Principle Of Democratic Legitimacy Research Articles

Deliberative democracy and the digital public sphere: Asymmetrical fragmentation as a political not a technological problem

Deliberative democracy and the digital public sphere: Asymmetrical fragmentation as a political not a technological problem

Towards a political theory of data justice: a public good perspective

PurposeThis study aims to develop an interdisciplinary political theory of data justice by connecting three major political theories of the public good with empirical studies about the functions of big data and offering normative principles for restricting and guiding the state’s data practices from a public good perspective.Design/methodology/approachDrawing on three major political theories of the public good – the market failure approach, the basic rights approach and the democratic approach – and critical data studies, this study synthesizes existing studies on the promises and perils of big data for public good purposes. The outcome is a conceptual paper that maps philosophical discussions about the conditions under which the state has a legitimate right to collect and use big data for public goods purposes.FindingsThis study argues that market failure, basic rights protection and deepening democracy can be normative grounds for justifying the state’s right to data collection and utilization, from the perspective of political theories of the public good. The state’s data practices, however, should be guided by three political principles, namely, the principle of transparency and accountability; the principle of fairness; and the principle of democratic legitimacy. The paper draws on empirical studies and practical examples to explicate these principles.Originality/valueBringing together normative political theory and critical data studies, this study contributes to a more philosophically rigorous understanding of how and why big data should be used for public good purposes while discussing the normative boundaries of such data practices.

The Democratic Construction of Inherently Sovereign Functions

In this essay, I approach the question of privatization from a normative political theory perspective. Following Mégret's lead, I focus on the inter- or transnational domain, with the aim of making explicit the norms that undergird Mégret's analysis despite the functional approach he apparently adopts. I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state. Put differently, my concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization's threat to democratic self-government under both domestic and international public law.

Why Arrow’s theorem matters for political theory even if preference cycles never occur

Riker (Liberalism against populism, Waveland, New York, 1982) famously argued that Arrow’s impossibility theorem undermined the logical foundations of “populism”, the view that in a democracy, laws and policies ought to express “the will of the people”. In response, his critics have questioned the use of Arrow’s theorem on the grounds that not all configurations of preferences are likely to occur in practice; the critics allege, in particular, that majority preference cycles, whose possibility the theorem exploits, rarely happen. In this essay, I argue that the critics’ rejoinder to Riker misses the mark even if its factual claim about preferences is correct: Arrow’s theorem and related results threaten the populist’s principle of democratic legitimacy even if majority preference cycles never occur. In this particular context, the assumption of an unrestricted domain is justified irrespective of the preferences citizens are likely to have.

Öffentlich-rechtliche Sparkassen: Trägerschaft und Aufsicht im Umbruch?

In the past, public saving banks contributed significantly to stabilizing the German banking system. Nevertheless, those banks are facing both legal and economic challenges, which might potentially lead to a reform of their current organizational structure. As of today, public saving banks are set up as public law institutions (Anstalten des offentlichen Rechts) held by municipalities (Gemeinden). In legal terms, the participation of local and regional authorities has been challenged as a forbidden state aid. Similarly, the “Regional-prinzip” (i.e., the restriction of activities of the local saving banks to the area of the holding municipality) has been characterized as a forbidden regional cartel. None of those arguments, however, stands up to scrutiny. Neither does occasional malfunctioning of the saving banks supervision system (consisting of a supervision by the holding municipalities and an additional two-ply supervision by state authorities and European banking control) necessitate a general restructuring. In economic terms, the challenges the saving banks are facing can be met by facilitating mergers, albeit within the remits of Article 28 (2) of the Basic Law and the democratic principle. Access to external capital market is limited by the principle of democratic legitimacy, by the saving banks’ public mandate and the Regionalprinzip. In the future we will see tendencies of centralization: regional saving banks will be merged, they will be more than ever influenced by the saving bank association and they will increasingly act at local distance from their holding municipalities or districts. European regulation should take into account the diversity of national banking systems, especially the characteristics of small regionally restricted saving banks.

La función Judicial en el marco del Estado Social y Autonómico Español: ¿Poder o Servicio Público?

El deseo común y compartido de una correcta aplicación de las normas jurídicas juega un papel fundamental en un proceso de transformación que está interesando, en la actualidad, nuestras estructuras democráticas. Estamos viviendo un proceso de transición entre el Estado de Derecho y el Estado de Justicia, con una ciudadanía más formada, más informada y, en definitiva, más consciente del alcance de sus prerrogativas basadas en el Derecho. Por otra parte, si la ciudadanía acude con más desenvoltura al sistema de Justicia, es también porque los ámbitos de nuestra convivencia que se encuentran regulados por normas jurídicas se hacen, cada vez, más amplios. Todo ello presupone el máximo esfuerzo de los Poderes públicos para asegurar que el sistema judicial sea eficaz, efectivo y respondiente a las garantías y a los principios que nuestra Constitución exige para nuestro Estado social y autonómico. Entre todos ellos destacan el principio de legitimación democrática y de sumisión del juez a la ley, el principio de responsabilidad, el principio de exclusividad, el principio de unidad de la jurisdicción y la dimensión territorial del Poder Judicial en nuestro Estado compuesto. Ante este panorama en evolución, cabe preguntarse si tiene sentido configurar la función judicial como un Poder Estatal, siguiendo la tradición de Montesquieu. En realidad, seguimos equiparando la función judicial a un «poder» sobre la base de un «malentendido». Hemos olvidad que los dos modelos tradicionales de Justicia –el modelo jacobino y el modelo estadounidense– han servido, cada uno, para dar respuestas diversas a reivindicaciones igualmente distintas, otorgando carácter democrático a la función judicial por vías netamente opuestas. Así, como es sabido, la soberanía popular en el modelo de justicia de Norteamérica se manifiesta a través de procesos electorales directos o indirectos –es decir, por medio de representantes– que otorgan a los jueces una legitimación democrática fuerte, manifiesta e inmediata. Sin embargo, el modelo francés –forjado a raíz de las revoluciones liberales y generalmente adoptado en toda Europa– arranca de presupuestos radicalmente distintos: el «supuesto poder de los jueces» consiste sólo y exclusivamente en aplicar al caso concreto una norma general y abstracta; en ser «la boca de la ley» a la que están sometidos. Nuestro planteamiento es el de volver a configurar la función judicial por lo que realmente es o debería ser: un servicio público esencial que el Estado debe proporcionar a la ciudadanía acorde a una serie de principios constitucionales y estándares de calidad. Este estudio, reflexiona sobre estas cuestiones.

Public–Private Partnerships in Urban Regeneration: Democratic Legitimacy and its Relation with Performance and Trust

Public-private entities set up specifically to manage and implement urban regeneration projects have been observed across several nations. In these urban regeneration partnerships, public and private partners often work together to improve languishing neighbourhoods. One of the core ideas driving the establishment of these partnerships is that, in order to more effectively tackle the challenging regeneration process, these organisations should function at arm's length from the political institutions that oversee them. A specific question concerning these partnerships is how representative mechanisms work and how the partnership process is linked to traditional representative bodies or in other ways is connected to principles of democratic legitimacy. This paper explores the so-called democratic legitimacy of urban regeneration companies, as a form of public–private partnership, in more detail. It makes a distinction between three types of democratic legitimacy: accountability, voice, and due deliberation. Using material from a survey among managers of urban regeneration companies (URCs) in The Netherlands, this paper examines the impact of these three forms of democratic legitimacy on outcomes and trust of these URCs. The results show a fairly strong correlation between some criteria of democratic legitimacy, especially due deliberation on the one hand and performance and trust on the other hand.

The Criminalisation Power of the European Union after Lisbon and the Principle of Democratic Legitimacy

This article proposes to scrutinise the process of enacting substantive criminal law under the new competence of the Lisbon Treaty, namely under article 83 in light of the notion of legitimacy as endorsed by the principle of legality. The article focuses in a first part on the scope of the competence under article 83 TFEU and concludes that this criminal law competence is broad and still tainted by uncertainty. In a second part, the paper looks at the theoretical implementation of the competence regarding subsidiarity and proportionality tests and concludes that these principles seem to play as an insufficient safeguard. However proportionality could constitute an adequate safeguard to the use of criminal law competence if rearticulated to incorporate the principle of ‘ultima ratio’.

The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks

Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks. It starts by showing that the years 1989�2010 can be hailed as an unprecedented epoch of international law during which domestic governance came to be regulated to an unprecedented extent. This materialized through the coming into existence of a requirement of democratic origin of governments which has been dubbed the principle of democratic legitimacy. However, this article argues that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007�2010 economic crisis, the instrumentalization of democratization policies of Western countries as well as the rise of some authoritarian superpowers could be currently cutting short the consolidation of the principle of democratic legitimacy in international law. After sketching out the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the legal scholarship since 1989, the article seeks critically to appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3) and the various dynamics that have permeated the legal scholarship over the last two decades (4). In doing so, it sheds some light on some oscillatory dynamics similarly pinpointed by Susan Marks in her contribution to this journal.

Democratic legitimacy of the forest sector and nature conservation decision-making in Finnish print media discussion

The study explores perceived democratic legitimacy of forest-related decision-making processes in the Finnish print media discourse. The data consists of the readers’ letters in four journals (n = 530), and the comments given during the preparation of the Finnish National Forest Program (n = 140). The objective is to identify the patterns of democratic legitimacy and respective performance evaluations of actual decision-making processes. The patterns can be classified as support for: (A) democracy and other forms of government, (B) different forms of participation, and (C) principles of democracy. The principles can be further classified into 1) core regime, 2) input, 3) throughput, and 4) output principles. Democratic legitimacy was found to be an important source of legitimacy in the public discussion since democratic patterns were found in more than half of the texts. The most common core legitimacy principles included freedom of speech, good national and international standing, forerunnership, and legality at national and international level. The central principles related to input legitimacy included popular sovereignty, a voice for the people, popular participation, openness, presenting alternatives, and urgency. The consensus and majority rules were found to be the most prominent throughput principles. Democratic output legitimacy included accountability, responsibility, cooperation, commitment, responsiveness, the possibility to appeal, credibility, comprehensiveness, and understandability. The findings suggest that among the writers of readers’ letters there is less contestation regarding the principles of democratic legitimacy but there are significant disagreements concerning the performance of decision-making processes. The negative performance evaluations were two times more frequent than the positive evaluations.

Feminism, Religion, and Shared Reasons: A Defense of Exclusive Public Reason

The idea of public reason is central to political liberalism’s aim to provide an account of the possibility of a just and stable democratic society comprised of free and equal citizens who nonetheless are deeply divided over fundamental values. This commitment to the idea of public reason reflects the normative core of political liberalism which is rooted in the principle of democratic legitimacy and the idea of reciprocity among citizens. Yet both critics and defenders of political liberalism disagree over whether or not the idea of public reason permits citizens to appeal to their comprehensive conceptions of the good in public deliberation over matters of basic justice. Our aim in this paper is to provide a defense of an exclusive idea of public reason, and at the same time we aim to dispel the underlying concerns of two prominent criticisms of the idea of public reason—the concern of alienation from the political process, as expressed by religiously oriented critics, and the concern over women’s equality, as expressed by feminist critics. We argue that inclusive accounts of the idea of public reason are not consistent with political liberalism’s core commitments. Further, we claim, inclusive accounts of the idea of public reason deepen feminist concerns. We think that, properly understood, an exclusive account of the idea of public reason can address feminist concerns about political liberalism and avoid alienating (reasonable) religious persons in an unacceptable way. Thus, we conclude that an exclusive account of the idea of public reason is our best hope for reconciliation.

Globalisation and global justice

The discussion about justice has often been limited to a specific territory, i.e. a nation. However, globalisation has undermined the relevance of this presupposition. John Rawls's theory of justice is a starting point for contemporary discussions about justice. But, contrary to Rawls's view, principles of global justice should not only include principles of non-interference and respect for universal human rights, but also a principle of democratic legitimacy of global governance and a principle of global distributive justice. The notion of global justice is not uncontroversial. It is argued that the meaning of justice differs between different communities and, thus, one cannot hope for a universal approval of the concept of global justice, that a principle of global distributive justice does not take into account that global differences in wealth are caused by differences in the ambitions of individuals and nations and that the idea of global justice overlooks crucial institutional differences between a nation and the global situation. However, these arguments are not conclusive.

From the 'Republic of Parties' to a 'Fatherland for Italians': the Italian Political System in Search of a New Principle of Legitimation

In the 1990s the idea that a 'democracy of citizens' should take the place of the 'old democracy of the parties' began to take root in Italy. After the collapse of the old party system, the politico-cultural programme of a 'fatherland for Italians' sought to provide a new principle of democratic legitimacy. Through an analysis of the meaning of the party system and a reconstruction of the 'civic-national pedagogy' undertaken in particular by Carlo Azeglio Ciampi as President of the Republic, this article shows that the notion of a 'democracy of citizens' is still struggling to define the characteristics of a mature democracy. The political fragility of the project for a 'fatherland of the Italians' is revealed, and the civic-national pedagogy of President Ciampi is found inadequate to give life to a 'constitutional patriotism' as a new principle of legitimation, partly because of the unresolved problem of the structure of the new system of parties.

Human rights, participatory communication and cultural freedom in a global perspective

There is evolving in our time a global civic culture, a culture which contains further elements to be incorporated in a new global ethics. The idea of human rights, the principle of democratic legitimacy, public accountability, and the emerging ethos of evidence and proof are the prime candidates for consideration… Today, the idea of human rights, though still challenged by recalcitrant governments. is a firmly entrenched standard of political conduct and will have to be a corner-stone of any global ethics. Javier Pérez de Cuellar (1995, pp. 36–37)

The Right to Political Participation in International Law

INTRODUCTION Is international law prepared to accept a right to democratic governance? To answer this question one would need to examine the many facets of international law potentially affected by a principle of democratic legitimacy: recognition of States and governments, the accreditation of delegates to international organizations, the use of force, treaty law, etc. But such an inquiry into the consequences of a democratic right would be a rather sterile enterprise if one had not first asked whether the right itself has achieved a firm legal grounding. Does international law in fact speak to the ways in which citizens choose their leaders? Is the right confined to treaty law or is support to be found in State practice as well? Do efforts by international organizations to foster transitions to democracy constitute norm-generating State practice? And is relevant opinio juris confined to regions of the world in which democratic government is already well established? These questions about the sources of a democratic right immediately raise another, more complex question: when inquiring into the normative status of a “right to democratic government,” what, precisely, is one looking for? If “democracy” is understood in consequentialist terms as one or another comprehensive visions of “the good life,” then the relevant sources of law would be potentially infinite. All manner of political, social, economic, environmental, and other rights could potentially contribute to democracy so defined.