TAKING DISAGREEMENT SERIOUSLY: ON JEREMY WALDRONS LAW AND DISAGREEMENT

David Enoch*
I. Taking Disagreement Seriously

Jeremy Waldrons Law and Disagreement1 is an extremely important and inuential book. Not only is it probably the best known recent text presenting the case against judicial review, but it is also rich in details and arguments regarding related but distinct issues such as the history of political philosophy, the relevance of metaethics to political philosophy, the desirable structure of legislative bodies, the justication of democracy and majoritarianism, Rawls political philosophy, and much more. In commenting on such rich work, then, the difculty is not to nd things to disagree (or indeed agree) with, but rather to pick and choose among the many topics one can discuss. Below I focus on what seem to me like central difculties in the more general political philosophy Waldron seems to endorse, and in its application to the topic of judicial review. Let me start, though, by emphasizing two major points of agreement. First, I share Waldrons suspicions regarding some of the instrumental benets commonly thought to be secured by judicial review. Of course, these suspicions are in fact empirical speculations (as are their negations). And this means that the philosophical stakes in them need not be very highso I am somewhat nonchalant here, relaxing in my armchair, while I await the verdict of those supposedly doing the empirical comparative work. The empirical nature of these suspicions means also that whether they are grounded may very well differ from one jurisdiction to another. My own empirical speculation is that in Israel today judicial review of legislationmuch

Associate Professor in Law and Philosophy, The Hebrew University of Jerusalem. For helpful comments and conversations, I thank Alon Harel, David Heyd, Barak Medina, Naomi Sussmann, and Jeremy Waldron. JEREMY WALDRON, LAW AND DISAGREEMENT (1999).

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like judicial review of the administrationhas all in all good effects, sufciently good to outweigh its costs. So I do not join the ranks of those objecting to judicial review here and now. But, to repeat, this is just a hunch. The second major point on which I am in agreement with Professor Waldron is the observationcentral to his work, here and elsewherethat disagreement is ubiquitous, and that it is here to stay. I have very little respect for views that, in their attempts to present solutions to central problems in political philosophy, heroically ignore the scope of disagreement, creatively invoke non-existent consensusesoverlapping or otherwiseand in other ways attempt to solve problems by pretending that they do not really exist. I agree, then, that disagreement should be taken seriously, and that political philosophers ought to have something interesting to say about how we should take into accountin our collective, political actionsthe fact that people disagree about, well, everything. Indeed, I will conclude by voicing a doubt about Waldrons own views here: For I am not sure he takes disagreement seriously enough. In Section II of this Article, I argue that the relevant problem is that of disagreement, reasonable or otherwise, and suggest thatsome of his remarks notwithstandingnothing in Waldrons argument depends on the reasonableness of the relevant disagreements. In Section III I criticize the claim that a majoritarian decision procedure yields reasons that exclude the rst-order, substantive reasons (relevant to the controversial issues), rather than reasons that are to be balanced against them. In the following Section (IV) I argue against Waldrons claim that there is a tension in rights-based justications of judicial review, because, roughly, they have to trust peoples ability to reason practically (in order to treat them as rights-bearers in the rst place) and to mistrust these abilities (in order to overrule a majoritarian decision procedure). I argue that no such tension exists. In Section V I then discuss a family of issues arising from the worry that Waldrons theory on the implications of disagreementitself controversial, of courseis self-defeating. I conclude with a remark on how political philosophy should proceed in order to really take disagreement seriously.

II. What Should Be Taken SeriouslyDisagreement, or Reasonable Disagreement? It is not completely clear to me whether Waldron wants to take disagreement seriously, or just to take reasonable disagreement seriously, and because this seems to me like an

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especially important difference, one that is highly relevant to much that is going on in contemporary political philosophy, I want to give Professor Waldron the opportunity to make things clearer here. Suppose you nd the relevant society in a state of disagreement, and later you nd out that the disagreement is not reasonable, that there are reasonable people only on one side, or that all but one of the disputed opinions are unreasonable. Are you relieved? Should you be? Has the challenge to political philosophy just become easier to handle, because though disagreement is present, reasonable disagreement is not? I side with Raz2 in answering in the negative here. The reason disagreement is a problem is, somewhat roughly, that we are morally required to treat people with respect even when they are wrong, that their opinion counts even when wrong, that we are morally required to allow people to be the authors of their own lives3 even when they arent very good as authors. This respect for peoples autonomy is the morally appropriate response, it seems to me, to their humanity, personhood, (Kantian) rationality, perhaps their sentience, or something of this sort. It certainly isnt the morally appropriate response to their reasonableness (whatever exactly this may mean). So it is a kind of respect we oweprima facie, at leastto the unreasonable as well. And this means that the reasons for taking disagreement seriously cannot distinguish between reasonable and unreasonable disagreement. Restricting the discussion to just the reasonable seems to me like cheatingperhaps despairing on the prospects of nding a solution to the full scope of the problem (the need to take any disagreement seriously), the tired political philosopher redescribes the problem in a way thatso he may thinkis more amenable to solution4. Thus the problem, I think, is disagreement, reasonable or otherwise, and for most of the book it seemed to me this was also Waldrons opinion. It seemed to me, in other words, that what Waldron cared about were disagreements, period, or perhaps disagreements so long as they are in good faith, regardless of whether they are within whatever bounds reasonableness is supposed to demarcate. But then there were hints

3 4

Joseph Raz, Disagreement in Politics, 43 AM. J. JURIS. 25, 33 (1998). My conclusionthat disagreement, not reasonable disagreement, is what countsis, as I say, Razs. My way of supporting it (that follows in the text) does not appear in Razs article. I borrow this way of talking from JOSEPH RAZ, THE MORALITY OF FREEDOM 369 (1986). See also Thomas Christiano, Waldron on Law and Disagreement, 19 L. & PHIL. 513, 516 (2000).

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towards the end of the book,5 as well as in a more recent treatment of these issues6, that it was after all reasonable disagreement that poses the challenge. If this is indeed so, what philosophically respectable rationale can be offered for this restriction of the problem?

III. Are Other Values and Reasons Excluded?

Suppose the empirical comparative political scientists came back from their eld research with rather clear evidence that judicial review has on the whole very good consequences, that other things being equal, a political system (or a specic kind of a political system) with judicial review will do much better than a more purely majoritarian one in terms of rights-protection, or whatever else is of value. Are we entitled to take that as a reasonsome prima facie reason, at leastsupporting judicial review? In his most recent treatment of this question,7 Waldron seems to answer in the positive, and gambles on the future of political science that this will not happen. But in Law and Disagreement Waldron commits himself, if I understand him correctly, to the much stronger view that such hypothetical ndings will not be normatively relevant at all. This is so, says Waldron, because we are never going to be able to agree on the list of values (perhaps protection of rights, perhaps other values) on the political scientists list,8 and becauseas a consequencethe reasons supporting a majoritarian decision procedure are exclusionary reasons; they are not to be balanced against the controversial reasons in the rst-order debate, because they are on a different normative level. They are second-order reasons, excluding the rst-order ones altogether. This argumentation seems to me unpromising, and its conclusion utterly implausible. The argument for the purported exclusionary status of the reasons supporting a majoritarian decision procedurethe one from the controversial status

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WALDRON, supra note 1, at 268, 271 & 277. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346 (2006). Id.. [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.

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of whatever values they are supposed to be balanced againstseems to me to be based on a questionable assumption about the relation between consensus and legitimacy.9 As this assumption will be discussed below, let me put it to one side for now. But think again of Waldrons conclusion: Does Waldron really think that there are no possible good (yet controversial) effects that could count somewhat in favor of judicial review, or any other deviation from majoritarian decision making procedures? It is hard to resist the temptation to give examples: Does Waldron ask us to believe that even if judicial review was somehowin a specic jurisdiction, at a specic timethe only way to prevent a genocide (thought by some to be desirable10), still this fact wouldnt count at all towards justifying judicial review? If this much follows from Walrdons view (in Law and Disagreement, at least), this seems to me like a clear reductio.11 But perhaps all this is no longer relevant. Perhaps, in other words, Waldron no longer believes (if he ever did) that other values and reasons are excluded by whatever normative considerations support a majoritarian decision-making procedure. Again, then, I ask for a clarication. Is it now Waldrons ofcial view that we are entitled to balance the loss in participation against other things that are of value even if they are controversially so? Or does Waldron play the balancing game merely in order to indulgefor the sake of argumentthe supporters of judicial review?

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Christiano also criticizes Waldron for failing to satisfactorily support the strong claim that other reasons are excluded, but he doesnt consider in this context the argument I attribute to Waldron. See Christiano, supra note 4, at 524-25. 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 similarthough less extravagant examples can be constructed where this problem doesnt 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-qualication way out. See also Christiano, supra note 4, at 530. And notice that the point in the text is more modest and so more robustthan the point emphasized by Kavanagh: Kavanagh argues (quite convincingly, I think) that the normative weight of the right to participate does not always override other considerations. I claim merely that some other considerations areeven if overridden not without normative weight altogether. The denial of this claim is what Waldron seems to be committed to. Aileen Kavanagh, Participation and Judicial Review: A Reply to Jeremy Waldron, 22 L. & PHIL. 451 (2003). 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.

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IV. Is There an Internal Tension in Rights-Based Justication of Judicial Review?

Waldron thinks he identies an internal tension in rights-based justications of judicial review.12 The idea of rightsor at least the most common defense of this idea presupposes that people are reasonable, somewhat reliable, have a sense of justice and at least sometimes act on it, and are generally not extremely stupid, incompetent or morally corrupt. But justications of judicial review are all grounded in profound distrust directed at the common folk. And these two, as Waldron says, do not sit well together. I am not convinced, and in saying why it will help me to contrast two rather famous quotes. The rst is from Immanuel Kant: Two things ll the mind with ever new and increasing admiration and reverence, the more often and more steadily one reects on them: the starry heavens above me and the moral law within me.13 And in case you are worried it is only the moral law within him that Kant reveres, consider also:

There was a time when I thought that this [the thirst for knowledge and the satisfaction in advancing it] alone could constitute the honor of mankind, and I despised the common man who knows nothing. Rousseau set me right. This pretended superiority vanished and I learned to respect humanity. I should consider myself far more useless than the common laborer if I did not believe that one consideration alone gives worth to all others, namely to establish the rights of man.14

So compare these with the following quote which comes (I think) from Albert Einstein: There are two things that are innite: the universe and human stupidity.15
12 13

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See, e.g., id. at 222. IMMANUEL KANT, CRITIQUE OF PRACTICAL REASON 133 (Mary Gregor trans. & ed., Cambridge University Press 1997) [5:161 in the Akademie edition]. KANTS COLLECTED WRITINGS, Akademie edition, 20:44. I couldnt nd 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 innite: 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).

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Let me rst note that if I have to choose, I go with Einstein. Noticeas Harel does in his commentthat, Waldrons tone notwithstanding,16 it is mostly a factual, not a normative, question whether people are stupid, irresponsible, weak-willed, morally corrupt, and so on (from now on I will use stupid to stand for all the possible relevant aws). It seems to me that epistemic, not moral, considerations are the ones to decide whether this is the thing to believe. (If the evidence points to the conclusion that most people are very stupid, does morality in general or the duty to treat people with respect in particular require that we do not believe what our evidence supports, or indeed that we believe otherwise?17) And it seems to meas it apparently did to Einsteinthat the evidence points rather conclusively at the pessimistic direction. But second, and perhaps more importantly, Kant and Einstein need not be disagreeing here. Indeed, the only remotely plausible reading of Kants respect for humanity is, I think, one that is perfectly consistent with Einsteins sad observation. This is why there is a moral effortand not just epistemological sloppinessbehind Kants respect for humanity. We merit respect of this sortif indeed we do because of what we are, and perhaps even more because of what, at our best, we can becomecitizens of the Kingdom of Ends, to use one common metaphor. But all this is perfectly consistent with our being stupid, morally corrupt, almost bound to act wrongly and imprudently, and perhaps most importantlydangerous to ourselves and to others. Whether we should believe that we are depends on our evidence, not on our moral standing. And the beauty of the Kantian view I sketch here is that it is not threatened by such evidence. For there is no contradictionnot even tensionin claiming that wethe folkare worthy of Kantian respect because of what at our best we can be, and that we should be distrusted because of whatthe evidence showswe are very likely to do. The same holds, I think, for rights (and is a generalization, to an extent, of one of the points Harel makes in his comment). Perhaps we have rights because of what at our best we can be, or in some other way because of our moral status. This is consistent with us being dangerous, and so with us taking collective means to decrease the dangers right-bearers are likely to bring about.18 You may differ. You may
16 17

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See, e.g., WALDRON, supra note 1, at 252. 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. See also Kavanagh, supra note 11, at 476. So I agree with WALDRON, supra note 1, at 223, that its logically possible to suggest a defense of rights that depends on denying Einsteins observation.

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think that theres a threshold of stupidity (etc.) such that if sufciently many people are sufciently stupid, it no longer makes sense to claim that people have rights. Perhaps so. Even then, though, it seems likely that along the stupidity continuum, dangerousness will begin long before the right-bearing threshold is reached. And this, it seems to me, is enough in order to show that the internal tension Waldron attributes to rights-based defenses of judicial review does not really exist.

V. The Overarching Dilemma

One of the central themes of the book is that disagreement undermines legitimacy. More precisely, the idea seems to be that the truth of a controversial normative claim is neither sufcient nor necessary for the legitimacy of politically acting on it. For legitimacy something else is neededagreement, or perhaps some procedural credentials (Ill return to the relation between agreement and the procedure in a minute). Before proceeding to reject this general thesis, let me wonder about its scope. For it doesnt seem to me like there is a relevant reason to distinguish between normative and other controversial truths. If truth is neither necessary nor sufcient for legitimacy in the case of normative truths, it seems truth should be neither necessary nor sufcient for legitimacy in the case of any truth. In other words, whatever Waldron says about controversial moral beliefs should apply, as far as I see, also to controversial beliefs about, say, the origins of the universe.19 Is Waldron willing to generalize his claims in this way? If not, can he motivate the distinction between the legitimacy of acting on true but controversial non-moral beliefs and the illegitimacy of acting on true but controversial moral ones?20

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I just think no such defense is at all plausible, nor do I think that anything like such a defense is historically inuential. A parallel point is relevant to the discussion of state neutrality. If controversiality has a role to play in the justication 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 neutralityor at least most discussions of neutrality by those favorably disposed towards itignore this point. See, e.g., CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 4068 (1987). In the background here there is the nagging suspicion that, his protests to the contrary notwithstanding, Waldrons case against judicial review does rely on some (controversial, of

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Waldron believes, of course, that his own arguments are sound and that his conclusions are true. And given the content of his conclusions, he thinks political action should be based on them (e.g., in abolishing or failing to create a mechanism of judicial review). But as is clear at this stage of the discussion, Waldrons own conclusions are certainly controversial. And Waldron also thinks that the truth of controversial claims cannot ground the legitimacy of political action based on them. So Waldron is dangerously irting with self-defeat. The way to see that is, I think, to think of the following dilemma: Either disagreement undermines legitimacy, or it does not. If it does, then given the controversial nature of Waldrons own conclusions about how to accommodate disagreement, the assumed truth of his conclusions cannot make politically acting on them legitimate. If, on the other hand, disagreement does not undermine legitimacy, then much of the argument in the book collapses. Either way, it seems, Waldron is in trouble. A similar point has been made by a number of commentators.21 In his more recent The Core of the Case against Judicial Review Waldron briey addresses this worry, but not, I think, satisfactorily. This is so partly because Waldron doesnt state the problem in its strongest form. Waldron puts the problem in terms of the observation that given that everythingprocedures includedis subject to disagreement, were going to have to decide on something, so why not just decide on substantive issues and get it over with. To this Waldron replies, if I understand him correctly, that we cannot avoid deciding on procedures, and so we should do the best we can. But this doesnt help with the dilemma as I put it. For if in the case of procedures the truth of

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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 justiably hold to our (controversial) moral judgment (this is the only way I can make sense of Waldrons 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 ofcial 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 Waldrons political philosophy in particular. I hope to address these issues on another occasion. 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.

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a controversial normative claim can confer legitimacy, it can no longer be true that disagreement undermines legitimacy. The most that Waldron can now say is that disagreement counts rather heavily against legitimacy. Perhaps so, but then it is no longer clear that this consideration is always triumphant when substantive issues are concerned, and that other considerations always outweigh it when procedures are at stake. The urgency of reaching decisions on procedural matters does not, after all, always outweigh the urgency of substantive considerations. And even if the need to reach a decision on procedural matters is more pressing, it is very hard to see how a procedure can be justied not on the basis of some substantive principles.22 The problem, it seems to me, remains as serious as ever. Of course, there is something annoying about this challenge. It seems like the right thing for Waldron to say in reply is something like: Oh, dont just point to the fact that my conclusions are controversial. Show me that they are wrong! I have supplied arguments for my conclusions. Engage them! This response sounds exactly right to me. But Waldron cannot consistently give it, because if he can, so can we on the substantive issues where Waldron wants to exclude truth as grounding legitimacy: Oh, dont just point to the fact that whether afrmative action is required and even permitted as a matter of justice is controversial. Show me that my claim that it is is wrong! I have supplied arguments for my conclusion. Engage them! I dont see how such a reply can differentiate between the substantive and the procedural issues, and so I dont see how it can save Waldron. But Waldron does, I think, have a way out of the overarching dilemma. He must again rely on the distinction between truth and legitimacy, so central to his thinking. My arguments are indeed sound, Waldron should say, and their conclusions true. But that doesnt make political action based on them legitimate (at least not without some further procedural, legitimacy-conferring story). And that they are controversial shows thaton danger of self-defeattheir truth does not secure their legitimacy, but it does not show that they are not true. This seems to me like a perfectly stable position,23 and one Waldron at times irts with.24 But it certainly isnt a position he should be happy with. For on
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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. Raz, supra note 2 and Christiano, supra note 4, do not notice the availability of this retort. This is the way I understand WALDRONS discussion, supra note 1, at 282-312: Because the legitimacy of his conclusions does not stem from their truth but from their procedural credentials,

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the very rst page of the book Waldron criticizesalmost ridiculespolitical philosophers for having merely participated in the disagreement, offering contradictory expert advice to legislatures and voters, rather than look at the disagreement from above, suggesting how it should be taken into account.25 But if the only way to get out of the overarching dilemma is for Waldron to claim truth but not legitimacy for his theory, Waldron again nds himself in the position of the traditional political philosopher, the position he likes to ridicule:26 For moral truth, so says Waldron, doesnt matter, at least so long as we dont have an uncontroversial moral epistemology. By his own standards, then, the truth of his claims doesnt matter to their legitimacy at all. Waldrons theory is just as practically irrelevant as are the many views he criticizes. He ends up giving expert advice to legislatures; the only difference between him and the political philosophers he ridicules being that his expert advice is on second-order or procedural issues. I cannot see why this is a difference that makes a difference. Of course, I dont think this is a problem, for I dont expect political philosophers to transcend rst-order, controversial normative (and other) claims.27 But Waldron should not be happy with this result.

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he has to discuss the circular nature of relying on a decision procedure to decide issues pertaining to the justication 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 nd 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 justication 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 nd 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. 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). 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 Waldrons own expert advice, and with the rigor of the expert advice contradicting Waldrons theses. I thus agree with Raz, supra note 2, at 47, that we should abandon the attempt to occupy a noncontroversial high ground.

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VI. Really Taking Disagreement Seriously

There is another possible reply to the overarching dilemma. At times, Waldron seems committed to the view that we already agree on majoritarianism, at least in rough outline; that, in other words, here there is no disagreement.28 Indeed, at times Waldron suggests that this is necessary if a peaceful state is to be maintained at all. Here is a suggestive quote:

To imagine that deliberative politics (or any form of peaceful politics) is possible is to imagine that people can agree on some of these procedural points even though they disagree on the merits of the issues that the procedures are, so to speak, designed to house. It is to imagine, in other words, that the procedural issues and the substantive issues are in some sense separable.29

It is here, I suggest, that Waldron fails to internalize his own lesson about the ubiquity of disagreement. It seems to me no such agreement can be found. Abstract from substantive, controversial questions, and you will have nothing from which to construct a justication of any procedure whatsoever. Many agree on a majoritarian outline of a decision-procedure, but many do not (and, though I dont think it matters, many reasonably dont). And yet somehowmiraculouslyreasonably peaceful society exists. There is a larger issue here. If I understand him correctly, Waldron remains wedded to a traditional liberal thoughtperhaps the traditional liberal thoughtthat for government to be legitimate it has to be in principle justied to every single one of its subjects, it has to be a government that can be shown to promote the interests
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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. 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.

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of every subject, or to be based on the consent of every subject, or perhaps to be such that every subject would have consented to it had she been in the right circumstances, or something of the sort. Legitimacy must be grounded, according to this traditional liberal idea, in consensus of one kind or another. And at times at least Waldron too seems to think this is so. This, it seems to me, is the only way to understand sentences such as there is no neutral way of stating what exactly it is that is supposed to be competing with participatory majoritarianism...30for why care whether there is or there isnt such a neutral way unless one thinks that legitimacy requires consensus?31 But no such consensus exists or is ever likely to exist in a reasonably free society. Here too, in other words, disagreement goes all the way down. So we should either hold on to the traditional consensus-requirement and conclude that no government is ever legitimate, orand this is the way I would gowe should abandon the traditional consensus-requirement, and settle for a messier but much more realistic kind of legitimacy.32 Putting legitimacy to one side now, how in the face of such ubiquitous disagreement is peaceful government even possible? Well, in the way in which it is actual. We have some agreement about substance among some people, but not all. Similarly for decision procedures. Some people are easily manipulable, and some others are quick to take advantage of the possibilities this creates. Some people truly believe that the Founding Fathers enjoyed God-like (and perhaps also God-given) wisdom, and that this is where legitimacy comes from. Some believe in a mysterious and holy rule of law, failing to see that nothing like the law can be where moral justication comes to an end. Some people care mostly about themselves, and try not to run into trouble with Big Brother. And, of course, it is not as if threats of the use of force and when

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WALDRON, supra note 1, at 249. 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, rst, 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 rst to the second sense of settling may very well be the result of an implicit assumption of the kind mentioned in the textnamely, that consensus is necessary for legitimacy. See Raz, supra note 2, at 33.

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they fail, actual use of forceare out of the picture altogether. In other words, the way we deal with disagreementand to an extent, I suggest, also the way in which we should deal with disagreementis by doing politics: Non-ideal, messy, roughly democratic, not remotely egalitarian, somewhat reason-supported, somewhat forcerelated, every-day politics. Perhaps it would have been nicer if we could all just be friends, agreeing on substantive issues, or at least on legitimacy and procedural issues. Perhaps, in other words, we should not love the fact that no such consensus exists or is ever very likely to emerge. But if disagreement is to be taken seriouslyreally seriouslyit is a fact we, citizens as well as political philosophers, are going to have to learn to live with.