I

There are many of us, and we disagree about justice. How we think about such disagreement will determine how we think about politics. And since law is the offspring of politics, how we think about disagreement will determine in some measure how we think about positive law.

Here is an example. The members of a community may be divided on the question of whether a testator should have the Lear-like power to exclude a surviving child from the enjoyment of his estate. Some citizens, celebrating test amentary freedom, say he should: it is after all his property, and it should pass according to his wishes. Others say he should not: once he is dead, the importance of respecting his preference diminishes in comparison with the importance of securing the welfare of his dependents. The issue is a political one, not simply because the citizens disagree, for we disagree about all sorts of things – the virtues of the modern novel, the causes of the Punic Wars – on which no political decision is necessary. The issue of test amentary power is political because those who disagree on the merits agree nevertheless that the community needs some determinate resolution of the issue. Test amentary freedom is not something on which we can agree to differ. Or, rather, we can agree to differ in our opinion, but it is necessary all the same that we arrive at some position on the matter to be upheld as the community's position on the rights and powers of property-owners.