' claims requires an enhancement of the justificatory strategies of democratic decisions by enhancing in turn citizens' rights to political participation. This should be done both during decision making and after a provision is enacted by also securing space for contestation through such forms of illegal protest as civil disobedience and conscientious objection. (shrink)

The constitutionalist debate - over where decision-making power in society should lie, and how it should be exercised - is one which is of fundamental importance not only in academia and constitutional theory, but in society generally. The main aim of this thesis is to critically examine the current debate from a particular, sceptical philosophical perspective - one which questions the possibility of convincingly defending moral premises. This controversial perspective, which goes to the heart of debates over moral realism, objectivity, (...) and epistemology is set out and defended in detail, drawing on the work of the sceptical and strongly anti-foundationalist legal theorist, Arthur Leff, and the pragmatic philosophy of Richard Rorty. Some implications of this perspective for the constitutionalist debate and key approaches within it are then considered in the rest of the thesis . This examination includes instrumentalist arguments and "democratic" arguments often relied on by various sides in the debate. It is argued that, when taken to their underlying premises and assumptions, each approach is misguided from the perspective defended here and, therefore, that the current constitutionalist debate is unsatisfactory. Some suggestions of the way forward following this argument are then made. (shrink)