In this essay, I make the interpretive claim that we cannot properly understand the Federalist without appreciating the extent to which the papers mount a sustained rejection of extra-constitutional democracy—practices in which people aim to assert authority over the terms of common life in ways that are not sanctioned by existing laws. I survey such practices, which were common in America before and after the Revolution. I argue that there is continuity between Publius’s justification for rejecting extra-constitutional democracy and his (...) justification for his preferred system against constitutional alternatives. Adequate analysis and evaluation of the Federalist’s arguments about faction, representation, and institutional design require attention to the double duty the arguments play against constitutional and extra-constitutional opposition. This interpretive argument supports several analytic and evaluative conclusions. First, we must distinguish a new form of “non-hierarchical dualist” constitutionalism, according to which irregular democratic activity need not be limited to extraordinary “constitutional moments” or revolutions. Second, the politically egalitarian character of procedures depends not on the procedures alone, but how the maintenance of such procedures limits other forms of democratic practice. Third, the argument suggests a novel defense of “uncivil” disobedient politics: one grounded not in contributions to democratic deliberation, but in the entitlements of citizens to direct assertions of authority over common life. (shrink)

The American and some other constitutions entrench property rights by requiring super majoritarian voting as a condition for amending or revoking their own provisions. Following Buchanan and Tullock [The Calculus of Consent, Logical Foundations of Constitutional Democracy (University of Michigan Press, Ann Arbor), 1962], this paper analyzes individuals' interests behind a veil of ignorance, and shows that under some standard assumptions, a (simple) majoritarian rule should be adopted. This result changes if one assumes that preferences are consistent with the behavioral (...) phenomenon known as the endowment effect. It then follows that (at least some) property rights are best defended by super majoritarian protection. The paper then shows that its theoretical results are consistent with a number of doctrines underlying American Constitutional Law. (shrink)

A democrat who finds himself in the minority on some political issue is compelled to judge that the policy favored by the majority ought to be implemented even though he believes that same policy ought not to be implemented because it does not represent the best social policy. I argue that this paradox does not reduce to a mere conflict of prima facie judgments (Rawls); that to view the paradox as a conflict of desires rather than of principles (Barry) makes (...) it impossible for the democrat to decide what policy is best; that the paradox does not rest on the mistaken assumption that the policy favored by the majority is the best (Haksar) and that it is only by understanding the seemingly incompatible judgments in a way that allows them both to be true that the paradox can be resolved. (shrink)

The majoritarian conception of democracy implies that counter-majoritarian institutions such as federalism—and even representative institutions—are derogations from democracy. The majoritarian conception is mistaken for two reasons. First, it is incoherent: majoritarianism ultimately stands against one of democracy’s core normative commitments—namely, political equality. Second, majoritarianism is premised on a mistaken view of power, which fails to account for the power of numbers and thereby fails to explain the inequality faced by members of persistent minorities. Although strict majority rule serves (...) the democratic values of political agency and equality as interpreted by a set of formal conditions, an adequate conception of power shows why in real-world conditions formal-procedural inequalities, instantiated by counter-majoritarian institutions such as federalism, are sometimes required to serve democratic equality. (shrink)

The argument of this paper is that the justification of democracy’s core principles of popular control over government in conditions of political equality, and the defense of them against paternalist alternatives, requires appeal to basic features of political decision-making and of human nature, respectively*its capacities and limitations*which are universal in their scope, and do not stop at borders. It follows that if a democratic form of government is appropriate anywhere, it must be so everywhere, though differences of social structure and (...) historical tradition may make it more difficult to establish and sustain in practice in some countries than in others. However, these common features do not entail uniformity. The fundamental freedoms necessary to popular selfgovernment in any form encourage diversity, and allow it to find full expression in the public sphere. Yet, there is a limit to the movements and beliefs that are compatible with democracy, and that comes when they reject one or other of its core principles. At the same time, some of democracy’s characteristic elements*freedoms of expression and association, electoral competition for office, majoritarian procedures*can serve to exacerbate societal conflict, especially though not only in newly democratizing countries. In such circumstances only the establishment of a process of inclusive dialogue, involving respect for difference and an understanding of the requirements of political equality, can serve to resolve such conflicts. In other words, a commitment to democracy’s core principles is needed to moderate the effects of some of its own typical procedures. Keywords: democratic principles; universalist; paternalism; rights; democracy; majoritarianism; minorities (Published: 4 December 2009) Citation: Ethics & Global Politics, Vol. 2, No. 4, 2009, pp. 281–296. DOI: 10.3402/egp.v2i4.2111. (shrink)

This paper argues that the contrast between direct and representative democracy is less important than that between simple majoritarianism and deliberative i.e., public reason centred, democracy, as only the latter is sufficiently sensitive to the problem of domination. Having explored a range of arguments in favour of direct democracy it is argued that moves in this direction are only warranted when the practice of public reasoning will be enhanced. Both symbolic representation and delegate democracy are rejected in favour of (...) substantive measures to formalise communication between voters and representatives and permit the formal contestation of political decision on the ground that these will provide stronger defences against domination within the political system. (shrink)

Ganghof’s Beyond Presidentialism and Parliamentarianism advances three main claims: an innovative typology of comparative government, introducing the category of semi-parliamentarianism; an explication of two conceptions of majority rule, simple majoritarianism and complex majoritarianism; and a demonstration that there are viable systems of government embodying the political equality associated with each majoritarian conception. This paper explains these claims and identifies issues discussed in this symposium.

The central thesis of this article is that populism is a side effect of liberal democracy and a reliable indicator of the relationship between liberal democracy and its polar opposite ‒ illiberal majoritarianism. As long as liberal democracy prevails over illiberal majoritarianism, populism remains dormant. Populism rises and becomes conspicuous only if certain manifestations of illiberal majoritarianism or illiberal elitism reach a critical point in terms of number and impact. More exactly, populism becomes active when there are (...) too few reasonable and effective responses to the growth of illiberal majoritarianism. Illustrating the defense mechanism of compensation, the rise of populism correlates with a cluster of exaggerated or overdone reactions to actions inspired by illiberal majoritarianism. These reactions vary sharply from one society to another according to (a) the specific challenges of illiberal majoritarianism, (b) the reactivity of people who bear the liberal democratic values, and (c) the credibility enjoyed by the mainstream liberal democratic forces in that society. In brief, although illiberal majoritarianism sets off a cluster of populist reactions in any society, the rise of populism always takes distinct forms. Thus, it is confirmed the status of populism as a chameleonistic phenomenon. The argumentative thread has four main parts. Firstly, it is developed a constitutive model of liberal democracy as an ideal political system that is underpinned by the following organizing principles or attractors: inclusiveness, political equality, political participation, predominance of concurrent majority, the containment and predictability of the government power, and the enforcement of the non-aggression principle. Secondly, the attractors of liberal democracy are contrasted against the recent state of affairs in the Euro-Atlantic space to illustrate the assertion presented here that today illiberal majoritarianism tends to prevail over liberal democracy. In the third step, it is argued that the countless definitions of populism only emphasize different symptoms of the rise of populism, depending on the particular circumstances in which society evolves. Finally, it is substantiated the claim that populism and populists can and should be integrated into the democratic political system, in particular into the democratic public sphere. (shrink)

Harry Eckstein’s long-standing (but ever-changing) hypothesis that a nation’s political stability is a function of “congruence” between the “authority patterns” exhibited by the government and those displayed by nearly every sort of institution under that government’s aegis involved a highly complex politico-psychological theory. As a result, it was quite difficult either to confirm or disconfirm. While there have been a number of suggested revisions that apparently simplify his thesis, they suffer either from vagueness or a failure to take democracy to (...) be a system that requires an actual commitment to majoritarianism. In this paper a revision is offered that utilizes a small number of completely dichotomous variables that are easily subject to empirical tests. This revised theory (of “consonance” rather than congruence) is also explicitly majoritarian, enabling it to shed light on the essential nature of democratic regimes. (shrink)

Western society today is less unified by a set of core values than ever before. Undoubtedly, the concept of moral consensus is a difficult one in a liberal, democratic and pluralistic society. But it is imperative to avoid a rigid majoritarianism where sensitive personal values are at stake, as in bioethics. Bioethics has become an influential part of public and professional discussions of health care. It has helped frame issues of moral values and medicine as part of a more (...) general effort to find consensus about some of the most perplexing questions of our time. But why is it thought that a moral consensus is important or that it deserves respect? How does moral consensus acquire legitimacy in a society that includes diverse value systems? How is moral consensus possible and how do small groups help create or distort consensus processes? Written by a medical school professor trained in philosophy, this timely work tackles these questions from philosophical, historical, and social scientific standpoints. It begins by describing the traditional ambivalence about consensus in Western culture as well as the uncertain relationship in modernity between consensus and expertise. After outlining the current bioethical consensus, the book gives philosophical and political analyses of the idea of consensus, then assesses the role of consensus in national ethics commissions and in the ethics committee movement. Moreno constructs an original, naturalistic philosophy of moral consensus, referred to as "bioethical naturalism", and then applies sociology and social psychology to actual consensus processes. The book concludes with an account of bioethics as a consensus-oriented social reform movement. This insightful volume will be essential reading for bioethicists, philosophers, physicians, members of ethics committees, and all those concerned with ethical and social issues in health care. (shrink)

Can we design a perfect democratic decision procedure? Condorcet famously observed that majority rule, our paradigmatic democratic procedure, has some desirable properties, but sometimes produces inconsistent outcomes. Revisiting Condorcet’s insights in light of recent work on the aggregation of judgments, I show that there is a conflict between three initially plausible requirements of democracy: “robustness to pluralism”, “basic majoritarianism”, and “collective rationality”. For all but the simplest collective decision problems, no decision procedure meets these three requirements at once; at (...) most two can be met together. This “democratic trilemma” raises the question of which requirement to give up. Since different answers correspond to different views about what matters most in a democracy, the trilemma suggests a map of the “logical space” in which different conceptions of democracy are located. It also sharpens our thinking about other impossibility problems of social choice and how to avoid them, by capturing a core structure many of these problems have in common. More broadly, it raises the idea of “cartography of logical space” in relation to contested political concepts. (shrink)

Are we witnessing progress or regress in the recent increasing popularity and electoral success of populist politicians and parties in consolidated democratic nations? ... Is the innovative use of popular referendum in Great Britain to settle fundamental constitutional questions a progressive or regressive innovation? ... Similarly, is the increasing use of constituent assemblies to change constitutions across the world evidence of progress in democratic constitutionalism, or, a worryingly regressive change back toward unmediated popular majoritarianism? ... This paper reflects on (...) some of the perils and promise of framing such questions with the conceptual couplet of progress and regress. It considers four compelling critiques of the use of ‘progress’ and its cognates in sociopolitical theory, as well as arguing that such concepts are nevertheless ineliminable for our normative theories. The paper concludes by suggesting that we can avoid the most serious problems by employing only conceptions of political progress and regress that are piecemeal, pragmatic, and processual. (shrink)

Against the dominant trend in contemporary republicanism, which views Roman political theory as providing significant resources to contemporary emancipatory projects, this article reads the Roman legal and political theoretical tradition as revealing above all the capacity of Republican resources to be coopted in support of monarchic domination. It does so by tracing changes in doctrines of liberty, popular sovereignty, magistracy and majoritarianism from the period of the free Republic into the Principate and thence into the Justinianic codifications, as well (...) as their reception in twelfth- and thirteenth-century Italy. Along the way it urges a more nuanced view of the sources of the Republican tradition: an awareness both of when specific sources on Rome became available to late medieval and early modern thinkers and of the imperial origins of the major sources available before the sixteenth century. (shrink)

Constitutional reform has been an important means to push populist authoritarian agendas in Hungary, Poland, Turkey and Venezuela. The embrace of constitutional means and rhetoric in pursuit of these agendas has led to the growing recognition of ‘populist constitutionalism’ as a contemporary political phenomenon. In all four examples mentioned above, democracy, popular sovereignty and direct plebiscitary appeal to the people is the rhetorical and justificatory framework for constitutional reform. This, I worry, gives democracy a bad name and reinforces the widespread (...) suspicion that citizens should not be directly involved in constitutional reform as popular participation can lead to dangerous majoritarianism and is easily manipulated by elite actors seeking to weaken constitutional checks and balances. But the problem, I argue, is not inherent in citizen’s participation in constitutional reform. In contrast to populist constitutionalism, I develop an idea of deliberative constitutionalism in which citizens can participate in constitution-making and reform without hijacking constitutionalism for majoritarian, nationalist or anti-pluralist ends. Deliberative constitutionalism as I understand it has four features: a Habermasian co-originality thesis that articulates the interdependence of democracy and liberalism mediated by a conception of discourse; a proceduralized idea of popular sovereignty that reduces the tension between appeal to the people and respect for pluralism; the centrality of the public sphere over the voting booth as the cradle of democracy; institutional innovations intended to include citizens in constitutional reform but avoid majoritarian and populist pathologies. (shrink)

Jeremy Waldron’s Law and Disagreement1 is an extremely important and influential book. Not only is it probably the best known recent text presenting the case against judicial review, but it is also rich in details and arguments regarding related but distinct issues such as the history of political philosophy, the relevance of metaethics to political philosophy, the desirable structure of legislative bodies, the justification of democracy and majoritarianism, Rawls’ political philosophy, and much more. In commenting on such rich work, (...) then, the difficulty is not to find things to disagree (or indeed agree) with, but rather to pick and choose among the many topics one can discuss. Below I focus on what seem to me like central difficulties in the more general political philosophy Waldron seems to endorse, and in its application to the topic of judicial review. (shrink)

Epistemic democracy aims to show, often by appeal to the Condorcet Jury Theorem, that democracy has a high chance of reaching correct decisions. It has been argued that epistemic democracy is compatible with various metaethical accounts, such as moral realism, conventionalism and majoritarianism. This paper casts doubt on that thesis and reveals the following metaethical dilemma: if we adopt moral realism, it is doubtful that voters are, on average, more than 0.5 likely to track moral facts and identify the (...) correct alternative. By contrast, if we adopt conventionalism or majoritarianism, we cannot expect that voters are both competent and sincere. Either way, the conditions for the application of Condorcet’s theorem are not met. (shrink)

This contribution to the Common Knowledge symposium “Antipolitics” explores the place of legal agency in the political thought and activities of John Lilburne, one of the leading English Levellers of the seventeenth century. Protection of his rights as a freeborn Englishman was central to his political campaigns and political thought and was an important element of his published Leveller tracts. Much commentary on the Levellers has emphasized their demand for annual parliaments elected on a broad franchise and equal distribution of (...) seats. But these constitutional arrangements were not an endorsement of ideals of universal suffrage, representative democracy, and majoritarianism but instead—along with legal agency—mechanisms for the protection of the people from tyranny. This overlooked feature of Leveller political thought may have something to teach us about the essential purposes of democracy in the face of majoritarian populism. (shrink)

Minimalism is a theory, of increasing popularity in the United States in recent decades, that requires the judiciary to base its decisions on the most limited grounds available. One of its central tenets dictates that the judiciary, if at all possible, should base its rulings on statutory rather than constitutional grounds. Set in the context of the "War on Terror" and a number of U.S. Supreme Court decisions regarding the rights of prisoners held in Guanta´namo, this Article seeks to identify (...) the pitfalls of such an approach to judicial decisionmaking. Specifically, it shows how minimalism has led to legislative enactments that deprive the prisoners of basic rights and that, as a practical matter, compromise the capacity of the Supreme Court ever to adequately address the prisoners’ claims. Although minimalism has been defended on the ground that it furthers democratic values, such a view reduces democracy to majoritarianism as opposed to a broad-based deliberative process that gives content to the fundamental values of the nation. It also overlooks the important and constructive role of the judiciary in that process. (shrink)

Three recently published reports show to what extent democracy is losing ground in a global context increasingly characterized by authoritarianism and populism. The argument this articles proposes is that the deplorable state of democracies around the world is due to the neglect of substantial characteristics and sources of democracy, which are above all trust and solidarity. Democracy has three different, but interrelated sources that are built upon each other according to a lexical order. A democracy is first based upon political (...) rights, there is in an inherent liberal component to democracy. Second, a democracy requires trust among citizens and individuals that only some form of common identity is going to produce. Third, democracy is based upon strong forms of equality that are brought about by solidarity. The article comes to following conclusions: First, as the experience of Islamophobia and racism in Europe and authoritarianism in the Arab world shows, the concepts of illiberal democracy or majoritarianism currently promoted by strongmen around the globe do not stand for proper democratic political systems. Second, in our plural societies, neither thick nationalism nor strong multiculturalism does support the development of the democratic spirit. Third, Republicanism in Rousseau’s tradition is right that inequalities are the main cause undermining full democracies. A democracy requires the solidarity of the welfare state. (shrink)

In this paper I prove a theorem which is similar to Arrow's famous impossibility theorem. I show that no social welfare function can be both minimally majoritarian and also independent of irrelevant alternatives. My condition of minimal majoritarianism is substantially weaker than simple majority rule.

No point of John C.Calhoun's political thought has been more disputed than exactly where it is situated in the theoretical landscape. Calhoun has been treated as the �Marx of the master class� by Richard Hofstadter; a �reactionary conservative� arguing eclectically from liberal premises by Louis Hartz; an authentic conservative by Russell Kirk, Clinton Rossiter and August Spain; and a precursor to the pluralist vision of politics by Peter Drucker. Two of the most engaging treatments of Calhoun's thought are Darryl Baskin's (...) and Peter Steinberger's, both of relatively recent vintage. Baskin argues that despite Calhoun's use of vocabulary borrowed from organic conservatism he is essentially a classical liberal and, as such, is engaged in the typically liberal �flight from community�. He has no true notion of civic virtue and his concept of the public interest is only a mechanistic sum of private interests. Steinberger agrees that Calhoun is a liberal, but argues that his contribution to American liberalism is precisely to sublate selfishness to an authentic civic virtue. These disputes are interesting, but I suggest that in the efforts to contain Calhoun within the conservative/liberal scheme of categorization some of the subtlety of his thought is lost. Too often an appreciation of his thought is sacrificed to an underlying agenda of attacking or defending one ideology or another. In the present critique I attempt to recover some insights that have been submerged in other treatments. Calhoun's constitutional theory of concurrent majoritarianism, rather than his liberal or conservative bent, is the focal point of sections III and IV. I argue that Calhoun's theory exposes -- sometimes unwittingly -- the stern limits of what constitutions can accomplish. In section V I suggest that insofar as Calhoun is generally a liberal (as Hartz, Baskin and Steinberger contend) an internal contradiction within his theory points to a paradox at the very heart of liberalism. (shrink)

This article focuses on ‘Love Jihad,’ the neologism that Hindutva, or Hindu Extremism, has invented to incite suspicion and violence against Indian Muslims. I begin with a brief discussion of several characteristics of the Hindutva organisational and ideological apparatus. Then I discuss anti-Love Jihad campaigns as a strategy to assert Hindu extremism in interpersonal relations. I go on to highlight specific episodes of ‘Love Jihad’ attacks by the Hindu Right that have targeted and made a political spectacle of love and (...) marriage across community boundaries. I suggest that Love Jihad campaigns become a mode of producing docile, submissive subjects who will not question regimes of power, be it neoliberalism, religious majoritarianism or social hierarchies and injustice. (shrink)

Madhav Khosla’s brilliant book, India’s Founding Moment, is self-consciously a work on the history of ideas. Nonetheless, the subtitle of India’s Founding Moment—The Constitution of a Most Surprising Democracy—implies that Khosla draws a connection between the ideas that shaped the creation of constitutional democracy in India and its endurance. In this review, I pose the question of whether the design of the Constitution can be a source of constitutional resilience against the rising threat of authoritarianism and Hindu majoritarianism.

In this essay, I maintain that Dewey's 1888 article “The Ethics of Democracy” is the most immediate thematic and conceptual predecessor to The Public and Its Problems. Both texts revolve around a number of key themes at the heart of Dewey's thinking about democracy: the relationship between the individual and society, the legitimacy of majoritarianism, and the significance and meaning of political deliberation. When these themes are taken together we come to understand the anti-elitist core of Dewey's political thinking.

The rise to taking over state power after elections of 2014 by majoritarian forces in India has since witnessed weakening of institutions of governance. The ruling Bhartiya Janata Party has returned to power with an enhanced parliamentary majority in the 2019 elections. The rise of hindutva, the Hindu nationalist political philosophy of the formations comprising the BJP and the Sangh parivaar or affiliates of the right wing Rashtriya Swayamsevak Sangh, has reshaped the discourse on the “idea of India”. Under the (...) extensive reframing in majoritarian nationalist terms of Indian political verities, it is conceivable that the Indian military, widely regarded as a professional, apolitical and secular force, will also be impacted. There has been little academic scrutiny of the possible influence of majoritarianism on the Indian military. The paper examines impact of the onset of majoritarianism democracy on India’s military by taking a close look at the movement in civil-military relations under the BJP government. There is a shift in civil-military relations from objective civilian control, that enhances professionalism and keeps the military apolitical, to subjective civilian control, wherein the military is co-opted through subscribing to the ideologybased security perspective of the ruling party. This shift poses for the military a risk of losing their a political ethic. Erosion of the apolitical ethic of the military will open up the military’s secular ethic to modification. The conclusions are both relevant for policy and theory. The relevance for policy lies in the need for the Indian state and the military to preserve professionalism by persisting with the objective civilian control model. The theoretical relevance is in discerning limits to the concept of obedience of the military to the civilian political rulers. Where there is a threat from a political ideology or its penetration into the military’s intellectual domain with the potential to dilute the military’s professionalism, the military needs to pushback for the sake of national security. (shrink)

The article argues that the failure of political Islam in Turkey is correlated with the characteristics of the polity that are broadly undemocratic. Political Islam not only failed to propose a new narrative but produced the so-called New Turkey that displays familiar totalitarian features. The article examines the approaches political Islam used to assert its rule, namely, dewesternization, Islam’s nationalization and instrumentalization, majoritarianism, empowering devout masses, and synergizing with the undemocratic culture.

In this thirty-second annual volume in the American Society for Political and Legal Philosophy's NOMOS series, entitled Majorities and Minorities, thirteen distinguished contributors consider a diverse selection of topics. Included are essays on legitimacy of the majority, the utilitarian view of majoritarianism, majorities and elections, pluralism and equality, democratic theory, and American democracy and majority rules. Of Interest to political scientists, philosophers, and legal scholars, this collection brings together a variety of viewpoints. Each author is a leading voice within (...) his or her specialized field. (shrink)

Islam and Citizenship in Indonesia examines the conditions facilitating democracy, women's rights, and inclusive citizenship in Indonesia, the most populous Muslim majority country and the third largest democracy in the world. The book shows that Muslim understandings of Islamic traditions and ethics have co-evolved with the understanding and practice of democracy and citizen belonging. Following 32 years of authoritarian rule, in 1998 this sprawling Southeast Asian country returned to electoral democracy. The achievement brought with it, however, an upsurge in both (...) the numbers and assertiveness of Islamist militias, as well as a sharp increase in violence against religious minorities. The resulting mobilizations have pitted the Muslim supporters of an Indonesian variety of inclusive citizenship against populist proponents of Islamist majoritarianism. Seen from this historical example, the book demonstrates that Muslim actors come to know and practice Islam in a manner, not determined in an unchanging way by scriptural commands, but in co-evolution with broader currents in politics, society, and citizen belonging. By exploring these questions in both an Indonesian and comparative context, this book offers important lessons on the challenge of democracy and inclusive citizenship in the Muslim-majority world. Well written and informative, this book will be suitable for adoption in university courses on Islam, Southeast Asian Politics, Indonesian and Asian Studies, as well as courses dealing with religion, democracy, and citizen belonging in multicultural societies around the world. The book will be of interest to the general reader with an interest in Islam, citizenship, and democracy. (shrink)

This paper revisits Tocqueville’s famous portrait of the American female, which begins with assertions of her equality to males but ends with her self-cloistering in the domestic sphere. Taking a cue from Tocqueville’s extended sketch of the “faded” pioneer wife in “A Fortnight in the Wilderness” and drawing connections to Tocqueville’s criticisms of the division of industrial labor, I argue that the American girl’s ostensibly free choice to remove herself from public life is not an act of freedom. Rather, it (...) is a manifestation of a particular type of unfreedom that reveals underappreciated connections between the two great dangers about which Democracy in America warns: tyrannical majoritarianism and soft despotism. My argument that the girl’s choice to withdraw from public life is coerced rather than free thus highlights the nonpolitical sources of oppression that exist within democratic societies. The paper concludes by raising questions about the need for coercion within Tocquevillian democracy and the implications of this for Tocqueville’s “new” political science—indeed, for his liberalism more generally. (shrink)

The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary to (...) applicable ethical regulations. The main thesis of this paper is the assertion that although judges who act as impartial arbitrators in disputes should generally refrain from ostentatiously opposing the actions of political authorities, they are not deprived of the possibility of protest. Also in the exercise of office, and not outside the sphere of their duties, judges should take into account overriding moral values that should be implemented by the legal order, and not the values or declarations guiding the government policies. The integrity of the judge, which prescribes restraint in statements and actions in the public sphere, as well as the care for the dignity of the office held, should not be confused with absolute subordination to the legislature or the executive, even if the judge is obliged to apply the law. The traditional attitude of the members of the judiciary, consisting in focusing only on the application of the law in individual cases and the lack of any political involvement, is being reviewed in the face of the spread of majoritarianism and the law abuse as normal techniques of exercising public authority. The disobedience of judges—although difficult to defend at first sight—may seem to be the only possible way to draw public attention to the corruption of the state system. The ‘disobediant’ judges can even be assigned the role of ‘whistleblowers’, which should help to ease their legal liability or their future rehabilitation. (shrink)

It is an odd thing that after two and a half centuries' experience of representative government—if we take the 1688 Revolution as ourstarting point—we have still no very certain or coherent theory of what it represents. The easy-going eighteenth-century idea that their own sense of political responsibility and the ties of political sympathy uniting them to the people at large enabled representatives chosen from among the “natural” leaders of the nation adequately to fulfil their representative role, despite the meagre measure (...) of choice exercised in their denomination; and the rather later notion that the function of a representative system was to reflect the class structure and dominant interests of the nation, have both failed to survive criticism at the hustings, and the spread of political consciousness associated with the rise of democracy. Modern ideas identify representative government with self-government, and insist on applying to it Colonel Rainboro's dictum that “the poorest he that is in England hath a life to live, as the richest he.” On the subject of what representative government represents there may nowadays be distinguished two views; what may be called the popular, or hustings view, and the academic theory, which, while different in form, preserves the same general character as the hustings view. The hustings view is unqualified majoritarianism. Representative government is government by the will of the majority. Certain ideas underlying, or associated with this view may profitably be distinguished. The most important is that of individual right. Majoritarianism is no respecter of tradition, or birth, or inborn talents, or acquired experience; it is no respecter of persons at all, only a counter of them. In its view there is no species of authority that gives one person or class of persons the right to push others around; everyone, indeed, has a presumptive right not to be pushed around. (shrink)

“Faith makes us, and not we it, and faith makes its own forms.” Published in 1888, “The Ethics of Democracy” is John Dewey’s first and most underappreciated attempt to address a problem inherent to democracy.2 How do I consider myself a member of “the people” that rule, and yet belong to the political minority? By minority I do not simply mean as determined by an electoral process, but also those minorities that are identified as such because of inequity in political (...) power and access. The question is therefore of critical importance not only in the American context, but for much of the history of modern democratic thinking. Either the answer implies the use of coercive force by majoritarianism that.. (shrink)

This article challenges Jeremy Waldron's arguments in favour of participatory majoritarianism, and against constitutional judicial review. First, I consider and critique Waldron's arguments against instrumentalist justifications of political authority. My central claim is that although the right to democratic participation is intrinsically valuable, it does not displace the central importance of the `instrumental condition of good government': political decision-making mechanisms should be chosen (primarily) on the basis of their conduciveness to good results. I then turn to an examination of (...) Waldron's claim that individuals are entitled to participate in decisions which affect their lives. Furthermore, I respond to his claim that justifications of constitutional judicial review rely on an objectionable distrust of democratic politics, and is inconsistent with a view of the person as a morally responsible, autonomous agent. Finally, I seek to show that judicial review can itself become a valuable channel of political participation, especially for those who are marginalized and disempowered in the normal political process. (shrink)

The vertiginous rise of right-wing populism, especially in its “nationalist, xenophobic and conservative form”, and some “racist, anti-Semitic, homophobic and sexist” drifts associated with this phenomenon – whether real or perceived as such – make the mainstream media play a double role. On the one hand, the mainstream media reflect the struggle for political hegemony between different vested interests; on the other hand, they engage in the fight against right-wing populism blasting both right-wing populist candidates and their voters or supporters. (...) Many mainstream journalists ask citizens to realize a “sanitary cordon”, a “wall” or a “republican front” to block far-right populism and preserve liberal democracy. Moreover, they urge people to be wary of all attempts to “dediabolize” or “normalize” some tokens of right-wing populism. The main idea of this article is that right-wing populism is more harmless than is generally believed and, if excessive, negative media coverage doesn’t baffle but feed it. Populism is essentially a latent side effect of liberal democracy. Populism rises and becomes obtrusive only if a significant part of society perceives a regime of illiberal majoritarianism instead of one of liberal democracy. Right-wing populists are chiefly frustrated “ci-devants” who feel dispossessed of their past, identity, properties, qualities, privileges or titles. Inasmuch as the causes of collective frustration are many and varied (e.g. the real or just perceived corruption of the elites, the “system”, the deep state, the relocation of jobs, immigration, national sovereignty, national identity, communitarianism, radical Islamism, the status of some traditional institutions, some chapters of official history, etc.), there will always be right-wing populists, whether they are self-declared or covert. By adopting David G. Hackett’s thesis that the media are “agents of hegemony”, we applied the critical analysis of discourse to a set of 346 media articles in order to reveal the discursive sources of power, domination, inequality and partiality. The articles appeared in The New York Times and Le Monde during the period 2016-2017, at the time when the presidential elections took place in the United States and France. The articles were selected according to the occurrence of the keywords “Donald Trump” – “populism” and “Marine Le Pen” – “populisme” within the titles. The analysis of these articles reveals a divisive discursive structure that correspond to a real political cleavage in society. It is true that populism presents a “Manichean outlook”, in which there are only friends and foes” and no compromise is possible. It is also true that mainstream media reinforce this Manichean perspective on society and make populists feel marginalized and politically disempowered. The mainstream media may appease right-wing populism if they treat its followers as legitimate and equal political actors. For this, they have to give up the narrative structures that underscore insurmountable divergences and irreconcilable interests. In a liberal democracy, mass media should chiefly play the role of mediator. They may not aim to defeat or re-educate certain categories of citizens just because they advocate “wrong” political solutions. (shrink)

The article explores Alexis de Tocqueville’s explication of democracy as ‘civil religion’ or the new sacred of modern times. In Democracy in America, Tocqueville analyzed democracy as a political system as well as a moral value. The article begins with Tocqueville’s analysis of the religious roots of American democracy. Dissociated from the affairs of the state through the principle of ‘disestablishment’, religion became secure in civil society, whereas the concept of democracy became inviolable and ‘set apart’ as sacred. He noted (...) that the power of the majority acquires an inviolable character in democracy that had the potential to turn against the very principles that it upholds. In the Indian context, the debate around a uniform civil code is one such issue that captures this predicament. Working out a roadmap for Indian pluralism signposted with a constitutional commitment to equality, liberty and fraternity has proved to be a task fraught with moral and political complexities, if not impasse. The article argues that Tocqueville’s discovery of the role of religion in civil society, his mistrust of democratic majoritarianism and his emphasis on understanding the ‘practice’ of democracy have something to offer to the polarized UCC debate in India. (shrink)

The article aims to investigate the problematic relationship between populism and democracy by comparing the conceptions of ‘the people’ and popular sovereignty which they presuppose. In the first two sections, the populist and the democratic ‘peoples’ are reconstructed, and the unbridgeable gap dividing them is highlighted. The discussion of the democratic people requires a concise analysis of the main contemporary democratic frameworks, including deliberative democracy, ‘neo-Roman’ republicanism, agonistic democracy. The article works out the implications of the incompatibility between the two (...) ‘sovereign peoples’ identified, and concludes that such an incompatibility undercuts the kinship of populism and democracy. While populism is often said to intertwine with democracy in some way, the article argues that it significantly departs from democratic theory and practice, and belongs to a distinct conceptual space. It cannot be made to overlap with ‘illiberal democracy’, a ‘democratic myth’, a crude electoral majoritarianism, nor does it amount to hiding undemocratic policies into properly democratic justifications. The boundary dividing populism and democracy, therefore, starts unfolding at the level of the conception of the people. While democratic theory invariably assumes a people intended as simultaneously heterogeneous and united, populism conceives of the people as a moral whole, internally undifferentiated, whose homogeneity and intrinsic righteousness preclude the task of specifying what popular sovereignty ultimately means. Such specification, on the other hand, is inescapable for any democrat assuming the people as a composite unity. The last section addresses four possible objections to the argument, variously formulated by Ernesto Laclau and by scholars approaching populism from a post-Laclauian or discursive-performative perspective. (shrink)

In this article, I critically evaluate the positions of Professors Jeremy Waldron and W.J. Waluchow on the right-based merits of entrenched constitutions and strong judicial review. I support Waluchow in arguing that (i) prohibitions on the constitutional entrenchment of rights and resultant prohibitions of strong judicial review may be only superficially fair or democratic, since fair procedure alone can neither eliminate pre-existing inequalities nor ultimately take the autonomy vital to self-governance seriously (whether individual or collective). Secondly, (ii) if deep dissensus (...) fails to exist on all substantive matters of rights, the constitutional entrenchment of rights combined with strong judicial review can indeed be achieved fairly. I then propose that (iii) the anti-constitutionalist concern about being governed by the ‘dead hand of the past’ is self-refuting, for the alternative is simply another constraint on autonomy. While this is largely consistent with Waluchow's position vis-à-vis Waldron's majoritarianism, I end by expressing serious concerns regarding whether the common law (and the ‘constitutional morality’ that Waluchow claims can be derived from it) can act as a sufficiently robust basis for the protection of liberal and egalitarian rights. (shrink)

In this collection of essays on the core values of liberalism, Stephen Holmes—noted for his scathing reviews of books by liberalism's opponents—challenges commonly held assumptions about liberal theory. By placing it into its original historical context, _Passions and Constraints_ presents an interconnected argument meant to fundamentally change the way we conceive of liberalism. According to Holmes, three elements of classical liberal theory are commonly used to attack contemporary liberalism as antagonistic to genuine democracy and the welfare state: constitutional constraints on (...) majority rule, the identification of individual freedom with an absence of government involvement, and a strong emphasis on the principle of self-interest. Through insightful essays on Hobbes's analysis of the English Civil War in _Behemoth_, Bodin's writings on the benefits of limited government, and Mill's views on science and politics, Holmes shows that these basic principles provide, to the contrary, a necessary foundation for the development of democratic, regulatory, and redistributionist politics in the modern era. Holmes argues that the aspirations of liberal democracy—including individual liberty, the equal dignity of citizens, and a tolerance for diversity—are best understood in relation to two central themes of classical liberal theory: the psychological motivations of individuals and the necessary constraint on individual passions provided by institutions. Paradoxically, Holmes argues that such institutional restraints serve to enable, rather than limit, effective democracy. In explorations of subjects ranging from self-interest to majoritarianism to "gag rules," Holmes shows that limited government can be more powerful than unlimited government—indeed, that liberalism is one of the most effective philosophies of state building ever contrived. By restricting the arbitrary powers of government officials, Holmes states, a liberal constitution can increase the state's capacity to focus on specific problems and mobilize collective resources for common purposes. _Passions and Constraint_ is an assessment of what that tradition has meant and what it can mean today. (shrink)

Wiredu’s call for democracy by consensus is illustrated by his description of traditional African consensual rationality. This description contains the attribution of immanence to African consensual rationality. This paper objects to this doctrine of immanence. More importantly, the doctrine of immanence has led to the attribution of pure rationality to traditional African consensual practices. With reference to Aristotle’s three components of persuasion, I object to deliberation as purely rational and impervious to extraneous factors. I further argue that it is because (...) deliberation is not always perfectly rational that the process of consensus can suffer three forms of social conformity: conformity to dominant players, to numerical opinion majority, and to group-centrism. These forms of conformity mean that a consensus task order could lead to decisions of more inclusive value, but not necessarily decisions of more epistemic value. The concept of agonistic inquiry is employed to tackle what I see as the dangers of conformity and complacency in the project of inclusivity, and this is to strike a crucial balance between too-consensual and purely adversarial forms of deliberation. (shrink)

The word “populism” commonly elicits images of hordes of angry townspeople with pitchforks and torches. That is the classic picture of “the mob,” bolstered by countless movie and television productions, and it is clearly based on such historical events as the English civil wars, the sans-culottes’ terror, the Bolshevik revolution, and the recent genocides in Rwanda and Burundi. Many of the leaders involved in fostering such horrors are seen as radical democrats whose successors today should also be feared. In this (...) paper, I argue that any mob takeovers of the feared sort are actually antithetical to radical democracy. This is because an authentically democratic regime, even of the most extreme type, is necessarily inconsistent with “mobocracy” or any sort of “tyranny of the majority” given its essential procedural aspects. It is argued, in fact, that leaders of legitimately democratic movements have generally been quite vapid because of the fallibilistic, plebiscitary proceduralism inherent in any authentic attempt to require government policy to reflect the “general will.” And this vapidity is argued to inhere regardless of the extent of rhetorical powers of the advocate or advocacy. (shrink)