Communication Through Law?

Abstract

This commentary raises four critical questions for Shiffrin’s account of democratic law. First, why does our duty to communicate recognition for others as moral equals ground a special duty to our fellow citizens to cooperate together in a democracy? Second, whose messages exactly does democratic law communicate—is it the messages of individual citizens or the messages of the state as a corporate agent? Third, why does discharging our communicative duties require us to play an equal role in our political system, especially given Shiffrin’s endorsement of the idea that common law counts as a form of democratic co-authorship? And finally, how does the state’s pursuit of discretionary interests, for example in the promotion of a national culture or the preservation of fetal life, help us to send morally valuable messages to one another?