‘Legislative frame representation’: towards an empirical account of the deliberative systems approach

The systemic approach to deliberative democracy is an empirically underexplored topic. Since ‘classic’ micro indicators for deliberation are at loggerheads with the idea of distributed deliberation, appropriate assessment techniques for large-scale public deliberation are few and far between. This paper aims at exploring a novel pathway into the empirical translations of the deliberative systems approach, using discourse content and the representation of policy frames in the legislature. I argue that legislative frame representation (LFR) is a crucial indicator for the level of sub-systemic deliberative uptake and policy responsiveness. Next to the necessary theoretical and methodological work, the results of an explorative case study for the immigration discourse in the US and Canada are presented. The results indicate that there are considerable differences in the systems’ capacities to take up discourses from civil society and that LFR can be an important tool to explore deliberative systems empirically.     

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.I am indebted to John Rawls and Burton Dreben for their helpful advice and their comments on an earlier draft of this paper.     

The Argument from Transnational Effects II: Establishing Transnational Democracy

This article continues with a discussion of what the author calls the argument from transnational effects. It says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for each other. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. This article examines the argument critically at a general level. The situation under consideration concerns all cases in which, regardless of whether there is movement or not, the acts of one democracy adversely impact on the interests of others. The article tries to identify instances where the harm is tied to a failure of representation in a transnational context and not caught by the harm principle, broadly understood. In order to calibrate the argument's scope the article resorts to the principle of universalisation. The guiding intuition is that so long as the act of one democracy is morally justified on the basis of this principle, the argument from transnational effects does not apply. Hence the argument is of no avail where the impact of one democracy on another is perfectly legitimate. This would be the case, for example, when the effects are too insignificant to require any debate. Determining the range of legitimate impact is a core question of transnational constitutional law. Any such determination presupposes mutually shared interest definitions. More often than not, however, the relevant interest definitions underlying universalisation are debatable. Therefore, it appears to be inevitable, at first glance, to have relations of transnational interdependency matched by transnational democratic processes. The article then goes on to identify three different types of universalitation with reference to what can be regarded as their respective anchor. Simple universalisation is based upon shared interest definitions. Reflexive universalisation involves common views of oneself (and others). Self‐transcending universalisation is grounded in the desire to live in a free society. Reflexive universalisation requires to extend mutual sympathy. From this perspective, transnational democratic processes are tantamount to nation‐building. However, one would commit a sentimentalist fallacy if one were to conclude that mutual sympathy in and of itself engenders an expansion of mutual responsibility. The article argues that with regard to the third type of universalisation the institutionalisation of transnational democratic procedures cannot be justified. It would threaten to undermine various conceptions of a free society. It is argued that for the sake of the realisation of equal citizenship the argument from transnational effects actually needs to endorse the existence of bounded democratic communities. Unbounded transnational democracy would exercise an adverse effect on citizenship. It also turns out that the argument from transnational effects, in its uncorrected form, remains haunted by the dilemma that the type of democracy that is envisaged by it becomes easily absorbed by administrative processes. The article concludes that the argument from transnational effects, correctly understood, has a more modest import than its proponents would have us believe. Rather than supporting the release of democracy from its national bounds, it helps to explain why the co‐existence of bounded democratic polities remains essential to equal citizenship. More forceful versions of transnational integration graft onto political societies elements that are not genuinely democratic and strangely reminiscent of different forms of rule. These are forms of rule that Aristotle would not have called ‘political’, for they do not involve the exercise of power by equals over equals.     

Doubling Down: Inequality in Responsiveness and the Policy Preferences of Elected Officials

Is bias in responsiveness to constituents conditional on the policy preferences of elected officials? The scholarly conventional wisdom is that constituency groups who do not receive policy representation still obtain some level of responsiveness by legislators outside of the policy realm. In contrast, we present a theory of preference‐induced responsiveness bias where constituency responsiveness by legislators is associated with legislator policy preferences. Elected officials who favor laws that could disproportionately impact minority groups are also less likely to engage in nonpolicy responsiveness to minority groups. We conducted a field experiment in 28 US legislative chambers. Legislators were randomly assigned to receive messages from Latino and white constituents. If legislators supported voter identification laws, Latino constituents were less likely to receive constituency communications from their legislators. There are significant implications regarding fairness in the democratic process when elected officials fail to represent disadvantaged constituency groups in both policy and nonpolicy realms.     

Ideology and Representation in the US Senate: Roll Calls v. Constituent Assessments

Most research on representation in the US Congress examines the relationship between the voting behaviour of legislators and citizens' preferences. Using a roll call-based measure (DW-NOMINATE scores) of US Senators' ideologies and citizen assessments of Senators' ideologies (from the American National Election Study: Pooled Senate Election Study 1988, 1990, 1992), we demonstrate that judgements about Senators' responsiveness (the extent to which more liberal/conservative Senators represent more liberal/conservative states) is sensitive to measurement issues. In addition, using citizen assessments, we move beyond responsiveness to examine ‘representativeness’ (the extent to which Senators' ideologies match the average ideologies of their constituents) as a dimension of representation. We conclude that citizen assessments should not be overlooked since representation may ultimately be a phenomenon that rests in the eye of the beholder and since governmental legitimacy itself rests on citizens' attitudes and beliefs.     

The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement

This article and its sequel examine an argument that has become a shibboleth for the European pro‐attitude towards international and supranational legal arrangements. I call it the argument from transnational effects. The argument says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for one another. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. Since the argument favours normative limitations on national political processes it seems to lend strong support to the introduction of transnational constitutional discipline. In this article and its sequel it is claimed that the argument, correctly understood, cannot support the creation of transnational democracy. Rather, in a critically recalibrated form, the argument, paradoxically, provides strong backing for the existence of bounded political communities without, for that reason, succumbing to ontologically questionable beliefs about the essence of national communities. Hence, the argument is really as much about the limits set to transnational integration as it is about their legitimacy. This explains why it is of central relevance to constitutionalism in a global age. The opening sections of this article offer an interpretation of John Hart Ely's constitutional theory. Examining the latter helps to articulate adequately the democratic sensibility expressed in the argument. It is argued that Ely's theory exceeds the scope of a mere theory of judicial review. It presents, indeed, a theory of constitutional authority, which is highly relevant to an analysis of the argument from transnational effects. The article then distinguishes and discusses two different readings of the representation‐reinforcing task that Ely attributes to constitutional legality. According to one reading, representation is secondary and only ancillary to the realisation of equality. According to another reading, equal participation is prerequisite to the success of representative democracy whose aim is to discover common ground. It is concluded that the first reading is easier to accommodate in a transnational setting. It will be seen that Ely's theory—at any rate, the first reading of it—is basically concerned with the problem addressed by the argument from transnational effects. This article's discussion of the argument distinguishes two different types of situation. A third, more general type will be dealt with in a subsequent article. The first situation affects people who realise that they would be better off if they were to benefit from the laws of a different democracy. Hence, they would like to have these laws imported. It is argued that their interests do not find support in the argument from transnational effects. The second situation concerns someone who encounters obstacles when moving from one democracy to another. Such obstacles can emerge either as a result of discrimination against non‐nationals or from the sheer fact that laws between and among bounded societies are different. The antidote against the latter is to submit national legislation to a proportionality test. Even though reinforcing representation prima facie seems to support this conclusion, the article claims that virtual representation, correctly understood, actually restricts the sweep of constitutional control to cases of behavioural discrimination. Extending the scope of control would actually violate the respect that it is owed to national democratic autonomy pursuant to the principle of virtual representation. It is also shown that only by limiting its sweep the argument from transnational effects can be prevented from endorsing neoliberal political goals.     

The Influence of the Global Order on the Prospects for Genuine Democracy in the Developing Countries

There is much rhetorical and even some tangible support by the developed states for democratisation processes in the poorer countries. Most people there nevertheless enjoy little genuine democratic participation or even government responsiveness to their needs. This fact is commonly explained by indigenous factors, often related to the history and culture of particular societies. My essay outlines a competing explanation by reference to global institutional factors, involving fixed features of our global economic system. It also explores possible global institutional reforms that, insofar as the offered explanation is correct, should greatly improve the prospects for democracy and responsive government in the developing world.     

Parliamentary Consociationalism in Lebanon: Equal Citizenry vs. Quotated Confessionalism

This article sheds light on the governance dilemma in a deeply divided post-conflict Lebanese sectarian society undergoing democratic transition. It assesses consociational democracy as a working model institutionalised by Lebanon in light of the country's composition of multiple religious minorities. In particular, it focuses on the political forces shaping the current Lebanese National Assembly (parliament) within the confessional structure and analyses the prospect and impasses confronting the development of a stable and representative assembly. Analysis of the Lebanese parliament is made in light of five assessment areas identified as fundamental for the emergence of a stable democratic institution: political will and domestic support, representation, lawmaking, oversight, and management and infrastructure. After revealing the deep-rooted deficiency of quota-based confessional representation, the article provides institutional transitional reform recommendations that could increase the likelihood for the legislature to better fulfil the critical functions of representation, oversight, and lawmaking vital for democratic transition. The realisation of consociational democracy in Lebanon, the article argues, would require the eventual adoption of proportional representation as a means of moving the country from a ‘confessionally quotated’ to ‘equal citizenry’ based representation.     

Reflections on Habermas on Democracy

Jürgen Habermas is a radical democrat. The source of that self-designation is that his conception of democracy—what he calls “discursive democracy”—is founded on the ideal of “a self-organizing community of free and equal citizens,” coordinating their collective affairs through their common reason. The author discusses three large challenges to this radical-democratic ideal of collective self-regulation: 1) What is the role of private autonomy in a radical-democratic view? 2) What role does reason play in collective self-regulation? 3) What relevance might a radical-democratic outlook have for contemporary democracies? The author addresses these questions by considering Habermas' answers, and then presenting alternative responses to them. The alternatives are also radical-democratic in inspiration, but they draw on a richer set of normative-political ideas than Habermas wants to rely on, and are more ambitious in their hopes for democratic practice.     

立法民主:概念与根据

立法民主的核心含义是指在立法决策、立法活动中,依据民主原则,贯彻民主原则,法文件的内容则不能作为立法民主的内涵要素.现代立法的要求之一是贯彻立法民主原则,其根据在于,现代法乃是人们享受良好人世生活的一种制度安排,从理性上说,公民有保留立法权力的要求;现代国家社会成员地位的平等,要求立法活动遵行民主原则.     

Employee representation and board size in the Nordic countries

Several European countries have mandatory employee representation on company boards, but the consequences for corporate governance are debated. We use employee representation rules in the otherwise quite similar Nordic countries (Denmark, Finland, Norway, and Sweden) to elicit information on shareholder preferences for employee representation and board size. We find that shareholders tend to choose board structures that minimize the proportion of employee representatives. In Denmark and Norway employee representation depends on board size, and shareholders choose board sizes that minimize the number of employee representatives. However, many companies have more employee representatives than is mandatory. In Sweden, where the law mandates a fixed number of employee representatives (two or three depending on firm size), shareholders choose to have larger boards. In Finland, where employee representation is not mandatory, <1 % of companies choose to have it. Whatever, the merits of employee representation, shareholders appear to be mildly averse to it.     

Reaching African American Battered Women: Increasing the Effectiveness of Advocacy

This study reports findings from interviews with 242, primarily African American, battered women in Detroit. Most of the women rated domestic violence advocacy as very or somewhat helpful. Satisfaction with police and receiving referrals from the legal system were significantly associated with ratings of advocates helpfulness. Receiving information, being emotionally supported, and having advocates readily available and accessible were the most common reasons why women rated advocates as helpful. Women who gave advocates low helpfulness ratings described them as unavailable, unsympathetic, or ineffective in legally sanctioning abusers. Less than half of the women who experienced severe violence in the focal incident reported that advocates helped them with safety planning, and there was a low rate of follow-up on referrals provided by advocates. This analysis suggests that advocacy can be satisfying for urban, African American women, but more intensive services should be provided to make a significant contribution to their safety.     

Women's Political Representation in the European Union

Feminist studies of the European Union seek to make sense of a field that has become enormously complex. Gender equality has been an issue in the EU since the inclusion of Article 119 on equal pay in the Treaty of Rome 1957 but has since widened to the recognition of equality between women and men as a fundamental principle of democracy for the whole EU. Gender equality is present both in gender-specific policies, such as women's participation in the labour market, sexual harassment and reconciliation of work and family, as well as informing the basic principles and functioning of the EU institutions wherever gender mainstreaming is implemented. Feminist explorations of the EU have tended to overlook one aspect of EU gender policies: women's political representation in the EU institutions. This article seeks to address this gap.     

中国民法典的品性

现代民法不仅是调整市场经济的基本法,更主要是通过对市场经济的调整来促进社会的进步、推动人的发展的法律,是一部维护人权、解放人性的法律,是建设民主政治与法治国家的法制基础。将民法定位于一部促进社会进步和人的发展的法律,是现代民法应有品性的回归。     

Representation in multilateral democracy: How to represent individuals in the EU while guaranteeing the mutual recognition of peoples

The democratic criteria for representation in the European Union are complex since its representation involves several delegation mechanisms and institutions. This paper develops institutional design principles for the representation of peoples and individuals and suggests reform options of the European Union on the basis of the theory of multilateral democracy. In particular, it addresses how the equality of individuals can be realised in EU representation while guaranteeing the mutual recognition of peoples. Unlike strict intergovernmental institutions, the EU requires an additional and independent legislative chamber in which individuals are directly represented. However, strict equality of individuals cannot be the guiding principle for this chamber. In order to avoid the overruling of peoples through supranational majorities, it is necessary to bind the chamber's composition by a principle of degressive proportionality. The representation of peoples, on the other hand, needs to be connected to their domestic democratic institutions.     

State-based Representation and National Policymaking: The Evolution of the Australian Senate and the Federation

Ostensibly, Australia's constitutional framers designed the upper house as the ‘guardian of states' interests', ensuring that the smaller states were adequately represented in the federation. In recent decades the Senate has positively reinvented itself as a guardian of democracy, and is commonly known as the ‘house of review’. This study examines the changing representative role of senators and the Senate through surveys and interviews of current and former senators. The Senate has also become more of a guardian of the national interest, with proportional representation, larger constituencies and longer terms being the key institutional factors.     

Narcophobia: drugs prohibition and the generation of human rights abuses

This paper is concerned with the negative aspects of global drugs prohibition. The paper argues that prohibition, which is driven by moralism rather than empirical research, creates a black market that is regulated by violent entrepreneurs, and particular in developing countries where there is a lack of economic opportunities for the poor, offers the only feasible employment options. The paper suggests that the results of experimental legislation should be taken seriously. The militarisation of prohibition enforcement has hindered the advancement of democracy and led to violence and increases in human rights abuses. In conclusion it is argued that the current system of global prohibition creates more problems than it solves, and that issues of drug production and trade need to be dealt with by regulation from within a development perspective.     

Imposing a neo-liberal theory of representation on the Westminster model: A Canadian case

The Conservative government in office in the Canadian province of Ontario between 1995 and 2003 offers a lesson in how the Westminster model can accommodate different interpretations of the role of the elected parliamentarian. The Conservatives espoused a vision of parliamentary representation, rooted in neo-liberal ideology, which held that the primary obligation of elected members was to respect their constituents' interest as taxpayers, superseding attention to any of their other multiple identities traditionally considered to be worthy of representation in the Legislature. The legitimacy of representative democracy was compromised when governments strayed from this norm. This analysis of the purposes of representation provided the intellectual framework for an ambitious restructuring of the Westminster model, most notably an unprecedented reduction in the size of the provincial legislature, as well as the elimination of the Legislature's historic control over its own electoral boundaries and composition.     

The empty place of European power: Contested democracy and the technocratic threat

In this article, I analyse the European Union (EU) in the light of the Lefortian question: What place does power have in a democracy? Claude Lefort has argued that modern democracy is a regime where the place of power is empty. In this article, I investigate what this entails for the EU. I take the current situation of democracy in the EU as being marked by two developments: the contestation of democracy by citizens on the one hand and the hollowing out of democracy at the EU level on the other. Exemplary for the first development are the popular protest movements known as the indignados. The second feature is exemplified by governance and technocracy. My argument suggests that the critical response of the former to the latter can in fact be read as the claim that what should have been the empty place of power in European democracy has come to be occupied by the establishment of an authoritarian regime of expert rule.