Legislators get embarrassed too

The Dignity of Legislation
February 11, 2000

Lawyers in Britain and in America, especially academic lawyers, are obsessed with cases, and with the judges who decide them. There are good reasons to be alarmed by this in all fields of legal scholarship, but in none more, perhaps, than in legal theory. Quite why it is that philosophers of law partake of the same "love-fest" with judges as is beloved of doctrinal lawyers, is hard to say.

While Jeremy Waldron, one of the Anglo-American world's most acclaimed legal thinkers, offers no answer to this question, he has at least made an effort to begin the task of exploring how legal theorists might ponder law-makers beyond the courtroom. His book seeks to subject legislators to the sort of analytical philosophising that the likes of H. L. A. Hart, Ronald Dworkin, Joseph Raz et al have been applying to judges for a generation and more.

Waldron's project is to rescue legislation from theoretical oblivion, to suggest that it is just as worthy an exhibit as case law, and to place (or replace) it centre-stage in the hierarchy of legal thinking. In doing so Waldron goes out of his way to search the records (typical lawyer: the first question is always "what are the precedents?") to find thinkers from earlier centuries who, he argues, share a concern for investing legislation with the dignity it apparently requires before we can permit ourselves to study it. On this he has been resourceful: avoiding the more obvious names (Bentham, Rousseau, Hobbes), he alights principally on Kant, Locke and Aristotle, throwing in a touch of John Rawls for good contemporary measure.

Bravo to all that. Waldron is a wonderfully fresh breath of air. He is spot-on in his criticism of the dominant analytical discourse of Anglo-American jurisprudence, in which a shared "embarrassment" about legislation positively thrives. Whereas the common law is viewed as constantly purifying itself, "so that each precedent ... however much we dislike it in itself, has something in its lineage that elicits our respect, a statute thrusts itself before us as a low-bred parvenu, all surface and no depth, all power and no heritage, as arbitrary in its provenance as the temporary coalescence of a parliamentary or congressional majority".

Waldron's project is a timely and hugely welcome counter to this complacent smugness. One word of warning, however. The Dignity of Legislation is but one half of a bigger project, the better part of which was separately published as Law and Disagreement (1999). And without the Oxford volume to complement and complete it, The Dignity of Legislation is a flawed and sadly impoverished work. The limitation Waldron has imposed on himself - for reasons nowhere explained - resides in his title's other noun: dignity. Why is it this particular value of legislation? He asks how anything "coherent" is supposed to emerge from large legislative assemblies. Yet is coherence really the criterion above all others against which legislation should be judged? What of legislation's democratic values - that it represents the will of the people (or at least of the people whom the people have chosen to represent them), or that it constitutes the most open and the most participatory form of rule-making modern societies have yet invented?

Waldron states that his aim is "to present legislation in a better light than it usually appears in legal and political philosophy", but perhaps he would have had more chance of success had he used a different d-word. Legislation gains all the dignity it needs from democracy. While Waldron finds space for a fascinating consideration of this point in Law and Disagreement , democracy is a concept as familiarly alien in The Dignity of Legislation as it usually is in the philosophy of law.

Adam Tomkins is senior lecturer in law, King's College, London.

The Dignity of Legislation

Author - Jeremy Waldron
ISBN - 0 521 65883 7 and 65092 5
Publisher - Cambridge University Press
Price - £35.00 and £12.95
Pages - 206

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