Democratic Jurisprudence and Judicial Review: Waldron’s Contribution to Political Positivism

Link

This article engages legal positivism conceived of as a political project rather than as a descriptive account of law. Jeremy Waldron’s ‘democratic jurisprudence’ represents such a politicized legal positivism—a normative argument for legal positivism rather than a non-normative claim that legal positivism is true. Unsurprisingly, the essential institutional elements of this democratic jurisprudence turn out to be the familiar features of classical legal positivism, and the case Waldron makes against judicial review grows out of his overarching political position. But, consequently, if there are reasons to doubt the strength of Waldron’s case against judicial review, there are surely reasons to doubt the normative bases of his case for positivism, and in turn, descriptive or conceptual positivism more generally. This article investigates this claim, noting that Waldron’s political case for positivism is based on Kantian notions about moral autonomy given circumstances of moral disagreement, but that Waldron’s conclusions about the role of judges undermine both these Kantian foundations and the aims of democratic jurisprudence. While Waldron’s arguments revive a tradition of political positivism that goes back to Bentham, engagement with those arguments suggests that legal positivism ultimately must embrace a radical democratic form of anti-constitutionalism.

Blog de derecho penal

Recomiendo ampliamente a juristas y abogados interesados en Derecho penal este blog Trazos de aprendizaje y de experiencia .

Slow Dance

John Coltrane with the Red Garland Trio, tercer album de John Coltrane publicado en 1957.

Para que no se me olvide

Acting Out

On the abuse of the phrase “activist judge”
Pamela S. Karlan

Ten Years After Bush v. Gore

Pamela S. Karlan