Law's Legitimacy and 'Democracy-Plus'
Author(s): Wojciech Sadurski
Source: Oxford Journal of Legal Studies, Vol. 26, No. 2 (Summer, 2006), pp. 377-409
Published by: Oxford University Press
Stable URL: http://www.jstor.org/stable/3877021
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Oxford Journal of Legal Studies, Vol. 26, No. 2 (2006), pp. 377-409
doi: 10. 1093/ojls/gql008
Law's Legitimacy and 'Democracy-Plus'
WOJCIECH SADURSKI*
Abstract-Is it the case that the law, in order to be fully legitimate, must not o
be adopted in a procedurally correct way but must also comply with certain sub
stantive values? In the first part of the article I prepare the ground for the discuss
of legitimacy of democratic laws by considering the relationship between law
legitimacy, its justification and the obligation to obey the law. If legitimacy of law
seen as based on the law being justified (as in Raz's 'service conception'), our dut
to obey it does not follow automatically: it must be based on some additional ar
ments. Raz's conception of legitimate authority does not presuppose, as many c
ics claim, any unduly deferential attitude towards authorities. Disconnection of
law's legitimacy from the absolute duty to obey it leads to the second part of t
article which consists in a critical scrutiny of the claim that the democratically
adopted law is legitimate only insofar as it expresses the right moral values. Th
claim is shown to be, under one interpretation ('motivational'), nearly meaningl
or, under another interpretation ('constitutional'), too strong to survive the pre
sure from moral pluralism. While we cannot hope for a design of 'pure procedu
democracy' (by analogy to Rawlsian 'pure procedural justice'), democratic proc
dures express the values which animate the adoption of a democratic system in t
first place.
It is often said that a democratic state, in order to be fully legitimate, must not
only issue its laws in a procedurally correct way but must also ensure that they
comply with certain substantive values. Democracy, it is said, not only requires
designing and following the correct procedures but its laws must in addition
comply with certain values, such as human dignity, liberty, equal concern for
all etc., in order to be fully legitimate. In this article I will subject this understanding-which,
for the sake of brevity, I will call the 'democracy-plus' conception-to
critical scrutiny. However, my main purpose will not be so much
to refute this view, but rather to reflect on what such a call for the alignment of
democracy with certain values really means-what plausible interpretations
can be given to this demand. More specifically, my main concern will be with
the links between 'value-enhanced' democracy (democracy that is not 'merely'
* European University Institute in Florence, Department of Law. Email: wojciech.sadurski@IUE.it. I am grateful
to Mehreen Afzal, Silvina Alvarez, Adam Czarnota, Zenon Bankowski, Martin Krygier, Neil MacCormick, Euan
Macdonald, Gianluigi Palombella, Michel Troper, Lorenzo Zucca and the anonymous referee of the OJLS for
their useful comments about an earlier version of this article. I was also helped by discussion of the paper when
it was presented at the University of Paris-Nanterre, University of Sevilla, University of New South Wales,
Edinburgh University and the University of Parma.
? The Author 2006. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org
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378 Oxford Journal of Legal Studies VOL. 26
procedural but rather claims to have been infused with
judgments concerning the legitimacy of democratically
the principle of the rule of law can be understood in a pu
more substantive way (that is, either that government i
whatever they may be, or that it is only subject to those
as 'right' or 'just'), so the democratic rule can be unders
ner. Can those laws that have procedurally democratic c
from our views about the right 'substantive' values still
mate? This is a somewhat simplified way of asking the qu
cern to me in this article.
As the above question immediately suggests, a great deal depends on how we
understand the concept of law's 'legitimacy'. In preparing the ground for the discussion
of the legitimacy of 'democracy-plus' that will occupy the second part o
this article, I will first attempt to elucidate the notion of law's legitimacy by disentangling
it from two other contiguous concepts: the justification of law and the
obligation of citizens to obey it. I will take, as my starting point, a leading (and
perhaps currently the most influential) theory in this area, namely Joseph Raz's
so-called 'service conception' of legitimate authority. This choice is informed
not merely by the huge critical resonance that this theory has found in recent
jurisprudential writings, but, more relevantly from our point of view, by the fact
that it has frequently been charged with displaying insufficient respect for th
importance of procedurally democratic law-making as a significant factor in
judging the legitimacy of laws, and also with underestimating the importance o
promoting a critical, reflective attitude in citizens towards the law to which they
are subject. The discussion of Raz's conception of legitimacy therefore brings us
directly into the heart of the relationship between democratic law-making and
the legitimacy of law. Even if, as I will argue, Raz's conception may be unsatisfactory
in some regards, this is not due to its alleged disregard for the importance
of democracy nor the idea, which it allegedly promotes, that citizens should
always defer to authority. The reason that such a suspicion may have arisen in
the first place is related to the ambivalence of the very notion of 'legitimacy', and
its location vis-a-vis the justification of the law on the one hand and the citizens
obligation to obey on the other. I will argue that if legitimacy is understood as
relating to the question of a given law's justification, then the objections of Raz'
critics are groundless; if, however, legitimacy is viewed as creating or supporting
the citizens' duty to obey, then a different, separate argumentative step is
required to show that it is legitimate, in addition to being justified. Therefore
even if a justification-based understanding of legitimacy does not require that a
law have certain procedural, democratic credentials (although, of course, the
two are perfectly compatible), this is not necessarily the case when legitimacy i
viewed as obligation-inducing.
This clears the conceptual ground for a more substantive argument, in the
second part of this article, concerning the relationship between legitimacy and
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 379
democracy, and, more specifically, for critical scrutiny of the demand th
in order to be legitimate, must embody certain substantive values. Here,
look at the warnings against 'democracy without values', and suggest th
best way of understanding the 'democracy-plus' precept is to try to imagine w
a democracy devoid of substantive values might look like, and what the a
tages and disadvantages (if any) of such a system might be. To the exten
'democracy without values' is inconceivable (given that the very choice
democratic design is inevitably and strongly value-based), the warning
'democracy without values' is meaningless. However, I will argue that, b
this foundational stage, the infusion of democracy with values may be see
important and meaningful demand, particularly since, as I will seek to de
strate, a resort to the concept of 'pure procedural democracy', by analo
Rawlsian 'pure procedural justice', is not readily available to us. We cann
sure that, once the democratic procedure has been put in place, the value
inform its design will be replicated in the actual functioning of the system.
In what way, then, can we plausibly understand the call for 'democracy
I will suggest two possible understandings: one 'motivational', the other '
tutional'; and I will show that both exhibit a problematic, troublesome re
ship to society's moral pluralism. I will conclude by drawing together t
parts of this article, through an analysis of the findings of the second half in
light of the discussion of the notion of 'legitimacy' contained in the first.
1. Justification, Legitimacy and the Obligation to Obey
A. Legitimate Authority and the 'Service Conception'
When is a state justified in issuing authoritative directives to its citizens? And
is justified in doing so, does it follow eo ipso that its directives-its laws-a
essarily legitimate, leading to the creation of a duty to obey on our part
three ideas: the justification of law, its legitimacy, and the obligation of
to comply with it, are often conflated with each other in an unhelpful manne
this first part of this article, I will attempt to disentangle them in an attemp
clear the conceptual field for the later discussion of the legitimacy of dem
authorities.
A good starting point is Joseph Raz's so-called 'service conception of authority',
if only because it is currently so influential, both among its supporters and
its detractors. The 'service conception' consists of three theses: the dependence
thesis, the normal justification thesis and the pre-emption thesis. Here, I will
paraphrase each of these in a stylized manner. According to the first thesis,
authoritative directives should only be adopted for reasons which apply to their
intended subjects (and not, for example, for reasons relevant to the authorities
themselves). The second holds that directives are authoritative when it is the
case that desired outcomes (i.e., the outcomes desired by the addressees of the
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380 Oxford Journal of Legal Studies VOL. 26
directives) will be best achieved if the subjects allow them
the directives of the authority rather than acting on thos
third states that such authoritative directives supersede
ment, the reasons for their own adoption.
This conception is, at first blush, vulnerable to the objec
squared with the idea that citizens should have a critical
towards the authorities that govern them; a critical attit
democratic society in which it should be generally accept
had famously put it, 'however great the aura of majesty o
official system may have, its demands must in the end be
scrutiny'.' Even though Raz had anticipated objections
protested in advance that '[n]o blind obedience to author
nevertheless the charge has been laid. Ronald Dworkin, f
rather caustically that '[t]his account of the nature and point
on a certain attitude toward authority',3 namely, 'a degre
legal authority that almost no one shows in modern dem
looking more closely at Dworkin's argument:
We do not treat even those laws we regard as perfectly valid and
and replacing the background reasons the framers of that law
adopting it. We rather regard those laws as creating rights an
trump those other reasons. The reasons remain, and we som
them to decide whether, in particular circumstances, they are so
ful or important that the law's trump should not prevail.5
Dworkin then goes on to elaborate this point by giving th
Abraham Lincoln who, during the Civil War, suspended t
pus even though the US Constitution denies such a power
ing on his own, instead assigning it to Congress.
Dworkin's criticism, however, misses the point, and his
ally seems to confirm rather than undermine Raz's conce
gesting, as far as I understand him properly, that citizen
the authority's directives instead of following their own
rather, he is saying that if they do so, then the authority is,
This is a conceptual analysis of the notion of legitimate au
normative view about the scope of subjection of citizens t
language that Dworkin uses to describe the status of the
subjects after the law has entered into the scene actually conf
duties created by the law 'trump' the original reasons-w
'H.L.A. Hart, The Concept of Law (1961) at 206.
2 Joseph Raz, Ethics in the Public Domain (1994) at 215
3 Ronald Dworkin 'Thirty Years On (Book Review of The Practice of Principle b
Law Review 1655 at 1671 (2002).
4 Ibid at 1672.
5 Ibid.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 381
Raz describes by using the language of 'pre-emption'. 'The reasons rema
Dworkin observes, but this does not mark any difference between the (R
pre-emption thesis and Dworkin's own account, because the reasons 'rem
only in the sense that they inform us whether, under the circumstanc
should comply with the law's directives, or perhaps contemplate some e
legal, even illegal, course of action. This residual role of the original reason
law has entered the stage is perfectly compatible with-indeed, supports
pre-emption thesis, because on his account the limits to the pre-emption
the same time the limits of law's legitimacy. When the law's 'subjects d
guide their actions by its instructions instead of by the reasons on which they
supposed to depend'6 then the law, at this point, is no longer a legitimate
ity for them because it does not fulfil the role of mediating between peop
the practical reasons upon which they act-a 'mediation' central to Raz's
account.7
Dworkin's example of Lincoln and his suspension of habeas corpus seems to
confirm this: 'Most of us treat the Constitution as both legitimate and authoritative.
But many commentators nevertheless think both that Abraham Lincoln was
morally right to suspend habeas corpus during the Civil War and that he acted
illegally'.8 Expressed in Raz's terms, what Lincoln did was to revert to the original
reasons for action rather than to act on the Constitution's authority: the
perceived emergency inclined him into an illegal but politically and morally preferable
solution. Far from undermining Raz's pre-emption thesis, Dworkin's
argument actually confirms Raz's account in his own parlance: legal rights
normally 'trump' our various extra-legal considerations (e.g. of utility), but
extra-legal considerations may 'trump' the law's authority when compliance with
law's directives is morally or politically indefensible. This becomes even clearer
when Dworkin adds:
Lincoln did not deny the Constitution's authority in making his decision; he sim
weighed that authority against competing reasons of the kind the Framers had
taken into account which retained their vitality. Lincoln found that the latter
under the circumstances, strong enough to outweigh the former.9
It is puzzling why Dworkin sees this account of Lincoln's unconstitutiona
morally and politically justified action as contrary to Raz's account of what
stitutes legitimate authority. The point of Dworkin's account is as follows:
Framers of the US Constitution had contemplated various reasons that the
ident and/or Congress might have for suspending the writ, and in the end
decided that the reasons for the President to act alone were not compelli
6 Raz, above n 2 at 215.
7 Ibid at 214: '[The dependence and the normal justification theses] regard authorities as mediating be
people and the right reasons which apply to them, so that the authority judges and pronounces what they o
do according to right reason' [emphasis in original].
8 Dworkin, above n 3 at 1672.
9 Ibid at 1672.
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382 Oxford Journal of Legal Studies VOL. 26
enough to grant him this constitutional power. Those re
carded by the Framers) 'retained their vitality' neverthele
legal realm, so to speak), and Lincoln acted on them, in
Constitution provided; hence, he acted illegally, but, in th
'many commentators' with whom he aligns himself, mora
perfectly compatible with Raz's account: in Raz's terminol
issue, Lincoln decided that it was better to revert to his o
(which, we may imagine, had something to do with the m
avoiding great national disaster in a situation of emerge
dated his unilateral action to suspend the writ) rather tha
directives contained in the Constitution as the best way of
original reasons. So in this particular case, he denied the
stitution, which is just another way of saying, as Dworkin
Lincoln acted 'illegally' and at the same time in a 'morally
There is one way in which the above defence of Raz's con
lenged, and its consistency with Dworkin's account of the
tioned. It may be argued that the property of legitimacy a
across the board and not to its specific directives, so that a su
one or another specific directive of an authority (or, in Raz's
her own reasons for action rather than allow the authorit
empt them) and still recognize the legitimacy of the authorit
interpretation seems to be offered by Dworkin when he state
'Lincoln did not deny the Constitution's authority in making
that 'he acted illegally'. This, however, seems to be a peda
that Lincoln 'acted illegally' on this particular issue means
issue, he denied the legitimacy of the Constitution as applyin
nition of legitimacy may be a matter of degree: Raz actually
system's legitimate authority 'may not be as extensive as i
course, adopt by definitional fiat a convention whereby legit
the authority as a whole rather than to its particular directiv
need another language to describe the situation in which a
general authority of a given entity, but refuses to recognize
properly incorporating the right reasons relevant to himself.
ing that such a specific directive held to be 'illegitimate' by t
ing is gained by attributing the notion of legitimacy only to
and denying it to specific authoritative directives.
B. Authority and Identification of Valid Law
Raz's pre-emption thesis seems therefore to be a useful enoug
means for subjects to treat an authority as legitimate. Wh
o10 Raz, above n 2 at 215.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 383
however, is the account of the law as necessarily and always identifiable w
regard to the original reasons that the law-makers have amalgamated, s
speak, into the legal directives. It is one thing for Raz to insist on the con
truth about 'legitimate' authorities pre-empting the citizens' appeal to no
reasons insofar as they recognize the legitimacy of a given directive; it is anot
thing altogether to claim that the law must be fully identifiable by its s
without ascertainment of the original reasons for action that it is now m
displace. The latter claim is not a necessary condition of the intelligibility
former.
We can say that, insofar as we recognize the law's legitimacy, we disrega
competing, non-legal reasons for action (in the sense that if those non-leg
siderations outweigh the legal directives, then this is just another way of
that the law's legitimacy has reached its limits), and also that in order to ascer
the correct meaning of the legal directives, we must appeal, at times, to t
reasons that the law seeks to translate into the language of legal rules. The
statement may upset the architectural elegance of Raz's construction in th
that the original reasons for action may appear twice in the process of th
pliance with law: first, at the stage of the translation of citizens' reasons into
rules by legal authorities; and secondly, at the stage of ascertaining the m
of those legal rules by those to whom they are addressed. This, however,
as problematic as it may at first seem: it is not contradictory to claim, at the
time, that (1) to treat the law as a legitimate authority means to surrend
appeal to the original (non-legal) reasons in deciding about one's action,
basis that the law effectively translates those reasons into its directives, a
(2) in order to identify the meaning of the legal directives we need, at ti
refer back to those original (non-legal) reasons. Simultaneous acceptance
these two propositions, untidy though it may seem, has the advantage of
the concept of law from patently counter-intuitive conclusions, accord
which a number of legal standards would have to be denied the quality
precisely because in order to ascertain their meaning, the subjects need to
to the reasons that triggered the elevation of these standards to legal status in
first place.
This, indeed, is the meaning of 'standards' in those contexts when, in
theory, they are contrasted to 'rules' (not to be confused with Dworkin's
ples/rules distinction)." When, for instance, the law denies enforceabili
those contracts that 'unreasonably' restrain trade, or prohibits 'establishm
a religion, etc., then it calls upon its subjects to replicate in their minds t
sons for action that it now purports to 'pre-empt'. In order to fix the meanin
those standards (and therefore, of the authoritative directives of law) its s
1 See, in particular, Duncan Kennedy, 'Form and Substance in Private Law Adjudication', 89 Harvard
Review 1685 (1976); Kathleen Sullivan 'The Supreme Court, 1991 Term-Foreword: The Justices of Ru
Standards', 106 Harvard Law Review 22 (1992); Jeremy Waldron, 'Legal and Political Philosophy' in Jule
and Scott Shapiro (eds), The Oxford Handbook on furisprudence and Philosophy of Law (2002), 352-81 at 35
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384 Oxford Journal of Legal Studies VOL. 26
must go back to the original reasons for enacting them in
sure, it is not a simple replication of the process of translatio
sons into directives, because the very fact of already ha
legal directives in force introduces some important const
ings that can be given to them (and this is the point of Dwor
structive interpretation in law).12 An enforcer of a legal
the same freedom of interpretation as the legislators and
argued for the introduction of the rule in the first place. If
hibits, for example, the establishment of a religion, then
which actions, under the interpretative conventions of a g
be viewed as the unconstitutional establishment of relig
those constraints, in order to ascertain exactly what is and
instance, whether state financial aid to religious schools
ment' or not), an enforcer of this legal directive will ha
underlying purposes, principles and/or policies that it is s
We know that the law mediates between the background
authoritative decisions, and at times to identify the mean
directives we need to look back to the original reasons tha
Indeed, law-makers may justifiably intend, in some circums
do just this, for instance in order to introduce some necessar
law at the stage of its application (because flexibility at th
may often be politically unfeasible), or to avoid incidence
tice caused by the scrupulous application of a by-and-larg
reduce the levels of over- and under-inclusiveness that ne
the background policies and principles are 'translated' in
rules, or for a whole host of other reasons.'3 We (i.e. the
of those directives) will then need to engage in the ascertainm
of those background principles and policies, and also in a r
ing of the values at stake, thus largely replicating the m
within the constraints of valid interpretative conventions) th
adoption of the directive. We may express this proposit
Dworkin's 'constructive interpretation', or in the langua
called 'inclusive positivism' who claim that law, at times,
standards into the meaning of its authoritative rules. Eith
essential to the very notion of authority is the idea that the
tive directives should be identifiable without recourse to the
the directives supposedly pre-empt cannot be squared wit
ence of 'standards' (as opposed to 'rules') in legal directives. Nor can it be
squared with the fact that the distinction between standards and rules is a more a
matter of degree than of a sharp divide: many directives, which at first blush look
12 Ronald Dworkin, Law's Empire (1986) at 62-8.
13 Including to promote civic deliberation in the process of adjudication, see Sullivan, above n 11 at 67-9.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 385
like straight rules, may be 'corrupted by exceptions''"4 to the point at which t
more closely resemble standards.
C. Legitimate Authority and Democracy
Raz's conception of legitimate authority is not a normative thesis about
legitimacy should be generated but rather a conceptual analysis of what it
for authority to be legitimate. The source of misunderstanding about Ra
ception may be that Raz himself is not quite clear about this distinction b
the possible aspirations of his project. Recently, one of his critics, Scott Hersh
claimed that the 'normal justification thesis' neglects the importance of
procedural mechanisms of democracy:
If a government's electoral system favors some interests in society, or appears cor
financed, or causes portions of the population to be marginalized and voiceless,
quick to judge it illegitimate, or at least less legitimate than it might be other
Where these deficiencies are present, it counts for little that a government may p
substantively good decisions, decisions that the normal justification thesis [o
would hold authoritative. ... This shows us one way in which the normal justif
thesis is incomplete as a theory of legitimacy for political authorities: Governmen
fulfill it may fail to be legitimate on procedural grounds."
The source of the confusion is that, in offering his conception, Raz is ap
ently less interested in the problem of legitimacy than in that of authori
avowed aim is to tell us what it means for one person or entity to have a
ity over another. But to construct the concept of authority, Raz choose
take as a point of departure the notion of legitimate authority. It is only
we learn what legitimate authority means that we can discover what a l
than-legitimate authority is, by identifying what features it lacks in com
with a legitimate one. And so we learn from Raz that 'the law either cl
that it possesses legitimate authority, or is held to possess it or both', an
even if the law fails to posses legitimate authority, it is a conceptual trut
it must at least 'claim' to do so.16 (As Dworkin has observed, this is in m
respects a bizarre proposition, but we may leave this matter to one side
here)." So it is not the case that, according to Raz, we first develop a concept
of authority and then add to it the conditions of its legitimacy; rather, the converse
seems to be the case, as the very concept of authority is not intelligible
without a prior notion of legitimate authority. (It is rather as if we defined
'postage stamps' by defining 'valid postage stamps' first, and only then
explained that there are also stamps which lack some conditions of validitybut
the very idea of a 'postage stamp' is unintelligible without knowing first
14 Ibid at 61.
15 Scott Hershovitz, 'Legitimacy, Democracy, and Razian Authority', 9 Legal Theory 201 at 216 (2003).
16 Raz, above n 2 at 215
17 Dworkin, above n 3 at 1666-7.
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386 Oxford Journal of Legal Studies VOL. 26
what a valid stamp means).'" This is confirmed when Raz
in general can be divided into legitimate and de facto auth
claims to be legitimate or is believed to be so'.19 Either
whether legitimate or not, derives conceptually from the pro
Legitimacy, or the lack thereof, is in the eyes of the critica
authority either commands 'legitimacy' by virtue of the belie
at the very least claims to be legitimate, even if it fails t
among its subjects. Under Raz's definitional proposal, an 'a
claims legitimacy nor is believed to be legitimate is a contrad
seems acceptable: indeed, we have a different vocabulary
that does not even try to create pretensions of legitimac
force, etc. The use of the language of 'authority' carries a
ific acknowledgement of a (real or at least claimed) conn
exercise of the authority and certain facts about the subj
(namely, about the reasons for action that they have indep
ence of the authority itself). 'An authority' that did not e
such a connection, and yet were successful in controllin
subjects, would not be even an 'illegitimate' authority; it would not be an
'authority' at all, representing nothing but naked power. Whether the 'authority'
is legitimate or not is a matter of its degree of success (in the eyes of a critical
observer) in establishing a close connection between its directives and the background
reasons that would otherwise guide the actions of the laws addresseesin
Raz's terminology, 'reasons which apply to the subjects of those directives'.
Viewed in this way, Raz's theory is immune to the criticism that it neglects the
importance of procedural devices of democracy. His project is to suggest a concept
of authority that necessarily relies upon a prior concept of legitimacy, rather
than to propose a normative political theory about what are the necessary and
sufficient conditions of legitimacy. But the concept of authority he outlines lends
itself well to the democratic interpretation suggested by Hershovitz: it is only a
matter of interpreting the meaning of 'the reasons which apply to the subjects' of
authoritative directives. We may recall that Raz claimed in his 'dependence thesis'
that the very concept of (legitimate) authority requires that directives be
based 'on reasons which apply to the subjects of those directives'; the whole
point of the 'service conception' is to place the (legitimate) authorities in the
position of mediating between the subjects and 'the right reasons which apply to
18 Another analogy may be drawn from an argument in the House of Lords' decision Anisminic Ltd and Foreign
Compensation Commission and Another [1969] 2 AC 147 at 199 per Lord Pearce, in which one of the questions concerned
the meaning of the word 'determination' as in the 'determination by the Foreign Compensation Commission'
in the text of the Act of 1950 establishing the Commission; the judgment established that only 'a real determination,
not a purported determination' was to be construed as a 'determination'. Otherwise an absurd situation would be
reached, according to Lord Pearce, in which the court deliberating on the Commission's decision would not be able
to inquire as to 'whether a purported determination was a forged or inaccurate order which did not represent that
which the commission had really decided'. To paraphrase, for the purposes of our argument, the notion of 'purported'
or 'forged' or 'invalid' determination is derivative of the notion of a valid, or proper, determination.
19 Raz, above n 2 at 211.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 387
them'.20 But what reasons can 'apply to the subjects' other than those th
actually have? To be sure, one can suggest that paternalistic non-democ
authorities (perhaps in the idealized version offered by Rawls when he de
decent and well-ordered, though illiberal, societies)21 can better identify t
sons that 'apply to the subjects' than can the subjects themselves. This, ho
is a matter of normative political philosophy; manifestly not what Raz eng
when describing his 'service conception'. So it is perfectly compatible wit
theory to claim that the only way for the authorities to ascertain 'the reasons
apply to the subjects' of authoritative directives is by asking those subjects th
selves, through democratic elections, representative bodies, referenda, etc
bining such a (very plausible) normative political philosophy with Raz's 's
conception' brings about precisely what Hershovitz claims (although he p
his claim as a criticism of Raz's thesis), namely, that the only authority t
be legitimate under the service conception is one that is procedurally dem
The fact that Raz's conception can be reconciled also with a non-demo
paternalistic theory (according to which the authorities are legitimate i
properly discern the reasons relevant to their subjects without asking the sub
themselves what they take those reasons to be) is not an argument agai
service conception, because Raz might simply retort that, as a matter of n
tive political philosophy, he considers the paternalistic conception deeply
implausible. Therefore, while Raz's understanding of legitimate authority is
broad enough to accommodate various democratic and non-democratic political
theories alike, the use of this concept does not reveal indifference towards democratic
procedures. This is quite simply a separate debate (about how to go about
identifying the reasons relevant to the subjects of authority), and Raz is free to
claim that democracy offers the only plausible solution.
D. Justification and Obligation
At the start of this part of the article, I stated that I would deal here with justification,
legitimacy and the obligation to obey the law, but thus far I have focused
exclusively on legitimacy; it is now time to consider the other two categories. Let
us begin with the relationship between the legitimacy of law and the obligation to
obey it. There is an understandable temptation, at a commonsense level, to draw
a tight conceptual connection between the two: while there is no reason to obey a
law which is illegitimate or the legitimacy of which is in doubt, what is the point
(the argument may go) of ascertaining the legitimacy of a given law other than to
identify our obligation to obey it? As in Shakespeare's 'Henry IV', when
Glendower boasts, 'I can call spirits from the vasty deep', and Hotspur retorts:
'Why, so can I, or so can any man;/But will they come when you call for them?',22
20 Ibid at 214.
21 John Rawls, The Law of Peoples (1999), esp at 59-88.
22 William Shakespeare, Henry IV, Part I, Act 3, Scene 1
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388 Oxford Journal of Legal Studies VOL. 26
a finding that a law is legitimate may appear pointless unless
nected to the validation of the duty to obey it. Indeed,
that we may have at times an obligation to obey laws that
legitimate, and so, a fortiori, have an unquestionable obliga
imate law. Consider John Finnis's proposition that 'if an
tion is, in fact, homogeneous with other laws in its formal so
by courts and officials, and in its common acceptance, the
always) be morally required to conform to that stipulatio
sary to avoid weakening 'the law', the legal system (of rules,
positions) as a whole'.23 This is because, in the case of
particular unjust law that is an aberration in an otherwise rea
we should be concerned about not undermining the effe
system as a whole in pursuing the common good. Hence it
case of a law that we consider to be legitimate (by our o
they may be) our moral obligation to comply must be all t
The connection, however, is not as close as it would seem at
significant that for a number of legal theorists the obligator
not necessarily follow from their legitimacy. Kent Greenawal
a number of different correlates of the idea of a legitimate p
the proposition that the governed should obey the directives
ity is only one among a number of others possible, such as
ical authority are justified in issuing certain kinds of di
govern, or that they are justified in using force to induce co
governed should not interfere with such uses of force, et
Ladenson has suggested that 'The right to rule is ... a jus
[which] by itself implies nothing about either the subject
the state or of compliance with the law'.25 Indeed, the vi
legitimate authority merely connotes that the authority is ju
tives to the subjects, but not that the subjects have a corresp
ply with these directives, seems to be quite widespread in cur
To see clearly why this disconnection of legitimacy and o
eminently persuasive, it suffices to consider again Raz's u
mate authority (the 'service conception'). According to t
have seen, those subject to the authority are more likely
tives founded upon reasons relevant to them. This means
sons that people espouse identify important aspects of the
understood, and that they are more likely to attain this wellwith
the authoritative directives rather than attempting to a
(or, in Raz's terminology, through acting on those reaso
implication of this conception is that it is rational, or wis
23 John Finnis, Natural Law and Natural Rights (1980) at 361-2.
24 R. Kent Greenawalt, Conflicts of Law and Morality (1987) at 50-1.
25 Robert Ladenson, 'In Defense of a Hobbesian Conception of Law' in J. Raz (ed
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 389
subjects of an authority to follow authoritative directives (which already, und
legitimate authority, correctly incorporate the original reasons) rather than t
find their own way of attaining those aspects of their well-being. No-one
ever, has a duty to be rational, or wise, or prudent.26 To establish such a
requires some additional normative argument. If I choose to ignore the
tives issued by legitimate authorities (directives that, by definition, better re
the reasons which apply to me than any unilateral action I could take),
make my life more difficult, and fail to attain most efficiently the goals iden
by my original reasons-but I have not breached any obligation. I would
breached an obligation if, for instance, by disregarding the authoritative
tives and acting on my own reasons directly, I failed to discharge duties o
ness to my fellow-citizens (who do follow the authoritative directives in
that pre-empts their own, original reasons for action), or if I undermine
law's effort to provide the optimal coordination of individual actions in p
of public goods, or if I reneged on an implied promise to obey the law,
others might have legitimately read into my conduct and relied on in t
actions, and so on. However, each of these grounds for alleging a breach
obligation requires an additional theory about the foundations of my oblig
that, for example, the law parallels the schemes of cooperation that gen
reciprocal duties of fairness; or that law is generally efficient in coord
individual actions to deflect collective-action problems and that when it is
fied as such, we all have a duty to contribute to such an efficient outco
that our continued presence in the society can be viewed as analogous to
implicit promise to be bound by a legitimate law, etc. Each of these theori
or may not be persuasive-and, as we know, entire libraries can be filled w
erature arising from the disputes and disagreements over these, and other
posed grounds for a political obligation. One thing, however, is clear: the
additional theories that are necessary to provide a moral basis for a duty t
ply with a legitimate law, and that a concept of legitimate authority, such as
proposed by Raz, evidently does not ground, per se, such a duty.
However, the matter is more complicated than that, and Raz's is not th
theory of legitimate authority around. It is worth looking at those theorists w
in contrast to Greenawalt,27 Ladenson and others, draw a strict connec
between legitimacy and the duty to obey. Perhaps the most interesting versio
26 This is consistent with what Raz had claimed well before he has formulated his 'service conception of
ity', namely that there is no general moral obligation to obey the law; more specifically, he showed that s
obligation does not follow from our undeniable duty to support and uphold good institutions (and so, in th
language, the institutions that properly translate our original reasons into authoritative directives). The dut
port good institutions, Raz says, gives birth to an obligation to obey only those laws that guarantee the fun
of a democratic government, while 'It provides reasons to obey other laws only to the extent that by doin
sets a good example or that by failing so to act one sets a bad example: that is, only to the extent that obe
these other laws strengthens or prevents weakening the laws on which the democratic character of the gov
is founded', Joseph Raz, The Authority of Law (1979) at 241.
27 To be sure, one of Greenawalt's seven possible 'correlates' of state's legitimacy is a duty to obey it by
zens. I have here, and in my next reference to Greenawalt, taken into account only those 'correlates' wher
implication is proposed.
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390 Oxford Journal of Legal Studies VOL. 26
such a conception was recently proposed by A. John Sim
(what he calls) a 'Lockean account' (which is also his, Sim
of state legitimacy in the following way:
A state's (or government's) legitimacy is the complex moral rig
exclusive imposer of binding duties on its subjects, to have it
these duties, and to use coercion to enforce the duties. Accordi
the logical correlate of various obligations, including subjects'
state's 'legitimacy right' is in part a right held specifically again
any state-imposed duties, arising from morally significant re
consensual relations-between state and subject.28
Simmons goes on to elaborate on the last point in this quo
nature of the 'special moral relationship with any particul
the state a moral legitimacy, which in turn creates a duty
of the subjects. His discussion, inspired by Locke, is comp
pose to summarize it here, but the main point (for our
Locke, as for Simmons, the moral justification of a state i
tion of its legitimacy quite another. Moral justification is a m
and applauding, the general quality of a state, such as its
various coordination problems, to institutionalize and enfo
violence, etc. To justify states we need to show that they
course not all states are beneficial; hence, not all states ar
justified, this fact may, at best, ground our duty not to und
even positively to support it-but not necessarily to obey it. Obedience is
another matter: it requires some special relationship between the state and a particular
subject, because '[t]he fact that a state or a business has virtues that can
be appealed to in order to justify its existence cannot by itself argue for its having
special rights over particular individuals'.30 Those 'special rights' constitute the
state's legitimacy-and they have to be defended on some other grounds (which
Simmons characterizes as 'morally significant relationship' between the state
and a particular individual) than merely the net benefits of having a state (or that
state) that justify its existence.
Thus far I have been dealing with legitimacy without making any distinction
between the legitimacy of particular rules and the legitimacy of a system of legal
rules as a whole. Indeed, as I suggested earlier, legitimacy may be a matter of
degree, and the legitimacy of a system may be seen as emerging from the recognition
of the legitimacy of a great many specific legal directives that it contains.
From the citizens' point of view, however, which is that of the legal obligation to
obey, disobedience can normally be expressed only with regard to specific legal
rules, not to the system as a whole. In such circumstances, as John Finnis noted,
28 A. John Simmons, 'Justification and Legitimacy' (1999) 109 Ethics 739 at 746.
29 Ibid at 748.
30 Ibid at 752.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 391
'your allegiance to the whole system ('the law') is put on the line: either
obey the particular law, or you reveal yourself... as lacking or defective i
giance to the whole, as well as to the particular'.31 It would appear, therefore,
there is an important asymmetry between the problems of the legitimacy and
obligatory nature of the law: the former crystallizes only at the level of parti
law, while the latter does so at both the particular and systemic level. Th
tinction between the particular and the systemic needs not concern us, ho
because the asymmetry just noted does not affect the relationship between
imacy and obligation in a way damaging to the argument here. After all, if le
macy is based, as in Simmons' work, on special grounds that link the stat
the individuals, then these grounds may equally concern specific laws or t
tem as a whole. And if legitimacy is based upon 'dependent reasons' bein
rectly encapsulated in legal directives, as in Raz's understanding, then legi
is even more readily identifiable at the level of particular rules. Similar
repeated disobedience to a great number of particular laws amounts to a g
habit of disobedience, which may or may not be based on a citizen's ref
grant legitimacy to the legal system as a whole. However, there is no reaso
we cannot say that someone may accord general legitimacy to the system
whole, while at the same time refusing to obey a particular law on the bas
she finds it illegitimate.32
Simmons' conception nicely demonstrates a general proposition that I w
make at this point, in bringing together the three concepts that I referre
the start of this section: justification, legitimacy and the obligation to obe
general proposition is this: either justification and legitimacy are taken to be s
stantively the same thing (or, to be more precise, rely on substantively th
arguments) and then the obligation to obey requires separate moral argum
than those used to support the other two (as in Raz, Greenawalt and Lade
or justification and legitimacy are two different things (each requiring dif
sorts of moral arguments) but then the obligation to obey follows nece
from the validation of a state as legitimate (as in Simmons). To simplify,
the trichotomy of justification/legitimacy/obligation to obey, the notion of l
macy is strategically central: either we align it with justification (and hav
sonably weak notion of legitimacy, equivalent to the state being justifie
issuing directives) or with an obligation to obey (and then we have a stron
cept of legitimacy, equivalent to the duty of compliance). What we cannot
the alignment of all three concepts with each other because we then lose s
31 Finnis, above n. 23 at 317, emphases in the original.
32 Consider Dworkin's proposition: 'A state is legitimate if its constitutional structure and practices are
its citizens have a general obligation to obey political decisions that purport to impose duties on them. An
for legitimacy need only provide reasons for that general situation. It need not show that a government, leg
that sense, therefore has moral authority to do anything it wants to its citizens, or that they are obligate
every decision it makes', Ronald Dworkin, Law's Empire (1986) at 181, emphasis added. The italicized w
indicate the availability of yet another 'sense' of legitimacy, namely pertaining to specific legitimacy of p
laws.
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392 Oxford Journal of Legal Studies VOL. 26
the crucial fact that we do not have a duty to obey a stat
that it is properly doing what it is supposed to do. Wheth
fact that the state is performing well its proper functions in
service conception of legitimate authority (and say that
incorporating the dependent reasons into its authoritative
its subjects rational reasons to suppress their own indepen
and to act on the state directives directly), or in the langu
justification of a state, is ultimately unimportant, and may b
definitional fiat. What is important is the awareness that
ing: 'justification-legitimacy-duty to obey' we always ha
mentative steps, not just one; and that we should avoid
moving directly from a moral justification of a state to the p
citizens.
2. 'Democracy-Plus'
A. 'Democracy Without Values'
A few years ago, speaking before the Polish Parliament ('Sejm') Pope John Paul I
urged his audience-the parliamentarians of a newly democratized State-not to
ignore the importance of the right moral values: 'Whilst the autonomy proper t
the life of a political community must be respected, it should also be borne in
mind that a political community cannot be seen as independent of ethical princi
ples'.33 He then went on to quote his own Encyclical, Veritatis Splendor, of 1993
'As history demonstrates, a democracy without values easily turns into open or
thinly disguised totalitarianism'.34 As we can see, the late Pontiff phrased the
questions of the conditions of democratic legitimacy in a remarkably similar way
to that in which I framed the issue at the start of this article: namely, that democracy
must be enhanced with values-'democracy-plus', in my proposed vocabulary-in
order to provide a strong basis for the legitimacy of democratically established
legal directives.
'A political [democratic] community cannot be seen as independent of ethical
principles'; 'a democracy without values easily turns into open or thinly disguised
totalitarianism'. What is the meaning of these warnings? The only way w
can make sense of them is, I believe, by imagining what the negatives would be
like: what a democratic community 'independent of ethical principles' or a
'democracy without values' might look like. Just as we can sometimes articulat
intelligibly the shape of a positive precept (say, 'wealth with wisdom') only by
realizing the shape, and the consequences, of its negative counterpart ('wealth
without wisdom'), so we can give a proper meaning to the call for infusing
33 John Paul II, 'Address to the Polish Parliament', 11 June 1999, available at http://www.vatican.va/holy_father/
john_paulii/travels/documents/hfjp-ii_spe_ 1061999_warsaw-parliament_en.html part 5, my emphasis.
34 Ibid, part 5, quoting Pope John Paul II, Veritatis Splendor, 6 August, 1993, my emphasis.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 393
democracy with values only by thinking about what 'democracy without val
would be like, and what would be wrong with it.
However, such a thought experiment is less easy than it may at first appe
For one thing, democracy as a system is based on particular, strong (and, b
implication, controversial) moral values. The very choice of a democratic sy
tem, and a commitment to the maintenance and defence of democracy aga
the alternative institutional systems, is not in itself value-neutral. Perhaps
most obvious moral value that is necessarily presupposed by a democratic s
tem is that of equal moral agency of every human being in terms of influenc
decisions about public arrangements. What other reasons would we have
adopt a majority-rule based institutional design (which is, subject to all poss
caveats and reservations, the irreducible hard core of any democracy)35 if we
not adopted, as an overarching political value, some precept about the e
moral agency (or dignity) of all? After all, under many plausible and empiric
testable conceptions, the conferral of an equal vote upon every adult citizen
matters of common concern, is deeply irrational and arbitrary. People var
widely in terms of their intelligence, knowledge, experience, moral integrit
honesty, contributions to public welfare, courage, and so on. Each of these pr
erties (and many others) could be shown to be relevant to the exercise of a r
to affect public decisions; hence, each could constitute a ground of reducing
enhancing one's 'vote' on public issues, for instance, in parliamentary electio
If, intuitively, we find such a proposed radical departure from a 'one pers
one vote' principle objectionable (as, I take it, we usually do) then it must b
because there are some powerful moral values that would be offended by suc
departure. Of course, we may be hesitant to embark upon such a path also
non-moral reasons: we might think, for instance, that it will be increasing
costly to test and assign the vote based on any of such proposed criteria; or
it might increase the potential for corruption and moral hazard; or we may rejec
it because any agreement to such a proposed re-assignment of votes would i
have to be subject to a justifiable re-weighing of votes, which runs us into an inf
nite regress, etc. But while each of these objections is serious, taken toget
they would not be weighty enough if we sincerely thought that the principl
one person-one vote was fundamentally morally flawed; furthermore, we w
be much more determined than we currently are about finding a more mor
justified system, and only then start worrying about the practical difficultie
putting the alternative into practice.
35 There is of course a major and deliberate simplification in this account: there is no single, canonical conce
tion of democracy, and the implications for the equality of voters are different if we opt for a purely majorita
procedural theory of democracy, or a constitutional conception with strong substantive rights limiting the sc
the majority decision, or a deliberative democratic conception that attempts to overcome the procedural-constitu
distinction and identifies the main criterion of democracy in deliberation among the citizens with the aim of justifyi
their collective decisions to one another. For this trichotomy of procedural, constitutional and deliberative dem
cracy, see Amy Gutmann and Dennis Thompson, Democracy and Disagreement (1996) at 26-51. At this stage of
argument, however, all that matters is that, regardless of where, how, and to what extent the majority rule ope
it inevitably relies on some prior egalitarian presuppositions.
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394 Oxford Journal of Legal Studies VOL. 26
So it is like ascertaining the existence of a planet not by
but rather by drawing inferences from the puzzling beha
planets: the fact that we intuitively reject, on moral gro
apportioning the vote on the grounds of, for example, in
assumption of a powerful value (or a set of values) that tr
prima facie plausible, grounds for differential assignmen
What might this other, powerful value be? Not surprisingly,
disagree among themselves about its specific articulation
approaches towards it are a direct reflection of different
cracy that we support. Any attempt to identify a single v
accepted by all those who espouse democracy is ultimately
to use Ronald Dworkin's characterization applied to polit
both an 'interpretive' and an 'integrated' ideal.36 It is, fir
sense that people not only disagree about the value of dem
gree about what democracy really is, and no 'Archimedea
able in order to establish, in a descriptive manner, the m
before we get on with the debates about its worth. And,
grated' (rather than a 'detached') ideal in the sense that
of democracy are only revealed through their place in a l
values, which mutually reinforce and confer worth upon e
One might think that this characterization of democracy
and integrated (in the Dworkinian sense) detracts from th
is a 'foundational' value behind democracy, such as that o
It does not, however; indeed, it only strengthens the view th
based in a sense that renders the concept of 'democracy w
meaningless. For we may disagree over what specific acco
ues that justify democracy in the first place: some will di
logical grounds for such values,37 while others will insis
upon equal rationality free from any transcendental pre
different articulations of democracy-justifying values will yi
ent conceptions of democracy itself, and there is nothing
ing about this. What matters is that there must be some
adopted and defended, and whose general contours are by
in order to counter and outweigh the prima facie rational
aristocratic, or technocratic models of collective decision
and-large egalitarian values must be powerful enough to d
from the rationality of apportioning the power of the vote a
competences as measured by a person's intelligence, educ
36 See Ronald Dworkin, 'Hart's Postcript and the Character of Political Philos
and 14-16.
37 See, e.g. Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke's Political Thoug
44-82; Larry Siedentop, Democracy in Europe (2000) at 192-8.
38 See Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (2000).
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 395
be able to convince us that when it comes to fundamental decision-making
about, for example, which major political party should govern for the next f
or five years, or what should be the nation's choice on joining a major intern
tional alliance, or whether abortion should be punished by law or not, each ad
citizen's qualification to make an informed choice (or, more precisely, the qu
fications of each person who cares to go to vote) is as good as that of any othe
Indeed, our intuitive acceptance of the one person-one vote system sho
through something rather like a reflective equilibrium analysis,39 that we
accept the background values that render the democratic system of voting
'fixed point' in our commonly accepted constellation of values.
The precise nature of these background values is, of course, a matter tha
notoriously divides various theorists of democracy. To say that it is a form
equality may be seen as not particularly illuminating because the 'one perso
one vote' rule is egalitarian only in a formal and admittedly objectionable sen
for one thing, it ignores the unequal resources that various voters have at th
disposal to persuade others in a particular way; also, it ignores the uneq
intensity of preferences that particular voters espouse. Consequently, the rig
ous application of the 'one person one vote' rule may lead to drastically uneq
results that offend against the principle of equal concern, substantively und
stood: the result of a majority decision (with a one person one vote princip
respected) may, for example, lead to an unequal treatment of members of
minority.40 But this just goes to show that there is no one canonical standard
political equality, and that a 'one person one vote' principle is an egalitarian
principle, one among many. It is egalitarian in an undisputed sense that, w
employed in the process of decision-making by majority, it 'attempts to give each
individual's view the greatest weight possible ... compatible with an equ
weight for the views of each of the others'.41 If we intuitively choose the 'o
person one vote' principle as regulative of our democratic procedures it is n
because of its less egalitarian character than a substantive principle of equal c
cern, but because, in a pluralistic community, we would not agree on the com
mon criteria as to which outcomes are substantively equal (that is, which
express, in their substance, the principle of equal concern).42 We adopt democratic
rule on the grounds that are egalitarian through and through, but it is
there where our egalitarian consensus ends. It does not detract from the fact that
the very adoption of a democratic procedure reveals a prior acceptance of a
strongly (though not uncontroversially) egalitarian premise the contours of
39 See John Rawls, A Theory of Justice (1971) at 19-21.
40 For this argument, see Charles Beitz, Political Equality (1989) at 64. The distinction between equality as
expressed in an equal vote and equality revealed in the substance of the decision corresponds to Dworkin's distinction
of a 'detached' and 'dependent' interpretations of democracy (focused, respectively, on the input and the output
of political decisions), see Dworkin, above n 38 at 185-90.
41 Jeremy Waldron, The Dignity of Legislation (1999) at 148; for a general argument linking the principle of equal
consideration of interests with an equal vote, see Thomas Christiano, The Rule of the Many (1996) at 53-71, and,
more recently, Thomas Christiano, 'The Authority of Democracy' (2004) 12 Journal of Political Philosophy 266.
42 See similarly Waldron, above n 41 at 162; see also Dworkin, above n 38 at 189.
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396 Oxford Journal of Legal Studies VOL. 26
which cannot be further discussed within the confines of thi
weighty enough to override the arguments for a non-de
government.
B. Pure Procedural Democracy?
It may be objected that the remarks above apply only to 'politique politisante'
rather than a 'politique politisee': that even though, at the level of the general
design of a democratic system, its legitimacy is assured by a strong value-based
justification, nevertheless at the level of the actual application of the design in
everyday political life, the connection between democracy and values cannot be
taken for granted. The urge to infuse democracy with values-a democracy-plus
conception-can be located at the level of the everyday workings and implementation
of the design, rather than the design itself. It is there (so the argument
may go) that the danger that democracy will become disconnected from substantive
moral value is real, and it is there that the warnings (including those
quoted above by John Paul II) against 'a political community independent of
ethical principles' maintain their force and validity. To think otherwise would be
a sign of naive faith in the self-perpetuating force of the moral values that underlie
the choice of a democratic system in the first place: the groundless hope that
the values that justify the adoption of democracy would reveal themselves at
each 'use' of the system.
This would be akin to what John Rawls dubbed 'perfect procedural justice':
an institutional system that guarantees that any outcome of the institutional
response to a challenge is always and necessarily just, in terms of standards of justice
independent of the procedure itself.44 With regard to democracy, it would
express a hope that once we put a democratic system in place (justified, as it is,
by certain values), each outcome of the democratic game will express those very
values. However (the argument might continue), just as in real life we do not
have the luxury of 'perfect procedural justice' at work (other than some hypothetical
examples invented to illustrate the concept itself, such as-in an
example provided by Rawls-a system in which the person who divides a cake
will be the last to pick up his slice),45 so in real life we cannot hope for democratic
procedures that will always and necessarily give effect to the values that
justify the system as a whole. Just as the best that we can hope for in the area of
distributive justice is to set up systems of 'imperfect procedural justice' (which
maximize the likelihood of achieving procedurally just outcomes), so in the case
43 For an interesting recent attempt to derive (in a qualified way) the principle of equality of voting power from
the principle of equal respect for individual autonomy, see Andrei Marmor, 'Authority, Equality and Democracy',
University of Southern California Law School Public Policy Research Paper No. 03-15, http://ssrn.com/
abstract=424612, accessed 20 October, 2004. I am grateful to Professor Marmor for his permission to refer to this
unpublished paper.
44 See Rawls, above n 39 at 83-7.
45 Ibid at 85.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 397
of the democratic legitimacy of political systems we can hope, at best, for ins
tional designs that will maximize, but never guarantee, the achievement
comes that are legitimate by virtue of their congruence with the value
justified the choice of system in the first place.
There is a temptation to give a quick answer to the objection described
preceding paragraph, which should be resisted. The temptation is to app
the concept of 'pure procedural justice', which is different from the perf
imperfect concepts in that it dispenses altogether with outcome-based crit
justice: pure procedural justice obtains whenever the correct procedure is s
adhered to (as in sports or gambling, in which we do not have any outc
based criteria to judge whether the result is just). In contrast, perfect and
fect variants of justice use outcome-based criteria, and the only differe
between imperfect and perfect justice is that the latter guarantees, where
former merely maximizes, the congruence of the outcome with our stand
justice. The quick response that I have in mind (but eventually reject) wo
to suggest that the problems raised by democracy are more akin to the problk
tique of pure procedural justice than to that of (im)perfect procedural jus
that the only democratic game in town is procedural and we should not c
ourselves with the 'fit' between the outcome of a democratic game and
outcome-based standards of democracy, but only with the compliance of p
(including legislative) procedures with purely procedural rules.
This temptation, as I said, should be resisted: the 'answer' provided he
decidedly too quick. Even in Rawls' initial introduction of the three-way d
between forms of procedural justice, serious doubts can be raised about
'pure' manifestation: do we really refer to the outcomes of sports compe
or gambling as 'just' merely because they comply with the rules of proce
To my (admittedly, non-native-English) ear, such a characterization is o
place in such situations; the conferral of the status of 'justice' in these ca
contrary to the semantic intuition many of us have. This would suggest th
language of procedural justice is always and necessarily a reflection of th
ness of the outcome.46 This impression is only strengthened upon consid
of the problems of democratic legitimacy. To say that, once a democratic
is in place, any outcome will be, by definition, democratic because we d
have an independent outcome-based notion of democratic legitimacy see
contrary to our intuitions. Rather, the opposite is true: we feel that if the de
cratic majority, in accordance with a democratic procedure, were to (for
example) deprive members of an ethnic minority of their fundamental rights,
then the outcome would be illegitimate because contrary to the foundational values
of democracy itself. So we do have criteria of a democratically legitimate outcome
after all; if we support democracy it is not because we believe that by
46 For more on this, see Wojciech Sadurski, 'Social Justice and Legal Justice' (1984) 3 Law and Philosophy 329 at
346-53.
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398 Oxford Journal of Legal Studies VOL. 26
definition anything that such a system produces is legitim
we believe that a democracy, more than any other system
ment of values that we endorse. It is not by virtue of a defin
of legitimacy with the scrupulous observance of procedu
through our real-life experiences of how different system
that we may endorse democracy: to do so merely by defi
weak and unconvincing.
Thus, the easy way out of invoking pure procedural ju
to us, meaning that the best we can do is to uphold dem
similar to imperfect procedural justice: a system that m
ment of democracy's foundational values, although it fa
teeing that each and every instance of a democratic pro
reflect those values. The distinction between 'politique p
tique politisee' therefore stands, and the fear that a poli
render itself 'independent of ethical principles' cannot b
appears, by a general appeal to the ethical principles fou
cracy itself.
So we need to think a little harder about what the oppo
plus would look like, and what dangers may accompany
independent of ethical principles'. There are two main wa
nection of democracy from moral values can possibly be
and reflection upon these two negative scenarios may brin
ive idea of what democracy-plus might be. The first wa
connection could take place may be understood at the le
of political actors in a democracy (both voters and their
parliamentary assemblies): if their decisions are motivat
considerations but by some other grounds deemed antith
of democracy with values. Let us call this aspect 'motiva
manner in which such a disconnection may be imagined
sions acquire validity solely by virtue of being adopted in
way, regardless of the degree of congruency between th
foundational values of democracy. This, as we have seen, would be a sign of
adopting a 'pure procedural justice'-like approach to democracy, and seems
unsatisfactory as it ignores the fact that we construct democratic legitimacy in
a way more akin to imperfect procedural justice. The gap between perfect and
imperfect justice raises the spectre of decisions that are procedurally correct
and based on a system that, by and large, maximizes the attainment of democracy's
foundational values but that may, in particular instances, be inconsistent
with those values. Let us call this dimension 'constitutional' (for reasons
that will become obvious later). These two examples of apparent disconnection
of democracy from values should be kept apart, because they generate different
problems for the issue of democratic legitimacy in the face of society's
value pluralism.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 399
C. Values at the Motivational Level
The first level at which we may (theoretically) perceive and deplore 'value-free
democracy' is that of the motivations of voters and their representatives. Here
short aside is in order: for the purposes of democratic theory as discussed here,
the distinction between individual citizens and political actors, such as the
members of legislative bodies, is irrelevant: we must assume a full continuity
between the motivations, intentions, preferences, etc., of the individual voters
and their representatives in parliament (a point to which I will refer below as the
'continuity thesis'). Of course, we know that this assumption is naive and not
very realistic, but as a matter of a normative democratic theory it does not make
any difference whether we consider the motivations of the institutional actors or
of individual citizens. Or, to put it differently, a citizen qua voter is also a polit
ical institution, and only as such is considered relevant for the purposes o
democratic theory.47
At this motivational level, the separation of democracy from values can be dis
cerned in the reliance of voters and their representatives upon their interest
rather than values and ideals. Democracy is eroded of values, it can be said,
when public decisions are motivated by the calculus of interests rather than by
ideals, and when the 'input' to political decision-making consists of our own per
ceptions of our interests rather than ideals about the public good. To take an
example, if my motivation in voting for a particular taxation scheme (or voting
for a party on the basis of its taxation programme) is guided only by the ques
tion: 'Which of the alternative tax schemes will be the best for me?', then this
results in a deplorably value-free democratic process because the right question
should have been: 'Which of the alternative tax schemes best corresponds to a
defensible idea of justice in taxation?'
This particular example shows, incidentally, that a 'motivational' understanding
of the democracy-plus claim is immune to the possible charge that it adopts
an illiberal stance in the controversy between perfectionism and anti-perfectionism,
in the context of a debate over the proper limits of state action in enforcing
moral values. 'Democracy-plus', in this version, may be but need not be illiberally
perfectionistic. If perfectionism is understood in a broad, and not necessarily
illiberal, way, as the proposition that the role of the state includes the stron
commitment to personal autonomy (which requires a high degree of respect fo
individual choices of ways of life and which is well captured by the 'harm principle'),48
then the democracy-plus' call for acting on values rather than on inter
ests is perfectionistic but in a non-objectionable manner-from the libera
standpoint at least. It may simply mean nothing more than that a polity shoul
47 On this last point, see Christopher L. Eisgruber, Constitutional Self-Government (2001) at 50; Bruce Ackerman,
We The People: Foundations (1991): 232-43 and 297-314.
4 For such a 'perfectionistic' understanding of autonomy and of the harm principle, see Joeph Raz, The Morality
of Freedom (1986) at 412-20; see also, generally, Vinit Haksar, Liberty, Equality, and Perfectionism (1979).
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400 Oxford Journal of Legal Studies VOL. 26
aim at the implementation of some notions of the social
accommodation of particular interests should be informed
of justice. If, however, perfectionism is taken to mean t
enforce some ideals of private morality that express som
of individual virtue (i.e., that the state should identify an
superior ideals of human excellence),49 there is nothing in
ues rather than on interests (whatever it may mean, as wi
that creates a necessary bias in this direction within democracy-plus. The
demand, for example, that in the debate on redistribution through taxation we
should be guided by our ideals of public good rather than by our particular interests
is evidently not illiberally perfectionistic: it takes no stand in the dispute
about the role of the law in shaping private morality (the notion of 'the good' as
contrasted to 'the right', in Rawls's parlance) of the citizens.
But the continuity thesis, suggested in the first paragraph of the present
section, can be challenged in a way that resonates with the debates concerning
'perfectionism', that is, by appeal to the notion of neutrality of legislation
towards competing moral conceptions. It can be claimed that, even if we adopt
the ideal of 'moral neutrality' of the state, and attempt to discern the indicia of
this neutrality in the motivations of the legislators, it cannot go all the way down;
we must not expect individual voters to be neutral on issues of private morality.50
It is one thing, it may be argued, for the state to attempt to be as neutral as
possible on the controversial issues of private morality; it is quite another to
expect citizens to reflect such neutrality in their decisions and conduct. While
the former ideal may be a useful way of articulating the liberal political ideal, the
latter demand (addressed to individuals) can be seen as absurd." This 'absurdity',
however, can only arise if we confuse the perspective of individual as a private
person and an individual as a citizen-voter. Being 'neutral' in our private
capacity on moral issues is just a fancy and somewhat pretentious manner of saying
that we are uncertain, or agnostic, about some controversial moral matters.
But being neutral when we act in our public capacity as voters has no air of
absurdity or confusion: it simply means that we act on a distinction between our
notions of private morality and our notions of the public good. Naturally, the
distinction itself is controversial and open to challenge, but if we accept that the
distinction can be made, then it can be drawn equally well in the mind of an
individual voter as in the minds of the legislators, and in consequence relied
49 For this understanding of 'perfectionism' see, inter alia, Carlos Santiago Nino, The Ethics of Human Rights
(1991) at 132-6, 142-3; see also Tim Gray, Freedom (1991) at 167. The locus classicus of a liberal rejection of
perfectionism is, of course, in Rawls, above n 39 at 325-32, restated in John Rawls, Political Liberalism (1993) at
194-5, 292-5.
so While a discussion of that point is beyond the scope of this article, it should be acknowledged that for some liberals,
including William Galston and Joseph Raz, even the notion of political neutrality as addressed only to lawmakers
is incoherent; see William Galston, Liberal Purposes (1991) at 79-97; Raz, Morality of Freedom at 108-22.
For my critique of Raz's criticism of the principle of neutrality see Wojciech Sadurski, Moral Pluralism and Legal
Neutrality (1990) at 99-111.
" See Jeremy Waldron, Liberal Rights (1993) at 154.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 401
upon by the collective legislator in its law-making. Therefore, the continuity thesis
seems immune to this criticism.
The distinction between these two types of motivations, interests and values
corresponds to a classical debate between adherents of a 'pluralistic' conceptio
of democracy and those preferring a Rousseauian one. The former-taking their
inspiration from Jeremy Bentham-find it both empirically plausible and norma
tively acceptable that people vote on the basis of their interests, and the aggre
gate public decision that tries to accommodate those various and divergen
preferences is the only matrix of a 'public good' that we can have. The latter, following
Jean-Jacques Rousseau, reject interests-based decisions as inappropriat
in a democracy; they claim that whoever (whether a voter or a representative)
tries to gauge his or her interests as the basis for their decisions, answers the
wrong question-the one that should not be addressed in the public forum. Th
only relevant question to ask is: 'which of the alternative proposals is most congruent
with my view about the public good?' (i.e. which best tracks the idea of
general will, in Rousseau's parlance); even though we know, contra Rousseau,
that we will encounter fundamental disagreements among members of the soc
ety in answering this type of question, it will be a different disagreement from that
generated by conflicts of interests.
A call for 'democracy-plus', under this account, amounts therefore to a rejec
tion of a Benthamite vision and endorsement of a Rousseauian democracy in
which people vote on the basis of ideals rather than interests.52 Why would suc
a choice provide us with a step towards morally legitimate democracy, in the
sense of its infusion with moral values? The best answer I can think of is by linking
the interests/values distinction to the liberal principle of legitimacy: the principle
that the use of coercive powers against a person can be legitimate only if
that person can accept the reasons that stand behind the law or policy that
authorizes this coercive use. There is an important strand in liberal thinking tha
links legitimacy with the consent of the governed.53 Not the actual consent, o
course, because such a requirement would undercut the whole search for the
principles of political legitimacy; we would end up with the anarchistic idea tha
each individual is bound only by those laws to which he has agreed. But consent
hypothetical at least, is needed in order to confer some degree of legitimacy
upon the laws which, after all, can never enjoy the unanimous support of all th
citizens. In a weak but plausible version, the liberal principle of legitimacy postu
lates that only those laws that are based upon arguments to which no member
of the society have a rational reason to object can boast political legitimacy, an
as such be applied coercively even to those who actually disagree with them.
52 On this contrast, see the excellent discussion in Jeremy Waldron, Liberal Rights (1993) at 392-421; see als
Rawls, Political Liberalism, above n 49 at 219-20 (endorsing Rousseau's view of voting as 'ideally expressing ou
opinion as to which of the alternatives best advances the common good', and contrasting it with the view th
'people may properly vote their preferences and interests').
53 See Waldron, above n 51 at 45-50.
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402 Oxford Journal of Legal Studies VOL. 26
A contemporary locus classicus of this liberal principle of le
Political Liberalism: 'Our exercise of political power is fully prop
exercised in accordance with the constitution the essentials of which all citizens
as free and equal may reasonably be expected to endorse in the light of principles
and ideals acceptable to their common human reason'.'4 Rawls further elaborates
upon this conception in his discussion of the concept of 'public reason',
that is, publicly recognizable standards of right and wrong. He also suggests that,
as a test, we might inquire as to whether a particular argument for a new law
belongs to the category of 'public reason' by considering whether it could be
used in a written opinion of a supreme court.55 The implication is clear: some
arguments, even if actually present in the minds of legislators or policy-makers,
are not qualified to figure in the public defence of a law: the law must be defensible
in terms that belong to a 'forum of principle' rather than an arena of political
bargains and plays of naked interest.
This last point suggests that the liberal principle of legitimacy operates, more
often than not, in a negative (or weak) fashion, namely, to discard illegitimate
laws:56 a law cannot claim any legitimacy towards me if it is based upon arguments
and reasons that I have no reason to accept. For instance, if the best (or
the most plausible) justification that can be given for a law is in terms of a religious
sectarian creed, and I happen not to espouse that creed, then I have no
rational reason to recognize the law as legitimate. Or if the law is based upon an
argument that casts me out from the political community (for example, an argument
that considers my racial group as inherently inferior to other groups), then
there is no moral reason why I should recognize this law as legitimate: I cannot
identify with the reasons that triggered the adoption of this law in the first place.
The denial of legitimacy to such a law is based on the view that there must be
some connection between the law and myself qua subject of the law-a connection
that establishes some rational reasons to identify the good for myself in the
law. The connection must be between the substance of the law and the preferences,
desires, convictions or interests of each individual subjected to it. If, even
under rational examination, no such connection can be detected, then I have no
reasons to accept the law as legitimate. If, however, I disagree with the wisdom
of a given law, but would agree if I examined it rationally that it is based upon
arguments that I can recognize as valid, then a necessary condition for its legitimacy
has been met. This point has been well expressed by Jeremy Waldron: 'If
there is some individual to whom a justification cannot be given, then so far as he
is concerned the social order had better be replaced by other arrangements, for
the status quo has made out no claim to his allegiance'.57
s4 Rawls, above n 49 at 137. A broader wording of 'the ideal expressed by the principle of legitimacy' is: 'to live
politically with others in the light of reasons all might reasonably be expected to endorse', ibid at 243.
ss Ibid at 254.
56 As Rawls admits, 'public reason often allows more than one reasonable answer to any particular question', ibid
at 240.
s7 Waldron, above n 51 at 44, emphases in the original.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 403
As it stands, the formula is fraught with ambiguity: from the fact that a j
cation can be given, it does not follow that it will be accepted as framed in te
public reason, just as, to return to Rawls's formula, it does not follow fro
diagnosis that citizens 'may be expected to endorse' the constitution tha
actually endorse it. The actual acceptance requirement would turn the hyp
ical consent test into a real consent (a clearly unreasonable requirement)
the other hand, the hypothetical acceptance standard makes the test both
manipulable and difficult to apply. There is a space between what the citizens
can be reasonably expected to accept and what they actually accept, and the liberal
principle of legitimacy reflects the tension between these two poles: an insufficient
pole of hypothetical, rational consent and an unrealistic pole of an actual
(even if only tacit) consent. This tension, however, is not a contradiction, and does
not render the liberal principle of legitimacy chimerical-for two reasons.
Firstly, the subject matter of the consent is not the wisdom or justness of the
law, but only a certification that the reasons that may be rationally supplied for
its defence belong to 'public reason': that is, that they are not 'sectarian' but
belong to the category of reasons that may properly be cited in defence of a law.
Arguably, it is easier to elicit consent that the reasons provided for adopting a
law fall into this category than to seek universal agreement with the specific justification
of a particular law: the former is a more lenient test than the latter. Secondly,
and more importantly, it does not particularly matter that the criterion of
acceptance is discerned in a hypothetical rather than a real consent because what
we are concerned with is the legitimacy of the law rather than the citizens' duty to
obey, and for this reason we may well identify the locus of legitimacy in the eyes
of a critical observer rather than in the eyes of the citizens themselves. This distinction,
between a critical-observer perspective and that of an actual citizen corresponds
to a distinction drawn by Simmons between generic and transactional
evaluations in political philosophy: the former correspond to the general moral
virtues of political arrangements, the latter, to the specific, actual interactions
between individual persons and their polities.58 Here we can content ourselves
with the former because our aim is to ground the system's legitimacy (understood
as its justification) rather than the obligation of citizens to comply with its
directives. Hypothetical consent becomes, then, merely an 'expository device' of
a critical observer's reasoning (just as in Rawls, the original position is an expository
device of our individual reasoning about justice),59 leading to the conclusion
that the law indeed is legitimate (that, in Raz's language, it properly
incorporates in its directives the reasons which apply to its subjects).
This is perhaps most clearly viewed in the case of Dworkin's conception of legitimacy,
based as it is upon 'the model of principle': our institutions are legitimate if
they operate within a community that genuinely takes 'integrity' as central to
58 Simmons, above n 28 at 764. But note that Simmons uses different notions of 'justification' and 'legitimacy'
from the ones adopted here.
9 Rawls, above n 39 at 21.
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404 Oxford Journal of Legal Studies VOL. 26
politics, and which therefore 'expresses a concern by each
ciently special, personal, pervasive, and egalitarian to gro
tions'.60 At first blush, there is very little room in this
principle of legitimacy for any consent by citizens, hypothet
the certification of the institutions as legitimate (and of
principle- or integrity-based) results from a judgment as
under the standards of the group that generated the proper a
In these cases, 'the members of a group must by and large
about the responsibilities they owe one another',61 including
that the group's practices show not only concern but an
members'.62 This judgment (that the group treats all wi
need not necessarily be actually shared by those who are o
coercive action, but, on the other hand, if even the other
cannot reasonably attest to the institutions' attitude of tr
concern then those institutions lack a threshold condition
It can now be seen that the values/interests distinction is a
crude proxy for the distinction between those justifications o
erly part of public reason, and hence that can be accepted
whom they apply (even if, in practice, some will not agree
the laws), and, on the other hand, those justifications that ca
izens because they violate the liberal test of legitimacy. The f
ues versus interests) is not well correlated with the second
of law in terms of public reasons versus justifications th
expected to accept), and it is the latter distinction that is
legitimacy, the main question that has occupied us here. T
secondary, and, to the degree that it does not track the latte
no special relevance for us.
Why would someone have thought that the interests/v
important for the legitimacy of law and policy under som
principle of legitimacy? The reason might be this: it could
best justification for a particular law is that it meets the
then if I am not a member of a group X, I have no reason
it is enough to articulate this argument in this way to see
For one thing, not every interest-based argument must be 'se
there may be laws that implement the interests of everyone
providing solutions to coordination problems. They will sti
of interests but nevertheless they may figure as 'public r
justifiable to (almost) everyone. Second, even if a law's ma
it implements the interests of group X, as a non-X memb
the importance of meeting this group's interests, on the b
60 Dworkin above n 32 at 216.
61 Ibid at 199.
62 Ibid at 200, emphasis in the original.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 405
fairness, compensatory justice, etc. It may be argued, of course, that th
best justification for this law is in terms of justice rather than in term
interests, but this only serves to illustrate how uncertain and unreliable
distinction between interests and values is in the first place.
This is confirmed by common sense. When a particular person votes
example, for a particular tax scheme which in fact will make her richer,
vote on the basis of her interests, or of her sense of justice (she genuinely b
that she deserves it), or on the basis of her view about the public good
believes that it is the most efficient scheme, which will, incidentally, al
her richer)? It is difficult to separate these different justifications fr
other, and the most sensible observation would be that, usually, we m
public decisions on the basis of a complex mix of such, and other, just
tions.63 Matters become even more complicated if the example does not
a law that has clear material benefits and costs to the voters (such as a tax
scheme), but rather concerns complex moral judgments about the rightness or
otherwise of a particular practice, and the law's proper reaction to it. What
would it take to vote on the basis of one's 'interests' on issues such as abortion,
euthanasia or capital punishment? A 'Benthamite' picture would probably be
that a vote based on interests would mean that someone who feels that she is
likely to terminate her pregnancy, or terminate her life, or be punished for m
der, will vote, respectively, for a liberal regime of abortion and euthanas
against the death penalty. But such a preposterous supposition would be
obvious travesty of any realistic account, ignoring what we know about w
people support or oppose such laws. The subject-matter of these laws sim
does not lend itself to an interest-based motivation although, arguably, w
think of arguments in favour of them that would not pass the public-reason t
In these areas, calls for value-based motivations (and, more broadly, for a
enhanced democracy) simply sound redundant.
We may generalize this point. A society does not have normativity-free
it is, so to speak, normatively saturated. Some subject-matters-most sub
matters belonging to the public area-yield individual choices based on v
In this sense, a call for a value-based democracy (understood in the first, m
tional, sense discussed here) is empty: it is not the case that democracy should
be value-free but rather that it cannot be so. That the motivations of citizens and
their representatives in taking public decisions will not be free of values is not a
real problem: what is, however, real is that they will differ, often fundamentally,
63 Another way of expressing the same thought would be by using the language of a mix of 'personal' and 'external'
preferences, the latter being indistinguishable from personal affirmations of the common good. This was nicely
expressed in the classic polemic by H.L.A. Hart regarding Ronald Dworkin's theory, based upon the personal/
external preferences distinction; consider Hart's focus on those 'cases where the external preference is favourable to,
and so supports, some personal preference or want for some good or advantage or liberty'. Hart further gives the
following example: 'Suppose ... the issue is freedom for homosexual relationships, and suppose that ... it was the
disinterested external preferences of liberal heterosexuals that homosexuals should have this freedom that tipped
the balance against the external preferences of other heterosexuals who would deny this freedom', H.L.A. Hart,
'Between Utility and Rights' (1979) 79 Columbia Law Review 828 at 842, emphasis in the original.
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406 Oxford Journal of Legal Studies VOL. 26
as to the choice of values. This is therefore a 'problem' of m
not of value-free democracy. The warnings of the adherent
against 'a political community ... independent of ethical prin
either very weak, or they are a proxy for a warning against
pendent of the right ethical principles'. The very weak interpre
a warning against moral indifference or apathy: against citiz
sentatives ignoring all moral values when voting on public iss
is unfounded, as we have seen, and the warning is for this
meaningless. If, however, the warning is understood in the
warning against a community independent of the right pr
incompatible with the liberal-democratic order that attempts
law for people who differ greatly over the moral values they
The strong interpretation amounts to a plea for a polity that en
the strongly 'perfectionist' manner identified earlier in the arti
community that coercively imposes ideals of individual goo
those who do not necessarily share them.
D. Values at the Constitutional Level
The second level at which the legitimacy of democratic laws might be seen to be
contingent upon their incorporation of the right values is of a different nature. It
concerns not the motivations of the decision-makers (voters and legislators
alike), but the value-laden limits upon the substance of democratically adopted
decisions; it therefore concerns the 'output' rather than the 'input', so to speak.
The idea here is that democratic decisions, in order to be legitimate, must comply
with certain substance-related requirements, or that they cannot transcend
certain substance-related constraints. I will call this dimension 'constitutional'
for the obvious reason that the identification of the substantive limits that a legislator
is not permitted to overstep is widely seen to be one of the main functions
of constitutions, and in particular of constitutional charters of rights.
I will be brief in discussing this aspect of democratic legitimacy-not because
it is unimportant but because it has been dealt with so expansively in the literature
in constitutional theory. For my present purposes, it is important only to
indicate that this second dimension of the 'democracy-plus' raises different
problems in the face of moral pluralism than the first, 'motivational' dimension.
The issue here is not so much that a fear of moral indifference or apathy is generally
unfounded (as was the case with the motivational dimension) but rather
that, in the process of the articulation of the meaning of vague constitutional
pronouncements, actual moral disagreement over moral values is merely replicated
rather than deflated. We may well accept, as a starting point, that the legitimate
exercise of authority in a democratic state requires us to assume that there
are some limits to what the authorities can decide. Indeed, the acceptance of the
principle of respect for human rights itself necessarily means that there are
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 407
substantive limits to what authorities can do to individuals. (There may also
other implications of the human rights principle: for example, that there
some opportunities that must be provided to citizens, and the language
opportunity does not translate easily into the language of limits, except trivia
However, human rights include also, amongst other things but necessarily, t
idea of limits). The 'problem' is that, faced with moral disagreement in socie
even if the constitution is accepted consensually (which is a presupposition
adopted only for the sake of argument), the actual articulation of the gene
constitutional rights translates the general moral disagreement into a disagr
ment as to whether a particular authoritative directive transcends the limi
imposed by the constitution.
This is not the weak observation that, at the margins, people will disagre
about the specific 'penumbra' of a particular vague concept implicated in vario
constitutional rights. Rather, it is that the disagreement will often be fundamental
and central to the meaning of a right-as-limit. For example, whether freed
of speech mandates or prohibits limits on paid political advertisements,
whether the right against discrimination prohibits, permits or mandates affirmat
action in university admissions, or whether the right to life requires or prohibits
assistance in terminating the life of a terminally ill patient on demand-the
and a myriad other controversies can easily be understood in terms of consti
tional rights but our disagreements in the interpretation of these constitutio
rights will simply replicate the prior disagreement over the moral issues t
these rights were supposed to resolve. We will not only disagree over whethe
proposed law transcends a substantive limit imposed by a constitutional rig
but, even more fundamentally, over what interpretation of a right constitut
limit on the exercise of state authority in the first place. Is a ban on euthanas
limit on what can be done to a person (with the subsequent discussion abou
where exactly this limit lies), or is a legal opportunity of terminating one's
with the help of a doctor a limit on what can be prohibited and enforced aga
a person? The answers, of course, will be a direct reflection of prior and mo
fundamental moral disagreement. Thus, while we may well all agree that the
should be some limits to what the state can do to individuals, once we start
debating what constitutes a limit, not to mention where the limits should properly
lie, the constitutional pronouncements of rights will turn out to be singularly
unhelpful.64
This is not to say that rights provisions are irrelevant, or without significance.
On the contrary, we know that they play a very significant role politically in providing,
in various legal systems, judicial or non-judicial bodies with the grounds
for decisions that may invalidate, or re-interpret, the laws adopted by legislatures.
There is, however, no reason to adopt a position of institutional fetishism,
and to assume that a constitutionally identified institution that has the power to
64 More on this, in my 'Judicial Review and the Protection of Constitutional Rights' (2002) 22 OJLS 275 at 294-6.
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408 Oxford Journal of Legal Studies VOL. 26
displace the choices of other bodies with its own is, eo ipso, '
tion of the meaning of a controversial constitutional pro
greement between two bodies, for example between a parliament and a
constitutional (or a supreme) court (or to be more precise, between the majorities
of these collective bodies), will more often than not merely reflect a moral
disagreement existing in the society as a whole about what, in terms of a vague
constitutional provision, constitutes a limit on state action, and where that limit
should properly lie. The power of such an extra-parliamentary body to pronounce
on the decisions of the parliament simply adds one step to the constitutionally
prescribed procedure that has to be followed in order for the decision to
be final and legitimate; however, it remains a procedure-based legitimacy, not a
value-based one. The statute as corrected in a process of judicial review is not
necessarily more within the limits defined by constitutional rights than a statute
without such a correction, but the review does make a difference in terms of
what counts as a legitimate procedure for the issuing of legal directives. As a
judge of the US Supreme Court famously observed: 'We are not final because
we are infallible, but we are infallible only because we are final'.65 The conferral
on a particular institution of the power to strike down laws on the basis of their
(alleged) inconsistency with constitutional rights is a matter of institutional fiat
which adds (rightly or wrongly-this is beyond the scope of this article) one additional
step to the correct procedure to be followed. The decisions that emerge
from such a procedure acquire democratic legitimacy, just as those that issue from
a procedure where no such possibility of review exists, acquire democratic legitimacy.
There may be good substantive, political arguments related to the institutional
competence of various organs for creating or removing such a power-but
the argument about enhancing legitimacy by injecting the right values into the
decision is not one of them. 'Democracy-plus' cannot build upon the notion of
substantive, value-based constitutional limits on democratic procedures.
3. Conclusions
The upshot of the second part of the article may seem disappointing and
haps upsetting. It seems to go against the current popular disenchantment
purely 'procedural' democracy which, as the experience of the twentieth cen
shows, is not a panacea for all social ills, and often lacks sufficient self-def
mechanisms against those who would use democratic procedures to pu
inhuman, oppressive and discriminatory goals-and demolish democratic in
tutions in the process. But such a reading of my conclusions would be un
ranted: I do not call for indifference as to 'values' and for exclusive concern with
the proper 'procedures'. If anything, my conclusion is the opposite: that our
65 Brown v Allen, 344 US 443, 540 (1953) (Jackson J, concurring). It should be noted, however, that Justice Jackson
made this remark not in the context of the Supreme Court striking down a congressional act, but in the context of
reversing a state court's decision.
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SUMMER 2006 Law's Legitimacy and 'Democracy-Plus' 409
values are normally and routinely engaged with democratic procedures, a
scepticism about purely procedural democracy can be properly read as a
pointment that a particular democratic system gives effect to some value
than our own. This sense of disappointment is hard to reconcile with the
ance of moral pluralism and disagreement as a pervasive, persistent and si
ant feature of contemporary societies.
Disappointment of this sort, in particular, should not lead one to deny
macy to laws that have been adopted in accordance with proper democrat
cedures. This, however, is not a recipe for blind obedience to democrati
adopted laws; as I argued in the first part of this article, each individual
necessarily obliged to comply with every legitimate law. The disconnect
of legitimacy from the duty to obey-a disconnection advanced for reas
discussed earlier-has the consequence of deflating the apparent drama of
to do about laws adopted in a procedurally correct manner in a democra
yet which strike us as morally wrong. A democratic and liberal legal syste
and should provide room for disobedience to legitimate law, but this ques
beyond the scope of this article: what is important is that a finding that
law is legitimate does not necessarily lead to the conclusion that it mus
always complied with by those who disagree with it. However, we need
guage in which to express the combination of recognition of legitimacy
refusal to obey on moral grounds, and if we were to incorporate the 'right' va
into our test for the legitimacy of law, then this possibility would no longer
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