One of the productive manners by which democratic theorists respond to the complexity of modern political institutions is by exploring different ways to conceptualize the meaning of the democratic demos (Cohen 1999; Gould 2006; Williams 2009). In this article I focus on one such reconceptualization: the claim that the demos should include all those who are affected by a decision. The all-affected principle states that “all those affected by a political decision ought, directly or indirectly, to have a say in its making,” and it is commonly contrasted with the all-subjected principle that states that “all persons subject to rule should have a democratic voice at their disposal” (Näsström 2011: 117, 119; Christiano 2006; Dahl 1990; Fraser 2010; Goodin 2007; Owen 2012: 131; Saunders 2011; Shapiro 1999; Song 2012: 37–39). There is now a considerable debate in the literature about whether the all-affected principle can serve as what Sofia Näsström (2011: 117) describes as a “people-making” principle.
My goal in this article is to propose a way to shift the terms of this debate. To do so I build upon James Bohman’s (2007: vii) claim that we need to understand democracy not as a rule by a people, a single demos, but as a rule by multiple peoples, or “dêmoi.” This means that the properties that make democracy legitimate take place not in the context of the relationship among members of a single self-governing community but in the diffused and overlapping interactions between different dêmoi. Thus, we need to understand democracy as taking place in the dynamic interaction among different forms of representing voices of peoples. The underlying claim is that a conception of democracy that can fit our globalized world needs to make self-governance less central to our understanding of democracy and to recognize the centrality of communication and reflexivity for democracy. This does not mean that the ideas of self-governance and the corresponding idea of a collective will are no longer important but only that we need to find ways to examine self-governance in the broader contexts of a democratic system. Bohman (2007: 84) uses the notion dêmoi to conceptualize the idea of a “distributive public sphere” such as the one created by the Internet. However, I believe that the view of democracy as a rule by peoples can also be useful for reevaluating the question of whether the all-affected interests principle can be people-making. The shift from a demos to dêmoi allows us to think about people-making principles instead of being forced to choose a single principle (Whitt 2014), and therefore it allows us to conceptualize more diffused and less stable forms of peoplehood.
In what follows I do not focus on the question of whether the all-affected principle can serve as a people-making principle but rather on how it can do this. To do so, I examine democracy as system where peoples who are bound together by being subjected to a system of rules interact with peoples who are bound together by being affected by a decision. My goal is to examine the properties of these interactions.
But how should we study these interactions? I present the crux of the argument in the fourth section, where I propose a typology of three ideal types of interactions. I develop this typology by looking at actual administrative and legal procedures, such as negotiated rule making, public hearings, and institutionalized lobbying, that are designed to allow effect-based voice in processes of governance. In scholarship on public administration and administrative law these procedures are often interpreted through the lenses of a demos that includes those who are subjected to a system of rules. Through such lenses the rights of those with affected interests to participate in governing processes qua affected interests are administrative or legal rights, not democratic rights (Abizadeh 2012: 878; Owen 2012: 138), and a common concern is that these private or special interests will distort the common interest. I interpret these procedures from a different perspective. I see them as imposing a modus vivendi on the relationship between two peoples that cannot be fully acceptable to either side. This modus vivendi shapes the terms under which both peoples come to understand and communicate their interests. It is important to emphasize that I am not interested in studying these administrative procedures as such; rather, I study them in order to abstract the properties of the interactions between these two kinds of peoples.
Effects and Interests
As I suggested in the introduction, what I propose to do in this article is examine the kinds of interactions that can exist between dêmoi that are constituted by the all-subjected principle and those that are constituted by the all-affected principle. To be able to do so, I examine in this section the bonds that tie people together in each kind of demos.
In democratic theory demos functions as a second-order concept that explains and justifies the underlying logic of practices of inclusion and exclusion in governance processes. Historically, many such justifications were made by presuming a prepolitical understanding of a demos based on a primordial bond among its members. For the most part, democratic theory has now moved away from this way of thinking about the demos. Instead, it focuses on examining the normative properties of the bonds that tie people together into what Melissa Williams (2009: 43) describes as “communities of shared fate.” Thus, for the purpose of the following discussion the term “demos” refers to a group of people who are connected by a perception of a shared fate and who take part in shaping this shared fate through established institutions. We can speak about a democratic demos when these institutions treat people as equal and when the procedures through which the shared fate is articulated are themselves subject to reflection and change.
But what kinds of bonds of shared fate should be people-making? That is, what kinds of bonds can justify practices of inclusion and exclusion? The all-subjected principle and the all-affected principle are based on two different understandings of the meaning of sharing a fate. For the all-affected principle, a shared fate has to be understood by the objective properties of the situation in which people find themselves. If the purpose of social institutions is to respond to a shared problem, the collectivity needs to include all of those affected by the problem (Shapiro 1999: 38). In this view “other methods of constituting the demos, on the basis of territoriality, nationality, history, or whatever” are approximations for a web of “interlinked-interests” that delimit a group of people who face the same set of problems (Goodin 2007: 49; also see Williams 2009: 45).
For the all-subjected principle, “what determines the boundaries of a ‘community of fate’ is not the forces people are subjected to, but rather how they respond to those forces, and, in particular, what sorts of collectivities they identify with when responding to those forces” (Kymlicka 2001: 319–320; also cited in List and Koenig-Archibugi 2010: 83). In this perspective the very notion of “interlinked interests” is somewhat misleading, as it overlooks the social dimensions of the processes by which the understanding of one’s own interests is constructed (Mathiowetz 2008). We should not assume that people have objective interests that just sometimes happen to be interlinked. The way that the people choose to interlink shapes how they understand their own interests. In this view what makes members of a demos share a fate is that they agree to form their interests in ways that affirm a commitment to living together.
For such people the benchmark for the evaluation of claims for inclusion in democratic processes is an understanding of political association as a system of ongoing social relations that distributes burdens and benefits across members and over time. This starting point is systemic in the sense that it understands each particular decision and the effects it generates not as discrete events but rather in the context of a system of social cooperation. A decision can reallocate resources; correct for a past mis-distribution; be part of a compromise, a warning, a threat, a retribution; and so forth. Because the meaning and import of each decision is always part of a broader context, it is incorrect to say that a decision affects one group more than other groups. A decision can improve the conditions of one group but only as partial mitigation of other decisions that worsened the group’s overall position or that it harmed the other group only because a different entity refused to take some action that could have mitigated these effects. For this reason a decision can be viewed as the cause of the effects it generates in only a very limited way (Beckman 2009: 44).
The view of the democratic demos as entailing a long-term commitment to living together captures the conventional meaning of the term, which corresponds to the manner in which political space is organized in our Westphalian order. Yet the normative strength of this understanding of the demos depends on the extent to which the systemic point of view indeed offers a legitimate distribution of burdens and benefits across members and over time. That is, if I am a member of a political association where decisions are the outcome of a legitimate process, then there is a reasonable expectation that I will interpret decisions that affect me negatively in the broader context of social cooperation. However, if I live in a political association where decisions are the product of a corrupt process, there is no reason for me to believe that my interests as a member of the association are more important than my effect-based interests. Furthermore, if I am affected by a decision of a political association where I am not a member, there is no reason for me to prioritize their balancing of their costs and benefits, be it perceived by them as legitimate or not, over my own effect-based interests.
Following the definition of a demos that I proposed at the beginning of this section, to the extent that the various effects of a decision bind together a group of people with a perception of a shared fate and to the extent that they take part in shaping this shared fate through established institutions and procedures, they should be understood as part of a demos. The key to thinking about such a group of people as a demos is not to try to conceptualize it as analogous to the conventional meaning of the demos.
First, this kind of demos is constituted by a specific decision or occurrence, either one that has already been made or a proposed one. The decision creates three groups: those who benefit from the decision, those who lose from it, and those who are not affected. Everything else being equal, these effects generate three kinds of interests—support for the decision, opposition to it, or indifference. Here, the decision or occurrence at stake is serving as both epistemological and normative benchmarks. It is the cause against which the effects are evaluated and the measure against which winners and losers are declared. These effect-based interests are tied to specific roles and are, by their very nature, proportional and directional. One can be more or less affected and be affected in a negative or positive way (Brighouse and Fleurbaey 2010; Song 2012: 49–50).
Second, effect-based interests are by their very nature partial and more or less ad hoc. Therefore, such a demos cannot be understood as sustaining comprehensive political institutions that balance the costs and benefits of social cooperation across issues and over time. This is not to say that there are no stable institutions that represent affected interests, such as those that mediate the interests who live along a river or represent people who belong to the global south; nonetheless, these institutions manage or represent only one aspect of people’s lives and are not intended to be comprehensive. Institutions that give voice to affected interests must be at least partially dependent on institutions that have a comprehensive scope. For this reason I will use the label “strong demos” to describe people who are bound together by a long-term commitment to living together and “weak demos” to describe a people who simply share a fate of being affected by a decision.
But what is the scope of the membership in a weak demos? Who gets to define which effects count and how much? What are the boundaries of this demos? Just as in the case of a strong demos, we cannot assume that there are natural or uncontested ways to fix the boundaries of the demos. The scope of inclusion in the demos of the all-affected interests may be subject to contestation. For this reason it is important to have the tools that will allow us to reflect on how these boundaries are drawn (Williams 2009: 41; compare Abizadeh 2012 for the importance of reflection about the boundaries of strong dêmoi). Furthermore, in both cases the actual way in which the boundaries are drawn ends up shaping the way the members of the demos come to understand their own interests. The boundaries of a weak demos can be drawn in ways that exclude or marginalize some of those who are affected. It can also be drawn in ways that give prominence to some types of effects and exclude or marginalize others.
How Strong and Weak Dêmoi Interact
The contention that motivates the argument of this article is that we need to find a place for affected interests in our understanding of democratic legitimacy, but we need to do so while remaining cognizant that “effects” and “affected interests” are not brute facts. We need to dispel ourselves of models that assume some form of a metaphorical table where representatives of a strong demos with clearly formed collective will engage with representatives of affected interests that are independently formed. Instead, we need to examine the institutional settings in which the interactions between the two dêmoi take place. These institutional settings constitute, at least in part, which groups will come to identify and experience themselves as being affected and how strong dêmoi come to formulate what they perceive as their collective will.
It is therefore useful to understand the institutions that mediate these relationships as imposing certain modi vivendi on the relationships between strong and weak dêmoi. In what follows I try to identify the different types of modi vivendi. The important point is that these modi vivendi constitute both the strong and the weak dêmoi, albeit in different ways. As such, the relevant question for each type of modus vivendi is not whether the terms of the agreement can be acceptable—they cannot be acceptable to both kinds of dêmoi because they have different understandings of the criterion for acceptability. The reason a strong demos can give is that its members followed a process that they deem legitimate and made a decision that is good for them. This reasoning cannot be acceptable to those who are affected (qua being affected). In the same way the reasons that are the raison d’êtra of the affected—“we are affected by the decision”—is not acceptable to the strong demos.
In this section I propose and develop a conceptual toolkit that can help examine how institutions shape the interactions between weak and strong dêmoi. In the next section I will use this conceptual toolkit to examine the democratic properties of different institutional settings were these interactions can take place.
To understand the interactions between a strong and a weak demos we need to focus on two properties of these interactions. First, these interactions can take place before or during the process in which a strong demos comes to identify its interest. They are not interactions between corporate agents that have fully formed an understanding of their own interests but rather between agents that are in the process of doing so. Second, they are interactions between agents who understand the meaning of interests and of the cause-effect relationship in different ways. I will now examine each in turn.
The weak demos of affected interests can have an institutional embodiment at different stages of a decision-making process. The first and perhaps most significant location where affected interests can participate in the decision-making process is the stage of setting the agenda for the decision-making process framing the issue at stake. Agenda setting refers to the choice of which issues are presented for a discussion, and possible decision and framing refers to the setting of the terms through which issues will be discussed (the same problem can be discussed as an economic problem or as a national security problem; see Dryzek 2001). The second location for participation of affected interests is when and where different options are weighed and evaluating reasons for and against specific alternatives are presented. Third, affected interests can have a role in the decision making itself; for example, they can be allowed to have a vote or to be part of a consensus or they can be permitted to challenge a decision that has already been made.
The reason the stage where the interaction takes place matters is that as we move further into the stages of decision making, the scope of what counts as a valid reason narrows. Recall that the two dêmoi enter into the interaction with different starting points. Members of the weak demos know their interest (qua being affected), whereas those of the strong demos are always in a process of formulating their interest. This means that affected interests, or at least those who can articulate their interests as such, are more powerful at the earlier stages of interaction when the interests of the strong demos are still inchoate. These are the stages where the various options are formulated and discussed and, as a result, certain people or groups become potentially affected. In these stages certain groups can be disempowered because the process of agenda setting prevents them from becoming affected by a decision in the first place.
In addition to the timing of the interaction we also need to examine how institutions shape the exchange of reasons. The process of deliberation has both procedural and epistemic dimensions. On the one hand, the outcome of a process of democratic deliberation is considered legitimate because it is the outcome of a procedure that allows for the mutual exchange of reasons. On the other, in itself the fairness of the procedure provides only a weak conception of legitimacy. The legitimacy of democratic procedures depends on the quality of this exchange of reasons and the way relevant information is processed. The unique feature of democratic deliberations is that the two dimensions are interwoven. The question of what is considered good reasons is in part—but only in part—dependent on the way the issue is framed, but this framing is subject to reflection in a deliberative process.
Affected interests play a simultaneous role in the procedural and epistemic dimensions of deliberation. In the epistemic dimension their role can be described as cognitive subsidy.1 Democratic deliberations require a process of identifying the relevant background information. In many cases affected interests have easier or even exclusive access to this background information because they have relevant expertise or experiences. If we assume that the relevant knowledge is objective (an assumption I will qualify momentarily), then affected interests can be understood as providing a cognitive subsidy for the process of identifying the relevant information. Farmers can provide relevant information when discussing agricultural policies, and physicians can provide relevant information when discussing public health. To be sure, the cognitive subsidy that affected interests can provide is not procedurally neutral; it prioritizes those facts that they choose to bring and their understanding of the situation. We therefore need to examine the manner by which different institutions manage the relationship between the cognitive subsidy provided by affected interests and the normative implications of their participation.
The Institutions of the All-Affected
I suggest classifying the modi vivendi between strong and weak dêmoi into three ideal types: delegation, standing, and pure subsidy. In relationship of delegation the strong demos delegates the decision-making power in a certain domain to affected interests provided that they reach agreement through consensus. In standing, affected interests and only affected interests are allowed to challenge decisions already been made. Finally, the ideal type of subsidy (or cognitive subsidy) refers to a large group of institutional arrangements in which affected interests take part in the process in which a strong demos comes to identify its own interest.
In relations of “delegation” a strong demos delegates the decision-making authority to a weak demos. One example of an institution of this type is “negotiated rulemaking,” a process of decision making that allows interested parties to reach an agreement by consensus. The US federal law that enables this process also explains the conditions in which this delegation of power is permissible (Negotiated Rulemaking Act §563). These conditions can be viewed as setting the terms of the interaction between the strong and the weak dêmoi:
- (a) Determination of Need by the Agency: An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule, if the head of the agency determines that the use of the negotiated rulemaking procedure is in the public interest. In making such a determination, the head of the agency shall consider whether—
- (1) there is a need for a rule;
- (2) there are a limited number of identifiable interests that will be significantly affected by the rule;
- (3) there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who—
- (A) can adequately represent the interests identified under paragraph (2); and
- (B) are willing to negotiate in good faith to reach a consensus on the proposed rule;
- (4) there is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time;
Another example of an institution that appears to be following the same logic is collaborative watershed management, a process that “involves face-to-face negotiations among a variety of stakeholders with relatively consensual decision rules” (Sabatier 2005: 3; for application to democratic theory see Nine 2014).
Let us look closer at the properties of the modus vivendi shaped by this ideal type. First, of the three ideal types it is the one closest to the model of the legislature. It tries to include all affected interests in bringing all parties to a table and asking them to come up with a rule. However, while generally legislatures assume that all parties are equal, the property of being affected is by its very nature proportional. Thus, any model of delegation needs to address the question of proportionality. Negotiated rule making addresses this issue by expecting the parties to reach a consensus, a decision method that gives more power to those who benefit from the status quo (as their cost of a veto is the lowest). Robert E. Goodin (2007: 64) deals with this challenge with the radical but admittedly impractical proposal that all decision-making bodies will be opened to everyone. Second, the ideal type of delegation presupposes that the issue can be compartmentalized. It is based on the assumption that the issue area is a closed system with a limited number of players among whom there are no disputes about the boundaries of the problem.
In this relationship affected interests are expected to bear the full cognitive cost of deliberation, but in return they—collectively—receive the normative power of making a binding decision. Yet this form of relationship cedes the least normative power to affected interests because they hold no power related to the very framing of the issue area. The reason is that the starting point is the assumption that the scope of affected interests is limited. In this sense delegation can be compared to a situation in which a sovereign state cedes some collective autonomy to a religious group to manage its own internal affairs.
The second ideal type is that of allowing “standing” to affected interests. In these relationships affected interests and only affected interests are allowed standing in challenging a decision that has already been made (Goodin 2007: 66 alludes to litigation as a way of enfrenchising affected interests).
One example of an institution that allows standing is the World Bank Inspection Panel. The panel “provides a forum for people who believe that they may be adversely affected by Bank-financed operation.” It “determines whether the Bank is complying with its own policies and procedures,” and its findings are presented to board of directors. Although there are cases of internal and political manipulations of the process, on a number of occasions the process led to the halting of planned projects of the bank (Clark 1999). The two provisions that are relevant for our discussion are that (1) claimants should be an “affected party (defined as two or more individuals who are directly affected by the alleged violations” and (2) they allege that the “Bank has violated its policies and procedures, and they have or are likely to suffer material adverse effects as a result of those policy.”
To understand the logic of this relationship, we need to examine some of the legal scholarship on the notion of standing. The assumption is that the mere possibility that a wrong exists is not sufficient to activate the review process. The witnessing of a wrong does not provide a sufficient ground for initiating legal action (so “busybodies” cannot act as a “private attorney general.”2) The additional factor that is needed is to have someone directly affected step forward and initiate the process. In the legal terminology standing requires “injury in fact” or direct “legal interest.” The relevant question for our purpose is why the possible presence of a wrong or a procedural violation is not enough to trigger a review? Why can’t the court decide that the trigger for a judicial intervention would be a significant-enough wrong? What is the reason for allowing the power to initiate a review process only to those who have affected interests?
The doctrine of standing is complicated, and there are several reasons for limiting standing to those affected. My interest here is in interpreting the doctrine of standing from a democratic perspective—that is, to look at how the giving of this unique power only to affected interests can be seen as part of a process of voice formation. To do so we need to recall that decision-making processes can involve significant cognitive costs. They can be complex and require the weighing and balancing of many factors, often in an environment of uncertainty. The fact that a decision wronged someone is therefore not necessarily a sufficient reason to encumber the costs of reopening the process of decision making. It might be the case that another decision will create a wrong that is more significant than the original one. Thus, decisions about what is the cause of a particular wrong and what are the effects of a particular remedy require a systemic overview of these cause and effects as part of a broader system.
Therefore, the presence of actual people who are affected allows the court (or any other panel) to contextualize the question in concrete terms through the actual experiences of those affected.3 When the court decides to take over a case they are actually turning themselves into a legislative body (if they determine that a wrong indeed occurred). What the affected interests are providing in this relationship is the cognitive labor involved in investigating and rectifying the alleged wrong.
On one hand, the power that affected interests are given in this kind of relationship is limited in that they are allowed to have a part in the process only after a decision has been made. On the other, this ideal type of relationship gives affected interests significant power, as they can have the power to overturn or modify decisions made by a deliberative body that balances the cost and benefits of social relationship over time and across people. Furthermore, the strong demos have an incentive to consider the interests of affected interests prior to making a decision in order to avoid the need to litigate. If we compared delegation to the provision of limited autonomy, then standing can be compared to a temporary refuge. Affected interests are not only temporarily allowed to be part of the demos, but also their cognitive perspective or experiences become central for evaluating a particular decision or a rule.
The third ideal type can be described as one of “pure cognitive subsidy.” Here, affected interests are allowed a role in the process of deliberation. Unlike the ideal types of delegation and standing, in relations of pure subsidy affected interests are allowed to have a voice in shaping the framing and agenda of the conversation. Examples of institutions that allow pure subsidy include public hearings, lobbying (as an institutionalized practice), amicus curie, and environmental and social impact surveys. What these institutions share is that they provide an institutional space for affected interests to have a voice in the process of decision making. Thus, the temporary refuge or limited autonomy provided by the previous ideal types maintains clear boundaries between the two dêmoi. In pure subsidy the boundaries between them become porous.
However, as we have seen, allowing affected interests to subsidize the cognitive cost of deliberation also gives them power to shape the terrain in which the deliberations take place. In this sense the terms of the modus vivendi this ideal imposes are the most problematic from the perspective of strong dêmoi. Two additional assumptions regarding the nature of the intentions are often used to make this modus vivendi palatable from the perspective of strong dêmoi.
- 1. The assumption of equal opportunity: some institutions, such as public hearing or notice and comment rulemaking, allow anyone who is interested (thus having affected interest) to take advantage of the institutional space. The expectation is that biases created by the cognitive subsidy of one group of affected interests can be corrected by the subsidies of other affected interests, thus leveling the playing field.
- 2. The assumption of friendship (such as in amicus curie): The assumption is that affected interests have the same interest as the deliberative body and, therefore, their undertaking of the cognitive labor does not constitute a bias. Alternatively, it can be argued that the strong demos (or the court, in case of amicus curie) still has the discretion and capability to reject affected interests’ opinion.
The assumption of friendship is also at the core of certain administrative and scientific processes that bear the cost of cognitive labor on behalf of the affected interests. Social, economic, and environmental impact assessments are designed to identify the full range of effects of certain proposed projects or plans. In many cases it is not always clear what would be the long-term and cumulative effects of a certain decision. Those who initiate the impact assessment take upon themselves the cognitive cost of exploring the possible effects. The legitimacy of such processes depends on the assumption of friendship. Business corporations also conduct similar processes of stakeholders’ analysis; however, the intention of these processes is to anticipate obstacles to the business and not necessarily to advance the interests of the stakeholders (Brugha 2000; Goodpaster 1991).
In the introduction I suggested that the question I am trying to answer is not whether the all-affected principle can be people constituting but rather how it can be. As a way of conclusion, let me summarize the answer this article provides.
However, to answer the how question, it would first be helpful to review the terms of the problem and the motivation for this argument. This article partakes in a broader attempt to articulate the meaning of a transnational democracy. What characterizes the transnational conception of democracy is that it refuses to limit our thinking about democracy to processes that take place within the scope of self-governing units. Thus, those who focus on the meaning of democracy in a transnational environment reject the idea that the only way to extend democracy beyond the nation-state would be to move toward a cosmopolitan model of a worldwide democracy. In particular the idea that democratic institutions should allow voice to all-affected interests invites us to imagine ways to redesign political institutions that depart from the Westphalian model.
This article discusses the normative justification of practices of inclusion and exclusion within such a transnational conception of democracy. Within the Westphalian model some exclusions are part of the foundational makeup of democratic entities. In contrast, cosmopolitans do not recognize any legitimate form of democratic exclusion. Similarly, Goodin’s interpretation of the all-affected principle does not allow any room for exclusion. For him the implication of the principle is that everyone can participate in any meeting (Goodin 2007: 64) The normative vision I am presenting here follows Arash Abizadeh (2012) in claiming that exclusions are not in themselves illegitimate as long as the practices of exclusions are themselves subjected to democratic reflection. My goal is not to defend any particular way of determining who can be included but rather to offer a framework for such reflection that would allow principles of inclusion and exclusion that are effect based.
The challenge for effect-based principles of inclusion and exclusion is one of demarcation. As I suggested in the second section, when it comes to social issues, cause-and-effect relationships are not brute facts but instead dependent on the way we parse past events and assign responsibility. Upon reflection the answer to the question, “Who is affected and how much,” turns out to be vexing. The way I propose to respond to this challenge and the essence of my answer to the how question is that in order to make sense of practices of inclusion and exclusion we cannot see them as stand-alone primordial ways to divide people but rather in interaction with each other. I take this to be the core insight in James Bohman’s (2007) claim that democracy should be viewed as rule by dêmoi.
It is important to see that practices of inclusion and exclusion of what I called strong dêmoi are also context dependent. People do not sort themselves into monadic peoples; instead, the particulars of how strong dêmoi include and exclude people depend on their history, and they exist in some modus vivendi with other practices (e.g., in some cases dual citizens can vote in elections but cannot hold a public office). The way weak dêmoi organize and give voice to affected intents is also context dependent. A public hearing is not more or less authentic way of giving voice to affected interests than delegating the decision to affected interests. Each practice includes certain interests and excludes others. The normative assessment of these practices depends on the particular context and the extent to which, given the particular configuration, these practices give voice to all those affected.
It is possible, of course—and in fact quite conventional—to identify the democratic demos with the ideas of collective will and popular sovereignty. In my view insisting on such identification would be wrong because it makes democratic theory less prepared to heed the challenges of a post-Westphalian transnational order. As more social interactions take place across the boundaries of strong dêmoi, a democratic theory that identifies itself with their collective will is bound to become more marginal. Democratic theory needs to find a way to conceptualize the voice of affected interests. At the same time, I think it is equally wrong for democratic theory to give up the ideas of collective will and popular sovereignty altogether. It is therefore important to develop new frameworks that take full account of the inherent complexity of democratic voice making in transnational environments.
I want to thank Archon Fung, Giunia Gatta, Jonathan Havercroft, Michael Illuzzi, Yael Ishai, Alisa Kessel, Sean Morgan, Daniela Mansbach, Doron Navot, Tomer Perry, and Abraham Singer for very helpful comments on various drafts of the manuscript.
My description of this relationship as subsidy is based on Hall and Deardorff’s description of lobbying as a form of legislative subsidy. They suggest a framework in which “lobbying is primarily a form of legislative subsidy—a matching grant of costly policy information, political intelligence, and labor to the enterprises of strategically selected legislators. The proximate objective of this strategy is not to change legislators’ minds but to assist natural allies in achieving their own, coincident objectives” (Hall and Deardorff 2006: 69). Hall and Deardroff offer this as a descriptive/explanatory account that explains the behavior of lobbyists and legislators. My interest in what follows is to look at the normative assumptions that underlie this type of relationship. Furthermore, my interest is not in the relationship between lobbyists and a particular legislature but in the relationship between lobbyists or other types of affected interests and legislative or deliberative bodies.
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