Constitutional precommitment revisited

Journal of Social Philosophy

Volumn 40, Issue 4, 2009, Pages 570-594

  Kis, János ^a  

^a NONE

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[No Author keywords available]

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EID: 77954334286     PISSN: 00472786     EISSN: 14679833     Source Type: Journal    
DOI: 10.1111/j.1467-9833.2009.01471.x     Document Type: Article

References (26)

1. See, for example, European Court of Human Rights, Bukta and others v. Hungary,
2. and Vajnai v. Hungary.
3. Stephen Holmes, "Precommitment and the Paradox of Democracy," in Constitutionalism and Democracy, ed. Jon Elster and Rune Slagstad (Cambridge: Cambridge University Press, 1988), 195-240.
4. Jeremy Waldron, "Precommitment and Disagreement," in Law and Disagreement (NewYork: Oxford University Press, 1999).
5. See Ronald Dworkin, Freedom's Law (Cambridge, MA: Harvard University Press, 1996), 28.
6. Holmes, "Precommitment and the Paradox of Democracy," 235 ff.
7. Waldron, "Precommitment and Disagreement," 276.
8. See Jon Elster, Ulysses and the Sirens (Cambridge: Cambridge University Press, 1979), 39.
9. In Solomonic Judgments, Elster points out that precommitment as a method of dealing with cognitive asymmetry over time was considered already by Spinoza both at the level of individual and of collective political action (Cambridge: Cambridge University Press, 1989), 195 f.
10. For the distinction between ideal and nonideal theory, see John Rawls, A Theory of Justice, revised ed. (Cambridge, MA: Harvard University Press, 1999), 7 ff.
11. It is a different question, not affecting the order in which ideal and nonideeal theory are supposed to follow each other, that certain problems of political morality are specific to nonideal theory. Ideal theory has not much to say, for example, on the moral problems of political leadership; they are raised by the assumptions of nonideal theory. See János Kis, Politics as a Moral Problem (Budapest: Central Eurpean University Press, 2008).
12. See Jean-Jacques Rousseau, On the Social Contract (Indianapolis: Hackett, 1907), 74 ff.
13. For an analogy, think of the social construction of descent in simple societies: since in such societies most relations are ordered by kinship and marriage, descent must be constructed in some way or other. But it does not matter whether it is constructed patrilinearly or matrilinearly: the two methods are equivalent. See Claude Lévi-Strauss, Elementary Structures of Kinship (Boston: Beacon Press, 1969).
14. In his Democratic Authority (Princeton, NJ: Princeton University Press, 2008), David Estlund calls this position epistemic proceduralism, and he distinguishes it from purely epistemic and purely procedural conceptions. Estlund wants to show that democracy is epistemically superior to non-democratic systems. I am interested in comparisons between alternative decision procedures that equally claim to be democratic.
15. For an example, see Rawls's reference to the adversarial court procedure as an instance of what he calls "imperfect procedural justice," in Rawls, A Theory of Justice, 74 ff.
16. On "rational ignorance," see Anthony Downs, An Economic Theory of Democracy (New York: Harper & Row, 1957).
17. See Dennis C. Mueller, Public Choice III (Cambridge: Cambridge University Press, 2003), 221 ff. Behavioral economics established many other biases such as, for example, the bias in favor of the status quo, the tendency of overvaluing what one already has, and the asymmetry between judging the loss or the gain of the same thing.
18. See Thomas Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008).
19. On rational ignorance, see Downs, Economic Theory of Democracy.
20. See Kenneth O. May, "ASet of Independent Necessary and Sufficient Conditions for Simple Majority Decision," Econometrica 20 (1952) 680-84;
21. Douglas W. Rae and Eric Schickler, "Majority Rule," in Perspectives on Public Choice, ed. Dennis C. Mueller (Cambridge: Cambridge University Press, 1997).
22. For the two aspects of public communication, see Kis, Politics as a Moral Problem.
23. I dedicated some attention to other weaknesses of accountability in my paper "Constitutional Democracy: Towards a Third Conception," presented at the Holberg Seminar in Honor of Ronald Dworkin, New York University School of Law, April 10, 2008.
24. Bernard Williams argues that the ethics of political leadership leans more heavily toward conse-quentialsm than ordinary morality in general. See Williams, "Politics and Moral Character," in Moral Luck (Cambridge: Cambridge University Press, 1991).
25. For an argument from trust in support of judicial review as a democratically legitimized procedure, see Andreas Føllesdal, "Why International Human Rights Judicial Review Might Be Democratically Legitimate," Scandinavian Studies in Law 52 (2007), 103-22.
26. Allen Buchanan, Justice, Legitimacy, and Self-Determination (New York: Oxford University Press, 2003), 295. Buchanan attributes his argument to Kristen Hessler's doctoral dissertation.