Norms, Procedures, and Democratic Legitimacy

The overall thrust of the argument points in two opposite directions: it pleads for dimming the contrast commonly drawn between political philosophy and political science but calls for a more radical distinction between the activities of politics and of philosophy, and between its rationality and that of political mediation. Within the first strand of the argument, the fact-value problem is re-examined, whilst within the second strand - the central theme of the article - the operatively legitimizing source of political norms is viewed within a procedural locale that is recognizably democratic, in that its validation is a matter of opinion, of appraisal and reappraisal in and through civic activity itself, and not directly the work of extra-political doctrines that substantively predetermine it. Although not thus preconditioned, procedural democracy is portrayed as being governed by a cognitive and institutional 'space'in which the'conversion'of doctrinal'isms'issues in'performative principles, rather than a regime of pragmatic ad hocism .     

Regulation by generalization

Both criminal and regulatory laws have traditionally been skeptical of what Jeremy Bentham referred to as evidentiary offenses – the prohibition (or regulation) of some activity not because it is wrong, but because it probabilistically (but not universally) indicates that a real wrong has occurred. From Bentham to the present, courts and theorists have worried about this form of regulation, believing that certainly in the criminal law context, but even with respect to regulation, it is wrong to impose sanctions on a “Where there’s smoke there’s fire” theory of governmental intervention. Yet, although this kind punishment by proxy continues to be held in disrepute both in courts and in the published work, we argue that this distaste is unwarranted. Regulating – even through the criminal law – by regulating intrinsically innocent activities that probabilistically, but not inexorably, indicate not‐so‐innocent activities is no different from the vast number of other probabilistic elements that pervade the regulatory process. Once we recognize the frequency with which we accept probabilistic but not certain burdens of proof, probabilistic but not certain substantive rules, and probabilistic but not certain pieces of evidence, we can see that defining offenses and regulatory targets in terms of non‐wrongful behavior that is evidence of wrongful behavior is neither surprising nor inadvisable.