Abstract
In Jeremy Waldron’s influential contribution to the field of Legisprudence, theoretical interest in law-making by elected assemblies (and their practical rationality) is linked with a political concern with the democratic limitations of judicial review in public decision-making. This paper further elaborates on Waldron’s theoretical and political insight, but it does so obliquely and delivers only context-dependent and provisional results. The paper takes one case (Williams v. Wallace), which is not an instance of judicial review of legislation, and studies its effects in the context of political activism aimed at one legislative achievement (the Voting Rights Act of 1965), by analyzing the strategy of the Civil Rights Movement as it wrestled with the practical problem of combining political pressure on elected-officials, and judicial activism through courts. The paper proposes a theoretical vocabulary for articulating this kind of analysis, and study its implications: first, it provides a conceptualization of a pre-political commitment, which, I call, the duty to, at times and provisionally, pause, cool down and listen; and, second, it argues that recognition of this duty lends itself to an epistemic justification of public authorities: the latter have a (defeasible) claim to authority, when we have reason to take their directives experimentally, and stick to them as a means to a shared, and public, evaluation of their desirability. As we praise the value, and analyze the practical rationality that went in the drafting of the Voting Rights Act of 1965, the paper concludes, we shouldn’t be blind to the fact that litigation played a role too; nor should we be blind to the fact that their combined value is a function of a larger public deliberation, and lies in how both legislative achievement as well as judicial involvement can be seen, in this case, as intelligent responses to reasonable pressures by political activism.
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Notes
- 1.
- 2.
That is, when it is not used in the process of judicial review of legislation.
- 3.
In many ways, this point is already anticipated by Waldron himself; see, for example, Waldron (2011). There is a key difference however: whereas Waldron’s compelling arguments for the relevance of procedure aim at ‘thickening’ the best interpretative conception of the ideal of the Rule of law itself, nothing of sorts is implied here. This difference drives further considerations; first, whereas Waldron’s political conception of litigation depends on a view of parties as autonomous and rational agents, the analysis proposed here avoids any such assumption, which makes it prima facie more ready to consider what we owe to parties who are not rational and autonomous beings (I emphasize: prima facie, I would still need to offer arguments, which I do not provide here). Second, whereas Waldron restricts his analysis to binary issues at law (roughly: cases in which we have two parties, and two parties only and the final decision affects them, and no one else), this paper takes the perspective of political movements as well, and thus aims at evaluating the political value of litigation well beyond any specific binary issue at law.
- 4.
The presiding judge (Frank M. Johnson) famously authorized Civil Rights activists to march, arguing that, even if his decision reached “to the outer limits of what is constitutionally allowed […;h]owever, the wrongs and injustices inflicted upon these plaintiffs and the members of their class […] have clearly exceeded — and continue to exceed — the outer limits of what is constitutionally permissible”., see Williams v. Wallace, 240 F. Supp 100 (MD Ala. 1965).
- 5.
See Rosenberg (2008), appendix 3 especially.
- 6.
Waldron (2006), p. 1405.
- 7.
I doubt that he is, though, especially if we interpret the claim literally and categorically. The empirical jury seems to be still out, however, in no small part because of the difficulties of measuring both independent and dependent variables, I think. See, for contrasting evidence, Rosenberg (2008), who I think would agree with Waldron; and Donohue and Heckman (1991), who provide a much more complicated picture of what is responsible for which effects. Much depends, too, on the interpretation of the ‘in the end’ clause, in Waldron’s statement: a ‘ultimate cause’ may not be a ‘proximate’ one and, politically and historically, a ‘but-for’ condition might still be very relevant, even when we estimate that it is neither proximate, nor ultimate.
- 8.
Indeed, the relatively more recent engagement of the Federal Supreme Court with the Voting Rights Act itself, does offer striking evidence to the risks, which the Court’s powers present, for the effective protection of democratic values against the encroachment of old habits and privileges; I am referring, of course, to Shelby County v. Holder, 570 U.S. 529 (2013). So both his theoretical insight (‘let us not focus on what happens in courts of law only, but let us look at the practical rationality of legislatures too’), as well as his political recommendation (‘judicial review of legislation is a suspect decision-procedure over rights’) still stand after my arguments here, then.
- 9.
Waldron (2006) helpfully specifies that his arguments are directed against, what he calls, strong judicial review of legislation only (namely, the practice which accords to courts the power to “decline to apply a statute in a particular case […], or to modify the effect of a statute to make its application conform with individual rights, p. 1354), and not against some weaker forms (which do not give courts the power to modify statutes, but merely signal their possible violation of individual rights), or to judicial review of executive action.
- 10.
- 11.
See Waldron (2006).
- 12.
See Waldron (1999a), Chapter 7.
- 13.
See Waldron (1993).
- 14.
See Waldron (2006).
- 15.
See Waldron (2006), p. 1360: “We are to imagine a society with (1) democratic institutions in reasonably good working order, including a representative legislature elected on the basis of universal adult suffrage; (2) a set of judicial institutions, again in reasonably good order, set up on a non representative basis to hear individual lawsuits, settle disputes, and uphold the rule of law; (3) 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 (4) persisting, substantial, and good faith disagreement about rights (i.e., about what the commitment to rights actually amounts to and what its implications are) among the members of the society who are committed to the idea of rights”.
- 16.
It is, it seems to me, precisely this connection between Waldron’s theoretical interest in legislators, and his political concern with judicial review of legislation, which helps to explain why Waldron is relatively less demanding than, for example, Rawls (1993), in his account of political legitimacy (we do not need to show that a given institutional structure should commend consensus among reasonable people), and yet far more demanding with respect to the legitimacy of one particular institution (namely, judicial review of legislation).
- 17.
For references to a more detailed account: I take this interpretation of the human animal condition from Nussbaum’s elaboration of Aristotle’s conception (Nussbaum 2006) of the human animal. Most specifically, however, my formulation of the DPCL owes a significant debt to how Nussbaum defends two apparently opposite claims on human sociality: namely, that we often depend on other people, and often see our own successes (and failures) as integrated with the successes (and failures) of others; and that we are separate beings nonetheless—i.e. there is no mechanical, or automatic, way for the good of one to transfer to the good of others, just as there is no mechanical, or automatic, way, for the thoughts, valuations and aspirations of one to transfer to the ‘mind’ of others. Recognizing the DPCL is, it seems to me, a relatively simple way to show appreciation to this odd condition of human sociality (which we share with many, although by no means all, other animals and living organisms), and evaluate its political implications. Among the many places in which Nussbaum defends this (apparently contradictory, but cogent) dual way of valuing human sociality, I find that this is among the most illuminating, see Nussbaum (2008) (partly because there she effectively contrasts her own interpretation of the liberal tradition—with many useful references to her other work on the subject—with Robin West’s influential criticism of it—in the context of West’s classic political conception of gender as a relevant topic in jurisprudence—and which precisely relies, among other issues, on confusing the dual way of valuing human sociality, which I want to pick up with my DPCL).
- 18.
For a more detailed account, see Segatti (2019), where I elaborate more both on its source, on its role in informing reasonable political principles, as well as on its use in the political evaluation of specific institutions in ordinary litigation.
- 19.
See, especially, Nussbaum (2006).
- 20.
See, again, Nussbaum (2008), for an illuminating discussion of the political implications of this very simple thought.
- 21.
A further note on the content of the duty: Consider ‘pausing’, and ‘cooling down’ first. Combined, the two actions are meant the stress the salience of a few big costs, connected with expressing disagreement.—‘time’, ‘distraction from otherwise valuable activities’, ‘opportunity losses’. But we do not merely demand for others to ‘pause’. They ought to cool down as well, creating some practical distance (enough for intelligent deliberation to take place) between themselves and the activities that they are pursuing. The two initial qualifications to the actions which we demand others to perform—we, ‘at times’ and ‘provisionally’, demand that …—are meant to underscore that reasons ought to be offered for triggering compliance with the duty in a given case; and that such reasons ought to justify our holding on to, or delaying, the realization of activities that we otherwise find valuable, and attractive. But we should not expect these reasons to be sufficiently persuasive as to the desirability, or legitimacy, of the substantive action they purportedly justify—assuming this much would defy the whole purpose of recognizing a duty to pause, cool down, and listen: if we are already persuaded as to the desirability, or legitimacy, of a demand made on us, then we ought to do that, without having to pause, cool down, and listen. What we are entitled to expect is, rather, that these reasons meet an appropriate threshold of plausibility, and/or are connected with an area of one’s life, where we could both expect, and justify, social cooperation to take place. Some reason ought to be given, however: from the point of view of the claim-maker (and, thus, from the point of view of someone who chooses to comply with the duty) we provisionally pause, cool down, and listen because we are generally entitled to compare the expected benefits and costs of claim-making, in light of the demands that the duty makes on us. From the point of view of the person who is the subject of the claim, we provisionally pause, cool down, and listen, because we are entitled to demand that the claim-maker does not withhold the recognition of his duty to pause and listen. Finally, there is the activity, which provides a point, a context, and a justification to pausing and cooling down—‘listening’, that is. So, recognizing such duty commits us to protect and develop a communicative interaction between at least two beings. One who does some form of ‘talking’, directed at claim-making, and one who does the ‘listening’.
- 22.
- 23.
See Waldron (1999a), Chapters 5, 6.
- 24.
See Waldron (1999a), Chapter 6.
- 25.
This is how Dr. King explained his strategy of civil disobedience, in his testimony in Williams V. Wallace: ‘I think there are times that laws can be unjust and that a moral man has no alternative but to disobey that law, but he must be willing to do it openly, cheerfully, lovingly, civilly, and not uncivilly, and with a willingness to accept the penalty, with a hope and a belief that by accepting this and doing it in this way he will be able to arouse a conscience of the community over the injustice of the law and therefore lead to the bright day that everybody will set out to change it’. It is important to add that Judge Johnson wasn’t friendly at all to this strategy. On these matters, and for further textual references to King’s testimony, see Bass (2015), especially at p. 549.
- 26.
Few more qualifications: this is an account of political legitimacy, and not of legal legitimacy: it answers to a question about how we shall justify the authority of public institutions, and not to a question about when we shall consider this authority to be legal. It is, furthermore and emphatically, a partial account of political legitimacy: the existence of feedback and learning mechanisms which, as I argue below, make the authority defeasible are necessary, but not sufficient, conditions for granting authority to public institutions. For example, there might be perfectly functional feedback and learning mechanisms, which work, however, toward the realization of wicked consequences (i.e., I am not arguing the implausible claim that failure to meet legitimacy requirements is a matter of mere ignorance, and blind disregard for consequences). Also, the partiality of this account of political legitimacy is built in its very political base: the DPCL, I have said, is parasitic to an account of basic justice so whatever criterion for political legitimacy, which it delivers, should be understood as parasitic to an account of basic justice as well. My reasons for being non committal to the question on which account of basic justice I prefer are merely strategic: I want to put pressure on Waldron’s core case, and qualify it, while sticking, as closely as possible, to its claim that in the circumstances of politics we have to work with pervasive disagreements about basic justice. Finally, this is, just like Raz’s, an instrumental account of political legitimacy, as it focuses on how public authorities should help us to act on reasons, which already apply to us. And it is an account, again just like Raz’s, which recognizes independent reasons for action, as it pushes us to act even before we have a view on the content-dependent reasons, which we have for acting one way or another. This instrumentalism is not paternalistic, though, and neither is it predicated on exclusionary reasons alone: its point is precisely to help us learn the content-dependent reasons we have for acting one way or another, by requiring that we do this in a way, which is available to other people’s evaluations as well.
- 27.
This interpretation of legislative debates as feedback mechanisms, which shall provide a test on the defeasibility of the political legitimacy of positive law, might seem very odd: it is relatively more natural to think of the legislative process as something, which should directly legitimize its product (i.e. positive legislation), rather than indirectly, as a process of permanently provisional amendment and modification—and indeed, this is how Waldron’s seems to think about it: neither his utilitarian argument, nor his reconstruction of Condorcet, Locke and Aristotle’s arguments on the morality of majority-rule by elected assemblies (see Waldron 1999a, Chapter 6; and Waldron 1999b, Chapters 4 and 5), seem to have much interest in the fact that legislatures have a way of learning (for better or worse) from their previous attempts at passing one piece of legislation or other. We can dispel part of the oddity, by noticing that feedback mechanisms are built in the very conception of formal representation as accountability (Pitkin 1967; Dovi 2018). Also, and to provide practical content to these feedback mechanisms: Sen’s classic argument on the epistemic justification of minimal democracy (regular elections and a free press), precisely exploits its built-in feedback mechanisms, in order to explain how it protects (the food entitlements of) the most vulnerable sectors of a population against famines; see Sen (1981), Chapter 6 and Sen (2009), p. 338: the value of elected-assemblies is not a mere function of how well they already represent (either formally, or substantively) the interests of the population at large (although, clearly, that should contribute to their value too), but also, and most minimally, because it is very hard to win elections when one segment of the population has died on the streets.
- 28.
Unless I have missed something, this is, indeed, something which Waldron doesn’t quite articulate in his writings on the political morality of majority-rule; see, however, Waldron (2006), p. 112 for an explicit argument in favor of restricting, like I suggest, the use of majority-rule to general rules, and these only: My intuitions, I confess, are not lined up with Waldron’s (and, apparently, Dworkin’s) in the specific example, which he gives (a number of people, I am assuming all adults, who are stranded in the ocean, on an overcrowded life-boat and who have to decide who shall be let off-board). My problem with using this case as an argument on the restriction of majority rule to decisions on general rules only is that it doesn’t seem that other decision-procedures fair significantly better, in this case. Or, at any rate, I wouldn’t say that sacrifice by a volunteer, for example, would necessarily free the others from wrong-doing (even though, I agree, it would be better—but for whom, exactly?—than selecting who has to die through a majority vote).
- 29.
To be sure, this is not (and should not count as) the only reason we have for restricting the scope of majority-rule to general rules only. Impartiality, practicality and predictability of the outcomes of decision-making by officials should count too, and for reasons, which may well be independent of any epistemic justification of authority. Again, the epistemic justification of public authorities, which I propose, merely provides a necessary condition on the latter’s legitimacy. I am (emphatically) non-committal, here, on whether there are other necessary conditions, and which combination of these conditions is sufficient to grant political legitimacy to a given authority. For example, holding public decision-making entirely hostage to the political wishes of alternative majorities might, one can presume, reduce the predictability of the concrete directives, which these majorities would produce, increase the costs of their production, and jeopardize any form of impartial adjudication. What’s interesting, however, is how the epistemic justification can build on impartiality and predictability especially, and qualify their requirements. We can plausibly test the consequences of general rules, and impute the former to the latter, as long as we can predict the former in some stable and consistent way. But predictability is not enough for doing that, and it can be improved. What could help, for example, is an explicit account of the reasons, which are taken to justify these general rules. In this way, we could search for specific consequences (e.g.: those predicted by the given reasons) and assess their concrete realization. Adjudication by public officials, who are impartial with respect to the different sides of these debates, guarantees that feedback on the actual consequences of the application of the general rules, just as well as its accumulation as case-law, are credible data on the desirability of some regulation or other.
- 30.
- 31.
See, for a more detailed account of how legisprudence can steer clear of the fiction of legislative intent, Ferraro (2018), esp. at 134–137.
- 32.
This point is helpfully recognized by Oliver-Lalana (2018), when he says that the reasons, which appear in legislative debates, are a mere fraction of the reasons, which may justify a particular piece of legislation; see p. 80 especially.
- 33.
Again, we are not interested in how legislatures justify general rules, because we want to attribute specific intentions to them, as a way of interpreting the rules they produce. Nor are legislative histories and debates mere ‘sociological trivialities’. Rather, our interest in them is simply what follows from a reasonable demand that the authority of public institutions shall be predicated as a function of their ability to make whatever authoritative directive, that they shall ultimately issue, available to the shared evaluation of their subjects.
- 34.
Notice that this is not the argument on the use of constitutions as pre-commitment devices, which Waldron (correctly, I think) criticizes in Waldron (1999a), Chapter 12—namely, the view that if the people democratically chose a constitution, then that constitution is democratic. In my account, the point to pre-commit, and quite apart from the ways in which this pre-commitment is realized or expressed, is precisely to allow time for (democratic) evaluation to take place.
- 35.
This is a rather strong statement on the value of judicial review of legislation, so why do I keep insisting that the arguments which, I claim, justify it, do not put overwhelming pressure on Waldron’s core case? The pressure is not overwhelming because, on the one hand, this way of valuing judicial review depends on, what I claim to be, I shall repeat, a necessary condition of politically legitimate authority. Since I am emphatically non committal to what, if anything at all, could be a sufficient condition of politically legitimate authority (nor to which other conditions are necessary), Waldron could quite fairly say that there are, indeed, other necessary and sufficient conditions of authority which, at times at any rate, do indeed conflict with my necessary condition. In those cases, it is still indeed possible that judicial review of legislation could turn out to be illegitimate, despite the fact that it complies with my necessary condition. Also, Waldron could quite fairly say that my way of defending judicial review, even granting (without necessarily conceding) that it is an intelligent way of valuing it, simply does not track how judges, legislatures and philosophers defend (when they do defend it) judicial review, or interpret its value, today. My argument, if successful, does exert some pressure however, because it shifts the relevant political focus from the practice of judicial review itself, to how constitutional documents are protected against majority-rule and how judges interpret them. If constitutions are understood as ‘sacred documents’ beyond any legitimate human power of amendment and revision, and judges do not understand past cases as experiments on the application of general rules and do not decide their present case, with a view of helping future judges to use it like an experiment as well, then Waldron’s arguments against judicial review do indeed apply. But neither one of these points is, it seems to me, conceptually necessitated by the practice of judicial review of legislation itself.
- 36.
This remark is referenced in both the New York Times and the Washington Posts obituaries, of the 24th July 1999. Here is a few more biographical facts about Johnson. He was from Winston County, Alabama. Two generations earlier than his, when Alabama left the Union, the county unsuccessfully tried to secede from the State. After graduating from the University of Alabama’s law school in 1943, Johnson joined the army and saw action as a platoon leader under George Patton during the Normandy invasion, eventually getting wounded twice. Back home, he went into law practice, managed Eisenhower’s successful 1952 Presidential campaign and, in 1955, got appointed to the Federal bench, in the District Court for the Middle District of Alabama—a position he kept until 1979, when he was first appointed to the Court of Appeals for the Fifth District, and then for the newly created Eleventh District in 1981. President Carter was said to having considered his name as the Director of the FBI, but Johnson declined the offer due to his poor health conditions.
- 37.
347 U.S. 483 (1954).
- 38.
- 39.
See Fiss (2009), for a vivid account of his encounters with Judge Johnson.
- 40.
See Fiss (1972).
- 41.
Williams v. Wallace, 240 F. Supp 100 (MD Ala. 1965).
- 42.
Ibid.
- 43.
Ibid.
- 44.
See Bass (2015).
- 45.
Address at the conclusion of the Selma-Montgomery march, available at https://kinginstitute.stanford.edu/king-papers/documents/address-conclusion-selma-montgomery-march.
- 46.
See Nussbaum (2016), Chapter 2.
- 47.
Here I have learnt a lot from Srinivasan (2018), who argues that anger might be apt even when it is counterproductive (i.e. when it is not rational). Indeed, she convincingly argues that these situations mark a distinct form of injustice, which she names affective injustice. According to Srinivasan, there are first order injustices, which political philosophers are most familiar with, and which relate to, for example, unfair distributions of benefits, opportunities and substantive freedoms across a given population. But, she adds, there is, also, a second-order injustice which relates to the normative conflicts, which victims of injustice typically experience, as they have to compromise, or, in any case, adjudicate between, their prudential reasons for improving their lot (aiming at reducing first-order injustices) and other normative reasons, which make their anger against their oppressors apt. Pragmatic arguments against the aptness of anger, which claim that the latter is counterproductive with respect to prudential reasons aimed at restoring first-order justice, simply obliterate the second-order injustices, which come along with the first. There are psychic costs, which come along with affective injustice, and which embroil victims of first-order injustices in excruciating evaluative conflicts among competing demands—between an apt appreciation of injustice, and a smart politics of improvement.
Here is how I would integrate Srinivasan’s cogent arguments on the aptness of anger (and on the fact that calls for its repression are, indeed, suspect, even when well-intended), within my arguments here: Diagnostically, recognition of the DPCL immediately focuses on, what Srinivasan calls, affective injustice, as something, which depends on, but is different than and which adds to, first-order injustice: that is exactly what the DPCL is meant to pick up—situations in which victims of injustice have prudential reasons to pause and listen, beyond any legitimate demand, which their oppressors might have. At the time of prognosis, striving to re-allocate the DPCL aims at recruiting affective injustice as a resource, which lends special epistemic credibility to its victims. It is precisely what oppressors have to pause and cool down about, and listen to: something, which oppressors are not equipped and trained to understand, and about which they require guidance by their victims. This is a pragmatic argument, to be sure. It is too, an argument against indulging in apt-anger by recognizing it to be counterproductive. Does it amount to a legitimate demand by oppressors that their victims use affective injustice as a resource, and help them to understand it? Probably not, and circumstantial conditions might well determine the appropriate judgment. But the argument adds: look, affective injustice is what makes oppressors relatively more obtuse and victims relatively more intelligent. When the latter use their superior epistemic credentials to educate their oppressors so that they can appreciate injustice in a more intelligent way, then we have sufficient reasons to call them heroes. This is, I think, a good interpretation of the Civil-Rights Movement’s decision to comply with the court order: heroically giving their oppressors a fair chance to understand how obtuse they were.
- 48.
See Nussbaum (2016), Chapter 2.
- 49.
There are some further wrinkles, however. Consider: Acting intentionally in order to elicit anger from someone who has injured us makes such anger apt, one might think—after all, that’s exactly what we wanted. But its aptness has nothing to do with appreciating the kind of injustice at hand. In fact, it pushes the wrongdoer further away from understanding the wrong, which they have inflicted us in the first place: technically, their anger serves as an excuse not to understand. This would count as a pragmatic reason for the counter-productivity of apt-anger, and which Srinivasan (2018) reasonably (I think) condemns: it works to obliterate the apt response of a victim, who legitimately aims at recognition from their oppressor, and, thus, legitimately makes them angry.
But, what about when we get angry with someone who falsely believes that we have wronged them and, thus, intentionally act in order to elicit anger from us? Again, anger seems apt, or, in any case, its criticism seems inaccessible from the position of the target of our anger. But whether it is actually apt or less so, anger is not simply counterproductive here, it effectively disempowers us, by narrowing our focus: by paying attention to the last straw, we overlook, and fail to appreciate, where the problem really is; namely, the false perception of the person, with whom we are angry, to have been wronged somehow by us (and, I might add, hoping for a best case scenario: their dumb, and immature, way of expressing this thought). Again, Srinivasan might legitimately retort: Apt-anger disempowers victims in this case, because it pushes them away from the ‘big picture’, but unequal ability to show appreciation of, and defiance to, the ‘big picture’ is precisely the kind of privilege, which defines the second-order, affective, injustice, which victims of long-standing oppressions typically experience.
- 50.
See Nussbaum (2016), Chapter 7.
- 51.
On the relevance of positionality for the aptness of anger, see Srinivasan (2018).
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Segatti, M. (2022). Beyond Judicial Review of Legislation. In: Ferraro, F., Zorzetto, S. (eds) Exploring the Province of Legislation. Legisprudence Library, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-030-87262-5_10
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