Law and Disagreement

"Absolutely. Of the two contemporary political theorists I’m going to talk about, Jeremy Waldron and Philip Pettit, Waldron (who is also a legal theorist) comes from an explicitly liberal tradition and perspective. As you said, he places great emphasis on what he calls ‘the circumstances of politics’: that in politics, disagreement is not only pervasive, but also goes to the deepest issues (what is just, which ‘rights’ we should have). In this respect, he stands aside from the school of political thought that descends from John Rawls, the dominant political theorist of the past 50 years. Rawlsians suggest that, somehow, we can conduct a thought experiment about a preconstitutional moment when all the big things about justice and the pursuit of justice are agreed. Waldron wants to argue that, no, actually, we disagree even about basic rights. This leads him to be much more interested than most of today’s political theorists in parliaments and legislatures as lawmakers. Support Five Books Five Books interviews are expensive to produce. If you're enjoying this interview, please support us by donating a small amount . It also puts him outside a lot of legal scholarship, which barely looks at legislatures, compared with courts, on the grounds that since statutes are vague and indeterminate, it is the judges who later decide what the law is. Waldron says, no, that is a mistake, because the legislature is the public forum where our debates about public policy are and ought to be resolved (for the time being). This is what I really value in his work: it underlines that questions about the structure of the administrative state, and in particular about delegating to independent agencies, must be settled in the elected legislature. He gives us a principled case for this given some of our deep political values. Some of the essays in Law and Disagreement are really interesting on how to think carefully, within the liberal tradition, about the processes of legislating. Well, he doesn’t talk about them very much, but one of the chapters of Law and Disagreement does explore the central idea and value of credible commitment, which was at the heart of Majone’s (and my own) case for fiduciary delegations. Waldron discusses commitment in the context of constitutions and, in particular, constitutional courts. Should the Supreme Court have the right to strike out legislation passed by the Parliament/Congress? Amongst many other things, he is famous for really disliking judicial review of legislation which, of course, America has but we don’t have in Britain. He mounts a very eloquent argument. But when we come to apply this to the administrative state and, especially, independent agencies, Waldron’s discussion of pre-commitment is limited because it is binary. Either a commitment device is entrenched all the way down, or somehow it is not, and we (the people, or, more accurately, our representatives) can change our minds. Actually, it’s not like that. While I completely agree with Waldron about the deep importance of the legislature, his model of commitment is too thin. Making commitments credible is about raising the costs of reneging, and so comes in degrees. Even without full constitutional entrenchment for a particular law, we can put visible obstacles in the way of government changing course. In that sense, all law and especially legislated law is a commitment device: otherwise government officials could go into work each day and just decide whatever they want to do there and then. Legislation constrains them, as it takes a public effort and some costs to repeal or amend legislation. So primary legislation that delegates to an independent agency can both deliver the values associated with legislative debate and help to embed the mandated policy."