¹ Waldron, Jeremy, Law and Disagreement (1999)CrossRefGoogle Scholar.

² Raz, Joseph, Disagreement in Politics, 43 Am. J. Juris. 25, 33 (1998)CrossRefGoogle Scholar. My conclusion—that disagreement, not reasonable disagreement, is what counts—is, as I say, Raz's. My way of supporting it (that follows in the text) does not appear in Raz's article.

³ I borrow this way of talking from Raz, Joseph, The Morality of Freedom 369 (1986)Google Scholar.

⁴ See also Christiano, Thomas, Waldron on Law and Disagreement, 19 L. & Phil. 513, 516 (2000)Google Scholar.

⁵ Waldron, supra note 1, at 268, 271 & 277.

⁶ Waldron, Jeremy, The Core of the Case Against Judicial Review, 115 Yale L. J. 1346 (2006)CrossRefGoogle Scholar.

⁷ Id.

⁸ “[T]here is no neutral way of stating what exactly it is that is supposed to be competing with participatory majoritarianism….” Waldron, supra note 1, at 249.

⁹ Christiano also criticizes Waldron for failing to satisfactorily support the strong claim that other reasons are excluded, but he doesn't consider in this context the argument I attribute to Waldron. See Christiano, supra note 4, at 524-25.

¹⁰ Of course, perhaps no reasonable person can think that. So if a restriction to the reasonable can be made respectable, the example in the text will not do. But similar—though less extravagant— examples can be constructed where this problem doesn't arise. And what Waldron has to say about slavery, supra note 1, at 188-208, gives rise to the suspicion that he is willing to bite the bullet and not even take the reasonableness-qualification way out.

¹¹ See also Christiano, supra note 4, at 530. And notice that the point in the text is more modest—and so more robust—than the point emphasized by Kavanagh: Kavanagh argues (quite convincingly, 1 think) that the normative weight of the right to participate does not always override other considerations. I claim merely that some other considerations are—even if overridden—not without normative weight altogether. The denial of this claim is what Waldron seems to be committed to. Kavanagh, Aileen, Participation and Judicial Review: A Reply to Jeremy Waldron, 22 L. & Phil. 451 (2003)Google Scholar.

At times, Waldron seems to imply that unless other reasons and values are excluded, there is no point to the majoritarian decision procedure. Supra note 1, at 232-254. But this is false. That the majoritarian procedure has yielded a given decision can give reason to implement it, and this reason may interact in other, non-exclusionary, ways with the other relevant reasons and values. It is possible, for instance, that this reason is to be balanced against others, but that it is so strong that only rarely do other considerations outweigh it.

¹² See, e.g., id. at 222.

¹³ Kant, Immanuel, Critique of Practical Reason 133 (Gregor, Mary trans. & ed., Cambridge University Press 1997)CrossRefGoogle Scholar [5:161 in the Akademie edition].

¹⁴ Kant's, Collected Writings, Akademie edition, 20: 44 Google Scholar.

¹³ I couldn't find the source, but this and similar sayings are commonly attributed to Albert Einstein. Among the variations of this quote that can be found on the web is the following: “There are only two things that are infinite: the universe and human stupidity, and I am not sure about the universe.” Available at http://rescomp.stanford.edu/~cheshire/EinsteinQuotes.html (last visited October 5, 2006).

¹⁶ See, e.g., Waldron, supra note 1, at 252.

¹⁷ “Respecting people as rational self-directing agents does not require desisting from following true beliefs which those people dispute. The suggestion that it does have this implication confuses respect for people, because they have rational powers, with respecting their currently held views.” Raz, supra note 2, at 43.

¹⁸ See also Kavanagh, supra note 11, at 476. So I agree with Waldron, supra note 1, at 223, that it's logically possible to suggest a defense of rights that depends on denying Einstein's observation. I just think no such defense is at all plausible, nor do I think that anything like such a defense is historically influential.

¹⁹ A parallel point is relevant to the discussion of state neutrality. If controversiality has a role to play in the justification of state neutrality, then the scope of the neutrality cannot be limited to just conceptions of the good, for some purely factual claims are just as controversial. Surprisingly, most discussions of neutrality—or at least most discussions of neutrality by those favorably disposed towards it—ignore this point. See, e.g., Larmore, Charles E., Patterns of Moral Complexity 40–68 (1987)CrossRefGoogle Scholar.

²⁰ In the background here there is the nagging suspicion that, his protests to the contrary notwithstanding, Waldron's case against judicial review does rely on some (controversial, of course) metaethical theses. For if one is a realist about such facts as the origin of the universe, and not a realist about morality, one may want to draw the distinction in the text in terms of this realism and its negation. And at times Waldron sounds like an antirealist (“As long as objective values fail to disclose themselves to us, in our consciences or from the skies, in ways that leave no room for further disagreement about their character, all we have on earth are opinions or beliefs about objective value.” Waldron, supra note 1, at 111 n.62) or at least like a sceptic, implying that in the absence of an epistemological story that can distinguish between our reliability and that of the other party to a moral disagreement, we can no longer justifiably hold to our (controversial) moral judgment (this is the only way I can make sense of Waldron's being obviously impressed with the symmetry problem that arises when both parties to a controversy rely on what they take to be the truth. See, e.g., Waldron, id. at 3). But so long as the official view claims independence of metaethics, the challenge in the text stands. I believe much more needs to be said on the relation between metaethics and political philosophy in general, and in Waldron's political philosophy in particular. I hope to address these issues on another occasion.

²¹ Raz, supra note 2, at 44-47; Christiano, supra note 4, at 520-543; Kavanagh, supra note 11, at 467-68 and the references there.

²² Waldron rightly notes that any non-majoritarian procedure will be folding substance into procedure. Waldron, supra note 1, at 116. I would just add that so does any majoritarian decision procedure.

²³ Raz, supra note 2 and Christiano, supra note 4, do not notice the availability of this retort.

²⁴ This is the way I understand Waldron'S discussion, supra note 1, at 282-312: Because the legitimacy of his conclusions does not stem from their truth but from their procedural credentials, he has to discuss the circular nature of relying on a decision procedure to decide issues pertaining to the justification of that very decision procedure, and to argue that it does not amount to vicious circularity. His reason is, I think, that there may be strong pragmatic considerations favoring using whatever decision procedure we find ourselves with in order to reform our decision procedure (rather than, say, bringing about a genuine constitutional revolution). This may very well be so, but it does not, I think, solve the problem, because now the justification of remaining loyal to a majoritarian decision procedure has undergone the deepest of changes: It is no longer grounded in participation, the right of rights. Rather, it is pragmatic in nature, and it applies only to those societies in which the procedure we find ourselves with is already a majoritarian one. If I am right, then, Waldron remains without a deeper philosophical rationale for the legitimacy (rather than truth) of his conclusions. See also Kavanagh, supra note 11, at 469.

²⁵ That this is not the role he wants for himself is evident also when Waldron says that claims about justice overriding fairness can only be made in the context of “purely personal politics, a tendentious belief that must be transcended when one takes up the perspective of society as a whole (the perspective we take as jurists or political philosophers).” Waldron, supra note 1, at 199-200 (my emphasis).

²⁶ And, of course, legislators who are often impressed by the rigor of expert advice in contradictory directions, id. at 21-48, are going to be just as impressed with the rigor of Waldron's own expert advice, and with the rigor of the expert advice contradicting Waldron's theses.

²⁷ I thus agree with Raz, supra note 2, at 47, that we should abandon “the attempt to occupy a noncontroversial high ground.”

²⁸ Christiano also notes that one way out of (what I call) the Overarching Dilemma is to unrealistically assume a consensus on a principle justifying a given decision procedure. See Christiano, supra note 4, at 523.

²⁹ Waldron, supra note 1, at 160. In The Core of the Case against Judicial Review it is again clear that Waldron believes in a deep consensus when he says things like “I assume that this commitment [a belief in rights] is a living consensus…” Waldron, supra note 6, at 1365: “[people on both sides of the issue] need to share a theory of legitimacy for the decision-procedure that is to settle their disagreements [about rights].” id., at 1371; “we should think about reasons that can be subscribed to by people on both sides of any one of these disagreements.” id.

³⁰ Waldron, supra note 1, at 249.

³¹ See also id. at 198. Note also the ambiguity of “to settle” when Waldron claims, as he often does, that the procedure must really settle the issue, and not be the starting point of yet another controversy (See, e.g., id. at 245, “ a substantive theory of rights is not itself the theory of authority that is needed in the face of disagreement about rights. An adequate answer to the question of authority must really settle the issue.”) By requiring that the procedure settle the issue, one may mean, first, that the procedure must conclude in a (legitimate) political decision or action. In this sense, it is certainly true that we want the decision-procedure to settle the issue. But at times it seems that what Waldron means is that the decision procedure should settle the issue to the satisfaction of all involved, so that everyone can agree at least on the legitimacy of the decision. This seems to me like an impossibly strong requirement. The move from the first to the second sense of “settling” may very well be the result of an implicit assumption of the kind mentioned in the text—namely, that consensus is necessary for legitimacy.

³² See Raz, supra note 2, at 33.