Building the dignified authority of legislation: towards the office of dignified legislator, process and representation
Clark, M, Building the dignified authority of legislation: towards the office of dignified legislator, process and representation, Australian Journal of Legal Philosophy ISSN 1440-4982 (2015) [Non Refereed Article]
More than a decade ago, Jeremy Waldron presented an attractive account of how legislation presents itself as authoritative, and why citizens regard its claims as legitimate. Much critical discussion since focused on his criticisms of theories of judicial review of rights. That is somewhat ironic: an important aim of his project was to challenge legal theory’s preoccupation with idealised courts and judicial reasoning, and to reinstate legislatures as serious fora for debating the good that are worthy of philosophical examination. Although many commentators emphatically agree with Waldron’s insistence that legislatures deserve more serious philosophical study, only a few have sought to engage with his account of legislatures without wading substantively into the courts/legislatures rights debate. In particular, Waldron’s arguments about the authority of legislation remain under-examined. This paper contributes to redressing that neglect by developing Waldron’s philosophy of legislation. I argue that Waldron’s focus on procedure is insufficient to ground the dignified authority of law. What is also needed is an account of the office of legislator attentive to process over mere procedure; a set of prudential expectations about care for legislative process, debate and representativeness that is problematically absent in Waldron’s account.
Non Refereed Article
legislatures, office,representation, Jeremy Waldron