Legal Theory Lexicon: Democracy
By Lawrence B. Solum
Introduction
The concept of democrary is clearly one of the most important ideas in normative legal theory in general and normative constitutional theory in particular. Alexander Bickel’s discussion of a “counter-majoritarian difficulty” is just one of many places where legal arguments rely on the concept of democracy.
This Lexicon entry explores the concept of democracy from a variety of perspectives. An important starting point for the discussion is the observation that there are fundamental disagreements about what democracy is and how a democratic government ought to operate. One way to think about those disagreements is to invoke the concept-conception distinction (explored in Legal Theory Lexicon 028: Concepts and Conceptions). We use the word “democracy” to refer to a concept, but disagree about the how that concept should be understood. To avoid confusion, we can discuss different and competing conceptions of democracy.
As always, this Lexicon entry is aimed at law students (especially first year law students) with an interest in legal theory.
Democratic Legitimacy
What role do conceptions of democracy play in legal theory? One important role is captured by the idea of “democratic legitimacy.” One can argue that a legal norm (e.g., a legal rule created by a statute) is more legitimate if it is created via process with democratic input and less legitimate if it comes into being via a process that exclude citizens from having a say. This way of thinking about democratic legitimacy assumes that it is a scalar (matter of degree) and not a binary (either present or absent). Thus, statutes enacted by Congress have a greater degree of democratic legitimacy than decisions of the United States Supreme Court. Members of Congress are elected, whereas Supreme Court Justices are appointed for life terms. But even the Supreme Court has a degree of democratic legitimacy–because the Justices are nominated by an elected President and confirmed by an elected Senate.
Thick and Thin Conceptions of Democracy
Conceptions of democracy differ with respect to what we can call “thickness.” This idea can be illustrated by contrasting the conception of “majoritarian democracy” with that of “substantive democratic equality.”
Majoritarian Democracy
The majoritarian conception of democracy is familiar. A decision is democratic to the extent that it conforms to the preferences of a majority of citizens. So, a statute enacted by Congress would possess a high degree of democratic legitimacy if a majority of citizens approve of the statute, and would lack democratic legitimacy if it is opposed by the majority.
Substantive Democratic Equality
Although the majoritarian conception of democracy is widely discussed and frequently deployed in political discourse, it can be criticized on the ground that it does not reflect a substantive ideal of democratic equality. Suppose that some group, e.g., women, have the right to vote, but their exercise of that right is frequently impeded by a variety of structural barriers: perhaps, pervasive sexism and patriarchy prevent some women from voting at all and many women unjustly lack the resources to inform themselves about the issues at stake in elections when they do vote. It might be argued that democratic legitimacy requires the substantive equality of women, and hence that democracy requires policies that provide women with resources and rights that would enable them to participate in democratic politics on an equal basis with men.
Thick and Thin
We can use the terms thick and thin to describe an important difference between the majoritarian conception of democracy and the substantive equality conceptions. On the majoritarian conception, majority voting can confer democratic legitimacy: if democratic procedures are followed, then the outcome is legitmate. This account relies on a thin conception of democracy On the substantive equality conception, more is required. Substantive equality involves a thick conception of democracy.
Deliberative Democracy
Another approach to democratic theory deploys the idea of deliberation. The basic idea behind the deliberative conception of democracy is that voting alone is insufficient for a well-functioning democratic society. Instead, full realization of the democratic ideal requires that citizens participate in deliberation that enables them to make decisions on the basis of adequate information and after consideration of opposing views. In other words, democratic legitimacy requires that the preferences of citizens be formed by reasoned deliberation.
Theories of deliberative democracy are complex and there are several different versions of the deliberative conception. Some of the features that are frequently mentioned include: (1) an obligation to provide reasons, (2) a requirement that reasons be based on values that can be shared by reasonable citizens given the pluralism that characterizes modern democratic societies, (3) open-mindedness, a willingness to change one’s mind on the basis of reasons advanced by others, (4) inclusiveness of the process of deliberation such that all reasonable citizens can engage in the deliberative process.
The deliberative conception of democracy is frequently challenged, often on the grounds that it relies on unrealistic assumptions about the way politics actually works. Alternatively, critics might argue that the deliberative conceptions asks too much of citizens, who would be required to spend much or all of their free time to become well informed and then deliberate about even a few of the most important issues facing a democratic society.
Democracy and Normative Constitutional Theory
Conceptions of democracy play an important role in normative constitutional theory. For example, the institution of judicial review of democratically enacted legislation can be challenged on the ground that it is undemocratic and therefore illegitimate. This argument is at the heart of contemporary arguments for the abolition of judicial review and also forms a basis of arguments for term limits for Supreme Court Justices.
The implications of different conceptions of democracy are especially imporant for John Hart Ely’s representation-reinforcement theory, articulated in his famous monograph, Democracy and Distrust. Ely argued that judicial review should only be employed to protect democratic processes. Ely’s version of this theory was based on a majoritarian conception of democracy: Ely famously criticized Roe v. Wade on the ground that the Supreme Court acted illegitimately by going beyond the protection of majoritarian democracy. Some critics of Ely have agreed with Ely that judicial review should be limited to the protection of democracy but argued that the substantive democratic equality conception provides the basis for an argument that Roe v. Wade is justified on democratic grounds: reproductive autonomy, the argument contends, is essential for equal protection by women in democratic politics.
Conclusion
Democracy is a big topic, and this Lexicon entry has only scratched the surface!
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(This Lexicon entry was first created on March 20, 2026.)