By Christopher J. Peters
Legislations frequently purports to require humans, together with executive officers, to behave in methods they suspect are morally flawed or destructive. what's it approximately legislations that could justify this type of claim?
In an issue of Dispute: Morality, Democracy, and legislation, Christopher J. Peters deals a solution to this question, one who illuminates the original attraction of democratic govt, the unusual constitution of adversary adjudication, and the contested legitimacy of constitutional judicial overview. Peters contends that legislation will be considered essentially as a tool for heading off or resolving disputes, a functionality that suggests convinced center houses of authoritative criminal systems. these houses - 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. they usually flooring a safety of constitutionalism and judicial evaluate opposed to continual objections that these practices are "counter-majoritarian" and hence nondemocratic.
This paintings canvasses primary difficulties in the various disciplines of criminal philosophy, democratic concept, philosophy of adjudication, and public-law conception and indicates a unified method of unraveling them. It additionally addresses useful questions of legislation and govt in a manner that are meant to attract a person attracted to the advanced and infrequently bothered courting between morality, democracy, and the guideline 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 legislations - why democracy actually is a procedure of presidency below legislations.
Read Online or Download A Matter of Dispute: Morality, Democracy, and Law PDF
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Additional resources for A Matter of Dispute: Morality, Democracy, and Law
Admittedly there is a Which brings us back to the context of constitutional rules. For a democratic majority to ignore, or to allow its representatives to ignore, applicable constitutional limitations may very well be for that society’s rule of recognition, in Hartian terms, to change—from a rule by which the constitution’s limitations are strictly binding to a rule by which they are not. It may in essence be a revolution without violence. If so, then the post-Hartian distinction between legal ofﬁcials (who must be motivated to obey secondary legal rules, including the rule of recognition, for reasons other than the fear of sanctions) and ordinary citizens (who must be motivated to obey only the primary rules and may be motivated solely by sanctions) degrades even further.
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.
For present purposes, a central dichotomy appearing in this diverse body of work has been a tension between competing ideas of the primary function of judges and courts: as resolvers of disputes, charged with applying existing legal norms to particular sets of facts; or as makers of policy, tasked with the development of new legal norms to be applied prospectively. In practice, of course, courts tend to do a fair amount of both dispute-resolving and policymaking; the question is which should dominate when these roles conﬂict.