Democratic Law (The Berkeley Tanner Lectures)

About this book

In this book based on her 2017 Berkeley Tanner Lectures Seana Valentine Shiffrin offers an original deontological account of democracy law and their interrelation. Her central thesis is that democracy and democratic law have intrinsically valuable interconnected communicative functions. Democracy and democratic law together allow us to fulfill our fundamental duties to convey to each another messages of equal respect by fashioning the sorts of public joint commitments to act that a sincere message of equal respect requires. Law and democracy are essential to each other: the aspirations of democracy cannot be realized except through a legal system and conversely law can fulfill its primary function only in a democratic context. After defending these theses Shiffrin explores two doctrinal examples to illustrate how a communicative conception of democratic law would yield concrete implications. First articulating the special democratic character of judicially articulated common law she resists instrumental outcome-oriented conceptions of law and defends the essential importance of the common law duty of good faith in contracts. Second appealing to the need for law to articulate a coherent set of moral commitments she criticizes the U.S. Supreme Courts approach to constitutional balancing. In a set of commentaries Niko Kolodny Richard Brooks and Anna Stilz offer illuminating and sometimes provocative discussion of both the philosophical and the legal aspects of Shiffrins discussion. Shiffrins responses expand upon themes concerning legal compliance commitments communication dissent political participation and the permissible range of state interests.