Law as a Democratic Means: Deweyan Jurisprudence and Democratic Experimentalism

Abstract

I investigate and legal thought in relationship to Dewey's demand that within a truly society the ends as well as the means of a society must be democratic. I outline a conception of that is a means to the greater end of society. This contrasts with a conception of law, and especially constitutional law, as an antimajoritarian framework needed to set the ground rules for procedures. First, a conception of Deweyan democracy is offered in combination with a conception of democratic law found in Dewey's works. It is made more concrete through mapping of it on to the picture of constitutional practice offered by Michael Dorf and Charles Sabel. It is then used to give a description of what a Deweyan judge's decision procedure would be like. This construction of a work-able conception of as a means can offer support for the possibility of a society composed of institutions the way down.1. IntroductionIn this paper I investigate in relationship to Dewey's demand that within a truly society the means as well as the ends of society must be democratic. This demand, of course, goes against a standard conception of the rule of law, especially that of the rule of under a constitutional government, wherein and large parts of the legal system is seen as a framework which is, most essentially, outside of the process, indeed is the non-democratic foundational means that sets the game rules for the ends and procedures that it makes possible. Indeed, this very standard conception of is that of a system that gives, necessarily, final decision making authority to a professional judiciary, a judiciary following rules set down by a duly ratified constitution, a constitution enacted with the express intent that its ruling framework would serve as a limitation upon the otherwise potentially dangerous if uncontrolled excesses of passions. This conception of seems to reinforce the idea that democracy ultimately rests, necessarily, upon the use of nondemocratic means. If correct, such a claim is damning to Dewey's demand for means as well as ends in the structuring of a truly society. In this paper I aim to outline a plausible and workable conception of as a means. If this can be accomplished, not only will the radical nature of Dewey's conception of become manifest, but also the limitations and quite possibly unfounded dogmas of standard conceptions of and its relationship to democracy will be exposed.In order to do this, the following steps will be followed. First, a conception of Deweyan democracy will be offered in combination with a parallel ideal of democratic law found scattered throughout his works. Then an attempt to live up to the aims of a truly legal procedure, one that satisfies Dewey's demanding requirement that ends can be ultimately furthered only through means, will be made concrete through the use of Michael Dorf and Charles Sabel's article A Constitution of Democratic Experimentalism.1 Their article offers a Dewey and pragmatism inspired picture of as a democracy enhancing and experiment encouraging social institution. From this conception of a decision making model for the Deweyan judge will be analyzed. This is necessary because of a critique of Dewey's legal theory offered by Richard Posner. Dewey's legal theory, Posner claims, is too abstract and top-down to be useful for a judge confronted with the need to come to a judicial decision in a real-world case with all of its concrete particulars. If correct, and universalizable to any attempt to construct a Deweyan conception of law, such a critique would be fatal to a Deweyan picture of as a means. It will be argued that the system that Dorf and Sabel offer goes a long way in answering Posner's objection. …