‘We the People’ and the Right to Rule: Democratic Authority and the Obligation to Obey the Law

31 Pages Posted: 11 Oct 2011

See all articles by Kurt Gerry

Kurt Gerry

New York University School of Law

Date Written: May 15, 2011

Abstract

It is sometimes argued that democratic governments have the special capacity to ground an obligation to obey the law. Such theories assert that democracies, and only democracies, possess the “right to rule” over those subject to its institutions. As a corollary of such a right, citizens of democracies are said to be morally obligated to support and comply with the dictates of the democratic political process. The central claim of my paper is that one cannot adequately assess the legitimacy of representative democracy without first confronting the question of political obligation. As a result, a theory of legitimate representative democracy must be able to overcome the difficulties associated with the particularity requirement. I argue that if democracy is unique in grounding legitimate governance and political obligation – thus overcoming the particularity problem – one must first provide an account of legitimate instances of “We the People,” and that each stage of the lawmaking process must reflect and reinforce the conditions required for a normatively-meaningful instance of the demos. As noted by Robert Dahl, democratic theorists often take for granted “that democracy would exist in certain concrete political units ... But they rarely ask why we ought to accept these particular aggregations as appropriate for democracy rather than different aggregations with different boundaries.” On my account, this foundational question – the question of a legitimate demos – dictates the proper interpretation of certain political ideals, such as political equality and “representative” government. I proceed to provide a framework for an adequate account of morally legitimate representative government grounded in a normative account of We the People. I argue that an intrinsic approach to democratic theory is required to ground political obligation and a normatively-meaningful account of the demos. The qualities required for such an account include (1) mutual identification, (2) interpersonal trust, (3) some level of a shared normative commitment regarding certain fundamental moral/political issues, (4) some level of stability and commitment to collective decision-making, (5) the interpersonal connections between individuals must not be forced or the result of propaganda and manipulation, and (6) there must be some important connection between the individual and the ends of the group. Moreover, these fundamental qualities must not be undermined by any stage of the law-making process. As a result, each stage must reflect and reinforce the qualities of We the People in order to uphold democratic legitimacy and ground political obligation. Therefore, the qualities required for a normatively meaningful account of We the People dictate certain conclusions regarding political equality and political “representation.” Although beyond the scope of this paper, a look ahead is in order. I plan to argue that political equality and political representation must take a specific form in order to maintain the qualities of We the People and ground political obligation. In particular, I argue that We the People and political equality requires, among other things, a specific horizontal division of power between citizens (e.g., one person, one vote and a system of proportional representation) and specific vertical division of labor between citizens and officials. I argue that in the vertical division of labor, (1) the representative is to be a “delegate” in regards to the aims of the citizens, yet at the same time (2) must maintain a mixture of a “reflective trustee” regarding the polity’s choice of means, as well as in the negotiation, coalition-building, and political compromise characteristic of the law-making process. Importantly, these qualities must be maintained throughout the law-making process, which includes the stage of law-making at the administrative level.

Keywords: Political Philosophy, Political Obligation, Democratic theory, Legal Philosophy

Suggested Citation

Gerry, Kurt, ‘We the People’ and the Right to Rule: Democratic Authority and the Obligation to Obey the Law (May 15, 2011). Available at SSRN: https://ssrn.com/abstract=1942001 or http://dx.doi.org/10.2139/ssrn.1942001

Kurt Gerry (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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