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Navigating the Tension Between Constitutionalism and Democratic Majoritarianism: The Role of Institution-Dependent Goods in Liberal Democracies

The conflict between advocates of constitutionalism and advocates of democratic majoritarianism has been at the center of attention not only among scholars of constitutional law but also among judges, politicians, social movements, and citizens. Under one prevalent view, judges intrude unjustifiably on democratic politics by making decisions which should be subject to formal and informal democratic processes of decision-making.

We maintain that this conflict can be conceptualized as a surface manifestation of the broader idea that all liberal democracies are subject to a normative tradeoff between two types of demands: Reason- and will-based demands. More specifically we argue that that both constitutional provisions—norms that are not sensitive to our will—and statutory provisions—namely, norms that are contingent on our will or judgment—are necessary features of liberal democracy. We make the case for institution-dependent goods, arguing that some goods depend for their existence on being produced by the appropriate law-making institution.  We establish that the constitutional form of law-making is necessary to convey our shared recognition that certain norms, such as fundamental rights, are binding independently of our will. Accordingly, part of the value of these norms rests on a shared commitment to see them as not being subject to our control. By contrast, the statutory form is necessary to publicly convey the recognition that certain norms provide goods whose value depends on our willingness to produce them. These norms lose their distinctive value when making them fails to be grounded in our will. On the proposed account, constitutional and statutory norms are not mere means to create good or just norms whose value is determined independently of the way these norms are being created or independently of the institution in charge of creating them. Instead, the value of such norms hinges on the institution that brings them into being as well as the deliberation that characterizes this institution. Institutions are not merely vessels through which norms get public recognition. When different institutions enact identically-worded norms, say, ‘everyone is equally entitled to X,’ they may nevertheless produce different norms and provide different goods. To sum up, some of the goods that legal norms provide are institution-dependent goods, namely, goods whose provision depends on the institutional processes which brought about these norms.

► This event is hybrid. Join in person at the Centre for Ethics (Larkin Building room 200) or online here.

Alon Harel

Faculty of Law
The Hebrew University of Jerusalem

Mon, Oct 21, 2024
04:00 PM - 06:00 PM
Centre for Ethics, University of Toronto
200 Larkin