Democratic Law

The question of how communities may author their own laws, thereby manifesting autonomy (“self-legislation”), arises throughout the history of political thought. In Democratic Law, her Berkeley Tanner Lectures, Seana Valentine Shiffrin offers a distinguished contribution to this long inquiry: she argues that law’s value within democratic societies rests on its communicative capacity, enabling citizens to express their recognition of each other’s equal status.Following an insightful introduction by editor Hannah Ginsborg, Shiffrin’s first lecture, “Democratic Law,” provides the philosophical groundwork for the rest of the volume. Shiffrin characterizes democracy as a system that treats its members with equal concern and respect, and one that enables its citizens to serve as the “equal and exclusive co-authors” of its legal norms and directives (20). Law plays a distinctive and crucial role on this account because it allows us to identify and to communicate our shared moral commitments. Foremost among these joint commitments is that members are due equal recognition of their status as citizens (51) and each of us must intend to convey respect for each other as equal comembers (31). We cannot do so severally, given the scope of the community, but neither can we satisfy our obligation merely by endorsing or complying with existing norms (31–32, 38). Rather, “each of us needs to perform (and receive) a form of communicative action that enacts and thereby expresses our commitment to the respectful treatment that each of us merits as a moral equal and a joint member of our social cooperative venture” (39). Shiffrin argues that law—quotidian or constitutional, common or statutory—is the central means of discharging this communicative duty.The second half of the volume features two lectures on legal applications, “Democratic Law and the Erosion of Common Law” and “Constitutional Balancing and State Interests.” The former focuses on what might seem to be a minor, technical Supreme Court decision concerning frequent-flier programs, yet Shiffrin persuasively argues that it raises far-reaching concerns about the nature of public commitments. The question in Northwest, Inc. v. Ginsberg is whether a federal statute, the Airline Deregulation Act, preempts a state rule of common law by which parties to a contract have an implied covenant of good faith and fair dealing. Shiffrin objects to Justice Alito’s opinion for a unanimous court in Ginsberg for two main reasons. First, it wrongly characterizes the duty of good faith and fair dealing as subject to preemption, as a form of state action around which the parties could not contract, rather than characterizing the duty as pertaining to the underlying meaning of voluntary agreements (74–75). By incorporating a duty of good faith into contract law, a democratic society expresses the value of keeping commitments to each other, and that respect for each other as citizens means not deliberately acting to undermine the purpose of the agreements we form. Second, Justice Alito’s opinion, which treats statutory and common law as effectively identical for the purposes of the preemption provision in the ADA, neglects the distinctive value of the common law as a form of “collective moral articulation” (84). As Shiffrin notes, the Supreme Court has recently expanded the scope of federal preemption, displacing the development and articulation of common law. Since such evolution primarily takes place in state courts (especially with respect to contract law), preemption of the common law undermines the development of the “local social-moral culture” (87).In the third lecture, Shiffrin turns to “constitutional balancing,” by which a court weighs constitutional interests against state interests. She raises the important question of what it means for the state to have an interest at all, not merely whether such interest is sufficiently compelling to be balanced against the constitutional interests at stake. Here she expresses particular concerns about the invocation of “discretionary interests,” those which a state actor may entertain or promote but is not required to advance, as opposed to “mandatory interests.” She considers whether the mere identification of a discretionary interest on the part of a state suffices to establish that a state does in fact have such an interest for the purpose of constitutional balancing, and answers in the negative: a state must demonstrate a commitment to this interest, developed in a purposive and coherent fashion over time, for it to merit weight on a balancing test. Evidence of the “strength and sincerity” of the state’s interest must be provided (122), potentially requiring a showing that a state has adopted a serious approach to securing the interest, including answering the charge that the state has taken measures apparently at odds with an asserted interest (in her example, a state claiming an unqualified interest in preserving life so as to prohibit assisted suicide could not simultaneously allow the death penalty [103]).Characteristically for Shiffrin, these lectures are all beautifully argued. Likely due to the lecture genre, though, Shiffrin does not really situate her concept of coauthorship within the existing literature on group agency, joint commitment, and shared intentions. There is considerable philosophical work on these topics, and scholars, notably including Philip Pettit (2012), have in recent years profitably developed its implications for democracy. Political theorists have turned to Michael Bratman (1999) and Margaret Gilbert (1996) to characterize dimensions of the democratic process as a joint intentional practice, including Anna Stilz (2009) on the value of the state, Josiah Ober (2017) on collective self-government, Emilee Booth Chapman (2022) on elections, and Eric Beerbohm (2012), who specifically invokes joint intentional authorship to explain individuals’ complicity in injustice. Shiffrin’s contribution is distinctive among these accounts in part due to its quite demanding characterization of coauthorship, made more plausible by the stipulation that she argues from the standpoint of ideal theory, asking “what role democracy and law would play in a state whose institutions otherwise manifest features of material and intellectual forms of justice and whose citizens largely endorse the principles of justice and their instantiation” (20).One natural worry is that because Shiffrin’s account of joint authorship presupposes a shared endorsement of the principles of justice, it might mean that the joint commitment in fact occurs at this earlier stage rather than through the activity of legislation, or that the communicative act of lawmaking merely redescribes that endorsement. So the second and third lectures—in nonideal theory—should respond to this concern by demonstrating how contemporary democracies such as the United States, who fall short of such conditions, could still enable coauthorship, if imperfectly. Here some difficulties arise.To begin, in the first lecture, Shiffrin argues that for law to be democratic, the “terms of that participation must themselves be equal, under some salient description, or else the message will not be each of ours and the participatory structure will belie at least part of the message of our mutual equality” (39). Yet in lectures 2 and 3, Shiffrin shifts to treating participation on equal terms as inessential, raising some challenges for the coherence of the argument overall.Shiffrin’s interlocutors note this problem. Like other Tanner Lecture volumes, the book features commentaries: in this case, excellent contributions from philosopher Niko Kolodny, legal scholar Richard R. W. Brooks, and political theorist Anna Stilz. Kolodny and Stilz both raise the objection—inter alia—that although Shiffrin insists that participation in the creation of democratic law requires that each of us have an opportunity to participate for the communication to be ours and publicly so (or else the message will not be each of ours), she does not require us to have an equal say. As Kolodny points out, we are asked to communicate equal standing, and doing so seems to matter very greatly for the moral lives of our members, as their self-respect depends on it. If we do not need to do so through an equal say, then the process would seem to compromise the content—as, per Kolodny’s piquant example, in the manufacture of a MAGA hat abroad (139). Stilz presses Shiffrin on how apparently inegalitarian institutions such as judge-made common law can satisfy the egalitarian communicative duty (174–76). Like Kolodny, she takes up the issue of whether egalitarian participation rights are fundamental to democratic communication and asks what connection the common law has to such rights, in part given its origins in the nondemocratic domain of twelfth-century England.Evading these worries places Shiffrin in the difficult position of defending the common law as a more effective means than statutes for each of us to communicate equal status. In her second lecture, Shiffrin contrasts the common law favorably with “many manifestations of the legislative process” (84); she argues that whereas the legislature may be subject to capture by interest groups and disproportionately responsive to larger and better organized groups, the “common law process embodies a judicial manifestation of the equal importance of each citizen, a process less sensitive to affiliation and social power than many manifestations of the legislative process” (84). This is a surprising assertion, one far more consistent with Ronald Dworkin’s (1986: 238–39) vision of Hercules—an “author in the chain of common law” —than a robust defense of democratic coauthorship. The claim that social power plays a lesser role in contract litigation than in legislation is contestable: litigation is costly, litigants with greater resources are often advantaged in an adversarial context, and surely the development of the common law in state courts of appeal depends on litigants who can bear those material and transaction costs and who may be able to delay settlement. Moreover, judges themselves tend to possess significant social power, certainly relative to many state legislators.More seriously, taking Stilz’s argument a step further, if forced to locate myself as a coauthor either of the common law of contracts or of a statute, it is hard to imagine choosing the former. (Shifflin would maintain that one need not actually choose, and that I should equally see myself in both.) A state court of appeals judge (elected or appointed) resolves a breach of contract dispute between private parties unknown to me and issues a judgment on, say, “lack of privity,” an unfamiliar concept; the case receives no media attention. By contrast, statutes emerge from a public legislative process; even if certain bills are little noticed, representatives facing competitive, partisan elections can anticipate that they will be held accountable for their votes. Now, one might argue—reasonably, in my view—that neither plausibly meets the standards of coauthorship, but it is hard to argue that the displacement of the common law of states through federal preemption poses a worse affront to citizens as coauthors than having their state legislation struck down by the Supreme Court. Indeed, Shiffrin expressly argues in the second lecture that “local and state governments may have a special significance for communicative approaches” through the creation of law by a community “powerful enough to generate a distinctive identity and camaraderie between citizens” (67). If preemption through federal legislation may threaten these communicative aims, so too might a sweeping role for federal courts in scrutinizing the depth of citizens’ commitments, as Shiffrin defends in the third lecture.Given that state legislatures would seem to be main forums for the articulation of local norms—a domain in which one could most plausibly ascribe coauthorship to citizens—it is surprising how little deference Shiffrin is willing to afford them. Brooks characterizes Shiffrin’s objection as a worry about cheap talk, in which a state can evince commitment to a discretionary interest without incurring costs in so doing (162); the aim is to raise the price of such communication by insisting that it must be backed up by prior investments. Brooks proposes that one might reasonably presume that state actors could speak authentically when representing interests, and he intimates that such a presumption might be necessary for state action to preserve the communicative value that Shiffrin seeks to ascribe to it (163). Alternatively, he suggests that bringing the interests of speaker and addressee into alignment can help to make cheap talk credible, and so here he recommends “focusing on the democratically representative institutions that promote the interests of agents” (164). Both of these proposals seem warranted insofar as we want to secure conditions of authorship.Yet Shiffrin insists that we cannot take legislators’ word for it: whatever the support for these norms within their community, if these laws merely manifest new discretionary interests (departing from the status quo), and if state actors cannot demonstrate the consistency of such interests throughout the fabric of their law to the satisfaction of courts, they ought to enjoy little weight on balance. Put differently, if a state seeks to act as a laboratory for legislative experimentation, citizens must insure that Bunsen burners are lit beneath all laws that might reflect related interests, lest such an interest be dismissed as fleeting or pretextual.And citizens can have no complaint when their commitments are dismissed as shallow. In the first lecture, Shiffrin is willing to defend the value of voting in elections as a means of how “I, as a co-author, should contribute to the joint deliberation about and determination of the particular form that commitment should take (whether directly, as with a referendum, or indirectly, when we elect agents who themselves offer a concrete vision of how to make our joint commitment more determinate)” (53–54). But by the end of the volume, in her reply to commentators, Shiffrin characterizes elections and referenda as in fact failing to satisfy the communicative requirements because of the absence of reason-giving: “judicial institutions … permit participation by citizens that is dramatically more articulate and … produce results that are dramatically more articulate than elections” (213–14).It would seem, then, that most of us will remain silent coauthors. Because Shiffrin briefly draws an analogy to joint academic writing (22), please forgive a final observation that, if this can count as coauthorship, my h-index really should be much higher.