Democracy: A Convergent Value? Comments on Sheldon Leader and Ernesto Garzón Valdés

In this paper, the author contends that Leader's attempt to ground the value of toleration on a common understanding of democracy faces a number of fundamental obstacles. Such obstacles could only be overcome if both liberals and their opponents were to reach an agreement on the value of democracy and thereby converge in their support of toleration. The author shows that far from providing a common ground that liberals and their opponents can share, the so-called "shareable understanding" of democracy appeals primarily to liberals. The author also argues that Garzón Valdés's thesis that democracy is the system best suited to the flourishing of toleration faces the same kind of difficulty, namely, that not every group in a liberal constitutional regime can be convinced of the priority of democratic principles over their other fundamental value-commitments.     

Toleration without Liberal Foundations

The author's aim is to find principles grounding and limiting toleration that are sufficiently sensitive to the variety of distinct settings in which concrete problems arise, and to produce principles which can appeal both to liberals and to non-liberals. The range of settings is covered by fixing the nature of three distinct species of the genus right to toleration. Once these rights are analysed, an attempt is made to see what agreement about them can be reached by liberals and non-liberals if they have a common commitment to democracy. A definition of democracy is produced that, it is argued, liberals and non-liberals would have difficulty rejecting. It is then explored as a definition that has definite consequences over the three rights to toleration, putting the opponents before a choice: either to accept their preferred content for the right to toleration, or to support a democratic policy.     

The Idea of “Free Public Reason”

Abstract. In this paper the nature and the role of Rawls's idea of a “free public reason” are examined with an emphasis on the divide between the private and the public spheres, a divide which is the hallmark of a liberal democracy. Criticisms from both the so-called Continental tradition and the Communitarian opponents to liberalism insist on the ineffectiveness of such a conception, on its inability to establish a political consensus on democracy. But it would be a mistake to see a contractarian theory of justice, such as Rawls's justice as fairness, as grounding the social contract in a public use of reason. Such a contract would indeed be susceptible to endless conflicts and renegotiations and would never achieve consensus. Therefore, a distinction must be made between the values of justice that are present in and through the “original” contractual position and the that regulate the public sphere and guarantee its stability.     

Locke on Toleration and Inclusion

As the product of liberalism's first encounter with the theoretical problems posed by legal discrimination and unequal treatment of minority groups, Locke's argument for religious toleration foreshadowed contemporary democratic theory's emphasis on non‐coercive discussion of diverse rights claims and broadly inclusive public deliberations. This study tries to illuminate the democratic dimension of Locke's toleration theory by focusing on his crucial account of the church as a voluntary association. Here Locke presented discursive possibilities for the articulation of diverse beliefs and interests that he believed would not only benefit both society as a whole and the minority religious groups contained in it, but also weave principles of contestation and deliberation into the very fabric of the liberal polity.     

On-line Citizenship: Consultation and Participation in New Labour's Britain and Beyond

This article looks critically at how the Labour Government in the United Kingdom is using technology to connect with citizens. Although the UK Online and Citizen's Portal initiative may improve the level of service in transactions between government and citizens it is argued that such an approach misses out on the possibilities of using technology to re-invigorate democracy by creating a new public space where participatory decision making can enhance a wider project of democratic renewal. After reviewing briefly the background of government using technology, the article examines ideas of participatory democracy and endorses a normative ideal of democracy as political communication within a model of democratic process where citizens must engage with one another and with government in a genuinely neutral public space. The potential of technology to enhance democratic decision making is reviewed and a model of participatory decision making for computer support is outlined. This is followed by an overview of the range of computer support tools that are available to develop such a model.     

Moral Individualism and the Justification of Liberal Democracy

This article discusses the connection between individualism, pluralism and the moral foundation of liberal democracy. It analyses whether the requirement of value pluralism promoted by liberal democracies leads inevitably to communitarian ethics, or whether the liberal and democratic values of autonomy, tolerance and equality are actually based on an objectivistic and teleological account of justice. The author argues that value-neutral procedural and methodological individualism cannot support the liberal demands for pluralism and tolerance in a democratic regime. Instead, the justification of liberal democracy has to replace mechanical, methodological individualism with moral individualism. Moral individualism shows that in order to be legitimate and functioning liberal democracy has to be based on the form of individualism which contains objectivist moral aspects.     

Legitimacy is Not Authority

The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of these two traditions, I believe they both misunderstand the nature of legitimacy. In this essay I argue that the legitimacy of a law is neither necessary nor sufficient for its normative authority, and I argue further that the need for legitimacy in law arises regardless of whether the law is coercively enforced. I thus articulate a new understanding of the legitimacy and authority of law.     

Contemporary Pluralism and Toleration

The author outlines a conception of toleration as recognition of differences which she argues to be more adequate than current liberal views in order to face issues arising from contemporary pluralism. The liberal conception of toleration as freedom from government's interference in certain areas is appropriate if pluralism is conceived of as a plurality of conflicting conceptions of the good. By contrast, if pluralism is understood as the plurality of groups and cultures, asymmetrically situated in democratic society, then the issues underlying toleration are seen as the contested claim of minorities for asserting their different identity in the public space. Public toleration of differences is thus viewed as a symbolic public gesture of inclusion of the different identities and their bearers into democratic citizenship on an equal footing as members of minority groups. The argument supporting public toleration is so founded on reason of justice.     

Transitional Justice and the Quest for Democracy: A Contribution to a Political Theory of Democratic Transformations

The paper seeks to contribute to the transitional justice literature by overcoming the Democracy v. Justice debate. This debate is normatively implausible and prudentially self‐defeating. Normatively, transitional justice will be conceptualised as an imperative of democratic equal concern. Prudentially, it can prevent further violence and provide an opportunity for initiating processes of democratic emotional socialisation. The resentment and indignation animating transitions should be acknowledged as markers of a sense of justice. As such, they can help the reproduction of democracy. However, their public expression must be institutionally filtered through democratic norms. The consistent institutional instantiation of equal respect can educate and recuperate negative emotions for democracy.     

Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

The European Court of Justice (ECJ) serves, among other things, as a constitutional court for the EU. This means that it possesses the legal right to strike down both EU and national laws it deems irreconcilable with treaty provisions. In the present article, we shall draw on Hans Kelsen's theory of democracy to argue that the ECJ's competence to review and invalidate legislation is, in fact, indispensable for the democratic legitimacy of the EU's legal system as a whole.     

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.     

论西方法治政府的理念逻辑及其借鉴价值

西方法治政府理念具有人类普遍的进步性,它保护人权以申张个人自由,实行民主政制以维护公民政治权利,实行法治以匡正政府权力界限。西方法治政府理念历经共和主义、民主主义、自由主义、法治主义到服务主义的演进过程。其中,共和主义确立政府形式,民主主义解决主权归属和政府合法性,自由主义表征政府目的,法治主义护佑公民权利,服务主义标明政府行为理性。这些理念对我国的法治政府建设具有重要的借鉴价值。     

The Idea of Deliberative Democracy. A Critical Appraisal

The deliberative conception of politics seems to be necessary for the legitimation of state power through democratic will-formation and decision-making. However, the author maintains that a complex theory of democracy cannot merely consist in procedural prerequisites for organizing the concomitant institutional settings. In particular, such a theory must comprise some substantive presuppositions, such as social and economic rights, in order to diminish existing material inequalities, especially those connected with social exploitation and domination. The author argues that a contemporary theory of democracy should reflect on the autonomization of mechanisms of egoistic action challenging not only the democratic political order, but also the very reproduction preconditions of societies all over the world. In this perspective, the model of associative democracy, which is suggested nowadays as a sort of substantive correlative to the institutional proceduralism, could not significantly rejuvenate the traditional representative democracy. Instead, democracy could only be given a fresh impulse if democratic deliberation penetrates the currently forbidden field of capitalist production and social exploitation, the locus where social inequality and effective unfreedom are endlessly reproduced.     

Exorcising excision: medico-legal issues arising from male and female genital surgery in Australia

Genital surgery is one of the most controversial and contested practices, yet it is frequently described and referred to with little or no attention to cultural and social context. This article examines the practice, performed on both men and women, and the extent to which it clashes with issues of consent and capacity, as well as multicultural concepts of toleration for minority group practices. It then questions why female genital surgery, unlike male genital surgery, is legally prohibited in Australia. It argues that such legal gender bias stems from a liberal conception of "tolerance" and the limits of consent in Australia, placing female genital surgery in an "unacceptable" category and male genital surgery in an "acceptable" category.     

Bringing European Democracy Back In—Or How to Read the German Constitutional Court's Lisbon Treaty Ruling

This article critically examines the democratic theory that informs the German Federal Constitutional Court's Lisbon Treaty ruling. This is needed because the ruling is ambiguous with regard to which type of democracy applies to which type of Union. In order to analyse the ruling we establish three models of what European democracy possibly can amount to: audit democracy based on the EU as a derivative of the Member States; a multinational federal state; or a regional cosmopolitan polity? The court's depiction of the EU does not fit as well as we would expect when labeled as a derivative entity due to the important legislative role of the European Parliament. The EU's legal supranationalism points in the direction of a federation, but the court's argumentation does not lend support to this notion. The court models democracy on a rather specific set of institutional presuppositions that are derived from the parliamentary model of democracy associated with the sovereign nation state. At the same time, the court operates with a conception of a changing state sovereignty that unfolds more in line with cosmopolitan rather than with classical Westphalian statist principles.     

Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?

The current crisis in Europe recalls the theory and practice of authoritarian liberalism, the idea that in order to protect economic liberalism and respect for fiscal discipline, representative democracy must be curtailed. This configuration was first identified by Hermann Heller in late Weimar as a response to the imperative to maintain the ideological separation of state and economy and presented by Karl Polanyi as conditioned by broader geo‐political pressure to maintain the gold standard in the inter‐war period. Authoritarian liberalism is now conditioned by conflicting imperatives to maintain the project of the single currency, respect ordo‐liberal concerns of moral hazard, and protect ‘militant democracy’ but only in one country. Does this reflect a broader geo‐political disequilibrium, due to tensions between market integration, constitutionalism and democracy?     

Liberalism and Minority Rights. An Interview

The interview focuses on Kymlicka's major area of research, i.e., the issue of minority rights. Kymlicka explains why the rights of national minorities have been traditionally neglected in the Western political tradition. He argues that these rights promote individual freedom, and so should be seen as promoting liberal democratic principles. The interview covers many issues including the relationship between ethno-cultural groups and other forms of "identity politics"; how to individuate cultural groups with legitimate claims to minority rights; whether something like a "cosmopolitan view" can seriously challenge the need for minority rights; what are the dangers of building transnational political institutions such as the EU for democratic citizenship; what are the bases of social unity in multination states and what are the limits of toleration of illiberal minorities.     

Promoting Whole-Process People’s Democracy Following the Rule of Law

Whole-process people’s democracy profoundly reflects the features of socialist democracy with Chinese characteristics, and comprehensively and systematically reveals the concept of people’s democracy as providing important mechanisms of national and social governance. Based on the traditional democratic understanding of democracy as majority rule, whole-process people’s democracy emphasizes the universality and extensive range of democratic governance, but also has the natural value defects of democratic value itself. Therefore, we must organically combine democracy with the values of the rule of law and human rights, to build a well-defined governance order based on people’s democratic value. The whole process in the “whole-process people’s democracy” has really resolved the situation of people’s “absence” from many links of state power operation caused by over-emphasizing the election-democracy in the Western capitalist democratic system. Through the people’s extensive participation and effective supervision, the state power operation mechanism based on the fundamental political system, the people’s congress system, has been ensured to be always in the framework of people’s democratic governance. This effectively realizes the people’s sovereignty and is consistent with the declaration that “all power in the People’s Republic of China (PRC) belongs to the people,” stipulated in the Constitution of China. To improve the governance efficiency of whole-process people’s democracy in practice, we must bring it onto the rule of law, and use the rule of law philosophy and methods to reasonably and effectively resolve all kinds of theoretical and practical problems.     

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.     

Political Liberalism. Neutrality and the Political

Abstract. The paper examines the current discussion in liberalism around the issue of the "neutrality" of the state. It scrutinizes the "political liberalism" defended by John Rawls and Charles Larmore and shows that the consequence of their approach is to evacuate the dimension of "the political" from the idea of a well-ordered society. By presenting the exclusions existing in their model of liberal society as the product of free agreement resulting from rational procedures, "political liberals" offer us a picture in which antagonism, violence and power have only disappeared because they have been made invisible. The consequence is to leave liberalism unable to conceptualize power and antagonism. The paper concludes that there cannot be such a thing as a "neutral justification of the neutrality of the state" (Larmore 1987) and that a pluralist perfectionist perspective like the one proposed by Joseph Raz offers a more adequate way to envisage the specificity of modern pluralist democracy.