The Law of Electoral Democracy: Theory and Purpose

Alan Bogg et al (eds), 'The Constitution of Social Democracy' (Hart Publishing, 2020).

23 Pages Posted: 15 Oct 2018 Last revised: 10 Nov 2019

See all articles by Graeme D. Orr

Graeme D. Orr

The University of Queensland - T.C. Beirne School of Law

Date Written: September 23, 2018

Abstract

This chapter explores the question of ‘theory’ within the law of electoral democracy, by considering what it would mean for such a theory to exist given the contested nature of democracy itself.

It begins with a brief survey of the terms in question, including the emergence of electoral law as a field of study and its under-theorised state. It is quickly shown that, outside of a narrow and minimalist conception of a free election as one where votes are cast and counted, there is little agreement on the norms that should determine the law in this area, even on some fundamental concrete questions.

Normative coherence however can be demonstrated within competing approaches to the law. A social democratic theory of law is seen to provide salutary reminders. Reminders that democratic politics is collective more than individualist and that electoral democracy is not the whole of democracy. Within that tradition, the distinctive contribution of Keith Ewing to political finance – which he configures as party finance – is discussed.

Ultimately a four-sided functionalist account of the purposes of electoral law is offered. The four categories are: Structural Integrity, Democratic Values, Ritual Experience (all insider perspectives) and the cynical/outsider perspective of elections as a Game/Mask. The aim of the functionalist account is to show that whilst normative approaches may be sharply contested, we are not lost at sea: theory can help set the parameters of the ongoing debate over the shape of the law.

Keywords: Constitutional Law, Election Law, Jurisprudence, Democratic Theory

Suggested Citation

Orr, Graeme, The Law of Electoral Democracy: Theory and Purpose (September 23, 2018). Alan Bogg et al (eds), 'The Constitution of Social Democracy' (Hart Publishing, 2020).. Available at SSRN: https://ssrn.com/abstract=3253795 or http://dx.doi.org/10.2139/ssrn.3253795

Graeme Orr (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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