‘We the People’ and the Right to Rule, Part Two: Political Equality and the Obligation to Obey the Law

38 Pages Posted: 24 Oct 2011 Last revised: 30 Oct 2011

See all articles by Kurt Gerry

Kurt Gerry

New York University School of Law

Date Written: May 15, 2011


In this paper, I argue for a conception of political equality that requires, among other things, a specific horizontal division of power between citizens (e.g., equal opportunity of political influence, “one person, one vote”) and a specific vertical division of labor between citizens and officials. I argue that in the vertical division of labor, (1) citizens are the choosers of aims, and (2) citizens must play some part regarding the polity’s choice of means and political compromise. This paper is a follow up to a previous paper in which I provided a framework for a theory of legitimate democratic governance. My approach is based on the idea that a theory of legitimate representative democracy must be able to overcome the difficulties associated with the problem of political obligation in general and the particularity requirement in particular. I argued 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 political equality and the legitimate distribution of political power.

I proceeded to argue that only at the intersection of individual autonomy and associativism can a theory of a legitimate demos find its place. I argued that We the People requires the presence of six qualities, and that these 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 must dictate the analysis of political equality and the distribution of political power.

In this paper, I pursue the project of analyzing the requirements of We the People at the stage of political equality. First, I argue that political equality is ever-present in our discussions of the conditions necessary for a legitimate demos, and that associativism and individual autonomy are shot-through with political equality concerns. Second, I argue that “political equality” requires a horizontal division of political power along the following lines: (1) political equality in the deliberative stage requires an equal opportunity of political influence; and (2) political equality in the decision-making stage requires equal political impact and majority rule. Third, I argue that political equality requires a vertical division of labor along the following lines: (1) citizens must have an equal voice in the choice of ends of their political society, thereby entailing that the polity and not the government officials have the prerogative over the choice of aims; and (2) citizens must play some role in the choice of means and political compromise characteristic of the law-making process.

Keywords: Democratic Theory, Political Equality, Legal Philosophy, Political Obligation, Authority and Legitimacy

Suggested Citation

Gerry, Kurt, ‘We the People’ and the Right to Rule, Part Two: Political Equality and the Obligation to Obey the Law (May 15, 2011). Available at SSRN: https://ssrn.com/abstract=1948630 or http://dx.doi.org/10.2139/ssrn.1948630

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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