Sorry, I see I slightly misunderstood your question. I don’t have any strong view about the institutional question when we restrict it to reasonable disputes about justice. I don’t know whether courts or legislatures are the best place for final authority to reside regarding reasonable disagreements about justice. It might be that some reasonable disputes are best left to legislatures and other types are best settled by the courts, but I really haven’t thought enough about it.

I also agree with your interpretation of Waldron here (at least on procedural questions like voting rights for women). Where Waldron’s position becomes implausible is with regard to liberal rights that are neither constitutive of the democratic process nor a condition for that process’ legitimacy (Law and Disagreement, p. 283-285). For instance, Waldron’s position implies that a democratic majority’s decision to criminalize homosexuality must be treated as legitimate since this topic is one on which people disagree, and for Waldron there is no non-democratic way of settling which disagreements are reasonable and which are not. To me, this conclusion represents a reductio of Waldron’s proceduralism.

I wonder what the implications of David’s conception of democratic authority are for questions about the division of authority between institutions. Of course, it’s a philosophical framework for thinking about political authority, so it may not have direct implications, but if it does I’d be interested to hear what David or others think they are.

To answer Andrew’s question, my own view is that democratic majorities have the authority to decide issues where there is reasonable disagreement (not simply disagreement) about what justice permits or requires (I think the example Andrew cites is probably one of those). Since I think there can be lots of reasonable disagreement about justice, I’m happy to concede that the scope of legitimate authority for democratic majorities is pretty substantial. However, unlike Waldron, I don’t believe everything is up for grabs. Some things are not subject to reasonable disagreement: some proposals are clearly unjust, and it would be unreasonable to deny this. Policies, for example, which deny basic political, religious, or sexual rights to a certain class of citizens cannot be plausibly justified by reference to the values of freedom, equality, or fairness, and so the kind of political liberalism that I favour deems such policies to be illegitimate regardless of their democratic pedigree. Democratic majorities don’t have the moral authority to persecute people for their religious beliefs, or prevent consensual sexual acts between adults in private. I like what Rawls has to say about this (both in Theory and in PL). He says, for instance:

‘If the law actually voted is, so far as one can ascertain, within the range of those that could reasonably be favoured by rational legislators conscientiously trying to follow the principles of justice, then the decision of the majority is practically authoritative, though not definitive…these are not cases of pure procedural justice because the outcome does not literally define the right result. It is simply that those who disagree with the decision cannot convincingly establish their point within the framework of the public conception of justice.’ (TOJ Rev. ed., p. 318).

The key, however, is that not all laws fall within that reasonable range, and when they don’t, I think those laws have no authority even if they have been democratically selected.

To pick up on one point from Ben’s discussion – I follow Rawls’s view that justice establishes the fair terms of social cooperation between citizens conceived as free and equal, so there are, on this view, at least three values that justice incorporates. I’d also be interested to know what David’s take is regarding Ben’s contrast between (i) and (ii).

David hasn’t said too much about what democracy is, but from what he has said (things like it’s impossible for all to have equal power), I’ve been understanding him to mean something like the US political system - representatives, Supreme Court, etc.

Then there’s the question ‘what should we be deciding through this democratic process?’ It seems implausible to say we should be aiming only at rather than what’s best all things considered (e.g. including efficiency), but I suppose that will come down to how you conceive justice - whether it’s merely one value among many or whether it incorporates many other concerns like efficiency and freedom. In any case, I don’t think David’s committed to saying justice is all that matters; what we should do all things considered seems more plausible.

Personally, I’m attracted to a quite minimalistic view of justice (of the kind enforced by the constitution). I might then say the outcomes of a fair vote are just; but that’s because I think all citizens should have an equal say in these justice-neutral matters, so the appropriate model is a (quasi-)pure procedure rather than an imperfect one.

Thinking about it, I’m not sure how to interpret David (perhaps because I can’t remember earlier stages of the argument clearly enough). He focuses on primary bads so he could say either:

i) Avoiding primary bads (which would have to be a more expansive lsit than what he actually gives) exhausts justice, and then there is still lots of scope for decisions which are justice neutral but where people may have opposing preferences. or:

ii) Justice can be quite demanding, in the sense of regulating almost everything, but we settle for making sure we avoid primary bads, and hope the procedure fares well enough on the less urgent matters of justice beyond those.

i) is roughly my position, but I get the impression David would favour ii) (or something closer to it). This may not be too important, but it may show why we only need to approximate justice, well enough, because being near-just on the less important issues is close enough. If we hold the other view, that justice only concerns a few fundamentally important matters, then it’s obviously more important to get them right - and might that lend support to correctness theories?

I don’t think democracies should be deciding which policies are morally wrong or unjust (i.e. reasonably rejectable by someone). Those policies (at least the clearly unjust ones) should be beyond the pale in a well-functioning liberal democracy. Democracies don’t decide, for instance, whether or not persecuting a minority religion, or denying women the right to vote are reasonably rejectable rules. Those questions are already taken care of at a constitutional stage. Democracies, I think, are more plausibly seen as addressing the question: of the options that are not obviously unjust (i.e. those that don’t violate anyone’s basic rights or entitlements) which do we think will be best in terms of efficiency, or equality, or priority to the worst-off etc…?

I’m wondering how you (or David) would respond to what I think is a Waldronian point about the proper scope of democratic authority. I certainly hope that democracies will have correctly decided not to persecute religious minorities or to deny women the vote. But I also tend to think that the authority to decide these questions should rest with the people, at least in the final instance (as the authors of constitutional amendments, say). There is a correct answer about what the just policies are, in these cases, but if we disagree about what this answer is, the authority to decide the issue lies with the people. Suppose, for example, that the Canadian Supreme Court decides that the right to security of the person implies a right to purchase private health insurance for medical services covered under the public scheme. If we believe that this decision is unjust, we ought to contemplate using the notwithstanding clause in the Canadian constitution to invalidate this decision; we the citizens ought not simply defer to the courts on questions of principle, and focus on questions of mere policy. I’m exaggerating your point, a bit, because you talk about obviously unjust policies, and include values other than efficiency in the scope of democratic politics. But it still seems to me that there is a gap between the statements about what policies are (truly) just, and claims about who should decide, when we disagree about such matters.

(The actual case I’m referring to here was decided on Quebec Charter grounds, not s.7 of the Canadian Charter, but the issue is basically the same: http://scc.lexum.umontreal.ca/en/2005/2005scc35/2005scc35.html. And if the justice of this decision doesn’t seem questionable, you could substitute the court’s decision striking down limits on tobacco advertising, on grounds of free speech, or any other decision where one thinks the court has made an error, and invoking the notwithstanding clause would aid the cause of justice).