Balancing Procedures and Outcomes Within Democratic Theory: Core Values and Judicial Review (original) (raw)
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Judicial Review: A Democratic Defense
SEE NOTE: this version of this paper is a bit obsolete. The paper is now being framed as a work on democratic equality directly rather than on judicial review. Such an argument as this would still work, I think, but I believe that my argument on democratic equality is the more salient and useful contribution at the moment. Academic literature is still divided over whether judicial review is a legitimate political institution in a democracy. All conceptions of democracy involve both substantive and procedural components. The defenders of judicial review tend to argue that substantive commitments to self-government and equal effective power justify and limit the procedures of collective decision-making. Its opponents argue that those procedures determine the content of a society’s moral commitments. Here I contribute to the understanding of judicial review in the following three ways: first, I extract from the defenders of judicial review a conception of democracy whose core is the commitment to equal power and individual autonomy. This contributes an understanding of the concept of democracy common to major contributors to the liberal tradition. Further, I use this conception both to defend judicial review conditionally, and to show that its detractors miss something fundamental about the concept of collective and individual self-government.
How the Principle of Public Equality Introduces Substance in Democratic Proceduralism
In discussions on democratic legitimacy, Christiano's position is often characterized as a monistic position, i.e. a strong and persuasive version of fair deliberative pro-ceduralism. Democracy is thus seen as a realization of public equality in collective decision making. The presented case for democracy is non-instrumental, and the quality of outcomes produced by a democratic decision-making process does not constitute or in any way influence the legitimacy – generating features of that decision-making process. I argue that the quality of political decisions produced by a democratic decision-making process should play an important (though not decisive) role in Christiano's argument. Consequently, I claim that his case for democracy should be (at least somewhat) instrumental. I consider four cases from Christiano's The Constitution of Equality that show how outcomes of democratic procedures are very important to Christiano. Furthermore, I argue that these outcomes are so important that, when deciding between two or more fair decision-making procedures, one that produces the best outcomes should be considered legitimate.
Democracy and Judicial Review: Are They Really Incompatible?
Perspectives on Politics, 2009
This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics like Waldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation. Hence, judicial review is not undemocratic simply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators. Hence a democratic justification for judicial review does not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citi...
This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics likeWaldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation.Hence, judicial review is not undemocratic simply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators.Hence a democratic justification for judicial reviewdoes not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citizens or their leaders. From a democratic perspective, therefore, the case for judicial review is that it enables individuals to vindicate their rights against government in ways that parallel those they commonly use against each other. This makes judicial review normatively attractive whether or not it leads to better decisions than would be made by other means. Is
Extrinsic Democratic Proceduralism: A Modest Defence
Res Publica, 2021
Disagreement among philosophers over the proper justification for political institutions is far from a new phenomenon. Thus, it should not come as a surprise that there is substantial room for dissent on this matter within democratic theory. As is well known, instrumentalism and proceduralism represent the two primary viewpoints that democrats can adopt to vindicate democratic legitimacy. While the former notoriously derives the value of democracy from its outcomes, the latter claims that a democratic decision-making process is inherently valuable. This article has two aims. First, it introduces three variables with which we can thoroughly categorise the aforementioned approaches. Second, it argues that the more promising version of proceduralism is extrinsic, rather than intrinsic, and that extrinsically procedural accounts can appeal to other values in the justification of democracy without translating into instrumentalism. This article is organised as follows. I present what I consider to be the 'implicit view' in the justification of democracy. Then, I analyse each of the three variables in a different section. Finally, I raise an objection against procedural views grounded in relational equality, which cannot account for the idea that democracy is a necessary condition for political legitimacy.
Politics, Philosophy & Economics, 2006
Liberal political theorists often argue that justice requires limits on policy outcomes, limits delineated by substantive rights. Distinct from this project is a body of literature dedicated to elaborating on the meaning of democracy in procedural terms. In this article, I offer an alternative to the traditional divide between procedural theories of democracy and substantive theories of justice; I call this the ‘value theory of democracy’. I argue that the democratic ideal is fundamentally about a core set of values (political autonomy, equality of interests, and reciprocity) with both procedural and substantive implications. Further, I contend that limits on policy outcomes can be newly understood as part of the democratic ideal.
On the circularity of democratic justice
2009
In this article, I argue that justice and democracy stand in a circular relationship: just outcomes emerge from democratic deliberations, but only if such deliberations meet the standards of justice. I develop my argument by engaging in a critical dialogue with Nancy Fraser. Contending that she fails to deal with the danger that unfair deliberative procedures and inadequate norms of justice may reinforce one another, I show what a satisfactory account of democratic justice would look like. Going beyond Fraser's theory, I maintain that although justice and democracy do form a circular relationship, it is essential to give former greater weight than the latter. I finesse my account by showing what this differential weighting would entail in practice. The result is an account of democratic justice which is significantly different from and a marked improvement on that of Fraser.
Compared to What? Judicial Review and Other Veto Points in Contemporary Democratic Theory
Perspectives on Politics, 2015
Many democratic and jurisprudential theorists have too often uncritically accepted Alexander Bickel's notion of “the countermajoritarian difficulty” when considering the relationship between judicial review and democracy; this is the case for arguments both for and against judicial review. This framework is both theoretically and empirically unsustainable. Democracy is not wholly synonymous with majoritarianism, and judicial review is not inherently countermajoritarian in the first place. In modern democratic political systems, judicial review is one of many potential veto points. Since all modern democratic political systems contain veto points, the relevant and unexplored question is what qualities might make a veto point relatively democratic.Proceeding on the assumption that democracy's primary normative value is found in its opposition to domination by both state and private actors, we make a preliminary effort to delineate what qualities a democratic veto point might h...