BCL Law Notes Constitutional Theory Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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5. Representation
Benefits of Representative democracy <> sole legislator, judge direct democracy
Ekins — v sole legislator
Representative assembly v sole legislator
Benefits of assembly over sole legislator
less likely than a prince to be a tyrant = exercise power arbitrarily / for private interests
open to popular participation
in particular if larger numbers – although Waldron says that immaterial in comparison to population
more likely to legislate well
combined intelligence; process
None could be fixed by electing the king
Deliberation & debate constrain
Party politics constrain self-interested legislators
Limits on any one person’s intelligence & information
Negatively – electoral consequences (especially in last term) insufficient restraints
Waldron — v judicial & executive decision-making
Virtues of legislative law-making
Democracy not sufficient
Democracy not sufficient alone to justify preference for legislative lawmaking —
judges and presidents can be elected as well
legislature can equally be unelected (HL, Canada)
Transparency
Legislatures present themselves transparently as making laws, equip themselves with the resources to do so <> courts present themselves as interpreting & applying laws
Important because public should not be under any misapprehension about where law is being made & how society is organised — Rawls
But courts amend in different way — in inter partes litigation to produce fair outcomes in the particular case — change in law effective only insofar as applies to that case, otherwise obiter
Size of legislatures
Aristotle — the many are better judges of the works of music and poets, so they are better at judging good laws
Diversity produces good decision-making — of knowledge & experience
And diversity of interests — not a wholly utilitarian exercise — ethnic minorities, women & men, geographical interest, etc
Benefit may be illusory
Although in Westminster systems, very rarely enacts laws otherwise than by the cabinet; very rarely refuses laws proposed by cabinet
In American systems — often committees as effective holders of legislative power
EG Chinese legislature has nearly 3000 members — but clearly not distributed equally
But still creates at least latent threat that numbers will be used to defeat minority in power if acting tyrannically
Representation — first-best alternative to direct democracy
G Brennan and A Hamlin, Democratic Devices and Desires (Cambridge, 2000), chapter 9
Statement of second-best and first-best arguments for representation
Second-best: economic models designed to increase efficiency in departing from ideal direct democracy; First-best: because of rational ignorance of citizen & tendency to vote expressively, representative democracy functions better
Representative assembly v direct democracy
Impractical to meet & make decisions with whole polity
Small assembly more likely to promote consistent, principled voting
Electorate doesn’t make decisions for cohesive reasons – can’t give or respond to reasons or deliberate
Same problem with parliamentary intention – Project Blue Sky
Often legislation the subject of compromises or deals
Assumes that (unified) reasons are an essential part of democracy – even judges give different reasons for the same conclusion – cf. USA where reason-based majorities
Disconnect between reasons for choosing representatives & reasons for representatives’ actions – not fatal?
Benefits of representative democracy
Introduction of mediating assembly between citizens & decisions
James Madison on representation v direct democracy
Good – refines & enlarges public views by passing through representatives – ideals of patriotism & justice make laws more just
Bad – representatives by corruption / prejudice / human fallibility distort will of people
BUT tension ignores possibility that will of people in itself can be bad in certain circumstances
Within Aristotle’s mixed government, focus on democracy only
Goal –
Political agents induced to act in interests of principals (rather than in accordance with private interests)
Some quality of either
agents (intelligence/dedication/patriotism) or
system (efficiency)
or both that makes more effective than direct democracy
Second-best to direct democracy
Rousseau —
“will does not admit of representation”
Representative democracy as “slavery”
BUT wrote in 18th c England, before rise of rep dem in fuller forms
Direct democracy ideal but too costly – representation achieves reasonable approximation of will of people at a lower cost
Law & economics scale – optimising efficiency – (graph)
Costs of making decisions highest when no representation (ie direct democracy) – decrease as number in assembly reduces
Cost of maintaining agency zero at direct democracy – increases as size of representative assembly reduces
Posits that ‘optimal’ level is in the middle
Economics model presumes that each increases/decreases exponentially
If increases/decreases linearly, then there is no optimal point from an economic point of view – clearly there is an ideological perspective to this
Why shouldn’t it decrease in a linear fashion? Would expect that cost of making decision with 10 people is twice as expensive as making decision with 5? Costs of ensuring proper agency with 10 people is half as much as ensuring agency with 5?
Other variables
Structure of assembly & method of election
Statistical sampling model
Representative body as a statistical sample = views of sample likely to represent views of whole so long as sample sufficiently large
Method of selection – would suggest random rather than election
If anything – presumes proportionate representation?
Does not operate on principle-agent conception of democratic representation – representatives assumed to act on self-interest
Election also costly & undermines economic argument...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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