Competitive, Deliberative, and Rights-Oriented Democracy

Abstract

Recently, legal theory has seen a revival of competitive theories of democracy. These theories have been developed to provide a unifying framework for evaluating the Supreme Court's increasing use of constitutional law to regulate the structure of democratic processes and institutions, in areas like primary elections, campaign financing, direct democracy, third-party politics, and regulation of political parties. These competitive theories have been offered as an alternative to the more conventional, individual rights models that characterize the current judicial approach to issues of politics. At the same time, political theorists have been debating deliberative v. aggregative theories of democracy. In his new book, Law, Pragmatism, and Democracy, Richard Posner heaps contempt on deliberative theories of democracy and defends competitive ones. This review of Posner's book examines the relationship between deliberative, competitive, and rights-oriented theories of democracy and makes the case for greater attention to the institutional structures that shape democracy.

Keywords: Democratic theory, deliberative democracy, competitive democracy, constitutional law and democracy, Posner