Tolerating Hate in the Name of Democracy

This article offers a comprehensive and critical analysis of Eric Heinze’s book Hate Speech and Democratic Citizenship (Oxford University Press, 2016). Heinze’s project is to formulate and defend a more theoretically complex version of the idea (also defended by people like Ronald Dworkin and James Weinstein) that general legal prohibitions on hate speech in public discourse compromises the state’s democratic legitimacy. We offer a detailed synopsis of Heinze’s view, highlighting some of its distinctive qualities and strengths. We then develop a critical response to this view with three main focal points: (1) the characterisation of democratic legitimacy as something distinct from (and whose demands aren’t identical with those of) legitimacy per se; (2) the claim that the requirements of democracy are hypothetical, rather than categorical, imperatives; and relatedly (3) the question of how we should reconcile the requirements of democratic legitimacy with the costs that may follow from prioritising democratic legitimacy. We argue that there are significant difficulties for Heinze’s account on all three fronts

The European Public(s) and its Problems

I present three versions –Grimm, Offe and Streeck—of a general argument that is often used to establish that the EU-institutions meets a legitimacy-disabling condition, the so called “no demos” argument (II), embedding them in the context of the notorious “democratic deficit” suspicions against the legal system and practice of the EU (I). After examining the logical structure behind the no-demos intuition considered as an argument (III), I present principled reasons by Möllers and Habermas that show why the “no demos” argument fails to have bite in discussions of the legitimacy and status of the supranational level in the multi-level EU-architecture. These are complemented by another principled reason arising from John Dewey’s conception of the “public” as a clearer alternative for the “popular” requirement of democratic legitimation (IV). I conclude that all three conceptions together suggest that the hunt after pre-politically existing peoples as foundations of democratic legitimacy expresses no more than methodological nationalism without any footing in the material and conceptual requirements of democratic legitimation. Given the absence of a principled problem with the legitimacy of the priority and interference of supranational EU-law in the national legal and political orders, there are thus also no principled reasons to abandon or discredit the European project in the absence of a European nation or society

Financial Power and Democratic Legitimacy

To what extent are questions of sovereign debt a matter for political rather than scientific or moral adjudication? We answer that question by defending three claims. We argue that (i) moral and technocratic takes on sovereign debt tend to be ideological in a pejorative sense of the term, and that therefore (ii) sovereign debt should be politicised all the way down. We then show that this sort of politicisation need not boil down to the crude Realpolitik of debtor-creditor power relations—a conclusion that would leave no room for normative theory, among other problems. Rather, we argue that (iii) in a democratic context, a realist approach to politics centred on what Bernard Williams calls ‘The Basic Legitimation Demand’ affords a deliberative approach to the normative evaluation of public debt policy options

Norms, Legitimacy, and Global Financial Governance

Despite regular and serious systemic volatility, reform of international financial architecture remains limited, retaining market-oriented characteristics and adjustment mechanisms. A failure of the architecture to focus on the political underpinnings of global financial and monetary governance yields crucial deficiencies. The article defends three propositions implying a serious challenge to political legitimacy in contemporary financial governance: i) external financial constraints conflict with a range of potential domestic, particularly democratic, political imperatives; ii) developed state initiated global financial integration strengthens private interests in the policy process, narrowing the definition of the public interest in a democratic context; iii) market-friendly institutional reforms put pressure on domestic socio-political arrangements underpinning longer run political legitimacy. The article first analyses norms and legitimacy in global financial governance; then outlines the constraints on public policy of global financial market integration in the light of the foregoing analysis of legitimacy; thirdly it discusses possible solutions.

Implementing Lisbon: A Critical Appraisal of the Citizens' Initiative

In a much-heralded effort to bring people across Europe closer to the EU and enhance the Union's democratic legitimacy, the Lisbon Treaty has introduced the Citizens' Initiative (CI) -- an idea born in the final phase of the Constitutional Convention

The Constitution and the Citizens – (Not) Much Ado about Nothing. Jean Monnet/Robert Schuman Paper Series, Vol. 4 No. 7, August 2004

While the Convention on the Future of Europe and its product, the Draft Constitution, might be considered a successful endeavor by many European policy-makers and other academic and socio-economic elites, it received little positive attention by the citizens. Aside from being a highly specialized and, for the ordinary citizen, complicated matter, few people actually are aware of the Convention process and the content of the Constitution. In this paper, I will locate the public awareness of the Constitution among the EU’s population, lay out some basic ideas about the democratic legitimacy this act entails and look at ways that could facilitate the Constitution’s acceptance in the future. Finally, I argue that, given the institutional structure of the EU and organizational constraints of the Convention, so far the democratic legitimacy has been sufficient but still awaits the challenge of ratification

DEMOCRATIC DECONSOLIDATION IN DEVELOPED DEMOCRACIES, 1995-2018. CES Open Forum Series 2018-2019

Until recently, many political scientists had believed that the stability of democracy is assured once certain threshold conditions – prosperity, democratic legitimacy, the development of a robust civil society – were attained. Democracy would then be consolidated, and remain stable. In this article we show that levels of support for democratic governance are not stable over time, even among high-income democracies, and have declined in recent years. In contrast to theories of democratic consolidation, we suggest that just as democracy can come to be “the only game in town” through processes of democratic deepening and the broad-based acceptance of democratic institutions, so too a process of democratic deconsolidation can take place as citizens sour on democratic institutions, become more open to authoritarian alternatives, and vote for anti-system parties. Public opinion measures of democratic deconsolidation are strongly associated with subsequent declines in the actual extent of democratic governance and predict not only recent democratic backsliding in transitional democracies, such as Venezuela or Russia, but also anticipated the downgrades in Freedom House scores occurring across a range of western democracies since 2016

APPOINTING JUDGES THE EUROPEAN WAY

This Article looks at methods of judicial selection in Europe as a way to contrast and perhaps better understand and improve the systems of judicial selection used in the United States. The article argues that in Europe, judicial independence is prized above and beyond any other possible positive trait. The democratic legitimacy of European judges derives from the intimate connection between democracy and the rule of law. Legitimacy does not attach, in the public eye, to a single political institution, but rather to the system as a whole

Clauses Not Cases

Clauses Not Cases is a Response to Robert Post and Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006. In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the Supreme Court.” The author agrees entirely with the first and most important of these propositions. He disagrees, however, that either the Constitution as a whole, or this particular practice is best justified on grounds of democratic legitimacy, or that their proposal is the best way to assess the philosophy of nominees