Law, Society, and Democracy: Comparative Perspectives

• DOI: 10.1177/0002716205284197
• Date: 01 January 2006
• Published date: 01 January 2006
• Subject Matter: Articles

10.1177/0002716205284197THE ANNALS OF THE AMERICAN ACADEMYQUICK READ SYNOPSIS: LAW, SOCIETY, AND DEMOCRACY January 2006603

QUICK READ SYNOPSIS

Law, Society, and Democracy:

Comparative Perspectives

Special Editor: RICHARD E. D. SCHWARTZ

Yale Law School

Volume 603, January 2006

Prepared by Herb Fayer, Jerry Lee Foundation

DOI: 10.1177/0002716205284197

I. THE RULE OF LAW: WHAT ISIT?

Democracy and Equality

Robert Post, Yale Law School

This article closely examines the meaning of democracy and discusses the logi-

cal and practical connections between it and various forms of equality.

•Democratic forms of government are those in which the laws are made by

the same people to whom they apply.

•In autocratic forms of government the lawmakers are different from those to

whom the laws are addressed.

•The question is, What is the relationship between autonomous forms of gov-

ernment and equality?

What does it mean for a form of government to be autonomous?

•Democracy is not the same thing as popular sovereignty because a people

can decide to enact antidemocratic rules.

•Nor is democracy equivalent to majoritarianism, in which the majority of the

people exercise control over their government.

NOTE: These examples suggest that popular sovereignty and majoritarianism

may be intimately associated with the practice of democracy, but they them-

selves do not define democracy. We can coherently speak of enactments of

popular sovereignty or of majorities that are antidemocratic.

Democracy refers to the values associated with collective self-determination.

•Governments do not become democratic merely because they hold elec-

tions in which majorities govern.

292 ANNALS, AAPSS, 603, January 2006

Background

Autonomy

Democracy

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•It is a mistake to confusedemocracy with particular decision-making proce-

dures and to fail to identify the core values that democracy as a form of gov-

ernment seeks to represent.

•The values of autonomy are essential to democracy—values associated with

the practice of self-determination.

Self-determination is more than making decisions or electing those who make

decisions.

•The practice of self-government requires that a people have the warranted

conviction that they are engaged in the process of governing themselves.

•Self-determination turns on the difference between making particular deci-

sions and recognizing particular decisions as one’s own. It is about the

authorship of decisions.

•Collective decision making is democratic when there is a connection

between the particular wills of individual citizens and the collective will of

the state.

•When citizens feel alienated from the general will, voting on issues is

merely a mechanism for decision making, a mechanism that can easily

turn oppressive and undemocratic.

•The value of democracy can be fulfilled only if there isa continual media-

tion between collective self-determination and the self-determination of

individual citizens.

•Democracy requires that citizens experience their government as their

own and responsive to their own values and ideas.

The First Amendment protects democracy by safeguarding the communica-

tive processes by which citizens seek to construct an uncoerced agreement

that is responsive to their views.

•Citizens are free to engage in public discourse so as to make the state respon-

sive to their ideas and values.

•Modern democracies must regard their citizens, insofar as they engage in

public discourse, as equal and autonomous persons.

•It is the essence of democracy to replace the unilateral respect of authority

by the mutual respect of autonomous wills.

Democracy requires that persons be treated equally insofar as they are auton-

omous participants in the process of self-government.

•Democracy must regard each citizen as an autonomous, self-determining

person, at least insofar as is relevant to maintaining a living identification

with the self-government of the state.

•The purpose of communication within public discourse is to empower citi-

zens to participate in ways that will permit them to believe that public opin-

ion will potentially respond to their views.

•If the state too closely regulates when and how a person may speak, speech

may lose its ability to mediate between individual and collective self-

determination.

The equality required by democracy can easily be experienced as thin and for-

mal, in contrast with the robust forms of substantive equality associated with

theories of distributive justice.

QUICK READ SYNOPSIS: LAW, SOCIETY, AND DEMOCRACY 293

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Self-

Determination

First

Amendment

Democracy

Democratic

Legitimacy

•Much depends on our understanding of the logic of democratic legitimacy.

•This logic requires that citizens be treated equally with respect to the

requirements of autonomous participation in the practice of self-

government.

•Democracy presupposes an equality measured in terms of the autonomous

agency required by democratic legitimacy.

As democracy is a form of government committed to self-determination,

democracy must also encompass self-determination about the meaning of the

moral equality of citizens.

•A democracy will decide the meaning of moral equality in the context of

public discussion and debate.

•Advocates of strong egalitarian principles regard debate as offering inade-

quate protection for distributive justice because they believe the judgment

of citizens may be distorted by prejudice and bias.

•Democracy and strong egalitarian principles do not have to be in opposition

to each other.

•Strong egalitarian principles may have significant democracy-reinforcing

effects.

•Systematic violation of these principles may sometimes lead to the failure

of democratic legitimacy—democracy requires only that inequities that

undermine democratic legitimacy be ameliorated.

NOTE: Inequities need not be resolved for reasons of fairness or distributive

justice but simply because such inequities undermine democratic legitimacy.

The unsettling implication of the above reasoning is that democracy is quite

compatible with important forms of status subordination, as long as these

forms of subordination are not experienced by citizens as alienating.

•At the time that disempowering of women was accepted, democracy did not

require that this subordination be ended.

•Democracy requires self-determination by the people, but it does not itself

define who the people are.

•Insofar as egalitarian norms developed that made the disempowerment of

women alienating, precluding the identification of citizens with the general

will of the state, democratic arguments emerged for ending this status sub-

ordination. This suggests that strong egalitarian principles are in a dynamic

and dialectical relationship to democracy.

•As egalitarian principles become politically salient, as they make inequities

visible and oppressive, as they create alienation, they prepare the way for

democracy-based arguments for amelioration of inequities.

•Thus democracy and strongegalitarian principles are intimately related.

•Democracy does not entail these principles but is itself affected by them

because it must reckon with the threats to democratic legitimacy gener-

ated by these principles.

•Democracy is in this sense tightly connected to egalitarian commitments.

•Democracy and equality are bound in an indissoluble knot, mutually rein-

forcing and mutually antagonistic.

294 THE ANNALS OF THE AMERICAN ACADEMY

Moral

Equality

The

Implication

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