A Puzzle about Legal Systems and Democratic Theory

Barbara Levenbook (North Carolina State University)

I raise an issue that, to my knowledge, has not been dealt with in the democratic theory literature, suggest that it produces a puzzle for democratic theory, and explore some ways of solving that puzzle.  The puzzle arises because legal systems are systems – that is, there are systematic connections between laws, not only up and down a hierarchy of more and less basic laws (or constitutive laws and other sorts), but horizontally among laws of the same type.  My puzzle arises because of two aspects of a continuing legal system:  diachronicity and systematicity. 

Individual statutes produced by a legislature do not always operate in isolation from other statutes (and other sorts of laws) in their legal content.   It is not uncommon that a statute is understood, interpreted, and applied by officials, including judges, as if it is modified by an earlier statute.  Provided that the earlier statute has not been repealed by whatever formal process is used in the local jurisdiction and has not expired through a “sunset provision,” such a process is regarded by those trained in the local law regard as entirely appropriate.  I see no reason to doubt their view.

So older statutes can and sometimes do influence the legal content of newer statutes, altering and modifying them in a way not apparent by examination of the newer statute.  This is the systematicity part of the equation.

I suggest we understand democracy to be at a very abstract level some form of collective decision-making based on some form of political equality.  If collective decision-making along democratic lines has been properly institutionalized through (among other things) the legislature, and the statutes were produced in the way designated as proper, it is fairly straightforward that the collective – the one that exists now -- can be said to have made the decision in favor of the terms of the new statutory directive.  But it isn’t straightforward – indeed, it is initially puzzling – how this collective, the people, can be said to have made or to continue to make the decision in favor of the restrictions, expansions or other modifications imposed by the elderly statute.  I will refer to this as the democratic problem of systematicity.  This paper is devoted to demonstrating that it really is a problem, and to examining and presenting solutions to it.

The talk is followed by a reception at the Department of Philosophy.