Abstract
In this essay I defend an institutional approach to democratic legitimacy against proceduralist approaches that are commonly endorsed by deliberative democrats. Although deliberative democrats defend a complex view of democratic legitimacy that aims to account for both the procedural and substantive dimensions of legitimacy, most accounts of the relationship between these dimensions currently on offer are too proceduralist to be plausible (I). By contrast, I argue that adopting an institutional approach helps provide a more convincing account of the interplay between procedural and substantive aspects of democratic legitimacy which in turn illuminates the intricate relationship between public deliberation and decision-making procedures such as voting (II). This account also enables us to see what is wrong with interpreting the legitimacy of majoritarian and non-majoritarian institutions in terms of an alleged conflict between popular sovereignty and rights protections. In opposition to this view, I argue that the proper standard for judging the democratic legitimacy of both majoritarian and non-majoritarian institutions is whether they enable an ongoing recursive process of deliberative contestation or whether they generate antidemocratic shortcuts instead (III).
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Notes
On this view, the existence of effective opportunities for legal contestation of laws or statues that touch upon fundamental rights and freedoms are very important, but they are by no means sufficient. Effective opportunities for political contestation (e.g., strikes, sit-ins, protests, civil disobedience, initiatives, petitions, etc.) are equally important to ensure that dissenting minorities can effectively influence public debate on the laws or statutes in question. This in turn requires strong protections of freedom of speech, freedom of association, etc., as well as an inclusive political culture. I discuss some of the consequences of the institutional approach for an account of legitimate political activism in the next section. For a detailed analysis of the differences between the institutional approach and agonistic approaches to political activism see Lafont 2020, Chap. 2. For a detailed analysis of the similarities and differences between my conception of legal contestation and Pettit’s conception see Lafont 2020, Chaps 1 and 8.
The institutional approach to legitimacy is incompatible with pure proceduralism but it could be described as a variety of imperfect proceduralism. I prefer to use the expression ‘institutional approach’ not only to avoid confusion but also to highlight its most distinctive features.
E.g., Estlund 2008 distinguishes several varieties of proceduralism and contrasts them with correctness theories (p. 102). Peter 2008 distinguishes between proceduralist and instrumentalist approaches to legitimacy. The institutional approach that I defend here does not fit either of these classifications. It is neither a purely proceduralist nor a correctness/instrumentalist approach to legitimacy.
I develop the concept of antidemocratic ‘shortcuts’ at length in Lafont 2020.
For a good overview see Peter 2007.
I offer a critical analysis of Habermas’s use of these Rawlsian distinctions in Lafont 2003.
Benhabib 1996 defends a similar view (see p. 72).
The problem with this principle is not that the majority may not be open to revise their views on substantive grounds. Indeed, the principle explicitly contemplates that possibility. The problem is that, according to the principle, so long as the majority remains unconvinced, the enforcement of majoritarian decisions is legitimate (and dissenting minorities have a duty to obey them). I am grateful to an anonymous reviewer for pointing out the need to clarify this point.
I take this principle from Waldron 1999, p. 198 and pp. 245−246. I offer a critical in-depth analysis of Waldron’s defense of ‘pure majoritarianism’ over ‘modified majoritarianism’ in Lafont 2020, pp. 54–60. In my view, the institutional approach can avoid Waldron’s objections to Dworkin’s defense of ‘modified majoritarianism’. But I do not rule out that other approaches may be able to do so as well.
I add the expression ‘post-deliberative’ here to indicate that for deliberative democrats, majority rule has a presumption of legitimacy only if it is applied after deliberation and not in the absence of deliberation among decision-makers. The expression is not meant to suggest that deliberation ever comes to an end. I am grateful to an anonymous reviewer for indicating the need to clarify this point.
I offer an account of the legitimacy of activism along these lines in Lafont forthcoming.
Waldron 1999 suggests that if the rights violations in question are severe enough citizens may feel that there is no legitimate solution to their conflicts and the dissolution of the political community may be the only option. However, since this option is not always available, especially for non-territorial political struggles about rights (e.g., women or LGTBQ liberation movements), it seems that the only options available to citizens in that situation is either to put up with severe unjust laws or renounce political membership. I discuss the difficulties of this approach in Lafont 2020, pp. 45–54.
For a discussion of correctness theories of legitimacy see Estlund 2008.
In this context, it is important to keep in mind that legitimacy is a less demanding idea than justice (or substantive correctness in general) and, consequently, ascriptions of the former behave quite differently from ascriptions of the latter. First, in contrast to justice, legitimacy is not a permanent property of political decisions. It is a property that can be lost and thus can change over time. This difference is captured in our retrospective judgments: if a political decision is unjust, then it was always unjust and will always be unjust. By contrast, its coercive enforcement in a political community may be legitimate at a given time and become illegitimate at a later time (e.g., as soon as its compatibility with the protection of fundamental rights or freedoms is properly contested, even if only by a dissenting minority). Second, in contrast to justice, legitimacy can be a matter of degree. The enforcement of political decisions may be more or less legitimate at particular times (e.g., depending on the extent to which the citizenry has reached a ‘settled view’ on their compatibility with the protection of fundamental rights and freedoms).
The idea of constitutional constraints is helpful for understanding my use of the reasonable/unreasonable distinction in this context. Not every law and policy that has majority support is ‘constitutional’ for that reason alone. On the contrary, regardless of whether a law or policy has majority support, showing that it is unconstitutional undermines its legitimacy (and its legality). On the other hand, not every law or policy that some citizens disagree about is ‘unconstitutional’ for that reason alone. Citizens can agree on the constitutionality of some laws and policies but nonetheless disagree about whether they are the right or best ones strictly on their merits. I use the reasonable/unreasonable distinction in a similar way, although there are two important differences. First, the constitutional/unconstitutional distinction is broader than the reasonable/unreasonable distinction. The latter applies only to questions of fundamental rights and freedoms whereas the former applies to all other types of constitutional questions. Second, and most importantly, the reasonable/unreasonable distinction is not bound to any factually existing constitution (written or unwritten) in the way the constitutional/unconstitutional distinction is.
Needless to say, in many cases it may be hard to judge whether the enforcement of a particular political decision is legitimate. This is especially the case for decisions that touch upon rights but are not politically or legally contested. In such cases, it may be hard to know whether the lack of contestation in a political community is due to the existence of a settled view among its citizens on the legitimacy of these decisions or whether it is due to the fact that existing venues of contestation are too costly or out of reach for dissenting citizens to be able to make effective use of them, whether vulnerable citizens are unduly excluded from public deliberation, silenced, coerced, misinformed, manipulated, and so on.
For a detailed articulation of this argument against deliberative democracy see Wolterstorff 1997.
Needless to say, many existing institutions of judicial review notoriously fail to meet this normative criterion of democratic legitimacy. The point of articulating and defending such a criterion is certainly not to justify existing institutions that fail to meet it but to indicate in which direction failing institutions would need to be reformed if they are to meet the criterion in question and thus be democratically legitimate. I offer an in-depth discussion in Lafont 2020, Chap. 8.
For a similar elaboration of this view see Benhabib’s conception of ‘democratic iterations’ in Benhabib 2006. However, in my opinion Benhabib’s conception of democratic iterations is incompatible with her defense of pure proceduralism, whereas the institutional approach to legitimacy is a much better fit.
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Acknowledgements
I am grateful for interesting comments and questions raised by two anonymous reviewers as well as by participants in the workshop on democratic decision-making methods that took place in September 2022 at the University of Hamburg, where I presented an earlier version of this essay.
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Lafont, C. Deliberation and Voting: An Institutional Account of the Legitimacy of Democratic Decision-Making Procedures. Res Publica (2023). https://doi.org/10.1007/s11158-023-09634-y
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DOI: https://doi.org/10.1007/s11158-023-09634-y