Legislation, Authority, and Voting
![handle is hein.journals/glj84 and id is 2205 raw text is: Legislation, Authority, and Voting
JEREMY WALDRON*
I. Two WORRIES ABOUT LEGISLATION
Many jurists are uncomfortable about regarding the decisions of legislatures
as sources of law, even though they obviously are sources of law.' One type of
discomfort is a worry about legislators' lack of professional legal knowledge.
Statutes become part of the law by being integrated into the wider body of
current legal materials. A bill which looks fine as a discrete political statement
could wreak havoc in the body of law that must accommodate it after its
enactment if the drafters have not paid enough attention to the existing legal
materials with which it must now co-exist. But legislators are often quite
ignorant of the legal corpus to which they are purporting to make an addition or
emendation.2 The worry is an ancient one: Blackstone observed in 1765 that a
long course of reading and study is required to make one a professor of laws,
but every man of superior fortune thinks himself born a legislator.,3 As a
result, [t]he common law of England has fared like other venerable edifices of
antiquity, which rash and inexperienced workmen have ventured to new-dress
and refine, with all the rage of modern improvement.-4
* B.A. 1974 and LL.B. 1978, University of Otago, New Zealand; M.A. 1980 and D.Phil. 1986,
University of Oxford. Laurence S. Rockefeller University Professor of Politics, Princeton University.
An earlier version of this article was delivered as the Donald Brown Memorial Lecture at the
University of Vermont, October 1995. I am grateful to Arthur Kuflik, Patrick Neal, and particularly
Alan Wertheimer for their comments on that occasion. A later version was presented at the Druim Moir
Seminars in Analytical Legal Philosophy in Philadelphia in December 1995. For criticisms and
suggestions on that occasion, I am grateful to Larry Alexander, Scott Brewer, Jules Coleman, Claire
Finkelstein, Leslie Green, Heidi Hurd, Andrei Marmor, Michael Moore, Stephen Morse, Liam Murphy,
James Nickel, Stephen Perry, Gerald Postema, Joseph Raz, Fred Schauer, Emily Sherwin, and Alan
Wertheimer. I would like to express particular thanks to David Lieberman and Carol Sanger for several
helpful discussions of these ideas, and to the Dean and Faculty of Columbia Law School for their
hospitality during the period that this piece was being written.
1. Throughout this article, I shall use the phrase source of law in Gray's sense. JOHN C. GRAY,
THE NATURE AND SOURCES OF THE LAW 84-85, 123-25, 152 (2d ed. 1972). This is not quite the same
usage as source of law in Joseph Raz's Sources Thesis: A law has a source if its contents and
existence can be determined without using moral arguments .... The sources of a law are those facts
by virtue of which it is valid and which identify its content. JOSEPH RAz, THE AUTHORrrY OF LAW
47-48 (1979) [hereinafter RAz, THE AUTHORITY OF LAW]; see also JOSEPH RAZ, THE CONCEPT OF A
LEGAL SYSTEM 210-16 (2d ed. 1980) [hereinafter RAz, THE CONCERT OF A LEGAL SYSTEM].
2. Although the task of maintaining coherence in the overall body of the laws is usually assigned to
judges in modem jurisprudence, Ronald Dworkin insists that it is also a duty incumbent on legislators:
there is, he says, a principle of integrity in legislation, which asks those who create law by legislation
to keep that law coherent in principle, i.e., to try to make the total set of laws morally coherent.
RONALD DWORKIN, LAW'S EMPIRE 167, 176 (1986).
3. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *9-10 (emphasis added).
4. Id. Indeed it was the point of the Commentaries to address this situation. Though they were
delivered as lectures at Oxford, they were not intended as a contribution to the education of lawyers;
instead they were aimed at the sort of gentlemen in the audience who might be expected to seek
positions as legislators, five or ten years' hence, in the House of Commons.
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Legislation, Authority, and Voting
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