By Christopher J. Peters
Legislations usually purports to require humans, together with govt officers, to behave in methods they believe are morally fallacious or damaging. what's it approximately legislation that may justify the sort of claim?
In an issue of Dispute: Morality, Democracy, and legislations, Christopher J. Peters deals a solution to this query, one who illuminates the original allure of democratic govt, the bizarre constitution of adversary adjudication, and the contested legitimacy of constitutional judicial overview. Peters contends that legislation could be seen essentially as a tool for keeping off or resolving disputes, a functionality that suggests definite middle homes of authoritative felony systems. these homes - competence and impartiality - supply democracy its virtue over other kinds of presidency. in addition they underwrite the adversary nature of common-law adjudication and the tasks and constraints of democratic judges. and so they floor a security of constitutionalism and judicial overview opposed to power objections that these practices are "counter-majoritarian" and therefore nondemocratic.
This paintings canvasses primary difficulties in the varied disciplines of felony philosophy, democratic conception, philosophy of adjudication, and public-law thought and indicates a unified method of unraveling them. It additionally addresses sensible questions of legislation and govt in a fashion that are meant to attract an individual attracted to the advanced and infrequently bothered courting between morality, democracy, and the rule of thumb of law.
Written for experts and non-specialists alike, a question of Dispute explains why each one folks separately, and we all jointly, have cause to obey the legislation - why democracy really is a approach of presidency less than legislation.
Read Online or Download A Matter of Dispute: Morality, Democracy, and Law PDF
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Additional info for A Matter of Dispute: Morality, Democracy, and Law
Constitutional law often is seen as deeply in tension with the idea of democracy; but in chapters 7 and 8 I contend that the DR account in fact supports constitutional law on the same grounds that it supports democracy, namely as a reasonably competent and impartial way to avoid or resolve certain kinds of disputes. The analysis in Chapter 7 envisions constitutional law as a means of preventing certain kinds of failure of democratic authority and resolving disputes about whether these failures have occurred.
See Lon L. Fuller, The Morality of Law (rev. ed. 1969) (1964). 34. See Richard A. Posner, The Problematics of Moral and Legal Theory (1999) [hereinafter Posner, The Problematics]; see also Sunstein, Legal Reasoning, supra note 4, at 194–96. 35. J. 153 (2002). 36. S. Const. art. II, § 2. ” Id. art. III, § 1. 37. See Bickel, supra note 28, at 16. 38 Only recently have constitutional theorists seriously begun to ask similar questions about constitutionalism itself—the imposition of legal limits, typically with a textual basis, upon the authority of democratic government—which, after all, is a precondition of judicial review and is at least as countermajoritarian.
Adjudicative Theory and the Problem of Judicial Duty Not surprisingly, lawyers and judges themselves tend to understand the activities of courts in ways that are more nuanced (though not without their own pathologies). There is a long American tradition of more-or-less theoretical writing about the role of judges and the place of adjudication within the larger system of democratic government, which we might loosely group together under the label adjudicative theory. Putting aside perhaps the most prominent subset of this category—work in the special context of constitutional law, which I will discuss separately below—most adjudicative theory has focused, in a variety of ways, on the questions of how judges in particular ought to act, and how adjudication more generally ought to be structured, in order to maximize competence and maintain legitimacy.