ABSTRACT
In discussions of judicial activism it is as important to understand the institutions that surround our courts as it is to understand the courts themselves and the nature of judicial reasoning. This is because accusations of activism often presuppose that a judge is doing something in law or politics that ought to be done by some other agency of government and, in many cases, the institutional differences between the two are supposed to explain why.1 When we are discussing judicial activism in modem constitutional law it is particularly important to understand legislatures - what they are, how they work, and what is the basis of their legitimacy - because the issue raised is often that something has been decided by the courts in a way that involves an inappropriate encroachment on the tasks of congress or parliament. For this reason, we need theories about legislatures and theories about courts. Fortunately, there is no shortage so , far as theories about courts are concerned. But there is very little available to us in the way of a philosophically adequate theory of legislatures.2 In this chapter, then, I will not say very much on the topic of adjudication (except for a few remarks about statutory interpretation at the very end). I am eager, instead, to take up the task of enhancing our theoretical understanding of legislatures and particularly (as my title indicates) our understanding of legislation by large representative assemblies.
