Abstract
This article offers a critical response to arguments developed by Jeremy Waldron on the subject of democracy and constitutional rights. In particular it responds to three claims made by Waldron: first, he claims contemporary Western societies are characterised by deep and intractable disagreement; second, collectively binding decisions should be reached by democratic means alone; and third constitutional devices, such as bills of rights, should be rejected because they act as constraints on democracy. I argue that Waldron is unable to argue for the primacy of democracy from the baseline of intractable disagreement that he posit. He implicitly relies upon a position of moral consensus to confirm the priority of democracy over alternative decision-making procedures. Further, the moral stance that Waldron takes towards democracy is based upon a Kantian theory of justice which is shared by liberal-constitutional theorists, such as Rawls and Dworkin, who advocate bills of rights. Finally, Waldron does not provide the arguments necessary to justify the rejection of bills of rights. Good reasons exist for tempering democratic procedures with constitutional devices. However, this conclusion is qualified. It depends upon counterfactual claims that can be resolved only by taking into account the specific institutional and cultural practices of particular political systems.
In his book, Law and Disagreement, Jeremy Waldron challenges some of the key ideas of recent liberal political theory. In so doing he makes three broad claims. First, he argues that contemporary Western societies are characterised by deep and intractable disagreement. This differs from Rawls's belief that there exists a permanent, but reasonable, ‘diversity of conflicting and irreconcilable comprehensive doctrines’ (Waldron, 1999, p. 105; Rawls, 1996, p. 327). Unlike Rawls, Waldron believes, that disagreement penetrates the public realm and thus also encapsulates fundamental questions about justice, rights and social co-operation (Waldron, 1990, p. 1). Thus, we must acknowledge not only disagreements about the nature of the good life, but also ‘the existence of disagreement among individuals about rights and justice … [and] the … problems of authority, procedure, and political obligation’ (Waldron, 1999, pp. 3–4). It must also be acknowledged, in his view, that such ‘disagreement on matters of principle … is not the exception but the rule in politics’ (Waldron, 1999, p. 15).
Waldron's second claim is that ‘when there is disagreement in a society about a matter on which a common decision is needed, every man and woman in the society has the right to participate on equal terms in the resolution of that disagreement’ (Waldron, 1999, p. 283). This should be understood, continues Waldron, as ‘a right to participate in all aspects of democratic governance of their community’, which means having an equal say ‘in social decisions on issues of high principle, and not just interstitial matters of social and economic policy’ (Waldron, 1999, p. 213). Whilst ‘the point of law is to enable us to act in the face of disagreement’ (Waldron, 1999, p. 7), insofar as every society needs collectively binding decisions, the creation of those laws must proceed by democratic means alone.
The third claim made in Law and Disagreement is a corollary of the second, insofar as Waldron criticises constitutional devices such as bills of rights on the grounds that they undermine democracy. His point is that by conceding to the courts the powers to review and to overrule the decisions of democratically elected representatives, bills of rights inhibit the proper functioning of democratic institutions. He writes
democratic rights … [are] called seriously into question when proposals are made to shift decisions about the conception and revision of basic principles from the legislature to the courtroom, from the people and their admittedly imperfect representative institutions to a handful of men and women, supposedly of wisdom, learning, virtue, and high principle who, it is thought, can alone be trusted to take seriously the great issues they raise (Waldron, 1999, p. 283).
Waldron fears that the existence of a bill of rights means that over time ‘the courts will inevitably become a major, if not the main forum for the revision and adaptation of basic rights in the face of changing circumstances and social controversies’ (1999, p. 213), because when ‘a provision is entrenched in a constitutional document, the claim-right (to liberty or provision) that it lays down is compounded with an immunity against legislative change … in effect, a disabling of the legislature from its normal functions of revision, reform, and innovation in the law’ (Waldron, 1999, p. 221). In short, a bill of rights undermines democracy and establishes in its place a ‘judicial aristocracy’ (Waldron, 1999, p. 248). It is for these reasons that Waldron, contrary to the views of many leading political theorists, recommends that we should reject bills of rights and recognise only democratic institutions as the legitimate means for reaching collectively binding decisions in the face of disagreement.
In this article I argue that Waldron does not satisfactorily demonstrate the verisimilitude of these three claims. I contend, first, that Waldron is unable to argue for the primacy of democracy from the baseline of intractable disagreement that he posits. Further, Waldron implicitly relies upon a position of moral consensus to confirm the priority of democracy over alternative decision-making procedures. Second, I suggest that the moral stance that Waldron takes towards democracy is based upon a Kantian theory of justice which is shared by liberal-constitutional theorists, such as Rawls and Dworkin, who advocate bills of rights. Finally, following on from the previous point, I conclude that Waldron does not provide the arguments necessary to justify the rejection of bills of rights and that good reasons exist for tempering democratic procedures with constitutional devices.
A Pragmatic Justification of Democracy
In chapter thirteen of Law and Disagreement Waldron addresses the fundamental problem of how to ‘design the constitution’ from ‘a baseline of disagreement’, so that in the future collectively binding decisions can be legitimately reached on matters of shared interest (Waldron, 1999, pp. 294–5). One possible way of proceeding, utilised by liberal thinkers such as Dworkin (Dworkin, 1996, p. 34; Waldron, 1999, p. 294), is to use a results-driven approach, whereby the ‘best institutional structure is the one best calculated produce to the best answers’ (Dworkin, 1996, p. 34) with regard to a specified set of moral criteria. 1 However, such an approach is rejected by Waldron as it is ‘predicated on the assumption that we already know and already agree about the basic principles of justice’ (Waldron, 1999, p. 157). To assume this is either to pre-empt the outcome of the deep moral disagreement that Waldron has identified, or else to assume that the citizenry are already ‘in possession of decision-procedures that enable them to get that result’. However, the ‘possession of those decision-procedures can be explained only on the basis of their use of something other than a results-driven test (for choosing procedures) in the past’ (Waldron, 1999, p. 295). The outcome of this is stalemate. As Waldron writes:
On the one hand, we cannot use a results-driven procedure, because we disagree about which results should count in favour of and which against a given decision-procedure. On the other hand, it seems we cannot appeal to any procedural criterion either, since procedural questions are the very nub of the disagreement we are talking about (Waldron, 1999, p. 295).
This is because, as Waldron also comments in an earlier chapter, ‘people who disagree inter alia about rights will disagree about what this theory of authority requires, and that latter disagreement will be nothing but a reproduction of the problem about rights which indicated the need for a theory of authority in the first place’ (Waldron, 1999, p. 245). This leaves us ‘in a bind’ (Waldron, 1999, p. 295). There exists, therefore, a problem of how we move from a position of entrenched disagreement to the collectively binding decisions that any society needs.
However, later in chapter thirteen of Law and Disagreement it is this problem that Waldron appears to overcome as he substitutes a theory of democracy with a pragmatic account of why democratic procedures should be utilised about questions of democracy. His argument is as follows. Although disagreement goes all the way down, we still require a procedure of some sort because a decision is required about how questions of democracy, or constitutions more generally, are to be resolved. However, Waldron wants to make clear that whatever procedure is used, majoritarian or otherwise, there will be a problem of legitimacy because ‘legitimacy is an issue that pertains to all theories of political authority about procedures when there exists disagreement about the structure and conditions that make a particular form of authority legitimate’ (Waldron, 1999, pp. 298–9). What follows from this, according to Waldron, is that we are left in a legitimacy-free zone in which the best that we can hope for is that a legitimate democratic system emerges somehow or other. This is not the same as saying we are now using a results-driven test of legitimacy. It is rather a pragmatic expression of hope in circumstances where it is not open to us to use any common criterion of legitimacy at all (Waldron, 1999, p. 300).
In other words, the political need for agreement from a position of disagreement necessitates that some decision-making procedure be utilised, and this, in Waldron's view, might as well be democracy because it is the one we are ‘stuck with’. In taking a pragmatic approach Waldron is, however, left open to the charge that a results-driven approach, although unavailable on grounds of legitimacy, is now available on pragmatic grounds. Waldron recognises this, writing that ‘the pragmatic possibility … is open to both sides’, and concludes that all he is insisting is that ‘we are not required to adopt a results-driven approach: pragmatism, in this regard, is not necessarily the same as orientation to results’ (Waldron, 1999, p. 300). This, he insists is not ‘privileging one of the possible outcomes [that is, democracy] … by using it as the procedure for deciding about the possible outcomes’. It is, rather, ‘simply to use it’ and we do so ‘simply because we need a procedure on this occasion and this is the one we are stuck with for the time being’ (Waldron, 1999, p. 300). Thus we are can summarise Waldron's argument that a democratic procedure should be used to decide questions about constitutional design by stating that this is merely a pragmatic decision, and that the matter of using democratic means to decide questions about democracy is not to privilege democracy but simply to use it as a heuristic device in order to solve the quandary with which we are faced.
Moral Considerations
Waldron's claim that using democratic means to decide questions about democracy neither privileges nor legitimises democracy is unconvincing. In responding the following points can be made. First, there is no reason to accept Waldron's claim that questions about second-order procedures – that is, questions about democracy – are in a ‘legitimacy-free zone’. Moreover there are good reasons for believing that this is not the case because second-order questions of procedure refer directly to the distinction that Waldron correctly makes between democracy and popular sovereignty (Waldron, 1999, p. 254). That is to say, questions regarding the method in which decisions about constitutional essentials should be resolved (that is by majoritarian or legal institutions) are, as Waldron points out (Waldron, 1999, pp. 255–7), the same questions that Hobbes and Locke were examining when they contemplated the contractual formation of society. In each case the situation is the same insofar as an initial procedure (results-driven or procedure-driven) is required prior to the everyday operations of political decision-making. Furthermore, as Waldron points out, both Hobbes and Locke believed in popular sovereignty – that is to say, in the right of decisions about constitutional regimes to be made democratically (though in neither case does this imply that the political regime itself should be democratic). It is this area that Waldron claims to be a ‘legitimacy-free zone’. But this is a mistake because both Hobbes and Locke explained clearly their reasons for advocating popular sovereignty. This corresponds to the state of nature as outlined in Leviathan and the Second Treatise of Government, where in both cases, although in different ways, Hobbes and Locke legitimatise the claim that all individuals have the equal right to participate in decisions about how future collective decision should be reached. Thus Hobbes and Locke state, as basic moral considerations, that men are free, equal, rational and independent, and that these facts imply that democracy is appropriate, and autocracy and aristocracy inappropriate, when it comes to the initial decision about future political procedure. That Waldron fails to do this is highly unsatisfactory insofar as no reason is given as to why we prefer democracy to aristocracy, autocracy, or any results-driven approach, including Dworkin's. In Waldron's legitimacy-free zone all are equally acceptable because all can be chosen pragmatically. More importantly, none can be said to be worse than the others for any reason because we are in a legitimacy-free zone. It is of concern that he has given us no reason to choose democracy over its rivals, and no means through which we can converse with supporters of aristocracy or autocracy.
Furthermore, and contrary to protestations, Waldron does privilege democracy, because to use democracy as the means to resolve disagreements about constitutional basics is to give it precedence over other procedures at the second-order level, and this is inevitably to privilege the likelihood that it will be the preferred procedure at the first-order level. We are thus left with two options. We can either stick with Waldron's pragmatic method which, as we have seen, is highly unsatisfactory, or else we can attempt to identify reasons that explain the value of democracy and why it should be preferred to other decision-making procedures, including constitutionalism. This, however, does come at a cost. As Cecile Fabre notes, Waldron ‘cannot avoid appealing to the moral considerations pertaining to the value of democracy in order to argue convincingly’ (Fabre, 2000, p. 278) against non-democratic second-order procedures. However, continues Fabre, ‘by appealing to such moral considerations, Waldron would be vulnerable to the charge that he is in fact pre-empting the expressions by citizens of their conflicting views on those moral considerations themselves’ (Fabre, 2000, p. 278). However, of the two options available it seems clear that the latter is to be preferred because at least that way democracy is valued for a reason, rather than arbitrarily chosen and imposed upon dissenters. Moreover, despite Waldron's reluctance to provide such moral considerations for this very reason, it is clear that he does, in the course of Law and Disagreement, provide such reasons. This is indicated in a passage following Waldron's advocation of the pragmatic approach. Thus he writes of non-democratic decision-making procedures:
They have in addition one legitimacy-related defect that popular majoritarianism does not have: they do not allow a voice and a vote in a final decision-procedure to every citizen of the society; instead they proceed to make final decisions about the right of millions on the basis of the votes of a few (Waldron, 1999, p. 299).
However, if we are in a legitimacy-free zone, how can one method have greater legitimacy than another, as Waldron indicates here? If it is a purely pragmatic choice between democratic and non-democratic methods, questions of legitimacy do not arise in this way because moral reasons cannot be given due to there being no shared moral basis from which reasoning can proceed. Hence Waldron's claim that non-democratic procedures are defective because they do not allow a voice or a vote to millions would have no impact in such circumstances because, as Waldron had previously argued, it is the significance of such points that is the subject of disagreement to begin with. That Waldron makes such a claim, however, suggests that moral rather than pragmatic considerations underpin Waldron's preference for democratic procedures in this situation. That this is not explicitly stated is, as Fabre suggests, indicative of Waldron's sensitivity to the charge of prejudging the moral considerations of citizens. Nonetheless, if Waldron's predilection for democracy over judicial review is to have any impact on those with whom he disagrees, he must provide such reasons to avoid the philosophical inadequacy of arbitrarily privileging democracy over rival procedures. That such reasons underpin Waldron's work is implied by the above passage and, moreover, such an interpretation is supported by comments that Waldron makes in chapters five and ten of Law and Disagreement, where it is manifest that moral considerations are at work, even if somewhat reluctantly or tentatively, behind Waldron's preference for democracy over judicial review.
A Kantian Basis
The argument that Waldron makes recourse to is a Kantian-inspired theory of democracy. In brief, it states that democracy is valued because it embodies, is consistent with and gives public expression to our core moral values. Those core moral values can be summarised by Kant's adage 'So act that you use humanity, whether in your own person or in the person of any other, always at the same as an end, never merely as a means’ (Kant, 1998, p. 38). By this Kant means that all persons are moral beings of equal worth in virtue of their distinctly human capacities – namely their rationality, autonomy and moral sense – and as such regard themselves and each other as having a dignity that provides the basis for the moral right to respect from others. Democracy as a method of reaching binding collective decisions gives expression to such moral sentiments because it treats all individuals with the respect appropriate to moral beings insofar as it engages with their distinctly human capacities by virtue of the fact that an individual's autonomy and moral personality are given public expression and acknowledgement. And it treats them as equals insofar as all individuals have equal influence on the outcome of a decision. To refuse individuals the right to participate in public decision-making processes, as does an aristocracy or autocracy and ostensibly a bill of rights, is thus to fail to treat individuals with the respect accorded to persons and therefore to question their status as moral beings. It is to treat them as less than fully human because it refuses to acknowledge their distinctly human capacities. This is an affront to their dignity and self-respect and, unless this can be justified with reference to the appropriate criteria, it is an act of injustice because it is arbitrarily to treat equals as unequals, whereas any concept of justice minimally requires that we treat like as like. Hence, on this account, the value of democracy is found in the fact that it is a just procedure for reaching decisions on matters of collective interest.
That Waldron can be broadly understood as concurring with this view can be seen by considering some comments he makes in chapter ten, where he discusses the problem of a bill of rights contra democracy. At this point in Law and Disagreement, Waldron makes clear that he is exploring ‘the deepest reasons of liberal principle for being unhappy about a Bill of Rights’ (Waldron, 1999, p. 221), and his aim is thus congruent with the theory sketched above. Following Joel Feinberg, Waldron suggests ‘that the key to comparative justice is avoiding the arbitrariness and insult that unequal or disproportionate treatment involves’ and goes on to suggest that it is this insult that ‘is primary in the resentment people feel when they are excluded from participation in public affairs in which other members of their society are involved’ (Waldron, 1999, p. 238). Thus, the ‘particular insult to an individual A, of A's being excluded from political power has to do … with A's possession of the capacity to decide responsibly about those issues’. In such instances of exclusion, Waldron believes that A being excluded means that
A will feel slighted: he will feel his own sense of justice has been denigrated as inadequate to the task of deciding … something important in which he, A, has a stake as well as others … [a]ll he asks – so far as participation is concerned – is that he and all others be treated as equals in matters affecting their interests, their rights, and their duties (Waldron, 1999, p. 239).
This is because the ‘substantive importance of a given right may well be based on a view of the individual person as essentially a thinking agent, endowed with an ability to deliberate morally’ (Waldron, 1999, p. 221). Consequently, ‘the people have a right to participate in all aspects of the democratic governance of their community, a right which is deeply connected to the values of autonomy and responsibility that are celebrated in our commitment to other basic liberties’ (Waldron, 1999, p. 213). And he continues, ‘[i]t is precisely because I see each person as a potential moral agent, endowed with dignity and autonomy, that I am willing to entrust the people en masse with the burden of self-government’ (Waldron, 1999, p. 293). In summary:
the right to participate has less to do with a certain minimum prospect of decisive impact and more to do with avoiding the insult, dishonour, or denigration that is involved when one person's views are treated as of less account than the views of others on a matter that affects him as well as the others (Waldron, 1999, p, 238).
The point is that Waldron's attack on a bill of rights from a democratic perspective appears to be premised on a theory of democracy that states that the right to participate in publicly binding decisions follows from the equal status that each individual has as an autonomous and moral being. I take this to be what Waldron means when he writes, in chapter five, that a majority-decision-making procedure ‘embodies a principle of respect for each person in the processes by which we settle on a view to be adopted as ours in the face of disagreement’, and again, that ‘according equal weight or equal potential decisiveness to individual votes is a way of respecting persons. In this sense, majority-decision is a respectful procedure …’ (Waldron, 1999, pp. 109–116). To this end Waldron appears to concur with the Kantian theory of democracy, ultimately premised on the norm of equal respect for persons.
A Bill of Rights
We can now see that Waldron does not stay true to his claim that we must begin from a ‘baseline of moral disagreement’ insofar as he (tacitly) relies upon a Kantian idea of justice to justify the value of democratic procedures over possible alternative decision-making procedures. If we now turn to consider again the question of constitutional design, we find that this shift has implications for the two other general claims that Waldron makes in Law and Disagreement, as the abstract idea of equal concerns for persons can serve as the criterion for a results-driven approach, previously denied by Waldron, when choosing the appropriate constitutional design. It is clear that democratic procedures must at least be a part of that design because such procedures (as we have seen) are congruent with the ideas of human equality, autonomy, and moral dignity. To refuse a group of individuals the right to participate equally in collective decision-making on issues that affect their interests is to suggest that those persons are not our equals. 2 Democracy must therefore be taken as a given, as the de facto political decision-making process which must prevail unless there are good reasons that suggest otherwise. To this end Waldron's second claim is both widely accepted and highly plausible. However, more controversial is his third claim that only democratic procedures should be utilised, and devices such as bills of rights should be rejected because of their ostensible incompatibility with democracy.
In order to make true this claim, Waldron has to demonstrate that it is the case that democratic procedures alone most effectively realise the moral principle of equal concern for persons. But, as Beitz points out, unless an implausibly narrow (procedural) conception of equal respect is utilised, ‘the concept of equal respect for persons … conveys not just the speaker's view about how political decisions are reached, but also his view about the substantive impact on individuals of the outcome itself’ (Waldron, 1999, p. 116). It is this concern that has motivated liberal theorists, such as Dworkin and Rawls, to advocate bills of rights in the belief that such devices protect the substantive respect owed to citizens from the potential threat that emanates from unchecked majoritarian institutions (Dworkin, 1985, pp. 190–7). However, it is clear that if both rights and democracy are considered to be of moral value because they maintain the idea of equal respect, then rights cannot be criticised on the grounds that they constrain democracy because they exist for the purpose of realising the very moral principle which democracy itself seeks to serve. It can thus be said that democracy and rights are, to use Habermas's phrase, ‘co-original’ because they are ‘nourished by the same root’ (Habermas, 1998, p. 71). 3
This point does not in itself justify the existence of a bill of rights, for it must be demonstrated that the existence of a bill of rights in conjunction with democratic procedures produces outcomes that are more just than those produced by democratic procedures alone. This argument cannot, however, be made with any philosophical precision because, as Rawls notes, it is a question of counterfactuals which can only be resolved by ‘taking into account the particular political history and the democratic culture of the society in question’ (Rawls, 1996, p. 415). The following two points would have to be demonstrated in order to resolve the matter one way or another. First, it would have to be shown that democratic procedures produce unjust outcomes. Typically such arguments have been made through the fears that majority groups can use their numerical advantage to threaten consistently the rights of minorities, and that state representatives can abuse their power and threaten the rights of the people in general or, as is more likely, the rights of a particular group of individuals. Second, it would have to be shown that a bill of rights is effective in ameliorating such instances, and in particular it would have to be shown that this benefits the equal respect afforded to citizens to a greater extent than the loss engendered by constraining the democratic autonomy of the people. 4
In neither case does Waldron provide convincing arguments that might serve to dispel such concerns. With regard to concerns about the ‘tyranny of the majority’ Waldron writes only that such a view exhibits ‘a profound mistrust of people in their democratic and representative capacities’ (Waldron, 1999, p. 223) and reflects ‘the sort of generalised contempt for the ordinary citizen which seems to pervade most people's cynicism about electoral and legislative politics’ (Waldron, 1999, pp. 230–1). But he notably fails to provide any evidence beyond assertion that might suggest that such mistrust and cynicism is misplaced. 5 Similarly, whilst Waldron is right to maintain, contra Dworkin, that a bill of rights does constrain democracy and that a moral loss is thereby involved when the courts override democratically reached decisions, 6 he again fails to dispel the very real possibility that this procedural loss is outweighed by a substantive gain.
Conclusion
Waldron's Law and Disagreement is a valuable addition to the political theory literature insofar as it reaffirms the importance of questions about political authority alongside questions about justice. Moreover, its liberal ‘rights based critique of rights’ provides an interesting alternative to the more familiar republican criticisms of rights and constitutionalism. However, despite its many merits, the three main points defended by Waldron in Law and Disagreement do not stand up to close scrutiny. First, Waldron's claim that we must respect deep moral disagreement is a non sequitur because positive political conclusions cannot be adduced from a position of absolute moral discordance. At some point one view has to take priority over all others and this requires either an accepted decision-making procedure or an agreed moral criterion by which results can be adjudged. Waldron's belief, that democratic procedures can be utilised pragmatically does not resolve the problem. On the contrary, it amounts to the arbitrary privileging of one political procedure over all others.
Similarly, Waldron's recourse to a Kantian theory of justice also negates the initially posited disagreement, but at least has the merit of doing so in a manner that is both reasoned and reasonable. However, whilst this explains the value of democratic procedures, it does so at the cost of undermining Waldron's moral objections to bills of rights on the grounds that a Kantian principle of justice is widely used by liberal political theorists to argue for the entrenchment of moral rights in a constitutional document. From such a position it is not possible to argue for either democratic procedures alone or democratic procedures in conjunction with a bill of rights, because the necessary argument depends upon counterfactual claims about whether or not bills of rights promote justice to a greater degree than democratic procedures alone. I conclude that Waldron does not provide the necessary arguments, and that the flawe nature of democracy suggests that there may be good reasons for advocating the existence of bills of rights.
Footnotes
1
In Dworkin's case this refers to the conditions necessary to secure the successful and proper functioning of democracy and stable compliance with these conditions (Dworkin, 1996, p. 34).
2
This is recognised by Dworkin, who writes that ‘[d]emocracy is justified because it enforces the right of each person to respect and concern as an individual’ (Dworkin, 1985, p. 196).
3
Habermas correctly recognises the co-originality of rights and democracy and thus intends to resist privileging one over the other, his account differs from the explanation given above. He grounds both democracy and rights, not in the Kantian norm of equal respect for persons, but in the autonomous political will of citizens as stated in the discourse principle or principle ‘D’. This states that: ‘Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourse’ (Habermas, 1996, p. 107). However, this alternative account of the co-originality of rights and democracy is misleading. Gosepath argues, the ‘universal and impartial attitude embodied in the discourse principle reflects an underlying moral principle similar to Kant's demand to treat people with equal respect and concern’ (Gosepath, 1995, p. 23). Similarly, Larmore concludes, ‘Habermas’ notion of radical democracy is not really so radical that it differs materially from the idea of liberal democracy to which he imagines himself opposed’ (Larmore, 1999, p. 622).
4
With respect to the second failing of democracy, the threat of the state against its citizens, Waldron would no doubt want to point out that this is not a failing integral to democracy itself, but is a perversion or abuse of democracy and one that applies to any form of political rule, democratic or otherwise. Consequently Waldron might want to argue that this is a risk of political rule per se, and applies no more to democracy than to any other system of political rule and therefore the criticism does not stand up. Moreover, it might be added that of all the available systems of political rule, democracy is, because of its representative and open nature, the least likely to be abused. Consequently this perceived failing is in fact one of its strengths vis-à-vis non-democratic forms of political rule. The response to this line of argument is that, whilst true, it is only the case if we are considering single forms of political rule. If we concede the point that democracy is the form of political rule least likely to be corrupted by state officials (representative or otherwise), this does not preclude the possibility that a mixed form of political rule (say, democracy and judicial review) may be more secure still. Such a case is one of the key strands in liberal political thought from Locke and Montesquieu onwards. It is this traditional liberal point that justifies the need for a second body, such as the courts, to counter legislative power (be it democratic or otherwise) in the hope that this may check any potential abuse of power that might arise from concentrating power solely in the hands of one sovereign ruler (be that the people, an aristocracy or a monarch).
5
Despite the cogency of Waldron's argument, it does not negate the fact that majorities have in the past, and may again in the future, threaten the rights of minorities, even if this is not their intention and they act in a manner that is sincere and well-meaning. Waldron does not take seriously the consequences of majoritarian fallibility, so he is in danger of neglecting this very real concern by emphasising only the positive side of democratic decision-making. Thus it is scant consolation for a democratically oppressed group or individual to be told by Waldron that citizens can ‘comfort themselves with the thought that at least they made their own mistake about democracy’ (Waldron, 1999, pp. 203–4). At some later date this may of course reassure a majority group that makes this mistake. But it is unlikely to be of much comfort to the minority group that is affected here and now. Hence whilst Waldron is right to correct the elitist tendency that permeated earlier political thought, he puts too much faith in the power of unchecked majorities when the most serious of issues are at stake. Instead we should conclude that if such failings can occur, and something can be done to ameliorate such failings, then this should be done even if this involves a trade-off against democracy.
6
Waldron explains that ‘concerns about the democratic or non-democratic character of a political procedure do not evaporate when the procedure in question is being used to address an issue about the nature of democracy. It would be absurd to claim otherwise, he continues, because ‘it would fail to address, … [the] concern that a question about democracy, as much as any political question, should be settled by democratic means’. Thus, Waldron rightly points out that ‘there is something lost, from a democratic point of view, when an unelected and unaccountable individual or institution makes a binding decision about what democracy requires. If it makes the right decision then, sure, there is something democratic to set against that loss; but that is not the same as there being no loss in the first place (Waldron, 1996, p. 293). It can thus be said that constitutionalism, at least in one sense, acts against the Kantian principle of equal respect insofar as it privileges the judgement of the courts over the people on questions about democracy.