Situating the Role of Democracy in LPE

Katharine Jackson–

One of LPE’s foundational commitments, as Sanjukta Paul reminds us, is that law constitutes markets – and that, as a result, we are free to constitute them differently. But this simply begs the question: how ought we constitute them? This is where political theory can be useful.

As Sam Bagg points out, many LPE scholars already understand that democracy must have something to do with it. We object to many of our laws because they are undemocratic, reflecting instead the power of entrenched elites. But what would count as democratic is a genus populated by a wide variety of species, from proceduralpopulist (leftright, and ideologically empty), republican (neo– and classical), epistemicagonisticdiscursiverepresentative, and participatory. Each implies different legal and institutional reforms and prioritizes different values. Moreover, if we are committed to some form of constitutionalism, we have to admit that democratic publics cannot shape the law any which way they please.

To find a way though this thicket, it is helpful to note that many of these conceptions of democracy tend to fall into two categories. Each posits a different relationship between democracy, law and justice. For some, law, if it is the outcome of democratic procedures, is inherently just or legitimate. Others value democracy instrumentally, useful as a reliable means to achieve otherwise desirable ends. Sometimes those ends include just laws. Sometimes they are more modest but no less important: anti-oligarchystability, peace.

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