Models of and problems of democracy

1. Models of and problems of democracy International constitutional Law and democracy 17.-19.okt. 07 Inger-Johanne Sand

2. Conceptions of democracy : • Hobbes : self-government of the people, - but conferring the power to the Leviathan, • Jeremy Bentham : securing individuals from suppression, • John Locke – focus on popular sovereignty, • - it is a government by the people and for their ends, • - the rights of the subjects are vital, - it is the persons which “own” the government. • “delegated supremacy held on trust”, • so the rule must be limited and legitimate, • the rights of the subject – liberalism, • legitimate rule, • …. • Montesquieu : the division of powers, • ….. • Rousseau – the power originates from and stays with the people, focus on direct government, - majority rule,

3. The modern state evolving : • territoriality, • the people, • control on the means of power, - constitutions, • impersonal structure of power, • Division of powers • democracy • legitimacy, (individual rights and democracy, citizenship), • increasing interaction, / complex interdependence, factually, • increasing number of international treaties and principles,

4. Vital democratic qualities : • - individual basic (freedom) rights, • - citizenship – right to vote, • - open and democratic elections, • - democratic parliaments, • - majority voting, • - publicity, transparency in decision-making, • - constitutional, (predictable, authoritative, supreme)) • - executive accountability, • - autonomus courts, rule-of-law, • - a common civil society,

5. Which leads to the paradox of democracy : - the state emanating from the people, but then becoming autonomous and a power in itself, and there will be a need of limitations in the rule of the state, • - and then as the state grows – the welfare state – the state as the peak of society goes back into society (with the social, health, educational services), - and how can we then reformulate limits and controls of the state,

6. Liberal democracy • focussing on the rights of the individuals, and giving them room, • society is accumulated private interaction, • society before the state, • politics : bundling together private interests, • citizenship : negative rights (from oppression), • legal system : securing the rights of individuals, - some ideals are set by a higher law, (problem : how are the limits of the rights of the individuals seen?) • neutral state and administration,

7. Republican democracy – Communitarianism • emphasizing the functioning of society, • of being able to formulate a common will, • politics is constitutive for the socialization processes, and for the formulation of a social ethic, • politics is not only bundling together, it also the process itself - the collective process, and the formulation of something collective, • civil society as its base, as opposed to the state and the market, • emphasizing active participation, (problem : exclusivity), and responsibility, • the process adds something more – the process may lead to another an dbetter result than mere accumulation, - an inclusive process where one may reach a better understanding, • politics is : reaching mutual understanding through processes, - society organizes itself through communicatively united citizens, • legal rules are the result of that community and its processes, • there may however be an overload of ethical discourse,

8. Deliberative democracy : • the openness to persuasion by reasons referring to the claims of others as well as of ones own, • “good faith” persuasion - objectively oriented, • communitarian discourses may put too much emphasis on common values and the process itself, - liberal processes may be too compromise-oriented, • deliberative theory emphasizes a rational discourse which excludes power, • there is a need a norms which are valid beyond each community – decisions on this can be reached by rational procedures, • based on constitutional and fair procedures, • Depending on the conditions of communication, • procedures matter more than in the liberal model • High level of intersubjectivity,