Thin Beats Fat Yet Again: Conceptions of Democracy

Thin Beats Fat Yet Again: Conceptions of DemocracyAuthor(s): James AllanSource: Law and Philosophy, Vol. 25, No. 5 (Sep., 2006), pp. 533-559Published by: SpringerStable URL: http://www.jstor.org/stable/27639442 .

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Law and Philosophy (2006) 25: 533-559 ? Springer 2006 DOI 10.1007/sl0982-006-0004-x

JAMES ALLAN

THIN BEATS FAT YET AGAIN - CONCEPTIONS OF DEMOCRACY*

(Accepted 20 February 2006)

In this article I will seek to advocate a thin conception of

democracy, one with relatively few -

perhaps even the least

possible number of - moral overlays. Put differently, I want to defend a conception of democracy that is procedural rather than substantive, one that postpones much moral

evaluation until later. In short, my preferred conception of

democracy is one in which it is possible to say "this is a

democracy, but a deficient or bad or wicked one". I think it better to leave such notions as upholding individual rights or

safeguarding the position of minorities or ensuring social

justice outside of, and separate from, one's core conception of democracy.

In this I take myself to be echoing H.L.A. Hart's prefer ence in The Concept of Law1 where he favours a theory of law that does not first demand one make a moral assessment

of whether some valid social rule - one that meets the

requirements of the Rule of Recognition2 - is also a good

rule, or at least not too intolerably bad a rule. Hart wanted

the concept of law to encompass the morally bad and wicked

* An earlier version of this paper was presented in Sydney, Australia at

the 2005 Australian Society of Legal Philosophy annual conference. The

author wishes to thank all those who commented upon and criticized the

paper. The author also wishes to thank two anonymous referees from this

journal for their helpful suggestions. 1 H.L.A. Hart, The Concept of Law (2nd ed. by P. Bulloch and J. Raz,

Clarendon Press, 1994). 2 Ibid., pp. 94-110. For an excellent fleshing out of Hart's Rule of Rec

ognition notion see Greenawalt, Kent, 'Hart's Rule of Recognition and the

United States', Ratio Juris 1 (1988): 40.



534 JAMES ALLAN

as well as the morally good. He wanted there to be a plat

form, in his case a utilitarian or consequentialist platform, from which law could be assessed and according to which law could be reformed.3 Hart, in chapter nine of his famous

book, argued that law should be separated from morality, that 'law as it is' is best kept distinct from 'law as it ought to

be'.4

In a similar sense I will seek in this paper to defend a

comparatively non-substantive, or thin, account of democracy. Of course any argument about the best way of conceiving

of democracy has these days to be made against the back

ground that democracy is an "essentially contested

concept".5 It is a notion broad enough to encompass both

the position of those who prefer a thin, procedural account

and those who prefer a fat, substantive, morally infused ac

count. No one, or virtually no one, today professes to be

against democracy. So any debate that collapses into an

argument about the meaning of the word "democracy" will

not be terribly useful or instructive.6 Where a word and

3 Some readers may immediately object that Hart defended a wider

concept of law and pointed out the weaknesses in a narrow concept of law. At first glance, that is, it may appear that Hart would also have favoured a

wider concept of democracy. Not so. On the Hartian view, the content of law is a contingent social fact and moral wickedness is not a criterion for

excluding candidates from membership in the club. The difference is that

those in favour of an in-built moral overlay evaluation want (in some

circumstances) to exclude certain candidates from counting as law whereas

in setting out what counts as democratic the moral overlay brigade want to

build in, or add, a moral test. So in fact I am following the Hartian outlook in this paper, though the metaphors have reversed themselves.

4 Note that Hart did not argue that as an empirical matter of fact and of

what is the case that law is kept separate from morality by all or many

people. Hart argued that whatever might happen to be the factual reality, law should be kept separate from morality. 5

See Gallie, W.B., 'Essentially Contested Concepts', Proceedings of the

Aristotelian Society 56 (1965): 167. 6 As Hart made clear in his inaugural professorial lecture. One could, of

course, undertake an empirical enquiry into how the term is most widely used - to shift from arguments about meaning to arguments about levels of actual use. This would be an 'is' enquiry. This paper, by contrast, argues on

the 'ought' level.



CONCEPTIONS OF DEMOCRACY 535

concept are expansive enough, and indeterminate enough, to

encompass a range of senses, arguing about the meaning of

the word becomes somewhat sterile. Not much is to be

gained by heading down that road, however much there may be clear tactical and rhetorical advantages in positioning oneself on the side of democracy.

The concept of democracy, therefore, is a broad enough church to encompass both thin and fat, procedural and sub

stantive, conceptions of democracy. What follows in this paper is an attempt to convince the reader that thin accounts should

be preferred, that better consequences flow from conceiving of

democracy in a bare, proceduralist way with as few moral

overlays as possible. To start, then, we need a working account of a thin con

ception of democracy. 'Majority rules' or 'letting the numbers

count' or 'rule by the people'7 seem to me to be good starting

points, not least because they offer a position with which

many people today disagree. Throughout the western world -

in the law schools, the judiciary, the press, the intelligentsia, even in government

- there are assuredly many people who

are not supporters of unalloyed majoritarianism.8 They reject the view that the least bad procedure for resolving disagree

ments within a society, at least when it comes to rights, is to

let the numbers count. For many of them, letting the numbers

count or raw majoritarianism comes with too big a price tag; it is too likely to lead to the sacrifice of, say, individual rights or identifiable minority interests while making more likely still the dangers of what they often like to term "the tyranny of the majority".

They prefer a fat conception of democracy. They say

something such as that:

[w]e should, then, view democracy as a means for the collective pursuit of

justice, enabling conflicts of interest to be resolved primarily on grounds of

right rather than power and influence. Democratic deliberation should

appeal to moral principles that facilitate agreement among people who seek

7 As distinct from 'rule for the people, by those who happen to think they

know better'. 8

See my 'An Unashamed Majoritarian', Dalhousie Law Journal 27

(2004): 537.



536 JAMES ALLAN

the common good, instead of narrow self-interest, in order that the results can be accepted by everyone as amounting to a reasonable accommodation

that treats all citizens as equally entitled to concern and respect.9

Or, more directly, they say straight out that "[democracy is not the same thing as majoritarianism".10

So according to one not uncommon account of what gets to

count as democratic, a much more substantive, morally over

lain account, majority rule alone will not suffice. Majority rule

needs to be tempered by placing11 in the hands of the judiciary the power to ensure that legislation (passed on the basis of

representative majoritarianism) can be struck down or declared

incompatible when it is held to be inconsistent with certain enumerated individual rights and when that inconsistency is held (again, by the judiciary) not to be reasonable or justifiable.

On this sort of morally overlain account, democracy has at least

two aspects - a head counting, majoritarian aspect and a rights

respecting, morally good outcomes aspect (where the latter is not determined by the former).

Substantive accounts of democracy such as these are the

targets of this paper.

I. PART I - THE ADVANTAGES IN BEING ABLE TO SEPARATE 'DEMOCRACY AS IT IS' FROM 'DEMOCRACY AS IT OUGHT TO

BE'

Let us begin this section with a rehash of H.L.A. Hart's

arguments in chapter nine of The Concept of Law}2 There Hart

9 Allan, T.R.S., 'Common Law Constitutionalism and Freedom of

Speech', in J. Beatson and T. Cripps (eds.), Freedom of Expression and Freedom of Information: Essays in Honour of Sir David Williams (Claren don, 2000), pp. 23-24.

10 Eisgruber, Christopher, Constitutional Self-Government (2001), p. 18.

At p. 62 Eisgruber says democracy is not the same thing as "government by voters".

11 It is worth repeating a point made by many others many times that a

vote to entrench a bill of rights can be democratic (in terms of letting the numbers count) without the new set-up thus installed itself being democratic

(in the same terms). One needs to distinguish means used to move between end results from those end results themselves.

12 See fn. 1 above.




argues that it is better to adopt a concept of law that includes the morally wicked, and not restrict what counts as law to

instances that pass some test of moral goodness or, arguably more inclusively, that pass some weaker test of 'not morally

beyond the Pale'.

It is well to be clear that chapter nine of The Concept of Law involves a change of perspective for Hart. Till then in the book

he has written from the vantage of the outside observer, the

visiting Martian. He has described how legal rules differ from

(and are similar to) orders backed by threats. He has described the extent to which legal obligations can be understood as

flowing from and comprised of a system of social rules of a

particular recognized or validated sort. He has even pointed out

the ways in which legal rules can differ from (and be similar to) moral rules. His interest thus far has been to describe the nature of any legal system. It has been broadly descriptive, on the

plane of the copula 'is'.

Part way into chapter nine this changes. No longer does Hart write from the vantage of the visiting Martian. He nowhere

there argues that people do - as a matter of widespread fact

-

separate law and morality. Instead, he shifts perspective and

argues that people should separate law and morality. He shifts to the plane of the copula 'ought'; he adopts the vantage of a citizen within a legal system, someone who has a Benthamite

concern for the gradual, piecemeal reform of his or her legal system. From that participant's vantage, argues Hart, it is good to keep separate law and morality, 'law as it is' and 'law as it

ought to be'.

His argument for this 'ought' claim, for this essentially sec

ond-order moral position, is a utilitarian one. Good conse

quences are likely to flow from keeping them separate, he thinks. For instance, we will be able to see the variety of issues

at stake in deciding whether or not to obey, and then how to

disobey, a valid legal rule we judge to be a bad or wicked one.

We will be more likely to disobey an egregiously wicked law when we realize that legal rules are not - or need not be

- a

subset of morality and that in some circumstances moral rules

may have a greater claim on our allegiance. More prosaically,



538 JAMES ALLAN

we will be in a better position to reform our legal system when we have a separate moral platform on which to stand and judge the law of our jurisdiction.

Of course some or all of these empirical, consequentialist claims of Hart's may be wrong. It is possible that people who think that a law only counts as a law if it satisfies some sort of

moral test will, pace Hart, be more willing to disobey egregious statutes. It is possible that a natural law mindset or a belief that

nothing egregiously infringing fundamental human rights gets to count as law will make one more likely

- not less likely - to

stand up to in extremis dictators and brutal regimes. Certainly Hart offers no empirical data to back-up his consequentialist claim. It may even be that the whole natural law and natural

rights edifice is implausible and yet having it in place leads to

good consequences. (That is to say, that on this supposition a

good Benthamite would opt for good consequences over truth.)

Having made those allowances as to what is possible, I simply

say here that I personally find the just traced consequentialist assertions of Hart's, about the benefits of separating law and

morality, the ones underlying his 'ought' claims in chapter nine, to be persuasive and more likely to be right than wrong. More to the point, it is this Hartian framework that I wish to bring to

bear on the question of whether a thin or fat, proceduralist or

substantive, account of democracy ought13 to be employed. Like

Hart, therefore, I need to set out the good consequences I say flow from adopting a thin conception of democracy.

A. Clarity

To start, a thin conception of democracy has the benefit of

providing greater clarity than fatter, more substantive accounts.

As less is rolled up into the concept it is, or should be, clearer to the disinterested observer whether the criteria for inclusion

within the concept have been met.

13 Again, I will not be asserting that most people do, as a matter of fact,

adopt a thin account of democracy. For that matter I will not be asserting that as a matter of fact they adopt a fat account. Truth be told I simply do not know which is the more widespread on the level of 'is'. Indeed it might even be that measuring this would prove difficult or that many people shift

between the two conceptions depending on the context.




In itself, this is an extremely modest consequentialist advantage. Indeed, to all but the categorising political scientist or historian of political philosophy it may be too insignificant to tilt the debate between thin and fat one way or the other.

And against this claimed greater clarity must be balanced the

disadvantage involved in shifting to a different usage of the term

- that is to say, for those who are used to understanding

"democracy" as including more than majoritarianism (and even as seeing themselves as part of a long tradition in doing so), any move to a thinner conception will, for them, carry a

cost. This cost, for them, will need to be set against the claimed benefits of greater clarity.

Still, greater clarity of thought is not nothing. And as I will

argue below, what goes hand in hand with the clearer, pro ceduralist conception of democracy is a postponement of moral

evaluation, of assessing whether any particular system is defi

cient in terms of, say, upholding individual rights or protecting the position of minorities. That postponing of moral evaluation has much more evident consequentialist benefits. Or so I will

argue next.

B. Honesty

The thin, proceduralist conception of democracy leaves more

scope than the fat, substantive conception for saying, and

thinking, "this is a democracy, but it is a wicked or bad or deficient one". As noted above, it postpones more of the value

judgments and moral evaluations until later. First you decide if it is a democracy (using the thin criteria) and then you decide how

good or desirable a democracy it is (using criteria that would include some or all of those in a fat or substantive conception).

Why might that sort of deferral of the moral overlay judg ments have good consequences? Here a main reason relates to

honesty. The thin conception of democracy makes it harder for the observer or assessor to smuggle in his or her own moral

sentiments. When the moral evaluations take place at some

later stage they tend to be more in the open, more public, and

more subject to being contested.



540 JAMES ALLAN

Take present day Iraq, for example. In terms of upholding individual rights and protecting minority interests many of us

could point to more than a few failings, to put it conservatively. On the thin conception of democracy, however, one first has to

decide if enough people voted - and voted without fear and

corruption - to pass some 'majority rules' or 'letting the

numbers count' test. If one thinks it has passed this initial bare

proceduralist test then one can, and should, go on to hold the

government up to other tests. How are Kurds and Sunnis likely to fare? What of women? Will religious extremists pass dis

tasteful, even reprehensible, laws?

Many of these later moral tests or assessments - on the

desirability of Sharia law, say, or the need to pursue prosecutions

against former Baathists -

will be highly contentious. Indeed, as

with deciding the range, scope and application of rights generally, we should expect that most of the time there will be disagreement and dissensus. And that disagreement will be between sincere,

reasonable, not obviously stupid or evil, people.14 Too much is apt to be left in the shadows, in my view, if a

judgment on the moral desirability of a government's policies is elided with

- or wrapped up into - a comparatively straight

forward claim about how that government was selected or came

to take power (or perhaps, just as importantly, how the former

government came to lose power and be tossed out15). Under the

thin conception one has less room to avoid confronting the debateable aspects of the moral issues in play and less scope to

14 Jeremy Waldron has made this point many times in the context of

rights. See, for example, 4A Right-Based Critique of Constitutional Rights',

Oxford Journal of Legal Studies 18 (1993): 13 and Law and Disagreement

(OUP, 1999). 15 One of the main grounds on which Sir Karl Popper disliked propor

tional representation voting systems is just this, that they make it difficult for voters to punish those they dislike since elections generally involve parties

gaining or losing a percentage of the popular vote not even in double figures. See, for example, Popper's invited article Topper on Democracy', The

Economist (April 23rd, 1998), pp. 19-22, especially pp. 21-22: "Proportional

representation ... may therefore have a detrimental effect on the decisive

issue of how to get rid of a government by voting it out of office .... As a

result, on election day none of the parties is dismissed, none is convicted."

Ibid., p. 22.




smuggle in one's own sentiments regarding those contentious

issues under some such catch-all cry as 'democratic values'. It is

harder to pretend, that is, that your moral sentiments are

uncontentious and obviously right. So in my opinion a second good consequence of adopting the

thin, proceduralist conception of democracy is that it is more

likely to force moral evaluations -

and relatedly their contestable,

debateable nature - into the open. One's own moral sentiments

are more likely to be exposed as not as widely shared, not as

universal, as was assumed or hoped. Accordingly, the thin

conception of democracy is more honest and transparent about

the contested nature of claims regarding individual rights, social

justice, minority protections, and the rest down in the Waldro nian quagmire where high level political and moral abstractions have to play out in practice.

Consider an extreme example from the Antipodes to finish this section. What are the benefits of discussing the treatment of

Maori in New Zealand and Aborigines in Australia under the

aegis of democracy? What, in other words, are the precise benefits

in doing it that way rather than addressing their grievances and

plight more directly within the admitted confines of a rich

democracy? Persuasive answers to this question elude me.

C. Addressing Institutional Failings

A third consequentialist benefit attaching to the thin concep tion of democracy is that it focuses attention on the institu tional arrangements that have to prop up or support the

deceptively simple notion of 'majority rules' or 'letting the numbers count'. Quite obviously even the thin, bare procedu ralist account of democracy leaves open a myriad possible ways to structure government. Choices include: federalist or unitary

state; bicameralism or unicameralism; parliamentary or presi dential system; constitutional monarchy or republic; fixed or

floating election dates; proportional, preferential or first

past-the-post voting system; voluntary or compulsory voting;

and more. Within the democratic world, even within the thin,

proceduralist democratic world, there simply is no one, correct

model of democracy.



542 JAMES ALLAN

Put differently, we do need a body of theory that focuses

directly on the justification and elaboration of voting systems, of boundary drawing procedures or districting, of the funding of political campaigns, of media access, and even -

perhaps -

of

an overarching theory linking those all together. A thin

conception of democracy will not diminish the demand for any of that. Indeed, it will make it more obvious. Hence even if one follows me in judging it best to postpone and bring into the

open moral evaluations related to upholding rights or

safeguarding minorities or passing tolerably acceptable laws,

there are still a large number of permutations and combinations

available as regards how 'letting the numbers count' or 'rule by the people' can be brought into existence and justified.

By focusing more directly on these issues the thin conception of democracy looks likely to provide a better vehicle for

addressing institutional failings.

D. Emerging Democracies

What about borderline cases, countries that might plausibly fit under the rubric of 'emerging democracies' or 'emerged but

may now have lapsed democracies'? Which conception of

democracy, thin or fat, is more useful in thinking about these countries? In my opinion, it is again the thin account.

Here one might include Russia, Algeria, Zimbabwe, Hong Kong, Lebanon, the aforementioned Iraq, and others. And

it is precisely here that the thin, proceduralist conception of democracy is most informative, and hence useful. Some of

these countries will fail to pass muster on the thin account of

democracy. For instance, the voting process in Zimbabwe

might be so tainted and full of intimidation, fraud, corrup tion, gerrymandering, control of the media, and plain thug

gery that no disinterested observer could say the election

process reflected the adult voters' (or better still, would-be

voters') duress-free preferences.16 The declared winner was on

16 See 'Mugabe's Bogus Ballot', The Economist, February 26th, 2005,

p. 46 (Asian edition).




no plausible account the choice of the majority. The numbers did not count.

The thin account of democracy makes it clear why, say, Zimbabwe is not democratic. The fat, substantive account

clouds the threshold issue. Is the country not democratic

because the voters' preferences have been ignored, distorted

and trammeled upon or is it because certain members of

opposition parties and minority groups are shot, the rule of

law attacked, individual rights grossly infringed and life

expectancy has fallen from 63 years two decades ago to 33

today?17 Another way to make this point is to claim that there is an

independent value in knowing - or having a reasonable basis

for believing - whether a majority of citizens' views have

determined who gets to hold power. In a country such as

Zimbabwe, where on neither thin nor fat account democracy can be said to hold sway, this may matter less. But what of

Serbia, or Russia, or even Algeria? What of countries where the

thin conception of democracy's threshold is arguably surpassed but the substantive account's threshold is not? The choice

appears to boil down to classifying certain countries as morally deficient, rights infringing democracies or as not counting them as democracies at all.

Or take the much rarer, obverse situation. Here we have a

place where individual rights are fairly well respected, minori ties safe, the rule of law in place and yet the majority clearly and evidently does not rule. Is Hong Kong today democratic?

Was it so before the handover to China in 1997? Surely not, on

anyone's account. Yet once that is conceded it seems to me that

the benefits or advantages of adopting a thin conception of

democracy are harder to refute. The fat conception of democ

racy must always embrace the thin, and then add on the moral

overlays. Other than the tactical benefits of calling in aid a word with powerfully emotive connotations, though, what is lost in

leaving that overlay till later and outside the confines of the

concept of democracy?

17 The Week, March 19th, 2005, p. 19. The economy has also shrunk by

50 percent since the 2001 election.



544 JAMES ALLAN

E. W ell-Established Democracies

A fifth good consequence attendant upon adopting a

proceduralist conception of democracy, and one related to

point three above, is that claims as to 'democratic failings' in

what are patently well-established democratic countries have

to relate to the process of determining majority intentions.

Focus is forced onto gerrymandering in US House of

Representatives' elections, over-representation of rural voters

in Japan and Queensland, the power of political party leaders under the MMP voting system in New Zealand, postal voting in the UK, low voter turnout pretty much everywhere, and

many other issues related to how best to let the numbers count and measure what sort of government a majority of

citizens wants. That more narrowly defined focus on alleged

procedural failings will be seen as consequentially beneficial

if, like me, you think the moral overlay issues inherent in fat

conceptions can be dealt with perfectly adequately in their own terms and outside the aegis of the concept of

democracy.

Finally, what of supra-national entities like the EU in which all the moral overlay concerns seem quite easily satisfied and yet the core level issue of letting the numbers count and the majority ruling seem lacking. The EU, of

course, is no Hong Kong. But then neither is it Switzerland, or Australia, or the United States where elected legislators have real power and parliament is the main law-making

body. Talk of a "democratic deficit" is very much warranted in the EU and it is solely focused on thin conception

concerns.

F. Bills of Rights

Quite a grievous weakness in the fat, substantive conception of democracy

- to me that is, but admittedly not to a good

many others -

is that such conceptions can make it seem to

the unwary as though a bill of rights is a necessary com

ponent of democratic government. Of course that is false. It is false even from the perspective of a fat, substantive




conception of democracy adherent.18 Individual rights, minority safeguards, social justice and all the rest of the fat

conception's moral overlay can be as well -

arguably better -

protected without a bill of rights.19 There is no necessary connection between a substantive conception of democracy and support for a bill of rights. The former in no way entails the latter (although more than a few judges and bill of rights supporters suggest otherwise).

And yet, my guess is that the correlation between sub

scribing to a fat conception of democracy and supporting a

18 The question of whether one wants the concept of democracy to in

clude some measure of judicial review along with majority rule is distinct from the question of how well judicial review works, in practice, to protect people's rights. The former is a matter of conceptual preferences. Supporters of judicial review could accept my case for a thin conception of democracy (on the basis of the other good consequences I enumerate) and yet say that on other, non-democratic grounds they support judicial review - that giving unelected judges powers to second guess elected legislatures has benefits that

justify impinging (to some extent) upon democracy understood as majori tarianism. And this sort of argument is made on occasion. See, for example,

Kay's, Richard, 'American Constitutionalism', in Larry Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge University Press,

1998). However, such an approach is relatively rare. My view is that the

preponderance of judicial review supporters also support thick conceptions of democracy. My criticisms of judicial review are to be understood against that claimed contingent fact.

19 The case against bills of rights from the perspective of one who nev

ertheless strongly supports rights is most famously made by Jeremy Wal dron. See, Law and Disagreement, op. cit., fn. 14 above. But a good many

others, people whose sympathies all broadly fall under the aegis of liberal

ism, also oppose bills of rights. A small sample would include Jeff Golds

worthy (see The Sovereignty of Parliament (Clarendon, 1999)), Mark Tushnet (see 'Skepticism about Judicial Review: A Perspective from the United States', in Campbell, Ewing, and Tomkins (eds.), 'Skeptical Essays on Human Rights (OUP, 2001), Tom Campbell (see 'Judicial Activism -

Justice or Treason?', (2003) 10 Otago Law Review 307), and James Allan (see 'Bills of Rights and Judicial Power - A Liberal's Quandary', Oxford Journal

of Legal Studies 16 (1996): 337).



546 JAMES ALLAN

bill of rights is a high one. Substantive accounts of

democracy build excessive moral criteria - too much of a

normative overlay -

into the concept of democracy in such a

way that bills of rights appear to be required by definition. The fact that this appearance, on reflection, is mistaken is

cold comfort. The fact that a democracy can offer favourable

degrees of social justice, of protection of individual rights, and of minority safeguards without a bill of rights (as I say is true in Australia) does not alter first impressions

- that fat

conceptions of democracy seem by definitional fiat somehow to demand a bill of rights.

As the issue of the adoption of a bill of rights is still a live one where I live in Australia, and one very much at the heart of

my interests, it would be nice to be able to consider that issue on its own merits without its being infected by claims as to what is and is not 'democratic'.21

The thin conception of democracy ensures the unwary can

consider the desirability or otherwise of a bill of rights on its own merits. The fat conception puts that at risk. This, in itself, is in my view grounds enough to prefer the thin, proceduralist conception of democracy.

G. Liberalism and Democracy

Some time ago I argued that a thin conception of democracy allowed for a better understanding of the relationship between

20 Indeed, a fat conception of democracy can arguably be tied to a

remarkably sweeping and even fatter notion of 'law' and the 'rule of law' so

that rights-protecting judicial review becomes somehow intrinsic to the

concept of law itself meaning that bills of rights to that extent are otiose.

In other words, the claim is that genuine democracies (or at least liberal

democracies) have some sort of unwritten bill of rights, a judicially enforceable one, whether or not these jurisdictions actually have written,

tangible bills of rights. See Allan, T.R.S., Constitutional Justice: A Liberal

Theory of the Rule of Law (OUP, 2001). 21 See, as examples of this, Mackay, Wayne, 'The Legislative, the Exec

utive and the Courts: The Delicate Balance of Power or Who is Running the

Country Anyway?', Dalhousie Law Journal 24 (2001): 37 and F.L. Morton

and Knopff, R., The Charter Revolution and the Court Party (Broadview Press, 2000).




liberal values and letting the numbers count or majority rule. I still think that. In a sense, it is true, that to say this is just to

repeat in pr?cis form the various points and claims already made in this paper.

Nevertheless, the thin conception's adherent would say that

he is in a better position to assess, say, the ramifications of the

election of a neo-fascist government in Austria or a neo-fascist

coalition party in government in Italy. He can better separate

the policies such parties espouse (which this author and many others find distasteful and economically illiterate) from the way in which they came to have a share in government (which seems to this author a good way of choosing governments).23

One might even speculate that a firmer insistence on

keeping these two points distinct would have led to a less

clumsy response than was made to Austria's election of a

neo-fascist government. Precisely in such circumstances as

these it is good and useful and helpful in formulating wise

responses to be able to say "this is a democratically elected

government but it is one espousing some bad, evil, stupid and

ignorant policies".

Conversely, by adopting the thin conception of democracy one can consider the liberal credentials of, say, anti-hunt

legislation in Britain or free-trade agreements without having to deny or ignore the clear 'rule by the people' mandate of those who enacted or entered into them. Relatedly, one is less

apt to assume that a government that supports the free

market is necessarily one that was selected by letting the numbers count.

II. PART II - POSSIBLE MOTIVATIONS FOR PREFERRING A FAT CONCEPTION

In this part of the paper I turn from a Hartian, utilitarian defence of conceiving of democracy in terms of 'letting the

22 See my 'Liberalism, Democracy and Hong Kong', Hong Kong Law

Journal 28 (1998): 156. 23

On the question of illiberal democracies see Fareed Zaharia, The Future

of Freedom: Illiberal Democracy at Home and Abroad (Norton, 2003). Thank you to one of the two anonymous referees for this reference.



548 JAMES ALLAN

numbers count' to speculation. I want to speculate on why so

many people in the West today seem to have lost faith in their fellow citizens

- in their capacities, their moral discernment,

their ability to vote on other than the basest, most Hobbesian

grounds. Why is it that raw majoritarianism is widely seen as a

bad rather than good thing? After all, in reply to "What has 'letting the numbers count'

ever done for us?" one could go some way to repeating the

Monty Python skit in which "What have the Romans ever done for us?" is met by a lengthy list of benefits.

Letting the numbers count has delivered the modern welfare

state; it has extended the vote to women and blacks and

indigenous peoples; it has produced elected politicians who stood up to and defeated Hitler and fascism and later on a

decrepit communism; it has in most places ended capital punishment; it has brought in compulsory schooling and vastly extended tertiary education opportunities; it has legislated into existence anti-discrimination commissions, and ombudsmen.

What it has not done is to have glossed over and made

disappear fundamental moral disagreements between people in

society over matters such as abortion, euthanasia, gay

marriage, economic refugees, and more. If you think such issues

divide easily into those on the side of the angels and those who are wicked, ignorant or just dumb,24 then you may well have lost faith in the capacities of your fellow voters, especially if you see yourself as part of a group whose views on a range of such

issues are strongly contested by an opposing group with more

members. Having, in effect, lost confidence in the basic moral

evaluations of many of your fellow voters -

their having what it

takes to weigh up and decide key moral issues -

you may then

think that a nice group of similarly educated and incultured unelected judges will deliver you more of the first-order moral outcomes you believe to be objectively right ones. You may even think it does this while still, mirabile dictu, allowing you to

24 In more ancient terms, this is more or less Oliver Cromwell's objection

to extending the suffrage to 'men who have no interest but the interest of

breathing' (as reported by R. Liddle in The Spectator, April 9th, 2005, p.

22).




think of yourself as an egalitarian. At that point any fat con

ception of democracy starts to look pretty attractive. So my speculation is that some or much of the attraction of

the moral overlay conception of democracy stems from a form

of paternalism, from a quiet conviction that the right answers25

to these deeply contested issues are more likely to come from an

aristocratic judiciary or litigation driven process (with input, no

doubt, from NGOs) than from letting the numbers count. Put

differently, this view bets that the courts help the cause of social

engineering (from the adherent's perspective) more readily than ballots. It is the attendant belief that such social engineering is

ultimately to the benefit of everyone, or nearly everyone, that

makes it at core a form of paternalism. The same argument can apply to those who prefer the first

order positions of the "international community" to those of

the majority of their fellow citizens. The underlying assumption is again that better moral and political results flow from

following - or making the default presumption

- the views of

the UN Human Rights Committee or the Committee on the

Rights of the Child or the Security Council or whatever rather than following the views of the elected representatives of the voters of the UK or Australia or New Zealand or Canada or the US.

In my opinion there is too much contempt today for raw

majoritarianism, not least in the universities. The obverse of

this is that there is too much romanticism about the abilities of

unelected judges throughout the common law world. I, personally, am more attracted to that branch of liberalism in

the tradition of Hume, and perhaps Bentham too, that has as a

core tenet a general scepticism about the capacities and

25 See Waldron, Jeremy, 'The Irrelevance of Moral Objectivity', in R.

George (ed.), Natural Law Theory (Clarendon, 1992). Waldron's point there

is that whether or not there be mind-independent right moral answers, human beings have no agreed way of knowing what they are. In this sense

arguments about what the case is in the external, causal world are unlike

arguments about values. When it comes to the latter, even if on the onto

logical plane mind-independent right moral answers do exist, on the epis

temological plane no one can know what they are. In a practical sense, then,

the moral objectivist is in the same boat as the moral sceptic.



550 JAMES ALLAN

motivations of decision-makers -

all decision-makers, including those sitting in courts.

Most, if not all, supporters of 'letting the numbers count'

democracy are well aware that sometimes poor decisions are

made by elected representatives, that government by them is

occasionally heavy-handed, and that morally imperfect out

comes can result. Such supporters are Churchillian at heart.

Democracy (of the thin sort) is for them the worst form of

government, except for all those other forms so far tried

(including kritarchy, rule by judges).26 The less than perfect capacities of decision-makers are best countered by the regular

opportunity to vote them out of office (together with built-in checks such as a genuine House of Review Senate and, say,

federalism), not by handing great power over to an aristocratic

judiciary that can never be voted out in the strangely confident belief that these committees of ex-lawyers will be governed by right reason, by an ineffable view of the common good, and by

deep-rooted social values which they -

somehow, and myste

riously to me - are uniquely placed to find and implement and so are able to reach right answers to questions of gay marriage,

mandatory detention, abortion, euthanasia, and more.

Supporters of 'majority rules' as the authoritative decision

making procedure in society ultimately think that the greater danger in an established democracy like the UK or the US or

Australia, say, is of judges (on a day-to-day basis) getting too

big for their unelected boots and resolving too many of the

contentious, hotly debated line-drawing disputes over how to

apply abstract, indeterminate rights guarantees down in the

quagmire of day-to-day detail. The greater danger for them is

not of judges (in those highly abnormal and infrequent

26 Cf. this to Philip Joseph's critique of those who argue for legislative

supremacy over judicial supremacy on the basis of democracy. Joseph there

suggests or assumes that supporters of democracy must be Utopians, in my view a clearly false assumption. '[Readers of Parliamentary Sovereignty defenders are] bludgeoned by the concept of democracy. Modern mass

democracy is paraded as a Utopian ideal, an unqualified good -

'perfect' and 'all-wise". Philip Joseph, 'Parliament, the Courts and the Collaborative

Enterprise' [2004] 15 KCLJ 321 at p. 329.




instances) being too afraid to disobey egregiously immoral

legislation.27 It is otherwise for some fat conception of democracy

adherents. Not only have they given up on the sentiments, tastes and beliefs of ordinary citizens, the corollary applies too.

They fear a weak judiciary more than a strong one.

III. PART III - BARE, NOT SKELETAL

Let us put away speculation now and return briefly to our

working account of a thin or bare conception of democracy. I said at the start of this article that I preferred a conception of

democracy with relatively few moral overlays and mooted, as

starting points, 'letting the numbers count' or 'rule by the

people' or 'majority rules'.

This notion of democracy is a comparatively thin, or bare, one. It is explicitly rejected by Amartya Sen, who argues that

'[w]e must not identify democracy with majority rule'.28 Sen

prefers to build in to his conception of democracy certain matters I would leave outside that conception, matters such as

"the protection of liberties and freedoms [and] respect for legal entitlements".29 Indeed Sen goes on to attempt to make "the

case for seeing democracy as a universal value".30

For the utilitarian reasons given above I would not follow

Sen; I would not build so many moral overlays into the

conception of democracy. That said, a bare conception of democracy is not a skeletal

one. Some moral overlay is needed to give life to the notion of

'letting the numbers count'. Put differently, there is an element

of the 'ought' involved in this notion, not just of the 'is'. One needs to prescribe what should count as satisfying this test of

27 See Goldsworthy, Jeffrey, 'Homogenizing Constitutions', Oxford

Journal of Legal Studies 23 (2003): p. 495. 28

Amartya Sen, 'Democracy as a Universal Value', Journal of Democ

racy 10(3) (1999): 8 (hereinafter 'Sen'). Another obvious proponent of a fat

conception of democracy is Ronald Dworkin. See, inter alia, Taking Rights

Seriously (Duckworth, 1977) and Law's Empire (Belknap, 1986). 29

Sen, p. 9. 30

Sen, p. 10.



552 JAMES ALLAN

majority rules. There is a range stretching from people raising their hands in the presence of men with machine guns to voting by secret ballot but with the votes counted by unscrutinised henchmen to voting by secret ballot but in a state with only government controlled news and swingeing defamation laws to

voting by secret ballot in a state with a vigorously free press and no potential penalties (in terms of food distribution or roads

being built) for living in a constituency that votes against the

government. Somewhere along this range -

and no doubt dif

ferent people will draw the line at different places - the numbers

stop really counting and who rules is not really being deter mined by the preferences of the majority. In this sense Sen is

clearly correct when he says that "[e]ven elections can be deeply defective if they occur without the different sides getting an

adequate opportunity to present their cases, or without the

electorate enjoying the freedom to obtain news and to consider

the views of the competing protagonists".31 The point is that even a thin conception of democracy

- one

focused on how governments are chosen rather than on what

they decide to do once elected -

cannot be a wholly emaciated

conception. The notion of the majority choosing its govern ment builds in a moral or normative component, a test of what

does and does not count as an acceptable method of choosing. This raises some of the issues broached above in Part I, Sections 3 and 5, issues related to institutional arrangements and the

process of determining majority intentions.32

More specifically, it raises other more complicated questions,

though I would say these further questions are still in the realm of how a government is, or ought to be, chosen rather than in

the realm of what it does once chosen. Here one might point to

issues about how the executive relates to the legislature and

how both relate to the myriad bodies that implement law, and indeed interpret law. One might wonder, too, which decisions in

large nation states ought to be put separately to the voters -

31 Sen, p. 9.

32 These are the sort of issues John Ely thought might justifiably be

handed over to an unelected judiciary for safekeeping. See John Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980), especially chapter four.




outside the regular process of voting for a legislature (and possibly executive).33 Different 'letting the numbers count'

democracies can and will resolve these issues differently. Some

resolutions will be preferred by some and others by others, with these various somes and others still falling within a thin 'letting the numbers count' conception. In addition, even the thin

conception of democracy itself will have a core of settled

meaning and a penumbra of doubt34 - some real life instances

that clearly fall within the concept's ambit and some which are

debateable, with arguments pointing both ways. As I said above, then, 'letting the numbers count' or

'majority rules' is a deceptively simple seeming notion. In fact, it requires some sort of moral overlay, some set of 'ought'

judgments or criteria about the circumstances in which citizens

can be said to have chosen their governments (and delegated some decisions to be taken for them), rather than having had it chosen for them. So to repeat, a thin conception of democracy cannot be a skeletal one. Confining how one thinks of

democracy to issues of how legislatures and governments are

chosen and relate to one another and the voter does not elim

inate all the moral overlays. Nor does it eliminate contentious moral debates and the resulting dissensus about such things as

voting systems, when referenda are needed, campaign finance

rules, the merits of bicameralism or federalism or compulsory

voting or any of the other matters connected to adding flesh to the notion of 'letting the numbers count'. What counts as

falling under the rubric of 'letting the numbers count', in other

words, is a debatable evaluative matter. Hence thin conceptions of democracy do not and cannot eliminate all evaluative

judgments and the resulting disagreement over these judgments. Thin conceptions do, though, eliminate many other

additional tiers of moral overlay, layers connected to the

goodness or badness of the laws a government enacts or the

things it does once elected, once the majority has ruled. Thin

conceptions force these outer layers to be debated and dis cussed (and no doubt disagreed about) outside the confines of

33 Thanks to John Eekelaar for these points.

34 See Hart, op. cit. fn. 1, p. 123 inter alia.



554 JAMES ALLAN

the concept of democracy. Proponents of thin conceptions of

democracy think that a good thing, one that ought to be en

dorsed and followed. At this point a critic might well respond to me by saying

something along the following lines:

Your thin conception of democracy argument looks to me to be irredeem

ably flawed. You concede that majoritarianism is not enough. You concede that some moral overlay is needed. But you do not say how much moral

overlay is necessary. Drawing the line you want is harder than you think. You need to tell us how much overlay is needed as part of your thin con

ception, which protections and freedoms are related to ensuring the num

bers count and which are related to after-the-fact-of-elections issues

encompassed by claims to such things as justice or liberty or the common

good. And I do not think you can tell us exactly where to draw that line,

meaning your whole project is thrown into doubt.

That is a not unfair pr?cis of what certain fat conception of

democracy adherents might at this point argue. They would focus on the difficulty thin conception proponents would have in drawing any hard-and-fast distinctions between value judg

ments related to how governments are chosen so as to ensure

the numbers really do count, on the one hand, and all the other

value judgments, on the other hand, that are necessarily involved in governing, in deciding the scope of and reasonable limits on freedom of religion, say, or of search and seizure, or of

immigration policy, or of how to spend society's limited resources on health, education and defence.

In general terms such a critic is correct, of course, that

drawing any hard-and-fast line between which value judgments relate to ensuring the numbers count and which do not is an

inherently controversial one, an essentially contested one. As I

have said already, it is one over which smart, reasonable, even

nice people will disagree. Witness, for instance, the strong

disagreements people have over voting systems and whether

proportional or first-past-the-post or even preferential systems

produce legislatures that better reflect (or reflect at all) majority sentiments.

However, such a critic is only correct in the most general sense. He or she demands that the proponent of a thin

conception of democracy tell us exactly which rights and free




doms are aimed at ensuring the preferences of the majority have

been translated into legislative reality. That demand for exac

titude, however, is an unfair one in this sense.

Leave aside my point above that people will inevitably differ on when the numbers really have counted and that different

weights and emphases will be put by different people on, say,

respective campaign finance rules or access to media regulations or defamation regimes or even whether prisoners can vote.35

No, the unfairness of this criticism comes from demanding a

level of preciseness or exactitude that the critic himself could not provide for his own, thick conception of democracy. After

all, even for the proponent of a fat, substantive conception of

democracy not all 'oughts' are related to what is or is not

democratic. Even for him some claims for "the protection of

liberties and freedoms [and] respect for legal entitlements"36 fall outside the aegis of his conception of democracy. The realm of

living well and justly and fairly in social groups is not wholly subsumed by issues of what is or is not democratic, even for the

most substantive and thick of conceptions. So such a critic will have as difficult a time providing

exactitude and precision drawing his lines as will the thin

conception adherent; it is just that the difficulties will occur at different places.

Put differently, this criticism assumes that there is no benefit in making a distinction between X and not-X unless the line

between the two can be made crystal clear. I disagree. Thus, we

can all differ over which writers to class as legal positivists without having to think there is therefore no use in distin

guishing positivists from natural law adherents (or, indeed, in

seeing the benefits of the two separate perspectives). A plea for a thin conception of democracy is a relative and

comparative one only, made in the full recognition that any two

thin adherents could (and likely would) differ over where to

draw various lines -

just as any two thick conception adherents

could, and would. For both conceptions of democracy there

35 See the 5-4 Supreme Court of Canada decision on this in Sauve v

Canada (Chief Electoral Officer) 3 SCR 519 (2002). 36 Sen, p. 9. See fn. 29 above.



556 JAMES ALLAN

will be, in Hartian terms, a core of settled meaning and a

penumbra of doubt and uncertainty.37 Inside the penumbra of

doubt people will simply disagree over whether some protec tion, rule or right does or does not contribute to letting the numbers count. Yet from recognizing that people will differ over where the thin conception of democracy ends it does not seem to me to follow that there is no value in seeking to

postpone as much of the moral overlay as possible, in prefer

ring the thin to the fat. Nor does it follow that most thick, morally overlain conceptions cannot be distinguished from

most thin, morally exiguous conceptions. There can be a value

to distinguishing between how governments ought to be chosen to ensure the majority has ruled and what governments ought to do once elected, even if at the margins

- in the penumbra of

doubt -

there will be reasonable disagreement over where the

one ends and the other begins. Thin conceptions of democracy eliminate many additional tiers of moral overlay, even if no

definitive, exact line can be drawn to enclose such thin con

ceptions. So I say again, it is the postponement of those extra moral

overlays, the forcing of them to be considered on their own terms and not to be wrapped up into claims about the

acceptability of how governments are chosen, that I think lies at

the heart of the thin conception of democracy. Nothing more.

To repeat, then, this thin conception does not eschew all

links between the idea of democracy and moral overlays. That would be impossible. Rather it seeks to postpone many of them and to have them pursued and figured out piecemeal and one

by-one, instead of just being crammed into a fat conception.

IV. CONCLUSION

This article has attempted to provide a legal positivist take or

perspective on conceptions of democracy. My argument has

been the Hartian one, that better consequences flow from a thin

conception than from a fat one. In that sense, the argument has

been prescriptive. In my view one should understand democracy

37 See fn. 34 above.




without the trimmings; I do not claim that this is how

democracy today is widely understood (not least as I have no

basis for an empirical claim either way). However, if democracy is understood with relatively few moral overlays then we will be

better placed to erect a separate moral platform from which to

judge that country's enactments and actions and then, perhaps, to attempt to reform them.

We will also be better placed to distinguish between con

tingent and necessary concomitants of letting the numbers

count. With a thin conception of democracy we will see that as

an empirical generalization democracies extremely rarely go to

war with one another, virtually never suffer famines, have

comparatively higher standards of living, tend to produce more

pluralistic and tolerant societies, provide more comforts and

freedoms to their citizens, more scientific and artistic vitality, less pollution and disease, and are the places people who vote

with their feet want to go. We will be able to see all that but also see that none of these is a necessary corollary of being a

democracy. These are contingent facts; extremely widespread

ones, it is true. But contingent nonetheless.

A thin conception also does more, I have suggested, to focus

attention on the perceived failings of the institutional

arrangements that translate 'letting the numbers count' into

representative government. Hence campaign finance laws come

under scrutiny. So, too, might the role of referenda, the costs

and benefits of a republic or of compulsory voting, as well as

the other matters I raised above.

The thin conception of democracy does not gloss over the

very real fact that none of these areas is themselves free of

disagreement, dissensus and debate. It does, though, narrow

the realm of the democratic more than fat conceptions. It leaves

a host of important and contentious moral issues -

how best to

uphold individual rights, to safeguard the place of minorities, to ensure social justice, and more -

outside the aegis and

conception of democracy. It leaves them to be debated in their

38 The reference here is to the title of Matthew Kramer's book defending

legal positivism, In Defense of Legal Positivism: Law Without Trimmings

(OUP, 2003).



558 JAMES ALLAN

own terms. Conversely, on the thin conception of democracy it

in fact is the case, as Richard Ekins states, "that judicial review of legislation in Canada and the United States is indeed undemocratic".39 I agree (and depending on how things play out might soon include the UK and New Zealand40). Such

strong judicial review41 under an entrenched bill of rights does make those countries less democratic, in the thin sense.

Those who share my preference for a thin conception of

democracy ultimately believe that it is useful to be able to say that enactments and other measures lacking in moral legitimacy can emanate from a democracy. Fat conceptions make this far

more difficult, if not impossible. They run the risk of seeming to

legitimate all the actions of an acknowledged democracy. (As Bentham pointed out in the different context of natural law

claims, the logic of 'if it is not good, it cannot be a democracy' is the obverse of 'if it is a democracy, it must be good'. The same logic drives both.)

The debate between thin and fat conceptions of democracy is an 'ought' dispute on a relatively narrow issue. Envisioning

39 Richard Ekins, 'The Authority of Parliament: A Reply to Professor

Joseph', KCLJ 16(1) (2005): 51-68 at p. 66. 40

Both countries have statutory bills of rights with reading down pro visions (s.3 in the UK's Human Rights Act 1998 and s.6 in the NZ Bill of

Rights Act 1990) that arguably allow the judiciary to accomplish all that

they could under an entrenched bill of rights. In other words, the danger of weak judicial review collapsing into strong judicial review comes more from over-use of reading down provisions, in my view, than it does from the

judiciary's use of Declarations of Incompatibility. For more on this point see my 'Portia, Bassanio or Dick the Butcher? Constraining judges in the

twenty-first century', KCLJ 17(1) (forthcoming). 41 Ironically, of course, the decision-making rule at the Supreme Court of

Canada or the United States Supreme Court, when judges are deciding whether or not to strike down legislation that has received over half the votes of legislators, is out-and-out majority rules. Five votes bear four, full

stop. It is the exact same decision-making procedure (though with a

markedly more restricted franchise) that fat conception adherents of

democracy dislike so much. Jeremy Waldron had made this point repeatedly. See, for one instance, Law and Disagreement (OUP, 1999), p. 26.

One cannot help wondering why majority rules at the level of the highest court is felt not to need further moral overlays, but majority rules at the level of elected legislature is.




democracy as the least bad system of social organization so far tried seems to me to be more compatible with the thin, morally stripped down conception. This conception asks firstly Ts this a

democracy?' and only later Ts it a good one?'. Yet keeping those two questions separate and distinct has good conse

quences. That is why I think the thin conception ought to be

preferred.

T.C. Beirne School of Law

The University of Queensland

QLD 4072 Brisbane

Australia

E-mail: [email protected]



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Thin Beats Fat Yet Again: Conceptions of Democracy

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