Thanks a bundle for the advice. I have only included Hayek in a side-argument about the loss of data in an increasingly command economy. From that, I am then trying to work in (what I think is analogous) is Waldon’s fear that the more final decision-making power the courts take, the less there is for polity. The impact on the heavily judicially reviewed is similar to the polity that is heavily taxed and centrally-planned – learned helplessness, inefficiency, poverty, and misery.

Cheery huh? .

Remember that classical liberals/libertarians are often suspicious of majoritarian impulses, and so spend a great deal of time trying to confine at least some aspects of democracy. Someone like Nozick expects not only the constitution but the whole state apparat to be facially neutral; Hayek is a bit more relaxed, but expects a neutral constitution to reign in the contested policy realm of the the legislature. Rawls is similar to Hayek on this point, too.

That said, Hayek’s particular problem with Bills of Rights — as opposed to Constitutions and judicial review — is outlined on p162ff of Constitution of Liberty (Ch12 again, in the Routledge edition).

His opposition to judicial review is based on the idea that it is anti-democratic, and that if the people are to elect the government, then they should not be thwarted by the courts. That said, he has been an outspoken opponent of torture (so he’s probably on the SCOTUS’ side on that particular debate). He’s debated John Yoo — an influential contemporary Schmittian — on the torture issue (I think the debate is online somewhere, too).

I discussed the problem of democratic deficit in my big abortion post. Roe v Wade usurped the role of the legislature, and in many ways made the abortion debate far more bitter and divisive in the US than elsewhere, where the issue was resolved by parliament. The usurpation can go the other way politically, too – Bush v Gore also amounted to something of a usurpation, and in terms of justice (but not, obviously, efficiency), the election should probably have been held over again.

Traditionally, the UK has not experienced ‘judicial review’ in the American sense, due to the doctrine of parliamentary supremacy. That said, if you look up the two Factortame decisions, you’ll see the HofL ruling that EU law is superior to municipal law in areas where it is competent. Even so, the courts are supposed to issue ‘certificates of incompatibility’ and bunt the law back to parliament. They can’t do the Australian and American thing and simply strike down the law (the SCOTUS often adds detailed suggestions as to how to go about doing some redrafting to make the law constitutional).

I have just discovered Jeremy Waldron, and am getting a real frssion reading him. Is he any good? Human Rights as “Nonsense Upon Stilts” is priceless, but SOOOOO true!

Hey I can live with that.

I mean when I say that religion precipitates hatred, bigotry and medieval torture down on everyone it’s not defamatory.

Shame on you.

Any criticism of the UN is the same as blatant support for bigotrty and hatred and medieval torture. The UN can and will make all the necessary motions to the sub-committees for the estbalishment of protocols outlining the speaking terms negotiating the working paper to form an associated panel that will outline the pertinent issues involved in, um, what were we talking about again.

Anyway. Human rights, the UN. What’s wrong with that Colonle Quaddafi heading it up. He always been big on human rights don’t you know.