Politics, Philosophy & Economics, Volume 21, Issue 2, Page 97-121, May 2022. Republicans hold that people are unfree if they are dominated, that is, if others have an insufficiently constrained ability to frustrate their choices. Since legislation can frustrate individuals’ choices, republicans believe that the design of legislative institutions has consequences for individual freedom. Some have argued that if legislative institutions are democratic, then they need not be sources of domination at all. We argue this view is incorrect: the (...) introduction of legislative authority, even if democratically organized, always creates a new site of domination. However, republicans can defend democratic procedures as the best means of minimizing the degree to which citizens are dominated, subject to the constraint of equalizing everyone’s freedom. We formulate and prove this claim within a simple model of legislative authority and domination. (shrink)

In this paper, I argue that on an equality-based theory of democracy's value, randomly selecting legislators is more democratic than electing them. In sections 1 and 2, I describe how a legislature composed of randomly selected legislators might operate and what an equality-based theory of democracy's value consists in. In section 3, I evaluate arguments made in support of election-based democracy by democratic theorists and demonstrate why these arguments fail on their own terms. In section 4, I argue (...) that when compared to electing legislators, randomly selecting legislators better answers to four democratic ideals embedded in equality-based theories of democracy's value. (shrink)

This article seeks to contribute to the debate on how political representation can promote democracy by analysing the Chamber in the Square, which is a component of legislative theatre. A set of techniques devised to democratise representative governments, legislative theatre was created by Augusto Boal when he was elected a political representative in 1993. After briefly reviewing Nadia Urbinati’s understanding of democratic representation as a diarchy of will and judgement, I partially endorse Hélène Landemore’s criticism and contend that if (...) representation is to be democratic, citizens’ exchange of opinions in the public sphere should be invested with the power not only to judge, but also to decide political affairs. By opening up a space where the represented can judge, decide, and contest the general terms of the bills representatives present in the assembly, the Chamber in the Square harnesses political representation to democracy. (shrink)

As developed by Sabel, Dorf and Cohen, and John Dewey before them, democratic experimentalism is based on the premise that current democratic practices are no longer able to deal with central and pressing social and political problems. Beginning with the criticism of democracy as command and control, Dorf and Sabel show how current democratic practices are part of the problem rather than the solution. Even as democratic experimentalists have successfully explored democracy beyond the state in the (...) European Union, I argue that they have not fully transnationalized democracy or fully appreciated “the new circumstances of politics.” With the emergence of pervasive forms of interdependence, Rousseau’s conception of democracy as self legislation is no longer adequate, despite its cogent normative assumptions. Instead, the new transnational circumstances of justice suggest a stronger conception of democracy as self determination. In order to minimize domination and maximize self determination, cross-cutting constituencies must achieve a shared democratic minimum, through which democracy may once again become a means to justice. (shrink)

James Bohman’s work involves a paradigm shift in how we conceive democracy in complex, pluralized, globalized contexts comprised of multiple, overlapping constituencies that often have broad extension in space and time. He breaks with theories that view democracy as comprised of a bounded demos legislating for itself, and which conceptualize democracy as ways of organizing territorial, state-organized political entities. Elements of a progressive democratic theory that travels across borders should be built out of three ideas: a nonutopianism that pays (...) close attention to the “circumstances of politics”; institutions that enable nondomination, which helps to push conflict resolution toward the democratic media of deliberation, bargaining, compromise, and voting; and reflexive institutions that enable the deliberative generation, revision, and renewal of collective procedures and decisions, and which organize the creativity, intelligence, and energy of individuals. (shrink)

Journal of Social Philosophy, EarlyView.

There has been a strong tendency in recent years, in countries such as Australia and the United States, for governmental and corporate spokespersons to present advice and information that comes from independent scientific sources as if it were no better grounded than that from any other source. Such a leveling out of all advice and information into mere “opinion” has been a key strategy in the assertion of corporate and governmental control over public debate and policy. In this paper, we (...) aim to explore some of the factors that diminish the credibility and reliability of information within organizational structures, effectively undermining the value of that information; we argue for the importance of processes like those of peer review in maintaining the credibility and reliability of information that is so important to effective action and decision; and we also provide an analysis of the rationale that underpins such processes. One of our conclusions will be that processes like those of peer review succeed largely because of the way in which they depend upon, but also support, the dispersal of information and authority within an organizational structure so as to ensure both that information is accessible within the structure and also remains open to challenge and scrutiny. (shrink)

Lafont argues for a participatory version of deliberative democracy that shares key features with other contemporary approaches, while departing from them in decisive ways. It is based on the Rouss...

Lack of understanding about the relationship between federal and state educational institutions brings confusion into discussions of democracy, equity and equality in schools. The 'right to education' continues to be espoused by American society as a birthright, yet it does not figure in federal documentation. This matter has repeatedly come to the attention of legislative courts, who have insisted that the question of education as a fundamental right be addressed. Numerous court cases have attempted to bring closure on this issue, (...) on the basis of such abstractions as national rights, equal access, opportunity and economic disparity among the petitions. However, legal judgments remain inconclusive, reiterating that education remains a state legislative issue. This paper explores the implications of a fundamental right to education through an examination of federal and state legal litigation, discussing the philosophical and ideological roots of discussion of rights and democratic values, and evaluating how federal and judicial participation contributes to overall misunderstanding regarding public schooling. (shrink)

It is a widely supported claim that liberal democratic institutions should treat citizens with equal respect. I neither dispute nor champion this claim, but investigate how it could be fulfilled. I do this by asking, as a sort of litmus test, how liberal democratic institutions should treat with respect citizens holding minority convictions, and thereby dissenting from a deliberative output. The first step of my argument consists in clarifying the sense in which liberal democracies have a primary concern (...) for the respectful treatment of citizens qua self-legislating persons. Taking the second step, I address critically the common tendency in the literature to concentrate on what I have termed the ex ante legem phase, focusing solely on the structure of institutionalized decision-making processes. I submit, rather, that the principle of equal respect for persons demands more of liberal democratic institutions to enhance citizens' chances to give voice to their consciences and influence, on that ground, the formulation of the rules to which they should conform. Fulfilling this commitment requires democratic theorizing to go beyond the ex ante legem phase and regard forms of ex post legem contestation as an extension of citizens' right to political participation. Against this backdrop, I take the third and last step and argue that a promising way forward consists in the adoption of an ex post legem version of conscientious exemptionism, granting citizens a conditional moral right to request exemptions on the grounds of conscience from certain controversial legal and political provisions. (shrink)

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. (...) Firstly, I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)

While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to explore some implications of (...) recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation. (shrink)

Governments are increasingly inviting patient organizations to participate in healthcare policymaking. By inviting POs that claim to represent patients, representation comes into being. However, little is known about the circumstances under which governments accept POs as patient representatives. Based on the analysis of relevant legislation, this article investigates the criteria that self-help organizations, a special type of PO, must fulfil in order to be accepted as patient representatives by governments in Austria and Germany. Thereby, it aims to contribute to the (...) discussion on the role of governments in steering SHOs. There are different degrees of regulation. Governments in both countries not only formulate explicit criteria for SHOs with respect to patient representation but also guide SHOs representing patients through implicit criteria for associations. We discuss the findings against concepts of responsiveness, authorization, and accountability. Our findings indicate that governmental steering is not negative per se as indicated by previous research but—depending on legislative criteria—can promote transparency and democratic quality in patient representation. (shrink)

This book discusses how Plato, one the fiercest legal critics in ancient Greece, became – in the longue durée – its most influential legislator. Making use of a vast scholarly literature, and offering original readings of a number of dialogues, it argues that the need for legal critique and the desire for legal permanence set the long arc of Plato’s corpus—from the Apology to the Laws. Modern philosophers and legal historians have tended to overlook the fact that Plato was the (...) most prolific legislator in ancient Greece. In the pages of his Republic and Laws, he drafted more than 700 statutes. This is more legal material than can be credited to the archetypal Greek legislators—Lycurgus, Draco, and Solon. The status of Plato’s laws is unique, since he composed them for purely hypothetical cities. And remarkably, he introduced this new genre by writing hard-hitting critiques of the Greek ideal of the sovereignty of law. Writing in the milieu in which immutable divine law vied for the first time with volatile democratic law, Plato rejected both sources of law, and sought to derive his laws from what he called ‘political technique’. At the core of this technique is the question of how the idea of justice relates to legal and institutional change. Filled with sharp observations and bold claims, Platonic Legislations shows that it is possible to see Plato—and our own legal culture—in a new light “In this provocative, intelligent, and elegant work D. L. Dusenbury has posed crucial questions not only as regards Plato’s thought in the making, but also as regards our contemporaneity.”—Giorgio Camassa, University of Udine “There is a tension in Greek law, and in Greek legal thinking, between an understanding of law as unchangeable and authoritative, and a recognition that formal rules are often insufficient for the interpretation of reality, and need to be constantly revised to match it. Dusenbury’s book illuminates the sophistication of Plato’s legal thought in its engagement with this tension, and explores the potential of Plato’s reflection for modern legal theory.”—Mirko Canevaro, The University of Edinburgh. (shrink)

Governments are increasingly inviting patient organizations to participate in healthcare policymaking. By inviting POs that claim to represent patients, representation comes into being. However, little is known about the circumstances under which governments accept POs as patient representatives. Based on the analysis of relevant legislation, this article investigates the criteria that self-help organizations, a special type of PO, must fulfil in order to be accepted as patient representatives by governments in Austria and Germany. Thereby, it aims to contribute to the (...) discussion on the role of governments in steering SHOs. There are different degrees of regulation. Governments in both countries not only formulate explicit criteria for SHOs with respect to patient representation but also guide SHOs representing patients through implicit criteria for associations. We discuss the findings against concepts of responsiveness, authorization, and accountability. Our findings indicate that governmental steering is not negative per se as indicated by previous research but—depending on legislative criteria—can promote transparency and democratic quality in patient representation. (shrink)

During the 20th Century, thirty-two state legislatures passed laws that sanctioned coercive sexual sterilization as a solution to the purported detrimental increases in the population of “unfit” or “defective” citizens. While both scholarly and popular commentary has attempted to attribute these laws to political parties, or to broad or poorly defined ideological groups such as “progressives,” no one has identified the political allegiance of each legislator who introduced a successfully adopted sterilization law, and the governor who signed it. This article (...) remedies that omission. (shrink)

Tackling food-related health conditions is becoming one of the most pressing issues in the policy agendas of western liberal democratic governments. In this article, I intend to illustrate what the liberal philosopher John Stuart Mill would have said about legislation on unhealthy food and I focus especially on the arguments advanced by Mill in his classic essay On Liberty. Mill is normally considered as the archetype of liberal anti-paternalism and his ideas are often invoked by those who oppose state (...) paternalism, including those who reject legislation that restricts the consumption of unhealthy food. Furthermore, his views have been applied to related policy areas such as alcohol minimum pricing and genetically modified food. My analysis proceeds as follows. First, I show that Mill’s account warrants some restrictions on food advertising and justifies various forms of food labelling. Second, I assess whether and to what extent Mill’s ‘harm principle’ justifies social and legal non-paternalistic penalties against unhealthy eaters who are guilty of other-regarding harm. Finally, I show that Mill’s account warrants taxing unhealthy foods, thus restricting the freedom of both responsible and irresponsible eaters and de facto justifying what I call ‘secondary paternalism’. (shrink)

Democracies that appoint legislators through elections in territorially defined, sub-national constituencies and simultaneously enfranchise expatriate citizens must either assign expatriate voters to in-country constituencies (assimilated representation) or group them into distinct overseas constituencies that elect their own legislators (discrete representation). This essay critically reviews extant normative discussions of the two models and develops a normative analysis of its own. This suggests that when expatriates form but a small part of a democracy’s overall demos, discrete representation is the more attractive model (...) of expatriate representation as it overall better satisfies four important standards of evaluation, namely: equal opportunities for political influence, deliberation within the legislature, deliberation among constituents, and partisan voter mobilisation. This argument is also defended against the potential objections that the said standards can be satisfied by other means than discrete expatriate representation and that the defence of discrete expatriate representation implies a proliferation of special constituencies. (shrink)

Many democracies use geographic constituencies to elect some or all of their legislators. Furthermore, many people regard this as desirable in a noncomparative sense, thinking that local constituencies are not necessarily superior to other schemes but are nevertheless attractive when considered on their own merits. Yet, this position of noncomparative constituency localism is now under philosophical pressure as local constituencies have recently attracted severe criticism. This article examines how damaging this recent criticism is, and argues that within limits, noncomparative constituency (...) localism remains philosophically tenable despite the criticisms. The article shows that noncomparative constituency localism is compelling in the first place because geographic constituencies foster partisan voter mobilisation, and practices of constituency service help to sustain deliberation among constituents and within the legislature and promote the realisation of equal opportunity for political influence. The article further argues that it is unwarranted to criticise geographic constituencies for being biased against geographically dispersed voter groups, for causing vote-seat disproportionality, and for being vulnerable to gerrymandering. The article also discusses the criticisms that local constituencies may pose risks of inefficiency and injustice in resource allocation decisions, may lead legislators to neglect the common good, and may limit citizens’ control over the political agenda. Whilst conceding that these objections may be valid, the article argues that they do not outweigh the diverse and normatively weighty considerations speaking in favour of noncomparative constituency localism. Finally, the article’s analysis is defended against several variants of the charge that it exaggerates the benefits of geographic constituencies. (shrink)

This essay is part of a dossier on Cristina Lafont's book Democracy without Shortcuts.

Legislative gridlocks, driven by social partisan sorting, pose a significant threat to contemporary democracies. In this paper, I argue that this problem can be addressed by replacing _geographic_ electoral constituencies, which group voters by area of residence, with _heterogeneous_ electoral constituencies, which are based on random assignment and thus reflect the diversity of the entire electorate. I show that geographic electoral constituencies are likely to crystallise cleavages that _reinforce_ geographic divisions, whereas heterogeneous electoral constituencies are likely to dilute deep social (...) divisions. I argue that heterogeneous constituencies have this effect not because they _suppress_ intergroup difference, as is commonly held, but rather because they encourage political parties to _express cross-cutting_ social identities. The politicisation of cross-cutting social cleavages prevents social partisan sorting and moderates political conflict. Heterogeneous electoral constituencies should therefore be considered as part of an expressive institutional response to the democratic threat of legislative gridlock. (shrink)

This article analyzes the epistemological aims and justification of character education legislation passed by the North Carolina General Assembly. I take this specific state law as representative of the broader national trends in the character education movement. I primarily use the work of Richard Rorty as the theoretical lens for the analysis and critique. I conclude by commending aspects of the legislative effort, but I suggest that greater emphasis must be placed on strengthening students' ethics through democratic action inside (...) and outside schools and not on a right-leaning, conservative, and didactic curriculum. Further, as social foundations educators, it is imperative to make strides in our classrooms to expose preservice teachers to the apparent and hidden contradictions of using character education as a tool of educational reform. (shrink)

As developed by Sabel, Dorf and Cohen, and John Dewey before them, democratic experimentalism is based on the premise that current democratic practices are no longer able to deal with central and pressing social and political problems. Beginning with the criticism of democracy as command and control, Dorf and Sabel show how current democratic practices are part of the problem rather than the solution. Even as democratic experimentalists have successfully explored democracy beyond the state in the (...) European Union, I argue that they have not fully transnationalized democracy or fully appreciated “the new circumstances of politics.” With the emergence of pervasive forms of interdependence, Rousseau’s conception of democracy as self legislation is no longer adequate, despite its cogent normative assumptions. Instead, the new transnational circumstances of justice suggest a stronger conception of democracy as self determination. In order to minimize domination and maximize self determination, cross-cutting constituencies must achieve a shared democratic minimum, through which democracy may once again become a means to justice. (shrink)

This paper suggests that liberal democratic governments adopt a reconciliatory approach to conscientious disobedience. Central to this approach is the view – independent of whether conscientious disobedience is always morally justified – that conscientious disobedience is normatively distinct from other criminal acts with similar effects, and such distinction is worthy of acknowledgment by public apparatus and actors. The prerogative applies to both civil and uncivil instances of disobedience, as defined and explored in the paper. Governments and courts ought to (...) take the normative distinction seriously and treat the conscientious disobedients in a more lenient way than they treat ordinary criminals. A comprehensive legislative scheme for governments to deal with prosecution, sentencing, and imprisonment of the conscientious disobedients will be proposed, with the normative and practical benefits of such an approach discussed in detail. (shrink)

The use of Genetic Modification in food is the subject of deep political disagreement. Much of the disagreement involves different perceptions of the kinds of risks posed by pursuing GM food, and how these are to be tolerated and regulated. As a result, a primary institutional site of GM food politics is regulatory agencies tasked with risk assessment and regulation. Locating GM food politics in administrative areas of governance regimes produces unique challenges of democratic legitimacy, conventionally secured through legislative (...) channels. In particular, debate over the ends of a society’s policy on GM food inevitably continues in these institutional locations, despite conventional instrumental understandings of administrative legitimacy resting on effective application of ‘ends-means’ norms. This paper assesses the two major regulatory frameworks currently applied to GM food—the ‘precautious’ and ‘proof of harm’ approaches—and presents their respective limits in securing the procedural and substantive dimensions of the legitimacy of administrative deference in democratic societies. On the basis of these criticisms, a synthesized and emergent approach—‘experiential precaution’—is presented as having the resources to deepen the legitimacy of risk governance institutions in the case of GM food. It is characterized by deepened participatory practices of negotiated rulemaking and inclusion of further substantive requirements in approval criteria. (shrink)

rgen Habermas' response to the European Union democratic deficit calls for a minimal threshold of democratic legislation through an explicit constitutional founding. He defends a model of freedom as autonomous self-determination by proposing to tie basic rights in the EU to a univocal form of European-wide popular sovereignty. Instead of constructing a common European political identity, I appeal to the novel democratic potential of institutions in the EU such as the Open Method of Coordination for mediating overlapping (...) sovereignties in accord with freedom as non-domination. The concluding example of basic rights to effective participation for immigrants and permanent minorities illustrates the strengths of Iris Young's and James Bohman's republican views of non-domination over Habermas' call for a European-wide collective willing. Key Words: James Bohman • democratic deficit • European Union • freedom • Jurgen Habermas • non-domination • Open Method of Coordination • republicanism • sovereignty • Iris Young. (shrink)

On a proceduralist account of democracy, collective decisions derive their jus- tification—at least in part—from the qualities of the process through which they have been made. To fulfill its justificatory function, this process should ensure that citizens have an equal right to political participation as a respectful response to their equal status as agents capable of self-legislation. How should democratic participation be understood if it is to offer such a procedural justification for democratic decisions? I suggest that, in (...) order to overcome the structural procedural disadvantages affecting the actual, effective opportunities that citizens who hold nonmainstream views have to exercise their right to political participation, the enhancement of such opportunities requires securing space for contestation. Against this background, I vindicate the (currently underestimated) role of conscientious objection as a form of political participation. (shrink)

According to Corey Brettschneider, we can protect freedom of religion and promote equality, by distinguishing religious groups’ claims to freedom of expression and association from their claims to financial and verbal support from the state. I am very sympathetic to this position, which fits well with my own views of democratic rights and duties, and with the importance of recognizing the scope for political choice which democratic politics offers to governments and to citizens. This room for political choice, (...) I believe, is necessary if people are to have any chance of reconciling the conflicting moral and political obligations they are likely to face, however idealized our conception of democracy or morality. Granted that no amount of personal and political choice will ever guarantee that we do not encounter tragic choices, and painfully conflicting moral demands, it is an important feature of democracy – or so I believe – that its rights reflect the importance of mitigating these conflicts so that people are able, as a rule, to act as they ought, so that they do not experience their moral sentiments, beliefs and capacities simply as grounds for recrimination, alienation and despair. I therefore believe that democracies have good reason not to force the consciences of the undemocratic and the intolerant, where it is possible to accommodate such people without threatening the rights of others. However, the fact that I share many of Brettschneider’s intuitions and beliefs does not mean that I share them all. In particular, I find his conception of democracy unduly narrow, and unduly based on a rather idealized conception of the American constitution which is unlikely to appeal to those whose conceptions of democracy are more republican, more socialist, more pragmatic and more international than his. I have explained these worries elsewhere and drawn out some of their implications for his arguments about privacy and judicial review. There is no need to repeat them here. I will also set to one side my worries about his uninflected, overly abstract and rather reified characterization of the State, in the hope that others will discuss this and that, in the end, a more nuanced conception of the State and a more lively appreciation of the conflicting people, institutions, histories and norms which make up most states, will prove consistent with his arguments. Finally, I do not propose to enter into a detailed discussion of the difficulties of Brettschneider’s overly abstract and reified conception of State ‘speech’ and ‘expression’ which, while motivated by the language of American constitutionalism, appears to cover pretty much anything a government might do, from raising and spending taxes, to accepting judicial interpretations of contested constitutional provisions, or to affirmatively pronouncing on the goals that will animate its legislative agenda and its aspirations for citizen’s lives. Again, while I would have wished for a more nuanced and analytical discussion of so central a concept as ‘expression’ and, in particular, expression by ‘the State’, I am uncertain that anything fundamental in Brettschneider’s account of citizen rights and duties would be altered in the process. Instead, then, I want to focus on points in Brettschneider’s argument that intrigue, and sometimes puzzle, me the most and where issues of nuance and clarification might make a substantial difference to our views of equality and religious freedom. (shrink)

Steffen Ganghof’s Beyond Presidentialism and Parliamentarism can improve existing typologies in comparative government and has great potential for discussions about democratic innovation and reform. So far, democratic innovations like deliberative mini-publics have remained mostly additive, leaving the underlying decision-making logics of representative political systems unchanged. Ganghof’s ideas can move debates about how deliberative democracy is to be institutionalized forward. Semi-parliamentary government constitutes an intriguing option to meet both demands for legislative flexibility and responsiveness to citizens’ concerns and demands (...) for stability and accountability. At the same time, I identify a limitation of the book in the fact that Ganghof’s normative theory of democracy remains thin. To appeal to citizens in constitutional reform processes, proposals for semi-parliamentary reform need to do more than reconcile conflicting visions of majority rule. They need to speak to democracy’s central promises of equal autonomy and rationality. (shrink)

In modern democracies, moral experts play an increasingly important role in law-making. Apart from the question of which competences characterize moral experts, their influence on the legitimacy of democratic procedures must be discussed. On the one hand, the contribution of moral experts promises to improve the quality of decision making. On the other hand, however, moral experts cannot claim to represent the will of the people. In this essay, at first a concept of the moral expert will be sketched (...) which does without the assumption of a privileged access to 'moral truths'. Then a procedural understanding of democratic legitimacy without epistemic components will be defended. Finally there will be a distinction between the purely consultative and the quasi-legislative tasks of ethics committees. Whereas councelling by moral experts does not influence the legitimacy of democratic procedures, giving them quasilegislative functions is connected to risks in this respect. (shrink)

This paper examines the General Agreement on Trade in Services (GATS), which is one of the World Trade Organisations free trade agreements. In particular, I examine the extent to which the GATS unduly restricts the scope for national democratic choice. For purposes of illustration, I focus on the domestic health system as the subject of policy choice. I argue that signatories to the GATS effectively acquire a constitutional obligation to maintain a domestic health sector with a certain minimum degree (...) of privatisation. Like constitutional obligations, the restrictions the GATS imposes on the freedom of future generations to structure their domestic health sector are (i) very difficult, though not strictly impossible, to alter; and (ii) not chosen in any ordinary sense by the subject generation. To gain democratic legitimacy, therefore, the relevant provisions of the GATS must pass some higher standard of democratic scrutiny, such as ratification by a super-majority. Ordinary legislative ratification does not suffice. (shrink)

The “question of reasonable compliance” concerns how business firms should comply with morally reasonable laws that have been democratically enacted. This article argues that, out of respect for the governing authority of democratic citizens, firms should comply with the law in accordance with legislators’ normative expectations of compliance. It defends this view against arguments from the legal, economic and business ethics literatures that focus on the contentious nature of democracy and the competitive nature of the market. In response this (...) article argues that these adversarial features of democracy and capitalism do not limit the ability of democratic legislatures to set normative expectations of market actors, nor the duty of firms to comply with them. (shrink)

In his most distinctly political book, The Public and Its Problems, John Dewey describes a never-ending process of achieving democratic governance, in which obstacles to such governance inevitably emerge, and are progressively overcome. However, even in that evidently political work, Dewey still emphasizes that there is a “distinction between democracy as a social idea and political democracy as a system of government. . . . The idea of democracy is a wider and fuller idea than can be exemplified in (...) the state even at its best” (143). The typical political bodies that exercise legislative, executive, administrative, and judicial power are not the only institutions that significantly impact how individuals live .. (shrink)

Aim is a robust theory of deliberative democracy. Therefore, three theses are explained by two historical examples, the revolution of 1848 in France, and the new social movements that emerged in the 1960s. The theses are that democratic will-formation is related internally to truth. The foundation and justification of all legal norms in public will-formation presupposes the sublation of the liberal dualism of democracy and rights and of the idealist dualism of rationality and reality in favor of a continuum (...) of public debates, social struggles, and legislative procedures. (shrink)

"Australian legislation and military doctrine stipulate that soldiers ‘subjugate their will’ to" "government, and fight in any war the government declares. Neither legislation nor doctrine enables the conscience of soldiers. Together, provisions of legislation and doctrine seem to take soldiers for granted. And, rather than strengthening the military instrument, the convention of legislation and doctrine seems to weaken the democratic foundations upon which the military may be shaped as a force for justice. Denied liberty of their conscience, soldiers are (...) denied the foundational right of democratic citizenship and construed as utensils of the State. This article critiques the idea of moral agency in Australian legislation and military doctrine and is concerned with the obligation of the State to safeguard the moral integrity of individual soldiers, so soldiers might serve with a fully formed moral assurance to advance justice in the world. Beyond its explicit focus on the convention of Australian thought, this article raises questions of far-reaching relevance. The provisos of Australian legislation and doctrine are an analogue of western thinking. Thus, this discussion challenges many assumptions concerning military duty and effectiveness. Discussion will additionally provoke some reassessment of the expectations democratic societies" "hold of their soldiers.". (shrink)

Many commentators lament that American democracy is in crisis. It is becoming a system of minority rule, wherein a party with a minority of the nationwide vote can control the national government. Partisan gerrymandering in the House of Representatives fuels this crisis, as does the equal representation of small and large states in the Senate. But altering these features of the legislature would not end minority rule. Indeed, it has long been held that majority rule cannot be guaranteed within any (...) district system, as a minority of voters nationwide can be efficiently distributed such that a minority party wins a majority of districts by narrow margins. -/- This Article offers a way to save majority rule. Since the way a party can gain control of the legislature with a minority of the vote is to win a majority of districts by narrow margins of victory and lose a minority of districts by large margins of victory, the solution is to make margins matter. Hence, this Article proposes that we preserve electoral districts in which the candidate with the most votes wins, while making the weight of their vote in the legislature (a representative’s “legislative power”) a function of margins of victory. The first goal of this Article is to outline how this proposal, which I call “weighted voting by margin of victory” (WVMV), retains the democratic virtues of district systems while ending minority rule. This is the first basis for the democratic imperative to make margins matter. -/- There is, however, a second basis for that same imperative, which turns on the political equality of voters. The U.S. Supreme Court has long held that the democratic equality should be understood in terms of equal voting power (one person, one vote). But when margins of victory don’t matter, the power of a vote lies exclusively in its potential decisiveness. A vote that changes the margin of victory without changing the victor is “wasted”. But it is an electoral reality that votes in competitive districts are more likely to be decisive, and votes in uncompetitive districts are more likely to be wasted; as a result, candidates and parties are more responsive to some voters than others. So voters are not political equals. They do not have equal voting power, except in an empty formalistic sense. By contrast, WVMV gives votes a second type of power. The power of a vote is to potentially decide who wins and to actually change the legislative power of the victor. Each vote, in effect, transfers a unit of political power to a democratic representative. This “transference” power can be meaningfully equalized between voters. A voter in an uncompetitive district is far less likely to change who wins, but is equally able to change the margin of victory, such that their vote is no longer wasted. This gives candidates and parties a strong reason to be more equally responsive to all voters who can change the margins. Hence, there is a democratic imperative to make margins matter, in order to give voters a meaningfully equal form of voting power. -/- The final goal of this Article is to explain how we can implement WMVM in modern democracies, focusing on three particularly challenging cases: the U.S. Senate, the Parliament of the United Kingdom, and the U.S. House of Representatives. These cases are challenging for several reasons, the most pertinent of which turn on the ways we should understand margins of victory when electorates are of unequal sizes (as in the U.S. Senate) or are contested by more than two parties (as in the U.K.) or are conducted under different voting procedures (as in many districts in the U.S. House). I argue that WVMV should be considered feasible in such contexts, and hence offers a practical, rather than purely theoretical, alternative to the status quo. (shrink)

After centuries of oblivion, the idea of using civic lotteries to select citizens to participate in major decision-making bodies has started gaining popularity among certain democratic theorists. Undoubtedly, this is an idea worth exploring, given the constantly rising dissatisfaction with the operation of major representative institutions. One should not, however, infer from this fact that any proposed sortition-based institutional arrangement is compatible with basic democratic principles. This article critically examines two such proposals: (a) that we should establish fully (...) powered legislative bodies consisting entirely of allotted citizens and (b) López-Guerra’s enfranchisement lottery, the gist of which is that voting rights should be granted only to a very small random sample of current electors, who will be subjected to a “competence-building process.” The article argues that both proposals run counter to the idea of rule by the people conceived as equally valuable and fully participating memb ers of a self-governing political entity. (shrink)

Recent attempts to legislate climate science out of existence raises the question of whether citizens are obliged to obey such laws. The authority of democratic law is rooted in both truth and popular consent, but neither is sufficient and they may conflict. These are reconciled in theory and, more importantly, in practice once we incorporate insights from the pragmatist theory of inquiry.

This short article will seek to explore the causes, and possible solutions, of what seems to be the current freezing of the Turkish constitution-making process that has had some dramatic successes in the 1990s and early 2000s. I make the strong claim that democratic legitimacy or constituent authority should not be reduced either to any mode of power, even popular power, or to mere legality. It is these types of reduction that I find especially troubling in recent Turkish constitutional (...) struggles, where the legal claims of two powers — the government-controlled legislative and the judicial branches — to structure the constitution are not backed by sufficient political legitimacy. In effect these two powers that claim their constituent authorization, rather implausibly in my view, from either the democratic electorate or from an original constituent power, because of their conflict threaten to freeze the constitution-making process that very much needs to be continued and concluded. I end the article by making a suggestion for one possible constitution-making procedure that would be both legitimate and legal. (shrink)

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is bad (...) theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic representation not only better explains legislative outcomes, but also deprives demagogues and deregulatory partisans of the fictions that prop up their agendas. After a brief survey of representative theory, this article will demonstrate that a model of trustee representation adequately describes administration, reinforces its democratic credentials and constitutes a space for politics in shaping the regulations that govern us all. (shrink)

Food safety is a preoccupation of the European Commission, but there are major shortcomings in its governance. Reviewing legislation and practice, this paper explores the background of EU food safety institutions, and develops recommendations to make the EU decision process more transparent, accountable, and democratic.

This article is a summary of the results of the parliamentary election held on 17th December 1978. The balloting came in the wake of an early dissolution of the legislative bodies elected in 1977.The main feature of the election is that voters largely confirmed the 1977 voting patterns and that the new bodies wilt be very similar to the former ones.The only really significant trend is the falling off of Volksunie and the ahead movement of Flemish liberals. A second characteristic, (...) together with an increased number of blank or spoilt ballot papers, is a slight breakthrough of new or minor lists of candidates, e.g. the Democratiec Union for Respect of Work, an anti-tax party, and a number of «green» lists.It came rather as a surprise that the Flemish Christian Democrats lost some ground, as public opinion polls and political observers had forecast a gain.It seems that the Flemish liberal promises for tax cuts attracted CVP voters to some extent, resulting in that party not fully cashing in on the Volksunie drop.In the Walloon region the balloting was characterized by a Socialist loss, and a gain by Christian Democrats.The Chambers elected in 1978 are constituent bodies. For the time being it cannot be said whether they will be in a position to achieve pacification between the Flemish and French-speaking communities andto put an end to the long controversy concerning devolution which has been prevailing on the Belgian political scene for many years. (shrink)

On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those considerations which make democratic law morally authoritative entail that judges ought to enforce (...) the public meaning, when this is clear, and that interpretation of the public meaning which is closest to the balance of moral reasons, when the public meaning is unclear. (shrink)

In 1946 there were three democracies in the world with constitutions that, on the one hand, required the government to obtain the support of a legislative majority in order to come to and remain in power and, on the other hand, established a popularly elected president. In 2002, this number had grown to 25. Constitutions with this feature are often considered to be problematic, and, given the number of new democracies that have adopted them, have received considerable attention from political (...) scientists. The primary concern has to do with the potential for conflict between the assembly supported government and the popularly elected president, which may lead to unstable governments, policy paralysis, and the eventual undermining of the democratic regime. Concern has also been raised regarding the negative role a popularly elected president may have on party development and the that in a pure parliamentary democracy runs from voters to government through political parties. In this paper, we examine the effect the combination of assembly confidence with a popularly elected president has on government instability, accountability, legislative effectiveness, and democratic survival. We also examine the impact on these outcomes of different combinations of presidential powers. We find that the introduction of a popularly elected president in parliamentary constitutions is of little significant impact and that the preoccupation with the specific powers of the president is mostly overblown. (shrink)

Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with—and even a recommended component of—an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy-making. The article first offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of (...) concern—in particular the European Court of Human Rights. The article goes on to develop some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted. The article goes on to consider the case for international judicial review, arguing that such review helps secure those premises and scope conditions. The article finally considers the scope such review should have—and some objections to such an account. (shrink)

This paper provides an account of reparations in general and then presents briefly one explanation of why many present day African Americans believe they are entitled to reparations from the U.S. Government.This explanation should not be seen as a final justification, but only as an indication why the demand for reparations for AfricanAmericans might be seen a plausible. Next, if it is reasonable to assume that reparations to African Americans are plausible, I then go onto explain why reparations might be (...) necessary to fill the breech that is perceived to exist between many African Americans and their government. This explanation will involve an examination of the relationship between three concepts: forgiveness, reconciliation, and reparations. Then I explore why an apology or reparations for slavery and Jim Crow might be necessary for reconciliation between many African Americans and their government. Finally, I examine the contention that the legislative process can be used to obtain an apology or reparations from the government. (shrink)

We are likely to have immersive virtual reality and ubiquitous augmented reality in the coming decades. At least some people will use extended reality or “the metaverse” to work, play and shop. In order to achieve the best possible versions of this virtual future, however, we will need to learn from three decades of regulating the Internet. The new virtual world cannot consist of walled corporate fiefdoms ruled only by profitmaximization. The interests of workers, consumers and citizens in virtuality require (...) proactive legislation and oversight. -/- This white paper first addresses the central question the metaverse poses, whether virtual life is inherently more alienating and less authentic than face-to-face life experiences. This question is both a philosophical question about the nature of the good life and an empirical question about the accumulating evidence about the impacts of the digital on subjective well-being. -/- . (shrink)

In this paper I argue, from the point of view of a legal positivist conception of law and its associated approach to legal interpretation, that having a ‘democratic Bill of Rights’ as a basis for enacting ‘human rights legislation’ is more legitimate and likely to be more effective with respect to promoting human rights than the contemporary model of using ‘juridical Bills of Rights’ as a basis for modifying or overriding enacted legislation.Resumen:Desde una concepción positivista del derecho y (...) su respectivo enfoque hacia la interpretación jurídica, en este artículo se argumenta que el tener un “Bill of Rights democrático” como base para expedir una “legislación de derechos humanos” resulta ser más legítimo y más efectivo para la promoción de los derechos humanos, que el modelo contemporáneo de “Bill of Rights jurisdiccionales” que sirve para modificar o invalidar la legislación promulgada. (shrink)

Or total reversals in congressional support for specific legislation? Jones aims to answer these questions by connecting insights from cognitive science and rational-choice theory to political life.