Document Type

Article

Publication Date

4-12-2008

Abstract

This talk, prepared for delivery at the 2008 Wayne State University

Humanities Center Faculty Fellows Conference, explores the relationship between

popular sovereignty and legality. Legality – in particular, legal rights entrenched in a

constitution – often is thought to conflict with popular sovereignty in a way that

mirrors the supposed tension between individual autonomy and legal authority.

Both perceived conflicts, however, rest in part upon the problematic idea that the

law knows better than legal subjects what to do in particular cases. In fact, legal

authority is best justified as a means of resolving disputes about what to do in

particular cases. A dispute-resolution account of law shifts the focus away from the

supposed conflict between law on the one hand and individual autonomy or popular

sovereignty on the other, and toward the function of law as a means of settling

conflict about, among other things, what autonomy and popular sovereignty entail.

In particular, the dispute-resolution account suggests that judicially enforced

constitutional rights might serve as a relatively neutral means of settling

disagreements about the relationship between political majorities and political

minorities.

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Law Commons

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