Law and Disagreement

When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent, and the limits of religious toleration? The most familiar answer is that these decisions should be made democratically, by majority voting among the people or their representatives. Often, however, this answer is qualified by adding providing that the majority decision does not violate individual rights. This book argues that the familiar answer is correct, but that the qualification about individual rights is incoherent. If rights are the very things we disagree about, then we are quarrelling precisely about what that qualification should amount to. At best, what it means is that disagreements about rights should be resolved by some other procedure, for example, by majority voting, not among the people or their representatives, but among judges in a court.