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Typically, Waldron and Dworkin are characterized as sustaining opposing opinions regarding the question whether strong judicial review of legislation is legitimate. While Waldron is known as an opponent of judicial review because he considers it to be undemocratic, Dworkin is associated with the view that judicial review makes democracy complete. In contrast to the view that they are best understood as opponents, I argue in this paper that when reconstructing Dworkin’s and Waldron’s positions in a way that takes into account their shared views on democracy and rights, the nature of rights reasoning, and the contingency of institutional performance, regarding them as adversaries is untenable. The aim, however, is not purely exegetical. Rather, I argue that the convergence of the two scholars reveals that effective rights protection depends crucially on a commitment to rights within the citizenry and that for this reason the two are better understood as allies than adversaries on the question of rights protection in democracy.
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For as long as legislation has been subjected to strong judicial review, the democratic legitimacy of the practice has been a point of fierce and intricate debate.I dearly wish to thank Hillary Nye and Richard Mailey for the opportunity to present an earlier version of this paper at the University of Alberta in 2022 and all the participants there for their encouraging and helpful comments. I am further grateful to my doctoral supervisor Matthias Klatt for the opportunity to discuss an earlier version of this paper with him and members of the Graz Jurisprudence team including then-visiting scholar Stéphane Beaulac in 2023. Much credit is also owed to two anonymous reviewers, whose comments have greatly helped me to rectify, clarify and sharpen my arguments. I am moreover indebted to Ross Mittiga for his extensive language and style review. For their invaluable support of various sorts, I warmly thank Héctor A. Morales Zúñiga, Zdeněk Červínek and Carolina Alves das Chagas.1) Should unelected judges have the power to invalidate what legislators, the elected representatives of the people, have decided, when they (the judges) think that those legislative decisions violate fundamental rights? Many arguments have been put forward defending as well as opposing the practice. The question of which of the two institutions – the judicial or the legislative – is to have the last word on questions of fundamental significance for a community,My focus in the following is on strong judicial review, which I understand to contrast to weak judicial review in that it is the judiciary who has the last word on the issue, as opposed to a situation in which, after the judiciary has expressed its concerns regarding the constitutionality of a legislative act, it is the legislature who retains the last word.2) has been one of the central battlegrounds on which crucial questions regarding the implementation of democracy and human rights have been fought out.Jeremy Waldron, ‘Judicial Review and the Conditions of Democracy’ (1998) 6(4) The Journal of Political Philosophy 335, 335; Dieter Grimm, ‘Constitutional Adjudication and Democracy’, Constitutionalism: Past, present, and future (Oxford University Press 2016).3)
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In this debate, two scholars have been especially prominent: Ronald Dworkin, and his one-time student, Jeremy Waldron.Jeremy Waldron, ‘Remembering Ronald Dworkin’ (2013) .4) Typically, these two thinkers are understood to occupy opposing positions regarding the legitimacy of judicial review.See, e.g., Scott M Noveck, ‘Is Judicial Review Compatible with Democracy?’ (2008) 6(2) Cardozo Public Law, Policy, and Ethics Journal 401; Cristina Lafont, ‘Philosophical Foundations of Judicial Review’ in David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford University Press 2016) 265; Richard A Posner, ‘Review of Jeremy Waldron, Law and Disagreement’ (2000) 100 Columbia Law Review 582, 582–583, 589; Alexander Kaufman and Michael B Runnels, ‘The Core of an Unqualified Case for Judicial Review: A Reply to Jeremy Waldron and Contemporary Critics’ (2016) 82(1) Brooklyn Law Revue 163, 168; Theunis Roux, ‘In Defence of Empirical Entanglement: The Methodological Flaw in Waldron’s Case against Judicial Review’ in Ron Levy and others (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press 2018) 205.5) While Waldron is regarded as an opponent of strong judicial review because he considers it to be undemocratic, Dworkin is associated with the view that judicial review makes democracy complete.Alejandro Sahuí Maldonado, ‘Desacuerdos Sobre Derechos: Waldron y Dworkin Sobre Parlamentos y Tribunales’ (2017) 14(35) Andamios 159. 6) In accordance with this characterization, Waldron has been depicted as the "anti-Dworkin"Javier Gallego Saade, ‘Jeremy Waldron’s “Dworkinian” Theory of Legal Reasoning: The Neglected Link’ (2019) SSRN Journal 2 [originally published as Javier Gallego Saade, ‘La teoría “dworkiniana” del razonamiento jurídico de Jeremy Waldron: el eslabón ignorado’ (2019) Isonomía 6].7) and the debate on judicial review itself has been framed as being "Waldron versus Dworkin”.Olivier Beaud, ‘Reframing a Debate Among Americans: Contextualizing a Moral Philosophy of Law’ (2009) 7(1) International Journal of Constitutional Law 53, 55.8) That their positions are best understood as situated on opposite ends of a spectrum seems to be confirmed by Waldron and Dworkin themselves, who, having engaged in face-to-face as well as written debate on the issue, used each other’s position to contrast it with their own.Waldron (n 4). Note that in written contributions it is predominantly Waldron who reacts to Dworkin’s views.9)
Notably, despite this apparent antagonism on the question of institutional design, I argue in this paper, the two share strikingly similar premises. The most obvious commonality consists in the fact that both base their position on democratic considerations.In itself, this, of course, does not prove much, since conceptions of democracy may differ starkly. However, as I will show in this paper, the two authors’ conceptions of democracy share some crucial similarities. But differently, see Noveck (n 5).10) Furthermore, their conceptions of rights interpretation, an issue which is often pivotal for positions on judicial review, are very much alike. Moreover, they both show awareness for the contingency that courts and legislatures perform well regarding the protection of rights.
This raises the question why and where, despite these shared starting points, Waldron and Dworkin part ways to arrive at what seem to be antipodes of the debate over institutional design. In this paper, I argue that when reconstructing Dworkin’s and Waldron’s positions in a way that takes into account their shared views on democracy and rights, the nature of rights reasoning, and the contingency of institutional performance, the substantive differences between them appear far more minor. This, in turn, makes regarding them as adversaries untenable.
The aim here, however, is not purely exegetical. Rather, I argue that the convergence of the two scholars reveals that the question about institutional design may not be as relevant to rights protection as the widespread controversies on the topic may lead one to assume. Instead, I argue that, within the work of both authors, we find important insights on what to focus on if rights protection is our concern, so that the two are better understood as allies than adversaries on the question of rights protection in democracy.
To make this argument, I first argue for the similarities of Waldron’s and Dworkin’s conceptions of rights reasoning (1.). Then, I explain how their views on the role that rights play in democracies converge, as well as what they respectively understand the role of courts and legislatures to be in protecting rights (2.). While the latter reveals some divergences between Waldron and Dworkin, I claim in (3.) that these melt away once we consider several crucial qualifications both made throughout their debates, the key upshot of which is that institutional rights protection is contingent and that effective rights protection depends crucially on a commitment to rights within the citizenry.
Before I start, a note on my choice of sources is in order. Both Waldron and Dworkin were (and the former still is) extremely prolific writers on the issue of judicial review. Moreover, both revised and enhanced their views over time not least of all through engaging with each other. In the following, I do not provide a historical recounting of how their respective views developed over time or how exactly the debate between them unfolded. Rather, I synthesize, reconstruct, and compare what I take to be their “final” arguments on the topic of judicial review.
A common strategy in approaching the question of judicial review is to argue that the institution that is most likely to make “correct” decisions about rights should be assigned the final word. It may seem, now, that with this line of reasoning we have already identified the fork in the road where Dworkin and Waldron part ways. Dworkin, insisting that there are right answers to questions of rights-interpretation and that courts, the “fora of principle”, are more likely to find those,See, e.g., Ronald Dworkin, A Matter of Principle (Harvard University Press 1985) 71, 119ff; Ronald Dworkin, Law's Empire (Bloomsbury 1986) viii–ix, 77ff. 11) seems to be a prototypical proponent of this strategy.Waldron seems to read Dworkin as suggesting this, see, e.g., Jeremy Waldron, Law and Disagreement (Oxford University Press 1999) 252 n52, 292. 12) Waldron, in turn, is known for his insistence on intractable disagreement about rights, which makes the strategy of assigning competence based on the criterion of correctness appear non-sensical.Ibid 12–15, 181–182, 213; Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115(6) The Yale Law Journal 1346, 1371.13)
In this section I argue, however, that Dworkin is not a proponent of the above strategy for the reason that he cannot be sensibly reconstructed as supporting all the meta-ethical commitments that are involved with that strategy, although I acknowledge that his language sometimes suggests otherwise (as when he insists on the existence of “objectively right” answers). Rather, I show that when reviewing the role that disagreement plays in Dworkin’s theory of legal reasoning, his views on meta-ethics are much closer to Waldron’s than to those of the strategy described above.
The type of disagreement I am concerned with in the context of this argument is the notion of “reasonable” disagreement,This is related to the notion of "reasonable pluralism” coined by John Rawls, Political Liberalism: Expanded Edition [1993] (Columbia University Press 2005) 36f, 48ff.14) which Besson describes as a type of disagreement that persists among disputants “[…] despite thinking and conversing in good faith and doing their best to apply the general capacities of reason pertaining to the domain inquiry […]”Samantha Besson, The Morality of Conflict: Reasonable Disagreement and the Law (Hart 2005) 1.15) and which is a pervasive and unavoidable feature of Western, pluralist, democratic societies.Ibid 2, 155, 160.16)
In the following, I outline how this type of disagreement, in the elaboration of which the two scholars in fact played a leading role,Ibid 1–2, 9–10, 22ff, 375ff.17) figures in Waldron’s (1.1) and Dworkin’s understandings of rights reasoning (1.2). I then show that they both share the view that we cannot allocate decision-making authority about rights on the basis of which institution is more likely to answer rights questions “correctly” (1.3).
One of Waldron’s central arguments against judicial review is that individuals disagree about justice in a way that resists resolution.Waldron (n 12).18) Regarding the existence and root source of such intractable disagreement as an unavoidable circumstance of modern political life, Waldron builds upon Rawls’ notion of reasonable disagreements concerning religious, philosophical and moral questions. Rawls explained the source of such disagreements by reference to the “burdens of judgement”, which are involved with perspective-formation in those spheres. Empirical and normative uncertainties, complexities as well as different life experiences, lead to divergences in individual political and ethical views. Reasonable disagreements do not, therefore, encompass disagreements that arise from pure misunderstanding or faulty reasoning.Rawls (n 14) 3–4, 54–58.19) Waldron argues that reasonable disagreement equally exists in the sphere of justice, law and rights, as they are afflicted by the same burdens of judgment.See Chapter 7 in Waldron (n 12); Waldron (n 13) 1368.20)
For Waldron, disagreements that arise concerning the concept, content, and scope of rights essentially amount to disagreements over justice or morality.Jeremy Waldron, ‘Do Judges Reason Morally?’ in Grant Huscroft (ed), Expounding the Constitution (Cambridge University Press 2009) 40.21) This is so because, even when rights are formalized in constitutions or human rights conventions, they are almost always vaguely formulated, leaving significant room for disagreement.Waldron (n 12) 11–12; Waldron (n 13) 1369, n60.22) Further, Waldron emphasizes that these types of disagreements run deep, as they arise not only regarding value judgements themselves but also regarding the question of how the correctness of value judgements can be assessed (– i.e., epistemological disagreement).Waldron (n 12) 177–180.23)
Thus, no one is in a privileged position to know what certain rights really entail, all one can do is state what one thinksthey do, which makes controversies about rights matters of competing beliefs. At the same time, Waldron emphasizes that the circumstance of intractable disagreement does not imply the moral relativist’s ontological claim that there is no such thing as a correct answer on matters of values or rights.Waldron (n 13) 1368; Waldron (n 12) 186–187.24) There might be right answers on such questions, yet, due to the epistemological disagreements involved with making such judgements it is impossible to “[…] validate any particular person’s or any particular judge’s moral beliefs”Waldron (n 12) 181.25). A correct answer, if it exists, simply does not “[…] disclose itself in ways that are beyond dispute”Waldron (n 21) 40.26).
The issue of disagreement is also a prominent theme throughout Dworkin’s moral, political and legal writings. Dworkin discusses the pervasiveness of a specific type of disagreement in law, which he calls “theoretical” disagreement. To characterize theoretical disagreement, Dworkin contrasts it with empirical and moral disagreement. An empirical disagreement about the law is disagreement about facts that are relevant in legal cases. Moral disagreement about the law is disagreement about how the law should be. In contrast, theoretical disagreement is disagreement about what constitutes “the grounds of law”, i.e., the general kinds of propositions, which make other, more concrete propositions of law true (or valid).Dworkin (n 11b) 3–5.27) The issue of identifying these grounds is consequently crucial for legal argumentation and especially for the interpretation of rights.
Contrary to conventional (“semantic”) legal theories, Dworkin does not believe that the grounds of law are shared and fixed, or, as he puts it, “criterial”. It is quite common, he argues, that it is controversial in abstract (– i.e., regarding the question of the nature of law) or in concrete (– i.e., regarding the application of a law to a specific case) what the law is. This could not be the case if the conditions of legal validity were shared and fixed, as otherwise disagreements about the law could be settled simply by applying those rules to the question at hand.Ibid 6–12, 31–36, 43–46, 80–91.28)
Rather, Dworkin famously argues, law, being a social practice, has an “interpretive” nature. In consequence, legal reasoning requires one to reconstruct legal practice “[…] in its best light – and then to restructure it in the light of that meaning”Ibid 47.29). Doing so requires the interpreter to provide a "justification” for the practice of law, which “fits” the paradigms of a concrete legal system, such as its institutions, statutes, or precedents. The mutually supportive rationales that emerge from this reconstruction, and that make up the legal system’s unique “story” (Dworkin uses the metaphor of legal reasoning being a chain novel) can then be brought to bear on any legal question, supplying an answer to every case, hence allowing no room for discretionary judgement.Ibid viii, 66–68, 72, 88–90, 121, 228ff; Dworkin, Taking Rights Seriously [1977] (Bloomsbury 2013) 51–54.30)
Legal argumentation understood in this way involves engaging the personal conviction of interpreters throughout the entire interpretive process, both for identifying the general justification of law and for expanding this justification to concrete cases.Dworkin (n 11b) 87–88, 235; Waldron (n 21) 52.31) Accordingly, in the case of the interpretation of constitutional rights Dworkin speaks of the “moral reading” of the constitution as the adequate methodology for giving concrete meaning to vague formulations.Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Oxford University Press 1996) 33.32)
Note, however, that while Dworkin is adamant that legal argumentation involves making moral judgements, he is keen to limit its extent, pointing to the constraints that follow from making a decision fit with the general legal practice’s story.Ibid 3, 5, 11–12, 36–37; Dworkin (n 11b) 87–92, 234–235, 257, 267, 270, 379–380, 398–399, 410–411.33) Moreover, although Dworkin often makes his arguments from a judge’s perspective, his interpretive theory is to be understood as applying to any other kind of legal participant, such as “[c]itizens and politicians and law teachers”Dworkin (n 11b) 14. See also at 190, 413.34).
Due to the moral dimension of legal argumentation, different interpreters will come to different answers to the same case:Ibid 250, 255, 411–412.35)
Each judge’s interpretive theories are grounded in his own convictions about the ‘point’ – the justifying purpose or goal or principle – of legal practice as a whole, and these convictions will inevitably be different, at least in detail, from those of other judges.Ibid 87–88.36)
It is consequently the moral dimension of legal argumentation that is the source of theoretical disagreement.
This raises the question of how the circumstance of different answers to one and the same case fits with Dworkin’s thesis of the one right answer. To answer this question one must look at Dworkin’s meta-ethical views. Until the end, Dworkin fervently emphasized that he is not a moral relativistIbid 78ff, 121; Ronald Dworkin, Justice for Hedgehogs (Belknap Press of Harvard University Press 2011) 30, 125.37) – to him, right answers on questions of value undoubtedly exist, their existence an “obvious, inescapable fact”Dworkin (n 37) 24.38).
Regarding the ensuing question of how to access this truth, Dworkin states that “[…] moral judgments are made true, when they are true, by an adequate moral argument for their truth”Ibid 37.39). In that, Dworkin rejects what he considers the conventional approach to meta-ethics, which separately looks at the substance of a moral judgement and the question about the truth of that judgement. Instead, Dworkin holds that a “substantive theory of value must include, not wait for, a theory of truth in value”Ibid 24.40). Meta-ethics, Dworkin concludes, “rests on a mistake”.Ibid 67.41)
On his view, truth, like law or moral and political concepts, is an interpretive concept.Ibid 6–7, 172–178.42) As such, its more concrete propositions are, again, dependent on the convictions of the interpreter, with the consequence that different interpreters disagree about which account of truth is the correct one.Ibid 130.43) Consequently, the truth of any interpretive proposition, such as what certain rights require, may therefore never be finally demonstrable to all others, since each person may hold different views on what constitutes a correct interpretive statement.Dworkin (n 30) 9, 105–106; Brian Bix, Law, Language, and Legal Determinacy (Oxford University Press 1995) 107–109; Dworkin (n 37) 100; Dworkin (n 11b) viii-ix.44) As Waldron notably explained,
[…] the right answer thesis is not associated with any method for determining conclusively who has the answer to the legal question right, it functions mainly as a regulative idea of objectivity, underwriting our insistence that there is still something to argue about even when some human authority claims to have had the last word.Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137, 156 n54. See similarly Héctor A Morales Zúñiga, ‘Is Legal Cognitivism a Case of Bullshit?’ in Gonzalo Villa-Rosas and Jorge Fabra-Zamora (eds), Objectivity in Jurisprudence, Legal Interpretation and Practical Reasoning (Edward Elgar 2022) 58, 67–69; Ulfrid Neumann, ‘Wahrheit im Recht: Zu Problematik und Legitimität einer fragwürdigen Denkform’ [2004] Würzburger Vorträge zur Rechtsphilosophie, Rechtstheorie und Rechtssoziologie, 37–41.45)
Thus, while right answers to interpretive questions exist, on Dworkin’s view, they cannot be unequivocally ascertained. In Dworkin’s language, there is no "Archimedean” point, that is, no point from outside our own convictions from which we can judge which of the many answers that are put forward by different interpreters is the correct one.Ronald Dworkin, ‘Objectivity and Truth: You'd Better Believe it’ (1996) 25 Philosophy and Public Affairs 87, 99, 127–128; Dworkin (n 37) 25, 39, 67, 82, 100.46) Even if everyone agrees on what the right answer is, we can never be sure we have truly found it.
The last two sections confirm that Waldron and Dworkin put disagreement at the center of their understanding of reasoning about rights.See also Sahuí Maldonado (n 6).47) The question to tackle now is how this relates to their respective views on judicial review. My argument is that the relevant overlap in their meta-ethical views shows that Dworkin, like Waldron, cannot be read as supporting the view that the last word on issues of rights should be assigned based on the criterion of which institution is likely to interpret them correctly.
Before this, though, I must address the potential objection concerning whether Waldron and Dworkin are, in fact, talking about the same kind of disagreement. Recall that, due to the mostly abstract wording of constitutional rights, Waldron considers disagreements about rights to amount to disagreements about justice or morality. In contrast, Dworkin’s theoretical disagreement, being about the grounds of law, appears to be specific to law.
There is, however, a link within Dworkin’s work between theoretical disagreements and disagreements about justice and morality. This link exists because of Dworkin’s adherence to the “one-system” picture of law. Contrary to what is generally assumed, Dworkin asserts that law and morality are not separate systems, but rather that law is a branch, or subdivision, of morality.Dworkin (n 37) 400–405.48) It can therefore be argued that theoretical disagreement of the Dworkinian kind is simply more general disagreement about morality that is relevant to the legal domain.
Coming from the other direction, Waldron, as Gallego Saade has argued, converges on a Dworkinian account of the nature of legal reasoning when he assumes that dignity, the basis of human rights, lies at the foundation of legal order and can hence be considered a legal principle.Jeremy Waldron, Dignity, Rank, and Rights: The Berkely Tanner Lectures (Wai Chee Dimock, Don Herzog, Michael Rosen, and Meir Dan-Cohen, Oxford University Press 2012) 13–15; Jeremy Waldron, 'How Law Protects Dignity’ (2012) 71(1) The Cambridge Law Journal 200, 215, 221–222; Jeremy Waldron, ‘Is Dignity the Foundation of Human Rights?’ in Rowan Cruft, Matthew Liao and Massimo Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) 137; Gallego Saade (n 7) 19; Dworkin (n 37) 384.49) Indeed, the type of moral reasoning that is involved when officials deal with rights questions, which Waldron terms “political” reasoning, is attuned to institutional context and sensitive to the fact that judgments are made in the name of society. And Waldron explicitly relates this to Dworkin’s account of the nature of institutional moral reasoning.Waldron (n 21) 44–48, 51–59. 50)
It is therefore defensible that for both scholars, fundamental rights questions lie at the intersection of the moral and legal domains and, consequently, the disagreements we have about them are of this moral-legal or political nature.Note that Waldron makes a distinction regarding the types of reasons that each institution typically refers to in their respective reasoning processes. This point will become relevant in Part 2. This distinction however does not affect the convergence of the two authors’ views on the nature of rights reasoning.51) Moreover, both Waldron and Dworkin view these disagreements as central to rights interpretation, affecting their “core” (or “essence”) and hence are not only relevant in occasional borderline cases.Jeremy Waldron, ‘Judicial Review of Legislation’ in Andrei Marmor (ed), The Routledge Companion to Philosophy of Law (Routledge 2012) 441.52)
We can now move to the question of how this is relevant to institutional design. For Waldron, it is precisely the indeterminacy of rights, together with the epistemic uncertainty involved with specifying their content, that renders the practice of judicial review problematic. With reference to Dworkin’s notion of rights as “trumps”, Waldron states the challenge as follows:
If we say that it is the function of rights to 'trump' majority decisions, it is surely incumbent on us to add some acknowledgment that people disagree about what rights we have and to offer some basis whereby that disagreement might be resolved, so that there is something determinate to do the trumping.Waldron (n 12) 12.53)
Waldron’s point is that, given the indeterminate nature of rights, when we say a right trumps a majority decision, it is in fact a judges’ opinion on what a right requires that is trumping the majority’s opinion on the same. Judicial review, consequently, is not a review in the strict sense – i.e., an assessment to what extent the legislative decision conforms to settled standards, but rather consists of a subjection of the legislative decision to the standard-setting of courts.Ibid 181–186, 262–263; Waldron (n 13) 1371.54)
We come precisely to the same point, I argue, when reviewing Dworkin’s views on rights reasoning. As we saw, he readily accepts, or, in fact, takes as a starting point the idea that individuals, be they judges, legislators or citizens, disagree on rights and that moreover, even if all of them believe they have the correct answer, there is ultimately no way to prove it in a way that does not allow for further challenge. Consequently, Dworkin cannot be considered to hold the view that judges should decide questions about rights because they have privileged access to what rights really require. This does not change in the face of Dworkin’s insistence on the existence of right answers, as he does not couple this with the claim that their existence can be definitively proven.This does not preclude Dworkin from making his case for judicial review “outcome-related” in a different sense, as I will discuss below.55)
In short, Waldron’s and Dworkin’sGiven that Dworkin has a lot to say on questions that are generally considered as meta-ethical, that is, on questions of the possibility and nature of objective answers as well as their epistemology, his statement of the “mistakenness” of meta-ethics cannot therefore be understood as a rejection of the issues that meta-ethics deal with. His claim is better read as rejecting the idea that they are “meta”-questions. As we saw, he criticizes the view that questions about truth or correctness are an independent domain, and instead defends that they are on the same level as the value judgements themselves.56) meta-ethical stance that there is ineliminable epistemic uncertainty regarding when a right was interpreted correctly, allows one to read both as rejecting the idea that institutional design should be premised on an answer to the question of which institution is more likely to reach right answers. Rather, as Waldron puts it, the question of moral objectivity is irrelevant to the issue of institutional design.Waldron (n 12) 164ff, 181–186, 306.57) That Dworkin effectively shares this view is indicated, as we saw, by the extent to which he builds epistemic uncertainty into the very fundaments of his theoretical framework.
If their disagreement does not revolve around the question of finding the institution that makes decisions about rights correctly, it may be that the dividing line between Waldron and Dworkin can be found in the relative importance they attribute to majoritarian decision-making via legislatures vis-a-vis the protection of fundamental rights. Indeed, the value of letting majorities decide versus protecting individuals from majoritarian pathologies has been at the center of the two scholars’ exchanges.See, e.g., Dworkin (n 37) 386–387; Waldron (n 3).58) Perhaps, then, the core issue is that Waldron values “democratic” (majoritarian) decision-making more than Dworkin, while Dworkin values rights more than Waldron.
In this section, I examine how majoritarian decision-making features first in Dworkin’s (2.1) and then Waldron’s (2.2) theory, as well as how each believes those rights are best protected institutionally. I then argue that both are equally committed to majoritarian decision-making and rights, even if some disagreement over institutional capacities exists between them (2.3).That these differences may not weigh too heavy in the overall argument will be argued in Part 3.59)
Dworkin’s conception of democracy is, from the very beginning, incontrovertibly rights-centered. His conception is based on the idea that democracy means self-government. He outlines two ways in which this ideal can be understood. The first possibility he calls the “majoritarian model”. On this model, self-government is realized when decisions are adopted that are voted for, in representation of the citizenry, by a majority of legislators.Dworkin (n 37) 382–383; Ronald Dworkin, ‘Equality, Democracy and Constitution: We the People in Court’ (1990) 18(2) Alberta Law Review 324.60)
The second model, the “partnership conception” of democracy, takes self-government to mean that members of a community must be treated with equal concern and respect,Dworkin (n 32) 15–20; Dworkin (n 37) 384; Dworkin (n 60).61) that is, that “[…] its policies treat their fates as equally important and respect their individual responsibilities for their own lives”Dworkin (n 37) 330.62). This means first and foremost that citizens, as on the majoritarian model, must be able to impact the decisions that structure their lives via decision-making procedures that can be tied back to them, which is the case when each of them is granted an equal vote.Ibid 390–391.63) Moreover, the principle of equal concern and respect requires that a state grants its citizens such “[…] liberties that they need to define a successful life for themselves”,Ibid 330.64) i.e., a set of certain fundamental civil and political rights that protect the dignity of individuals, such as freedom of speech and religion or due process.Ibid 368–378; Ronald Dworkin, A Bill of Rights for Britain: Why British Liberty Needs Protecting (Chatto & Windus 1990) 34–35.65) Having such rights means having a “trump” against policies that a community has chosen.Dworkin (n 37) 329.66) In a community of rights there is a culture of rights, which means that
[…] the public shares a sense, almost as a matter of secular religion, that certain freedoms are in principle exempt from this ordinary process of balancing and regulation. It insists that government may not dictate its citizens’ convictions or tastes, or decide what they say or hear or read or write, or deny them a fair trial […] even when it believes, with however good reason, that infringing these liberties would on balance protect security or promote economy or efficiency or convenience.Dworkin (n 65) 10.67)
In contrast to the majoritarian model, in the partnership model, differences in citizens’ impact on collective decisions, as is the case when judges invalidate legislation promulgated by the majority’s representatives, are not in all cases democratically problematic. Two conditions must be met, however. First, the difference in impact must not be based on unchosen factors such as race or native endowment and neither on wealth. Second, such differences must increase the overall legitimacy of the system, i.e., they must constitute an improvement in a communities’ respect of the dignity of all individuals by ensuring that all can define what a successful life means to them in an equal measure.
Based on these two requirements, Dworkin argues, rights in the form of disabling provisions in constitutions in combination with judicial review are not necessarily undemocratic. Although this arrangement reduces citizens’ impact on community decisions, this is acceptable if the principle of equal concern and respect is improved overall.Dworkin (n 37) 382–399.68)
The judicial arena, for Dworkin, is the place where failures of showing equal concern and respect (whether their source lies with the citizenry or their government officials), are more likely to be detected and redressed. The reason for this conviction lies in the fact that, on Dworkin’s view, judges are not subject to as many political pressures, as they do not constantly need to fight for re-election and can therefore more soberly, thoughtfully, and unbiasedly assess questions of rights.Ibid 348; Dworkin (n 11b) 375.69) As he puts it, “[j]udicial review insures that the most fundamental issue of political morality will finally be set out and debated as issues of principle and not political power alone, a transformation that cannot succeed, in any case not fully, within the legislature itself”Dworkin (n 11a) 70.70).
Also at the basis of Waldron’s conception of democracy lies the assumption of the importance of rights. He distinguishes between two types of rights: one that is constitutive of democracy and others that attribute legitimacy to it. The constitutive right of democracy is the right to participation. It gives expression to the idea that in the face of disagreement, decisions must be made by equally considering all citizens’ views.Waldron (n 12) 251–254, 282–283.71) To do so is to assert the “democratic competence”Ibid 282.72) of the people, as it expresses the conviction that citizens have the necessary capacities to "[…] participate reasonably in the government of their society”Ibid also at 250–251.73).
Participation, however, is not enough for Waldron:
No one thinks that any old bunch of people is entitled to impose a decision on others, simply on the ground that there are more individuals in favor of the decision than against it. Democracy and majority-decision make moral sense only under certain conditions.Ibid 283.74)
Waldron’s second set of rights therefore comprises rights such as freedom of speech and of association, without which, he says, democracy “[…] would be scarcely worthy of the name”Waldron (n 3) 343.75). Yet, Waldron goes beyond even these procedural-kind rights, explicitly endorsing the part of Dworkin’s conception of democracy, in which
[m]embership is not just a matter of formal participation: it is also a matter of a person's interests being treated with appropriate concern. Even if he has a vote, he can hardly be expected to accept majority decisions as legitimate if he knows that other members of the community do not take his interests seriously or if the established institutions of the community evince contempt or indifference towards him or his kind.Waldron (n 12) 283–284.76)
Some of such rights will be substantive, protecting personal freedom and likely even providing “[…] affirmative entitlements in the realm of social and economic well-being”Ibid 285.77). Moreover, he emphasizes, such rights are not simple corollaries to the right to participation but rather are “[…] other conclusions of the very premise that ground the rights-based case for democracy”Ibid.78). Rights of this kind, Waldron explains, are “[…] the conditions of the legitimate exercise of” the right to participation.Ibid 284.79)
Yet, Waldron argues, from this commitment to rights and democracy, a commitment to constitutional entrenchment and judicial review does not follow. On the contrary, “[t]he idea of rights-based limits is […], in the first instance, a matter of political self-understanding”Ibid 308.80). The viability of this idea in practice is plausible to Waldron, since the notion of self-government constitutively relies on the idea that rights-bearers are also rights-thinkers, that is, democracy itself is based on a conception of citizens who are competent to make decisions about rights. Since decisions taken by legislatures best approximate decisions taken by citizens themselves, it is legislatures that are the more appropriate institution for decision-making in the context of disagreements about rights.Ibid 250–254, 304.81)
The same, he argues, goes for decisions about democracy, i.e., when a case relates to the conditions of democracy. On his view, legislators and citizens are perfectly capable of debating and choosing institutional arrangements in a principled way, so that even structural review along the lines as, e.g., Ely has suggested, is not convincing.Ibid 292–296.82) Nonetheless, Waldron accords potential merit to weak forms of judicial review, in which courts give their opinions on rights issues but the final say remains with the legislature.Waldron (n 52) 435.83)
Clearly, there are some divergences between Waldron and Dworkin related to their differing views on the relative capacities of courts and legislatures. Before I discuss this point in more detail, however, I want to emphasize the convergences in their conceptions of democracy, which, are far more significant than the trace of disagreement that arises regarding institutional capacities in the end.Which, as I will argue in Part 3, is in fact more minute than it seems at this point.84)
The above reconstructions of the two authors’ conceptions of democracy show that for both Waldron and Dworkin majoritarian procedures and rights are important. Moreover, there is no indication that they assign different weights to either of the two elements. Waldron may come across as privileging majoritarian decision-procedures given that he has spent much time arguing about the intrinsic value of the former.Jeremy Waldron, ‘A Majority in the Lifeboat’ (2010) 90 Boston University Law Review 1043.85) As we saw, however, his conception of democracy is inextricably linked with the notion of citizens not only being rights-bearers but rights-thinkers, and that it is only when they (and their representatives) act in this spirit that we can speak of “legitimate” democracy.
What Waldron calls “legitimate” democracy thus corresponds to Dworkin’s already integrated concept of democracy, which includes respect for rights per definition but which also allows for distinctions regarding its degree of fulfillment – i.e., between more or less democratic, or, (what is the same), more or less legitimate, states of affairs. For both thinkers, therefore, the notion of democracy is one of degree – the more respect for rights (one of which is the right to participation) it exhibits in its day-to-day practices, the more legitimate it is.See similarly, Sahuí Maldonado (n 47).86)
The fact that Dworkin has produced a rich literature on rights should not give rise to the impression that rights play a bigger role in his conception of democracy than they do in Waldron’s. For both, respect for rights is central to (legitimate) democracy, Waldron, as we saw, even explicitly endorses the same types of rights that Dworkin advocates. To be sure, Dworkin has elaborated in great detail what these abstract rights amount to in concrete cases for specific jurisdictions (mostly the U.S.) but they are not therefore part of his abstract conception of democracy. Waldron is likely to hold various opinions on the same questions of rights, and if he does not yet, could always do so. In some instances of such rights concretization they are likely to overlap but, of course, on many others they will also have their differences. If we take both authors’ precept of reasonable disagreement seriously, however, we cannot infer from this that either has a stronger or weaker commitment to rights – we could merely conclude that they have reasonably different opinions about what various rights require.
This also does not change when we take into account Waldron’s insistences that legislatures, not courts, should have the final say on rights questions. In this, he is not arguing that majoritarian decision-making is more important than protecting rights.Waldron (n 3) 343.87) Rather, his claim is that legislatures are fully competent to protect rights and that there is simply no necessity to delegate this to the judiciary. In fact, Waldron explicitly acknowledges his concurrence with Dworkin’s view in this respect when he states that
[…] a theorist of democracy should not affect a pure proceduralist's nonchalance about the fate of individual rights under a system of majority-decision, for many of these rights are implicated in the democratic ideal. Dworkin is therefore quite correct when he insists that we are not entitled to appeal to any fundamental opposition between the idea of democracy and the idea of individual rights as a basis for criticizing judicial review.Ibid 341; Waldron (n 12) 282.88)
Undeniably, for both Waldron and Dworkin, the notion of (legitimate) democracy is inseparable from the protection of rights.
Nonetheless, there does remain some disagreement between them about who should have the final word. Waldron thinks legislatures are equally capable of principled decision-making and since their decisions approximates citizen-made decisions best, it is their call. Notably, (this point will be relevant in the next section) Waldron’s view requires that citizens and legislators be regarded as reasonable rights-respecters as a way of underwriting our faith in democracy, which, for him, is based on the assumption that individuals have what it takes to self-govern.Waldron (n 12) 304.89)
In contrast, Dworkin claims that judges are better suited for the task since they are in an institutional position that allows for more impartiality and thus have a higher propensity for principled reasoning. One may wonder, how this view fits with my arguments in Part 1 that Dworkin does not assume that judges have privileged access to what rights mean, and that the moral reading of the constitution also requires judges to engage their convictions (– i.e., that they cannot be fully impartial). May it not be, as some have claimed, that Dworkin simply considers judicial review valuable because it has yielded outcomes that correspond to his partisan liberal preferences?Dworkin (n 32) 36–38.90) Indeed, precisely this explanation suggests itself when Dworkin says that he sees “[…] no alternative but to use a result-driven rather than a procedure-driven standard for deciding” questions of constitutional design.Ibid 34.91)
As Kaufman and Runnels have argued, however, to read Dworkin in this consequentialist way is to fundamentally misinterpret him. They claim that when Dworkin refers to “outcomes” he does not mean the “[…] answers to the specific questions of law presented in the particular case”Kaufman and Runnels (n 5) 174.92) but the more abstract moral and political background questions that are involved in resolving concrete cases. That is, on Dworkin’s view, judges should not be politicians, foisting their political views on the community, but should be the reconstructors and guardians of the legal and political community’s foundational principles.Dworkin (n 11b) 255; Dworkin (n 32) 32.93) For example, in the case of the famous Brown decisionBrown v. Board of Education, 347 U.S. 483 (1954).94) that held school segregation unconstitutional, judges would not have been right to base their arguments on the fact that segregation is unjust on some (controversial) account of justice, but only that it violated the “more fundamental principles necessary to justify law as a whole”Dworkin (n 11b) 221.95).
Answering such background questions of course equally engages the interpreter’s convictions but they are heavily constrained by the interpretive methodology’s requirement of fit, which requires judges to reconcile their answers with (a reconstruction of) a scheme of justice common to the community.Ibid 176, 190, 211, 217, 221, 225.96) Further, applying the criterion of equal concern and respect does influence the outcome, but only indirectly, for example by requiring the state to “[…] limit the influence of certain types of preferences on the process of social choice”Kaufman and Runnels (n 5) 180.97). For Dworkin, legislatures are simply not always in the best position to filter preferences that are irreconcilable with equal concern and respect, a circumstance that he sees confirmed by history, e.g., by preferences motivated by racial prejudice or pro-slavery sentiments.Dworkin (n 11b) 375; Dworkin (n 37) 398; Kaufman and Runnels (n 5) 177.98) The better “result” of courts thus consists in their being more likely to filter out such anti-democratic (or, what is the same, anti-rights) preferences.Kaufman and Runnels (n 5) 174–180.99)
That Dworkin is not best understood as supporting judicial review only because it satisfied his personal, liberal preferences, is confirmed, as he himself pointed out, by the fact that even after the U.S. Supreme Court rulings clearly started to corresponded more to conservative positions, he did not step back from defending the practice itself.Dworkin (n 32) 36–38; Dworkin (n 37) 399.100) Further, he explained, what was valuable about certain liberal decisions of the court that did coincide with his own views was not their content per se, but rather the fact that the courts reasoned their way to these outcomes by reference to deeper principles of law.Ronald Dworkin, The Supreme Court Phalanx: The Court's New Right-Wing Bloc (New York Review of Books 2008) ix.101)
Waldron has responded to the claim about the superior reasoning capacity of judges by questioning the appropriateness of the methodology they use when they decide rights cases. As we saw in Part 1 Waldron agrees with Dworkin that when judges are deciding about rights they must reason morally, making these decisions in the name of society and that the judge’s decision must therefore take into account its own institutional context. Moreover, he agrees that moral reasoning of judges, if done correctly, does not amount to imposing their personal views on others but rather, analogous to Dworkin’s interpretive methodology, consists in mediating personal moral judgement by “public reason”Waldron (n 21) 55–59.102). But still, for Waldron, the idea that judges are better at this type of moral reasoning is not convincing. Rather, he argues, legislatures are institutionally better placed to reason in this way because, unlike courts, they are not under strict interpretive constraints that allow only for a narrow range of considerations (such as precedent, legal texts or constitutional doctrine) to figure in the reasoning process. For when deciding about what he calls “watershed” issues (such as abortion, affirmative action or assisted suicide), the legislative mode of reasoning, which is characterized by the inclusion of muchbroader ranges of reasons, permits discussing issues “afresh” and on their immediate moral merits without deliberations being legalistically “contaminated”.Jeremy Waldron, ‘Judges as Moral Reasoners’ (2008) 7(1) International Journal of Constitutional Law 2, 22–24, 60–61; Waldron, (n 21) 44, 51–54, 59–64; Waldron (n 12) 11–12; Waldron (n 13) 1367–1369, 1380–1381, 1383–1384.103)
This objection does not hold up, however, at least not regarding Dworkin’s account of judicial rights reasoning, since Dworkin does not sustain that judges are deciding cases on their merits, as noted above. Rather, legislatures remain the first instance decision-makers and in that indeed take into account more aspects than courts. But, as explained above, also legislatures are under a duty to choose only schemes that treat all members with equal concern and respect, and for doing so they must equally employ the interpretive methodology.Dworkin (n 11b) 401, 410.104) Judges come into the picture only regarding this latter issue and consequently the judicial methodologies that involve the employment of precedent or constitutional doctrine only serve to answer this latter question and not the question of the immediate merits of the legislative act.Note that this does not presuppose that it can be unanimously established when a violation of equal concern and respect is given. Rather, what is relevant is that the judges’ arguments are directed at establishing this rather than declaring the injustice of the measure they are invalidating.105) Although overall the structure of the interpretive reasoning of legislatures will be different to that of judges, as the interpretive methodology is always sensitive to the interpreters position within the legal system, regarding rights reasoning it is essentially the same, even if the language of the respective institutions may sometimes not make this apparent.Lack of space does not allow me to elaborate on this point, but see my forthcoming works.106) The crucial question at hand, therefore, is not which mode of reasoning is more appropriate but rather, which institution simply is better at reasoning about what equal concern and respect requires.
Noticing that Waldron’s objection misses its target if directed at Dworkin, dispels another instance of opposition between the two. It does not, however, dissolve all of their differences. Although Waldron’s claim that legislatures are better placed to reason morally because their arguments are not legalistically contaminated, fails, his argument that judicial review constitutes an encroachment on the right to participation remains intact. Despite the large areas of overlap between the two authors, this thin line of disagreement between them remains on the account that I have so far presented. In the next section, however, I argue we have reason to doubt whether even this minor point of difference holds up, which we can see by considering more fully the two authors’ views on institutional capacities.
Waldron and Dworkin have advanced their respective arguments for their positions on judicial review in a variety of contexts. In this section I argue that when looking more closely at these contexts as well as the purposes each had in developing their positions, we find, to put it provocatively, that they may often have been talking past each other rather than truly disagreeing.
In the following, I highlight some of Waldron’s (3.1) and Dworkin’s (3.2) statements on institutional capacity to then assess the amount of disagreement that remains as well as what to make from this conclusion (3.3).
Although Waldron is often considered as an unwavering opponent of judicial review, there is, arguably, considerable nuance to his position. For example, as mentioned above, weak judicial review is not his target of criticism; quite on the contrary, he has referred to it as an “admirable system”Waldron (n 52) 435.107).
Moreover, Waldron is most of the time concerned with making an abstract case against judicial review, that is, one that is “[…] independent of both its historical manifestations and questions about its particular effects – the decisions (good and bad) that it has yielded, the heartbreaks and affirmations it has handed down”Waldron (n 13) 1351.108). We need to understand Waldron’s argument against judicial review in this light of abstract principle. It is not motivated by concrete legislative pathologies but takes as its starting point the ideal of legislative functioning. That this is a realistic and not an utopian ideal is justified, according to Waldron, by the fact that the same ideal must be assumed for democratic self-government to work in the first place. To bolster his point, Waldron identifies a few concrete legislative debates that putatively demonstrate that deliberations in legislatures often live up to this ideal.Waldron (n 21) 60; Waldron (n 52) 437, 439, 444; Waldron (n 13) 1349; Waldron (n 12) 304–305, 309.109)
Nonetheless, Waldron concedes that legislatures do not always live up to this ideal, which reveals that his argument is dependent on this condition. In The Core of the Case Against Judicial Review, Waldron elaborates the conditions that must be met for his argument against judicial review to hold. These are, first, the existence of a reasonably well-functioning democratic political order, including legislatures; second, adjudicative institutions; third, “a commitment on the part of most members of the society and most of its officials to the idea of individual and minority rights”; and, fourth, disagreement about what such a commitment amounts to in concrete cases.Waldron (n 13) 1360.110) If these conditions are not fulfilled, Waldron argues, judicial review might be defensible. Particularly, failures of conditions one and three, that is, pathologies in the legislative and the general democratic process, give legitimate room to judicial review:Ibid 1401.111)
Maybe there are circumstances – peculiar pathologies, dysfunctional legislative institutions, corrupt political cultures, legacies of racism and other forms of endemic prejudice – in which these costs of obfuscation and disenfranchisement ["that are entailed by judicial review"] are worth bearing for the time being.Ibid 1406.112)
Waldron, however, is adamant that we should view such shortcomings as pathologies, and not assume this to be the normal, inevitable state of (legislative) politics.Ibid 1386. See also, Jeremy Waldron, ‘Legislation and the Rule of Law’ (2007) 1(1) Legisprudence 91, 108.113)
Moreover, Waldron warns that judicial review may not lead to
[…] ameliorating a particular situation. It may not be appropriate to set up judicial review of legislation if judicial decisionmaking in a society is no less corrupt or no less prejudiced than its legislative decisionmaking.Waldron (n 13) 1402.114)
In fact, Waldron argues, when judged by today’s human rights consensus, history is replete with examples in which judicial review has made things worse or has obstructed legislative attempts for improvement.Waldron (n 52) 435–437.115)
Waldron does not go into much detail regarding the question of how to assess whether his conditions are fulfilled.Roux (n 5) 207–208.116) Concerning the first condition (of having reasonably well working democratic institutions such as legislatures), he emphasizes that the bar should not be set too high and that evaluations should be made by reference to process rather than outcomes.Waldron (n 13) 1361–1362.117) What is relevant, is that officials foster a “[…] culture of democracy, valuing responsible deliberation and political equality”Ibid 1361.118) and remain committed to addressing departures from those ideals when and where they arise.Ibid 1362.119) The third condition (of citizens exhibiting an adequate level of rights-commitment), is met when citizens have adopted a written declaration of rights (although this does not presuppose agreement on their concrete meaning). Moreover, rights must not be merely empty talk, rather citizens must “[…] care about them”, “keep their own and others' views on rights under constant consideration and lively debate”, and remain “alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst”Ibid 1365.120). Although Waldron deems these conditions demanding, he does not consider them unrealistic.Ibid 1401–1402.121)
Similar moderating tendencies are visible in Dworkin’s position on judicial review. For starters, his enthusiasm for judicial review is strongest when discussed in application to the U.S. and occasionally the U.K. Focusing on these contexts, he gives concrete examples of prevalent pathologies and indeed uses strong language that suggests that democracy cannot do without judicial review.Dworkin (n 32) 33–35, 71; Dworkin (n 65) 1–9.122)
Yet, when talking about legislatures in more abstract terms, Dworkin does not depict them as inevitably unprincipled and self-interested. For example, his aspirational theory of law as integrity assigns equal responsibility to legislatures to implement a morally coherent account of equal concern and respect. In other words, from an ideal-theoretical vantage point, legislatures are also guardians of principle for Dworkin, not merely bias-ridden, aggregative policy-making machines. Dworkin explicitly claims that legislatures do not simply respond to numbers. Rather, in his positive case for representation, he argues that the mediation of the majority of citizens’ will through legislatures already provides some protection from populist passions (as may the subsequent mediation of the legislative majorities’ will by courts), and thus induces some measure of principledness to public will-formation. In other words, also on Dworkin’s normative account, legislatures reason with attention to rights. Notably, this has repercussions for his views on the necessity of judicial review:
Judicial review may well be less necessary in nations where stable majorities have a strong record of protecting the legitimacy of their government by correctly identifying and respecting the rights of individuals and minorities. Unfortunately, history discloses few such nations, even among mature democracies.Dworkin (n 37) 398.123)
Although the quote shows that Dworkin considers legislative pathologies to be commonplace, he is nevertheless aware that they are pathologies, and that legislatures can, if functioning properly, protect rights.Dworkin (n 11b) 355; Dworkin (n 32) 33–34; Dworkin (n 37) 385.124)
Moreover, Dworkin is equally wary of judicial failures regarding rights protection. For example, in Law’s Empire he concedes that judges “can be tyrants too”.Dworkin (n 11b) 375.125) Further, in The Supreme Court Phalanx Dworkin heavily criticizes U.S. Supreme Court decisions that occurred in the wake of Bush’s nominations of Justices from 2005 on. His objection is not to do with the conservative content of the decisions made, but with the unprincipled modes of reasoning that underwrote them:
It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious alliance.Dworkin (n 101) 47–48.126)
His criticism, then, is that the judges were opportunistic when deciding cases, which manifested, for example, in their inconsistent exercise of judicial restraint and activism. They seemed whimsically to favor whichever interpretational methods pointed to their desired substantive outcome.Ibid ix–xiii, 1–15, 48.127) In this vein, Dworkin argues that “[n]othing guarantees in advance that judicial review either will or will not make a majoritarian community more legitimate and democratic”Dworkin (n 37) 398.128). Rather, this depends on the attitude of the appointed individuals. It does not follow from the mere fact of being a judge, that one reasons in a principled way.
In view of these complexities, Dworkin concludes that whether judicial review will benefit a legal community “[…] obviously depends on a host of factors that vary from place to place”Ibid.129). In the case of the U.S., despite its judicial failures, Dworkin nevertheless believed “[…] that the overall balance of its historical impact remains positive. Everything now turns on the character of future Supreme Court nominations. We must keep our fingers crossed”Ibid 399.130). Thus on Dworkin’s account, too, judicial review is not a safe bet. The recent developments in constitutional adjudication around the world, and particularly in the U.S., likely would have weakened Dworkin’s confidence in judicial capacities even more.
Having examined how Waldron and Dworkin stand on the value (or necessity) of judicial review in different contexts, we can now determine the extent to which the conventional view – which regards them as intellectual opponents – holds up. Notably, neither is categorical regarding the question of judicial review; rather, both maintain simply that it is a vital corrective to legislative pathologies. In this sense, for both, whether judicial review is desirable in concrete cases will turn on the contingent, empirical circumstances of the legislature and judiciary, particularly regarding their ability to reason in principled ways.For this point regarding Waldron’s argument, see Roux (n 5) 204, 207–211. See differently Sahuí Maldonado (n 47).131)
Some differences between Dworkin and Waldron appear to remain, however, concerning each one’s estimations of the prevalence of legislative pathologies. Put simply, Waldron seems to believe that such pathologies are exceptions, while Dworkin seems to assume they are the rule. This divergence, however, may well be explained by the fact that the two approach the question of institutional capacities from different viewpoints: Dworkin mainly focuses on concrete pathologies that occur in specific jurisdictions and builds his argument from there, whereas Waldron takes as a starting point ideal-type models of legislatures and societies. In this sense, the two develop their positions with different purposes in mind. While Dworkin may have been more concerned with fixing concrete problems that particular Western democracies faced at the time he made his argument, Waldron’s case may be more general, abstract and aspirational.
Accepting this, there is a real possibility that, at least in some concrete cases, the two thinkers may have coincided on the question of the desirability of judicial review. Indeed, as Roux has argued, the empirical element that Waldron introduces via his four conditions may drastically restrict the scope of his “core” argument against judicial review, excluding from it most liberal Western democracies,Roux (n 5) 209–210.132) which is precisely the context in which Dworkin makes his argument for judicial review most of the time. In fact, apparently agreeing with Dworkin, Waldron himself states: “There may be some countries – perhaps the United States – in which peculiar legislative pathologies have developed. If that is so, then Americans should confine their non-core argument for judicial review to their own exceptional circumstances.”Waldron (n 13) 1386. See also his critical comments on the bad state of legislation in New Zealand that possibly justify introducing judicial review, Waldron (n 113) 108.133)
One might object, that Waldron and Dworkin have explicitly aired their disagreement on the British case.Dworkin (n 65).134) But to my knowledge, Waldron rather uses it as an occasion to make his abstract argument, making only sparse reference to the concrete circumstances.Waldron (n 12) 211–212, 285–287, 290.135)
Of course, even granting that Waldron and Dworkin converge on the desirability of judicial review in some contexts, like that of the U.S., it does not follow that they would substantively agree in other contexts or cases. Yet, crucially, disagreement between them would not follow from differences in principle but only from diverging views on what adequate levels of commitment to democratic values and rights entails. As Roux has argued with respect to Waldron, by premising his argument on the said conditions, “[…] Waldron simply relocates the debate over the moral justifiability of judicial review, in so far as it concerns any particular society, to a debate about whether his four assumptions hold in that society”Roux (n 5) 209.136). Moreover, as such judgements involve a host of complex normative-empirical evaluations, disagreement about concrete cases is, in fact, to be expected.Ibid 204.137) Any difference between the two authors’ positions on judicial review, therefore, does not consist of theoretically significant disagreements, as their convergence at the level of abstract principle is substantial.
Notably, the idea that the desirability of judicial review will depend largely on contingent, empirical circumstances, suggests where future work must focus for those principally concerned with rights protection. In my view, given that we have no reason to regard legislators or judges as necessarily more principled or capable encourages us to inquire more deeply into the factors that conduce to principled reasoning in each institution. That is, instead of taking the performance of these institutions as given and merely focusing on damage containment, we must develop normative accounts of what optimal institutional performances amount to.
Undeniably, there is a vast literature on the judicial role and its desired operating principles, a prominent contributor to which is none other than Dworkin himself. As Waldron and others have noted, however, comparable accounts of the same for legislatures are largely lacking.Waldron (n 12) 32; Jeremy Waldron, The Dignity of Legislation (Cambridge University Press 1999) 1–3.138) To remedy this neglect of legislative theory Waldron considers what “legislating with integrity” would look like, providing yet another indicator of his intellectual kinship to Dworkin.Jeremy Waldron, ‘Legislating with Integrity’ (2003) 72(2) Fordham Law Review 373.139) In this context, Waldron argues that legislatures are restricted in their legislative activity not only by the explicit rules that govern the law-making process, but also by principles, in the explicitly Dworkinian sense, that underlie those rules.Ibid 385.140) This intriguing proposition, appears to be a promising starting point for developing a full-fledged normative theory of legislation.See my forthcoming works.141)
It is not enough, however, that we possess such ideals; we must also hold the respective institutions accountable to them. Precisely the point that a sincere society-wide concern and a subsequent formal (by citizens’ participation in elections as well as deliberations) as well as informal enforcement (by citizens criticizing their institutions) of this rights commitment is the only reliable way to reach high levels of rights protection (and consequently democratic legitimacy), is, to me, another crucial upshot of the analyzed debate. Both the positions of Waldron and Dworkin are premised on a society-wide commitment to rights (or culture of rights) as crucial pre-condition for institutional rights protection. The point about their convergence here could not be made more forcefully than when Waldron draws on the Dworkinian-type notion of integrity:
Legislative integrity is not just a principle for legislators, nor is it just a principle for those who set the legislatures up or make decisions about their structures. Legislating with integrity is also a duty incumbent upon society as a whole: it is an aspect of the morality with which citizens deal with one another, under the auspices of their most serious society-wide relations, namely, law and law-making.Waldron (n 139) 385.142)
The convergent reading of Waldron and Dworkin thus makes it clear that, in the long run, no particular institutional design can substitute a community’s commitment to rights, but rather the former must finds its source in the latter. In turn, when a culture of rights prevails in the citizenry at large, the decision whether or not to institutionalize judicial review may become far less momentous. Overall, in view of the insignificant differences the two exhibit in their theoretical arguments about judicial review, as well as the productive synthesis of their thought regarding the question of where to look to in order to improve levels of rights protection, I believe we have strong reasons to view Waldron and Dworkin as allies in the quest for protecting rights in democracies.
In this article I have shown that Waldron and Dworkin, despite often being perceived as opponents on the question of judicial review, in fact share substantial ground. The two authors agree on the fact that rights reasoning includes moral elements, which, moreover, are so deeply fraught with disagreement that their correctness will never be safe from contestation, although we must nevertheless always do our best to get it right.
. Further, their concepts of (legitimate) democracy are largely congruent, both relying on participatory decision-making procedures as well as on rights-commitment. Finally, the two even converge on the contingent nature of institutional capacities. Based on these similarities, not much difference in their positions on judicial review remains, apart from potential, theoretically insignificant, disagreements about contingencies relating to the institutional capacities in concrete jurisdictions. Consequently, the upshot of what we might call the Dworkin-Waldron debate is that whether judicial review improves the legitimacy of a democratic community can only be made on a jurisdiction-specific basis.
Moreover, I argued, this debate points us to crucial questions that must be addressed if we want to ensure high levels of rights protection. While good institutional design is surely an important factor, it is not itself sufficient. Rather, and this is precisely the point in which Dworkin and Waldron become allies, the structures of their congruent arguments show that rights protection inside institutions depends in large measure on the commitment to rights that prevails outside of those institutions.
Admittedly, the fact that effective rights protection requires large-scale commitment to rights sounds trivial, however, the obsession with the question of institutional design indicates that it is not insignificant. That is, we can make sense of the intensity with which the issue has been discussed, if we read it as a warning signal, indicating that many do not consider society-wide rights culture pervasive in many jurisdictions, which triggers attempts to redress deficiencies via particular institutional design arrangements. However, we must look beyond the issue of institutional design to effectively redress these pathogologies. Tis is, I believe, we must attend to the question of what currently stands in the way of stable and strong society-wide commitments to rights. That is, we may assume with Waldron, that human beings are indeed capable of such a commitment, while at the same time concurring with Dworkin that in most Western liberal democracies such a commitment is not prevalent. The question, then, becomes one about which circumstances are fueling the gap between the unattained but attainable ideal and the worrisome status quo.
This is, in effect, a question about which conditions individuals need in order to sincerely regard each other with equal concern and respect. At this point, I can only provide some negative answers to this question, but this should suffice to understand in which direction inquiries of this kind could go. For example, in circumstances in which all are concerned with meeting their own needs and safeguarding what they have, the likelihood that individuals will positively care about what is important to others is not very high. Arguably, economic inequalities, pressures to perform, as well as individualistic ethics may well all be factors that fuel a climate that prevents individuals to act from a place of concern for their fellow community members. Moreover, to seriously consider others in our own deliberations we need a minimum understanding of what is important to others. Yet, owing to ethnic and economic segregation as well as algorithmically induced media bubbles, individuals in one and the same communities are often so severely estranged from each other’s lifeworld’s that they even often lack recourse to a shared language (sometimes even literally) for communicating their values and concerns to each other. Being aware of these challenges and the significance they have for rights protection hopefully provides some further impetus for addressing them.
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