Constitutional Democracy

2. The conflict

2. The conflict A collective decision does not raise any difficulty if it is made completely unanimously. Assume that a multitude of people has to decide about two alternatives , a and b. Assume, furthermore, that each person intends to vote for a; moreover, they intend to do so regardless of the voting intentions of the others. In this case the decisions are made in consensus, and no one would be justified in making objections against them. The main question of political theory—how can a binding collective decision and the duty to obey it be justified to disagreeing individuals—does not even arise. Yet full consensus is a limiting case. Normally, decisions are divisive; there is no such outcome as to be equally favorable or approvable for everyone. Therefore, the question of political obligation is not something that could be avoided. The liberal thesis requires that political decisions treat all human beings within their jurisdiction as autonomous persons, furthermore, that they treat them as equals. These theses imply that collective decisions should be made only within the constraints of rights and that individuals possess the same basic rights. The democratic thesis requires that the community should govern itself through its own decisions and that all members of the community should have an equal opportunity to participate in self-government. The minimal requirement of self-government is that the legislators who make rules for the community be themselves members of the same community; this is what is called popular sovereignty.3 In direct democracy, popular sovereignty means that (almost) all adult members of the community are legislators , while in representative democracy it means that legislators are elected by the community of the subjects to the laws, and that they are elected from among the ranks of the electors themselves; that is, (almost) all members of the community have the right to vote and to run for elected office.4 In fact, the requirement of democratic equality is implied by the principle of 58 ⁄ Liberal Democracy popular sovereignty; as members of the community, all have equal political rights, and as voters all have one and only one vote. If liberal principles articulate basic values, while the values of democracy are derivative, then liberal principles set the boundaries for democratic principles . First, they mark out the domain in which the latter may be legitimately applied; second, they stipulate certain requirements for the way they should be applied. Democracy specifies the legitimate procedures of collective binding decisions, while liberalism claims, among other things, that there are certain issues that belong to the exclusive authority of individuals and of their voluntary associations. Consider the issue of marriage. Imagine a practice whereby marital choices are made by the community. Even so if everybody would choose that speci fic spouse for everyone else that the person in question would prefer, democracy would be compatible with letting everyone decide for themselves, as a cheap substitute for collective decision making. If there were no such agreement, on the other hand, the democratic principle would require that there should be a vote, and that the choice made by the majority should be carried out. However, the liberal principle precludes the possibility of marital choice being settled by vote. Marriage is under any circumstances the private affair of two persons—and the community must accept their personal decisions, whether it coincides with its collective preferences or not. Should the principles of liberalism and those of democracy be mutually independent , the enforcement of the liberal principle would appear as a concession from the requirements of democracy. If, on the other hand, the democratic principle relies on the liberal, there is no question of moral concession. Democratic decision making is valuable only in the realm of public affairs. Its extension to private affairs is morally inappropriate. One condition for democratic decisions to be legitimate is that political institutions clearly demarcate the realm of private affairs from the public realm, and restrict collective decisions strictly to the latter. Such a restriction does not implement a compromise between democratic and liberal principles . It does not give up anything of the things we value in democratic decision making; it only bans democratic decisions from a domain they ought not to invade. It seems as though the requirements of the democratic and liberal orders need not be reconciled.5 However, this argument cuts short the controversy instead of resolving it. For the problem of liberal democracy raises two separate issues. One...