Notes Jurisprudence and Legal Theory
Part B
by Inji Kim
2019/2020
, Ober’s Demopolis (1)
A. Reading
● Demopolis Chapters 1-2
B. Seminar Notes
ULTIMATE QUESTION
● Is O successful in defending BD?
INTRODUCTION
● D is being taken for granted - package with L
● claim: D before L has a distinct value that is independent from L
○ Rawls: thinking about political philosophy - look at ideas in LD (free, equal,
cooperate on equal terms)
● method of book - O engaging in three disciplines
○ political philosophy (normative) - which values to pursue
○ political science - need to know how societies work, positive method
○ ancient (Greek) history - D in ancient Athens, historical example
Chapter 1
D BEFORE L
● L here as pictured by Rawls
● What is the L that O is trying to detach D from? a bunch of L norms
○ autonomy/liberty (non-political)
○ egalitarian distributive justice (as per Rawls; L is not historically committed to
this); BD only requires equality of citizens
○ universal HR (UDHR)
○ neutrality (secularism as per Rawls)
, ■ Rawls does not demand neutral effect but neutral justification (of
principles, policies) as reasonable people can disagree on them
■ e.g. religion, conceptions of good
● O is not saying that one must reject L values, instead that you can have a stable D
without buying into these four elements
● however, D can help support, promote, sustain L
LIBERALISTS AND POPULISM
● populism: arbitrary, unprincipled voice of a majority (‘the real people’) - threat to L?
● Jan Werner Müller: populism as approach to politics where some people illegiti-
mately claim to speak for the whole
● unprincipled, unconstrained majoritarianism
● claim: avoid populism through liberal D; extracting D from L leads to populism and
only way to avoid this is to constrain D though L
● O says this is wrong - D is principled, stable; does not lapse into populism
● D is not a majority tyranny
● Müller thinks populism and technocracy are two sides of the same coin
○ T promotes P backlash
○ argues that this oscillation is fundamentally antidemocratic
○ find a proper place for D to break this (Müller thinks this must be a LD while O
thinks it can be BD that is not liberal)
RELIGIOUS TRADITIONALISTS
● they do not like high emphasis on liberties, etc.
● they reject L - but must they also reject D?
● O claims that D does not implicate these L principles so religious traditionalists can
still buy into D
LEGITIMACY
● ambiguity of what sense of legitimacy O is talking about
● if D can be stable it will be de facto legitimate (accepted)
● legitimacy - D government right to rule? laws morally binding on citizens?
● justifying D - D government has authority, there is obligation to obey
, ● if government is democratically enacted, you are morally bound to obey the law -
ambitious argument
● weaker sense of legitimacy: government worth having, achieves important goods
● ambiguity - trying to show value of D system independent of L
● O is not taking further step of saying that you are morally bound to obey the laws
DIRECT DEMOCRACY
● different institutional ways to realise BD; direct Athenian D not possible today
● O puts high emphasis on civic education, genuine participation
Chapter 2
CLASSICAL ATHENS
● historical example of BD, shows that BD is possible + sustainable
● Q1: Was this really a D?
● Q2: How is this relevant to us in different circumstances of modernity?
MAJORITY TYRANNY
● picture given by critics of D - majority tyranny of the poor (populism)
● Plato - for technocracy as solution
● Aristoteles - form of government with mass participation (not D) - polity as an
answer (constitutional government, like D but with constraints)
● O argues that proper understanding of Athenian D is more like polity of Aristotle, D is
not an arbitrary majority rule
● mature understanding of D - constraints against majority (constitutional limits made
by people and enforced by them, decrees must conform with laws)
● within Assembly, experts could speak (not given equal weight so could de facto
become non-democratic)
● knowledge ≠ expertise
● A Sen: there has never been a famine in a D - knowledge about where food is
needed cannot be passed on in a non-D
Q1: WAS THIS REALLY A DEMOCRACY
● only citizens can participate, not women, foreigners, slaves
○ O will provide for this in Demopolis
Part B
by Inji Kim
2019/2020
, Ober’s Demopolis (1)
A. Reading
● Demopolis Chapters 1-2
B. Seminar Notes
ULTIMATE QUESTION
● Is O successful in defending BD?
INTRODUCTION
● D is being taken for granted - package with L
● claim: D before L has a distinct value that is independent from L
○ Rawls: thinking about political philosophy - look at ideas in LD (free, equal,
cooperate on equal terms)
● method of book - O engaging in three disciplines
○ political philosophy (normative) - which values to pursue
○ political science - need to know how societies work, positive method
○ ancient (Greek) history - D in ancient Athens, historical example
Chapter 1
D BEFORE L
● L here as pictured by Rawls
● What is the L that O is trying to detach D from? a bunch of L norms
○ autonomy/liberty (non-political)
○ egalitarian distributive justice (as per Rawls; L is not historically committed to
this); BD only requires equality of citizens
○ universal HR (UDHR)
○ neutrality (secularism as per Rawls)
, ■ Rawls does not demand neutral effect but neutral justification (of
principles, policies) as reasonable people can disagree on them
■ e.g. religion, conceptions of good
● O is not saying that one must reject L values, instead that you can have a stable D
without buying into these four elements
● however, D can help support, promote, sustain L
LIBERALISTS AND POPULISM
● populism: arbitrary, unprincipled voice of a majority (‘the real people’) - threat to L?
● Jan Werner Müller: populism as approach to politics where some people illegiti-
mately claim to speak for the whole
● unprincipled, unconstrained majoritarianism
● claim: avoid populism through liberal D; extracting D from L leads to populism and
only way to avoid this is to constrain D though L
● O says this is wrong - D is principled, stable; does not lapse into populism
● D is not a majority tyranny
● Müller thinks populism and technocracy are two sides of the same coin
○ T promotes P backlash
○ argues that this oscillation is fundamentally antidemocratic
○ find a proper place for D to break this (Müller thinks this must be a LD while O
thinks it can be BD that is not liberal)
RELIGIOUS TRADITIONALISTS
● they do not like high emphasis on liberties, etc.
● they reject L - but must they also reject D?
● O claims that D does not implicate these L principles so religious traditionalists can
still buy into D
LEGITIMACY
● ambiguity of what sense of legitimacy O is talking about
● if D can be stable it will be de facto legitimate (accepted)
● legitimacy - D government right to rule? laws morally binding on citizens?
● justifying D - D government has authority, there is obligation to obey
, ● if government is democratically enacted, you are morally bound to obey the law -
ambitious argument
● weaker sense of legitimacy: government worth having, achieves important goods
● ambiguity - trying to show value of D system independent of L
● O is not taking further step of saying that you are morally bound to obey the laws
DIRECT DEMOCRACY
● different institutional ways to realise BD; direct Athenian D not possible today
● O puts high emphasis on civic education, genuine participation
Chapter 2
CLASSICAL ATHENS
● historical example of BD, shows that BD is possible + sustainable
● Q1: Was this really a D?
● Q2: How is this relevant to us in different circumstances of modernity?
MAJORITY TYRANNY
● picture given by critics of D - majority tyranny of the poor (populism)
● Plato - for technocracy as solution
● Aristoteles - form of government with mass participation (not D) - polity as an
answer (constitutional government, like D but with constraints)
● O argues that proper understanding of Athenian D is more like polity of Aristotle, D is
not an arbitrary majority rule
● mature understanding of D - constraints against majority (constitutional limits made
by people and enforced by them, decrees must conform with laws)
● within Assembly, experts could speak (not given equal weight so could de facto
become non-democratic)
● knowledge ≠ expertise
● A Sen: there has never been a famine in a D - knowledge about where food is
needed cannot be passed on in a non-D
Q1: WAS THIS REALLY A DEMOCRACY
● only citizens can participate, not women, foreigners, slaves
○ O will provide for this in Demopolis
