A Response to Jeremy Waldron's Law and Disagreement

This article offers a critical response to arguments developed by Jeremy Waldron on the subject of democracy and constitutional rights. In particular it responds to three claims made by Waldron: first, he claims contemporary Western societies are characterised by deep and intractable disagreement; second, collectively binding decisions should be reached by democratic means alone; and third constitutional devices, such as bills of rights, should be rejected because they act as constraints on democracy. I argue that Waldron is unable to argue for the primacy of democracy from the baseline of intractable disagreement that he posit. He implicitly relies upon a position of moral consensus to confirm the priority of democracy over alternative decision‐making procedures. Further, the moral stance that Waldron takes towards democracy is based upon a Kantian theory of justice which is shared by liberal‐constitutional theorists, such as Rawls and Dworkin, who advocate bills of rights. Finally, Waldron does not provide the arguments necessary to justify the rejection of bills of rights. Good reasons exist for tempering democratic procedures with constitutional devices. However, this conclusion is qualified. It depends upon counterfactual claims that can be resolved only by taking into account the specific institutional and cultural practices of particular political systems.