Models of and problems of democracy International constitutional Law and democracy 16.okt. 08 Inger-Johanne Sand

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,

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,

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,

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, The role of rights, The role of political process,

The role of political process : - accumulation of voices and interests, - counting the votes, - a reflexive process, accepting interdependence, reciprocal recognition, ”reflexive form of substantial ethical life”, intersubjectivity,0 - administrative hierarchies, - solidarity,

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,

Problem : - possibility of ”blind” accumulation of interests,

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, Political responsibility – rights and duties, 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 and better 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, there may however be an overload of ethical discourse,

Dilemma : - interaction of interests or - reaching mutual understanding, Problem : Negotiations as ”deals” between competing private interests, What do compromises represent,

Ethical discourse Balancing of interests – compromises of different interests, Legal Political Ethical discourses Deliberation includes both ethical discourse and the balancing of interests,

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,