Constitutional Democracy and Public Judgements

Constellations, 1996

I would like to sketch a proceduralist view of democracy and deliberative politics which differs in relevant aspects from both the liberal and the republican paradigm. Let me (1) remind you the opposite features of these two established models. I will then (2) introduce a new proceduralist conception by way of a critique of the "ethical overload" of the republican view. The last part of the paper further elaborates (3) the three normative models of democracy by comparing their corresponding images of state and society.

In discussions on democratic legitimacy, Christiano's position is often characterized as a monistic position, i.e. a strong and persuasive version of fair deliberative pro-ceduralism. Democracy is thus seen as a realization of public equality in collective decision making. The presented case for democracy is non-instrumental, and the quality of outcomes produced by a democratic decision-making process does not constitute or in any way influence the legitimacy – generating features of that decision-making process. I argue that the quality of political decisions produced by a democratic decision-making process should play an important (though not decisive) role in Christiano's argument. Consequently, I claim that his case for democracy should be (at least somewhat) instrumental. I consider four cases from Christiano's The Constitution of Equality that show how outcomes of democratic procedures are very important to Christiano. Furthermore, I argue that these outcomes are so important that, when deciding between two or more fair decision-making procedures, one that produces the best outcomes should be considered legitimate.

Revista Catalana de Dret Públic, 2019

Constitution-making in Western Europe has shifted from the traditional postwar model and taken a deliberative turn, seeking full democratic legitimation, though most constitutional initiatives incorporating ordinary citizens have not been fully successful. To overcome this lack of efficiency, this article offers a normative model for deliberative constitution-building. The model formulates citizens deliberating systematically and massively in minipublics with formal institutions, epistemocracy, political parties, officials, and mass communication. It also transforms most of the normative ideals to those that can be regulated only by legal norms, avoiding dependence on citizens' ethical behavior. Only a few of them remain as recommendations for political consensus before starting constitutional change. The first part of the article describes general issues related to constitution-building from a deliberative perspective, such as the strengths and weaknesses of minipublics, political commitment before starting, and the scope of the future constitution. The second one describes its practical deployment and the role of each actor such as the parliament or constituent assembly, political parties, scientific and monitoring committees, the executive operator, participants, and general public; the design of the deliberative system and how to frame the debate; massive deliberation in equatable minipublics and their link with politicians, public opinion, and representative institutions; and, finally their connection to posterior constitutional decision-making phases through accountability. un model normatiu per a processos constituents deliberatius resum Els processos de redacció de constitucions a l'Europa occidental han deixat enrere el model de posguerra tradicional i han pres una deriva deliberativa, buscant una plena legitimació democràtica, malgrat que la majoria d'iniciatives constitucionals que han incorporat la ciutadania no ha reeixit del tot. Per vèncer aquesta manca d'eficiència, aquest article ofereix un model normatiu per a processos constituents deliberatius. El model es basa en petits grups de ciutadans que deliberen sistemàticament i massiva amb institucions formals, epistemocràcia, partits polítics, dirigents públics i comunicació de massa. També transforma la majoria dels ideals normatius cap a aquells que només poden ser regulats per normes legals, evitant la dependència del comportament ètic dels ciutadans. Només algun d'ells es manté com a recomanació per al consens polític abans de començar una reforma constitucional. La primera part de l'article descriu assumptes generals relacionats amb els processos constituents des d'una perspectiva deliberativa, com les fortaleses i debilitats de treballar amb petits grups de ciutadans, el compromís polític abans de començar, i l'abast de la futura constitució. La segona part descriu el seu desplegament pràctic i el paper de cada actor com el parlament o assemblea, els partits polítics, els comitès científics i de control, el poder executiu, els participants i el públic en general; el disseny del sistema deliberatiu i com emmarcar el debat; la deliberació massiva en petits grups equitatius de ciutadans i el seu lligam amb la política, l'opinió pública i les institucions representatives; i, finalment, la seva connexió amb les posteriors fases del procés constituent a través de la rendició de comptes.

This text offers the draft of the third section of a book devoted mostly to the Constitutional Courts in three European countries: Germany, France and Italy. After a section on the new separation of powers and the legislative role of the judiciary, I present a theory of the legitimacy of the constitutional adjudication by agencies, which are non-electorally accountable and have the explicit function of corrective of the majoritarian democracy, based on the principle that " there is no right without remedy " .

Following Hume and Hayek, a variety of contemporary theorists have used evolutionary models of social interaction to assert the idea of an inevitable trade off between State and Society. On my interpretation this amounts to the definition of an ideal-type model of constitutional order that I label the Humean project. The objective of this work is to evaluate whether the conventional theory of justice supplied by the Humean project can explain the emergence of norms and moral sentiments that compose the ‘Constitutional Order’ of a a well-ordered society. The initial questions that I shall address belong, therefore, to the epistemology of social action: has the tradition of spontaneous order been able to work out an answer to collective action problems? Can a social contract be signed by an invisible hand? The answer to those questions would take us up to the first step in assessing the soundness of the Humean project as an analytical theory of ‘Constitutional Order’. Since this epistemology supports a deterministic link between descriptive and normative domains, I shall endeavour to verify whether the theory of spontaneous order proposed by Humeans has indeed the normative implications that its supporters affirm it has. Is the Humean genealogy of morals useful for the justification of principles, values and institutions? Assuming that it is so, does this justification coincide with the defence of Liberal order? In other words, I shall make clear whether the contribution brought about by the Humean project does indeed represent a convincing evolutionary social philosophy that can supply a normative analysis of the state which fits the liberal outlook

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2014

— In the last three decades, whitin academic debates about the future directions of development of the democratic practice, one new model has significant position, called deliberative democracy. On a level of theoretical elaboration, the conspirators of deliberative democracy develop arguments that justify proximate participation of the citizens in the process of creation of politics and political decision making. The goal of this paper is to show part of the viewpoint of the more significant political scientists and sociologists through the justification of deliberative democracy, as well as to indicate the connecting points between the principles of constitutionalism and deliberative democracy. This text also reviews the tension between liberalism and democracy at an ontological level and indicates the basic weaknesses and disadvantages in the attempts for consolidation of deliberative democracy under the principles of constitutionalism. The constitutionalism here is shown as a do...

ICL - Journal Vienna Journal on International Constitutional Law , 2022

The article provides a systematic outline and refinement of societal constitutionalism (SC), one of the frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After an introduction in Section 1, Section 2 summarises SC's theoretical background, namely the debates on the Economic Constitution (2.1), legal pluralism (2.2), systems theory (2.3), and the work of David Sciulli (2.4). Section 3 explains SC's analytical limb, which on the one hand criticises some tenets of state-centred constitutionalism (3.1); and on the other hand identifies functions, arenas, processes, and structures of a constitutionalised social system (3.2). Section 4 turns to SC's normative limb, pointing to some constitutional strategies that increase social systems' capacities of self-limitation (4.1); and develop a law of inter-constitutional collisions (4.2). Section 5 addresses the main competing approaches and criticisms, which are based on state-centred constitutionalism (5.1); on international/global constitutionalism (5.2); and on contestatory/material constitutionalism (5.3).

In a recent paper, Daniel Viehoff argues that democratic authority cannot be based on treating other individual’s judgments as reasons for action. Rather, democratic authority is based on avoiding acting on various considerations. This ideal of exclusionary reasons, Viehoff argues, is embodied in the ideal of certain paradigmatic egalitarian relationships. This paper has three aims: (1) I will argue that Viehoff’s account faces several difficulties. Most crucially, Viehoff’s account fails to provide a connection between realizing a particular form of equality and authority. (2) While Viehoff’s account fails, he is right in pointing out that a proper account of democratic authority requires a connection between realizing equality and authority. I will argue, that contra Viehoff and other theorists, this connection does not have to be necessary. All we need to show is that democracy is the best way of achieving equality amongst other feasible institutional arrangements. (3) The best way to understand the connection between political equality and democratic authority is to understand political equality as the demand for public equality of treatment. However, for reasons that will be apparent in (2), we cannot understand this demand for equality of treatment as arising from the ideal of egalitarian relationships. Rather, we must understand this demand as tied to the fact that public equal treatment is a precondition for establishing justice amongst individuals given certain facts about human nature and cognition. We thus have a duty to obey some laws because they are the outcome of an egalitarian procedure, but this does not assume that democratic procedures are the only necessary means of showing public equal treatment, but that they are the best way of doing so. Democracy’s authority is content-independent and pre-emptive, I will argue, insofar as these conditions are in place.

Contractualists seek to publicly justify moral principles, but it seems doubtful that a set of specific principles or policies can be definitively justified. In this sense, the contractualist project has an indeterminate result: the precise content of liberal morality is open to reasonable dispute. Liberal citizens thus find themselves disagreeing about the demands of liberal morality. They require, as Locke argued, an umpire to resolve their disputes. This paper analyzes what is required of such an umpire, and then employs a four-stage argument to show that constitutional representative democracy is the uniquely justified umpiring procedure for resolving these disputes. Democratic politics, on this view, is the continuation of ethical dispute by other means.