1. Aileen Kavanagh, “Participation and Judicial Review: A Reply to Jeremy Waldron” (2003) 22:5 Law & Phil 451 at 451 [Kavanagh, “Participation and Judicial Review”].

2. Waldron, Jeremy, “Compared to What? Judicial Activism and New Zealand’s Parliament” (2005) NZLJ 441 at 442.Google Scholar

3. See, for example, Waldron, Jeremy, “A Rights-Based Critique of Constitutional Rights” (1993) 13:1CrossRefGoogle Scholar Oxford J Legal Stud 18; Jeremy Waldron, “Participation: The Right of Rights” (1998) 98 Proceedings of the Royal Aristotelian Society 307; Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) [Waldron, Law and Disagreement]; Jeremy Waldron, The Dignity of Legislation (Cambridge University Press, 1999); Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115:6 Yale LJ 1346 [Waldron, “Core of the Case”].

4. Goldsworthy, Jeffrey, “Legislation, Interpretation, and Judicial Review” (2001) 51:1 UTLJ 75 at 86.CrossRefGoogle Scholar

5. Ibid. For examples of the plethora of critical engagements with Waldron’s work, see Joseph, Raz, “Disagreement in Politics” (1998) 43 Am J Juris 25 [Raz, “Disagreement”];Google Scholar Christiano, Thomas, “Waldron on Law and Disagreement” (2000) 19:4CrossRefGoogle Scholar Law & Phil 513; David Estlund, “Jeremy Waldron on Law and Disagreement” (2000) 99:1 Philosophical Studies 111; Kavanagh, “Participation and Judicial Review”, supra note 1; David Enoch, “Taking Disagreement Seriously: On Jeremy Waldron’s Law and Disagreement” (2006) 39:3 Israel LR 22; Richard Henry Fallon Jr, “The Core of an Uneasy Case For Judicial Review” (2008) 121:7 Harv L Rev 1693.

6. That is, to a system allowing the judicial strike-down of primary legislation enacted by a representative legislature on the basis of it being deemed incompatible with an entrenched Constitution or Bill of Rights. In strong-form systems, the only recourse for elected representatives—and, indirectly, the people—involves a departure from the ordinary majoritarian process, through a constitutional amendment procedure. See further, Tushnet, Mark, “Alternative Forms of Judicial Review” (2003) 101:8 Mich L Rev 2781.CrossRefGoogle Scholar

7. See generally, Kavanagh, Aileen, Constitutional Review Under the UK Human Rights Act (Cambridge University Press, 2009)Google Scholar [Kavanagh, UK Human Rights Act]; Tom Campbell, Keith D Ewing & Adam Tomkins, eds, The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, 2011).

8. Conservative plans to replace the HRA with a British Bill of Rights and Responsibilities were set out in the run-up to the 2015 General Election (see Grayling, Chris, “Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Human Rights Laws” (2014 October), The Guardian (newspaper),Google Scholar online: https://www.theguardian.com/politics/interactive/2014/oct/03/conservatives-human-rights-act-full-document). Despite the Conservatives gaining a majority in that election, we are yet to see these proposals taken up, and they are currently on hold in the midst of Brexit. On the Bill of Rights debate see Amos, Merris, “Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?” (2009) 72:6 Mod L Rev 883;CrossRefGoogle Scholar Fenwick, Helen, “The Human Rights Act or a British Bill of Rights: creating a down-grading recalibration of rights against the counter-terror backdrop?” (2012) Public Law 468.Google Scholar

9. See, for example, Allan, James, “An Unashamed Majoritarian” (2004) 27 Dal L J 537; WJ Waluchow, A Common Law Theory of Judicial Review: The Living Tree (Cambridge University Press, 2007).Google Scholar More generally, see Hiebert, Janet L, “Parliamentary Bills of Rights: An Alternative Model?” (2006) 69:1 Mod L Rev 7; Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013).Google ScholarPubMed

10. For this concern, see Tushnet, Mark, “New Forms of Judicial Review and the Persistence of Rights and Democracy-Based Worries” (2003) 38 Wake Forest L Rev 813.Google Scholar Section 33(1) of the Canadian Charter of Rights and Freedoms provides that “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15” (Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c).

11. See, for example, the special edition of the UQLJ (2018) 36:2 edited by Graham Gee & Richard Ekins, dedicated to the rise in judicial power.

12. For example, the Charter of Human Rights and Responsibilities Act 2006 (Vic). On ‘statutory’, or ‘Parliamentary Bills of Rights’, see Hiebert, supra note 9.

13. The announcement can be found here: Andrew Little & David Parker, “Government to provide greater protection of rights under the NZ Bill of Rights Act 1990” (26 February 2018), Beehive—The official website of the New Zealand Government (website), online: https://www.beehive.govt.nz/release/government-provide-greater-protection-rights-under-nz-bill-rights-act-1990.

14. Whittington, Keith E, “In Defense of Legislatures”, Book Review of Law and Disagreement and The Dignity of Legislation by Jeremy Waldron, (2000) 28:5 Political Theory 690 at 690.Google Scholar

15. Allan, James, “Jeremy Waldron and the Philosopher’s Stone” (2008) 45 San Diego L Rev 133 at 134 [Allan, “Philosopher’s Stone”].Google Scholar

16. Ibid at 136.

17. Because, of course, not only could the philosopher’s stone be used to create the Elixir of Life, but it could transform any metal into pure gold.

18. Allan, “Philosopher’s Stone”, supra note 15 at 134. No doubt one can think of examples of their own. The list given in the text is Allan’s (apart from Dworkin, whose staying power he expresses some doubt over).

19. Ibid at 134-35.

20. Waldron, Jeremy, The Harm in Hate Speech (Harvard University Press, 2012).CrossRefGoogle Scholar

21. Waldron, Jeremy, Torture, Terror, and Trade-Offs: Philosophy for the White House (Oxford University Press, 2010)Google Scholar [Waldron, Torture]. For discussion of Waldron’s influence in political theory and jurisprudence more generally, see Richard Stacey, “Democratic Jurisprudence and Judicial Review: Waldron’s Contribution to Political Positivism” (2010) 30:4 Oxford J Legal Stud 749.

22. This argument first appeared in Waldron, Jeremy, “The Irrelevance of Moral Objectivity” in George, Robert P, ed, Natural Law Theory: Contemporary Essays (Oxford University Press, 1992) 158Google Scholar [Waldron, “Irrelevance of Moral Objectivity”], and largely repeated in later work (see Jeremy Waldron, “Moral Truth and Judicial Review” (1998) 43 Am J Juris 75 [Waldron, “Moral Truth”]; Waldron, Law and Disagreement, supra note 3 at ch 8).

23. Waldron, Law and Disagreement, supra note 3 at 164.

24. Ibid (footnote omitted). There are numerous ways of putting the ‘realist’ position—here Waldron relies on the general formulation put by Ralph CS Walker, The Coherence Theory of Truth: Realism, Anti-Realism, Idealism (Routledge, 1989) at 3.

25. Ibid.

26. Ibid at 165.

27. Ibid [italics removed].

28. James Allan, “A Doubter’s Guide to Law and Natural Rights” (1998) 28 VUWLR 243 at 245 [Allan, “Doubter’s Guide”].

29. Allan, James, “Internal and Engaged or External and Detached?” (1999) 12:1 Can JL & Jur 5 at 11.CrossRefGoogle Scholar

30. Allan, “Doubter’s Guide”, supra note 28 at 246. See also James Allan, Sympathy and Antipathy: Essays Legal and Political (Ashgate Pub Ltd, 2002) at 89-90.

31. And actually, the path which leads me to my moral scepticism also leads me to harbour some strong doubts about the idea of ‘matters of fact’ more generally, such that I am sceptical of Allan’s. That is a big claim, however, which I cannot discuss any further here. Moral scepticism is big enough for this article. For a fearless expounding of a comprehensive anti-foundationalism extending beyond moral philosophy and into other pursuits like science, mathematics and general epistemology, see Rorty, Richard, Philosophy and the Mirror of Nature (Princeton University Press, 1980) (especially Part II).Google Scholar

32. Rorty, Richard, Contingency, Irony, and Solidarity (Cambridge University Press, 1989) at 21 [Rorty, Contingency].CrossRefGoogle Scholar

33. Ibid at 6.

34. Ibid at 5.

35. Thomas V Upton, “Rorty’s Epistemological Nihilism” (1987) 3:2 The Personalist Forum 141 at 149.

36. Rorty, Contingency, supra note 32 at 75.

37. Rorty, Richard, Consequences of Pragmatism (Harvester Press, 1982) at xxxvii [Rorty, Consequences].Google Scholar

38. Rorty, Richard, Philosophy and Social Hope (Penguin Books, 1999) at 49 [Rorty, Social Hope].Google Scholar

39. Ibid at 54.

40. Ludwig, Wittgenstein, Philosophical Investigations (Macmillan, 1953) at 18.Google Scholar

41. Rorty, Consequences, supra note 37 at xix.

42. Rorty, Social Hope, supra note 38 at xvii.

43. Ibid at 49.

44. Rorty, Consequences, supra note 37 at xix.

45. Platts, Mark, “Moral Reality” in Geoffrey Sayre-McCord, ed, Essays on Moral Realism (Cornell University Press, 1988) at 282.Google Scholar

46. Ibid at 285.

47. Arthur Allen Leff, “Unspeakable Ethics, Unnatural Law” (1979) 6 Duke LJ 1229 at 1249.

48. Ibid.

49. Moore, Michael S, “Moral Reality Revisited” (1992) 90:8 Mich L Rev 2424 at 2449 n 79.CrossRefGoogle Scholar

50. Leff, Susan Z, “Some Notes About Art’s Dictionary” (1985) 94:8 Yale LJ 1850 at 1850.CrossRefGoogle Scholar

51. See further Phillip E Johnson, “Nihilism and the End of Law” (1993) 31 First Things 19. The point in the text is that Leff apparently intended to leave the worlds of legal and moral philosophy behind for good. However, as it happened, Leff’s career was irreversibly cut short due to his untimely death from cancer in 1981. What work might or might not have followed is therefore an unfortunate matter of speculation.

52. Gander, Eric M, The Last Conceptual Revolution: A Critique of Richard Rorty’s Political Philosophy (State University of New York Press, 1999) at 51.Google Scholar

53. Walter, Sinnott-Armstrong, Moral Skepticisms (Oxford University Press, 2006) at 13.Google Scholar

54. Strauss, Leo, Natural Right and History (University of Chicago Press, 1953) at 3.Google Scholar

55. Dworkin, Ronald, “Objectivity and Truth: You’d Better Believe It” (1996) 25:2 Philosophy and Public Affairs 87 at 139.CrossRefGoogle Scholar

56. The plethora of religious wars and tensions throughout the world, historically and today, for example: the Christian crusades; Catholic-Protestant violence; Sunnis and Shia; Jews and Muslims in Israel and Palestine to name but a few. Such worldviews, with their attachment to the idea of independently-given unquestionable rules of conduct and the consequent moral certainty and rectitude of their actions, are clearly far from the idea of scepticism. Think also of the acts committed by various totalitarian regimes in the 20th Century; these were not obviously premised on the sceptical idea that there are no objectively right answers or natural right—quite the opposite.

57. Leff, supra note 47 at 1235-37.

58. Ibid at 1231.

59. Waldron, “Moral Truth”, supra note 22 at 77. See also Waldron, “Irrelevance of Moral Objectivity”, supra note 22, and most recently Waldron, Law and Disagreement, supra note 3 at ch 8. There are slight differences and nuances in the way this argument is presented within these, but these need not concern us here; the fundamental thrust of his argument—that it is disagreement and arbitrariness that are the real concerns—remains the same. What follows concerning the technical details of Waldron’s argument will draw largely upon the relevant chapter of Law and Disagreement, as the more recent formulation.

60. Waldron, “Moral Truth”, supra note 22 at 75.

61. Waldron, Law and Disagreement, supra note 3 at ch 8.

62. Ibid at 170.

63. Ibid.

64. Ibid at 186.

65. Ibid at 184.

66. Ibid at 167-68.

67. Ibid at 184.

68. Ibid at 168 [emphasis removed].

69. Ibid.

70. See supra note 3 for examples.

71. Waldron, Law and Disagreement, supra note 3 at 184.

72. Ibid.

73. Ibid.

74. Ibid.

75. This is a point which could equally be put the other way around: why should the views of legislators prevail if they cannot be established as epistemologically superior? In fact, it is my view—based on my sceptical philosophy—that no one’s moral beliefs can be established as epistemologically superior, so why should anyone’s prevail?

76. Dale Smith, “The Use of Meta-Ethics in Adjudication” (2003) 23:1 Oxford J Legal Stud 25 at 39.

77. Waldron, Law and Disagreement, supra note 3 at 179.

78. Smith, supra note 76 at 39 [emphasis added].

79. Waldron, Law and Disagreement, supra note 3 at 180 [emphasis added].

80. Ibid at 179.

81. Ibid at 180 [emphases added]. See also 186 (no beliefs about moral facts “can be certified as superior or naturally prevalent on any credentials other than the fact that some people find them congenial”).

82. Tasioulas, John, “The Legal Relevance of Ethical Objectivity” (2002) 47 Am J Juris 211 at 239.CrossRefGoogle Scholar

83. Smith, supra note 76 at 39.

84. Waldron, Law and Disagreement, supra note 3 at 179.

85. Ibid at 164 [footnote omitted, and emphasis added].

86. The author is grateful to the anonymous reviewer for pushing this possibility. Others have taken issue with this possible interpretation of Waldron’s claim on the basis that, as they see it, only the most implausible versions of realism separate meta-ethics and epistemology in such an extreme way. As Smith puts it, most realists “do not simply assert that a form of [realism] is correct”, but also “make specific claims about the nature of objective moral truth” including “at least the outlines of an epistemology” (Smith, supra note 76 at 40). See also Tasioulas, supra note 82 at 219. If correct, these criticisms would not refute Waldron’s argument however; he can continue to insist that when he attacks their epistemology he leaves their metaphysical claim, and therefore their realism, standing. At most, they would show his irrelevance argument to be itself largely irrelevant to the way realism actually looks. But on his own terms, Waldron’s claim would stand. The difficulty I discuss below concerns how this interpretation would fit with what Waldron himself has previously said on the subject of realism and anti-realism in his earlier work.

87. A final way out would be to interpret Waldron’s key premise in light of his general concern with disagreement in politics. On this interpretation, Waldron’s premise regarding the absence of any account of how to tell accurate from inaccurate moral beliefs would be read as the absence of any successful account, where ‘successful’ means ‘capable of resolving disagreement’. This would explain why Waldron sees it as significant that, unlike in science, there is nothing in the realm of moral theory that “even begins to connect the idea of there being a fact of the matter with the idea of there being some way to proceed when people disagree” (Waldron, Law and Disagreement, supra note 3 at 178). However, this would require Waldron to rely on an account of political justification that is straightforwardly self-defeating; if a claim can be dismissed merely because others are not convinced to accept it, then that claim itself can be dismissed, because there are plenty who object strongly to such a conception of valid justification (see Smith, supra note 76 at 44. The realist instrumentalists considered below in section 5 to name but a few). On this ground, Waldron’s irrelevance case would fall quite quickly into incoherence. As such it is even less plausible than the interpretation considered above. For this reason, although it is certainly a possible interpretation of Waldron’s key premise, it is not one that will be pursued further. In any case, the number of interpretations his irrelevance case is open to is itself problematic, and enough to support the current argument.

88. Allan, “Philosopher’s Stone”, supra note 15 at 141 n 30. See also 142 n 33 (“Waldron sees moral evaluations in terms of sentiments, not in terms of claimed true beliefs”).

89. Kavanagh, “Participation and Judicial Review”, supra note 1 at 460 n 30.

90. Ibid.

91. For another brief look at Waldron’s stance—again, confined to a footnote—see Enoch, supra note 5 at 30 n 20 (suggesting that “at times Waldron sounds like an antirealist”). Enoch’s treatment is slightly more promising in that he recognises that “much more needs to be said on the relation between metaethics and political philosophy in general, and in Waldron’s political philosophy in particular”. However, as far as I am aware, he has not himself returned to the subject. The analysis presented here is a much-needed contribution to that task.

92. Waldron, “Moral Truth”, supra note 22. This article also contains a version of Waldron’s irrelevance case.

93. Ibid at 75 n 1.

94. Ibid at 77 [emphasis added].

95. Ibid at 78 [emphases added]. Note also the precursor to this quote: “Some philosophers (me, for example) find first that emotivist or prescriptivist patterns of analysis provide what appear to be the best accounts available of what is going on when moral judgments are made and thought about and followed.”

96. Ibid at 78-79 [emphasis added].

97. Waldron, Law and Disagreement, supra note 3 at 164 [emphasis added].

98. Ibid.

99. Ibid at 176 [emphases added].

100. Waldron, “Core of the Case”, supra note 3 at 1373.

101. As discussed below, Waldron dismisses these approaches on the grounds that they turn out to be question-begging in circumstances of disagreement. He does not reject the possibility that one side to this disagreement might actually have ‘moral truth’ on their side.

102. Hutchinson, Allan C, “A ‘Hard Core’ Case Against Judicial Review” (2008) 121 Harv L Rev Forum 57 at 58.Google Scholar

103. See above, section 2.1.

104. Waldron, Law and Disagreement, supra note 3 at 252.

105. Hutchinson, supra note 102 at 58.

106. Waldron, Torture, supra note 21 at 269.

107. Ibid at 261.

108. Ibid at 269.

109. Samuel Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review” (1990) 9:4 Law & Phil 327. Instrumentalist approaches to constitutional authority are discussed in the next section below.

110. Jeremy Waldron, “Freeman’s Defense of Judicial Review” (1994) 13:1 Law & Phil 27 at 36 [Waldron, “Freeman’s Defense”].

111. Ibid.

112. Waldron, “Moral Truth”, supra note 22 at 78 [emphasis added].

113. Waldron, Law and Disagreement, supra note 3 at 176 [emphasis added].

114. Ibid at 225 (‘rights themselves are morally complicated’) and 226 (‘In the area of rights … it is precisely questions of…moral priority that are at stake’).

115. Ibid at 111 n 62. See Enoch, supra note 5 at 30 n 20.

116. Waldron, “Moral Truth”, supra note 22 at 75.

117. Ibid at 78 (‘Some philosophers (me, for example) find first that emotivist or prescriptivist patterns of analysis provide what appear to be the best accounts available of what is going on when moral judgments are made and thought about and followed’).

118. Kavanagh, “Participation and Judicial Review”, supra note 1 at 460 n 30. The quote is from Waldron, Law and Disagreement, supra note 3 at 105.

119. Waldron, Torture, supra note 21 at 4.

120. Ibid at 261. This is despite his occasional protests that he does “not purport to say what a Christian must think on this matter”, or has “no right to insist” on what the Christian position should actually be (269).

121. Ibid at 4.

122. See also ibid at 10 (contrasting his view on the constant moral wrongness of torture with those who disagree with his absolutist stance: “I don’t really think philosophers like Elshtain believe that there was a change in moral reality after September 11…”).

123. Aileen Kavanagh, “Constitutional Review, the Courts, and Democratic Scepticism” (2009) 62:1 Current Leg Probs 102 at 113 [Kavanagh, “Constitutional Review”]. Kavanagh’s use of the “instrumental condition of good government” draws on Joseph Raz, Ethics in the Public Domain (Oxford University Press, 1994) at 117.

124. Kavanagh, “Participation and Judicial Review”, supra note 1 at 460. See also Kavanagh, “Constitutional Review”, supra note 123 at 113.

125. Kavanagh, “Constitutional Review”, supra note 123 at 125.

126. Rawls, John, A Theory of Justice, revised ed (Harvard University Press, 1999) at 202.Google Scholar

127. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press, 1996) at 34.

128. Raz, “Disagreement”, supra note 5 at 45.

129. Alexander, Larry, “Is Judicial Review Democratic? A Comment on Harel” (2003) 22:3/4 Law & Phil 277 at 283.Google Scholar

130. Kavanagh, “Participation and Judicial Review”, supra note 1 at 460.

131. Ibid at 461.

132. Ibid at 460.

133. Ibid at 462.

134. Ibid.

135. Ibid.

136. Ibid.

137. Ibid at 460 n 30.

138. Waldron, Law and Disagreement, supra note 3 at 252 ff.

139. Ibid at 252.

140. Ibid.

141. Waldron, “Core of the Case”, supra note 3 at 1373.

142. Waldron, Law and Disagreement, supra note 3 at 253.

143. Ibid.

144. Ibid.

145. Alexander, supra note 129 at 279.

146. Campbell, Tom, “Human Rights: A Culture of Controversy” (1999) 26:1 JL & Soc’y 6 at 13-14.CrossRefGoogle Scholar

147. Kavanagh, “Constitutional Review”, supra note 123 at 118.

148. Waldron, Law and Disagreement, supra note 3 at 253.

149. Kavanagh, “Participation and Judicial Review”, supra note 1 at 466.

150. Kavanagh, UK Human Rights Act, supra note 7 at 345.

151. Ibid at 347.

152. Raz, “Disagreement”, supra note 5 at 46.

153. Ibid. As another example see Michael J Perry, The Constitution, The Courts, and Human Rights (Yale University Press, 1982) at 102 (“As a matter of comparative institutional competence, the politically insulated…judiciary is more likely, when the human rights issue is a deeply controversial one, to move us in the direction of a right answer (assuming there is such a thing) than is the political process left to its own devices, which tends to resolve such issues by reflexive, mechanical reference to established moral conventions”).

154. Waldron, Law and Disagreement, supra note 3 at 253.

155. Ibid at 254.

156. Ibid.

157. Waldron, “Freeman’s Defense”, supra note 110 at 36.

158. Cécile Fabre, “The Dignity of Rights”, Book Review of Law and Disagreement by Jeremy Waldron, (2000) 20:2 Oxford J Legal Stud 271 at 273.

159. Ibid at 274.

160. Ibid at 282.

161. Alexander, supra note 129 at 281.

162. Raz, “Disagreement”, supra note 5 at 47.

163. Ibid.

164. Waldron, Law and Disagreement, supra note 3 at 223.

165. As the foundation of Waldron’s constitutionalist position, this argument can be found throughout his work. But see, for example, ibid at ch 11.

166. See Waldron, supra note 3, especially “The Right of Rights” and “A Rights-Based Critique”.

167. Raz, “Disagreement”, supra note 5 at 43. See also Alexander, supra note 118 at 281 (“respect cannot be demanded for erroneous moral judgments in the form of acceding to them”).

168. Richard Arneson, “Democracy is not Intrinsically Just” in Keith Dowding, Robert E Goodin & Carole Pateman, eds, Justice and Democracy: Essays for Brian Barry (Cambridge University Press, 2004) 40 at 52.

169. Enoch, supra note 5 at 28.

170. Ibid.

171. Waldron, Law and Disagreement, supra note 3 at 252.

172. In fact, the importance Waldron attaches to rights, and to getting matters ‘right’ here does lead him to some perhaps surprising conclusions: causing him to abandon, or at the very least relax, his anti-judicial review and pro-majoritarian case at times. This is a plausible reading of the fact that his ‘core case’ against judicial review is dependent on a number of assumptions, such as that there is a strong commitment to the idea of individual rights in society. The idea is that in places where this assumption does not hold, Waldron is willing to contemplate the tempering of democratic majoritarian decision-making. See Waldron, “Core of the Case”, supra note 3, especially at 1364-66, and 1401-06.

173. Kavanagh, “Participation and Judicial Review”, supra note 1 at 460 [emphasis added].

174. Fabre, supra note 158 at 282.

175. Raz, “Disagreement”, supra note 5 at 46.