The name ‘pluralism’ frequently rears its head in political philosophy, but theorists often have different things in mind when using the term. Whereas ‘reasonable pluralism’ refers to the fact of moral diversity among citizens of a liberal democracy, ‘value pluralism’ is a metaethical view about the structure of moral practical reasoning. In this paper, I argue that value pluralism is part of the best explanation for reasonable pluralism. However, I also argue that embracing this explanation is compatible with political liberalism’s (...) commitment to avoiding controversial premises. According value pluralism an explanatory role does not entail according it a justificatory one. What’s more, explaining reasonable disagreement in terms of reasonable disagreement about value weights opens up space for direct appeal to substantive values within political liberalism. In particular, promoting a substantive political value when doing so does not conflict with other values is unproblematic. (shrink)

The normative and metanormative pluralism that figures among core self-descriptions of democratic theory, which seems incompatible with democratic theorists’ practical ambitions, may stem from the internal logic of research traditions in the social sciences and humanities and in the conceptual structure of political theory itself. One way to deal productively with intradisciplinary diversity is to appeal to the idea of a meta-consensus; another is to appeal to the argument from cognitive diversity that fuels recent debates on epistemic democracy. For different (...) reasons, both strategies fail, such that a metatheoretical step aside may be desirable, one that entails modeling democratic theory after the public justification approach. (shrink)

Empirical research has transformed our understanding of autocratic institutions. Yet democratic theorists remain laser-focused on ideal democracies, often contending that political equality is necessary to generate democratic authority. Those analyses neglect most nonideal democracies and autocracies – regimes featuring inequality and practices like gerrymandering. This essay fills that fundamental gap, outlining the difficulties of applying theories of democratic authority to nonideal regimes and challenging long-standing views about democratic authority. Focusing on autocrats that lose elections, I outline the democratic authority of (...) nonideal, flawed procedures. Flawed elections are unjustifiably biased toward incumbents. But under certain conditions, ignoring an incumbent’s loss would require not treating one’s fellow citizens as equals. Under those conditions, therefore, citizens are bound to obey those electoral outcomes – that is, flawed procedures can possess democratic authority. (shrink)

This article provides a conceptual map of the debate on ideal and non‐ideal theory. It argues that this debate encompasses a number of different questions, which have not been kept sufficiently separate in the literature. In particular, the article distinguishes between the following three interpretations of the ‘ideal vs. non‐ideal theory’ contrast: (i) full compliance vs. partial compliance theory; (ii) utopian vs. realistic theory; (iii) end‐state vs. transitional theory. The article advances critical reflections on each of these sub‐debates, and highlights (...) areas for future research in the field. (shrink)

Many historical and recent forms of protest usually referred to as civil disobedience do not fit the standard philosophical definition of “civil disobedience”. The moral and political importance of this point is explained in section 1, and two theoretical lessons are drawn: one, we should broaden the concept of civil disobedience, and two, we should start thinking about uncivil disobedience. Section 2 is devoted to the main objections against, and theorists' defenses of, civil disobedience.

In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, (...) her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not. (shrink)

In recent years there has been a revival of interest in civic republicanism. In light of this revival, it is interesting to consider what sort of theory of legal or judicial adjudication such a doctrine—centered on the value of promoting freedom from domination—would recommend. After discussing the importance of such a theory and clarifying its relationship to broader questions of institutional design, it is argued that theories of adjudication should be assessed according to three criteria: first, their contribution to the (...) republican cause of promoting freedom from domination; second, their suitability to the characteristic features of legal systems; and third, their impact on long-run institutional stability. According to these criteria, a republican theory of adjudication would hold that judges and other legal officials should strive in their decisions and interpretations to maintain and enhance the distinctive value of the rule of law. (shrink)

This paper provides a critical overview of the realist current in contemporary political philosophy. We define political realism on the basis of its attempt to give varying degrees of autonomy to politics as a sphere of human activity, in large part through its exploration of the sources of normativity appropriate for the political and so distinguish sharply between political realism and non-ideal theory. We then identify and discuss four key arguments advanced by political realists: from ideology, from the relationship of (...) ethics to politics, from the priority of legitimacy over justice and from the nature of political judgement. Next, we ask to what extent realism is a methodological approach as opposed to a substantive political position and so discuss the relationship between realism and a few such positions. We close by pointing out the links between contemporary realism and the realist strand that runs through much of the history of Western political thought. (shrink)

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting (...) for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases. (shrink)

Disagreement in politics is ubiquitous. People disagree about what makes a life worthy or well-lived. They disagree about what they owe to each other in terms of justice. They also disagree about the proper manner of dealing with the consequences of disagreement. What is more, they disagree about the normative significance of moral and political disagreement. Disagreement has been, for at least three decades now, the focus of a series of major works in political philosophy. It has been called one (...) of the fundamental ‘circumstances of politics’ by Waldron. Rawls took disagreement to be at the heart of the problem of political legitimacy. Gerald Gaus takes it to be the most important task of liberal political theory to justify political institutions in the face of ‘evaluative diversity’. For Thomas Christiano, disagreement is part of the basis of the authority of democracy.Political institutions make decisions and rules that are binding f. (shrink)

(Winner of The Res Publica Essay Prize) This article defends a moderate version of state perfectionism by using Gerald Gaus’s argument for liberal neutrality as a starting point of discussion. Many liberal neutralists reject perfectionism on the grounds of respect for persons, but Gaus has explained more clearly than most neutralists how respect for persons justifies neutrality. Against neutralists, I first argue that the state may promote the good life by appealing to what can be called “the qualified judgments about (...) the good life,” which have not been considered by liberal perfectionists including Joseph Chan and Steven Wall. Then I clear up several possible misunderstandings of these judgments, and argue that: (a) moderate perfectionism does not rely on controversial rankings of values and is committed to promoting different valuable ways of life by pluralistic promotion; and (b) moderate perfectionism requires only an indirect form of coercion in using tax money to support certain moderate perfectionist measures, which is justifiable on the grounds of citizens’ welfare. Thus, I maintain that moderate perfectionism does not disrespect citizens, and is not necessarily unfair to any particular group of people. It is, in fact, plausible and morally important. The defence of moderate perfectionism has practical implications for the state’s policies regarding art development, drug abuse, public education, and so on. (shrink)

I argue that there are liberal reasons to reject what I call “Global Individualism”, which is the conjunction of two views strongly associated with liberalism: moral individualism and social individualism. According to the first view, all moral properties are reducible to individual moral properties. The second holds that the social world is composed only of individual agents. My argument has the following structure: after suggesting that Global Individualism does not misrepresent liberalism, I draw on some recent insights in social ontology (...) to show that it is inconsistent with the satisfaction of an important liberal principle related to the protection of individual rights over time. As I hold, to solve this problem we need to accept group agents acting as moral agents, which in turn commits us to the weaker notion of normative individualism (a view that is consistent with the existence of some group moral properties). I conclude with the suggestion that even this solution is costly for liberalism, for the conjunction of group moral agency and normative individualism makes the latter unstable and compels liberals to a much less individualistic stance than expected. (shrink)

This paper considers the character of moral peoplehood, our life as a people, and the rules and principles through which that life is expressed. In so far as those rules and principles take legal form, as determining the ground rules of association and denoting political rights and duties, this moral community is also a jural community. The paper engages with Bernard Williams’s thought with a view to resolving the tension between two conceptions of the constitution that differ in their account (...) of the relationship between norms and time. Williams offers the prospect of a non-Kantian liberalism that grows out of the habits and minds of persons but which does not collapse into relativism. I argue that Williams’s account of moral personhood devotes insufficient attention to the dynamics of moral deliberation, essential to the growth of personhood. I argue that Williams’s account of moral peoplehood is similarly deficient in that it overlooks the role constitutional deliberation plays in constructing the jural community. Plural politics requires accepted ground rules and the sense that we are a unity of plural associates, and this is what constitutional deliberation aims to provide. (shrink)

Courts purport to abandon ordinary meaning only when words in a statute accommodate more than one meaning; to look to surrounding words, legislative history, and then public policy considerations, only if those previous efforts fail. The canon of statutory construction, “a word is known by its associates,” generally means nearest associates, or near as possible. An analogous language philosophy principle counsels increasing search radius only as needed. Dimensional extension advances the sequence to broader domains of information. Such incrementalist restrictions should (...) require consistent justification of each broadening step by the inadequacy of preceding steps. But courts don’t do this, and shouldn’t. This essay references the legal debate between “textualists” and non-textualists and its philosophical parallel between minimalists and pragmatists. It illustrates court departures from the incrementalist model, and concludes that when judges choose broad evidentiary contexts in seeking statutory meaning, they need no more justification than when they choose narrower ones. (shrink)

This article examines whether the voting age should be lowered to 16. The dominant view in the literature is that 16-year-olds in the United Kingdom are not politically mature enough to vote since they lack political knowledge, political interest and stable political preferences. I reject this conclusion and instead argue that the voting age should be lowered to 16. First, I look at Chan and Clayton’s empirical claims and show that these features of 16- and 17-year-olds are in fact created (...) by exclusionary social practices and therefore that these features cannot be used to justify their exclusion from the vote. Second, I evaluate preliminary evidence from Austria which suggests that 16- and 17-year-olds, when actually given the vote, are politically mature. Third, I show that, on a balance of harms, considering that some 16- and 17-year-olds are mature, we still should lower the voting age even if some 16- and 17-year-olds are not politically mature. I conclude that the voting age should be lowered to 16. (shrink)

It has become somewhat a commonplace in recent political philosophy to remark that all plausible political theories must share at least one fundamental premise, ‘that all humans are one another's equals’. One single concept of ‘basic equality’, therefore, is cast as the common touchstone of all contemporary political thought. This paper argues that this claim is false. Virtually all do indeed say that all humans are ‘equals’ in some basic sense. However, this is not the same sense. There are not (...) one but two concepts of basic equality, and they reflect not a grand unity within political philosophy but a deep and striking division. I call these concepts ‘Equal Worth’ and ‘Equal Authority’. The former means that each individual’s good is of equal moral worth. The latter means that no individual is under the natural authority of anyone else. Whilst these two predicates are not in themselves logically inconsistent, I demonstrate that they are inconsistent foundation stones for political theory. A theory that starts from Equal Worth will find it near impossible to justify Equal Authority. And a theory that starts from Equal Authority will find any fact about the true worth of things, including ourselves, irrelevant to justifying legitimate action. This helps us identify the origin of many of our deepest and seemingly intractable disagreements within political philosophy, and directs our attention to the need for a clear debate about the truth and/or relationship between the two concepts. In short, my call to arms can be summed up in the demand that political philosophers never again be allowed to claim ‘that all human beings are equals’ full stop. They must be clear in what dimension they claim that we are equals—Worth or Authority. (shrink)

By reference to the illustrative case of the supranational regulation of local systems of food production, we aim to show the importance of identifying issues of international legitimacy as a discrete component – alongside issues of global distributive justice – of the liberal project of public justification of supranational collective decisions. Therefore, we offer the diagnosis of a problem but do not prescribe the therapy to cure it.

Is it morally important to vote? It is common to think so, but both consequentialist and deontological strategies for defending that intuition are weak. In response, some theorists have turned to a role-based strategy, arguing that it is morally important to be an excellent citizen, and that excellent citizens vote. But there is a lingering puzzle: an individual vote changes very little (virtually nothing in large-scale elections), so why would the excellent citizen be so concerned to cast a ballot? Why (...) bother with something that has so little effect on the common good? This paper answers by developing the idea of respect for a practice, and then arguing that respect for democracy will often require citizens to vote. (shrink)

Are professional roles bound by the norms of ordinary morality? This article begins with a discussion of two existing models that give contrary answers to this question; the practice model detaches professional ethics from ordinary morality, while the translation model denies any real divergence. It is argued that neither model can give a satisfying account of how professional roles ground distinct claims that are morally authoritative. The promise model is articulated and defended, wherein the obligations of professional roles are grounded (...) in an act of self-binding by the profession; the public is the promisee, and thereby entitled to make role-dependent claims. This model retains a connection to ordinary morality, but does not reduce role authority to individual conscience. Legitimate promises bind the role holder even in the face of moral disagreement. (shrink)

So-called 'realists' have argued that political philosophers should engage with real politics, but that mainstream 'non-realist' political philosophers fail to do so. Perhaps surprisingly, many of the discussions between realists and their critics have not drawn much on debates in metaethics. In this paper, I argue that this is an oversight. There are important connections between the realism/non-realism debate and certain controversies in metaethics. Both realism and non-realism come with metaethical baggage. By considering several arguments that could be made for (...) and against both positions, each of which rests on contested views about the metaphysics and epistemology of value, I outline exactly which metaethical claims realists and nonrealists must defend in order to make their position tenable. (shrink)

For many liberal democrats toleration has become a sort of pet-concept, to which appeal is made in the face of a myriad issues related to the treatment of minorities. Against the inflationary use of toleration, whether understood positively as recognition or negatively as forbearance, I argue that toleration may not provide the conceptual and normative tools to understand and address the claims for accommodation raised by at least one kind of significant minority: democratic dissenting minorities. These are individuals, or aggregates (...) of them, who oppose, on principled grounds, the outcomes of the majoritarian decision-making process. I argue that democratic dissenting minorities' claims are better understood as calls for respect for a person's capacity for self-legislation. I view respect as the cornerstone of justice in a liberal democracy: all norms resulting in a constraint on a person's conduct should be appropriately justified to her. I argue that the reconciliation of democratic dissenting minorities' claims requires an enhancement of the justificatory strategies of democratic decisions by enhancing in turn citizens' rights to political participation. This should be done both during decision making and after a provision is enacted by also securing space for contestation through such forms of illegal protest as civil disobedience and conscientious objection. (shrink)

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn (...) on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties. (shrink)

The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future‐oriented deliberations and decisions. The second is to create more public awareness and improve the process (...) of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy. (shrink)

Abstract. A special legal status is accorded to human rights within Western liberal democracies: They enjoy a priority over other human goods and are not subjected to the majoritarian principle. The underlying assumption—the idea that there are some human values that deserve special protection—implies the need for both a normative and a conceptual justification. This paper claims that neither can be provided. The normative justification is needed to support the priority of human rights over other human goods and to rank (...) and balance conflicting human rights, but it can't be provided because of the fact of pervasive value pluralism, the fact that human values are many, incompatible and incommensurable. The conceptual justification is needed to avoid arbitrariness in the interpretation of human rights at the adjudication stage. Such a justification is impossible, however, as the concept of human rights, and the concepts used to justify them and to solve their conflicts are "essentially contested concepts." The paper concludes that, provided that the interpretation of human rights presupposes value judgements and political choices, the special legal status accorded to human rights is not justified. (shrink)

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which (...) I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy. (shrink)

Political liberalism’s central commitments to recognizing reasonable pluralism and institutionalizing a substantive conception of justice are inconsistent. If reasonable pluralism applies to conceptions of justice as it applies to conceptions of the good, then some reasonable people will reject even many liberal conceptions of justice as unreasonable. If so, then imposing these conceptions of justice on citizens violates the liberal principle of legitimacy and related public justification requirements. This problem of justice pluralism requires that political liberals abandon their commitment to (...) institutionalizing a substantive conception of justice. Instead, political justification should be limited to the public justification of a modest scheme of rights and a set of constitutional rules. Justice pluralism chastens the ambitions of political liberalism while pushing the political liberal research program in new and promising directions. (shrink)

Certain philosophers have argued in favour of recognising a right to freedom of conscience that includes a defeasible right of individuals to live in accordance with their perceived moral duties. This right requires the government to exempt people from general laws or regulations that prevent them from acting consistently with their perceived moral duties. The importance of protecting individuals’ integrity is sometimes invoked in favour of accommodating conscience. I argue that personal integrity is valuable since autonomy, identity and self-respect are (...) all dependent on the preservation of personal integrity. I respond to two objections, one pressed by Andrew Koppelman and the other by Richard Arneson, to the claim that personal integrity is valuable, and to a further argument by Arneson to the effect that it is unfair to others claiming accommodations to exempt those with conscience-based claims. (shrink)

This article provides a survey of existing studies of majority rule, outlines misconceptions of majority rule, and highlights underexplored fields of research. It argues that the reasons why the minority complies with majority decisions have been underexplored.

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of (...) all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis : circumstances in which a moral community can no longer be plausibly said to exist. (shrink)

The deliberative model of democracy, as presented by Jürgen Habermas and others, claims to reconstruct the normative content of the idea of democracy. However, since it overemphasises the epistemic facet of decision‐making, the model is unable to take into account other valuable aspects of democracy. This is shown in reference to two concrete phenomena from political reality: majority voting and the problem of the dissenter. In each case, the deliberative model inevitably fails to account for several normatively desirable features of (...) democracy, such as formal political equality and proper respect for the judgement of each citizen. (shrink)

This paper provides a defense of the following thesis: When there is reasonable disagreement over the design of morally necessary collective action schemes, it would not be reasonable to reject the authority of a democratic decision procedure to settle these disputes. My first argument is a straightforward application of contractualist reasoning, and mirrors T. M. Scanlon's defense of a principle of fairness for the distribution of benefits produced by a cooperative scheme. My second argument develops and defends the intuition that (...) treating others morally requires respecting their exercise of moral judgment, or a sense of justice. I conclude by addressing the problem of disagreement over the design of the democratic decision procedure itself, and rebutting Jeremy Waldron's claim that democratic authority is incompatible with judicial review. (shrink)

. Legal theory has so far focused exclusively on judicial activity, not on legislation. This is due to the specific legal framework of reasoning, upon which it is essential to act upon rules, wherever they come from. This form of legalism is criticized and replaced by weak legalism. Weak legalism makes it possible to detect the principles of legislation that underly the activity of the legislator. Legisprudence is the theory of these principles.

For many contemporary liberal political philosophers the appropriate response to the facts of pluralism is the requirement of public reasonableness, namely that individuals should be able to offer to their fellow citizens reasons for their political actions that can generally be accepted.This article finds wanting two possible arguments for such a requirement: one from a liberal principle of legitimacy and the other from a natural duty of political civility. A respect in which conversational restraint in the face of political agreement (...) involves incivility is sketched.The proceduralist view which commends substantive disagreement within agreement on procedures is briefly outlined, as is the possible role for civic virtue on this view. (shrink)

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular (...) sovereignty need not share. In this paper, I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint. (shrink)

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. (shrink)

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of (...) fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy. (shrink)

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not (...) to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means. (shrink)

This article addresses the question of how, if at all, citizens can sustain an effective sense of political belonging without sacrificing other sources of ethical identity. We begin with a critical analysis of Rousseau's classic considerations of politics and religion, which concludes that membership of a sub-political ethical community is incompatible with an effective sense of political belonging. This critique leads us to a consideration of the basic character of contemporary constitutional-democratic polities (drawing on the work of James Tully) and (...) of Waldron's account of the circumstances of politics. These considerations are developed into the claim that we can identify two sources of political belonging: recognition and acknowledgement - which correspond to two aspects of democratic citizenship: as status and as mode of being. On the basis of this claim, we argue that an effective sense of political belonging can be compatible with membership of sub-political ethical communities iff members of the political community are characterised by the majoritarian virtue of civic responsiveness and the minoritarian virtue of civic endurance. We sketch the character of these virtues and the relationship to one another in arguing that only the widespread presence of both kinds of virtue is sufficient to secure citizens' confidence in the polity and hence its stability. (shrink)

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique mounted (...) by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

Often, a health resource distribution (or, more generally, a health policy) ranks higher than another on one value, say, on promoting total population health; and lower on another, say, on promoting that of the worst off. Then, some opine, there need not be a rational determination as to which of the multiple distributions that partially fulfill both one ought to choose. Sometimes, reason determines only partially, intransitively, or contentiously which of the many “compromises” between these two values is best or (...) most choiceworthy. Norman Daniels, Ruth Chang, Martijn Boot, and Anders Herlitz affirm this opinion, which I shall call “value incommensurability,” “rational underdeterminacy,” or “reasonable disagreement.” To decide between the multiple reasonable compromises on health resource distribution, these philosophers recommend a deliberative democratic process, on two main grounds. First, in such situations, deliberation can produce the determinacy needed for decisionmaking. Second, by treating respectfully and justly even those patients or communities for whom the distributive compromise selected is bad, deliberation shields the legitimacy of that policy. Increasingly, practically-oriented bioethics recommends democratic deliberation even more expansively than these philosophers do—for nearly every decision on health resource distribution and not only when values are incommensurate—on these two grounds and on others. And one could propose a more modest variant on this expansive move as the justification of democratic deliberation. I argue that none of these moves warrants democratic deliberation on health policy. (shrink)

This article looks at Bernard Williams’s relevance to particular debates in constitutional theory about the legitimacy of two competing models of institutional design: political constitutionalism which endorses giving the final say on the meaning of constitutional rights to legislatures; and legal constitutionalism which endorses giving the final say on the meaning of rights to courts. Recent defences of political constitutionalism have made claims about the realism of their accounts when compared with legal constitutionalism and have co-opted Bernard Williams’s realism to (...) support their case. This article examines these claims, concluding that these accounts of political constitutionalism rely on a distinctly non-Williamsian form of political moralism in that they assume a legitimacy for political constitutionalism which is prior to politics and political disagreement. It offers an alternative defence of political constitutionalism, a partial defence, which, it argues, is closer to the realism of Bernard Williams than these accounts. (shrink)

Why, exactly, should we punish children who commit crimes more leniently than adults who commit the same offenses? Gideon Yaffe thinks it is because they cannot vote, and so the strength of their reasons to obey the law is weaker than if they could. They are thus less culpable when they disobey. This argument invites an obvious objection: why not simply enfranchise children, thereby granting them legal reasons that are the same strength as enfranchised adults, and so permitting similarly severe (...) punishment? Yaffe answers this question by arguing that child enfranchisement would objectionably undermine the values of political equality and self-government. This article explores some serious doubts about these arguments. It closes by questioning Yaffe’s reliance on a retributivist theory of punishment, contending that, once we reject retributivism in favor of more humane and productive alternatives, the thesis that child criminals deserve a break—which Yaffe assumes to be undeniably correct—becomes less plausible. (shrink)

Alice Le Goff ,Christian Nadeau | : Ce texte constitue une introduction au dossier. Il introduit les différentes contributions en mettant en relief leurs principales orientations. Ce faisant, il propose donc une cartographie conceptuelle, forcément partielle, des enjeux associés à la notion de démocratie épistémique et des enjeux du croisement de cette notion avec celle de démocratie de contestation. En un premier temps, nous revenons sur l’apport du procéduralisme épistémique et sur les questions qu’il soulève. Ensuite, nous revenons sur le (...) néo-pragmatisme et la façon dont il permet d’envisager une justification épistémique de la démocratie. Puis nous mettons l’accent sur les enjeux d’un dialogue entre modèle républicain de la démocratie contestataire et modèle épistémique. Enfin, le texte propose un résumé du parcours proposé dans le cadre de ce dossier. | : This introduction brings out the main lines of the articles collected in the present issue. Our aim is to provide the reader with a conceptual overview of the main stakes of epistemic democracy and of its intersections with the model of contestatory democracy. First, we focus on epistemic proceduralism, its contributions and the questions it raises. Second, we emphasize the way neo-pragmatism deals with the epistemic justification of democracy. Then, we insist on the interest of a dialogue between epistemic democracy and the neo-republican model of contestatory democracy. Finally, the text sums up the path followed in that issue. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

Theories of political authority divide naturally into those that locate the source of states' authority in the history of states' interactions with their subjects and those that locate it in structural (or functional) features of states (such as the justice of their basic institutions). This paper argues that purely structuralist theories of political authority (such as those defended by Kant, Rawls, and contemporary “democratic Kantians”) must fail because of their inability to solve the boundary problem—namely, the problem of locating the (...) boundaries between different states' domains of authority in the natural or intuitive places. (shrink)

The ability of very wealthy individuals (or, as I will call them, the ‘super-rich’) to turn their economic power into political power has been—and remains—an important cause of political inequality. In response, this paper advocates an original solution. Rather than solving the problem through implementing a comprehensive conception of political equality, or through enforcing complex rules about financial disclosure etc., I argue that we should impose a choice on the super-rich. The super-rich must choose between (i) forfeiting the things that (...) make them super-rich, i.e., pay a 100 % tax on their wealth above a certain level, or, (ii) they must forfeit some of their political rights. These rights include entitlements to fund political parties; to stand for office; and to work or volunteer for political parties. The right to vote, though, is not limited. I defend my proposal against non-consequentialist and consequentialist objections. I also argue that it avoids two problems that many attempts to reduce political inequality face; these are the political egalitarian’s dilemma and the problem of political equality’s relative moral importance. (shrink)