A Matter of Dispute: Morality, Democracy, and Law
Christopher J. Peters
Abstract
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedu ... More
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.
Keywords:
legal authority,
democratic legitimacy,
adversary adjudication,
dispute resolution,
constitutionalism,
constitutional law,
judicial review,
countermajoritarian difficulty
Bibliographic Information
| Print publication date: 2011 |
Print ISBN-13: 9780195387223 |
| Published to Oxford Scholarship Online: May 2011 |
DOI:10.1093/acprof:oso/9780195387223.001.0001 |
