The Frontiers of Democracy: The Right to Vote and its Limits

The Frontiers of Democracy The Right to Vote and its Limits

Ludvig Beckman

The Frontiers of Democracy

Also by Ludvig Beckman THE LIBERAL STATE AND THE POLITICS OF VIRTUE VIRTUES OF INDEPENDENCE AND DEPENDENCE OF VIRTUES (co-editor with Emil Uddhammar)

The Frontiers of Democracy The Right to Vote and its Limits Ludvig Beckman Associate Professor, Department of Political Science Stockholm University, Sweden

© Ludvig Beckman 2009 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2009 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–21963–2 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. 10 9 8 7 6 5 4 3 2 1 18 17 16 15 14 13 12 11 10 09 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

For Helena and Amanda

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Contents Preface

ix

1 Introduction: Universal Suffrage on Trial Arguing the franchise The problem of inclusion The practice of exclusion The right to vote and alternative models of democracy

1 6 10 16 19

2

Democracy and Inclusion Defining inclusion The democratic people Are unequal political rights ever justified? Conclusions

23 25 36 52 60

3

Alienated From the Vote: The Case of Non-Citizens Inclusion and membership Territorial jurisdiction and the all affected principle The right of non-resident citizens to vote Temporary visitors and other border cases Conclusions

62 64 71 76 80 88

4

Too Young to Vote? Children’s Suffrage Children and the all affected principle Justification and children Defending the exclusion of children Conclusions

90 93 99 109 119

5

Jailhouse Vote? Felon Disenfranchisement and Democratic Inclusion Felons and the all affected principle Electoral fraud and disenfranchisement The moral authority to vote Conclusions

120 123 128 133 144

6 Disability, Dependence and Democracy Rules of incompetence Two conceptions of independence Political equality and political independence vii

146 148 151 154

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The wider implications of political equality Conclusions

158 165

7 The Vote of Unborn Generations Some preliminary issues Are future people legal subjects? Constitutions and constraints Reasonable representation? Conclusions

167 168 170 174 181 186

8 Conclusion: Reasonable Inclusion and Exclusion The idea of democratic inclusion The idea of reasonable inclusion

188 189 192

Notes

197

References

203

Index

221

Preface The first step towards conceiving this book was taken many years ago when I was invited to write a brief report on the case for voting rights for non-citizens in Sweden. While completing the article it struck me as puzzling that theories of democracy, and the political science literature in general, had so little to say about restrictions on voting rights and the more precise meaning of ‘universal and equal’ suffrage. The topic seemed significant to me, partly because it highlighted what is potentially a fundamental limitation in the democratic character of our political systems and partly because it identified a point of controversy among contemporary theories of democracy. Some of my previous attempts to deal with these issues are listed in the references at the end of this book. However, the present text constitutes an entirely new, reconsidered, and expanded inquiry into the problem of democratic inclusion. The ideas and arguments explored in this book have benefited immensely from the comments received along the way. I am greatly indebted to all of those that have tried to challenge my views, hopefully helping me to identify the weak spots in my analysis. Thanks, first of all, to Ulf Mörkenstam and Jörgen Hermansson for reading and commenting on major parts of the manuscript at a late stage. In addition, I wish to thank the following people for reading and commenting on individual chapters: Gustaf Arrhenius, Karin Borevi, Jacob Elster, Gissur Erlingsson, Eva Erman, Aanund Hylland, Claes Linde, Bo Lindensjö, Mats Lundström, Raino Malnes, Sofia Näsström, Edward Page, Peter Santesson-Wilson, Per Strömblad and Emil Uddhammar. A special thanks for the stimulating discussions offered by all of the members of the Political Theory seminar at the Department of Political Science, Stockholm University and by the members of the Nordic Network in Political Theory. I would also wish to thank Merrick Tabor for checking my spelling and grammar and the Department of Political Science, University of Stockholm for financial support.

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1 Introduction: Universal Suffrage on Trial

A central feature of democratic political systems is the right of its members to elect those empowered to make, change and abolish the laws of the nation. Without the right to vote, there would be no mechanism in large-scale societies for transferring public power between political fractions or, indeed, no representative government at all. More fundamentally, the right to vote is a vehicle for social, economic and political change, as it provides all of the members of a community with a roughly equal opportunity to affect the future direction of society. Through the vote, the people are able to influence the process defining society’s rights, obligations, benefits and sacrifices and how these should be distributed. The right to participate in the decisions of governments has, consequently, been characterised as the ‘right of rights’.1 The proposition that the right to vote – ‘suffrage’ or the ‘franchise’ – is essential in a democratic state assumes not just that voting is of importance but that it should be distributed in a certain way.2 An exclusive or discriminatory distribution of the vote effectively undermines its democratic credentials. The reason is that democracy carries the promise of bestowing political power on everyone; it is the ‘great philosophy of inclusion’ (Taylor, 1998, p. 143). However, the promise of inclusion is not specific as to whom it addresses. Who is to be included in a democratic political system? As a matter of political and legal practice, the answer to this question is comprised of two elements. The first is that the distribution of political rights should not discriminate unfairly between individuals on the basis of irrelevant distinctions. In fact, at the dawn of the twenty-first century, there is a near consensus over the illegitimacy of restrictions on the vote based on income, ethnicity, race or sex. The right to vote without discrimination on the basis of such distinctions is acknowledged in international law (International 1

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Covenant on Civil and Political Rights, Articles 2, 25). The second is that a democracy should provide for the political participation of the people in its entirety. ‘Demos’ is Greek for the people, and in a ‘demo-cracy’ we should, thus, expect that every member of the people is granted the right to vote. This idea is spelled out in the Universal Declaration of Human Rights, holding that ‘everyone has the right to take part in the government of his country’ (1948 Article 21, emphasis added). Taken together, these points suggest that the right to vote is to be distributed on the basis of reasonable criteria and that it is presumed to be inclusive, not exclusive. Moreover, they constitute the implicit premise of the notion of ‘universal suffrage’, which is a fundamental trait of contemporary democratic political systems. Now, it is frequently stated that universal suffrage was achieved long ago and is firmly in place in all democratic nations. In an entry in a prestigious encyclopaedia, the reader is told that ‘nearly all modern governments have provided for universal adult suffrage’ (Encyclopaedia Britannica). And in consulting the views of scholars on democracy, you will find the conclusion that nearly all countries ‘have adopted the rule of universal suffrage’ or ‘provided for universal suffrage’ (Coppedge and Reinicke, 1991, p. 51; Vanhanen, 2003, p. 65). The image conveyed is that the struggle for suffrage rights has now come to an end. As argued by Noberto Bobbio, ‘democratization ... should no longer be to establish who votes’ (Bobbio, 1986, p. 56). This is certainly good news for anyone who believes that denying a person the right to participate in national elections is intolerable in a democratic state and ultimately inconsistent with the very meaning of the word ‘democracy’. The bad news is that the countries in which universal suffrage is reportedly in place continuously enforce a variety of restrictions on who can and who cannot vote, with the effect that not everyone enjoys this right, even in contemporary democracies. As has repeatedly been underscored, ‘no democracy allows all adults to vote’ (Dahl, 1982, p. 97; Katz, 1997, p. 217; Kirshner, 2003, p. 1). People who are not citizens, people with intellectual disabilities or mental illness and people convicted of various crimes are denied the right to participate in elections in most democratic nations. As shown in a recent study, the right to vote is denied to people with demonstrated ‘mental deficiencies’ in more than nine out of ten democracies and to prisoners in almost three-fourths of all democratic countries (Massicotte, Blais and Yoshinaka, 2004, p. 26). Since ‘everyone’ is not an adult, we should appreciate as well that all of the younger members of nations are currently without a voice in putatively democratic

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elections. There is no basis, then, for the contention that ‘everyone’ is in fact entitled to vote in contemporary democracies. Considering the persistence of restrictions on suffrage on this scale, it seems reasonable to conclude that ‘we still have something less than universal suffrage’ (Briffault, 2002, p. 1523; Crewe, 1981, p. 219). Yet, in accepting this, it appears as if an unexpectedly radical conclusion follows. Given that universal suffrage is a necessary precondition for a democratic political system to exist and that universal suffrage means the inclusion of everyone, there is no escape from the conclusion that no existing nation is truly democratic, not even in terms solely of voting rights. How, then, can the exclusion of non-citizens, people with cognitive impairments, children and prisoners be justified? This is the basic question addressed in this book. The issue could, of course, be brushed aside by refusing to accept that universal suffrage is truly necessary in a democracy. This claim will be examined, and ultimately rejected, in Chapter 2. Another way of deflecting the problem would be to question the view that exclusions in terms of the criteria just mentioned is really proof of ‘universal suffrage’ not being in place. Perhaps suffrage that is ‘universal’ should be understood to mean that the vote is widely distributed and yet restricted in certain respects. Consider, for example, a purely formal definition of ‘universal suffrage’ according to which the vote should include everyone ‘not disqualified by the laws of the country’. Such an open-ended definition of ‘universal suffrage’ is in line with the observation that the basic meaning of ‘universal’ simply is ‘all the members of a class’. Though all members of the ‘class’ are to be included in order for a distribution to be ‘universal’ there are no conceptual reasons for precluding the class from being exclusive. This is why formulas such as ‘universal male suffrage’ or ‘universal adult suffrage’ are not strictly speaking incoherent. The property of being ‘universal’ does not, thus, in itself provide information about the class of people to which it applies; the label ‘universal suffrage’ entails no specific claim at all about the inclusiveness of the vote, since all it implies is that no one from among the relevant class of people is excluded. Now, to make this claim is to ignore well entrenched legal and political norms according to which ‘universal suffrage’ means that the vote is distributed with no discrimination related to sex, income, ethnicity or race. ‘Universal suffrage’ is, in other words, regularly understood as inconsistent with certain restrictions on the vote. On the other hand, to accept the established legal and political understanding of universal suffrage is to rule out by mere definition the idea that younger people,

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prisoners, non-citizens and the intellectually disabled should be able to participate in democratic elections. To the extent that there are political systems in which ‘universal suffrage’ is in place but in which members of these groups are excluded from political participation, there is evidently no basis for objections to their exclusion. Reform in the direction of expanding suffrage could then be rejected by pointing out that this contradicts prevailing norms of universal suffrage. It is, therefore, questionable whether the scope of suffrage should be decided by definitional fiat alone – particularly in cases in which the definition merely reflects legal and political practice. A further concern is that the conventional understanding of universal suffrage invites confusing and even mistaken conclusions about current regulation of the vote. That is to say, it is a mistake to assume that contemporary electoral democracies impose no restrictions on the vote simply because suffrage is ‘universal’. This mistake is, in fact, quite pervasive. It is found in statements – by scholars and students of democracy – that ‘de jure restrictions on the right to vote are not found in current democracies’ (Munck and Verkuilen, 2002, p. 11). Likewise, it is no doubt a mistake to conclude that ‘with the exception of few countries, disenfranchisement around the world today tends to be more a matter of degree and of practice than of a legal phenomenon’ (IDEA, 2002, p. 26). If democratic countries continuously enforce exclusions from the vote based on citizenship, age, mental capacity and criminal record, there are obviously ‘legal’ restrictions on the vote ‘in the world today’. A cursory look at legal regulation of the vote is enough to establish that although contemporary democracies profess adherence to universal suffrage, they simultaneously maintain a system of democratic exclusions (in the plural). They are ‘exclusions’ by virtue of the fact that they deny people access to democratic rights. They are ‘democratic’ since they are the outcome of democratic procedures and purportedly fully consistent with ‘democratic’ values. Although what has been said thus far is largely quibbling over terminology, it does raise a more profound substantive issue that cannot be resolved by definitional exercise alone. This is best illustrated by the fact that there is a third variety of statements circulating about the nature of voting rights in contemporary democracies. As noted above, some are content with the observation that universal suffrage is in place everywhere, others assert that there are currently no legal restrictions on the vote at all. A third type of claim is that although restrictions exist, they are ‘marginal’, ‘unimportant’ or ‘insignificant’. Thus, Sidney Verba and his colleagues argue that ‘with relatively insignificant exceptions,

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all adult citizens have the full complement of political rights’ (Verba, Schlozman, Brady, 1995, p. 11, emphasis added). Though this statement cannot be said to be blatantly false, it offers a normative judgement that cannot be accepted unless appropriately justified. All exceptions to a general rule need to be justified, and when no such justification is available, as is the case with restrictions based on sex or ethnicity, the exception should not be allowed. So, in order to evaluate the judgement that remaining exclusions are ‘insignificant’, we need to know whether they are justified. This is, in effect, the essential issue that we have to deal with in order to evaluate the remaining restrictions on suffrage in democratic states. This gives rise to a more abstract set of conceptual and normative questions concerned with the relationship between the right to vote, on the one hand, and the meaning attributed to the term ‘democracy’ and how political rights ought to be justified, on the other. What criteria for inclusion are entailed by a reasonable conception of democracy and justice? In addressing this question, we need to contemplate why most people seem to believe that suffrage restrictions are fully acceptable. The focus of this study is, therefore, on the reasons invoked by law-makers, governments and courts as well as by democratic theorists to justify current policies of exclusions. The focus on ‘reasons’ means that this study will have to be largely theoretical. Reasons for exclusion can only be evaluated by recourse to some standard of acceptability that applies to the regulation of fundamental political institutions in a just and democratic society. In line with an influential view, institutions regulating the exercise of political power are legitimate only when the principles they embody can be expected to be accepted by all reasonable persons. To specify this standard and how it applies to the regulation of the vote is, thus, the major task before us. Framing the problem at hand in terms of acceptable distinctions is, however, not sufficient. The extent to which ‘democracy’ is compromised whenever some people are denied the vote can only be accounted for by reference to an account of what democracy should be taken to mean. Following a ‘minimalist’ conception of democracy, it may be that exclusions are not at all pertinent to the democratic character of a political system. Yet, the conclusion might be different from the standpoint of a ‘maximalist’ approach to the definition of democracy, ascribing more content to the concept. These approaches reflect divergent conceptual strategies, suggesting that the problem of democratic exclusion raises terminological questions as well. A study seeking to evaluate the current state of democratic exclusions inevitably entails balancing different criteria

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for acceptable reasons and various ways of conceptualising the idea of democratic inclusion.

Arguing the franchise At the time when a majority of the adult population was excluded from the franchise, the right to vote became the prize over which intense struggles were waged in our societies. These conflicts were no doubt animated by the conviction that something important was at stake in deciding the scope of suffrage. A basic reason for worrying about democratic exclusions is that people without a political voice are more vulnerable to neglect by public authorities and to the sinister effects of law and public policy. Michael Walzer captures the essence of this concern by pointing out that ‘the denial of citizenship is always the first of a long train of abuses’ (Walzer, 1983, p. 62; also Dahl, 1989, p. 129). People that are denied formalised political mechanisms for echoing their concerns may not be as successful in attracting the attention of legislators, the government and other public authorities. It has been demonstrated that public officials are ‘differentially responsive’ to people on account of their effectiveness in giving voice to their interests (Verba, Schlozman and Brady, 1995, p. 11). Since the voices of people without any right to participate at all are even more difficult to hear, it seems clear that people without the right to vote may end up with a lower level of public services, legal protection and other resources provided by the state. As we shall see, these reasons are not necessarily decisive in arguing the case for the enfranchisement of groups currently excluded. However, they were at the heart of the struggle for universal suffrage at the time when the vote was the privilege of the propertied and wealthy members of the community. This was also the time when suffrage first became a major subject of political reasoning and when theories and principles were brought to bear on the issue of how the scope of the franchise should be delimited. Previously, the ideas of democratic government and of universal suffrage had scarcely been seriously contemplated and rarely understood so as to merit systematic attention and argumentation (Corcoran, 1983, p. 14; Levin 1992, p. 37; Dunn, 2005, p. 71). The need for a more elaborate philosophy of inclusion (or exclusion) emerged as a pressing issue only when calls for ‘universal suffrage’ began to reverberate in the streets. At that point, landowners and the people of wealth mobilised against the ‘masses’, whom they feared would bring instability, expropriation and ultimately the destruction of the entire society. A variety

Introduction: Universal Suffrage on Trial

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of conceptions were introduced in order to demonstrate either the catastrophic implications or the ultimate futility of expanding suffrage (Femia, 2001, p. 4). The common people were referred to as the ‘masses’ and were ridiculed as being incompetent or ‘under age’ (Hirschman, 1991, p. 22). This was phrased more dramatically by the British historian and politician Thomas Macaulay: ‘if you withhold that [universal suffrage], it matters not very much what else you grant. If you grant that, it matters not at all what else you withhold. If you grant that, the country is lost ...’ (quoted in Przeworski, 2007, p. 35). Of course, it might be difficult for contemporary readers to comprehend why more inclusive suffrage should spell the destruction of society. However, a basic tenet of traditional anti-democratic rhetoric is that holdings of private property constitute both a necessary and a sufficient condition for a person’s ability to estimate and act on behalf of the general good of society as a whole. A suffrage of the propertied, hence, guarantees an electorate with the public interest in mind. By contrast, a suffrage of the proletariat equals an electorate unable to understand the common good and blinded by self-interest. Following the most straightforward explication of this view, wealthy and propertied people are simply more well equipped to understand the conditions of social life and superior in terms of political and moral judgement. An intimate connection between property and intelligence was assumed to exist, as is illustrated by Macaulay’s insistence that the choice is really one between rule ‘by numbers’ and rule by ‘property and intelligence’ (quoted in Levin, 1992, p. 65). This is, of course, to introduce controversial assumptions about the relationship between private ownership and good character. However, more importantly for our purposes is that the argument introduces competence as a decisive qualification for political rights. A somewhat different reason for not extending suffrage to the ‘lower strata of society’ originates with the perception that a financial stake in society is what gives a person the right to decide common affairs. Political life was perceived as not much different from a public company in which, quite naturally, only shareholders investing in the business are granted rights of influence. The franchise should, in other words, be limited not primarily in order to secure competent decisions, but in order to guarantee that political participation remained the privilege of the relevant community of interest. A further reason for the exclusiveness of the vote is derived from the notion that property is necessary for independent judgement. The propertied could point at the debilitating effects of dependency on the wages

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granted by employers, the funds kindly permitted by the husband, the charity generously distributed by the community, from which the unenfranchised classes earned their living. In a state of dependency, a person cannot be trusted to form impartial judgements about the common good and, therefore, holdings of private property or wealth should be required of the people entrusted with political authority. Conceived of as arguments against the inclusion of women, workers and the poor, these claims are no longer credible and clearly do not guide the distribution of the vote in contemporary democracies. The notion of property as a necessary requirement for the exercise of political rights was eventually superseded by a more inclusive understanding of suffrage. Sexist, racial and class prejudices that stimulated exclusions in the past were ultimately rejected.3 This is not to say that scholarly attention to traditional anti-democratic rhetoric is fading. The ‘lion’s share’ of contemporary literature on suffrage is concerned with sex and race, even though exclusions from the vote by appeal to these criteria is long gone (Przeworski, 2007, p. 39). The restrictions on the vote that persist in our days are much less studied and, arguably, less well understood. In addition, it should be noted that the arguments employed in relation to contemporary exclusions owe much to the structure of the arguments of the past. By detaching the gist of the anti-democratic arguments from their ultimately untenable assumptions about the importance of sex, property and wealth, a more general set of claims appear that are instructive in understanding the restrictions on suffrage still in force. Leaving references to property behind, we find three qualifications for political participation: competence, belonging and independence (see Katz, 1996, p. 232; Mayer, 2001, p. 151). These are ideas that have the potential to be used in justifying the political exclusion of children, prisoners, the intellectually disabled and non-citizens. Consider, for example, the view that prisoners are not a part of regular society, that children and the disabled are not legally responsible and that resident non-citizens are in reality members of foreign nations. The imputation of not ‘belonging’ can be understood to justify the exclusion of members of these groups from democratic procedures. Similarly, the notion that voters need to be competent and that anyone without requisite knowledge about society should not be allowed to participate remains the major reason for excluding children and younger people. Yet, the charge of incompetence could just as well be levelled against people who are either intellectually disabled, prisoners or non-citizens by arguing that they do not posses the necessary cognitive capacities,

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moral character or practical experience of life in our society. In the same way, the insistence that voters be independent comprises a basis for justifying the exclusions of members of all of these categories. Children, the disabled and prisoners are dependent on institutions or care-givers, and it can be argued that dependency undermines the ability of these people to think for themselves and to make independent decisions. Aliens, on the other hand, could be dismissed as untrustworthy, due to their potential allegiance to foreign nations. Whatever the merits of these points, they are sufficiently familiar to demonstrate the continuing relevance of the notions of belonging, competence and independence for democratic exclusions. An initial reaction might be that these are, indeed, vague and ambiguous concepts in need of definition and specification. Conceptual analysis would seem to be called for in order to judge the consistency of these qualifications and the extent to which they are capable of justifying the rules for exclusion found in electoral laws. For instance, the claim that younger people should not vote because voters need to qualify as competent leaves undefined the conception of ‘competence’ and unanswered the exact age at which young people achieve this. Perhaps, though, this could be dismissed as mere ‘technical’ aspects of the problem. The more fundamental issue concerns the legitimacy of denying people the vote with reference to these ideas. Many readers would certainly find persuasive the notion that children, prisoners, the intellectually disabled and non-citizens should not be allowed to vote – because they either do not belong or are not competent or independent enough. However, it might seem perplexing that, in a democracy, some people could be legitimately excluded from enjoying basic political rights. The principal achievement of the norm of ‘universal suffrage’ is that any exclusions from the vote would ‘have explicitly to be justified’ (Fraser, 2002, p. 75). This is to say that exactly whom is to be excluded from suffrage due to not belonging or not being competent or independent enough is a relevant question only once it has been determined that these are legitimate qualifications for political participation in the first place. Thus, the fact of democratic exclusions leads us to ask how denying people the right to vote could ever be justified in a democracy. This is a task political scientists have generally been reluctant to undertake, perhaps because it has not been perceived as interesting enough or because the issue has been associated with seemingly intractable normative and conceptual muddles. For example, Albert Weale argues that what matters is that the ‘vast bulk’ of citizens have the right

10 The Frontiers of Democracy

to participate and that ‘it is difficult to come up with a general formula’ for when denying someone the right to vote is legitimate (Weale, 2007, p. 19; Lively, 1975, p. 12). Even more pessimistic is Robert Dahl’s prediction that the question of the criteria by which a person could legitimately be denied access to the vote ‘seems to admit of no definitive answer’ (Dahl, 1982, p. 98). The view that the issue of democratic exclusions is complex, perhaps even unsolvable, is quite common. And yet, it would seem hard to accept that a fundamental institution of democracy – the right to vote – should not be subject to standards of evaluation from the vantage point of some conception of what democracy and justice should be understood to mean.

The problem of inclusion The study of the proper extension of the franchise involves the investigation of what in the literature is known as the ‘problem of inclusion’. Following Robert Dahl, this problem consists of deciding ‘what persons have a rightful claim to be included in the demos’ (Dahl, 1989, p. 119). In the context of the democratic nation-state, the ‘demos’ simply refers to the people entitled to participate in national elections. Of course, the problem of inclusion can be analysed at all levels of government and governance. It is a striking fact that regulations in relation to the vote in local or regional elections do not necessarily coincide with the provisions regulating political participation at the national level. In the United States the voting age in federal elections is lower than in most state elections, while in Germany it is the reverse. Furthermore, it should be noted that the problem of inclusion is a general one and confronts any association in which collective decisions are required. Rules regarding eligibility for participation are needed in every club, political party, voluntary association, public company, international organisation and so on. The problem of inclusion that arises in relation to national elections in a political democracy is of a peculiar nature, however, due to the pervasive effects of government laws and policies. The stakes involved in the distribution of the vote in national elections are also greater due to the lofty ideals that inspire democratic governments and according to which they should be held accountable. A point of departure for this study is that there are primarily two distinct problems that any criteria for exclusions from the vote would have to take into account. The first is that democracy, meaning ‘rule by the people’, appears to be compromised as soon as any segment of ‘the people’ is denied the right to participate in the ‘rule’ of the nation.

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Since the claim to be democratic is fundamental to the legitimacy of most contemporary governments, it would be very serious to charge a system with not being able to live up to even the most basic meaning of the word. The conundrum could, of course, be avoided by asserting that some people are not really members of the people. Such a claim would be consistent with everyday usage, since the term ‘people’ either denotes the population as a whole or some smaller group within it (Canovan, 2005, p. 5). That is, the ‘demos’ referred to in ‘democracy’ is not necessarily understood as including the people as a whole. But who does not ‘belong’ to the people, in the sense authorised by the democratic ideal? In various times and places, divergent answers to this question have been offered. For example, democracy in classical Greece rested on the assumption that slaves, women and aliens were not ‘people’ and, therefore, not entitled to take part in common deliberations and decisions. Contemporary democracies assume a different and more inclusive understanding of the self-governing people, accepting as self-evident that female human beings are as much members of the people as are male ones. However, aliens constitute a more challenging case in this respect, as the right to vote is almost everywhere the exclusive privilege of ‘citizens’. These facts are consonant with the observation above that not everyone need be granted the vote according to contemporary legal and political norms of democratic suffrage, indicating that the precise contours of the ‘democratic people’ remain a source of potential contestation. The question is, then, according to which criteria should the circle of eligible voters – the people ‘belonging’ – be identified in order to be consistent with the idea of rule by the people? A second problem is how to justify that only some individuals are allowed to vote in a society committed to the principles of equal treatment and non-discrimination. A fundamental tenet in all democratic societies, universally recognised in international law, is that all members of the nation should enjoy ‘equal rights’. So, whether or not exclusions from the vote are consistent with the conception of a democratic people, it remains to be explained how rights solemnly declared to be valid for all could justifiably be restricted to only some. The customary answer is that basic political rights can be legitimately restricted to the extent that the restrictions are ‘reasonable’. Following the International Covenant on Civil and Political Rights (ICCPR), there should not be any ‘unreasonable restrictions’ on the right to vote in elections (Article 25). This is to say that the distinctions employed in regulating the vote have

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to be justified in a special way, not simply as beneficial or practical but as consistent with norms of equal treatment. What is a ‘reasonable’ restriction is nevertheless a matter of dispute. The comments adjoined to the ICCPR establishes that ‘setting a minimum age’ for the vote is reasonable and that ‘mental incapacity’ constitutes legitimate grounds for exclusion (CCPR/C/21/ Rev.1/Add.7, 1996). However, the criteria enforced by law are reasonable only by virtue of the reasons behind them. In the absence of acceptable reasons for differential treatment, there can be no justification for it. That is, the age or mental status of a person may justify differential treatment, but only provided that there are good reasons for it. As we know, in relation to certain activities, the mental status of a person may plausibly justify restrictions (say, on driving a car), whereas in relation to other activities, mental status should be immaterial (say, on procreating). The point is that the relevance of age, mental status and other criteria can only be determined by considering the reasons for them in relation to a particular activity and by evaluating the extent to which the reasons are reasonable in view of the interests of all of the parties concerned. To sum up, a fundamental premise of this study is that the problem of inclusion can only be resolved by considering both the criteria of a democratic people and the principles of equal treatment. A just and democratic distribution of suffrage should (i) be congruent with a democratic understanding of who belongs to the people and (ii) only be restricted on the basis of distinctions that are reasonable. I believe it is important to keep both points in mind, as they identify the conditions under which the three traditional arguments for exclusion discussed in the previous section can be accepted. Restrictions on the vote with reference to ‘belonging’ are acceptable only to the extent that they conform to a democratic understanding of ‘the people’. Restrictions motivated by standards of competence or independence are justified only when consistent with norms of equal treatment. In other words, the vote should be distributed on the basis of reasonable criteria reflecting a plausible account of the democratic people. A contrasting view is that ‘electoral justice’ requires no more than consistently adhering to principles of equal treatment. Questions about ‘belonging’ or the ‘democratic people’ are simply of no avail. An argument along these lines is presented by Dennis Thompson, who makes the point that voting rights can be determined solely in consideration of ‘equal respect for persons’ (Thompson, 2002, p. 9). Yet, even Thompson’s argument implicitly trades on a particular conception of the democratic people. The contention that ‘equal respect’ is a basic

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requirement for democratic elections is premised on the belief that all of those ‘bound by the laws’ should be treated as equals. But since not everyone is ‘bound by the laws’ of a particular political authority, there are clearly limits to whom equal respect is owed. The argument that equal respect applies to all of those bound together by the law makes sense only on the basis of prior acceptance of the argument that belonging, understood in terms of membership in the legal community, is a fundamental criterion for right to political participation. The inadequacy of Thompson’s standard of ‘equal respect’ for our purposes is, thus, quite obvious. The distribution of political rights should be determined both by reference to a conception of who belongs to the people and by principles of equal respect. One advantage of this approach is that it allows for the possibility of these criteria not always coinciding. It accepts the prospect of the exclusion of some people as being reasonable in terms of just treatment even though that group may clearly ‘belong’ to the ‘people’. Likewise, it is conceivable that some people not belonging to the people could reasonably be granted the vote when all relevant circumstances have been taken into account. The tensions between these perspectives will be further elaborated in the second chapter and throughout the book. A further remark is necessary in order to explain why the distinction between a democratic people and just treatment has not always been appreciated. One reason is presumably that the exclusions practiced in pre-democratic times generally violated both norms at the same time. The exclusion of workers, women and the poor were ultimately rejected as illegitimate, both because they denied individuals who were clearly members of the people the opportunity to participate in politics and because they excluded people on the basis of distinctions that could not be justified in terms of equal treatment. Nevertheless, the history of suffrage reveals attempts to remedy the electoral system in just one respect. An illustrative example is the ‘universal’, albeit clearly unequal, suffrage introduced by royal decree in Prussia in 1849 – ‘universal’ in the limited sense that it covered all adult male citizens, unequal in that the votes carried unequal weights, depending on the status and income of the voter (Bendix and Rokkan, 1971, p. 23). It would be a mistake, however, to infer from such examples that only weighted voting represents a case of inequality. Exclusive suffrage, when motivated by irrelevant distinctions between people, is just as susceptible to the charge of violating norms of equal treatment. As noted above, blanket exclusion of women, people of colour and ethnic

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The Frontiers of Democracy

minorities constitutes a case in point. Cases like these are presumably what inspires the judgement that disenfranchisement always represents a breach of political equality (Weale, 2007, p. xvii). Sometimes, however, it may not be evident whether the basis for complaints against exclusions from suffrage derives from the unreasonableness of the distinctions in use or from the narrowness of the understanding of the ‘people’. It may often be that both objections apply at the same time. For example, between 1918 and 1928 British women could vote at the age of 30, whereas men were enfranchised at the age of 21. In Finland the voting rights age used to be differentiated for some time (1869–1906). Rural residents were recognised as voters at the age of 21, whereas city residents could vote only at the age of 24 (Blais, Massicotte and Yoshinaka, 2001, p. 51). In this form, the rules for elections are most likely not consistent with norms of equal treatment, as they are not motivated by reasonable distinctions between citizens. But the distinctions are also susceptible to criticism from the vantage point of a conception of the democratic people. An electoral system that denies city residents (in Finland) or younger women (in Britain) the vote is not just introducing irrelevant distinctions between people but is denying a significant portion of the people belonging to the community the right to a say in political affairs. Hence, the restriction is both unreasonable (unjust) and an affront to the idea of the democratic people. Any specific set of qualifications for the vote is, in other words, subject to evaluation on the basis of two distinct standards. The point in keeping them distinct is, again, that we thereby allow for the possibility that it may not always be possible to satisfy both of them at the same time. Finally, it should be noted that the problem of inclusion, as presented here, is distinct from a separate question with which it may be conflated. The contrast is with the problem of coming to terms with the moral significance of the political borders between sovereign states. The borders separating peoples from each other are clearly controversial entities, frequently causing disputes and even violent conflict. Due to the historical contingency of borders and their pervasive effects on the welfare and identity of so many people, the border question is sometimes thought to be at the heart of the problem of democratic inclusion. The ‘external exclusion’ implied by state borders is said to render the concern for ‘internal inclusion’, which takes the borders of the state for granted, a misconceived project (Goodin, 1996a, p. 362). The more pressing problem is said to be ‘membership boundaries’ in relation to other peoples, refugees, displaced persons and so on

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(Smith, 2008). Borders are also critical in determining the territorial extension of governmental authority and are, therefore, thought to be decisive in judging the legitimacy of democratic political entities. In fact, the claim is made that the idea of democratic rule ultimately depends on the legitimacy of the borders separating peoples from one another. To the extent that borders are illegitimate, there is no foundation for a legitimate democratic people either (Bartelson, 2008, p. 170; Näsström, 2007). Now, the idea that a democratic people is beyond reach as long as political borders are contingent is debatable. The contentious premise of theories making border issues fundamental to the legitimacy of democratic governments is that a political system must be ‘legitimate’ in order to be ‘democratic’. It is not clear why this should necessarily be the case. A gang of robbers can adopt democratic procedures among themselves, even though the gang is not ‘legitimate’ according to some standard of morality. Likewise, an aid organisation may be fully legitimate following the yardsticks of morality, even though its internal organisation falls short of democratic standards. Of course, the relationship between moral legitimacy and democratic procedures is a complex and potentially controversial issue (cf. Kassner, 2006, p. 484). It can safely be contended, however, that there is no simple correspondence between the democratic character of an association and the moral legitimacy of all of its parts. However, there is no need to probe this matter any further, since the fundamental point is that the status of political borders is distinct from, albeit potentially interrelated to, the problem of inclusion. This is clear once it is realised that the problem of inclusion re-emerges whether or not political borders are themselves morally legitimate. No matter what the justification for the borders drawn on the maps of the world, the question of who should be able to participate in the democratic process remains a controversial subject and one for which there are few answers that are at least tentatively reasonable. This is not to deny that the status of borders may be relevant for the distribution of political rights. For example, the remaking of borders is likely to create new authority relations between individuals and governments, and on the assumption that these relations are relevant for the distribution of formal participatory rights, they should certainly be considered. The decisive question, though, is what considerations are ‘relevant’ in determining the extension of suffrage, and this cannot be known without examining the problem of democratic inclusion. In effect, this is the issue deciding the frontiers of democracy, if not the borders that separate sovereign states.4

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The Frontiers of Democracy

The practice of exclusion The task before us draws attention to a fundamental institution in countries that are conventionally described as ‘democratic’ or, indeed, as ‘electoral democracies’.5 The 2008 Freedom House survey found that there were 121 electoral democracies in the world out of a total of 193 independent countries. Clearly, the aim is not to evaluate limitations of the franchise practiced in countries with no pretence of conforming to democratic norms. For example, there are countries that provide no rules for individual voting rights whatsoever (e.g. Brunei) and countries where elections are held only with the explicit exclusion of women and other large groups in society (Saudi Arabia).6 Since these political systems do not aspire to democratic legitimacy, there is no reason to assume that investigating their rules for political participation has the potential of teaching us anything about the problems of democratic inclusion. Of course, what matters is the inclusiveness of suffrage in practice, not merely whether there are legal or constitutional rules granting everyone the right to participate in the democratic process. The existence of legal articles protecting the right to vote does not mean that the right for the members of the nation to vote are secure. The legal right to vote is not among the necessary conditions for real opportunities to participate in the democratic process by means of voting. In fact, voting rights are present in many electoral democracies that have no specific legal rule granting the right to vote (Kirshner, 2003). Correspondingly, we should appreciate that a large number of governments around the world, continuously fail to respect the rights and freedoms of its members and, consequently, are not democracies in any meaningful sense of the word, despite the fact that their legal systems incorporate rules for voting that are no different from those found in electoral democracies. To evaluate the exclusions from suffrage in countries that are regularly perceived as non-democratic is of no interest given that the purpose is to clarify the justifiability of restrictions in a democracy. There is no point in demonstrating, again, that the countries generally described as non-democratic fail to meet standards of democratic inclusion and equal treatment. A more challenging task is to bring the searchlights to bear on the countries conventionally characterised as democratic. Are the rules defining who should be able to vote in contemporary democracies compatible with standards of equal treatment and the notion of a democratic people?

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Before we are ready to confront this question, a more systematic overview of democratic exclusions is called for. The practice of democratic exclusions illustrates the continuing relevance of the belief that belonging, competence and independence are necessary requirements for democratic participation. In the regulation of the franchise these notions translate into legal criteria that serve to identify who is and who is not eligible to participate in democratic elections. Election rules are comprehensively reported in previous research (Katz, 1996; Massicotte, Blais and Yoshinaka, 2004; Paxton, Bollen, Lee and Kim, 2003). From these sources two basic inferences can be made. First, the most prominent among the legal criteria for voting are related to age, citizenship, residence, mental health and law abidingness. Some of them are recognised virtually everywhere, whereas others are less frequent. Age and citizenship figure as necessary conditions for the vote in almost all democracies. Law abidingness and mental health are less regular but are enforced by a majority of democratic governments. Second, it should be appreciated that inclusion is a matter of interpretation in the sense that divergent conclusions have been reached by law-makers in different democratic countries on the meaning of the very same qualifications. All democracies, consequently, display their own unique bouquet of exclusions that defies any attempt to describe the nature of restrictions in general terms. Thus, individuals entitled to exercise the right to vote in one democratic country might sometimes have been denied this right in another democracy, even if similarly situated. Although ‘universal suffrage’ is purportedly ‘everywhere in place’, some political systems are evidently more ‘universal’ than others. A schematic illustration of existing democratic exclusions is provided in Table 1.1, ranking suffrage regulations from more to less inclusive. Table 1.1 illustrates the tenuous status of the vote for younger people, convicted or imprisoned persons, non-citizens, expatriates and people with cognitive impairments. Different positions have been taken on the legitimacy of excluding some specific groups of people from the vote in different countries. It is sometimes said that there is a ‘near consensus’ on what constitutes a legitimate restriction on the vote (Blais, Massicotte, and Yoshinaka, 2001, p. 58). Yet, there is apparently a great diversity in how this ‘consensus’ is interpreted in different political systems. There is no uniform conception of ‘universal suffrage’ as practiced by contemporary democracies (Crewe, 1981, p. 224). ‘Consensus’ would seem to be even greater over the notion that only ‘real people’ should be able to participate in the democratic process. It may seem obvious that ‘rule of the people’ refers to living people and

18 The Frontiers of Democracy Table 1.1 Varieties of democratic exclusions in national elections among electoral democracies More inclusive

Less inclusive

Age

16 (Austria)

17 (East Timor)

18 (Norway and most Western democracies)

25 (Italy*)

Citizenship

None if resident for more than 1 yr (New Zealand)

None if resident for more than 5 yrs (Brazil)

None for citizens of specific nationalities (Ireland)

Citizenship required (Germany and most Western democracies)

Disability

None (Canada)

Not deemed competent at polling station (Norway)

Not accommodated in a psychiatric hospital by legal decision (Germany)

Not declared incompetent by court of law (Spain and most Western democracies)

Law abidingness

None (Sweden)

Not imprisoned for major felony (Australia)**

Not imprisoned for any felony (United Kingdom)

Not imprisoned and not previously imprisoned for any felony (United States***)

Notes: Countries within brackets exemplify the practice referred to. The table is schematic as it does not report the full range of variety for each criterion and only covers national elections. Moreover, it does not include practices of disenfranchisement in non-electoral democracies (e.g. Uzbekistan’s 25 years age limit for participation in national elections). Nor is any notice taken of exclusions no longer enforced by electoral democracies (i.e. restrictions based on gender, property, income, literacy, etc.). * Applies for elections to the Senate only. ** Subject to variation in the states and territories of the Commonwealth of Australia. *** In the United States, ex-felons are disenfranchised in thirteen states, whereas two states currently employ no restrictions for felons at all. Sources: Rottinghaus (2005); Schriner, Ochs and Shields (1997); Katz (1996); Earnest (2003), and Massicotte, Blais and Yoshinaka (2004).

not to the future people of a nation. But this view is subject to increasing criticism. The calls for reforming democratic institutions so as to allow for an increased representation of the interests of future generations has followed an emergent awareness of the long-term effects of the policies pursed by living generations. As early as in the 1980s the United Nations World Commission on Environment and Development argued that policies

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destructive for the future environment continue to be pursued precisely because the living ‘can get away with it: future generations do not vote; they have no political or financial power; they cannot challenge our decisions’ (WCED, 1987, p. 8). In order to remedy this predicament, it has been suggested that the democratic rights of living generations should be matched by rights to representation on behalf of future generations (cf. Beckman, 2008a). Indeed, some countries have already taken measures to create mechanisms through which the interests of future generations can be represented (Shoham and Lamay, 2006). The reason for considering the inclusion of future generations in this study is not primarily the urgency of actual reforms but rather the methodological benefits this may have. The case of future generations challenges prevailing understandings of who belongs to the people and the relevant distinctions employed in differentiating political rights. In the process of investigating the problem of democratic exclusions, there may, therefore, be something to learn from considering the unborn and future members of our societies. In sum, the study will encompass a total of five distinct groups currently excluded from participation in the democratic process: children, the intellectually disabled, non-citizens, prisoners and the not yet born. The aim of the study is to evaluate the rationale for their exclusion on the basis of the twin standards of the democratic people and equal treatment. This is done by examining the facts and values of relevance to each group in separate chapters. The study is, in other words, organised around the groups of people that are currently excluded from formal voting rights in democratic countries. It is perhaps not self-evident why this approach is adopted, given the point made above that the qualifications for the vote (belonging, independence and competence) are applicable to all of the excluded groups. However, it is evident that some reasons are more salient in relation to certain groups than to others and that it is, thus, not necessary to evaluate each potential reason against democratic inclusion in relation to every group. The aim of this study is not to map all of the arguments for and against the exclusion of each and everyone but rather to explore the most prominent justifications found in relation to the major groups currently denied participatory rights.

The right to vote and alternative models of democracy Students of democratic participation may challenge the focus on formal restrictions on the franchise by arguing that other barriers and forms of

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The Frontiers of Democracy

exclusion loom much larger in contemporary democracies. The claim would be that the most pressing problem in connection with elections is not so much the absence of the right to vote but the lack of opportunities to make effective use of this right. This view should briefly be considered, partly in order to defend the significance of the subject matter of this book but also in order to elucidate the nature of the issues before us. The argument constitutes an important reminder that barriers to popular participation in elections are not all concerned with formal limitations on suffrage. A democratic election does not merely presuppose the right to participate but adequate opportunities for participation as well. Barriers may be social and economic, rendering a person entitled to vote effectively unable to make use of it (Dahl, 1989, p. 109). In countries where there is a high rate of illiteracy and where there is rampant poverty, the hurdles facing many voters are immense. The lack of education and the presence of hunger and disease dramatically raise the costs of taking to the polls and of political activity in general. Where the available options involve securing food or queuing at the polling station, the opportunity for political participation is in practice undermined. The hurdles faced in the exercise of the vote are also of a different and more subtle kind, including social practices, norms and meanings prevalent in a society. As a result, women, ethnic and sexual minorities as well as other groups have been denied effective opportunities to make use of political rights to the extent that social practices ‘contradict’ the equal status guaranteed by the law (Pateman, 1983, p. 204; Young, 2000, p. 55). In addition, there are barriers to electoral participation created by the way elections are administered. It is well known that pre-registration procedures for voters, choice of election day, opportunities for absentee voting, the kind of identification required at polling stations, etc. are factors that significantly impact the level of participation (James, 1986; Thompson, 2002, p. 28). This is to say that there is a multiplicity of administrative measures implemented by governments that create real obstacles to the effective use of the vote. A blatant illustration of this point is the plight of prisoners in Sweden, who were all enfranchised in 1936 but who nevertheless had few opportunities to participate in elections before the introduction of polling stations at prisons and procedures for postal voting many decades later. Obviously the value of the vote to Swedish prisoners counted for almost nothing before these opportunities were provided. Even today, democracies maintain cumbersome administrative procedures that significantly reduce

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opportunities for effective use of the right to participate in elections. However, these measures are being increasingly challenged by champions of democratic rights. Electoral observers are called to investigate more than merely the incidence of pure fraud and to consider the political context of elections as well (Carothers, 1997, p. 25). In addition, as noted by students of litigation in the American system of justice, the first generation of claims concerned with de jure denial of voting rights are now being rapidly superseded by complaints against the procedures by which elections are administered (Elmendorf, 2008, p. 645). In defending the concern for suffrage as such, it is not necessary to belittle the variety of social, economic and administrative obstacles to the vote that remain in democratic societies. Indeed, some of these barriers to the effective use of the vote are clearly relevant in considering who should have the right to vote. As we shall see in Chapter 6, attention to the practical conditions for political participation is vital in considering the suffrage of people with cognitive impairments. It is still clear, however, that complaints about inadequate opportunities to participate are logically secondary to grievances against legal exclusions from the vote. In order to challenge the social and economic barriers to democratic participation, the question of the right to participate must already have been settled. Likewise, the first priority with regard to people denied the right to vote and who should be able to participate is clearly to afford them voting rights. Thus, the task of evaluating the case for their inclusion does not seem to detract from a concern with adequate opportunities for participation, since this concern cannot be raised unless inclusion is advocated and would otherwise not be raised at all. A leading political scientists has concluded that ‘since universal voting is here, now is the time for equal voting’ (Lijphart, 1997, p. 11). But to question the truth of the first part of the sentence, that is, the claim that ‘universal voting is here’, is not to raise doubts about the importance of ‘equal voting’ but rather to pave the way for such concerns. A more radical objection would be that ‘democratic inclusion’ is not about the right to vote at all. The study of voting is disparaged, since it is perceived as reflecting an outdated ‘aggregative’ model of democracy that equates popular participation with the mere registration of individual preferences. The critique of the aggregative model is that democracy is more than just voting and that we should give priority to alternative mechanisms of popular participation. Political activity does not only include the act of casting ballots in national elections but a variety of activities that range from demonstrations, boycotts, letter writing, the creation of networks on the internet, and so on. On the assumption

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The Frontiers of Democracy

that these ways of promoting political agendas are ‘probably most likely to have a direct influence on government officials’, the conclusion has been drawn that ‘we must ... shift the focus ... to alternative modes of participation’ (Leighley, 1995, pp. 181, 196). In this vein, Robert Goodin argues that faith in the purposiveness of elections has ‘waned’ and that the ‘simplistic model of democratic inclusion’ is consequently without credence (Goodin, 2003, p. 194). In response to this objection, it should be pointed out that the study of the right to vote and its limits is not necessarily premised on the aggregative model of democracy. The assumption that voting is an important feature of real world democracy is not premised on the idea that the vote represents the sole and most precious mode of political participation. The objection would be more credible in the unlikely event that voting had no place at all in alternative theories of democracy. However, this is clearly not the case, as evidenced by the fact that advocates of either ‘participatory’ or ‘deliberative’ democracy do acknowledge the lasting significance of elections, not just in real world circumstances but under ideal conditions as well. The typical complaint about aggregative democracy is that it neither encourages reflection over political preferences nor provides appropriate fora for dialogue and argumentation (cf. Föllesdal, 2006, p. 65). In order to secure a more reasoned, and ultimately more legitimate, foundation for public policy, we should promote conditions for deliberation and reflection, creating the conditions for arriving at a ‘rationally motivated consensus’ (Cohen, 1997, p. 75). But as adherents of this view readily recognise, people are unlikely to agree, even after thoughtful reflection and deliberation. In order to arrive at a collectively binding decision, the process of deliberation is likely to end up in a vote (Cohen, 1997, p. 75; Goodin, 2003, p. 227). This is an important concession, since it indicates that the ‘traditional’ democratic problem of inclusion cannot be overlooked by adherents of alternative modes of political participation. Even deliberative democrats are, in other words, in need of criteria for universal suffrage. Moreover, it suggests that a study of democratic exclusions is pertinent to a broad range of democratic theories. Whatever your preferred conception of democratic procedures is, there should be a place in your theory, at some stage, for providing people with the opportunity to resolve disagreements through voting. And as long as this remains true, the problem of defining the democratic people and evaluating the reasons for disqualifying certain people as voters is certain to appear.

2 Democracy and Inclusion

The success of the struggle for inclusive suffrage depends not only on the ability to mobilise support but also on the cogency of the theory underlying the claim that exclusions from suffrage are either unjust, undemocratic, or both. In one important respect the notion that democracy requires inclusion has achieved almost universal acceptance, most visibly in the notion that distinctions based on ethnicity, class, sex or race are illegitimate. In contrast, it appears less clear that democracy is compromised by suffrage restrictions based on age, criminal record, mental sanity and citizenship status. Do exclusions of that kind make the political community less democratic? Clearly, the meaning attributed to the term ‘democratic’ is key in answering this question, which undoubtedly complicates matters since definitions are both controversial and constantly changing. In fact ‘democracy’ is frequently defined in strikingly narrow terms, rendering restrictions on suffrage virtually immaterial to democracy (Bollen, 1990). According to an influential view, a democratic political system is one in which ‘widespread’ political competition exists, irrespective of the inclusiveness of this ‘competition’ (Schumpeter, 1942, p. 244; Przeworski et al., 2000, pp. 15, 34). In accordance with such a definition, the scope of suffrage is of little or no importance in determining the democratic character of a political system. A contrasting view is that the distribution of voting rights among the members of the political community is key to determining the democratic quality of political institutions. This view is echoed in the claim that countries in which basic political rights are exclusive ‘cannot by definition be democratic’ (Barry, 2000, p. 77). The point here is that the verdict delivered about the democraticness of political systems seems to hinge on what meaning, more precisely, is associated with the term ‘democracy’. Although definitions are no 23

24 The Frontiers of Democracy

more than stipulations of meaning that do nothing in deciding how political institutions ought to be arranged, it seems crucial whether a definition of democracy explicitly incorporates the idea of inclusion or not. This point is particularly important in a world in which the term ‘democracy’ has achieved an extraordinary degree of ‘commendatory force’ (Dunn, 2005, pp. 23, 132; Naess, 1956, p. 137). Clarifying the relationship between ‘democracy’ and ‘inclusion’ is not sufficient, however. As noted in Chapter 1, there are a variety of standard criteria believed to justify restrictions on the right to vote. Of these, the criterion of ‘belonging’ is particularly important for the sake of identifying democratic suffrage, as it touches on the very meaning of the ‘democratic people’. A common argument against extending the vote to newcomers or temporary residents is that these people do not ‘belong’ to the people ruling by democratic procedures. The idea that political rights are the privilege of those belonging to ‘the people’ raises questions about the principles for deciding its contours. In recent writings the answer to this question has been sought in the so-called ‘all affected principle’, according to which anyone ‘affected’ by the government is to be considered as a member of the democratic people. But the principle introduces many new issues, particularly about the relevant meaning of ‘affected’. These need to be sorted out in order for the principle to be applicable. As noted by Nancy Fraser, ‘everything depends on finding a suitable interpretation of the all affected principle’ (Fraser, 2005, n. 15). An inquiry into the problem of democratic inclusion, in other words, requires that two questions be answered. The first is how inclusive suffrage among the people need be in order to qualify as ‘democratic’. The second is by what criteria the members of the democratic people are to be identified. A ‘democratic’ distribution of the vote is one that satisfies the criteria established in relation to both of these questions. The first sections of this chapter address these issues with the twin purpose of providing a point of reference for the analysis in coming chapters and an argument elucidating contemporary theories of democracy. A successful argument in these respects will not bring a solution to all aspects of the problem at hand. The reason is that the concept of ‘democratic suffrage’ provides no guidance about how to resolve conflicting perceptions of the interests and principles at stake. It is one thing to know what democratic suffrage should be like; it is not exactly the same thing to know whether more or less democratic suffrage is desirable. A democratic distribution of suffrage among everyone ‘belonging’ to the community is open to the charge that requirements of competence or

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independence should be introduced in order to improve the quality of collective decisions. At this stage, normative, not definitional, considerations have to be confronted. Keeping the definitional and the normative issues apart is vital for the purpose of evaluating the case for exclusion of children, non-citizens, the intellectually disabled, prisoners and future people. This is in line with the suggestion presented a long time ago in an article by John May that, unfortunately, does not appear to have been widely influential. May proposes that the task of identifying democracy’s ‘subject population’ is to be separated from arguments concerned with what rights ‘should be assigned to what persons’ (May, 1978, p. 8). A critical examination of democratic inclusion should, therefore, proceed by an examination of the meaning of democratic suffrage as well as by an investigation of the reasonableness of exceptions to this ideal.

Defining inclusion In order to estimate suffrage restrictions from a democratic point of view, we need to know how to appropriately apply the term ‘democracy’. To know this is, in turn, to be acquainted with the conceptual meaning of the word which is equivalent to its ‘intension’ (Sartori, 1984, p. 24). To find this a meaningful endeavour is not to presume that there is a final and for all times valid definition of ‘democracy’ awaiting us. As pointed out by Giovanni Sartori, norms of linguistic meaning are always shaped by history and the conventions attributing content to the symbols we use are, therefore, mutable (Sartori, 1987, p. 265). This is apparent not least in connection with the idea of democratic inclusion. Democracy, in the archaic sense of the term associated with Rome and Athens, entailed the idea of rule by the people as being consistent with the exclusion of women and, indeed, with the institution of slavery. Contemporary usage of the term ‘democracy’ does not allow for exclusion on that scale, suggesting that the criteria for applying the term have been transformed along the way. Recognising the importance of definitions is not to deny that linguistic conventions change over time, though it is premised on the belief that there are better and worse ways of applying the terms we use. Attention to the way ‘democracy’ is defined reflects the assumption that we are better off not employing the term arbitrarily and that sensitivity to conventional meanings is of potential importance to our endeavour. An objection to the call for definitions could be that the search for optimal conceptual constructions is unlikely to be fruitful. As remarked

26 The Frontiers of Democracy

many times, disputes over definitions of democracy among scholars are not only passionate but also seemingly endless (Collier and Levitsky, 1997, p. 450; Rosanvallon, 1995, p. 153; Beitz, 1989, p. 17).1 This attitude is hardly surprising, given the great variety of meanings of the term ‘democracy’ throughout history. More than 300 definitions of democracy were identified in the now classic study by Arne Naess (Naess, 1956). But even if the term remains a covetous object of appropriation, always vulnerable to conflicting political interests, it does not follow that definitional exercises should be ignored. Research on democracy can hardly proceed without a preliminary account of what the concept refers to. Definitions of ‘democracy’ are needed, whether the questions at stake are descriptive, explanatory or normative. Our energies should not be further spent in arguing this point but rather directed towards the task of exploring the best way of proceeding in relation to the research purposes at hand. In the context of democratic inclusion, the attempt to define ‘democracy’ is equivalent to considering what, more precisely, is involved in depicting a particular distribution of the vote as either democratic or undemocratic or, perhaps, as either more or less democratic.2 As it turns out, there are numerous strategies employed in trying to answer this question in studies of democracy. In what follows we shall examine three approaches – minimalist, conventionalist and maximalist – and apply them to the problem of democratic exclusion. Three conceptual strategies3 A definition is minimalist if the conceptual content of the term (the intension) is formulated economically, enumerating as few properties of the referent as possible. This means expanding the number of phenomena covered by the concept (the extension), since it takes less to qualify as a member of that class. An example of a minimalist understanding of democratic inclusion is found in the widely used ‘Polity IV index’. The index is largely insensitive to the scope of the franchise, which is indicated by the fact that Switzerland scores as fully democratic as early as the 1840s, a mere hundred years before the enfranchisement of Swiss women. This minimalist bent can be further illustrated by the description of the United States as fully inclusive as early as 1871. Thus, the index takes no consideration of the fact that it was another 50 years before the enfranchisement of women and a full century before voting rights for southern blacks were finally secured. All of this can be accounted for by the fact that the polity index is based on a strikingly narrow conception of democratic inclusion. The originators of the index argue that it provides a measure of the

Democracy and Inclusion

27

‘guarantees of civil liberties to all citizens’ (Gurr, Jaggers and Moore, 1991, p. 76). Yet, as observed by others, ‘the extent and character of popular political participation’ in the polity index is ‘either totally absent or relatively unimportant in determining the degree of democracy’ (Gleditsch and Ward, 1997; Vreeland, 2003, p. 6). In order for the suffrage to count as ‘democratic’ according to the polity index, only 20 per cent or more of the population need to have been granted the vote (Moon et. al., 2006, p. 6). The threshold of inclusion is, obviously, quite modest in the polity index. Yet, there are studies that do not require any threshold for inclusion at all. An example of the implications of this can be found in the influential study by Adam Przeworski and his colleagues of the process of democratisation in 141 nations since the Second World War. In this study, a ‘minimalist’ definition is adopted according to which democracy is a political system in which ‘rulers are selected by competitive elections’ (Przeworski, 2000, p. 15). As noted above, this definition remains unequivocally silent on the extension of the franchise and, as a result, includes as ‘democratic’ political regimes in which only a fraction of the population are permitted to participate in elections.4 A rival approach is what we will call the ‘conventionalist’ strategy for operationalising democratic inclusion. It is conventional in the sense of identifying the conceptual content of inclusion with the legal criteria at work in political systems. As a consequence, the exclusions that are sanctioned by election laws and constitutions are integrated into the meaning of democratic inclusion. Hence, ‘democratic suffrage’ is understood to mean a distribution of the vote that is subject to the ‘usual exclusions’ (Still, 1981, p. 378). The conventionalist approach is common in rankings of democratic regimes. An example is found in Hadenius’ study Democracy and development. Although the ‘extent of the franchise in the population’ is said to be crucial in measuring democracy, Hadenius wrestles with the problem of defining the threshold of full inclusion. In the end, the pessimistic conclusion is reached that democratic theory provides ‘no such thing’ as an answer and that the only viable alternative is to define democratic suffrage as equivalent to the circle of individuals granted the vote ‘by convention’ (Hadenius, 1992, pp. 13, 41). On the basis of such a conceptual manoeuvre, it is an obvious conclusion that ‘universal and equal suffrage’ is safely in place in most countries. Hadenius study (published in 1992) detects a less than fully inclusive franchise only in South Africa and West Samoa. These results are compatible with the pervasiveness of restrictions for children, people

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The Frontiers of Democracy

with cognitive impairments, felons and resident aliens. Since these groups are, indeed, among the ‘usual exclusions’, they are by definition consistent with democracy according to a conventionalist strategy.5 The further implications of this strategy are spelled out by Michael Coppedge and Wolfgang Reinicke in their study of ‘polyarchy’. They contend that standards for the measurement of democracy should be inferred from ‘real world democracies’ rather than from abstract theoretical models (Coppedge and Reinicke, 1993, p. 48). Recognising the importance of voting rights, Coppedge and Reinicke distinguish nations in which ‘universal adult suffrage’ exists and nations in which ‘partial’ or ‘no’ suffrage rights exist. Armed with these conceptual tools, they observe that scarcely a single country fails to satisfy the criterion of ‘universal adult suffrage’. The meagre results achieved by the measure of inclusion leads the two scholars to doubt the ‘usefulness’ of investigating the extension of suffrage at all (Coppedge and Reinicke, 1993, p. 48). This is, of course, a natural conclusion given the definitional strategy adopted. It is essentially a token of circular reasoning to assert that democracies recognise suffrage to the extent that ‘real world democracies’ regularly do. An obvious alternative is to introduce higher standards of inclusion in the definition of democracy. This is to opt for a ‘maximalist’ definition, increasing the intension of the concept and correspondingly reducing the class of objects to which it applies (Sartori, 1984, p. 24). Defining universal suffrage along maximalist lines is to say that a larger number of groups in society should be enfranchised in order for the concept to apply and for the electoral system to qualify as truly inclusive. Dahl exemplifies this approach by stipulating that ‘inclusion’ is among the criteria of a democratic process. According to Dahl, the ‘demos’ must include ‘all adult members of the association except transients and persons proved to be mentally defective’ (Dahl, 1989, p. 129).6 These are evidently more demanding criteria than the rules for political participation practiced by currently existing democracies. In comparative empirical research the maximalist strategy is exemplified by Pamela Paxton and her colleagues in the longitudinal study of election laws in 196 countries (Paxton, 2003). Paxton’s measures are in one respect even more demanding than Dahl’s criteria, as they account for restrictions applicable to people with intellectual disabilities as well. As a result, comparatively few democratic countries qualify as 100 per cent inclusive (for example, Sweden and Ireland score 100 per cent on inclusion as compared to Germany and France that score 99.3 per cent).

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Another instance of maximalist definitions can be found in the studies of democratisation published by Tatu Vanhanen. The maximalist orientation is revealed by the statement that a society is considered more democratic ‘the higher the degree of competition and participation are’ (Vanhanen, 2003, p. 56). Taken literally, this is to suggest that a maximally democratic political system is one in which there are no restrictions on suffrage at all. Yet, Vanhanen is not primarily interested in the right to vote but in actual rates of participation, which is why inclusion is measured as the ‘percentage of the population who actually voted’ (Vanhanen, 2000). A restricted franchise will naturally affect electoral participation negatively, but so will many other factors unrelated to the inclusiveness of the political system. What should be maximised in order to achieve democracy is not, therefore, the right to vote but the actual rate of popular participation in the population. In any case, on the assumption that inclusion is conducive to participation, it appears correct to infer from this definition that a political system is more democratic the more inclusive it is. The desiderata of definitions Given the variety of approaches to the definition of democratic inclusion, it may seem futile to attempt to identify most the preferable one. However, the art of concept formation is not entirely impressionistic but is subject to rules, however vague they may be. There are, in other words, better and worse conceptual strategies. The first rule is that an object under study should be defined in ways that are suitable to the research purpose at hand. The definition of a term is, according to this view, not primarily a matter of identifying the correct meaning but of construing a concept that is ‘workable’ and useful for the investigation. A good strategy for defining ‘democracy’ is, consequently, one that is well adjusted to the ‘goals and context of research’ (Adcock and Collier, 1999, p. 546; Tilly, 1997, p. 198). Thus, the first step in exploring the conceptual relation between inclusion and democracy is to establish the nature of the research question to be answered. As has already been made clear, the nature of the present investigation is first of all normative, and this should be reflected in our conceptual strategy. However, the definition of terms cannot be settled by reference to the aims of research alone. The ascription of conceptual content to a term without regard for ordinary meanings runs the risk of creating confusion. For this reason, the second criterion for the terminology proposed is ‘familiarity’. A concept is familiar if it is designated by terms more or less in line with ‘established usage’ (Gerring, 1999, p. 369). This is no

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more than saying that there is a value in preserving conventional meanings of terms employed or that deviating from conventional meanings is to be avoided unless associated with significant benefits. These are very basic rules and by no means exhaust the repertoire of desiderata for concept formation. For example, ‘parsimony’ is undoubtedly of great significance in concept formation, and it is certainly desirable that the terms introduced are ‘resonant’, that is, effective in catching the attention and imagination of the audience (Gerring 1999, p. 370). The multiplicity of criteria of a ‘good concept’ shows us that these criteria cannot always be satisfied at the same time and that tradeoffs are necessarily involved. Perhaps a term that lacks ‘resonance’ is the more useful one. Or, perhaps less familiarity is well worth the cost in order to purchase simplicity. But concept formation should not be rendered more complicated than necessary. At the end of the day, the criteria of resonance, parsimony and so forth are essentially specific instances of the more general rule to focus on the ‘theoretical utility’ of the definition. There are, consequently, just two criteria to consider: theoretical utility and familiarity. The presumption is that they should be sufficient, taken together, in guiding the choice of a definition of democratic inclusion. We start by applying the condition of ‘familiarity’ to the alternative strategies described above. The question asked is whether defining democratic inclusion in either minimalist, conventionalist or maximalist terms is fully consistent with ordinary meanings of the concept. It can hardly be doubted that the conventionalist strategy is well prepared to meet this challenge. The avowed purpose of defining inclusion in terms of criteria formalised by real world democracies is to achieve a standard that is recognisable and compatible with everyday usage. The rule of ‘familiarity’ is, therefore, taken seriously enough. It should, of course, be noted that ‘conventions’ of meaning in ordinary language are not identical to conventions articulated by legal doctrine. Yet, the purpose of seeking ‘familiarity’ is that the terminology used in a study should not be ‘highly idiosyncratic’, and much is achieved by the conventionalist strategy on either understanding of ‘convention’. How do maximalist definitions fare in the quest for terminological familiarity? It may initially seem that they fail quite conspicuously, since it appears far fetched, even ‘idiosyncratic’, to argue that democratic inclusion requires a vote for every single person. Noberto Bobbio makes this precise point and argues that democracy should not be defined as demanding the inclusion of ‘all’ because age limits ensure that not everyone is entitled to vote (Bobbio, 1986, p. 24). However, the remark

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that a maximalist definition does not correspond to the suffrage rules found in real democracies constitutes a defect only on conventionalist premises. The very idea of a maximalist concept is to achieve greater intension (and less extension) than achieved by either minimalist or conventionalist standards. By implication, a maximalist definition of democratic inclusion necessarily sets higher standards than is common practice in democracies. Paxton provides one example for which full inclusion is identified with voting rights for all adult citizens, including prisoners and the cognitively impaired (Paxton, 2003). Although this definition is more expansive than most contemporary democracies allow for, it still declares as fully consistent with democracy the exclusion of non-citizens and children. Even more maximalist is the conception of universal suffrage proposed by Samuel Huntington. A society is ‘undemocratic’ in assessment ‘to the extent that a political system denies voting participation to any one group in its society’ (Huntington, 1989, p. 16). The maximalist bent is also visible in the view that democratic inclusion represents a continuous dimension. ‘The more widespread the vote, the more democratic the system’, argues Felix Oppenheim (1971, p. 32). Essentially the same view is expounded by Seymour Martin Lipset in his characterisation of democracy as the ‘social mechanism which permits the largest possible part of the population to influence major decisions’ (Lipset, 1959, p. 71). Arguably, maximalist conceptions of inclusion can be understood as a literal reading of Aristotle’s notion of democracy as the system in which ‘all rule each and each rule all’ (Aristotle, 1370a, p. 40; Lintott, 1992, p. 122). A democratic society is depicted as one in which everyone that is ‘ruled’ is a ruler all the same. The same basic idea is captured by the notion of democracy as ‘symmetry’ between rulers and ruled. Suffrage is democratic to the extent that the people granted a right to participate in the making of collective decisions is co-extensive with the people ruled by these decisions (Held, 1996, p. 335).7 It appears evident, on the basis of these examples, that the maximalist conception of democracy is indeed ‘familiar’. It is important to note that all maximalist conceptualisations of suffrage introduce a proviso of sorts. Suffrage should be available to all ‘groups in society’, or to ‘the largest possible part of the population’ or to ‘everyone ruled’. The immediate question is how to delimit the extension of these concepts. That is, a maximalist definition does not necessarily mean that all the groups discussed here, that is, non-citizens, the cognitively impaired, prisoners and children, should be included

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because it is not by definition true that members of these categories are to be counted as ‘groups in society’ or part of ‘everyone ruled’. The claim entailed by a maximalist definition of democratic inclusion is that ‘everyone’ should be included in the demos. It stipulates that inclusion is integral to the concept of democracy and that the right to vote is ‘democratically’ distributed in proportion to its inclusiveness among the relevant circle of individuals. However, a maximalist definition does not establish the criteria by which the relevant circle of individuals is to be distinguished. The maximalist orientation is the reverse of the minimalist definition according to which inclusion is not a component of the concept of democracy. As has already been noted, the Polity IV index adopts this view and has been widely criticised for this. The reason is, of course, that a regime that denies the vote to all but a small fraction of adult citizens is hardly perceived as a democracy. An implication of this observation is that ‘minimalist’ definitions of democracy gainsay the way we ‘customarily understand democratic relations between rulers and ruled’ (Wedeen, 2004, p. 279). Thus, it remains doubtful that a definition of democracy that leaves aside the question of inclusion is ‘familiar’ enough. Advocates of a minimalist approach would retort that the purpose of conceptualising ‘democracy’ in a minimalist fashion is not to capture everyday linguistic conventions but to create useful tools for research. In case the threshold for democratic inclusion is set too high, there may be no ‘democratic’ countries to observe and, hence, no cases with which to test explanatory hypothesis of the causes of democratisation. As argued by Przeworski, the main purpose of conceptualisation is to allow for empirical testing of distinct phenomena by not ‘lumping all good things together’ (Przeworski, 2000, p. 14). This point is in line with the received wisdom that minimal definitions have methodological virtues by facilitating causal assessment (Adcock and Collier, 2001, p. 533). However, these remarks do nothing to disprove the charge that minimalist definitions of democracy are deficient in terms of familiarity. There are costs involved in departing from linguistic conventions. These costs are perhaps justified in the case where a less familiar terminology is likely to contribute more to a specific research agenda. However, the opinion that the costs are acceptable does not negate the claim that there are costs.8 To sum up the argument thus far, the rule of ‘familiarity’ favours either a conventionalist or a maximalist conceptualisation of democratic inclusion. The idea that inclusion is not at all related to the meaning

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of democracy is less successful, leaving the minimalist strategy at a disadvantage. But these observations are not sufficient to determine the best conceptual strategy. As noted previously, the usefulness of a definition is no less important than its consistency in relation to established meanings. That is to say, the ‘workability’ of a concept must be judged in relation to the specific research agenda. What is essential in our case is that democratic inclusion is conceptualised in a way that allows for evaluation of the normative issues involved. The first observation to make is that a conventionalist strategy is noticeably unattractive, given a normative research agenda. If the task before us is to evaluate legal regulations in real world democracies, the standard that we use should be independent from the content of these regulations. As argued by Dahl, unless we proceed from an ‘ideal’ conception of democracy, our reasoning will be ‘circular or purely arbitrary’. To gauge political systems by a non-ideal standard is hazardous, since it can justify the conclusion that some nations are democratic simply because they display institutions typical of nations calling themselves democratic (Dahl, 2006, p. 7). This is a fair assessment of the problems associated with a conventionalist conceptualisation of ‘democratic inclusion’. According to conventionalism, the definitional properties of democracy are to be derived from the political systems regularly characterised as ‘democratic’. That is to say, suffrage is understood to be ‘democratic’ if akin to the systems found among democracies. But to ask if the actual distribution of the vote is consistent with the idea of democratic inclusion seems pointless if its conceptual content is derived from the rules to be examined. Another methodological point is that a useful concept of democratic inclusion should not preclude all normative questions. A normative question is one that is resolved by resort to arguments. Since a definition is not an argument but a stipulation of meaning, it seems inappropriate to answer normative questions by means of definitions alone. Thus, the question ‘how should the vote be distributed’ should not be answered by definitional fiat. In order to avoid prejudging the normative dimensions of the enterprise, we should instead stipulate as few normative properties as possible in the definition of democratic inclusion. Definitions that make it analytically true that a political system is morally superior the more it corresponds to the definition of democratic inclusion should be avoided. Otherwise, no question about the normative status of specific exclusions would remain to be investigated. This point is reflected in Felix Oppenheim’s remark that democracy should not be defined in such a way that the statement ‘the more democratic,

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the better’ is true by definition (Oppenheim, 1971). A terminology that is loaded with normative meaning merges two distinct issues in that it posits that descriptive statements about democratic inclusion provide additional information about its normative status. Of course, if we had recourse to a perfect moral standard, it would make more sense to use it also as a definition. But a study dedicated to the exploration of what the standard ought to be should avoid the trick of turning these distinct issues into one. The descriptive and the normative content of the concept of democracy are frequently conflated. This is the case even in Dahl’s definition of inclusion, which represents a most influential point of reference in contemporary research. As noted above, Dahl embraces a maximalist definition according to which all adults who are not ‘mentally defective’ should be recognised as voters. By introducing restrictions on the basis of age and mental health in the very definition of inclusion, it follows that a demos including either children or mentally defective people would be ‘over-inclusive’ and in that sense less democratic than it otherwise would be. If these restrictions were features of a descriptive definition of democracy, this would be all that could be said about such political systems. But Dahl’s justification for the definition of inclusion relies heavily on normative assumptions. The basic point is that children and ‘mentally defective’ people do not satisfy the requirement of personal autonomy. The significance of personal autonomy is, in turn, a crucial element of Dahl’s argument that a democratic process is ‘a requirement for making binding decisions’ (Dahl, 1989, p. 105). Only people capable of acting autonomously have a right to democratic rule, because to deny them influence over decisions shaping their lives is either not to treat them as equals or to assume, mistakenly, that they are not autonomous and self-governing individuals. Since the last claim is evidently not mistaken in relation to children and ‘mentally defective’ people, they have no right to be included in a democratic process, according to Dahl. Herein lies the answer to the question of why restrictions are incorporated into Dahl’s concept of democratic inclusion. The restrictions are included in the definition because children and the mentally defective have no right to be included in a democratic process. What is remarkable about this reasoning is that normative reasons are provided in support of the definition of democracy. Dahl is, thus, conflating the definition of democratic inclusion and the question of its value. That is, given Dahl’s analysis, there is no way of intelligibly questioning whether a democratic distribution of the vote is also a good one, because the answer to this question is given by the fact that it is a democratic one.

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Here, a more cautious strategy is adopted. At this stage, the aim is to keep the descriptive and normative elements of the definition of democratic inclusion distinct for methodological reasons. In principle, this can be achieved in two different ways. One is to avoid any reference to inclusion at all, which is the minimalist route. When the inclusiveness of a political system is not considered to be decisive for the purpose of assessing its ‘democraticness’, it is possible to address the normative issue of how inclusive it should be separately. The troubling implication is, of course, that observations of defective inclusiveness in a political system would be of no importance in assessing its democratic character. An alternative is provided by a maximalist, but descriptive, definition of inclusion. The proposition that suffrage is more democratic the more inclusive it is should be understood as a descriptive, not a normative, statement. That is, the question of how inclusive suffrage ought to be is not decided by the definition. The question that can be answered by reference to a descriptive definition of inclusion is ‘How democratic is the distribution of the right to vote?’. It does not answer the question ‘How good is the distribution of the right to vote?’. The virtues of maximalism in this regard may be surprising, given the usual criticism directed against it. A frequent argument is that maximalist definitions of democracy are to be avoided, since they preclude questions of the causal relationship between the distinct properties of political regimes (Munck and Verkuilen, 2002; Baker and Koesel, 2001, p. 4). This criticism may be fair, though it is hardly relevant in this context. Since causal relations are not involved in exploring the normative status of the right to vote, the fact that the maximalist conceptualisation employed makes causal assessment more difficult is not a relevant objection. As a result, it seems that both the maximalist and the minimalist strategies meet the second criterion (utility in relation to specific research purpose) of concept formation. The first criterion (familiarity) was met by maximalist and conventionalist conceptualisations. In attempting to define democratic inclusion in a systematic way, a maximalist approach is, thus, advantageous. Conventionalism squares well with accepted terminology but is inappropriate for normative purposes. Minimalism should be able to do the job but is, on the other hand, less compatible with established notions of inclusion. The idea of democratic inclusion is, in other words, best understood in maximalist terms as the idea that the suffrage is more ‘democratic’ the more members of the association it includes.

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The democratic people According to the maximalist conception, a democratic distribution of the vote should be as inclusive as possible. This is a statement that provides important information about the required distribution of voting rights within the class of people to which it applies. However, it does not indicate who is a member of this class. That is, a maximalist definition serves to identify the meaning of ‘democratic’ inclusion among a given population but provides no criteria for who is a member of the population itself. This is, in effect, to say that we need an account of the ‘democratic people’ just as much as an account of ‘democratic suffrage’. A conception of the democratic people constitutes the necessary premise of any statement about the extensions of political rights in a democracy. Suffrage is the privilege of the members of the people, who are identified by terms such as ‘population’, ‘members of society’ or ‘citizens’. The circles referred to by these concepts are certainly vague, but the more important point is that it matters immensely which of them are accepted, since the class of ‘citizens’ is not necessarily co- extensive with either the ‘population’ or the ‘members of society’. In fact, it would be premature to assume that any of these is correct, since it is not obvious that the right to vote should by definition be restricted by the entities these concepts refer to. Some would argue that there is nothing in the concept of democratic inclusion that rules out its application to people who are neither members of nor citizens in a particular society. Why would truly inclusive suffrage not reach beyond political borders and encompass people wherever they are located? As argued by Robyn Eckersley, democratic inclusion should apply to anyone ‘irrespective of social class, geographic location, nationality, generation, or species’ (Eckersley, 2000, p. 119). There are naturally innumerable ways of specifying the content of ‘the people’, but not all of them should be of concern to us. The task before us is to specify the meaning of the ‘people’ as it relates to the idea of political democracy, where ‘rule by the people’ is the guiding model. It is a rare fortune that current debates on this point reveal an impressive degree of consensus over the understanding that a democratic people is to be identified by recourse to the so-called ‘all affected principle’. Following a canonical formulation, the idea is that ‘everyone who is affected by the decisions of a government should have a right to participate in that government’ (Dahl, 1970, p. 64). A basic condition for membership in the people exercising political influence is, hence, that a person is ‘affected’ by the decisions enacted by the government

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(Dryzek, 2002; Katz, 1996, p. 217; Young, 2000, p. 6). A more relaxed version of this principle is found in the slogan that ‘what touches all should be decided by all’ (Waldron, 1999, p. 110).9 The all affected principle is an egalitarian principle in the sense that it does not allow for distinctions between people on the basis of categories such as class, ethnicity, sex or race. On the basis of the all affected principle, the American people cannot be defined without including the black population; On the basis of this understanding, no democratic people can be identified without also including women. The reason is that government policies and laws affect people without regard to differences in either race or sex. The pivotal role played by the all affected principle in the struggle for democratic inclusion has given rise to the conclusion that it constitutes a ‘key in the armoury of democratic theory’ (Saward, 1999, p. 37). The robustness of the principle appears even more evident when advocated together with a maximalist definition of democratic inclusion. In conjunction with each other, they maintain that suffrage is ‘democratic’ in proportion to the extension of voting rights among everyone affected. When speaking of the all affected principle in the following chapters, it is this ‘complex’ notion that is being referred to. It should be noted, though, that the all affected principle alone merely defines the ‘people’ for whom inclusion is to be considered, not how inclusive the suffrage ought to be in order to be considered democratic. Some would say that the all affected principle is, in effect, part of the definition of democracy itself (Goodin, 2003, p. 1; Cohen, 1971, p. 7). Regardless of that, the all affected principle should be at least compatible with any definition of democratic inclusion, whether minimalist or conventionalist. Following a minimalist view, democratic suffrage may include a mere fraction of the population. The point is that, given the all affected principle, even adherents of minimalist definitions should accept the idea that the ‘population’ should embrace everyone affected by government law and policy. For reasons stated in the previous section, this study is based on a maximalist definition of democratic inclusion. This definition is the backdrop for all subsequent reasoning on the all affected principle. Despite the many virtues of the all affected principle, it is recognised as being associated with intricate problems. Just a moment’s reflection is enough to realise that there are different ways of conceptualising the effects of political decisions, that deciding who is affected by political decisions is potentially controversial for methodological, conceptual and normative reasons. In view of these complexities, it has been

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argued that the all affected principle is ‘a potential source of ambiguities’ (Rubio Marin, 1998, p. 56; Gould, 2006, p. 54). In a similar vein, Dahl notes that, although the principle may initially appear promising, it offers nothing but a ‘diffuse galaxy of uncountable possibilities’ (Dahl, 1970, p. 66). To the dismay of anyone expecting the all affected principle to resolve the problem of inclusion, it has been argued that it is ‘far too vague to be of much help’ (Tännsjö, 2003, p. 31). However, a distinction should be made between those that are affected, given a particular understanding of ‘affected’, and which understanding of ‘affected’ should be accepted. It appears that critics are prone to reject the principle on the basis of objections of the first kind, not making the effort to defend the interpretation of the principle under attack. Sorting out the boundaries of the democratic people on the basis of a specific reading of the all affected principle may turn out to be an intractable task. And it may be that it fails to provide specific guidance. However, it would be a tremendous mistake to reject the all affected principle on the basis of such an analysis, as it remains possible that another and ultimately more plausible reading of it can avoid the charge of inconclusiveness. In what follows we shall, consequently, review three distinct readings of the all affected principle. Affected and stakeholding A primitive understanding of the affected principle emphasises the extent to which different people have a stake in the decisions made by the government. To be affected by the government is to have a stake that is affected, and to have a stake is to put something at risk. An ordinary meaning of what it means to put something at risk is to have made a financial investment. The stakeholder view is embodied in the public company where shareholders put capital at risk and receive a proportional level of influence (and dividend) in return. Essentially the same logic was applied to the regulation of the franchise in predemocratic times. As noted by Sokoloff and Engerman, a stake in the land made ‘landowners analogous to shareholders who were entitled to vote’ (Engerman and Sokoloff, 2005, p. 895). This order was considered legitimate due to the fact that the owners of land were the major taxpayers who had made real ‘investments’ in public affairs. The people bearing the burdens of taxes are, consequently, the ones really affected, which is consistent with the frequent argument in the nineteenth century that ‘those who bear the burdens of the state should choose those who rule it’ (quoted in Keyssar 2000, p. 44). A more elaborate justification can be found in the argument that rights to influence goes together

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with the wealth transferred to the state by means of taxes. The taxpayers’ political privileges represent the extension of the rights that come with rights to private property and, ultimately, the self-ownership of the individual. Since this only applied to taxpayers and since taxpayers were usually the owners of land, the right to influence political decisions was considered to be the privilege of the propertied classes. The battle cry ‘No taxation without representation!’ that resounded at the time of the American Revolution assumed that an economic stake is a sufficient condition for political rights. The stakeholder view holds that an economic stake is a necessary condition for political rights and, consequently, forms the basis for a different premise, namely that there should be ‘no representation without taxation’ (Keyssar 2000, p. 254). Just as shareholders are entitled to exercise their power over a company because they have invested their capital in the business, citizens are perceived as voters to the extent that they contribute to public finance. An implication of this view is that failure to pay taxes, even if by misfortune, results in the loss of the right to vote. Only when your taxes are paid do you have a real stake in public affairs. Electoral laws designed on the basis of this assumption used to be common and, indeed, remained a valid ground for disenfranchisement in the United States until the 1960s (Katz, 1996, p. 228). The weight of the tax payer requirements is illustrated by recent calculations demonstrating that no less than 100,000 Swedish citizens were denied the right to participate in the 1917 elections due to unpaid taxes (Berling-Åselius, 2005, p. 217). Another implication of the stakeholder conception is that the people are to be identified by functional rather than territorial criteria. The democratic people would not be equal to the population within a given territory but would vary from issue to issue in accordance with variations in the stakes of individuals. The people to decide issues concerned with schooling would presumably be parents rather than all individuals, the people entitled to participate in decisions about property taxes should be individuals with taxable properties and so forth. In fact, these criteria for eligibility to vote were introduced by the State of New York in the 1960s and defended by it with reference to the all affected principle. The State argued that the vote should be the privilege of ‘the community of interest’ since they are those ‘primarily affected’ (quoted in Michelman, 1989, p. 462). In other words, the state made explicit use of the stakeholder conception of the democratic people and justified it with reference to the all affected principle. The State’s reasoning was eventually reviewed and invalidated by the observation of the US Supreme Court that the rule would have

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excluded many otherwise interested and affected citizens from participation. Also, the stakeholder criteria were not considered by the Court to be precise enough to be acceptable in the distribution of the franchise (Michelman, 1989, p. 463). There are few contemporary advocates of the stakeholder conception. Yet the idea of ‘equal stakes’ figures in Thomas Christiano’s proposal for a modified version of the all affected principle. Christiano argues that ‘equal treatment’ constitutes a normative constraint on democratic decisions that can be preserved only when the people participating in collective decisions have a ‘roughly equal stake’ (Christiano, 2006, p. 100). In the case this is taken to involve a portioning of democratic power into individual slices according to stakes, the result would no doubt be a travesty of democracy. The stakes are certainly not equal in any field of public policy and law. Christiano’s intention is not, however, to apply the equal stake criterion to separate decisions but rather to the total set of issues on which public decisions are made. The upshot of Christiano’s discussion is that the nation-state is the most appropriate level of democratic decision-making, because only members of the same nation share roughly equal stakes. The end result is a principle similar to that advocated by Rainer Bauböck. According to Bauböck, the ‘stakeholders’ are the people whose ‘circumstances of life link their future well-being to the flourishing of a particular polity’ (2006, p. 2422). In accordance with the analyses of both Bauböck and Christiano, ‘the people’ is to be identified with the members of the ‘polity’ (Bauböck) or the ‘nationstate’ (Christiano), because people’s stakes are at present most tightly knit together at this political level. But if ‘stakes’ correspond to future prospects for well-being, it is questionable whether the borders of existing polities approximates relevant circles of stakeholders. Remember, the major point emphasised by adherents of the causal understanding of the all affected principle is that the effects of political decisions in a world characterised by interdependence are trans-national. The life prospects of farmers in Ghana or in India clearly depend on the import quotas, farming subsidies and foreign aid decided on in European capitals no less than on the decisions made by law makers in Accra and New Delhi. The economic policies pursued by governments in London and Paris may affect the price of groceries in European supermarkets but are at the same time affecting the conditions of survival for poor farmers in Africa and Asia. This means that the people with an ‘equal stake’ in a decision are not identical to the people with a ‘significant stake’. Why, then, should participatory rights be the privilege of people with equal stakes rather

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than the privilege of people with significant stakes? If the people with significant stakes in politics are frequently members of foreign nations, we should acknowledge that the circumstances determining people’s ‘future well-being’ often stretch far beyond the nation-state. Thus, the rationale for the view that ‘equal stakes’ is a fundamental condition for the ‘flourishing of a particular polity’ is largely lost. Moreover, once it is accepted that people’s well-being is what gives them a ‘stake’ in government policy, it would seems that the focus should instead be on the ways in which people are affected by political decisions. To the extent that ‘stakeholders’ correspond to the circle of individuals whose wellbeing is affected by a decision, talking about ‘stakes’ adds nothing to the claim that all affected should be included. Affected by causes A more radical principle ultimately suggested by the stakeholder conception can now be considered. This is the idea that anyone causally affected by the policies pursued by a government should be granted democratic rights. Laws that are passed and policies that are pursued by a government modify the conditions of life for millions of people. Taxes raised or lowered, services provided or eliminated, regulations introduced or abolished exemplify the variety of ways in which political decisions ‘affect’ people. An obvious way of conceptualising the all affected principle is by saying that anyone causally affected by the government is to be recognised as a member of the people. The causal foundations of this view are made explicit in the claim that ‘a democratic say ... rests on the causal principle of having a pertinent affected interest’ (Shapiro, 2003, p. 56). In a similar voice, Young insists that political decisions should be made by procedures that allow for the participation or representation of ‘all the potentially affected parties’ (Young, 2001, p. 672; cf. Young, 2000, p. 27). The implications of a consistent application of the causal conception of the all affected principle are hard to predict in detail but are highly imaginative in general terms. Given the scale and significance of government activity, it can hardly be denied that political decisions frequently ignite chains of causes that spill over the borders of nationstates. In reflecting on this fact, Dahl notes that there is ‘some wisdom’ in the suggestion that South Americans should have a say in US elections, given the fact that its foreign policy is bound to have enormous consequences for them (Dahl, 1970, p. 51). Expanding on this idea, David Held and other advocates of ‘cosmopolitan democracy’ have made frequent use of the all affected principle. Since the outcomes of

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political decisions stretch far beyond the borders of individual states, a new global ‘inter-connectedness’ has emerged that calls for new participatory institutions linking together the people whose lives are ‘affected’ (Held, 1996, p. 352). In a globalised world, formal membership in existing countries is no longer a valid premise for democratic rights. In its place, what is needed is a cosmopolitan conception of democracy that ensures that the rights to political influence correspond to the global reach of causal flows that is the reality of the day. Nevertheless, Held’s argument may seem unjustifiably restricted from the vantage point of the all affected principle. The effects of political decisions are even more far ranging than what is acknowledged by the idea of cosmopolitical democracy. As already alluded to above, Robyn Eckersley (2000, 2004) points out that the consequences of political decisions are not limited either by species membership or location in time. That is to say, the causal model of the principle appears equally applicable to other creatures and perhaps even to unborn generations (cf. Tännsjö, 2006). In one respect, these implications are obvious, since the natural environment is among the first victims of modern politics. But the argument for the truly universal reach of political decisions can be bolstered even further by adducing the insights achieved by students of complex social and natural systems. Studies of societal complexity have shown that the effects of interventions in a social or natural system can be dramatic, unexpected and wide ranging (Dahl, 2004; Duit and Galaz, 2007; Jervis, 1997). An example is the so-called ‘butterfly effect’ in which minor adjustments in the initial conditions of a social or natural system may provoke disproportionate effects (typically illustrated by meteorological models in which drastic changes in the weather are caused by the behaviour of individual organisms). Considering the fact that the impact of political decisions may be of a similar nature, Nancy Fraser concludes that ‘just about anyone could be affected by just about anything’ (Fraser, 2005, p. 83 n. 15). Appreciating the full complexity of political systems brings new perspectives to the causal version of the all affected principle. Drawing the analysis to its logical conclusion, the all affected principle in the end justifies a right to political participation among ‘virtually everyone in all possible and future worlds’ (Goodin, 2007, p. 55). These radical implications have nurtured scepticism among democratic theorists as to the feasibility of the causal principle. Given the almost endless reach of political decisions, coupled with a large amount of indeterminacy and uncertainty as to whom is in fact ‘affected’, the principle has been dismissed as unhelpful. It may in the end appear a

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futile project to attempt to identify anything resembling a democratic people on the basis of the all affected principle. In fact, the hopelessly demanding implications of the causal principle are commonly held against it (Lopez-Guerra, 2005, p. 223; Agné, 2006, p. 437; Scheuerman, 2002, p. 454). On the other hand, it is worth emphasising that unexpected and demanding normative implications are not necessarily a reason for rejecting a principle. It cannot be ruled out from the outset that the causal version of the all affected principle captures the true challenge raised by the problem of democratic inclusion. Even if the principle turns out to be hopelessly demanding and impracticable in determining who should participate in political decisions, the principle may, nonetheless, be justified as a normative ideal to be approximated (Arrhenius, 2005, p. 16.). However, there are a different set of concerns with regard to the causal version of the all affected principle, apart from its radicalism. The first concern involves the conditions for ascribing causal connectedness between political decisions and individual persons. The second concern involves the basis for believing that political rights can somehow be inferred from the causal relationship between political decisions and individuals. The first concern is related to the ambiguities of causation in a complex society. To say that a person is affected to the extent that this person has interests that are causally affected by governmental decisions is suggestive but potentially confusing. Consider, to begin with, a simple model of causation according to which an event (or action) can only be caused by a previous event. This implies that when there are no previous events (or actions), no causes will ensue. A ball breaking a window causes it to break and would not have done so unless it had been thrown at it. In a political context, a policy or law being adopted can be imagined to cause people to behave in ways that they otherwise would not have. Consider, next, a situation in which people expect a decision to be made but the government eventually abstains from acting. Given that non-events cause nothing and that people are affected only by causes, it seems to follow that people were not affected by the government in this case. And yet, the interests of people expecting action from the government were clearly ‘affected’ in some sense of the term. Perhaps the value of people’s savings declined dramatically as a result of governmental inaction (as in the initial failure of the US Congress to pass a bailout plan in October 2008). Or, perhaps some people lost their homes or lives as a result of the failure of the government to act (as in the havoc following hurricane Katrina in 2005). Arguably, the government affected

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people in these cases precisely because it did nothing. A possible objection to this conclusion is that it overlooks the importance played by expectations. If you expect assistance, you will naturally suffer if help is not offered. But the suffering experienced in such circumstances is to some extent caused by the expectations you have nurtured, not by the fact that help was not offered. The people who suffered from the Katrina disaster suffered as a result of what the hurricane did, and they probably suffered even more due to frustration over the lack of government assistance. The inactivity of the government caused none of this suffering; the hurricane and people’s expectations did. In speaking of the causal effects of political decisions, we should not refer to variations in welfare that are caused by frustrations, hopes and fears. To be affected by the government should mean being affected by what the government does, not by what we expect it to do. However, it remains unclear whether inaction can cause someone to suffer. If we consider the position taken by adherents of the causal version of the all affected principle, the answer appears to be that inaction does not affect anyone in the relevant sense of the term. The very basis for Held’s plea for a cosmopolitical conception of the democratic people is the analysis that national governments have only now begun to affect people around the globe. In the past the situation was different, meaning that borders better approximated circles of affected people. The cosmopolitical analysis is, consequently, premised on the view that inaction causes nothing since, if this view were rejected, the cosmopolitan would have to conclude that the history of mankind has always been interconnected. Were the view that inaction may be the cause of suffering to be accepted, the cosmopolitan would be committed to the idea that protectionist or isolationist governments are as much responsible for the effects of globalisation as champions of global trade and finance. Support for the intuitive distinction between action and inaction is found in Donald Davidson’s remark that causation and causal explanation are distinct modes of analysis (Davidson, 1967, p. 703). The basic idea is that an explanation will make reference to inactions, while inactions are not strictly speaking causes. When a ball is thrown and not caught by the other person, hitting a window as a result, it is no doubt reasonable to explain the event with reference to the failure of the person catching the ball. The inaction figures as part of the explanation because to ‘explain’ is to be interested in the full ‘causal story’. By contrast, a description of the causes of the event (the broken window) cannot include non-events, since the absence of an event produces

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nothing; ‘omissions and so forth are not part of the real driving force in nature’ (Armstrong, 1999, p. 177). What caused the window to break was the kinetic energy imputed to the ball by the person throwing it, not the fact that the ball was not caught. Similarly, what caused the suffering of the people in New Orleans was hurricane Katrina, not the lack of assistance by the government. Moreover, the losses sustained in the stock market on 29 September 2008 were caused by fundamental economic problems, not by the failure of the Congress to initiate a bail out plan fast enough. Of course, this is not to deny that the government can be held responsible for the outcome, since it certainly could have acted otherwise and may have been under an obligation to do so. A government can, in other words, be held responsible for outcomes it is not causally responsible for. The point of this discussion is to demonstrate the problems associated with making the scope of the democratic people dependent on the activity of the government. In accordance with the causal version of the all affected principle, the more the government is doing, the more people are affected and vice-versa. It is far from clear that a principle of this kind has the power to justify the enfranchisement of the people in the case the government is an old-style nightwatcher state. Perhaps this point makes the principle appear less attractive. But the argument suggested by this observation is a different one, namely, that there is something odd about the idea that the extension of political rights should vary in proportion to the scale of government intervention. Arguably, the right ‘to rule’ should include the right to initiate action where none previously existed. This view is contradicted by the causal version of the all affected principle, since it reverses the relationship between popular rule and the extension of government activity. The causal version appears committed to the notion that ‘to rule’ is a right on behalf of the people only under the condition that government action has already affected them. A major problem with the principle is, in other words, that it rests on a truncated conception of rule by the people. The second concern with the causal conception of the all affected principle involves the explanation it offers for why people should have the right to participate in the making of political decisions. The question is, simply, why causal effects should be considered decisive in identifying the democratic people? A preliminary remark in this context is that actions affecting others do not generally create participatory rights. In the case in which A adversely affects B, the response would typically be either to regulate A’s actions or to file for compensation. The basis for the complaint would be that A failed to adequately consider the

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interests of those affected by his or her actions – not that A failed to let everyone affected participate. That is, if the burdens of a political decision fall unevenly on a particular group, this may provide a basis for the conclusion that the decision is unfair in substance. The lack of consideration demonstrated by the government does not necessarily imply that the maltreated group should have been allowed to participate in the decision. As noted in previous examinations of the causal version of the all affected principle, ‘democratic inclusion is a strange remedy ... when someone’s fundamental interests have been violated’ (Karlsson, 2008, p. 67). For example, it is commonly the case that governments pursue economic policies that fail to consider the interests of the members of foreign countries. Such policies may well be condemned precisely because they do not take into account the interests of everyone affected. But, again, it is not obvious why the complaint should be that the members of other countries should have been able to participate in the decision rather than, say, that the policies should simply have taken more consideration. As these examples suggest, it can be argued that there is a moral principle to the effect that an action is wrong if undertaken without due regard for the interests of all affected parties. This moral principle is endorsed, in one form, by Jürgen Habermas. According to Habermas, a basic criterion for the validity of a moral norm is that it could have been agreed to by ‘all affected’ in a ‘rational discourse’ (Habermas, 1996, p. 107).10 This so-called ‘discourse principle’, consequently, provides a standard for moral legitimacy by claiming that actions should be evaluated with reference to the extent to which they could have been accepted by everyone whose interests are affected. The discourse principle is easily confused with the distinct claim that everyone affected should be included in the political process of a democratic political system. However, the idea that an action is morally legitimate in so far as it takes the interests of all affected persons into account does not imply the requirement that anyone affected by a government is entitled to participate in the political process. Arguably this confusion is widespread among so-called ‘deliberative democrats’, as they attempt to model a democratic theory on the basis of a moral theory of Habermasian descent. An example is provided by John Dryzek who argues that deliberative democracy is necessarily associated with the principle of affected interests: ‘those affected by a policy decision [should] have the ability to participate in deliberations about its content’ (Dryzek, 2002, p. 34; cf. Dryzek, 1999, p. 44). It is a confusion, nonetheless, and one that Habermas is not guilty of. Habermas

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distinguishes the moral content of the ‘discourse principle’ from the ‘democratic principle’, according to which those ‘subject to law’ should be able to conceive of themselves as ‘authors of law’ (Habermas, 1996, p. 120; Lopez-Guerra, 2005, p. 225). Habermas, thus, recognises that while an action or a policy is objectionable if it could not have been agreed to by everyone affected, it does not follow that everyone affected has a right to participate in institutions making decisions affecting them. The mistake made by writers like Dryzek and others appears to be rooted in the failure to distinguish ‘affected’ as a condition for moral consideration from ‘affected’ as a condition for participatory rights in a democratic political system. It may be true that everyone affected should be considered in order for our actions to be morally acceptable. And it may be true that a democratic government should offer everyone affected the right to participate in its decisions. But the one does not imply the other. Moreover, if the right to participate in political decisions cannot be justified on the basis of the moral principle that the interests of everyone affected should be considered, it ultimately remains unclear how democratic rights can be justified with reference to causal effects. Affected by law The literature indicates a third potential interpretation of the all affected principle that emphasises the legal sense of ‘affected’. Essential to this view is whether a person is ‘bound by’ a collective decision or not. This portrays the circle of relevantly affected individuals as limited by the extent to which they are ‘subject to the government and its laws’ (Dahl, 1989, p. 123). Accordingly, attention should be directed towards the scope of the government’s authority and not towards the web of causal effects that flows from the decisions it makes. A person is affected in the legal sense if and only if this person is subject to a legal system regulating some features of his or her behaviour or status. The democratic people is, hence, circumscribed by what Hans Kelsen has described as the ‘legal community’ (Kelsen, 1947, p. 381). The legal interpretation of the all affected principle envisages all legal subjects as members of the democratic people. The contrast with the causal version is evident, since a person need not be a legal subject in order to be affected causally by laws and policies. There is, as pointed out by Lopez-Guerra, an ‘elementary difference’ between being ‘affected by the decisions of a state and being governed by the laws of a state’ (Lopez-Guerra, 2005, p. 224). The legal conception of the all affected principle takes the coercive effects of the law as fundamental to the democratic people. A

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democratic people is one that is subject to collectively binding rules, ‘binding’ since they are sanctioned by the state’s coercive apparatus and ‘rules’ due to the fact that law-making epitomises the nature of popular rule. The primary sense of being ‘affected’ is, hence, that of being a legal subject. This understanding is reflected in Beetham’s remark that the people consists of all those ‘subordinated to government’ (Beetham, 1991, p. 89). Another term used to signify the notion that the coercive and binding effects of the law are primary is ‘compliance’. Thus, Rawls explicates the meaning of the principle of participation as the requirement that ‘all citizens are to have an equal right to take part in ... the laws with which they are to comply’ (Rawls, 1971, p. 221). The legal conception of the all affected principle was arguably crucial in mobilising support for the extension of suffrage at the advent of modern democracy. The legal duties imposed by the state inspired demands to the effect that there should be corresponding rights on behalf of the people. The notion that political power should be shared among all subjects has usually followed in the wake of expanding coercion exercised by the state, such as taxation of formerly untaxed assets or the introduction of universal male conscription in times of war. Consequently, the sacrifices of the African Americans in the Civil War and of the Indians in the Second World War provided powerful arguments in favour of increasing opportunities for democratic inclusion (Keyssar, 2000, p. 254). In order to appreciate the implications of the legal version of the all affected principle, we need to examine more closely what ‘unaffected’ by the government should be taken to mean. At first, it can be ascertained that the legal view hardly allows for the possibility of a government not affecting its subjects. A government is a political authority and, as such, is vested with a right in relation to all subjects to be obeyed (Raz, 1986, p. 23ff.). There is, then, an equal duty among all subjects to obey, since the law ‘binds or favours all the citizens equally’ (Rousseau, 1762, II:4). From these remarks, it seems to follow that anyone affected by the government is always equally affected by it. If the law equally binds all subjects and if to be bound by the law is what defines affectedness, all subjects are equally affected by the government. Thus, the crucial point is not whether a person has been forced to comply with a particular precept but that each subject is obliged to comply with the legal system. A concern with the legal conception is that it could yield incoherent conclusions under certain conditions. This is the case when a political decision involves the scope of the jurisdiction itself. Consider, for example, a government deciding to enter into a confederation or union with

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another political entity. This may happen when a new authority is created within a larger one or, more radically, when a segment of a political unit secedes. In cases like these, the legal view runs into trouble, since who will be affected by the decision would seem to depend on what decision is made, which is, in turn, conditioned upon who is allowed to participate. The inability of the legal view to specify the democratic people in decisions on the extension of the jurisdiction is illustrated by referendums arranged for the purpose of deciding questions of secession. Recent examples include the struggle of the inhabitants of the borough of Staten Island to secede from the City of New York and the declaration by Albanians in the province of Kosovo to achieve independence from the Federation of Serbia. In resolving these conflicts by democratic means, it may be suggested that a referendum provides a promising arrangement. But who should be counted as a member of ‘the people’ with the right to participate in the election? Both the seceding minority and the anti-secessionist majority could appeal to the legal version of the all affected principle in order to justify contradictory answers to this question. On the one hand, it can be pointed out that the majority (e.g. New Yorkers or Serbs) will not be subjected to the seceding political unit and, therefore, should not have the right to participate in its decisions – not even in the decision to create it. But this view is only valid on the assumption that the outcome of the vote is in fact that a new legal community is created. In the case the outcome is not the creation of a new legal community, the decision is valid for both the minority and the majority, as it is binding for all subjects of the existing legal unit (i.e. New York or Serbia). In accordance with the all affected principle, it could be argued that all of the inhabitants of these territories should be entitled to participate in the decision. The extension of the democratic people seemingly depends on the decision made by the people, which does not make very much sense (Whelan, 1983, p. 21f.). These complexities are mirrored in legal realities. The US Supreme Court has delivered adjudications in cases in which citizens have complained that they were unduly excluded from the right to participate in decisions on the division of the units themselves. The first thing to notice about these verdicts is the unequivocal affirmation by the Court that the scope of the jurisdiction determines the extension of voting rights. The Supreme Court established that ‘a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction’ (Dunn v. Blumstein, 1972). The emphasis by the Court on the connections between suffrage rights and

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the scope of the ‘jurisdiction’ provides some support for the legal interpretation of the all affected principle. However, the second and more interesting finding is that the Court refused to adjudicate the proper extension of suffrage when more than one relevant jurisdiction was at stake (Briffault, 1992, p. 794). Instead, the Court argued that political authorities on a higher level should have considerable discretion in deciding the issue. This suggests that the Court does not believe there is a principled solution to the problem consistent with the legal version of the all affected principle to which it apparently subscribes. However, it should be remembered that the legal version of the all affected principle is only defective with regard to decisions concerning the shape of jurisdictions. Although such decisions are regularly made, they are by no means frequent in ordinary politics. There is nothing incoherent in saying that everyone affected, in the legal sense, should have the right to participate, even when it is recognised that the decision made eventually depends on who is entitled to participate. The legal conception may, in other words, be characterised as incoherent only in a marginal sense. In contrast, the causal version of the all affected principle is vulnerable to the charge of being incoherent at its core. The causal view would count anyone causally affected by a decision as a member of the people. Now, as the effects of a decision depend largely on which decision is made, it is clear that the decision made is germane to whom is eventually affected. Moreover, as different collections of people are bound to produce different decisions, the people entitled to make a decision are likely to depend on who is making it. But this would be like expecting the cart to be put before the horse. It makes little sense to say that the right to participate should depend on which decision is made, which is why the principle has been characterised as ‘just incoherent’ (Goodin, 2007, p. 53; Whelan, 1984, p. 19). As these remarks suggest, the legal interpretation of the all affected principle is superior to the causal version. Conclusions It is now time to summarise the results of the argumentational and conceptual battles thus far in this chapter. The idea being defended is that democratic suffrage can be identified only once two issues have been settled. The first is how inclusion should be related to the concept of democracy. The second is by what criteria membership in the democratic people is to be determined. Taken together, the answers to these questions constitute the core meaning of a democratic

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distribution of the right to vote. I have argued that the answer to the first question is that inclusion is integral to the concept of democracy and that an association is more democratic the more inclusive it is. The view accepted here is, hence, that we should adopt a maximalist approach to the definition of democratic inclusion and that it is the most fruitful given the specific research agenda at hand. Moreover, I have argued that the answer to the second question should be couched in terms of the all affected principle – a person is a member of the democratic people if he or she is affected by the governments’ decisions. Although there is broad agreement that the all affected principle should be a part of the answer, a problem is that this principle allows for many different and conflicting interpretations. As demonstrated above, there are at least three distinct readings of the meaning of ‘affected’. Granted that the stakeholder view is reducible to the causal view, the conflict is in effect between this version and the legal understanding of the principle. In deciding the matter, it appeared that the legal conception is more coherent. As indicated by the analysis above, the attempt to identify the circle of affected persons with reference to the causal effects of government policy and law runs into confusion as a consequence of the observation that the effects are in reality a function of who participates in the making of the decision. However, serious as this objection may be, it is not clear that it proves the principle is indefensible rather than merely impractible. Perhaps including ‘everyone everywhere’ is not a feasible idea at all. But there may be second-best alternatives available. For example, those who cannot be included could be compensated and the authority of democratic governments could be restricted in ways that ensures that those who cannot be included are less affected (Goodin, 2007, pp. 55–68). A more decisive objection is that a conception of the democratic people should be compatible with the rules for concept formation previously discussed. In order to identify appropriate tools for the subsequent analysis, we should take care not to confuse definitional properties with normative arguments. That is to say, we should make a clear distinction between the concept of a democratic people and the normative justification of a particular distribution of the right to vote. As demonstrated above, advocates of the causal version of the principle are prone to defend it with reference to a normative stance. The reason that all (causally) affected persons should be counted as members of the demos is, in this view, that they have the right to protect and promote their interests on all matters affecting them. A fundamental trait

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of any justifiable procedure for collective decisions is said to be that it includes anyone causally affected by it. Perhaps this is the correct way to see things from a moral perspective. But even so, it does not demonstrate that this is how to define a democratic people. Given the assumption that the concept of democracy is primarily descriptive (albeit with evaluative connotations), it would seem prohibitive to define a ‘democratic people’ in normative terms. A descriptive definition makes it possible to bracket the normative issues and to ask, as a separate question, whether more or less democracy is what we should attempt to attain. In contrast, should ‘democracy’ be conceptualised on the basis of normative principles; it simply makes no sense to ask if more democracy is necessarily better. Of course, it is not part of the current project to argue that less democracy, meaning less democratic inclusion, is more often preferable than not. I believe, though, that the conceptual scheme offered here represents a more fruitful approach to the study of the many conflicting claims surrounding the right to vote in the coming chapters. It is more fruitful because it avoids the mistake of answering normative questions through the mere adoption of a definition. The definition of the democratic people should be reserved for the purpose of describing existing distributions of the vote and identifying the extent to which they are exclusionary or not. The question of evaluating suffrage restrictions is normative and not to be resolved by definitional gambits. Once these points are acknowledged, the legal understanding of the all affected principle appears to offer the most promising solution to the definition of the democratic people.

Are unequal political rights ever justified? The discussion thus far has led us to the claim that a democratic distribution of the right to vote should be conceived of as one including as many members of the people as possible, where the ‘people’ refers to everyone subject to the legal authority of the state. The claim essentially offers an account of the meaning of ‘democratic inclusion’. Observation about the inclusiveness of a political order, made on the basis of this understanding of ‘democratic inclusion’, does not entail any judgement about the normative status of the distribution. However, strong norms have undoubtedly been established that speak in favour of inclusive suffrage and against arbitrary restrictions on the right to participate in the political process. With particular reference to differential treatment in the realm of political rights, international law affirms that restrictions

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have to be based on ‘objective and reasonable criteria’ (CCPR/C/21/ Rev.1/Add.7, 1996). Deviations from equal political rights are, in other words, perceived as legitimate only to the extent that they are supported by ‘reasonable’ distinctions between people. The basis for the requirement that only ‘reasonable’ criteria should be accepted is the importance attached to ‘equal rights’ in a democratic society. The idea of ‘equal rights’ is well anchored in international and constitutional law and is considered a ‘constitutional essential’ in a just political system (Rawls, 1993, p. 227). Exclusions from the franchise should be conceived of as exceptions to fundamental constitutional principles and are, as such, clearly in need of justification. In fact, deviations from norms of equal rights appear particularly problematic in the realm of political rights. The right to vote is the right to participate in the process deciding on the use of public authority, backed up by all the coercive powers of the state. A person denied access to the vote but subject to the coercive powers of the state is, hence, ruled by the other members of society and offered no corresponding powers over them in return. As pointed out by David Estlund, an arrangement under which some people are left without political power creates ‘extra burdens’ for them as compared to a system in which political power is equally distributed. This is, Estlund argues, why universal suffrage should be assigned a certain ‘default status’ and why exemptions from this rule require qualified justification (Estlund, 2008, p. 37f.). Despite the presumption in favour of equal political rights, it remains true that virtually no one advocates a political system granting literally everyone the right to vote. As noted by D. F. Thompson, ‘complete equality’ in terms of political rights may in some circumstances be ‘not only impractible but also undesirable’ (Thompson, 2002, p. 9). Yet, not just any claim about the ‘undesirability’ of equal political rights is justified. It is only by virtue of their reasonableness’ that distinctions between people can justifiably translate into legal criteria. So, the decisive question turns out to be what characterises ‘reasonable’ distinctions between people with regard to political rights. In Chapter 1 we confronted a number of qualifications that have regularly been employed in relation to the right to vote and that still remain in force in most democracies. In order to be a voter, you have to qualify as competent, as independent and as belonging to the political community. As has already been made clear, the notion of ‘belonging’ is a fundamental category, since it refers to the criteria for membership in the democratic people. A democratic community is understood as one in which all its members are entitled to participate in the making of

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collectively binding decisions. Moreover, a person is considered to be a member of the democratic people in so far as he or she is subject to the legally binding rules enacted by it. The criteria for membership in the democratic people are, consequently, captured by the legal interpretation of the all affected principle. Now, this conception of a democratic people does not preclude justification either for the inclusion of non-members or for the exclusion of members. As we know, other criteria, such as competence and independence, may prove to be relevant. In addition, the reasons motivating a concern with certain qualities of the electorate may be related to a variety of public interests. However, in order to judge their acceptability, a standard of reasonableness is needed. At first, it may appear plausible to say that standards of ‘reasonableness’ should be developed on the basis of a normative theory of what is of value and how these values are to be ranked or balanced in a just society. The problem, though, is that there is much disagreement on this topic, and there is no single, readily available theory to fall back on. According to one view, democratic institutions should be evaluated primarily from the vantage point of ‘democratic values’. The argument is that the requirements of democracy can only be inferred from an account of its ‘core values’ (Brettschneider, 2007, p. 17). The way to proceed is through articulation of the values derived from a conception of democracy, using it as a benchmark against which to judge institutions in the real world (Fung, 2007, p. 444). According to a rival view, the essential issue does not involve identifying democracy’s values but recognising other values in relation to which democracy may have to be ‘tempered’. There is, in accordance with this view, an inevitable tension between aspirations for popular rule and individual liberty. The appropriate way to proceed is, thus, by way of striking a balance between the value of ‘freedom from arbitrary authority’ and the values associated with democratic inclusion and other political rights (Zakaria, 2004, p. 31). Arguably, both perspectives capture fundamental insights of democratic thought. On the one hand, democratic institutions are to be understood as the embodiment of values associated with the idea of popular participation under equal conditions. This view reflects the theory of democratic values according to which ‘democracy’ is a normative ideal and not just a term with a particular descriptive meaning. On the other hand, there are undoubtedly values that are not specifically ‘democratic’ but that deserve protection and that should be promoted in our society. Conflicts between ‘democratic’ values and other values are, therefore, to

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be expected. Accommodating both standpoints entails recognising that controversies related to the basic legal-institutional structure of democracy necessitates an investigation into the nature of the democratic ideal and other values potentially in conflict with this ideal. The suggestion that there are various democratic and liberal normative theories in this field is not particularly helpful. What we need is a standard that could serve as the basis for adjudicating between conflicting claims. What we need, then, is an approach that enables us to evaluate the reasons for and against exceptions to the rule of ‘equal rights’. Taking these remarks into consideration, an alternative is to accept that we cannot identify the values that justify exceptions to equal political rights in advance. The interests, facts and values relevant in each individual case of democratic exclusion are likely to be varied and complex. The considerations relevant in debating children’s suffrage are likely far removed from the concerns introduced through an inquiry into the justifiability of prisoners’ political rights. The analysis of these issues could be narrowed by introducing specific normative stipulations about the nature of relevant considerations beforehand. The argument is, hence, that we should adopt a conception of reasonableness that does not preclude the perspectives that are of relevance in relation to particular normative problems. Thus, no list of ‘reasonable’ distinctions is to be expected. A contractualist perspective It may be provisionally accepted that ‘it is difficult to come up with general formula’ for when political rights can legitimately be restricted and that any argument on this topic is largely ‘a matter for judgement in particular cases’ (Weale, 2007, p. 19). But although a formula cannot be expected in advance, we should expect that something can be said about the structure required of a justification for unequal rights. The answer here is provided by contractualism, or the idea that a valid argument for the distribution of democratic rights should be acceptable to all reasonable persons. According to contractualism, basic political institutions are legitimate only if they can be justified by principles that no one could reasonably reject. This is a strongly egalitarian and individualist position, which assumes that the interests of all individuals are of equal importance. This is a basic precept supported by both democratic and liberal versions of contractualism (Darwall, 2002). Contractualism’s recognition of equal consideration as a requirement for reasonable restrictions, consequently, epitomises a fundamental idea of liberal and democratic thinking.

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According to contractualism, the characteristic that imputes legitimacy to coercive institutions is the acceptability of the reasons that underlie them. This is not to say that contractualism seeks to elicit mere ‘acceptance’ from people. The salient feature of legitimate political institutions is not the extent to which they are ‘liked’ by the people but the extent to which they could reasonably be expected to be approved by each and everyone. For instance, although an offender convicted of a crime cannot be expected to approve of the sentence, contractualism holds that an offender should, nevertheless, be able to accept the reasonableness of the principle that criminal offences ought to be punished by the state. There should be reasons that the convicted person could reasonably accept the idea that the state is authorised to punish violations of the law. On the assumption that the laws are reasonable and the procedures for criminal justice are perfect, the offender should, in other words, be able to perceive him- or herself as the ‘author of his own punishments’ (Hobbes, 1968, chapter 18; Rousseau, 1968, II:5). The particular features of the legal system that could reasonably be accepted by all is, naturally, a matter of contention. The relevant point here is that the interests of each person should be considered in assessing the acceptability of a policy or institution. This should satisfy the basic requirement of political justice that ‘everyone’s point of view’ is given equal consideration (Nagel, 1991, p. 33). It should be noted from the outset that the application of contractualism to specific institutions in contemporary democracies constitutes an attempt to bring the idea of a social contract closer to political realities. The notion of a social contract, as it figures in the classic works of Thomas Hobbes, John Locke and Jean-Jacques Rousseau as well as among more recent writers like John Rawls and Robert Nozick, is employed foremost in the justification of political regimes. The subject matter of contractualism has generally been understood to be the principles guiding the general structure of rights and duties, or what is above referred to as ‘constitutional essentials’. The contractualist perspective has rarely been employed in relation to the ‘niceties’ involved in designing democratic institutions (cf. Beitz, 1989). An indication of this is Rawls’ cavalier attempt at dealing with restrictions on equal and universal suffrage. Although Rawls makes great efforts to demonstrate why equal participatory rights are among the constitutional essentials of a just and democratic society, Rawls is content with the observation that exceptions to such essentials are ‘presumably’ introduced in the ‘common interest’ (Rawls, 1971, p. 223). Perhaps typical of contractualist thinkers, Rawls is more attentive to the major principles of a just

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and democratic society and less concerned with the exact nature of the exceptions and restrictions embraced by such societies. Three features of contractualism As should be clear from the discussion thus far, contractualism provides no more than the structure for the evaluation of reasonable claims and can, thus, be characterised as an open-ended standard. It displays two additional features that are particularly suitable for our purposes. The first is that it gives special attention to the reasons of the worst-off members of society. The second is that it calls for what is essentially a comparative method of analysis that has clear affinities with legal reasoning. Asking whether a legal rule exempting some people from the enjoyment of equal rights, given the contractualist standpoint, involves exploring the reasons that could possibly be brought up against and in favour of this rule from the perspective of the people to whom the rule applies. An implication of this idea is said to be that we should first of all identify the interests of the people that are likely to suffer the most from it (Scanlon, 1982, p. 123). In order to see why this is the case, a basic feature of contractualism needs to be appreciated. The defining feature of a contractualist justification is that the uncoerced agreement of all parties is required for the moral acceptability of an action. This is equivalent to the claim that an action some people could not reasonably accept cannot be justified. Even a single person’s reasonable rejection of an action would be sufficient to conclude that the action is unacceptable. For this reason, we are well advised to explore the complaints of those most likely to reject the action under consideration. On the assumption that those that stand to lose or suffer from the action are also the ones most likely to reject it, there are good reasons for us to consider the complaints of the ‘worst off’ in the first place.11 In our case, the ‘worst off’ most plausibly refers to the people denied equal political rights. From a contractualist framework, a justification for democratic exclusion should, therefore, begin by considering the interests of the people excluded from the realm of equal political rights. The obvious implication is that special attention should be given to the members of the community that are excluded from political participation (children, prisoners, the cognitively impaired and resident noncitizens). Are the reasons for exclusion such that these groups could reasonably have accepted them? In addition, the reasons for the exclusion of non-members should be considered, even though their situation is different since they are not subject to the burdens associated with being subject to the political authority. In any case, a contractualist

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justification should be able to explain why the rules and policies are reasonable to anyone. The relevant circle of interests to be considered by contractualist standards has no limits and, in effect, ‘transcends’ the borders of democratic communities (Cheneval, 2006, p. 166). As a result, there may be moral reasons why even non-members should be granted rights of political participation from a contractualist standpoint. The focus on the worst off is by no means intended to suggest that the reasons of those that stand to gain from an action can be ignored. The reasons of everyone affected by the action should be accounted for. Seeking justifiability to others is a way of responding to the distinct value of each person (Wallace, 2002, p. 456). For example, it should be of equal importance to consider whether other members of society receive important benefits from the exclusion of children, prisoners, the cognitively impaired and resident non-citizens. However, at this point it should be recalled that a distinctive feature of contractualism is that ‘numbers’ do not count. The mere fact that more people stand to gain from an action than stand to lose from it is not itself relevant. This may seem to be a natural implication from the idea that the criterion for justified action is that it can be supported by reasons that no single individual could reasonably. However, it would clearly be unreasonable to ignore in general the aggregative consequences of an action if, for example, the costs it creates for others than the worst off are at least morally significant (Scanlon, 1998, p. 240). Apart from this advice, it would seem difficult to say anything in general from a contractualist standpoint about which considerations are relevant, given the diversity of interests people may have and the variety of circumstances they may find themselves in. Contractualism’s lack of guidance is illustrated by Scanlon’s remark that ‘judgement’ is required in determining the justifiability of an action, since the grounds for reasonable rejectability ‘are not completely specified in advance’ (Scanlon, 1998, p. 218; Pogge, 2001, p. 139). The contrast with other normative theories is that contractualism offers no template of relevant considerations. For example, a utilitarian theory specifies what to look for before confronting the particular nature of a problem and considers as relevant only reasons pointing at factors affecting the total sum of welfare. Contractualism shies away from any metric of ‘relevant reasons’ and allows for a broader spectrum of reasons to enter the picture. It recognises that a ‘plurality of reasons’ may be relevant to the case at hand (Beitz, 1989, p. 100). The good thing about all of this is that it corresponds to the idea of the framework adopted above that it may be better not to identify in advance the values at stake in relation to divergent exclusions from the

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vote. The bad thing is, of course, that it may allow for too much ‘judgement’, leaving the analysis without any structure at all. There is an important element that can mitigate this weakness. It is that contractualism does not require the consideration of just any reason whatsoever but only reasons compatible with the motivation to reach reasonable agreement (Scanlon, 1982, p. 111). A complaint is reasonable, hence ‘relevant’, if it represents a reason that could be expected to be accepted by anyone similarly motivated to reach agreement. For example, an action is not considered as wrong simply because it is costly to a person. The alternative to a costly action may in effect be actions (or inactions) more costly to other people. Clearly, for the purpose of acting on principles that everyone could reasonably accept, these costs should be taken into account as well. An objection to an action could, thus, be dismissed as ‘unreasonable’ if it fails to consider the objections others might have to the alternatives at hand. The method for evaluating relevant considerations is basically ‘comparative’. The relevant reasons for and against an action are not specified in advance but are discovered by comparing the reasons that pertains to it to the reasons in favour of any alternative action (Scanlon, 1982, p. 113; Scanlon, 1998, p. 195). Applied to the evaluation of legal rules, the idea is that the justifiability of a particular legal rule hinges not only on its own merits but on how the reasons for and against it compare to the reasons for and against an alternative rule (Kumar, 2003, p. 34). For example, the case for exceptions based on age or citizenship in the distribution of voting rights are to be compared with the reasons that could be mustered against not allowing for such exceptions. And the reasons considered to be relevant in this comparison are to be identified with reference to the interests of the parties affected in both cases. The comparative nature of contractualist reasoning reveals important similarities with the structure of legal reasoning employed by constitutional and international courts in cases concerned with basic rights and liberties. Courts are usually competent to review legislation and government policy whenever these are charged with violating the rights of citizens. The task presented to the court in such cases is generally understood to involve at least two steps. The first involves the extent to which the policy invading the sphere of interests protected by the legal right is truly ‘necessary’ (Emiliou, 1996; Alexy, 2000, p. 297). A policy is considered to be necessary when there is no equally effective alternative available to the government in the pursuit of the specified aim. For example, the use of physical violence by a police officer against a member of the public is ‘necessary’ only if non-violent means would

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clearly have been insufficient for securing the interest at stake. Through review, courts are bent on guaranteeing that the rights of citizens are not ‘unnecessarily’ infringed upon by the agents of public authority. The second step in reviewing a policy or single action involves assessing the importance of the interests protected by it in relation to the interests infringed upon in the process. Are the harms caused by the action ‘proportionate’ to the benefits it intends to secure? In exploring this issue, courts conduct comparisons as well, not of the alternative means available but of the relevant interests. This represents a more challenging task. If, for example, we are to evaluate the proportionality of a particular use of physical violence by a police officer, we should have to compare the relative importance of the interests protected by the police’s action to the importance attached to the interests in health and bodily integrity of each citizen. The court typically identifies the relative importance of the interests involved by consulting available legal sources. A correct judgement is, in that sense, a technical issue, except in ‘hard cases’ where the moral judgement of the court is arguably involved (Dworkin, 1986). From a contractualist perspective, the law is not recognised as a privileged source of reference for assessing the relative importance of interests. Deciding the ‘reasonableness’ of an action from a contractualist point of view is not a matter of legal interpretation but a matter of finding a plausible answer to a particular question: What actions could be accepted by parties motivated to act on the basis of principles that everyone could reasonably accept? Despite this important difference, the point is that the dual tests of necessity and proportionality closely mimic the structure of reasoning introduced by contractualism. As a model for the evaluation of rules that restrict access to political rights, contractualism, therefore, proceeds in ways that share important features with legal reasoning.

Conclusions Any attempt to evaluate the exclusions from the vote still in force requires that the standards for evaluation are made explicit. Any claim to the effect that a particular restriction of the vote is ‘undemocratic’ or ‘unjust’ is intelligible only on the basis of a particular understanding of these concepts. This chapter has offered an attempt to clarify the standard at work in subsequent chapters by presenting three distinct claims. The first is a claim about the meaning of a ‘democratic’ distribution of the vote. In reviewing a variety of approaches to the definition

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of democratic suffrage, the argument is made that we should favour a ‘maximalist’ view according to which a vote is ‘democratic’ to the extent that it embraces as many members of the community as possible. This terminology is reasonably faithful to established conventions of usage and has the methodological virtue of not prejudging the normative issues at stake. The basic idea is that descriptive propositions about the inclusiveness of the vote should not reflect normative convictions about the way the vote ought to be distributed. The second claim is concerned with the criteria for membership in the democratic community. Even though it is accepted that a vote is more democratic the larger the proportion of society’s members it includes, an important issue that remains is who is to be counted as a member. Following commonly endorsed tenets, anyone affected by a government should be recognised as a member of the democratic community. ‘Affected’ is interpreted here in legal terms, as saying that anyone ‘bound by’ the decisions made by a government should be perceived as a member in political terms. The contrasting view is that membership should be extended to anyone affected by the consequences of political decisions. This ‘causal’ understanding of the all affected principle in effect expresses a normative proposition that specifies a conception of democratic legitimacy. However, by defining inclusion as ‘legitimate inclusion’, the causal view obfuscates the distinction between the democratic character of suffrage and the extent to which it represents a reasonable distribution. Again, there are methodological considerations guiding the choice made. According to the view accepted here, the criteria for membership in the democratic people are settled by the legal conception of the all affected principle. The third claim is that suffrage restrictions should be evaluated in terms of their ‘reasonableness’. A rule is considered reasonable to the extent that it can be supported by reasons that could not reasonably be rejected. Although there is allegedly an air of circularity surrounding this standard, it provides a structure, albeit open-ended, for an excursion into the justifiability of democratic exclusions. Are the constraints on the vote currently enforced by democratic countries acceptable in terms of the interests of the people that are excluded? This is the fundamental question to be asked in accordance with a contractualist outlook.

3 Alienated From the Vote: The Case of Non-Citizens

Today, millions of adults are denied the right to vote by democratic governments all over the world because they are not citizens of the country where they reside. This makes resident non-citizens the largest group excluded from participation in the democratic process, with the exception of children.1 In Europe there are approximately 23 million resident non-citizens that together constitute 5 per cent of the total population. In the United States, the proportion of resident noncitizens in the general population is even larger. The US Census Bureau counts 18 million non-citizens in the United States, and including recent estimates of undocumented aliens the total rises to 30 million residents who are not citizens and, hence, denied access to the vote (Knickerbocker, 2006; Nayyar, 2002). In some countries resident noncitizens actually outnumber citizens, and yet they have no right to participate in political life.2 Resident non-citizens are guest workers, refugees, asylum seekers or just immigrants who for various reasons have settled down in a new part of the world. The legal basis for the exclusion of people in this category is in one sense purely formal: non-citizens cannot vote because only citizens have the right to vote. Yet, the idea of exclusive rights to political participation for citizens represents a novel idea in the political history of the West. In pre-democratic times, citizenship constituted neither a necessary nor a sufficient condition for the right to vote. The rights to political participation were not understood as deriving from the formal status of citizenship but as a privilege afforded to persons on the basis of private property or social status.3 For a long time, citizenship did not even count as a necessary condition for voting rights. In the pre-revolutionary era of America, and in many states well into the 1920s, all ‘inhabitants’ were recognised as voters, irrespective of formal 62

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citizenship (Rosberg, 1977, p. 1095; Keyssar, 2000, p. 32f.). By contrast, in contemporary democracies, citizenship remains a virtually unchallenged condition for rights to political participation. The right to vote is reserved only for citizens, and this principle is established by what may at first seem to be inclusive provisions in election laws and constitutions to the effect that ‘all citizens have the right to vote’. Exceptions to this rule exist but are marginal. Among contemporary democratic nations, only New Zealand and Uruguay grant resident noncitizens the vote in national elections relatively easily. Certain democracies extend suffrage to specific categories of resident non-citizens. For example, residents in Portugal with Brazilian passports may participate in national elections, and Irish citizens have the right to participate in the elections held in the United Kingdom. Other democracies, such as the Nordic countries, recognise the right of all non-citizens to participate in local elections after a certain period of residency. Of course, there are also countries that combine these mechanisms, granting some but not all resident non-citizens the right to vote in local elections (Earnest, 2003; Earnest, 2006; Katz, 1996). The exclusion of resident non-citizens from democratic elections constitutes an established principle in electoral regulations and constitutions and is sanctioned as well by international law. As noted by Smyth, the right to vote is the ‘one area in human rights law to be expressly reserved to citizens’ (Smyth, 2006, p. 3). The International Covenant on Political and Civil Rights (1966) recognises rights to political participation for ‘every citizen’ (Article 25), effectively leaving the status of resident non-citizens unresolved. Following the European Convention of Human Rights (1950), the government is authorised to restrict the political activities of resident non-citizens (Article 16). This is to say that the convention grants contracting parties a ‘fairly wide margin’ in deciding on the political rights of resident non-citizens. Legal practice has subsequently affirmed that voting rights fall within these margins and is, hence, subject to restriction by governments at will (Lundberg, 1995, p. 116; Bader, 1999, p. 171ff.). However, precisely because there is a ‘wide margin’ in deciding whether non-citizens should be able to vote, there is the possibility of extending suffrage to resident non-citizens. This more positive tune is struck by the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) in the provision stating that migrant workers ‘may enjoy political rights ... if the State of employment grants them such rights’ (Article 42).4 In fact, some documents in international law go further and include clauses suggesting

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that resident non-citizens should be able to vote, at least in local elections. A provision to this effect is incorporated in the Convention on the Participation of Foreigners in Public Life at Local Level, endorsed by the Council of Europe in 1992. According to the sixth article, each party to the convention undertakes to ‘grant to every foreign resident the right to vote and to stand for election in local authority elections’ (Article 6).5 Similarly, the European Commission for Democracy through Law (the Venice Commission) has ‘recommended’, in accordance with the aforementioned convention, that resident non-citizens should be able to vote in local elections (2002, p. 14). Whatever message is conveyed by the documents in international law, it remains an open question whether the exclusion of resident aliens from the vote is compatible with the democratic idea. In order to answer this question, we should consider the full meaning of democratic suffrage as well as the normative reasons that may be of relevance. That is, we need to explore the implications of the criteria of democratic inclusion as defined by the all affected principle in this context. What is the significance of residence and formal membership, given the notion that a democratic distribution of the vote is one that recognises the right to participate in political decisions among all affected people? Exploring this issue is essential in order to establish whether the current practice of denying resident non-citizens the right to vote is consistent with the idea of democratic inclusion and reasonable from the standpoint of standards of ‘equal rights’. The first section of this chapter explores the view that the right to vote should be the privilege of members of the community, understood in a social or ethnic sense. The subsequent sections investigate the implications of the all affected principle and the problems raised by a consistent application of it in a world characterised by both closed borders and increasing trans-border movement. By what legal criteria should the right to vote be distributed in a democratic society where place of residence and formal citizenship do not always coincide?

Inclusion and membership In virtually every democratic nation, voting in national elections is the privilege of citizens. Compared to the times when citizenship in no way guaranteed the right to a say in public affairs, this certainly represents a great achievement. A more inclusive understanding of the demos is the norm today, partly as a result of social and political pressures to transform citizenship into something with truly political status and thereby

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to buttress the link between citizenship and the right to vote. However, with the return of global migration and an increasing mixture of citizenships within the population, the intimate relationship between legal citizenship and political rights assumes a different meaning. Because it is increasingly common for the inhabitants of most nations not to have the same citizenship, the connection between voting rights and citizenship works more in the direction of political exclusion. This is what some writers describe as the increasing occurrence of a ‘citizen gap’ in Western democracies (Brysk and Shafir, 2004, p. 6; Soysal, 1994, chapter 7; Jacobson, 1996, p. 102). Rights are no longer distributed unequally among citizens of the same country. Strangely enough, citizenship itself has become the source of unequal rights among residents of the same country. A case in point is the US Constitution, in which no distinction between the political rights of citizens and non-citizens was part of the original document but was introduced in the Fourteenth Amendment in 1866. The main purpose of the amendment was to secure the political and civil rights of the recently freed southern slaves (Jacobson, 1996, p. 102). Paradoxically, the new constitutional provision failed to secure effectively these rights but provided a strong basis for the exclusion of non-citizens from national elections (Varsanyi, 2005, p. 21). The exclusion of non-citizens today is, therefore, partly a result of previous efforts to expand suffrage. A similar process is currently taking place in Europe, where Union membership has been introduced for the purpose of ‘bringing the Union closer to citizens’. As a result, citizens of any member state now have the opportunity of voting in European and local elections, irrespective of place of residence within the Union. At the same time, the political exclusion of resident non-citizens is reinforced, as the introduction of Union membership makes citizenship status a decisive condition for political rights in Europe (Föllesdal, 1999; Day and Shaw, 2002). One reason for the continuing belief that citizenship constitutes the sine qua non of political rights is arguably the idea that political power is for members only. After all, citizenship is in many ways the most symbolic expression of allegiance to a political system. As pointed out by Katz, the ‘quintessential symbol of community membership at the national level is formal citizenship’ (1996, p. 217). By becoming a citizen, whether by birth or by naturalisation, you eventually become a member of the people. And if democracy is understood as ‘rule by the people’, it appears natural that rights to democratic participation be reserved for its members or, in other words, for the holders of citizenship.

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This popular view prompts the question of what significance membership should have from the point of view of democracy. In accordance with the framework adopted in this study, the answer may appear straightforward, since it should be couched in terms of the all affected principle. A democratic distribution of political rights is one in which everyone affected by the legal authority of the government should be granted rights of political participation. As presented, this principle leaves no room for exemptions based on categories of either citizenship or membership. What determines the status of a person from a democratic point of view is not the extent to which he or she has achieved de jure recognition as either member or citizen but the extent to which he or she is de facto a legal person subject to the powers of the state. Following the criteria of democratic inclusion, as defined by the all affected principle, the privileged status of citizens acknowledged by election laws and constitutions is, hence, without basis.6 Now, the notion of membership might be rendered compatible with the all affected principle by a simple conceptual move. It might be conceded that voting rights should extend to ‘all’ affected but at the same time asserted that this principle applies only to members of the political community. That is, any person subject to the authority of the government who is a member should be included. The all affected principle is then understood as demarcating the scope of democratic rights among the members of the community. Let us, for the sake of the argument, grant that membership has a pivotal role to play in specifying the scope of the all affected principle. Does this indicate that political rights should be reserved for citizens? In examining this issue, we should observe that the relation between membership and citizenship could be understood in two quite distinct ways. Following what might be termed the ‘soft view’, there is no criterion for membership except that of formal recognition as a citizen. That is to say, membership is defined in terms of citizenship. People recognised as citizens are members precisely because of that, and non-citizens are accordingly not members simply by virtue of the very same fact. This logic is rejected by what might be termed the ‘hard view’, according to which membership is identified with some social, ethnic or other ‘natural’ property of individuals. In order for citizens to be members and members to be citizens, it is, consequently, essential that the distribution of formal citizenship corresponds to the ‘natural’ distribution of this property among people. On this view, membership is a criterion for citizenship rather than a definition of it.

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The soft and the hard views of membership lead in quite different directions. The soft principle does not establish any criterion by which membership is to be distributed. In this sense, the idea is similar to that employed in many social clubs and civic associations. The members of a private club can elect new members as they wish, accepting or rejecting applicants on the basis of whatever preferences they may have. Transposed into a political context, this is to grant citizens full discretion in the distribution of membership. The soft view has been legitimised by the US Supreme Court in ruling that the ‘privilege to vote ... is to be exercised as the State may direct, and upon such terms it may seem proper’ (Pope v. Williams, 1904; Brozovich, 2001, p. 409). Also, theorists of democracy have been inclined to accept a similar stance with regard to the conditions for citizenship. Rather than appealing to any criteria of democratic inclusion, it is contended that ‘the fate of non-citizens will be an appropriate subject for majoritarian politics’ (Ackerman, 1980, p. 71). All we could say, assuming the soft view, is, consequently, that the rules for membership are up to members to decide. If this view is accepted, there is evidently little work left for the all affected principle to do. If membership is decided on by members, and only members are subject to the all affected principle, then anyone could be included or excluded by appeal to the all affected principle. To argue in this way is to say, along with Joseph Schumpeter, that no democratic criteria for inclusion and exclusion from suffrage exist except for the principle that every ‘populus [must] define itself’. Hence, no exclusions are undemocratic because ‘all that matters is that the society in question admits it’ (Schumpeter, 1942, p. 244; cf. Dahl, 1989, p. 120). The hard view provides the basis for a more promising conception of inclusion in that respect. Its key precept is that citizenship should be granted to anyone in possession of the properties that define social membership. This notion is manifested in current policies of naturalisation, making citizenship conditional upon a prolonged period of residence. A more radical version of the hard view is the idea that citizenship is to be recognised only for members of a particular ethnic or religious group. The ethnic conception of membership remains influential in Germany, where citizenship status is available primarily for ethnic Germans. Citizenship through ‘naturalisation’ has traditionally been difficult to receive, although somewhat easier following the new nationality laws enacted in the year 2000. Another well known example of the hard view is the state of Israel, granting the privileges of membership only to ethnic Jews (Smooha, 2002). What the different versions of the hard view have in common is the notion that membership is a

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matter of kinship and, as pointed out by Michael Walzer, when adopted by governments, it leads states to behave ‘more like families rather than clubs’ (Walzer 1983, p. 41). Could the all affected principle be rendered consistent with the hard view of membership? Arguably, the most famous attempt thus far to defend that position can be found in the rulings of the Federal Constitutional Court of Germany (the then Federal Republic of Germany) in 1990 as it invalidated the statutes of Schleswig-Holstein introducing a limited version of suffrage for resident non-citizens. The Court rejected the law by pointing out that state authority necessarily derives democratic legitimacy from the ‘the people of the State’ and this people does not include everyone affected by its authority but only those ‘human beings bound into a unity’ (Judgement of 31 October 1990, Bundesverfassungsgericht, quoted in Neuman, 1992, p. 283). The ‘unity’ appealed to by the Court is intended as a reference to the ethnic identity of the German people. This is made clear by the Court’s remark that ‘membership in the people’ is mediated only by ‘nationality’. The inevitable conclusion is that only members – members of the same nation – could be accepted as voters. Resident non-citizens are, thus, to be excluded from elections on the presumption that they do not belong to the nation that constitutes the unity from which the legitimate exercise of democratic power is derived. The ruling of the Federal Court is certainly meant to follow from a reading of the German Basic Law and not from an investigation into the theory of democratic inclusion. Yet, the argument presented by the Court can be understood as an attempt to render the ‘hard view’ consistent in relation to political rights of non-citizen. Though the Court invests much effort in demonstrating that only Germans are members, it is unable to sustain the crucial premise of the argument, namely that only members of the nation should be eligible for the vote. The Court makes an attempt to justify the premise by arguing that the legitimacy of popular sovereignty is derived from the fact that a people is ‘bound into a unity’ in the ethnic sense. Clearly, however, there are alternative understandings of the ‘unity’ from which democratic rule can obtain legitimacy. In fact, the Court admits that democratic ideals favour the notion that political rights should be conferred on all ‘subjects to State power’ (quoted in Neuman, 1992, p. 285). The Court nevertheless concludes that the Basic Law establishes that such rights can be acquired only by becoming a citizen (through naturalisation) and not simply by the law being changed through a majoritarian process. This conclusion effectively closes the door on the idea that the composition of the

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electorate should be established with reference to the legal community, defined by the jurisdictional extension of state authority. In this way, the Court affirms the hard view of membership while at the same time offering no reason why the ‘ethnic’ conception of a democratic people is to be preferred to a legal conception. Thus, it remains to be demonstrated that the inclusion of ‘all affected’ is to be understood in terms of membership alone. What seems more likely is that a justification of this view has to appeal to some version of the all affected principle. This suspicion is strengthened by exploring the more theoretical defence of the principle of membership found in the work of Joseph Carens. The thesis presented by Carens is that individuals have a ‘moral right to be citizens of any society of which they are members’ (Carens, 1989, p. 32). The right to citizenship and the political rights associated with it are, in other words, available to ‘members’ only. Membership is, in turn, determined by the ‘social facts’ characterising people’s ‘everyday lives’. These ‘social facts’ are multifaceted but include, for example, ‘social ties’ established with already existing members and continuing dependence on the ‘social context’ (Carens, 1989, p. 41). Even on the assumption that the notion of ‘social facts’ provides a plausible account of membership, a further argument is needed to back up the claim that only members should be entitled to vote. That is, why should democratic participation be the exclusive right of the people achieving social membership? A potential answer, not given by Carens, is that the social processes that create membership are identical to those generating a legitimate claim to political power. In accepting the idea that membership is the result of being ‘shaped by’ the social context and by adding the observation that governments are regularly responsible for this ‘shaping’, it could be argued that these processes are no less political than social. Moreover, given the democratic idea that power over the government should be vested in the people affected by the government, it follows that a person shaped by the social context should be guaranteed political rights. Now, to accept this line of reasoning is virtually to abandon the principle of membership as initially formulated and to accept a different idea – the causal interpretation of the all affected principle. Yet, Carens does not argue that the vote should be reserved for members that have been shaped by society at large. Carens argues that rights of political participation should be established with reference to ‘birthplace and residence’ (Carens, 1989, p. 42). At the end of the day, the extent to which people have social ties or are affected by the social

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context is, consequently, less important for the extension of political rights. All that matters is whether they are born in the country and, if not, how long they have been living there. The reason offered by Carens for recognising the importance of ‘birthplace and residence’ is that ‘people should not be subject to political rule in which they have no say’ (Carens, 1989, p. 37). In effect, this is to acknowledge that membership is not what creates a valid claim for political rights. The basis for the right to vote and other participatory rights is instead found in the extent to which the individual is ‘subject to political rule’. In sum, though Carens subscribes to the idea of membership as a condition for political rights, the argument presented by him reveals a full scale commitment to a legal version of the ‘all affected principle’. Carens is not alone in hiding a version of the all affected principle behind a smoke screen of talk of membership. A similar, somewhat surreptitious recognition of the all affected principle is found in the work of Michael Walzer. According to Walzer, all political communities have the right to distribute privileges and recourses in accordance with the ‘shared understandings of the members’ (Walzer, 1983, p. 313). From this perspective, it may appear as if there are no general rules for the extension of suffrage except, perhaps, the rule that all members of the community should be included. Surprisingly, however, this is not Walzer’s conclusion. According to him, the right and opportunity to participate in political affairs should be granted to ‘all men and women ... that are subject to the law’ (Walzer, 1983, p. 60). Democratic inclusion should, in other words, be established with reference to the legal status of the subject, not by estimating the extent to which he or she is a ‘member’ in terms of shared understandings of the community. All this raises serious doubts as to whether membership could ever substitute the all affected principle as a criterion for the distribution of political rights. As it turns out, the ‘soft view’ is not compatible with any principled basis for the allocation of voting rights. The trouble with the ‘hard view’ is that although it may produce a coherent account of ‘membership’, it fails to substantiate the claim that only members should be entitled to political participation. Perhaps only people who have established social ties to a community would be entitled to membership of the kind secured by formal citizenship. However, this claim does not establish that only citizens should be entitled to vote. The principle of membership does not explain why membership is essential to the enjoyment of political rights. It is worth emphasising that this point is not merely a terminological one. It is not inconsistent with the all affected principle to consider all subjects entitled to political rights

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to be ‘members’ of the political community. Speaking of political rights as the privilege of members would still be appropriate if the criteria for membership are the same as the criteria stipulated by the all affected principle.

Territorial jurisdiction and the all affected principle Rebutting the idea of membership as the basis for the suffrage undermines the validity of the claim that resident non-citizens should not vote simply because they are not citizens. If formal citizenship is no longer decisive, our attention has to shift towards place of residency as an alternative approximation of the circle of people entitled to political participation. In examining this issue, we should first clarify what is involved in bringing residency to the fore of our concern in the allocation of voting rights. The opposite, in some sense, of resident non-citizen is non-resident citizen. A guest worker is typically a resident non-citizen in relation to the country where he or she is currently employed but a non-resident citizen in relation to the country where he or she is a citizen. The principle that membership as defined by formal citizenship should be decisive in the granting of rights of political participation would leave guest workers disenfranchised in the country of residence but should grant them voting rights in their country of origin. However, in case voting rights should instead be established on the basis of place of residence, the implication is clearly that guest workers should be able to vote in the country of residence but not in the nation of which they are citizens. This is to say, in accordance with this principle, all non-resident citizens should be disenfranchised in the nation where they are currently citizens. Irrespective of whether citizenship or residency is the preferred criterion for rights to political participation, there are necessary limits to the extension of suffrage. The question is whether the people excluded from access to the ballot are residents without citizenship or citizens without residence. This picture is complicated by the fact that not all countries are democratic. Given this, the citizenship principle would result in depriving resident non-citizens of democratic countries that are citizens of a non-democratic country of any chance to vote. Similarly, non-resident citizens of democratic countries that are residents in a non-democratic country are left without voting rights anywhere if voting is considered a function of residency. The categories discussed above do not exhaust the logical possibilities, since there are resident citizens and non-resident non-citizens as

72 The Frontiers of Democracy Table 3.1

Residency and citizenship

Citizen Non-citizen

Resident

Non-resident

Resident citizen Resident non-citizen

Non-resident citizen Non-resident non-citizen

well (see Table 3.1). Non-resident non-citizens is just a more complex way to express the category of people customarily referred to as ‘aliens’, that is, people that live in another nation and who are not formally recognised as citizens there. The categories of resident citizens and non-resident non-citizens are less interesting in this context, since their right to vote does not depend on whether inclusion is defined in terms of either membership or residency. Following the legal understanding of the all affected principle it is clear that all resident citizens should be recognised as voters and that non-resident non-citizens should not. The question, then, is what follows from a strict application of the all affected principle. As I have argued in Chapter 2, a democratic interpretation of this principle understands ‘affected’ in legal terms. That is to say, the principle applies to anyone legally subjected to the binding decisions of a political authority. What we need to know at this stage is whether residency approximates the circle of legal subjects or not. A first remark is that the scope of binding decisions corresponds to the jurisdiction of a political authority. The claim that a government has jurisdiction in a certain context is, therefore, identical to the claim that it has the right to impose binding decisions. A second remark is that the jurisdiction of democratic governments is limited to the territory under its control and to other entities for which its supremacy may have been accepted by other sovereign entities. The territorial conception of jurisdiction evolved as a result of political and technical developments (i.e. cartography) and replaced earlier understandings of sovereignty as defined in terms of peoples rather than territories (Ford, 1995, p. 873). Now, the territorial understanding of jurisdiction is securely entrenched in legal practice (Wildhaber, 2007, p. 221). This is not to say that the implications of the territorial conception of jurisdiction are always clear with respect to people, goods and information that regularly transgress the borders of nation-states. Problems are encountered by governments attempting to regulate the transfer and use of intellectual property and other protected sources of information that flow more or less globally (Berman, 2002). Another source of uncertainty is exemplified by states that employ ‘universal jurisdiction’ and that seek to regulate behaviour

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by individuals irrespective of citizenship status and physical location (Arnell, 2001). It is nevertheless a fact that attempts to extend jurisdiction beyond territorial borders are null and void unless recognised by convention or by agreement on the part of the relevant parties.7 The continuing validity of this norm in a world characterised by global information technologies is illustrated by a much debated case in 2000 in which a French court ordered the American company Yahoo to stop advertising Nazi memorabilia on its website. In response, Yahoo secured a declaratory judgement from a US court stating that the French decision could not be enforced in the United States (Michaels, 2004, p. 117). As a result, the territorial boundaries of jurisdiction prevailed, despite the obvious global reach of the services provided. The general point is that attempts to regulate people (or legal persons) residing in foreign territories affects them in the legal sense only to the extent that the foreign authority has recognised the legal status of the provision. Jurisdictions, therefore, remain territorially defined and are always decided on by the authority in control of the territory. A further objection to the notion of territorial jurisdiction is raised by scholars studying the broader effects of the globalised economy. Due to increasing transnational flows of capital and goods and pressures exerted by multinational corporations and international organisations of trade, national governments have lost much of their previous territorial control. As pointed out by David Held, among others, the contemporary world is subject to an unprecedented level of ‘interconnectedness’ that subverts the traditional powers of the nation state (Held, 1995). This process is said to have implications for the idea of territorial jurisdiction. According to Seyala Benhabib, the prerogatives of the state are continuously transferred to ‘non-state private and corporate bodies’, with the result that the ties between state jurisdiction and territorial control are ‘uncoupled’ (Benhabib, 2005, p. 676). This claim may appear to undermine the notion of jurisdictions as bounded by territorial borders. Moreover, it constitutes the basis for familiar ‘cosmopolitan’ claims to the effect that even non-resident non-citizens should be included in the democratic process. However, the empirical observation that ‘non-state’ actors are on the march does not contravene the doctrine that legal jurisdiction is restricted to and defined in terms of territorial borders. It may or may not be the case that governments have the power to enforce policies at will within the territory of jurisdiction. But this point does not invalidate the notion that states have an exclusive right to create legally binding

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precepts for all subjects within their jurisdictions. Given the territorial conception of jurisdiction, it follows that the all affected principle applies first of all within legally recognised territories. This re-affirms the view that democratic boundaries should correspond to jurisdictional scope (Macdonald, 2003, p. 174; Dahbour, 2005, p. 255; Besson and Utzinger, 2008, p. 190). The place of residency is, therefore, salient in determining the validity of claims to democratic political participation. Voting should be the privilege of residents of a political community. This conclusion stands in sharp contrast to the norms established in prevailing election laws and constitutions in the democratic world, where voting rights in national elections are regularly recognised only for citizens and frequently without regard for their place of residence. Summarising the argument so far, it seems clear that the legal version of the all affected principle speaks in favour of a radical revision of suffrage and for the inclusion of all resident non-citizens. It holds that the power to accept and to reject laws should be vested in the people subjected to the jurisdictional powers of the political authority. It implies that political rights should be established on the basis of the individuals’ territorial status, where the alternative is ‘resident’ or ‘non-resident’. It eschews the notion that political rights should depend on the legal status ascribed to individuals by governments, turning them into either ‘aliens’ or ‘citizens’. Democratic suffrage is suffrage that recognises the right for all residents within the jurisdiction to participate in elections. This means, for example, that guest workers should be entitled to vote, since they are no less subject to the binding decisions of the political authority than are other residents. Guest workers are more often perceived as ‘subjects to the labour market’ rather than as ‘subjects of the law’ (Moulier-Boutang, 1985, p. 490). But this distinction is clearly misleading, as anyone subjected to the regulations of the market is as much a legal subject as other residents. As Albert Weale puts it, ‘the interests of guest worker become closely bound up with those of the society in which he or she lives’ (Weale, 1999, p. 156). The consequent divorce of voting rights from the formal status of citizenship illuminates the intricate issues haunting debates on migration and political rights. A common objection to the proposal that the vote should be extended to resident non-citizens is that it would impose citizenship on all residents, transforming it to an involuntary status rather than an object of choice. In this vein, Rainer Bauböck (2006, p. 2419) has argued that all migrants have a ‘legitimate interest in choosing between different citizenship options’ and that it is important that citizenship remain voluntary ‘rather than imposed’. However, this

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objection is relevant only as long as political rights remain attached to formal citizenship. If the link between formal citizenship and the right to vote is severed, Bauböck’s objection loses its force. The claim that political rights should be established on the basis of place of residence does not concern who should be recognised as a citizen but the distribution of rights to political participation in a democratic community. Thus, the principle that voting rights should be made available for all residents does not entail that citizenship should be ‘imposed’. The criterion of residency may not seem appropriate in establishing the right to vote in all circumstances. Arguably, historical injustices that directly explain the pattern of residency within a given territory are reinforced by allowing all of the residents to participate in the political process. Many times throughout history, the settlement of some group of people on a territory has been encouraged by a colonial power that denied the original residents the right to participate in the decision and pursued policies designed to push these residents away. An illustrative case can be found in Beran’s account of the complexities involved in arranging a referendum in New Caledonia in the late 1980s (Beran, 1990, pp. 156). The question to be decided by the election concerned the future independence of the territory from France. The legitimacy of the referendum became a matter of dispute, since the original inhabitants, the Kanaks, had become a minority in their ‘own’ country as a consequence of the immigration policies pursued by the French administration. As a result, the new settlers, hostile to the idea of independence from France, were still able to decide the issue by means of the vote. Critics of the referendum pointed out that it is unfair to deny a people independence by the verdict of an electorate created by policies that were neither just nor democratically sanctioned. On the other hand, it could be pointed out that the exclusion of any residents from the vote in national elections would undercut the very idea of democracy. After all, the new settlers were to be equally bound by the decision. The result is a thorny conflict between considerations of justice and the value of democratic procedures. The example of New Caledonia is certainly not unique but applies in any context where colonial settlement has significantly altered the composition of the electorate (e.g. the Baltic States, Northern Ireland and the Israeli-occupied territories of the West Bank). The answer to the question ‘who should vote on these territories?’ is clear from a democratic standpoint. In order for elections to be maximally democratic, every resident of the territory should have the right to participate. However, the unresolved status of territories ravaged by colonialism

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and occupation points to a deeper and much more complex question, that of the procedures by which the future status of any territory can legitimately be decided on. A democratic referendum obviously constitutes one potential answer. However, from the fact that the issue could be decided by referendum it does not follow that the issue should be decided by referendum. The fact that the decision would transform the very identity of the territory suggests that other procedures may be preferable. Thus, whatever the solution is to the problem of democratic inclusion in territories where patterns of residence have been created by means of unjust policies, it cannot be taken for granted that democratic procedures are appropriate for resolving conflicts over the future status of such territories. Yet, as indicated above, a clear and radical conclusion follows from the application of the all affected principle to the case of resident noncitizens. The conclusion is that anyone resident in a territory should have the right to participate in the elections of the people in power of that territory. The current exclusion of resident non-citizens, practiced in virtually every democratic country in the world today, is, thus, inconsistent with fundamental criteria of democratic inclusion. This conclusion obviously holds as well for the European Union and other political associations that make the right to vote conditional on nationality rather than residence.

The right of non-resident citizens to vote The right of resident non-citizens to vote is related to the right of nonresident citizens to vote. In fact, it may seem to be an implication of the view that suffrage should be established on the basis of residency that non-resident citizens should not be entitled to vote. This conclusion runs counter to the recent trend among democratic nations to extend voting rights to citizens living in foreign nations. The right of non-resident citizens to vote has been promoted by, among others, the Council of Europe in the statement that all nationals should be allowed to vote ‘with regard to their country of origin’ (Council of Europe, 1986). By the year 2007 no less than 115 countries had adopted provisions that enabled at least some non-resident citizens to participate in national elections (IDEA, 2007, p. 13).8 This table stands in marked contrast to the fact, noted above, that only two countries currently allow resident non-citizens to vote in national elections. A frequent argument in favour of non-resident citizen voting is that people may be affected by the decisions made by the government in

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their country of origin, whether or not they are residents there anymore. This point is made by Peter Spiro (2003, p. 139), who observes that non-resident citizens may still own property ‘back home’, receive retirement and other benefits from their former government or feel that they should have a say in how the money earned abroad and returned to relatives is spent or invested. These facts demonstrate that nonresident citizens frequently have an interest in the policies pursued by governments ‘at home’ (Cf. Weale, 1999, p. 158). But are they facts that support the enfranchisement of non-resident citizens? Answering this question prompts us to investigate further the import of the all affected principle. In accordance with the legal understanding of this principle, a person is ‘affected’ only in so far that he or she is bound by the decisions enacted by a political authority. Now, it could be argued that a person in possession of property in a foreign nation is actually bound by the decisions regulating access to and income deriving from that property and should, consequently, be considered to be affected in the relevant sense. Regulations and taxation obviously apply to any property within the jurisdiction, irrespective of the place of residence of the owner. However, the fact that a piece of property is situated within the jurisdiction of and is susceptible to regulation by the government does not imply that the owner of this property is a legal subject. This is demonstrated by the fact that there are no sanctions available against a resident in a foreign nation, except those recognised by mutual agreement or convention on the part of the relevant authorities. In case a nonresident citizen repeatedly fails to comply with tax regulations, it may so happen that the government decides to expropriate the property. The decision clearly affects the owner. But though suffering from the effects of a political decision may be relevant in considering the moral legitimacy of the decision, it is not relevant for the purpose of considering the extension of democratic inclusion. Legal seizure of property does not necessarily make the owner of that property a legal subject. A democratic people is constituted by individuals, not by pieces of property. The claim that non-resident citizens should be granted the vote in so far as they have an economic stake in their country of origin is, therefore, far off the mark. A distinct reason for considering the inclusion of expatriates is the fact that many of them emigrated involuntarily. Here, again, historical injustices may be relevant in considering the extension of suffrage. Recent political developments provide numerous examples of people expelled from their country of origin or forced into migration by war,

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persecution or hardship. Millions of Bosnians, Iraqis, Palestinians, Kosovars, Burmese, Cubans and so forth remain non-resident citizens for these reasons. According to the estimates of the United Nations International Migration Report (2002), there are as many as 16 million migrant refugees around the world. It may seem particularly unjust to exclude involuntary non-residents from political participation with reference to the fact that they are non-residents, since they are by definition in this situation by no fault of their own. Granting the vote to involuntary non-resident citizens has, consequently, been characterised as a matter of ‘rectificatory justice’ (Bauböck, 2006, p. 2436). The plight of citizens forced into migration has more recently been taken into account in the organisation of a variety of elections. Where popular elections have been arranged following periods of war or severe hardship, steps have sometimes been taken by the government and international organisations to secure non-residents citizens’ right to participate. Possibly the most spectacular example is the 2005 Transitional National Assembly elections in Iraq that involved arrangements for polling stations in dozens of foreign countries, facilitating electoral participation for the more than a million Iraqis around the world. Another significant example is the 2004 presidential elections in Afghanistan, in which approximately 2.5 million Afghan refugees in neighbouring countries were permitted to participate (IDEA, 2007, p. 158). The extension of the vote to involuntary non-resident citizens in post-conflict societies is potentially of great value in coming to terms with deep conflicts and tensions between various groups. Not counting the votes of people previously pushed out of a country when democracy is later restored would ‘add injustice to injury’ (Bauböck, 2006, p. 2437). At the same time, extending the vote to non-residents in postconflict societies raises complex questions about the determination of citizenship, since the conflict may have introduced changes into the very constitutional nature of the state. The Socialist Federal Republic of Yugoslavia of 1991 bore little resemblance to the Federal Republic of Yugoslavia that appeared in 1992. As a result, it is clearly a controversial tenet that all Yugoslav citizens in 1991 should have been considered citizens, at least in relation to the right to vote, a few years later. Likewise, much controversy has been associated with the task of identifying the circle of eligible non-resident voters in elections held in East Timor, Eritrea, Bosnia-Herzegovina and Kosovo. In some places, such as Mauritania, controversy over which non-residents to include in elections has, in effect, stalled the process of arranging democratic elections (Grace and Fischer, 2003, pp. 21–5).

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There is little doubt that involuntary non-resident citizens are frequently forced into this status as a result of serious injustices (this is not always the case – natural disasters may force people into involuntary migration as well). It could be questioned, though, whether the explanation for migration is ever relevant in identifying the circle of voters in a democracy. By appealing to what is essentially a legal understanding of the all affected principle, Claudio Lopez-Guerra argues that ‘the causes of immigration, deplorable as they may be, have nothing to do with the reasons for enfranchisement’ (2005, p. 231). In this, Lopez-Guerra certainly has a point, since the all affected principle only distinguishes between ‘subjects’ and ‘non-subjects’ and not between various reasons for a person being a subject or not. In accordance with Lopez-Guerra, we should, hence, be forced to claim that refugees and other externally displaced persons should not be permitted to participate in elections held in their former country of origin. While Lopez-Guerra interprets the all affected principle correctly, it is questionable whether he has interpreted the significance of this principle in resolving the normative issues surrounding the distribution of suffrage correctly. As understood here, the all affected principle provides information about the meaning of democratic suffrage. The principle does not, however, settle all questions of justice raised by the right to vote. The framework adopted in this study allows for the possibility that maximally democratic suffrage is not necessarily the most reasonable distribution of the vote. If this possibility is allowed for, it is a mistake to conclude that involuntary non-resident citizens should be disenfranchised merely because this is the conclusion most consistent with the all affected principle. What we need to know is whether the inclusion of refugees living abroad could reasonably be insisted upon as a matter of justice. Perhaps extending the vote to involuntary non-resident citizens in the first free elections in a country previously ravaged by civil war would significantly contribute to the processes of reconciliation between rival groups. In that case, the inclusion of involuntary non-resident citizens may appear to be a reasonable conclusion, despite the fact that it creates an overinclusive demos that is not in line with the all affected principle. Yet, a wide range of social, political and economic circumstances needs be taken into account in order to provide an answer in any particular case. What can be said in general is, first, that the inclusion of involuntary non-resident citizens is contrary to the all affected principle and is, therefore, in tension with the idea of democratic inclusion, and, second, that other considerations may reasonably be taken into

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account that speak in favour of extending the right to vote to externally displaced persons.

Temporary visitors and other border cases An obvious implication of the all affected principle is that non-resident non-citizens should not have rights to political participation. In the real world of democracy, this is normal practice as, for example, Jamaicans living in Jamaica cannot vote in American elections and Danes living in Denmark have no voice in Swedish politics. These facts are in line with the legal understanding of the all affected principle, since they seem to acknowledge that the scope of suffrage should be determined by relevant boundaries of jurisdictions. It could be remarked that borders are ambiguous, as they both delimit the scope of jurisdictional powers and delimit a place where these powers are exercised. The coercive powers of the state are regularly employed with great severity precisely at borders and, thus, subject many non-residents – migrants, asylum seekers and so forth – to the legal powers of the state. In accordance with the notion that all legal subjects are entitled to participate in the democratic process, these people should potentially be recognised as voters as well. This exact point has been pressed with great force by Arash Abizadeh. Noting that modern borders are maintained by a terrifying array of coercive apparatuses, there is no escape from the conclusion that many ‘non-members’ are subjected to the ‘coercive exercise of [state] powers’ (Abizadeh, 2008, p. 45; Thompson, 1999, p. 120). According to Abizadeh this is problematic from the point of view of democratic legitimacy, since it ‘disenfranchises outsiders over whom powers are exercised’ (Abizadeh, 2008, p. 45; Thompson, 1999, p. 120). The observation that borders not only delimit legal jurisdictions but are also sites where the powers of the political authority are exercised, thus affecting non-residents, constitutes a challenge to the thesis adopted so far. It seems hard to support the view that suffrage should be established on the basis of place of residence if many non-residents are in fact legal subjects that would be equally entitled to democratic participation. A preliminary remark is that border coercion is a contingent, not necessary, feature of inter-state relations. For example, before the introduction of the ‘Immigration Act’ in 1924, the United States effectively had an open borders policy. Almost any person showing up at the border was admitted into the country. A more ambiguous example is the member states of the European Union that now keep their borders open for all members of the Union and, thus, only exercise border coercion

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with respect to non-European citizens. A policy of open borders is, hence, conceivable and, to the extent that it is employed, undermines the case for the enfranchisement of outsiders, as they would no longer be subjected to the ‘coercive apparatuses’ of border authorities. Since border coercion is not a permanent facet of the state, it is not correct to conclude that the existence of borders poses a democratic problem ‘by its very nature’ (cf. Abizadeh, 2008, p. 46). It is still the case, of course, that most existing borders are coercive and that this fact speaks against establishing suffrage by appeal to residency alone. A place to begin in unravelling the issue is with the common-sense intuition that enfranchising anyone subject to border coercion would be awkward. The basis for this reaction is clearly not that extending the vote to non-residents is wrong per se. In today’s world, many non-resident citizens are allowed to vote in their country of origin, and the fact that this practice is not consistent with the all affected principle does not seem to bother very many people. However, the sense that enfranchising people at the border would be objectionable may receive support from the intuition that temporary subjection to the coercive apparatus of the state is not enough. A person rejected by border authorities is no doubt coerced by the law and is to that extent a legal subject. But it is a condition that is discontinued at the same moment that the person is released by border authorities. The reason why the enfranchisement of people at the border is controversial is that it is premised on the view that mere ‘contact’ with the coercive powers of the state is all it takes to acquire the right to vote. In objecting to the claim that border coercion is but temporary, it could be remarked that barbed borders exert a constant coercive effect on all non-residents that wish to enter the country. The Mexicans locked out of the United States by the barriers and patrols guarding the frontier are, in one sense of the term, ‘coerced’ by the fact that they are denied free entry. And to the extent that subjection to the coercive effects of government policy is what justifies the right to vote, it might be seen to follow that Mexicans involuntarily not in the United States should be entitled to participate in US elections. However, this point confuses the coercive effects of legal decisions and the legal right to coerce implied by legal authority. It is certainly true that legal decisions taken by the government in one country will have consequences for people living in other countries. The view that coercion exerted by means of causal effects are relevant in deciding rights of political participation is congruent with the causal interpretation of the all affected principle discussed in Chapter 2. By contrast, the legal interpretation of the all affected

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principle holds that what matters is the legal relation between the individual and the authority, not the causal relations between them. If this notion is applied to border coercion, it becomes clear that Mexicans are not really subjects in relation to the US authorities. A person facing the obstacles and barriers at the border between these countries may certainly be coerced. Yet, being coerced by physical obstacles is not the same as being a legal subject. In fact, the US government cannot create legally binding precepts for Mexican residents unless the Mexican state has assumed the responsibility to enforce them. Since a person ‘locked out’ of the territory of a state is not thereby rendered a legal subject of that state, there is no basis for concluding that this person should be granted political rights in line with the all affected principle. Now, this is not the end of the matter. The question remains as to temporary residents, such as immigrants held in custody by border authorities. Should they be allowed to vote simply by virtue of the fact that they are temporarily subjected to the legal system? That is, how should we evaluate the claim that temporary subjection to the legal authority of the state justifies a right to political participation? On the face of it, the all affected principle seems to require that the vote be granted to anyone subjected to the legal powers of the state, even if only temporarily. The implication is that the vote should be extended even to temporary visitors, such as tourists, travellers and businessmen as well as to transients just passing through. This is not as fanciful as it may sound, since temporary visitors are at risk of being charged, held in custody or imprisoned and are in that sense legal subjects no less than permanent residents. Indeed, jurisdiction is known to have been asserted even over transients seated in airplanes passing through the airspace of a state (Michaels, 2004, p. 109). In sum, any temporary visitor, whether a tourist or a rejected immigrant held ‘at the border’, are equally subject to the coercive powers of the state, albeit only for a brief period of time. Election systems that allow non-citizens to vote typically avoid the problem of temporary visitors by stipulating residency requirements. Countries extending the vote to resident non-citizens in local elections have adopted provisions that require a person to be a resident for at least a number of years before he or she can gain access to the polling station (e.g. in Sweden participation in local elections is allowed for non-EU citizens after three years of residency, whereas one year is enough for EU citizens). These provisions have been defended by appeal to the ‘moral importance of the passage of time’ (Carens, 2008, p. 419). Although a practical solution, it is one that is difficult to justify in terms

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consistent with the all affected principle. A long-term visitor is no more subject to the laws of a country than either a person entangled with border authorities or a person touring the major attractions of a cities. All are equally located under the authority of the government and have the duty to abide by the regulations and laws that apply. The difficulties caused by temporary visitors for the all affected principle have led some writers to the conclusion that the principle is fundamentally misconceived. The suggestion has been made that the all affected principle should be rejected precisely because it cannot provide convincing answers to the question ‘should temporary visitors vote?’ (Graham, 2002, p. 38; Arrhenius, 2005, p. 10). The difficulties brought to the fore by temporary visitors could perhaps be resolved by specifying whether the all affected principle applies to future, past or present subjects. A presentist interpretation would hold that people visiting a country on election day should be entitled to vote, as they are now legal subjects. A retrospectivist interpretation would include only people that have been subject to the law in the past, even if only temporarily. In accordance with a prospectivist reading of the all affected principle, it is the future relationship between the individual subject and the law that is decisive. The vote should be granted only on the condition that the individual remains a subject in the future, but, again, this would arguably include future temporary visitors as well. There are, consequently, three time-related applications of the legal conception of the all affected principle. Although these principles may help to resolve some issues, they most certainly raise new ones as well. For how long a period of time should a person have been a legal subject, according to the retrospective view, in order to be entitled to vote? It seems difficult to derive any information about the required time of residence from the claim that a person should have been a legal subject in the past (Beran, 1990, p. 157). Furthermore, it raises the question of how temporary periods of non-residence should be evaluated. Is a person a resident, according to the retrospective view, in the case the period has been interrupted by temporary periods of non-residence? The reality of these concerns is visible in the provisions stipulating the conditions for electoral participation in many countries. For example, the electoral laws of Eritrea grant the vote to anyone who resided in the country after 1952 and has remained a permanent resident for at least ten years prior to 1974 or for at least 20 years while making periodic visits abroad (Grace and Fischer, 2003, p. 26). Clearly, these are to some extent arbitrary stipulations, though they reflect the basic principle that suffrage should be established with reference to the duration

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of (past) subjection to the law. At other times future residency is stipulated as a condition for electoral participation. For example, the rules for inclusion employed in the Saar plebiscite in 1935 required that the individual had ‘settled there with the intention of remaining’ (quoted in Farley, 1986, p. 92). Similar provisions, granting the right to vote to aliens that have legally declared their intention to become citizens, exist in some US states (e.g. the Constitution of Alabama, Sec. 177). Guidance on which interpretation is most compatible with the all affected principle should be sought in the basic idea informing it. The idea, discussed at greater length in Chapter 2, is that anyone subject to the law should have the right to participate in the making of it. In accordance with this view, it is natural to portray the individual as occupying two distinct roles – as both the ‘maker’ and the ‘subject’ of government (Beitz, 1989, p. 97; Habermas, 1996, p. 116). It is essential to the classical understanding of democracy that these roles are assumed by each member of the community simultaneously. No one is a mere subject, no one is a mere ruler, but all are subjects and rulers at the same time. In line with Rousseau, this duality constitutes an important facet of democracy, since only by assuming both roles simultaneously is it possible for each member of the community to ‘gain an equivalent for everything he loses’ (Rousseau, 1968, I: 6). The liberty lost by becoming a legal subject is recovered by becoming a participant in the process of law-making. Taking the ruler/ruled duality seriously suggests that no one can legitimately be subjected to the law without at the same time being recognised as a participant in its making. The notion of past residency (the retrospective view) as a condition for the right to vote is, hence, inadmissible, since it presupposes that some people should for some time be consigned to the role of subject only (i.e. until they achieve the status of past residents). The contrasting notion that future residency should be expected from the voters (the prospective view) is perhaps more promising, as it may be understood as an attempt to ensure that ‘rulers’ will actually be ‘ruled’ as well. Dahl acknowledges the force of this idea in arguing that tourists could legitimately be denied the vote, since they will not ‘be subject to the laws my participation might have helped to bring about’ (Dahl, 1979, p. 123). One problem with this claim is that there is always a great deal of uncertainty as to who will eventually be subject to the laws in the future. Emigration, death and the transformation of political systems make predictions about the future composition of the ‘people’ largely contingent. This remark could perhaps be dismissed as a mere technical problem. A more serious

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observation is that the prospective view cannot so easily be inferred from the all affected principle. In denying the vote to people who are unlikely to remain residents in the future, this view implies that some people would once again be relegated to the status of mere subjects. The prospective view holds that people who are not subjects tomorrow should not be rulers today. However, if the rationale for this view is that it is unfair that the people making rules today are not subjected to them tomorrow, it appears equally unfair that people subject to laws today did not participate in their making yesterday. In the end, it seems that only the presentist view allows for this conclusion. We are, thus, forced to propose that all de facto subjects should be recognised as ‘rulers’. This is to reject past and future residency as conditions for participatory rights. Suffrage should be extended not just to long standing resident non-citizens but to asylum applicants, transients and tourists as well. It is, of course, easy to imagine a number of objections to the implementation of suffrage that includes as voters all temporary subjects. A first is that it may seem arbitrary that non-citizens paying a visit on election day should be able to vote, whereas visitors on all other days remain without a vote. It seems arbitrary for the reason that all visitors are equally subject to the law and should, hence, be equally qualified to participate. However, this point confuses the right to vote with what might be termed the ‘right to an election’. Everyone within the jurisdiction of a democratic nation should be recognised as full bearers of political rights, including the right to vote. Among the political rights is the right that elections be arranged with a certain periodicity. But no one has the right to an election being arranged at any particular time. Given the periodicity of elections, it is unavoidable and fully consistent with the equality of political rights that some temporary visitors would be able to use their votes whereas others would not. In this regard, temporary visitors are not alone. Other residents and citizens would regularly miss the chance to vote if they were to leave the territory before election day (as emigrants or as tourists). Arguably, it is neither unfair nor inconsistent with the all affected principle that people voluntarily leaving the jurisdiction prior to elections taking place are unable to participate. A further objection to the presentist view is that it creates incentives for travellers to visit countries on the day of national elections. It is not just that organised ‘bussing’ of voters across borders represents a costly and potentially destructive form of political action. The more serious point is that it seems a travesty of democracy to enfranchise temporary visitors arriving for the sole purpose of achieving political influence in

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a country to which they have no ties. However, before concluding that this is a devastating objection to the enfranchisement of temporary visitors, we should consider the reasons motivating it. One reason reveals a concern for political equality. The presentist view appears to legitimise a situation in which political factions in a country invite in sympathisers from abroad in order to boost their electoral support. However, to the extent that some people are able to gain political influence as a result of their ability to ‘buy’ voters from abroad, the attractions of democratic elections as a mechanism for the peaceful and fair resolution of social conflict are largely lost. It is lost, since vote buying undermines the equal chances of all subjects to affect the electoral outcome. Now, if this argument is accepted as a real objection, there are, of course, other means available than denying people the right to vote. Strict legal rules criminalising ‘vote buying’ are likely to be less intrusive and potentially just as effective in securing the political equality of voters. A more troublesome objection to the inclusion of temporary visitors is that they may vote to promote interests destructive to the integrity of the democratic political system. Although voting for personal gain is undoubtedly permissible in a democracy, the fear is that large numbers of temporary visitors may act together and elect representatives conspiring to undermine the sovereignty of the nation. Consequently, a concern for national security constitutes the basis for a real argument against permitting all temporary visitors to vote. In fact, Tomas Hammar has argued that countries ‘exposed to security risks’ could legitimately exclude all resident non-citizens, not just temporary visitors, from participation in national elections. In ‘high risk countries’ and ‘during high risk periods’, resident non-citizens ‘should not be allowed to vote in national elections’ (Hammar, 1990, p. 217). Every member of a democratic community should be prepared to accept some coercive measures in order to secure the sovereignty of his or her nation. The preservation of national self-determination is clearly both a prominent and a legitimate interest. Of course, the interest in preserving national sovereignty is distinct from the interest in securing an inclusive demos. It should, consequently, be acknowledged that conflicts between these interests are inevitable. However, if these are both legitimate interests, it is far from certain what constitutes a reasonable adjudication between them. First, let us grant that there is an important distinction between temporary abridgements of political rights ‘during high risk periods’ and permanent restrictions that apply at all times. Most democratic

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constitutions allow for the interim suspension of democratic rights in times of war or civil unrest. These measures may be reasonable to the extent that they are necessary in averting a ‘greater and even more significant loss’ to the basic liberties of all members of the democratic community (Rawls, 1993, p. 356). By the same standards, it appears unlikely that permanent restrictions on the political rights of resident non-citizens are ever justified. It is unlikely to ever be the case that the permanent disenfranchisement of resident non-citizens is necessary in order to prevent ‘greater and more significant’ losses to the political rights of all members. But can the same thing be said with confidence about restrictions on the political rights of temporary resident non-citizens? It is clear that certain restrictions can reasonably be accepted under particular circumstances. For example, it may seem reasonable that asylum seekers should have the right not to be interrogated about political activities suspended. The reason is simply that the right to asylum cannot be implemented unless officials are authorised to establish the motives and reasons for immigration. So, if it is accepted that there is a right to asylum, the restrictions that are necessary for the realisation of the right to asylum should also be accepted as reasonable. And if these restrictions include the right of authorities to inquire into the motives for asylum, such restrictions are therefore reasonable. Analogous to this argument, it could be claimed that a brief period of residence may be a reasonable qualification for voting rights in national elections. The basis for this claim is that short-term residence contributes in an important way to the stability of the democratic system, which is, in turn, an essential prerequisite for a people’s ability to rule itself effectively through democratic procedures. In so far as each person recognises as reasonable the right to participate in the democratic process, it is reasonable as well that the conditions necessary for the effective use of these rights are implemented. Indeed, it may be unreasonable to reject any measures that are necessary for the protections of basic rights and liberties, provided they represent the least intrusive alternatives. The term ‘necessary’ is nonetheless crucial here. Though it may be unreasonable to reject the least intrusive measures necessary to secure the protection of democratic rights, those measures could reasonably be rejected if the threats are unlikely to materialise. To the extent that the threat motivating an intrusive measure is just hypothetical, the means proposed to combat the threat may no longer be considered ‘necessary’. This is an important reminder, since it suggests that the exact length of

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residence required for the preservation of democratic stability is uncertain. It may be that a one-month residence requirement is enough to prevent the instability that may ensue from temporary inflows of noncitizens at the time of an election. However, the exact length of time required for this end may vary with geopolitical and historical conditions. The main point here is that residence requirements could, in principle, be justified in a limited range of cases, even when it means that an under-inclusive demos is created as a result. There is, in other words, the potential for exceptions to the norm of inclusion that follows from the legal version of the all affected principle. Yet, these exceptions are justified only to the extent that they are necessary for the preservation of fundamental democratic rights. Arguably, this condition is rarely met by the regulations of suffrage that currently exist in the democratic world. The conclusion is, therefore, that the familiar kind of restrictions on the vote for temporary non-citizens cannot be justified.

Conclusions The aim of this chapter has been to explore the right to vote of resident non-citizens. There are millions of people around the world who are residents but not citizens in a democratic country. Despite the fact that they are residents of democracies, they are hardly ever granted the right to participate in national elections. The right to vote is typically the unique privilege of citizens. Here, the elevated status granted citizens in relation to democratic elections is challenged. The argument is made that residency, not citizenship, constitutes the basic criteria for membership in the democratic community. This conclusion follows from an analysis of the nature of territorial jurisdictions and the meaning of the legal version of the all affected principle spelt out in Chapter 2. A democratic system is one that extends participatory rights to all of its members, where each person subject to the jurisdictional powers of the government is considered a member. As a result, a political system that deliberately excludes residents from participatory rights is to be considered defective in terms of democratic inclusion. A further implication of this idea is that citizens are to be considered members of the country in which they reside and, therefore, not members of the country in which they are citizens if they are residents of another country. For the same reason that resident non-citizens should be able to vote, non-resident citizens should not be able to vote. However, places of residence are fluctuating in today’s world. Patterns of migration, voluntary or coercive, ensure that the composition of the

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democratic people is subject to constant change. At the same time, the prevalence of coercive border control makes certain that many people are denied entry into democratic countries and, therefore, are subject to the coercive apparatus of the state, even if only briefly. These are difficult challenges to the idea of a suffrage including all legal subjects. As indicated above, the conclusion is nevertheless that even temporary resident non-citizens should be allowed to participate in democratic elections. Residence requirements should be set at a minimum in order to be reasonable.

4 Too Young to Vote? Children’s Suffrage

On the eve of the twenty-first century, electoral laws in many countries are being modified for the purpose of increasing the participation of young people in the democratic process. In 2007 Austria became the first major Western democracy to establish 16 as the voting age.1 Lowering the age of voting is being debated and considered in many other countries as well (Hinrichs, 2002; Rutherford, 1997). These developments follow a trend towards increasing inclusion of younger people that began many decades ago. Not until the 1970s did Western democracies converge around stipulating 18 as the legal voting age. In the United States, the introduction of the new voting rights age incited a complex political and legal process that came to an end only with the adoption of the twenty-sixth constitutional amendment in 1971 (Keyssar, 2000, pp. 277–81). Age nevertheless remains a controversial criterion for political participation.2 According to some critics, age limits are discriminatory in general and particularly so in relation to democratic rights. Writers affiliated with the children’s liberation movement used to advocate the elimination of age limits in all aspects of life, including political affairs. The leading advocate of these ideas declared that ‘I want the right to vote for people of any age ... no one should be left out’ (Holt, 1974, p. 155). Another renowned activist for children’s rights, Richard Farson, asserted that the exclusion of children from political life ‘is actually inconsistent with fundamental concepts of democracy’ (Farson, 1974, p. 177). More recent advocates of children’s rights are more modest, contending that the voting age should be lowered, at least so as to allow anyone in early adolescence (12–16 years) to take active part in political life (e.g. Schrag, 2004; Ludbrook, 1996; Archard, 1993, p. 74). 90

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However, disputes concerning the appropriate voting age should be distinguished from questions over the justifiability of excluding children from the democratic process (Archard 2003, p. 20f.). The dominant view is clearly that age limits for the right to vote are perfectly legitimate. This has been affirmed by, for example, the general comments supplementing the International Covenant on Civil and Political Rights (CCPR/C/21/Rev.1/Add.7, 1996). But the voting age is in a sense a mere technical aspect of the problem of democratic inclusion. Age is a very rough category, and there will always be room for reasonable doubt about the appropriateness of this or that specific age limit. The more fundamental question concerns the reasons that purport to justify limitations on voting rights by appeal to the age of the individual. At the heart of the debate lies a concern with the ‘political maturity’ of the voter. The view that maturity, knowledge or competence is a prerequisite for making political decisions has a long tradition in the history of political thought. From Plato to Mill it has been argued that education and ‘intelligence’ are preconditions for political rights. Although education or literacy are no longer acceptable requirements for the vote, the existence of age limits reminds us that democracy is premised on competence, even today. Instead of debating the appropriate voting age, we should, thus, examine the reasons for thinking that ‘immaturity’ justifies exclusion from the realm of political rights in a democratic political system. What I shall term the ‘conventional argument’ is the view that political competence should be required of all voters in order to protect the interests of society at large. The ‘incompetent’ should be prevented from voting, since his or her political decisions ‘might impact negatively’ on the interests of the general public (Chan and Clayton, 2006, p. 539). In conjunction with the empirical premise that young people cannot make proper political judgements, as they lack the ability to comprehend and evaluate the complex issues at stake in politics, it would seem to follow that children should not be allowed to vote. Indeed, it has been argued that children’s lack of competence is the ‘sole ground for excluding children’ from democracy (Weale, 1999, p. 154; Dahl, 1989, p. 127). In examining this argument, there are alternative approaches that can be taken. One would be to question the empirical premise of the argument, that is, the claim that children cannot make proper political judgments. However, in what follows I shall refrain from challenging this premise. For the sake of the argument, I will accept the view that most children are in significant ways less competent in understanding the social, economic and moral dimensions of politics.3 Instead, I want

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to focus on the normative premise of the argument, namely that rights to democratic participation can legitimately be restricted for the purpose of protecting the interests of other members of society. In this chapter I will argue that the validity of this normative premise is limited and that the conventional view is, in the end, untenable. A first glimpse of what is wrong with this view can be gotten by considering the following set of claims. Consider, first, whether an adult person should be denied the vote because his or her electoral participation can reasonably be assumed to contribute to decisions that are harmful to the interests of other adults. Assume the answer is ‘no’ and further that differential treatment of children and adults is legitimate only on the basis of relevant differences, not on the basis of the fact that children are children (Scarre, 1980, p. 121). Now, the combination of these assumptions clearly rules out the view that children should be excluded from the vote in order to protect the interests of adults. Although this refutation requires further attention before it can be accepted, it casts some doubt on the attempt to justify the exclusion of children with reference to the interests of adult members of society alone. By the end of this chapter, I will argue that restrictions on children’s democratic rights are, in most cases, legitimate only if they can be defended by appeal to the interests of children themselves. In accordance with contractualist assumptions, I will argue that children’s political rights should be determined primarily with reference to the best interests of the child. A convincing argument for the exclusion of children from the vote should be able to explain why not having the right to vote is a good thing for children. In the final sections I intend to develop an argument for the exclusion of children from the vote by appeal to an account of children’s interest in play. However, before reaching that point, there are two distinct issues to be examined. The first is to what extent denying children the vote is at all a case of democratic exclusion. That is, we need to investigate the basis for perceiving children as members of the people entitled to rule itself through democratic procedures. This question requires an exploration of the all affected principle and whether it applies to children or not. In the case where the principle does not apply to children, there can be no basis for the contention that the exclusion of children constitutes a democratic problem. The second issue concerns the nature of justifying the scope of children’s political rights by contractualist standards. The puzzle confronting us here is that the justifications for the political status of children appears to be unavailable to children

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themselves. How then can we ever pretend that the rights of children in a democratic state have been justified to children?

Children and the all affected principle Children are usually not recognised as participants in society on a par with adults. They lack many rights and liberties enjoyed by adults, and they generally cannot make use, by themselves, of the protections and entitlements, benefits and opportunities, that are offered by law and public policy. Moreover, a child’s life is most of the time confined to the family or care-taking institutions, and it may, consequently, be argued that children are just members of the ‘private sphere’. Children are ‘taken care of’ rather than ‘governed’ or ‘ruled’; they are not members of the public, indeed not members of society at all. Hence, it could be argued that it is only appropriate that children not be included among the governors or rulers of the state and not have the right to participate in the democratic process. However, the view that children are not members of the public sphere, not even ruled by the arm of the law at all, is open to dispute (e.g. Roche, 1999). A convincing reason for lowering the voting age in many countries is the perception that young people are in fact taking on many heavy burdens of the state. Nowhere is this more evident than in the case of universal conscription for military service. A person that is ‘good-enough-to-fight’ should also be considered ‘good enough to vote’. The connection between the introduction of universal conscription and universal suffrage is well known in attempts to explain the introduction of universal male suffrage (Ticchi and Vindigni, 2000). In fact, the enlistment of young boys for the Vietnam War played an important role in mobilising political support for lowering the voting age in the United States (Keyssar, 2000, p. 279). Yet, the point here is not to explain the expansion of the franchise but to evaluate the reasons for expanding it. In fact, the view that young people should be entitled to vote takes support from John Stuart Mill’s ‘test’ for extending the franchise. Mill advocated more inclusive suffrage by pointing out that if a person ‘may be compelled to fight, if he is required implicitly to obey, he should be legally entitled to be told what for; to have his consent asked, and his opinion counted at its worth’ (Mill, 1991, p. 173). Following Mill’s principle, a government with the authority to call its people to war should grant the vote to everyone as well. The obvious limitation of this argument is that not everyone is, in fact, compelled to fight and that, therefore, not everyone has a legitimate

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claim to vote in accordance with this principle. Since no democratic government ever compelled children to fight, Mill’s test for inclusion does not appear to support the enfranchisement of children. In responding to this point, John Holt remarks that children are typically expected to prepare themselves to fight for their country at the appropriate age. Holt’s point is, in other words, that the decisions made by governments today ‘affect’ children later in life. Indeed, since children ‘will have to live longer with the consequences of what we do’, they are ‘more affected than anyone else by politics’ (Holt, 1974, p. 158). Even this attempt to expand the validity of Mill’s argument is ultimately unsuccessful, however. On the assumption that anyone ‘compelled to fight’ should have the right to vote, it does not follow that anyone who will be compelled to fight should be able to vote. Moreover, the principle that the duties imposed in the future should guide the distribution of rights in the present can hardly be sustained. Many people will be a subject of a political authority different from the one under which they currently live. The identity of individuals compelled in the future by a particular government depends on a number of contingent factors, such as patterns of migration, the survival rate of political regimes and changing spheres of jurisdictions. As noted by Hobsbawm (1993, p. 63f.) formal citizenship of residents in Eastern Europe may have changed up to six times in the twentieth century as a result of political transformations. The future connections between the political authority and its subjects are, thus, conjectural at best. Instead of speaking about the risk that children may be compelled to fight tomorrow, we should examine to what extent they are compelled by the law today. After all, it would be ludicrous to presume that Mill believed a duty to ‘fight’ is a necessary condition for political rights. Mill’s test should more plausibly be understood as a reminder that anyone ‘compelled’, in whatever way, should be able to participate in the political process. In accordance with the general framework of this study, the issue should be decided by the application of the all affected principle. Given the view that everyone affected by the law should be allowed to participate in the democratic process, it seems clear that the exclusion of children renders the political system less democratic, if we have reason to believe that children are affected by the law in the relevant sense. In fact, there are a variety of ways in which governments compel children. Most significantly, children are forced to comply with the school system. For a considerable period of time, every child is under a legal duty to follow a strictly regulated system of rules almost every day that

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is implemented by an army of public officials. The child’s life is thereby probably more regulated by the law than is the daily life of any adult, save for prisoners. Schooling is, of course, compulsory only for children at a certain age, leaving infants less affected by the law. A tentative conclusion is, thus, that children, at least from the age of compulsory schooling, are as much affected and compelled by the law as adults. Moreover, the legal system affects children not just by enforcing particular actions but by imposing restrictions on the range of actions permissible for them. A law compelling the child (or any person) to act in certain ways is not necessarily either more or less coercive than a law compelling him or her not to act in certain ways. Taking the vast array of legal restrictions into account, the idea of the child as a legal subject receives further support. Children are by law prohibited from working, engaging in sexual conduct, driving, doing business, watching certain movies, drinking alcohol and so forth. The point here is not that these regulations are either bad or unjust but that they significantly ‘affect’ children – of any age – in the legal sense of the term. Childhood is, thus, far from a ‘state of nature’, void of legal authority. Childhood should more readily be conceived of as a strictly regulated status, subject to the authority of the state. If this is the case, there can be little doubt that the all affected principle applies to children. To all of this it could be objected that children are not full citizens, not legal persons in the complete sense of the term, since they are held in custody, usually by their parents. It is true, of course, that the law compels children to receive schooling, extracts taxes from their assets and restrict access to various goods and services. But rarely is the state the enforcer of these laws. In fact, children are more subjects of parental authority; the rules and norms that apply to children are regularly enforced by parents rather than by the state. Does this mean that children are not legal subjects at all? An affirmative answer could receive support from the conception of parental authority, explicated in direct contradistinction to the notion of state authority, by John Locke in The Second Treatise of Government. Speaking about children, Locke states that ‘parents have a sort of Rule and Jurisdiction over them when they come into the World, and for some time after’ (Locke, 1988, II, p. 55). The essential point for Locke is to emphasise the equal standing of mothers and fathers in this respect, rejecting the monarchical conception of paternal authority. Although Locke emphasises that parental authority is ‘but a temporary one’, it is a ‘jurisdiction’ even so. And it is a jurisdiction beyond the law, since children cannot, Locke insists, be governed by laws at all. The reason

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is that the validity of a law is conditional upon the subject’s ability to understand it. ‘No Body can be under a Law, which is not promulgated to him ... or made known by Reason only’ (Locke, 1988, II, p. 57). As the law cannot be known by the child, it cannot apply to the child either. For sure, Locke here refers to the ‘Law of Reason’, but as he makes clear later on ‘[t]his holds in all the Laws a Man is under, whether Natural or Civil’ (Locke, 1988, II, p. 59). In accordance with Locke, the child is not subject to the law but subject to parental authority. A related claim is made by Thomas Hobbes, who noted that the ‘Dominion over the Infant first belongs to him who first hath him in his power’d’ (Hobbes, 1983, IX, p. II; see also King, 1998, p. 13). Since children are clearly born to parents, it is they who have authority over children by virtue of being ‘first’. The implication is not just that parents should have the right to exercise authority over their children in some respects. Most people would be inclined to accept this. The claim put forward by Locke and Hobbes is more radical in that it holds that parental authority effectively replaces the authority exercised by the government. An important point, though, is that parental authority over children, as far as it confers legal powers on parents, is ultimately conditional upon legal recognition. A parent’s decision is authoritative precisely because the parent has been granted this power by law. In this regard the relationship between parent and child resembles the relationship between a public authority and an adult citizen, where the former is authorised by law to make decisions about aspects of the citizens’ whereabouts. The right of any public authority to make decisions is a right delegated by the legislature. Similarly, parental authority would seem to be delegated authority as well. Granted that any person subject to legal authority is a legal subject and that parental authority is a legal authority of sorts, a child is a legal subject whenever he or she is forced to obey a parent. It may, of course, be questioned whether parental authority is really no more than delegated authority. Yet, the delegated nature of parental authority emerges most clearly from the fact that it is circumscribed in a number of ways. Even Locke admitted as much, conceding that the ‘Father’s Powers’ over his child extends ‘to a degree only fit for the Discipline and Government of his age’ (Locke, 1988, II, p. 74). The authority of parents is, hence, neither unbound nor completely arbitrary. In the words of Amy Gutmann; ‘parents’ rights are contingent upon their fulfilment of paternalistic duties’ (Gutmann, 1980, p. 344). The contingency of parental authority is most visibly demonstrated

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when the government assumes parens patriae, interfering with, and in extreme circumstances replacing, the authority of parents in order to protect the child from neglect, abuse or maltreatment. This is a power assumed by every political authority and, as noted by Locke, the powers exercised by parents over their children are ‘not so much as the shadow’ as the power that lies in the hand of the ‘Magistrate’ (Locke, 1988, II, p. 65). In sum, the notion of parental authority does not undermine the conclusion that children, no less than adults, are legal subjects and, as such, equally affected by the law. There is one more caveat to be addressed, however. In most legal systems there is a fundamental distinction between children and adults in terms of criminal responsibility. The basis for restricting criminal responsibility with respect to age in a legal system derives either from a notion of limited capacity for deliberate criminal behaviour or from the belief that certain punishments and legal procedures are inappropriate below a certain age (Maher, 2005, p. 497). Considering age-related restrictions, primarily in the second sense, it is clear that children held accountable for violating the law are generally subject to less harsh sanctions than those imposed upon adults. Moreover, many legal systems have adopted a system of juvenile courts where young offenders are treated with greater consideration to the unique circumstances of youth. These observations provide the basis for the argument that as long as children are exempted from the full range of coercive powers exercised by the state, they should not be treated as democratic subjects in the full meaning of the term and, consequently, not be granted the privileges of ‘rulers’ either. However, the truth of the premise and the relevance of the conclusion are both contentious. The premise of the argument is that children are treated much more leniently than adults by the law. Yet, this claim does not hold true in all legal systems and not with respect to children of all ages. First, there is a trend towards passing juvenile offenders to regular courts and imposing sanctions on them that can hardly be considered lenient. For example, the criminal law in most parts of the US allows for life without parole for offenders younger than 16, and some states even impose life sentences on offenders as young as eight (Ward, 2006). Second, the practice of juvenile courts does not necessarily mean that the child is subject to less severe sanctions. Ironically, the informal procedures of juvenile courts often mean that judges are afforded greater leeway in imposing their personal morality on offenders than in regular courts. As a result, it has been reported that minor offences committed by children frequently result in more severe sanctions than regular courts

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would have had the authority to impose (Butts and Mitchell, 2000, p. 174f.). A more fundamental question, however, is whether the severity of the sanctions imposed on children is at all relevant in deciding on their status as legal subjects. A person sentenced to prison is as much subject to the law as a person fined or released on probation. Thus, as long as the child is held responsible before the law, the severity of the sanctions imposed is of no import in determining whether the child is a legal subject or not. It seems proper, then, to conclude with John Fitz that whenever the law ascribes to children guilt or innocence and imposes sanctions of any sort, the ‘child is on stage as a legal subject’ (Fitz, 1981, p. 301). It remains true, though, that legal sanctions are not imposed on children of just any age but are restricted by the age of criminal responsibility. This threshold varies radically between different legal systems. In England and Australia the age of criminal responsibility is ten years, in some countries just seven (India, South Africa) and in other countries between 12 and 18 years (15 years in the Nordic countries). However, there are signs of a tendency towards holding children legally accountable at increasingly lower ages. This has meant that the traditional legal notion of doli incapax (‘incapability of crime’) is no longer recognised to the same extent in relation to children. The doctrine of doli incapax has medieval origins and became generally recognised in many legal systems in the early twentieth century. It forms the cornerstone of the United Nations resolution on juvenile justice, known as the ‘Beijing rules’ (UN Gen. Ass. Res. 40/33, 1985). It holds that a child below the age of seven is not considered capable of ‘criminal action’ and that children between seven and 14 can be held responsible only when evidence is at hand that the child is able to discern between good and evil (Gillen, 2006, p. 130). The gradual removal of doli incapax, thus, means that children as young as seven are considered ‘capable of crime’. Even if sanctions are imposed on juveniles at this age only for serious offences and only in cases where deliberative intent (mens rea) has been established, it remains true that any child above the age of six is potentially a subject of legal responsibility that involves adjudication by a court. These children are undoubtedly legal subjects in the full sense of the term. To the extent that the child is considered legally responsible, there is no fundamental distinction in terms of legal status between adults and children above approximately the age of six. As has been noted, this fact appears ‘contradictory’ in view of the status ascribed to children in other

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parts of the legal system and, particularly, in view of the child’s lack of political status (Shook, 2005, p. 472; Farson, 1974, p. 177). Considering the various and often conflicting perceptions of the child’s competence and responsibility that inform legal practice, it has been concluded that the ‘legal treatment of children reveals a pattern of inconsistencies’ (Minow, 1986, p. 3). Perhaps the most blatant inconsistency is found in the way the law relates to children in the political, in contrast to other, spheres of life. While children are not considered responsible enough to make laws, they are held responsible before the law (Archard, 1993, p. 71). The decisive point with respect to the problem of democratic inclusion is that children are hardly beyond the reach of the law and are, therefore, no less legal subjects than other members of society. Clearly, if children are treated as adults by the system of criminal justice and can be sentenced to life imprisonment, they are significantly ‘affected’ by the law. The child’s right to vote and to participate in the democratic process, thus, follows from the all affected principle for exactly the same reason as the right to vote for adults does.

Justification and children Although children are affected by the law, and the criteria of democratic inclusion tell us that children are members of the democratic people, there may still be reasons that children should not vote. In accordance with the framework adopted in this study, the exclusion of some group from political participation is not necessarily unjust, even when it is contrary to democratic criteria. In certain circumstances we speak about ‘justified restrictions of democratic rights’ and, thereby, acknowledge that democracy is not always the highest virtue. Where vital interests are in peril, it is recognised that some limitations on the democratic process may be justified. The question to be considered is, thus, whether any serious interests are put at risk by extending the vote to the young and allegedly immature members of society. However, before we can even begin to evaluate the arguments for and against the exclusion of children, we need to know what is expected from a justification in this context. Following the idea elaborated in Chapter 2, the reasonableness of exclusions from suffrage should be couched in terms of reasons that could not reasonably be rejected. As it turns out, the applicability of this contractualist idea to children is not straightforward, since it is not clear what it means to say that a political system is justified to children. In order to justify the rules defining the rights to vote, there should be reasons that are acceptable to

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everyone. The challenge in finding principles that children could reasonably accept does not just involve the content of these reasons but the meaning of saying that they should be acceptable to children. More specifically, to what extent can a justification take into account the limited capacity of children and at the same time be sensitive to children’s ‘points of view’?4 One plausible response is that the question is misconceived. It is a mistake to assume that contractualism requires that the political system is justified to children. There is no requirement to this effect, since a justification considers only reasonable persons – which children are not. A reasonable person is anyone who is in possession of the powers of reason and who understands fundamental social and moral issues. Moreover, a reasonable person accepts that there is a value in living under a public system of rules justifiable to everyone. That is to say, the principles of legitimacy apply only to people who have the capacity to understand the issues at hand and who are ‘prepared to discuss the fair terms that others propose’ (Rawls, 1993, p. 51). It is certainly open to discussion whether children are reasonable in any of these senses. Most children satisfy a minimum standard of competence in that they are able to express a preference (Buchanan and Brock, 1990, p. 49). Yet, most children do not possess the cognitive and moral capacities necessary to evaluate abstract doctrines of social and political justice. Moreover, it is doubtful whether children recognise the value of living together with others under rules and institutions that no one could reasonably reject (Schrag, 2004, p. 367). So, if children are not to be counted on as reasonable persons, there can be no duty to propose fair terms of social co-operation that they could reasonably accept. However, the contractualist idea is that a justification is owed to ‘everyone’. In accordance with Thomas Scanlon’s influential work, the legitimacy of any ‘system of rules’ depends on what ‘no one could reasonably reject’ (Scanlon, 1998, pp. 110, 185; Phillips, 1998, p. 197). And in order for this to be true, there is no room for exceptions with regard to children or other ‘unreasonable’ persons. Thus, we should expect no less than a literal understanding of Rawls’ claim that ‘all citizens’ should be ‘expected to endorse’ the principles regulating the exercise of political authority (Rawls, 1993, p. 137). Support for this reading follows from the fact that Rawls’ refers to ‘moral persons and those with the potential for moral personhood’ (Brennan and Noogle, 2002, p. 53). If children are perceived as moral persons, it is clear that Rawls’ criteria for political legitimacy apply to children.

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A further reason for contending that children are meant to be included by the contractualist idea is that it applies generally to ‘unreasonable’ citizens. As has been pointed out by Brian Barry, not only the beneficiaries of the law should be expected to endorse the basic principles that justify it. The law should be justified even to those about to lose from its enforcement (Barry, 1995, p. 71). The system of rights and responsibilities enforced by the state should be acceptable no less to unreasonable citizens than to reasonable ones. So, the view that children are ‘unreasonable’ does not provide a reason for ignoring children in the project of justifying political institutions. If correct that society’s basic structure should be justified to unreasonable adults, it cannot be correct that we are under no obligation to justify ourselves to children just because they are unreasonable. A society that acknowledges the virtue of justified institutions allows each citizen to evaluate and to accept its basic political principles. The egalitarian character of this precept is manifested in the idea that everyone is addressed, which is to say that the interests of all individuals are considered to be of equal importance. In Jeremy Waldron’s words, the idea is that ‘the social order should in principle be capable of justifying itself at the tribunal of each person’s understanding’ (Waldron, 1987, p. 149). It is obvious, though, that in order for each person’s understanding to assume the capacity of a ‘tribunal’, some skill in moral reasoning is required. Moreover, the moral acceptability of public precepts can hardly be estimated by someone who has no conception of personal interests nor at least rudimentary knowledge of facts about society. That is, even though we may have accepted the obligation to justify ourselves to children, the problem posed by them being less than fully reasonable simply does not disappear. The actual wishes of and standpoints taken by children, if asked to express their views on the structure of political and legal institutions, can be unrealistic or even unintelligible. This observation is expounded upon by John Rawls in his remark that ‘the child lacks the concept of justification altogether’ and, therefore, cannot ‘assess the validity of the precepts ... by those in authority’ (Rawls, 1971, p. 463). Hence, a solution has to be found that takes both the duty of justifying ourselves to children and their limited knowledge and cognitive capacities seriously. In what follows, three routes out of this dilemma are identified and evaluated. The first argues that political principles are justified to children if they are justified to reasonable adults. The second contends that the public system of rules is justified to children

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if it could not reasonably be rejected by the child’s future self. The third route is the view that justification to children requires adults to perceive themselves as children and that adults act on principles they could not reasonably reject as children. Justification by adults The first view is the standard procedure employed in relation to children, namely granting adults the authority to identify what is in the child’s best interests. Questions surrounding the legitimacy of the rules that apply to children are, consequently, asked as well as answered by adults. Children’s interests are taken into account, since reasonable adults would not accept as reasonable any principles that ignored them. The reason that a society oblivious to children’s interests is unacceptable is that it could not reasonably be expected to meet with the approval of adults. In accordance with this view, any set of principles that is justified to adults is for that very reason also justified to children. This is the common view and can be found in standard liberal theories of justice. Ackerman, for instance, notes that young children generally lack the skills required to evaluate the principles by which legitimacy is conferred. As a result, the ‘question of legitimacy can only be asked by other adults’ (Ackerman, 1980, p. 140). Similarly, Brian Barry argues that because children ‘are not in a position to protect their own interests ... liberals see a crucial role here for the state as a protector of the basic interests of children’ (Barry, 2000, p. 201). The claim made here is essentially that the protection of children is morally required because this is ‘seen’ as ‘crucial’ by the adult population. More specifically, the argument is that the state should assume responsibility for children’s interests because this is a principle that no adult person could reasonably reject. Hence, children themselves are not addressed in the justification of the policies affecting them. The consistency of this view is not entirely self-evident, however. The question is how to justify its fundamental premise, that is, that what adults could reasonably accept is, therefore, justified to children. Perhaps it could be argued that the premise is justified because children are not competent enough to evaluate the reasonableness of political doctrines. But children’s inadequate competence does not establish the validity of the premise. To say that children are incompetent and, therefore, have no right to a contractualist justification is to restrict the scope of the criterion of justifiability. Yet, restricting its scope is a move that has to be justified in order to be acceptable. Merely asserting

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that children are incompetent will not do. So, we need to inquire into the procedure by which modifications to contractualism are justified. The only answer available within a contractualist framework is that the principle of political legitimacy can only be justifiably restricted if supported by reasons that no one could reasonably reject. This is evidently a hopeless answer, since it brings us back to the point from which we started. The view that the rights and non-rights of children can be justified exclusively by appeal to the reasons found reasonable by adults can be contrasted with Rawls’ argument on justified paternalism. An action is paternalistic when it interferes with another person’s life for the purpose of promoting that person’s interests. Rawls argues that such actions are acceptable only if they can ultimately be justified to the person treated paternalistically (Rawls, 1971, p. 249). Now, the view that questions about the appropriate rights of children can only be asked and answered by adults is a clear instance of paternalism. In order to justify such a view along the lines required by Rawls, it is necessary that the justification is one that children could not reasonably be expected to reject. It follows from this that the view adopted by Ackerman and Barry, referred to above, cannot be correct. In contemplating what policies should be pursued in relation to children, we cannot legitimately ignore what children themselves could not reasonably reject. A justification to adults provides no substitute for a justification to children. Justification to the future child The second conception of justification to children looks at the future child. Children may not be fully reasonable, but one day they will be. And why, then, should we not act on principles that children could not reasonably reject as they grow older? The attractions of this route are obvious. It takes into account the child’s lack of reasonableness by addressing the child as the person he or she will later become at the same as it preserves the idea that we need authorisation from the actual person identified with the child. The child’s judgement is not replaced by the judgements that we (the adults) would make but with the judgements that the child would make later in life (cf. Archard, 1993, p. 53). By looking for the approval from the child’s latter self, many laws and regulations that restrict children’s lives seem much less paternalistic than before. Just like any form of legitimate paternalism, the restrictions that apply to children could be viewed as what Gerald Dworkin has called an ‘insurance policy’ protecting children from their own incompetence (Dworkin, 1983, p. 31). And like any insurance policy, this one

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is voluntary, albeit this time the approval is given retrospectively by the child’s future self. The viability of this alternative is testified to in Rawls’ writings on the subject. Deciding for others that are not fully reasonable is acceptable, according to Rawls, if ‘with the development of his rational powers ... the individual in question will accept our decision on his behalf’ (Rawls, 1971, p. 249). In justifying political principles to people who are not fully reasonable, we should, in other words, explore the acceptability of our principles to them as future and more reasonable individuals. In this way, paternalistic treatment is eventually authorised by the person subjected to it. In relation to children, this would mean that the basic structure of society is justified to children only if they could reasonably be expected to accept in the future the principles regulating it. Thus, the task is that of finding political principles to which consent could be expected ‘later on’ (Rawls, 1971, p. 250). The idea is, in effect, to transform the question of how to justify ourselves to unreasonable contemporaries into a question of how to justify ourselves to reasonable non-contemporaries. Future people are, in other words, introduced as proxies for present children. This is surely consistent with the idea that the temporal location of the person is arbitrary from a moral point of view (Rawls, 1971, p. 287f.; Bernstein, 1997, p. 54). As citizens, we cannot legitimately say that justice only requires concern for the living, and so we must consider the interests of future people as well. Just as future people have an interest in how previous generations care for the earth and its resources, future people have an interest in how previous generations care for their children. It might be objected that this argument does not constitute a substantial improvement as compared to the first proposal, according to which a justification to children requires that adults ask themselves what they believe is in the child’s best interests. This conclusion would seem to be close at hand, due to the fact that future people, acting as proxies for today’s children, cannot themselves be addressed as they obviously do not yet exist. Ironically, the non-existence of the proxies for children necessitates still another proxy. And the most obvious candidate, acting in the interest of future people, is, of course, adults living today. The suggestion would, in other words, be that adults should ask themselves what principles future people, representing the interest of children, could not reasonably reject. In short, what is justified to adults is mutatis mutandis justified to children. In response, the point could be made that there is a marked difference between contemplating what ‘we’ could not reasonably reject and what

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‘they’ could not reasonably reject. Only in the latter case are we making an effort to see things from ‘their’ point of view. When children are addressed as future adults, the implication is that we see ourselves as being under an obligation to present terms of social and political co-operation that would be reasonable to them. And this is somewhat of an improvement compared to the view that any account acceptable to us is, therefore, justified to children as well. However, there is another difficulty with this approach. In addressing children as future adults, it appears that only children’s future interests are considered. There can be no doubt that the child’s future self has strong interests in a decent and just childhood, as this is certain to affect levels of well-being later in life. But in evaluating our obligations to children exclusively from this standpoint, we are assuming that children have no interests other than those of their future selves. In this process, there is a risk that the child’s interests ‘as a child’ (in contrast to ‘as a future adult’) are ultimately ignored. Why should we presume that children could not reasonably have interests distinct from those directly related to their future adulthood (Bojer, 2000, p. 36)? The notion that children only have interests in becoming adult citizens shows that while the proxy alternative provides a justification to future adults, it hardly provides a justification to children. In fact, I believe it is a common mistake not to distinguish clearly between the interests of the child qua child and the interests of the child as a future adult person. Advocates of children’s rights sometimes slide unawarely from the former to the latter. An illustration is found in Michael Freeman’s otherwise perceptive account of children’s rights. Freeman’s endeavour is to advance the idea of children as autonomous beings and the right of children to decide for themselves. But Freeman recognises that, due to the limited cognitive capacity of children, the policies and principles we adopt cannot be based on the assumption that children are fully autonomous. Accordingly, Freeman presents the following suggestion, The question we should ask ourselves is, what sort of action or conduct would we wish, as children, to be shielded against on the assumption that we would want to mature to a rationally autonomous adulthood and be capable of deciding on our own system of ends as free and rational beings? (Freeman, 1992, p. 67) Freeman is offering two distinct points here. The first is that an action is justified to children if it corresponds to what ‘we [would] wish, as

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children’. The idea seems to be that we should adopt the perspective of the child and attempt to identify the principles that could not reasonably be rejected from that viewpoint. This is indeed an attractive picture, to which I will return in the next section. But the second point presented by Freeman is that children already have certain interests, namely, to ‘mature to a rationally autonomous adulthood’. At this point, children are not looked at as they currently are but as vehicles for their latter selves. Presumably, this is exactly what the child as an adult would have wanted us to look at. There is, nonetheless, a difference between the two perspectives envisaged here. Asking what ‘we would wish as children’ is not the same as asking what children as future adults would wish. In fact, to look for what children as future adults could reasonably accept is not to look for what children could reasonably accept at all. In accordance with Rawls, we might say that any paternalistic intervention should respect the ‘integrity’ of the person on whose behalf it is made. That is, the legitimacy of paternalistic judgements does not merely require future consent but also that the actual preferences and interests of the person are taken into account (Rawls, 1971, p. 250). In this context, this should be taken to mean that we need to take seriously the interests of children qua children and that we cannot rely exclusively on what the child’s future self could reasonably accept. Future oriented consent is, therefore, no substitute for a justification of the rights and duties of children. Justification to adults as children The alternatives examined so far have failed because they substitute the judgements of adults for the judgements of children without successfully explaining how this move could itself be justified. What is needed is an argument that justifies this move or one that does not attempt it at all. Now, it is not certain that any of these alternatives are available. Perhaps there is nothing else to say but that ‘compromise is all that can be hoped for’ (Schrag, 2004, p. 373). In what follows I will nevertheless delineate the contours of a proposal that is superior to the ones previously examined and that better approximates the demands of contractualism in relation to children. As stated in Chapter 2, contractualism holds that unequal treatment is legitimate only when justified by principles that no one could reasonably reject. The basic idea of the contractualist model is to identify the conditions for moral acceptability of the reasons regulating social and political interaction. It provides an account of the ‘norms that structure a mutually accountable community of equals’ (Darwall, 2002, p. 6).

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But contractualism is also intimately associated with the idea of political justice as ‘publicity’. The principles justifying the basic structure of society should be ‘publicly known’ and ‘publicly available’ (Rawls, 1993, p. 679). The basic idea of imagining political relations in contractualist terms is that political institutions should be guided by principles that are not just correct but also understandable. As pointed out by Christopher Bertram, this means that contractualism is incompatible with an overly technical or philosophical account of what makes existing political institutions legitimate. The reason why is that complexity or obscurity is inconsistent with the idea that ‘each person’s understanding’ should be the ‘tribunal’ for evaluating the political order (Bertram, 1997, p. 574). The idea of a reasonable justification conveys more than a standard for evaluating the moral validity of political institutions. It also provides a standard for the appropriate framing of the principles of the political order. Children’s limited cognitive capacity clearly restricts the extent to which their consent indicates the ‘moral correctness’ of the principles. As we have seen, it is not clear what it would mean to say that some principles could not be reasonably rejected by children given that they are to some extent incapable of making reasonable judgments in the first place. Though this is true, children’s cognitive limitations do not preclude a role for the ‘publicity’ requirement, which is also a fundamental aspect of a reasonable justification. That is, there is no difficulty in saying that we have an obligation to explain as well as we can, even to children, the basis for the rights and responsibilities enforced by the political system. Actually, doing this certainly requires some effort speaking to children in a way that is appropriate to their current level of intellectual development. But there is nothing utopian about addressing children in this way. Many parents regularly make heroic attempts to explain the moral basis for the actions they and others perform. And, presumably, schools everywhere are involved (or at least should be involved) in the task of examining the principles underlying the basic structure of society. Does the obligation to explain the foundations of the basic structure of society affect what principles are justified to children? In fact, it may. The reason is that effective communication with children is likely to encourage greater sensitivity to children’s viewpoints and interests. Anyone involved in the task of explaining to the child what justice requires, what rights they should and should not have, would want the reasons presented to appear reasonable. As has been pointed out many times, arguments made in public are difficult to sustain unless they

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appeal to the interests of the people addressed (e.g. Elster, 1997, p. 12). In anticipating the child’s objections, the child’s perspective needs be taken into account. As children are entitled to a justification, adults should become more responsive to children’s needs and concerns. The dynamic created by communicating with children in this way has long been recognised; ‘respecting and listening to children enables adults to learn from children how to provide the information and support they need’ (Alderson and Goodwin, 1993, p. 311; Kufeldt, 1993, p. 155f.). In sum, the contractualist idea, in conjunction with the idea of publicity, creates an incentive for the adult members of society taking the perspectives of children more seriously. However, there is as yet no answer to the question of what contractualism requires in order for some political principle to be justified to children. If the validity of the reasons we endorse depends on them not being reasonably rejected, the test has to be performed by reasonable persons. If it is the case that children are not fully reasonable, it follows that what makes some principles justified to children cannot be conditional on the child’s judgement. But what adults consider as reasonable must, nevertheless, correspond to the public character of a political justification. And that does include children. So, the legal treatment of children is justified to children only when supported by reasons that could reasonably be accepted by adults and be publicly known by children. In order to find out what could be publicly known to children we would have to see things more from the point of view of the child. The justification would have to be reasonable for adults as children. Arguably, the formula presented by Samantha Brennan and Robert Noggle captures this idea very well, ‘The correct choice for a child is the choice a rational adult would have wanted made for himself or herself as a child were he or she in a position to so choose’ (Brennan and Noogle, 2002, p. 55, emphasis added). By adopting the perspective of the child the pitfalls of the earlier suggestions can be avoided. The reasons and preferences of the child are not accepted at face value, the child is not reduced to a ‘future adult’, and the judgements made by adults are not accepted as the equivalent of the ones made by the child. The child’s perspective should be the basis for evaluating the principles regulating the rules affecting children. But the perspective should be envisaged by adults, not by children. Only in that way are the reasonableness of the judgement and the perspective of the child accommodated at the same time. The preliminary result of this examination is therefore that children’s rights should be identified by considering what reasons could not reasonably be rejected by us as children.

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Defending the exclusion of children Thus far, two things have been established: that children are affected by the law and that a justification for the exclusion of children would require at a minimum an argument that is acceptable to us as children. It is time now to return to the ‘conventional view’ quoted at the beginning of this chapter. According to this argument, the general incompetence and lack of political maturity among children is a decisive reason for the exclusion of young people from democratic rights. The question we need to ask, then, is whether this argument provides a viable justification in the sense of being acceptable to children. That is, does the incompetence of children provide a reason for adults, assuming the perspective of children, to accept the exclusion of children from the realm of political rights? An affirmative answer could be sought in the simple point that it is frequently sound advice to let those more competent make decisions of great importance. As stated by Dahl, ‘everyone accepts superior competence as a criterion for making decisions on some matters’ (Dahl, 1970, p. 39). The superior competence of doctors, airplane pilots, engineers, construction workers, financial advisers and so forth normally provides a reason for accepting their authority on specific issues. If it is true that adults sometimes have good reasons for deferring to the judgement of those more competent, it should also be true that children often have good reasons for doing so. And if adults are more competent than children in making political judgements, this should be a good reason for children to delegate political authority to the adult part of the population. The analogy invoked in this argument is not entirely convincing, however. The exclusion of children from the vote is not analogous to cases in which adults accept the superior judgement of experts in specific circumstances. The adult’s choice to defer to the judgement of an expert is in the end revocable. Lack of confidence in a doctor or some other expert is simply enough in order for adults to withdraw the authority of experts. Children, by contrast, are not in possession of the power to retrieve the political authority ‘delegated’ to adults. In the absence of the power to revoke the right to make a decision, we should rather say that the right has been ‘alienated’. That is, from the fact that there are sometimes good reasons for delegating judgements to experts, it does not follow that there are good reasons to alienate the right to make political decisions to those more competent. In order to find out whether children should be permanently alienated from political power, a much stronger argument is needed. There

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are clearly only two available paths forward at this juncture. The first is to say that the enfranchisement of children would be a very bad thing for other members of society. The second is to say that the enfranchisement of children would be a very bad thing for children. These views are evaluated below. Exclusion and democracy’s best interests The suggestion that children should be included in the democratic process can be resisted by pointing out that excluding children is necessary for the protection of the rights and interests of others. A premise of this argument is that the right to vote is a right to participate in decisions significantly affecting other people’s lives. As voters, each of us is ‘in a position to do morally significant harm to others’ (Christiano, 2001, p. 197). Or, as argued by Bryan Caplan, ‘bad voting [is] dangerous ... to innocent bystanders’ (Caplan, 2007, p. 197). Another premise of this argument is that children do not have fully developed capacities for political judgement and are, therefore, likely to make political choices that inflict harm on other members of society. Granting all this, it makes sense to assert that the enfranchisement of children ‘would be detrimental to democracy’ (Chan and Clayton, 2006, p. 538; see also Graham, 2002, p. 39). This is in effect the conventional view, referred to in the introduction, holding that children should be denied the vote in order to protect the interests of other members of society. Now, the conventional view does not, strictly speaking, constitute a valid inference unless additional assumptions are accepted. The first is that political rights of anyone can, indeed, be legitimately restricted. The second is that a legitimate purpose of restricting political rights is the protection of other peoples’ interests. The third and final assumption is that the exclusion of children is necessary for the protection of these interests. The need for these assumptions is quite obvious, since there is no inconsistency involved in accepting that children are incompetent and likely to inflict harm on others by voting and yet deny that children should, therefore, be excluded from the realm of democratic rights. In sum, denying children the vote is a justified conclusion only when there are convincing reasons for accepting these additional assumptions. The first assumption is perhaps the least problematic. Despite the fact that political rights are of fundamental importance in a democracy, they are amenable to legitimate restrictions and are unlikely to be considered ‘absolutes’. As a matter of legal analysis, this becomes evident from just a cursory look at existing constitutions and documents of

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international law. The European Convention of Human Rights establishes that the political rights enumerated in articles eight to 11 (protecting rights of association, freedom of speech, and so forth) may be restricted for any purpose ‘necessary in a democratic society’ (O’Donnell, 1982). Furthermore, as noted in Chapters 1 and 2, the International Covenant on Civil and Political Rights (ICCPR) recognises that ‘reasonable restrictions’ on the right to vote are acceptable. Legally speaking, political rights may, in other words, be restricted for reasonable purposes. The question is not whether political rights can be legitimately circumvented but rather when restrictions are reasonable (Ignatieff, 2002, p. 1139). Of course, from a normative point of view, it could be objected that the idea of ‘justified’ infringements of basic rights is inconsistent with the idea of a right as a constraint on the actions of governments. Rights recognise people as beings with a certain kind of ‘inviolability’ (Nagel, 1995, p. 89). For example, the assertion that the right not to be tortured is a ‘human right’ is more than a reminder of the relative importance of the interest in avoiding degrading and painful treatment. The right not to be tortured reflects the notion that the status of the individual should be considered ‘inviolable’ and, therefore, never to be infringed upon with reference to ‘higher’ purposes. The inviolability thesis is vulnerable to the critique that it is sometimes better to violate some rights in order to prevent even more violations of people’s rights. The idea that rights are inviolable may, in other words, be self-defeating for the purpose of minimising rights violations (Applbaum, 1998). Yet, whether the argument is that political rights are inviolable or that their violation should be minimised, the premise is that political rights are, indeed, constraints of the kind that should be portrayed as ‘inviolable’. That they should be portrayed in this way is not self-evident, however. The claim that the right not to be tortured is ‘inviolable’ certainly does not entail that political rights are inviolable. It is not clear that political rights such as arranging public meetings and participating in public decisions deserve the same degree of protection as the right not to be subjected to torture. The significance of political rights can only be determined by consulting the basic normative principles that justify them. In order to clarify this point, we need to proceed to the second step and to examine ends for which restrictions on political rights would be reasonable. A familiar way of reasoning in this context is by way of the idea that conflicting interests should be balanced against each other. In the unfortunate circumstance where the interests of different individuals conflict, the solution is to be found by means of striking a balance that

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satisfies the interests at stake to the greatest extent possible. Frequently, this is a sensible route to take. Assuming that a person acts in ways that improves his or her situation marginally but causes great harm to a large number of people, it appears reasonable that this action should be avoided. This conclusion is reached by comparing and weighing the interests affected in order to maximise the total net benefit. However, it can be questioned whether the idea of balancing interests is a sound method for deciding on the extension of the right to vote. Faced with the choice of whether to include a previously excluded minority or not, the result would perhaps often be in favour of continued exclusion if all that is taken into account is the total sum of preference satisfaction. Since increasing the political power of a group would on average mean increasing the allocation of goods and benefits to its members, the rest of society would run the risk of losing out. That is, it would be preferable that no changes in the inclusiveness of the vote are implemented that might produce a less satisfactory mix of policies in terms of total well-being (cf. Dahl, 1989, p. 151). As a matter of historical explanation of suffrage expansions, the rationality of balancing interests may be relevant. There is much evidence that ruling elites granted the vote to new groups only when facing the threat of revolutionary change – in which case the costs of exclusion greatly increased (Przeworski, 2007). A simple model of balancing the interests at stake, in other words, yields democratic outcomes only under exceptional circumstances and flies in the face of the very idea of democratic rights. Arguably, people’s right to vote should not be predicated on the idea that it always serves the greater good and that it should be withheld or even abolished as soon as it fails to promote it. According to an alternative formulation of this problem, we should care to distinguish between more and less fundamental interests. Individual interests that are fundamental should be protected by constitutional rights that serve as ‘trumps’ in relation to other, less basic interests that are pursued by means of public policy or regular law (Dworkin, 2000). A similar view is spelled out by Rawls (1971), according to which rights and liberties protecting the fundamental interests of people should be granted ‘lexical priority’ with regard to redistributive aims and public interests. The strict implication of these ideas is that interests protected by rights could never legitimately be restricted for the purpose of promoting interests not protected by rights. If, then, voting is a fundamental right, it follows that suffrage cannot legitimately be restricted for the purpose of maximising the satisfaction of non-fundamental interests. Let us call this the ‘liberal view’ for now.

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Accepting the liberal view has important ramifications for debates over the voting rights of children. Remember, the core point in the conventional view is the observation that children are unlikely to make prudent political choices, since they are unable to grasp many of the complex issues at stake in public affairs. In reality, this is to suggest that children would inflict harm on the public interest if permitted to participate in collective decisions. However, in the liberal view, the fact that some people may undertake actions imposing costs on others does not justify interference with these actions as long as people’s interest in performing these actions is more fundamental than the interests harmed by them. For example, perhaps there is reason to believe that children would vote for policies that are ineffective and costly in terms of economic growth. As a result, extending the vote to children would worsen the situation for all. But on the assumption that voting rights protect fundamental interests, this fact does not warrant the conclusion that children should not have the right to vote. Of course, a different conclusion would follow in the case that the interests harmed by children’s political rights are of fundamental importance. Perhaps children would use their political rights to support actions that violate the rights of other members of the community. A similar view is apparently advocated by Tak Chan and Matthew Clayton. According to them, children’s political participation may ‘impact negatively’ on the ‘legal rights’ of ‘other’ members of society (Chan and Clayton, 2006, p. 539). Granted the correctness of this view, it might be perfectly consistent with the liberal view to restrict the political rights of children. Yet, it takes more than an abstract hypothesis to demonstrate that this scenario provides a viable justification for the exclusion of children from the democratic process. The first thing to note is that conflicts between fundamental interests have to be resolved by careful balancing as well. The fact that political rights are granted ‘lexical priority’ in relation to less fundamental interests does not exclude the need for striking a balance between fundamental interests when in conflict (Alexy, 2003). The crux here is to fairly estimate the size of the costs inflicted on all fundamental interests, both for those harmed by allowing an action and for those harmed by not allowing it. For example, A may suffer harm to fundamental interests by B doing X. But in the case B has a fundamental interest in doing X, it cannot simply be assumed that the right answer is to protect A from X rather than allowing B to do X. Thus, the costs resulting from restricting people’s rights have to be considered just as carefully as the costs resulting from people’s actions. This means that

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circumventing political rights is justifiable only when it minimises the overall harm in relation to peoples’ fundamental interests. This is to say, in Rawls’ words, that basic liberties can be restricted only ‘if this is necessary to prevent a greater and more significant loss ... to these liberties’ (Rawls, 1993, p. 356). In the end, the exclusion of children depends on the evidence available for the contention that the fundamental interests of other members of society are put at risk by children being granted the vote. Now, it remains quite unlikely that children’s political activities would cause more serious damage to other people than what is already permitted by the political participation of adults. Except for fictional depictions, found, for example, in William Golding’s Lord of the Flies, no serious attempt has been made to demonstrate that children are more evil or less considerate than adults. Although the issue is contested, there is much evidence from developmental psychology suggesting that children’s moral skills are more advanced than is commonly assumed (Turiel, 1995, p. 901; cf. Purdy, 1994). The argument that children must be excluded in order to protect the fundamental interests of other members of society is, therefore, controversial at best. A viable justification for the exclusion of children would, thus, have to be sought elsewhere. Exclusion and the child’s best interests A more promising basis for the reasonable exclusion of children may be found among the reasons underlying paternalistic laws generally enforced on children. There are clearly many liberties and options that children are denied by law. Children cannot work, marry or engage in sexual intercourse, and they are restricted from a myriad of other actions that adults are free to perform.5 Many instances of paternalism have been abolished in recent decades, and rightfully so (Minow, 1986, p. 12). But there may still be good reasons for maintaining restrictions in relation to certain aspects of the child’s life in order to secure the child’s best interest. Consider, for example, the widely accepted prohibition on child labour. Laws that deny children the right to take employment are not justified primarily by the need to protect the interests of others, nor do they rest on the assumption that children are incompetent in performing work. Rather, the basis for denying children access to work is the ‘best interest’ of the child. This is also the premise of the United Nations Convention of the Rights of the Child (1989), according to which child labour is characterised as ‘harmful to the child’s health or physical, mental, spiritual, moral or social development’ (Article 32). In focus

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is how the activity affects the child, not how it affects other people’s interests. A parallel point could presumably be made in relation to children’s right to vote. This would be in line with the requirement of the UN Convention that the ‘best interest of child’ should guide ‘all decisions’ affecting children (Article 3; Alston, 1994, p. 4). As a result, the question of whether children are competent enough to vote, introduced by the conventional view previously discussed, should be re-phrased. The essential question is the extent to which children would benefit or not benefit from the right to vote. It is important that this question not be understood primarily in terms of electoral outcomes. As already argued above, the consequences of children’s suffrage in terms of welfare and protection of fundamental rights are uncertain. It may be the case that children would make decisions that turn out badly in terms of their social and economic interests, or it may be that their decisions would improve their situation. It may even be that the enfranchisement of children changes nothing in terms of electoral outcomes and the policies pursued. In any case, it is difficult to maintain that children should be either included or excluded from the vote on the basis of speculation of this kind. What should be considered instead is how children’s’ interests are affected by recognising children as bearers of the full range of political rights. First, it should be recalled why this question is of particular relevance for children and is not generally posed with respect to adult members of society. The reason is that it can reasonably be assumed that all adults have an interest in equal rights and liberties. The case of children is different, since the range of paternalistic laws suggests that equal rights are not always in their best interests. In order to find out whether it is, we, the adults, are required to consider what would be in the child’s interest, or what reasons for the regulation of rights and liberties that we, as children, could not reasonably reject. In exploring this question, it should be noted that voting is associated with shouldering a host of responsibilities. Casting a vote involves deciding among political alternatives and participating in a decision of enormous importance for the future of society. In the making of a political decision, a person should sense the importance of the task before him or her. Perhaps it would be going too far to say that voting is a ‘dignified activity’ (Salter, 1952, p. 9). It seems clear, though, that voting is associated with great responsibilities. It may be objected that voting is not at all important, since it seems highly unlikely that the vote cast by an individual will affect electoral

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outcomes. If voting is hardly of any importance, the responsibilities involved in voting cannot be significant either. However, it is far from obvious that this is a correct analysis. Perhaps we should recognise as well the massive costs and benefits at stake in elections. Although the probability of a single vote determining the outcome is miniscule, the outcome may be of such magnitude that the expected value of voting is far from negligible (Parfit, 1984, p. 73). A different view is to recognise that voting is not just a causal activity but a moral activity as well. The opportunity to vote provides voters with a degree of moral responsibility for the outcome of elections. Voters are, consequently, praise- or blameworthy for at least some aspects of the future direction of society (Goldman, 2004). This is consistent with the idea that one important meaning of ‘responsibility’ is that of assuming accountability for one’s actions (Duff, 2007). What we need to know, then, is whether shouldering the responsibility for the outcome of elections is to the benefit of children. Is taking responsibility for the future of society in the child’s best interests? The answer to this question obviously depends on what we take the interests of children to be, which in turn trades on our conception of childhood. This is a complex issue, answerable only by recourse to theories of developmental psychology and conceptions of the good life. According to radical champions of children’s liberation, childhood is no more than a ‘prison’ from which children should be let free (Holt, 1974, p. 27). However, an alternative view is that childhood should allow for opportunities to develop that involve both playful challenges and protection from the demands of adult life. Elaborating on this view, it seems that play is an essential ingredient in childhood that cannot easily be reconciled with the responsibilities attached to adult life in general and to political voting in particular. The proposition that play promotes the development of the child’s mind and character is hardly controversial. Developmental psychology has long acknowledged that ‘children’s addiction to play is a vital part of their mental growth’ (Freeman, 2005). Children’s play, where pressures and expectations from adults are absent, permits experimentation and exploration of social roles, language and mental frameworks. In the process of playing, the child’s self is both differentiated and integrated (Rathunde and Csikszentmihalyi, 2006, p. 508). The picture presented by these findings is that play is a vital mechanism in the process whereby children learn to become themselves. By testing different roles and exploring various selves and worlds to be in, the playing child gains experience of what it is like ‘to be someone’ in the real life (Schapiro, 1999, p. 732).6 The

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significance of play is recognised not just among students of developmental psychology but also in normative accounts of ‘essential human functions’. Martha Nussbaum includes the ‘ability to play’ in the list of conditions of the good life. The inability of a child to engage in playful activities indicates a ‘deep disturbance’ in that child’s life, casting doubt on the capacity of the child to lead a ‘fully human life’ (Nussbaum, 1992, p. 219). Given that we accept play as an essential ingredient of childhood, and not as mere amusement or entertainment, it seems a plausible conclusion that children’s play is to be valued and that the opportunity to engage in playful activities should be protected. In fact, a right to play is enshrined in the Convention of the Rights of the Child that establishes the right to ‘engage in play and recreational activities’ of all children (Article 31). Now, on the basis of the assumption of the fundamental importance of ‘play’, it seems destructive to impose on children great responsibilities for their daily-lives, let alone responsibility for society at large. For many children there is no time at all for play, since they bear heavy burdens of responsibility at an early age. Children living together with poor or sick parents, or indeed without any parents or relatives at all, are frequently left with no choice but to occupy social roles normally reserved for adults. This is, of course, a far more common phenomenon in poor countries, where young children regularly have to work hard and make difficult decisions. The ‘crushing demands’ created by poverty and norms of gender inequality, relegating young girls to household duties, effectively undermine both abilities to engage in and opportunities for play (Nussbaum, 2002, p. 132). As suggested by these examples, responsibility is not always an attractive ingredient of childhood. The responsible child runs the risk of becoming a person with no time to play and whose playfulness is suppressed by the burdens of responsibility. Recognising the child’s interest in play, consequently, provides a reason for minimising the child’s responsibilities. It is a presumption, though, in the sense that children sometimes do have interests that may override the importance of play. For example, children frequently have an interest in exercising autonomy and self-determination in decisions concerning with custody rights, schooling, health and so forth (Freeman, 1992, p. 66). Participating in decisions such as these may be burdening and, yet, they are burdens the child should possibly assume in order to protect his or her interests. It would, therefore, be a mistake to assume that the best interests of the child are always secured by insulating children from the burdens of responsibility.

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However, equally mistaken is the view that autonomy is a supreme good for children and that the only legitimate basis for restricting the options available is the protection of the child’s autonomy. This overriding importance of autonomy is advocated by Feinberg, arguing that the child’s best interests can only be promoted by leaving ‘as much as possible’ for the child to decide (Feinberg, 1980, p. 151). Freeman adopts a similar standpoint, contending that restrictions on the liberties and rights of children are legitimate only to the extent that they are consistent with the interests in achieving ‘a rationally autonomous adulthood’ (Freeman, 1992, p. 67). But there is no reason to believe that future autonomy is best served by treating children as autonomous beings in political life, equipped with the full gamut of political rights. If play contributed significantly to the development of the child, it is possible that the child’s future self benefits more from not taking responsibility for political decisions. In addition, as argued before, there is a more fundamental objection to the view that children should be granted as much autonomy as possible. The objection is that it would be unreasonable to substitute the interests of the existing child for the interests of the child’s future adult self. The best interests of children today should not be defined exclusively in terms of the best interests of adults tomorrow. It seems more plausible to assume that children can have interests that are not reducible to the interest in becoming autonomous citizens in the future. And if that is so, we should recognise the possibility that not shouldering responsibility for society as a whole is in the interest of the present child. The presumption in favour of shielding children against major responsibilities, such as the vote, might not provide a conclusive argument for the exclusion of children. The relative importance of the interest in play is largely an empirical question, and new evidence from developmental psychology could lead to the picture being adjusted. However, the main thrust of the argument is not that play is the major good for children but that an account of the children’s best interests should form the backbone of any attempt to justify either the enfranchisement or disenfranchisement of children. Furthermore, the entire universe of possible institutional reforms has not been surveyed here, leaving the door open to the possibility that alternatives to the vote may in the end be feasible as mechanisms for children’s political participation. Just to mention one example, it is sometimes suggested that parents should be granted ‘extra votes’ on behalf of their children. In this way, it is argued, the best of two worlds can be achieved: the interests of children would be more strongly represented at the political level, and the problems caused by children’s

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lack of political maturity are avoided (Peterson, 1992; Ringen, 1996; Rutherford, 1997; Olsson, 2008). However, there are many problematic features associated with an arrangement that violates the norm of ‘one person, one vote’ by granting some people the right to vote on behalf of others. I shall not consider them here, however, except to note that ‘extra votes’ for parents does not represent an extension of democratic suffrage in the sense the concept is used here. The inclusiveness of the democratic people is not increased by turning parents into proxy voters for children, since democratic inclusion is defined here in terms of the extension of the vote among its members. And clearly, the extension of the vote among the members of the democratic people is not increased when some people are allowed to vote in the name of others.

Conclusions The argument presented here is essentially that extending the vote to children is not to the benefit of children. The basis for this view is that suffrage entails responsibilities that are not in the child’s best interests. Granted that a reasonable distribution of the vote is one that can be justified in terms of the interests of all relevant parties and that it is in the interest of children not to assume responsibility for great social and political issues, the conclusion must, consequently, be that children can reasonably be denied suffrage. It should be remembered, though, that the framework adopted here carefully distinguishes between the reasonableness of suffrage restrictions and the extent to which they are consistent with the criteria of democratic inclusion. As demonstrated in the analysis in the first part of the chapter, children are affected by the law in a less than a trivial sense. As anyone subject to the coercive nature of the legal system should be granted participatory rights in accordance with the all affected principle, the introduction of children’s suffrage is, therefore, to be recommended. Extending the vote to children would in a very real sense make suffrage more democratic, following the premises of this study. Thus, the case of children exemplifies the tensions between the idea of democratic inclusion and the norm of reasonable justification of political institutions. Although it is frequently reasonable to believe that a more democratic vote is also more just, the case of children illustrates that sometimes a different conclusion can be reached.

5 Jailhouse Vote? Felon Disenfranchisement and Democratic Inclusion

The denial to prisoners of the right to vote is widespread among democracies all over the world. In some political systems the right to participate in general elections is restricted for persons sentenced for particularly serious crimes, whereas in others restrictions apply to anyone incarcerated, on probation or on parole. The most radical measures are found in a number of US states, where a person imprisoned for a serious crime remains disenfranchised even after having completed the sentence and being released from prison. Though the practice of prisoner disenfranchisement is common, it remains far from universally accepted and arguably represents one of the most controversial rules of democratic exclusion still practiced in democracies. The many conflicting notions embodied in the practice of disenfranchising felons (the term used here) are illustrated by the variety of conclusions reached by law-makers in democratic countries.1 The member nations of the European Council remain divided on the issue, currently with one in three nations without any restrictions on felon voting.2 In the US, where the authority to regulate the vote is largely up to individual states, there is a great disparity between the states of Maine and Vermont, where no restrictions apply, and the states of Utah and Massachusetts, where felon disenfranchisement has recently been increased (Rottinghaus, 2005; Latimer, 2006). According to recent estimates, felons remain disenfranchised (partly or fully) in 80 per cent of contemporary democratic countries (Massicotte, Blais and Yoshinaka, 2004, p. 26). In sum, although most legislatures have accepted the view that breaking the law entails forfeiture of rights to democratic participation, a significant number have reached the opposite conclusion. At the political level, the democratic rights of felons, thus, remain contested. 120

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A further illustration of the controversial nature of felon disenfranchisement is to be found in recent judgements by constitutional courts. At the turn of the new millennium, electoral regulations excluding imprisoned citizens from the vote have been invalidated by the Supreme Court of Canada (Sauvé v. Canada, 2002) and the Constitutional Court of South Africa (August and another v. Electoral Commission and others, 1999). The judgement of Australia’s High Court in 2007 to overrule a blanket federal ban on prisoner voting introduced the previous year illustrates the direction of the trend there on this issue (Vickie Lee Roach v. Electoral Commissioner and Commonwealth of Australia, 2007). At approximately the same time, the European Court of Human Rights ruled that the electoral regulations of the United Kingdom, imposing a blanket ban on felons’ right to vote, were incompatible with the provisions of the European Convention of Human Rights (Hirst v. The United Kingdom, 2005). As a result, the UK government, and potentially even other members of the European Council, are facing challenges to reform electoral regulations. This decision is an indication that the compatibility of felon disenfranchisement with international law is increasingly at stake. A further sign of this is the less permissive attitude gradually developed by the UN Human Rights Committee in relation to the practice (Nunn, 2004, p. 775). However, international norms in relation to felon disenfranchisement remain ambiguous. A report supplementing the original recommendations of the European Commission for Democracy through Law (2005, p. 8) condemns ‘automatic’ felon disenfranchisement clauses but allows for them to the extent they are considered ‘proportionate’ and ‘necessary’. Moreover, the framers of the International Covenant on Civil and Political Rights clearly considered felon disenfranchisement a reasonable restriction on the right to vote (CCPR/C/21/Rev.1/Add.7, 1996). In contrast to developments elsewhere, the US Supreme Court has not changed the position it adopted in the seventies, granting states the authority to enact regulations excluding felons and ex-felons from electoral participation (Richardson v. Ramirez, 1974). There has, nonetheless, been a vigorous debate over the acceptability of the practice in the United States. One reason for this is the uneven racial and ethnic effects of felon disenfranchisement clauses. The fact that blacks and Latinos are over-represented in criminal statistics entails that members of these groups are also disenfranchised to a greater extent. The perception of indirect racial discrimination is aggravated by the sinister history of many US states, where felon disenfranchisement clauses were used to target and exclude black members of the polity (Harvey, 1993;

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Keyssar, 2000, p. 163). Another reason for concern is the far-reaching consequences for electoral outcomes of these policies. It is estimated that felon disenfranchisement leaves 2 per cent of the adult population in the United States without a vote (3.9 million). The number of disenfranchised felons and ex-felons in some US states is substantial, and given the very small margins by which some elections have been decided, a more inclusive vote could have been decisive. On the basis of a sophisticated analysis of electoral data and voting preferences and participation rates among felons and ex-felons, it has been estimated that felon enfranchisement would have resulted in Al Gore winning the 2000 presidential election and the Senate remaining Democratic during much of the 1990s (Manza and Uggen, 2006, p. 191–7).3 The observation that the rules distributing access to the vote have tangible political effects certainly does not provide a conclusive reason for removing them. The exclusion of any particular group from political participation is likely to have at least some effects on electoral outcomes. A more serious objection to the disenfranchisement of prisoners in the United States is that it has a clear demographic effect, leaving a disproportionate number of African-American citizens without a vote (Fellner and Mauer, 1998; Swift and White, 2008, p. 59; Estlund, 2008, p. 215). In a country where racial differences continuously translate into legal, economic and political inequalities, this becomes a serious criticism of the fairness of prisoner disenfranchisement policies. However, it is a limited argument, since it may not apply to other countries and may not even apply to the United States under more ideal circumstances in the future. The demographic objection does not prove that a policy of felon disenfranchisement is wrong, only that it is wrong under certain circumstances. It should similarly be pointed out that the constitutionality of a practice does not constitute a conclusive reason for upholding it. In fact, the reasonableness of denying prisoners the right to vote cannot be determined by empirical analysis or constitutional analysis alone. What is required is an exploration of the reasons and principles that we believe are fundamental to a democratic political system. On the other hand, considering the complexity of the subject, it has been argued that disagreement over the legitimacy of felon disenfranchisement is reasonable and that no evident mistake is involved either in allowing or disallowing prisoners to vote (Altman, 2005). This is also the view adopted by the dissenting judge in the leading case presented to the Supreme Court of Canada. In objecting to the majority’s opinion that felon disenfranchisement is inconsistent with the Constitution of Canada, the judge stated

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that ‘reasonable and rational persons and legislators disagree on the issue of prisoners’ disenfranchisement’ (Sauvé v. Canada, 2002, p. 141). The upshot of the comment is that since ‘reasonable and rational persons’ continue to disagree on the legitimacy of the practice, there is no definitive answer to the issue. Indeed, even critics of the current practice of felon disenfranchisement admit that the exclusion of some felons could ‘in principle’ be justified (Thompson, 2002, p. 26). However, it seems unsatisfactory that in a democratic state the voting rights of a large group of people should remain an open question, to be decided by the will of political majorities. The extension of suffrage should rather be evaluated in terms of criteria of democratic inclusion and norms of reasonable exclusion. To this end, I examine the extent to which granting felons the vote is tantamount to a more democratic vote as far as inclusion goes. Surprisingly, this is a question that has not been discussed in the literature previously, despite the fact that it is significant in evaluating the extent to which the exclusions of felons from the vote should be considered as a democratic deficit or not. In the following sections, two distinct attempts to justify the exclusion of felons are examined. The first argument is that felon disenfranchisement is necessary for the protection of the democratic process by, for example, denying the vote to people found guilty of electoral fraud. The second argument is that some offenders have simply lost the ‘moral authority to vote’ as a consequence of the serious nature of the crime for which they have been sentenced. Throughout the analysis I will focus on the disenfranchisement of felons and, thus, pay less attention to the much more controversial practice of depriving ex-felons of the vote. The reason is not just that ex-felon disenfranchisement provisions are more infrequent but also that the case for them is ultimately predicated on the legitimacy of felon disenfranchisement. The question, then, is whether the practice of felon disenfranchisement should be accepted or not. As I shall argue, a political system in which felons are entitled to participate in the political process is more democratic. Moreover, in all but a few exceptional cases there is no reasonable basis for denying felons the right to participate in the democratic process in relation to the vote.

Felons and the all affected principle People incarcerated by the state are in one sense more clearly affected by the legal system than anyone else. The daily lives of these people are fully regulated, controlled and monitored by public officials. For this

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reason, it may be argued, there is no escape from the conclusion that prisoners should be able to participate in the democratic process if the message of the all affected principle is taken seriously. The principle, now familiar, holds that anyone subjected to the binding rules of the political authority should be granted the right to participate in the process defining the content of these rules. Since serving a sentence decided by a court under law seems a perfect example of being subject to binding rules, it would seem to follow that any person sentenced, serving time in prison or on parole, should have the right to participate in the democratic process. Thus, a society excluding prisoners from the vote is less democratic in terms of inclusion than it would be had they not been excluded. As felon disenfranchisement is currently practiced by democratic countries around the world, this would seem to be a ‘major exception’ to the consistent application of the ‘all affected principle’, as noted by Briffault (1992, p. 801). Of course, the imprisonment of a person implies the loss of a number of rights, some of them seemingly essential to effective political participation. Any prison sentence may, thus, be understood as inhibiting a person’s ability to take active part in the political life of his or her country. However, to a large extent, the lack of opportunities for political participation can be mitigated by organising the penal system in the right way. In Germany, penal officers are obliged by law to encourage and facilitate the political participation of prisoners. In fact, in some countries imprisoned political leaders have reportedly been able to organise electoral campaigns (Fellner and Mauer, 1998). For these reasons, it would be a mistake to conclude that imprisonment necessarily implies forfeiture of political rights and that voting rights for prisoners would, therefore, be of no significant value. A more fundamental objection is to deny that prisoners are affected by the law in the relevant sense. It may be pointed out that prisoners are hardly affected by the policies and precepts enacted by the state in society at large. Policy decisions taken by legislatures are predominantly concerned with social and economic aspects of life outside the walls of prisons. Why, then, should individuals with no part in society be able to influence the decisions shaping it? The argument would be that since prisoners do not have a ‘stake in our common enterprise’ they are not affected by it and, therefore, should not be included in the process deciding which policies to pursue (Clegg, 2002, p. 162). The view that felons are less affected by public policy than law-abiding citizens is premised on a ‘causal’ understanding of what it means to be affected by political decisions. It is certainly correct that citizens

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are variously affected, in causal terms, by government policy, depending on the circumstances they find themselves in. It is not evident, however, that law-abiding citizens, although more affected by social and economic policies, are more affected in total. After all, felons are severely affected by the system of criminal justice and the rules and precepts that apply in prisons. A felon’s well-being may, consequently, be more affected by government policy even though fewer policies affect that person. However, a more fundamental point is that ‘affected’ is more plausibly understood in legal rather than causal terms. From a legal standpoint, the claim that prisoners are not affected by law and policy is an unlikely hypothesis. As has been previously discussed in this book, the legal conception holds that everyone subject to the binding rules enacted by the state should be able to participate in the making of these rules. There is, thus, no room for distinctions between people on the basis of either the kind or the number of laws they are forced to comply with. Anyone subject to the legal authority of the state is equally affected by the authority in that all have an equal duty to obey. At this point felon disenfranchisement could be defended by pointing out that although imprisoned people are affected by the law, they are clearly deprived of the right to make decisions over their own lives. Thus, the practice of felon disenfranchisement displays a symmetry between the loss of responsibility in deciding personal issues and the loss of responsibility in deciding political issues. Just as in the case of children, there would be ‘something amiss’ in the view that a person should be able to make decisions affecting the lives of a million others but unable to make decisions about one’s personal affairs (Schrag, 2004, p. 373). This conclusion obviously invokes a particular normative theory of responsibility and rights, that is, that the right to make decisions affecting others is conditional on the right to make decisions affecting oneself. Yet, this view cannot be inferred directly from the all affected principle. The all affected principle, as understood here, is concerned with democracy in the public sphere and defines democracy simply in terms of the legal system where all subjects are granted equal rights and opportunities to participate in the process of law-making. The fact that some people (i.e. prisoners and children) lack certain liberties and rights does not contradict the principle that anyone subject to the law should be able to participate in its making. The question may, of course, be asked of the extent to which prisoners are really legal subjects in the normal sense of the term. In fact, there are similarities between the institution of felon disenfranchisement and

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the ancient doctrine of ‘civil death’. Among the ancients and in some places until the 1800s, public authorities had the power to deprive perpetrators of their legal status and privileges. Recent commentaries on the practice of permanent disenfranchisement of ex-felons have, thus, pointed out that it is ‘something akin of the medieval condition of civil death’ (Ewald, 2002, p. 1049, Ewald, 2003, p. 16). The assumption seems to be that there is a natural connection between relegating a person to the status of ‘civil death’ and the decision to take away his or her democratic rights. And if ‘civil death’ represents a quite evident example of an ‘anachronistic’ practice (Orr, 1998, p. 68), it may well be argued that depriving convicted people of their right to vote belongs in the dustbin of history as well. Is there anything to this analogy? The traditional version of ‘civil death’ is the declaration of a person living in a state of ‘outlawry’, with the law offering no protection or status at all. In medieval times, a person declared an outlaw was at the mercy of the community, as others were permitted to ‘ravage his land, to burn his house, to hunt him down like a wild beast’ (see Rowe, 1976, p. 229). It is, of course, a separate issue whether outlawry or ‘civil death’ is a legitimate form of punishment at all. The issue here is rather to what extent an outlaw would be entitled to vote in accordance with the all affected principle. This may strike us an awkward question, and, indeed, the answer is to some extent paradoxical as well. An outlaw is a person declared no longer subject to law and, hence, is no longer affected by the laws of the state. On the other hand, the status of the outlaw is a function of the law within the jurisdiction that authorises outlawry. Thus, outlawry is inconceivable without outlaw laws. The person made an outlaw is, in that sense, a subject of at least these laws, and, as a consequence, should be enfranchised along with all the other subjects of the legal system. By comparison, ‘civil death’ as manifested in the practice of ostracism (in Greece) or exile (in Rome) proves more unassailable by the all affected principle. Ostracism (ostrakophoria) is well known from the history of Classic Greece and entailed expulsion to foreign shores for a certain period of time. Clearly, the ostracised person would be deprived of his or her right to vote during the time of deportation. And, in fact, disenfranchisement here seems perfectly consistent with the legal understanding of the all affected principle, as the deported person ceases to be a legal subject. Today, ostracism of citizens is no longer an accepted form of punishment. But deportation of asylum seekers, guest workers or any resident alien as part of a criminal sentence is still commonplace. Whereas resident non-citizens would be entitled to the

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rights of suffrage according to the all affected principle (see Chapter 3), there is no corresponding basis for the enfranchisement of non-resident non-citizens – which is what deported non-citizens eventually become. In relation to felon disenfranchisement, the relevant case is when deportation is the result of a criminal sentence and not when it follows a rejected application for residence (i.e. asylum seekers). Only in the former case is disenfranchisement a consequence of criminal law. And here disenfranchisement actually does seem to be consistent with the all affected principle. This example of felon disenfranchisement reveals a potential uncertainty as to the precise implications of the all affected principle. It could be asserted that a deported (former) resident felon is affected by the law, since deportation is obviously a result of the legal system. The answer to the question of why the deported person is no longer a resident in the country where he or she used to live is ‘because of the law’. However, the claim that the law causes a person’s predicament is not equivalent to the claim that a person is subject to the law. Rather, a deported person was but is no longer subject to the law, since the person is not situated within the jurisdiction any more. So, in order to conclude that deported persons should be able to vote according to the all affected principle, we would have to argue that it applies retrospectively. In evaluating this point, it may be helpful to consider a further, albeit rare, instance of felon disenfranchisement. The case to consider is the disenfranchisement of felons on death row, awaiting execution as a result of a sentence for capital punishment. Of course, putting a member of the community to death clearly represents a case of disenfranchisement in itself. This is not the issue at this stage, however. The issue is whether there are any specific reasons that a person awaiting the implementation of the death sentence should not be able to vote. In some countries, individuals on death row are automatically disenfranchised, even if the general rule is not to deprive felons of the right to vote (see Dhami, 2005, p. 236). In the event this practice were to be defended as consistent with the all affected principle, it could be claimed that a person awaiting execution will soon cease to be a legal subject and, hence, should not be able to influence the laws that will apply posthumously. Recalling the time-related interpretations of the all affected principle discussed in Chapter 3, this is to invoke a prospective conception of the relationship between the subjects and the legal system. Clearly, the decision as to how the all affected principle should be applied in this regard will have implications for democratic inclusion at large, not just for felon disenfranchisement. Consider, for instance,

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old people, in general, and the terminally ill, in particular. It may seem that a prospective application of the all affected principle would not automatically recognise their suffrage, just as it would invalidate the vote of someone on death row. The reason is that anyone either suffering from terminal illness or placed on death row is unlikely to be bound by the laws that voting may help bring about. Of course, the exact timing of death is generally more uncertain when illness is the cause. And perhaps this is a reason for making a distinction between people soon to die due to age or illness, on the one hand, and people soon to die as a result of capital punishment, on the other. But the date of execution (as well as the validity of the verdict) is frequently uncertain as well. Returning to felon disenfranchisement, the conclusion is, nevertheless, quite clear. Given the assumption that anyone affected by the authority of the government should be able to take part in elections to that government, it follows that felons should be enfranchised. Only in relation to prisoners on death row and deported felons is the verdict less conclusive, since this would depend on how the all affected principle is applied.

Electoral fraud and disenfranchisement The tentative conclusion of the previous section is that the exclusion of felons from the vote makes the political system less democratic as far as inclusion goes. However, democracy is not just about inclusion. In circumstances in which voting by some group of people contradicts other desiderata of a democratic process, the net result may in the end be less democracy in total. We need, therefore, to consider other criteria of a democratic process that may be in tension with expanding suffrage. Arguably, the best case for the disenfranchisement of felons would be an argument demonstrating that it is necessary in order to sustain some fundamental feature of democracy itself. In a full-fledged democracy the political process should not just be inclusive but equal as well. According to Dahl, this is to say that everyone should have an ‘equal opportunity to express a choice that will be counted as equal’ (Dahl, 1989, p. 109). An election in which the choices expressed by some people are manipulated or not counted is, hence, to be considered a violation of political equality. Moreover, on the assumption that equality no less than inclusion constitutes interests ‘integral to the democratic process’ (Dahl, 1989, p. 167), it is evident that conflicts between these values cannot be resolved in any straightforward manner. Now, is there ever a conflict between promoting the inclusion and promoting the equality of elections?

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A rare example of conflict between the inclusion of felons and the value of political equality is when public authorities coerce or induce prisoners to vote in specific ways. Ewald (2002, p. 1047) recounts reports that voter turnout for the incumbent leader of Pakistan, General Musharraf, was inflated due to pressures exerted by authorities on the electoral behaviour of prisoners. This would not have been possible had Pakistani prisoners been disenfranchised. Removing the voting rights of prisoners is, consequently, a means of achieving a more equal electoral process. But is this argument sound? Coercing prisoners to vote is wrong, both because it constitutes interference with the felon’s vote and because it distorts the equality of the electoral process. Taking away the voting rights of felons certainly eliminates the risk of the latter wrong occurring, but only at the price of committing the first wrong yet again. Moreover, the decision to disenfranchise felons would clearly not target the cause of coercive voting in prisons. It is not the felon’s right to vote that causes the wrongs but the lack of opportunity to use this right in a free and uncoerced manner. In order to remedy this problem, we should remove the lack of freedom in the making of political choices (i.e. eliminate coercion) – not the right to make political choices.4 This is to say, the measures should be directed against the people engaged in electoral fraud rather than its victims. The fairness of elections is undermined when voters cheat and manipulate the electoral outcome. If electoral fraud violates the equal value of democratic rights, it seems plausible to conclude that it constitutes an insult to the democratic process. Perhaps equally plausible is the view that electoral fraud should be punished by disenfranchisement of the perpetrator. A potential case for the disenfranchisement of at least certain categories of felons would, in other words, be that anyone convicted of electoral fraud should be denied the privilege to participate in the process he or she has subverted. The argument would seem impeccable from a democratic point of view, since the aim of disenfranchisement is to secure the fairness of the electoral process itself. In fact, the notion that a conviction for electoral fraud disqualifies a person as a voter is common. Criminal law in Germany, Finland, Norway and New Zealand, among others, restricts the vote for persons sentenced for electoral fraud for several years or provide the court with the legal means to do so. The United Kingdom imposes similar restrictions, and the government justifies them by arguing that since electoral fraud ‘strikes at the heart of the democratic system’ automatic disenfranchisement of a person found guilty of such actions constitutes a ‘necessary

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defence of the integrity of the democratic process’ (Department for Constitutional Affairs, 2006, p. 26). The rationale for suspending the vote in connection with a conviction for electoral fraud has impressed even critics of felon disenfranchisement. Kleinig and Murtgah (2005, p. 222) concede that ‘one might imagine that electoral fraud could justify disenfranchisement’. Similarly, Scott Bennett (2004, para. 20) argues that although prisoners should in general be allowed to vote, it would be legitimate ‘to limit disenfranchisement to those convicted of offences that have some logical relationship to voting and elections’. Judge Costa propagated a similar view in his dissenting opinion on the ECHR decision in Hirst v. United Kingdom (2002). According to Costa, there is a ‘logical and perhaps even natural connection’ between electoral fraud and suspension of political rights. The argument is, thus, that it is ‘logical’ to deny someone the right to participate in the process he or she has attempted to destroy. In what sense is there a ‘logical’ or ‘natural’ relationship between electoral fraud and disenfranchisement? The idea seems to be that there ought to be a symmetrical relationship between the nature of the crime and the nature of the punishment. That is, if A’s crime consists of destroying X, the punishment should, among other things, involve preventing A from further use or access to X. This logic does not inform criminal law in general, however. Car thieves do not normally lose the right to use cars, and tax evaders do not lose the right to earn taxable incomes. The point has been made that electoral fraud is similar to counterfeiting, the fabrication of coins and bills (Fund, 2004, p. 152). And yet, it has never been suggested that a counterfeiter has forfeited the right to use coins and bills. There are, of course, counterexamples to be found in criminal law. For example, violence directed towards children or spouses may be punishable by a visiting ban, and a conviction for a violent crime may result in a ban on future use of firearms. These cases are analogous to the idea that election fraud should be punished by disenfranchisement. Perhaps, though, there is a discernable difference between different types of rights. A ban on visiting your children is a restriction on what in Hofeldhian terms is a ‘liberty right’, that is, a right not to be under a duty to act in certain ways. Voting rights, by contrast, should most plausibly be characterised as ‘power rights’ (Jones, 1994, p. 12f.). Having the right to vote is not just to be free to vote (under no duty not to vote) but to have the power to perform a specific legally recognised action. The difference is that removing a liberty right is imposing a duty not to act in certain ways, whereas removing a power right disables the power

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to establish a particular legal relation. Now, this observation does not necessarily undermine the analogy either. There are other examples of situations in which a convicted person may loose a power right directly related to the nature of the crime (e.g. economic fraud or misconduct leading to a ban on operating a business). It seems that all we can say is that assuming a ‘natural’ connection between the nature of the crime and the nature of the punishment is not, in general, incoherent. A different angle on this issue involves looking at the relationship between the punishment and the interests protected by it. In order for the punishment to be ‘natural’, we should expect that it is instrumental in protecting the interests endangered by the crime. In constitutional law this is known as the principle that interference with fundamental rights and freedoms by the government is legitimate only if ‘necessary’ in the pursuit of a specific aim. A minimum requirement for this to be the case is that the interference is effective in achieving the values it intends to protect. This is sometimes referred to as the ‘rational basis standard’. For a coercive measure to be ‘necessary’ in the pursuit of some public good, effectiveness is not enough, however. A further requirement is that no other, less coercive measure is available that would have been equally effective. A punishment that is ‘necessary’ in order to prevent a crime would, in other words, have to be the least invasive alternative among the effective measures available (see Powers, 2006; Emiliou, 1996). The question we should ask, then, is whether the disenfranchisement of fraudulent voters is necessary in order to maintain fair elections. The first thing to observe is that deliberate fraudulent behaviour by individual voters is generally a minor problem compared with other sources of unfairness in elections. In designing a framework for the assessment of the ‘freeness, fairness and administrative efficiency’ of national elections, it turns out that electoral fraud is just one of 54 performance indicators (Elklit and Reynolds, 2005, p. 157f.). According to an extensive review of known instances of electoral fraud, the conclusion is that this method is rarely efficacious in either disrupting or winning elections (Lehoucq, 2003, p. 248f.). These observations offer no excuse for altering ballots, denying voters access to the polling station, intimidating voters or so forth. However, they demonstrate that fraudulent behaviour will in most cases have a marginal effect on the electoral outcome. This is important to note, since it means that to punish fraudsters with disenfranchisement is at best marginally effective in improving the fairness of elections. In order to protect the fairness of national elections, removing the voting rights of individual fraudsters is unlikely to

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have a discernable effect simply because electoral fraud is often quite immaterial to the quality of the electoral process. This can be contrasted with circumstances in which a ban on the right to perform a certain action could clearly be material to the interests protected by the law. For example, imposing a ban could plausibly be ‘necessary’ for the protection of the interests at stake in cases that involve economic fraud (i.e. a ban on the operation of business) or family violence (e.g. a visiting ban). Effectively combating electoral fraud requires a different set of measures; anticorruption legislation and independent electoral supervision above all (Lehoucq, 2003, p. 253). For this reason alone, disenfranchisement hardly seems ‘necessary’ in order to secure the fairness of elections and is, thus, not a ‘natural’ or ‘logical’ punishment for electoral fraud. However, it would be a mistake to portray electoral fraud as always marginal in effect and always a result of individual voters attempting to cheat at the ballot station. The worst and most destructive examples of electoral fraud involve systematic intimidation and coercion on a grand scale (Lehoucq, 2003, p. 237). A prominent example of such practices is the widespread suppression of black voters that was common in the American South until the 1960s. Another and more recent example are the beatings and intimidation that reportedly took place in the 2004 elections in Ukraine (Parfitt and Freeman, 2004). In these and similar cases, electoral fraud clearly undermines the fairness of the electoral outcome and the legislative process. It is doubtful, however, that the seriousness of massive electoral fraud demonstrates that disenfranchisement is a ‘natural’ punishment. A prison sentence is a significant restriction on a person’s freedom of action that would normally deprive him or her of the opportunity to intimidate voters or tamper with voting machines. By contrast, depriving that person of the vote hardly makes it more difficult to do any of these things. The disenfranchisement of people convicted of large-scale electoral fraud is for that reason hardly ‘necessary’ for the protection of the democratic process. In a final attempt to justify the exclusion of people convicted of electoral fraud, it could be argued that the offence constitutes an unjust action, even when it has no discernable effect on electoral outcomes. Hence, what is at stake is not simply the preservation of electoral outcomes but the protection of democratic values. The reason for disenfranchising anyone attempting to subvert democratic elections is that he or she has violated a fundamental value in a democratic society. It is, therefore, an untenable view that cheating at the ballot box causes no harm just because it has no real effect on electoral outcomes. Electoral

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fraud is contrary to democratic values, even when it fails to affect electoral outcomes. But all this shows is that electoral fraud should be punished, not that it should be punished with disenfranchisement. The decision to deny a person the right to vote is to prevent that person from voting, not to prevent him or her from undermining democratic values. However, it could be argued that there is, nonetheless, a fundamental problem involved in granting a vote to people who attack democratic values. Taking the argument to this level is to introduce a broader spectrum of considerations.

The moral authority to vote The claim to be considered is that a conviction for a crime that involves the violation of democratic values would justify the disenfranchisement of the perpetrator. Electoral fraud obviously constitutes an attack of some kind on democratic institutions, however there are many actions that can potentially be characterised as contemptuous of democratic values. The notion that electoral fraud is similar to other offences that subvert the democratic order is expressed in a paragraph in the German legal code specifying the conditions for disenfranchisement of offenders: A judge may bar a convicted offender from voting only if the offence is punishable by more than one year of imprisonment and if the crime falls within enumerated sections of the Penal Code covering such crimes as treason, electoral fraud, espionage, membership in an illegal organization. (American Series of Foreign Penal Code, Federal Republic of Germany, Title I, § 45 [5], emphasis added) The code refers to electoral fraud, espionage and other serious crimes as possible grounds for disenfranchisement. Obviously, the common denominator in these offences is not that they undermine the fairness of elections. It could be argued, however, that they all constitute a threat to the fundamental values of the democratic state (Demleitner, 2000, p. 761). Many countries do, in fact, list electoral fraud, treason and other actions attacking the fabric of the constitutional order together as serious crimes disqualifying a person as a voter.5 And, of course, in the case of the law holding that disenfranchisement should follow any serious attack on democratic values, electoral fraud does not even have to be mentioned. It is perhaps for this reason that the European Commission’s Code on Good Practice in Electoral Affairs accepts

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that governments may suspend the political rights of individuals convicted of any ‘serious criminal offence’ (2002, p. 15). In more sweeping terms, the Fourteenth Amendment to the Constitution of the United States (1868) exempts from constitutional protection the voting rights of anyone involved in ‘rebellion, or other crime’ (US Const., Amend. XIV 1868). Hence, the need to preserve the fundamental values of the democratic order from dangerous and corrupt individuals is a powerful rationale for suspending the vote, not just for individuals involved in electoral fraud but in any offence subverting the democratic order.6 The rationale for denying the franchise to serious offenders is not, then, that the fairness of the electoral process is in need of safeguards against disruptive behaviour. The argument is premised on a different assumption, namely, that serious offenders are generally morally corrupt and that the process whereby the policies and laws of society are decided should not be open to the influence of such people. The case for suspending the vote for serious offenders may, thus, be understood as related to the particularly ‘corrupt’ nature of the offence; the offender has, in effect, lost the ‘moral authority to vote’ (White, 2006, p. 3). This argument applies to electoral fraud in so far as it is characterised as a ‘corrupt practice’. But in countries in which this category is used, it certainly applies to a variety of other crimes as well. The argument on trial here is, consequently, whether serious offenders have lost the moral authority to vote due to the corrupt nature of their character. The purpose served by the exclusion of persons convicted of serious crimes is to secure the moral purity of the electorate. This is in line with Keyssar’s finding (2000, p. 163) that a major justification for excluding prisoners from the ballot has been the notion that voters should be ‘moral persons’. Concern for the moral purity of the electorate and the assumption that voting rights could legitimately be restricted for that purpose is visible in the legal and constitutional practice of many democratic nations. For example, the Italian Constitution (1948) includes the provision that the right to vote may be limited ‘in cases of moral unworthiness’ (Article 48). In the United States, the moral character of the voter became recognised as a legitimate concern in the judgement of an Alabama Court in 1884 arguing that society has an interest in securing the ‘purity of the ballot box’ by protecting it from the ‘invasion of corruption’. According to the court, disenfranchisement is justified for anyone convicted of an ‘offence indicative of great moral turpitude’ (Washington v. State, 1884). As noted by constitutional scholars, essentially the same argument has been invoked by courts ever since (Tribe, 1989, p. 1308; Ewald, 2003, p. 25).

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The phrase ‘moral turpitude’ also figures among the qualifications for voting in state constitutions (e.g. Alaska art. V, § 2) and in the electoral regulations of other countries (e.g. Cyprus). It is essential to grasp the nature of the claim made about the morality of the convicted person. ‘Moral turpitude’ is a vague concept, referring broadly to any conduct considered to be contrary to common standards of justice, honesty or good morals (Wilson, 1991). The same arguably goes for the term ‘corrupt’, which may simply mean bad principles or refer to a person’s manner or character. In order to understand what is involved in these judgements, it is helpful to distinguish between the justice and the goodness of a person. The description of a person as ‘corrupt’ and of ‘moral turpitude’ could, in other words, take on the language either of justice or of virtue – which have been recognised as two moral ‘idioms’ (MacIntyre, 1981). Tracing these distinct logics in reasoning about the moral character of the electorate reveals two separate claims. According to the first claim, turpitude refers primarily to the vicious character of the offender. According to the second view, ‘turpitude’ is associated with the perpetrator’s lack of a sense of justice. These are clearly separate claims, as a person need not be vicious in order to lack an understanding of justice. There are, consequently, two versions of the argument that a person found guilty of a serious criminal act is ‘corrupt’ and, therefore, has lost his or her authority to vote. Dignity and the authority to vote Denying the vote strictly on the basis of a judgement of character is in some measure similar to the use of ‘ehrenstrafen’ or the claim that the offender has dishonoured him- or herself by committing a particular crime. Historically, depriving a person of legal and political privileges as a consequence of a conviction for dishonourable crimes has been common practice. In Sweden certain crimes were characterised as shameful [vanfrejdande] until the law was abolished in 1936. A person convicted of a shameful crime was sentenced to discharge of civic trust [förlust av medborgerligt förtroende] upon which disenfranchisement would follow (Bergling-Åselius, 2005, p. 91–5). The description of the sentence clearly evokes the undignified nature of the crime. A perpetrator of a shameful crime is a corrupted person and, as a result, less dignified. Even in more recent times, the indignity of the perpetrator has been recognised as a legitimate basis for disenfranchisement. In 1983 the ECHR upheld a decision by the authorities in the Netherlands to disenfranchise a person convicted of conscientious objection to military

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service, as the person had been declared ‘dishonoured’ by the crime (H. v. The Netherlands, 1983, p. 246). By contrast, the view that the government can legitimately deny a convicted person the vote by estimating the worthiness of his or her character was resolutely rejected by the Supreme Court of Canada. In the judgement Sauvé v. Canada (2002), the Court stated that this view was ‘ancient and obsolete’ and continued by arguing that ‘denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person’. The essential premise of the Court’s argument is that each and every person, even offenders, deserves to be treated with respect for their dignity. This premise is compatible with the influential justification of a right to a democratic process provided by Robert Dahl. According to Dahl, a premise of democracy is that all members of a political community are recognised as of ‘equal intrinsic worth’ (Dahl, 1989, p. 85; Mansbridge, 1997, p. 412). The notion of equal intrinsic worth has two aspects. The first is that the well-being of ‘each person is to be valued as much as that of another’ (Jones, 1983, p. 165). However, in this context the second aspect is the more relevant, namely the ‘intrinsic’ worth of the person (Goodman, 2006, p. 749). On the assumption that the worth of every member of society is intrinsic to his or her status as a human being, it is unacceptable that this can be forfeited as a result of what a person has done. Indeed, the dignity of each human being is ‘inalienable’ according to the preamble of the Universal Declaration of Human Rights and applies even to worst of perpetrators. The idea of inalienable dignity does not entail that everyone should have the right to vote. Other considerations may be relevant in deciding whether they should. But if the ‘intrinsic’ character of dignity is taken seriously, the reason that some people should not vote cannot be that they have forfeited their dignity. The idea of equal intrinsic worth is, hence, inconsistent with the view that a person’s right to vote should be withdrawn as a result of his or her perceived moral unworthiness. Of course, an advocate of disenfranchisement would turn the argument around. Disenfranchisement is not a punishment for lack of dignity but expresses the view that perpetrators are to be held accountable precisely because they are equally dignified. Judge Gonthier, in his dissenting view in the Sauvé case before the Supreme Court of Canada, embraced this view, arguing that the dignity of the criminal is preserved, not undermined, by the punishment (Sauvé v. Canada, 2002, pp. 71–6; see also Hull, 2006, p. 47f.). Yet, the attempt to turn the argument around does not avoid the fundamental premise affirmed by the majority of

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the Court deciding the Sauvé case. If the dignity of a person is inalienable, there is no need to restore it. And if a criminal is always as dignified as others, there is no reason to secure their dignity through felon disenfranchisement. However, the moral worth of serious offenders may be compromised in the eyes of law-abiding citizens. To them, it may be difficult to accept that a traitor, a murderer or a rebel should have the right to participate in the very political system they have attempted to destroy. In considering the importance of such sentiments, Jean Hampton argues that a political system that allows the ‘treasonous offender to vote’ is insulting ‘to the people’. The decision to grant traitors a vote simply sends the wrong ‘political message’, according to Hampton (1998, p. 41; see also Clegg, 2001, p. 177). In fact, the message is so wrong that it may threaten to undermine public support for ‘democratic values’. Let us be generous and assume that Hampton correctly reports the sentiments of people in response to a system granting traitors the vote. Are we thereby entitled to conclude that disenfranchising persons who by their actions express contempt for democratic values is the right thing to do? Not really. The fact that the public is insulted by offenders being allowed to vote does not preclude that denying the offender the right to vote is inconsistent with respect for the equal intrinsic worth of all. Although Hampton denies that an offender of a serious crime is necessarily ‘morally corrupt’ or without dignity, her argument is that people’s beliefs about who is and who is not dignified should be decisive in the offenders’ political status. A demeaning attitude towards the offender’s dignity, consequently, slides in through the back door. The moral authority to vote is forfeited, not because the perpetrator is morally corrupt but because of the public’s belief in the person’s moral corruptness. This is to make political rights contingent on public opinion and, clearly, this is not to recognise the equal intrinsic worth of all members of the community. On the other hand, this reply does not really consider the potentially sinister implications of insulting the sentiments of the public. In the unlikely circumstance in which the general public is prepared to turn its back on democratic values altogether, the decision to take away voting rights from serious offenders may seem a small price to pay. However, the coherence of this argument is open to doubt. The argument seems to be that we should treat serious offenders as less dignified in order to uphold the public’s taste for democracy. It should be remembered, though, that the reason that serious offenders are considered corrupt in the first place is that they have attacked democratic

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values. It hardly makes sense, then, to say that we should suspend their democratic rights in order to satisfy the preferences of people who are apparently also prepared to destroy democracy. A sense of justice and the authority to vote It is one thing to say that everyone should be treated as having equal intrinsic dignity. It is much less plausible to presume that everyone is equally equipped with a sense of justice. Some criminal actions violating fundamental democratic values may reasonably lead us to conclude that the perpetrators lack a sense of justice altogether. In this sense there may be offenders characterised as ‘morally corrupt’ without a judgement being passed on the worthiness of their moral character. Along these lines, Jean Hampton argues that though offenders should be treated with dignity, there are crimes of particular ‘political significance’ that justify disenfranchisement. These are crimes expressing ‘contempt for the values of our society’ that involves an attempt to ‘destroy the foundations of equality’ (Hampton, 1998, p. 41). Treason as well as electoral fraud arguably qualify for this description, as they constitute serious attacks on the values and institutions of a democratic society. The final argument presented by Hampton is, thus, that granting a vote to persons guilty of crimes offending the values of democracy constitutes an ‘insult’ to these values. Nevertheless, it does not seem self-evident that the view that a person attacking democratic values should retain the right to vote is an ‘insult’ to democracy. An answer might be that treating a person in accordance with the values he or she has offended is not to respect fully these values. This hardly seems right in general, however. The value of justice is not, for instance, demeaned or insulted by just treatment of a person who has committed an unjust act. On the contrary, just treatment of this person is exactly what justice requires. The cogency of the view that serious offenders should be disenfranchised in order not to insult democratic values is, therefore, uncertain. A different take on this involves pointing out that a defective sense of justice among voters raises problems for the realisation of justice through democratic procedures. On the assumption that democratic decisions are to approximate decisions that are just, it does not seem unreasonable to exclude from democratic participation anyone who has demonstrated his or her distaste for the very idea of justice. Consider, for example, the analogous case of a court of justice deliberating in order to establish the guilt or innocence of the person being prosecuted. Would it not be perverse to hold that the existence of a sense of justice

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among the judges or the members of the jury should be regarded as immaterial to our faith in the justness of the verdict? This analogy trades on a conception of democracy according to which it is more than simply a method for aggregating the preferences of its members. Rather, democracy is perceived as a means for the advancement of justice and the common good. Understood in this way, democratic procedures are assumed to have ‘epistemic’ qualities; on the average, we are more likely to approximate what is morally correct through democratic decisions than through any alternative method of decision-making. The epistemic features of democracy include the sheer number of people involved, the equality of the voices heard and the deliberative character of the discussions preceding a collective decision (Estlund, 1993). Equally important, however, is the capacity of the people participating in the democratic process to appreciate what justice is all about. As noted by Joshua Cohen, ‘we cannot expect outcomes that advance the common good unless people are looking for them’ (Cohen, 1997, p. 71). An account of the moral capacities needed by citizens in order for democracy to provide just outcomes is presented by Rawls. On fundamental matters of justice, citizens should vote for the alternative they believe could reasonably be expected to be accepted by other citizens. There is a ‘duty of civility’, Rawls argues, not to advocate laws that would be unreasonable for others to accept (Rawls, 1993, p. 219). This entails, for example, that there is a duty not to vote for or propose regulations that deliberately discriminate against minorities. The reason is that it would be blatantly unreasonable for the members of minority groups to accept a law that discriminated against them. Now, the exclusion from democratic procedures of people who have demonstrated a lack of ‘civility’ could be beneficial from an epistemic point of view. Since the aim is to ensure policy outcomes that are as reasonable as possible, it does not seem implausible that denying a vote to unreasonable people is a tribute to justice as fairness. Arguably, the reasoning of the UK Government in defending the ban on prisoners voting can be understood as analogous to this reading of Rawls. The government argued that the purpose served by a blanket exclusion of felons from the vote is that of enhancing ‘civic responsibility’. Felon disenfranchisement is instrumental to this end by virtue of its educative effects, according to the government (Department of Constitutional Affairs, 2006, p. 11). While the ECHR had previously ruled that the measures adopted in pursuit of civic responsibility were ‘disproportionate’, the court recognised the government’s aim as

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legitimate (Hirst v. United Kingdom, 2005). In Rawlsian terms, this is to say that a democratic state has a legitimate interest in ensuring that citizens understand the conditions for reasonable agreement among free and equal citizens. However, from the fact that democratic exclusion may be valuable from an epistemic point of view, it does not follow that there are epistemic reasons for the exclusion of particular individuals. As pointed out by David Estlund, there are serious epistemic difficulties involved in identifying the ‘knowers’, that is, the people who are presumed to have a more reliable sense of justice than others. Estlund points out that it is always reasonable to have doubts as to who is an ‘epistemic authority’ on matters concerning justice. There will never be conclusive evidence to the effect that a particular individual is a ‘knower’ – although we should recognise that such individuals may exist. For this reason, Estlund argues, it would always be unreasonable for people to surrender their right to participate in political decisions, even when the purpose of such decisions is to achieve justice (Estlund, 1993, p. 91). While Estlund’s argument shows why we cannot expect to identify ‘knowers’, it does not demonstrate that we could not expect to identify at least some ‘non-knowers’. Estlund argues that ‘any list of qualifications’ for moral expertise will be subject to reasonable disagreement (Estlund, 2002, p. 25). Admitting this point does not preclude that a ‘list of disqualifications’ could reasonably be agreed to. The claim that we cannot agree on what is perfectly right does not imply that agreement on what is perfectly wrong is beyond reach. Thus, it is unclear whether there are epistemic objections in principle against the view that some offenders may have demonstrated a lack of a sense of justice. To exclude them from participating in a decision concerned with justice would, therefore, seem perfectly reasonable within an epistemic framework. The crux is, of course, to identify more precisely which offences provide epistemic evidence for the conclusion that the perpetrator has no sense of justice. Clearly, not all legal provisions embody norms of justice for which disagreement would be unreasonable. An illustrative case is the conscientious and repeated failure to comply with regulations of compulsory voting (Orr, 1998, p. 59). Somewhat ironically, this might, in countries like Australia, result in disenfranchisement, as some states, until recently, denied the franchise to all imprisoned persons. A conscientious objector to compulsory voting is, consequently, denied not just the right to vote but the duty to vote as well. The startling result is that the failure to comply with a legal duty is punished by the removal of the duty with which the accused person refused to comply. The basic

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point is that the decision appears difficult to justify with reference to the interest in preserving a sense of justice in the electorate. The reason is that it is by no means obvious that failure to comply with regulations of compulsory voting signify imperfections in the person’s sense of justice (e.g. Lever, 2007). Every legal system typically criminalises some actions that could reasonably be considered harmless. It would, hence, be unreasonable to conclude that a person violating such regulations is necessarily ‘corrupt’ or ‘deficient’ in terms of moral character. It is even more hazardous to conclude that political crimes, treason and espionage and similar political offences are indicative of a corruptive character. After all, these acts demonstrate a lack of a sense of justice only on the assumption that they are undertaken in a reasonably just society. Consider, for example, Colonel Claus von Stauffenberg’s ‘high treason’ in the attempted assassination of Adolf Hitler in 1944. Or, consider Nelson Mandela’s fight against the apartheid regime of South Africa, which eventually led to a conviction on charges of treason in 1964. Clearly, violating the law in an unjust society is not symptomatic of a defective understanding of justice on the part of the offender. This point can be taken a step further, as did US Supreme Court Justice Marshall in his dissenting opinion delivered in the leading case on felon disenfranchisement. As pointed out by Marshall, it is controversial that deliberately breaking the law, even in a just society, is indicative of a defective sense of justice. The content of the public good, which law and public policy is presumed to promote, is ‘constantly undergoing re-examination’ (Richardson v. Ramirez, 1973). New interpretations of the public good are gradually introduced, not least as a result of popular political participation. In accordance with Marshall, the vote does serve an essential purpose in the face of perpetual uncertainties about the content of the public good. The vote is the ‘coin of the realm’ in the democratic process. Measures that insulate the ‘existing order’ from change and criticism, for example by means of depriving some members of the community of the vote, are, therefore, antithetical to the fundamental task of a government, which is to encourage unprejudiced scrutiny of the future direction of society. The decision to disenfranchise people, for whatever reason, ‘strikes at the very heart of the democratic processes’, according to Marshall. Marshall’s point constitutes an important reminder of the dangers involved in identifying existing policies and institutions with an order that is just and the consequent mistake of concluding that the existing legal system should be protected at any cost, just because the ideal of justice is more important than anything else. It does not cut ice,

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however, with the view that there are certain acts that no one could reasonably consider to be just. There is, arguably, no room for doubt about the lack of moral understanding of a perpetrator found guilty of crimes against humanity, sadistic violence, multiple rape or serial killing. Although laws punishing these actions are part of the ‘established order’ in most democracies, it seems implausible to maintain that their substance is ‘constantly undergoing re-examination’. A person who is unwilling or unable to affirm the equal rights of all not to be raped or murdered is clearly an unreasonable person. Although many laws are controversial and could reasonably be contested, there are some laws in relation to which an unwillingness to comply should be considered unreasonable and symptomatic of a lack of sense of justice. In relation to such exceptional cases, there may be a good case for policies of disenfranchisement for the purpose of preserving the ‘just character’ of the electorate. Yet, there is a final caveat. The rationale for the epistemic view is that an electorate would produce better choices, if only marginally, without the participation of people that have demonstrated a deficient sense of justice. The argument is essentially forward looking; it attempts to improve the quality of future decisions by means of restrictions on suffrage today. The irony is, of course, that the offenders who lose their vote have been able to vote up to the point of imprisonment, which is just when the ‘correctional’ or rehabilitating process is supposed to begin (arguably improving their sense of justice from that point on). In any case, the real issue is how to ascertain that a person committing a serious crime is generally unreasonable, which is what the argument for future disenfranchisement requires in order to make sense. Perhaps some people guilty of serious crimes only acted unreasonably under the particular circumstances for which they were convicted. This serves to demonstrate that an act of wrongdoing is distinct from ‘general unwillingness to respect the law’ (Cholbi, 2002, p. 552; Lippke, 2001, p. 566). Given this distinction, it seems hazardous to use as a criterion for disenfranchisement a single conviction for a serious crime. The risk is, obviously, that some people would be wrongfully excluded from electoral rolls, as they are not in general unable to act on just principles, even if they have at one time acted unreasonably. This objection could perhaps be accommodated by requiring repeated violations of fundamental norms of justice before it is concluded that a person lacks a sense of justice in general. However, this solution may not always be feasible, such as in relation to sentences of life imprisonment.

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As we are only concerned here with grave violations of fundamental norms in a reasonably just society, this issue may in the end appear to involve insignificant quibbling over details. Surely rape or murder demonstrates a person’s incapacity to grasp the meaning of just relations between people in general, and not just at the moment when the crime was committed. But the problem exemplified here is likely to permeate any attempt to justify felon disenfranchisement. The problem is that any argument for the disenfranchisement of felons inevitably relies on descriptive inferences for which there is basically no evidence. The argument is typically that a person convicted of a certain crime is disqualified as a voter by virtue of some characteristic ‘X’ that is harmful to democracy. The argument is, thus, that characteristic ‘X’ is an attribute of the perpetrator, since he or she has been found guilty. However, the evidence available about a person sentenced by a court of justice is that the person is guilty of an action punishable by law. The sentence delivered by the court does not provide direct evidence of the presence or absence of characteristic ‘X’. It might be argued that characteristic X is identical to that of being convicted for a serious crime and that evidence is, therefore, perfectly well available. Yet, it hardly makes sense to say that a person should be excluded from the vote merely because he or she is guilty of breaking the law. Surely, the reason for the belief that felons should be disenfranchised must be that they possess some characteristic, such as moral corruption, indignity, treasonousness or the like. The trouble is that these characteristics have not necessarily been examined and tried by the court of justice. A complete justification for the disenfranchisement of perpetrators found guilty of serious crimes is, hence, dependent on the additional assumption that evidence of these characteristics has been established by the court. The general problem of inference does not preclude that it may be valid in particular cases. From an epistemic point of view, a reasonable case for felon disenfranchisement would, in other words, be defensible in a limited range of cases, namely, in relation to serious crimes violating norms that could not reasonably be rejected and where evidence is at hand that the offender displays some characteristic ‘X’ rendering him or her unable to act justly. It would seem in the end that there is an argument for the reasonableness of certain restrictions on the electoral participation of imprisoned persons. On the other hand, this conclusion does not undermine the claim that a demos including even the worst of perpetrators would be more democratic. As demonstrated in the first section of this chapter, it cannot be denied that felons are subject to the law and that, following a strict application of the all affected principle,

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they should, therefore, be granted rights of political participation in a democratic community. Assuming the perspective of the epistemic conception of democracy, this point is not decisive, however. The epistemic conception does not maximise democracy; it seeks to maximise the epistemic value of democratic procedures. And to this end, some restrictions on democratic rights might clearly be reasonable.

Conclusions It is a common view that the exclusion of people serving time in prison or convicted of serious crimes from suffrage constitutes a ‘hard case’ for democratic theory (Bretteschnieder, 2007, p. 107). This view has not been vindicated by the present investigation. The conclusion is that the practice of excluding people otherwise subject to the law from the right to participate in its making is deplorable by democratic standards. Since felons are invariably subject to the law, the exclusion of felons from the vote should, consequently, be considered deplorable. A political system that denies felons the opportunity to participate in the democratic process is thereby rendered less democratic. This would be ‘deplorable’, of course, only on the assumption that we cherish a distributing of voting rights according to the criteria of the democratic process. Moreover, we should consider additional reasons that may potentially be relevant in considering the reasonableness of felon disenfranchisement. In this chapter we have evaluated two sets of claims that are frequently invoked in order to justify the exclusion of felons from the vote. The first claim is that disenfranchisement is a ‘natural’ implication of a conviction for criminal activities that endanger the democratic order. This is a widely accepted view, illustrated by the fact that electoral fraud is in many countries a legitimate ground for disenfranchisement. However, the argument made here is that there is no tenable foundation for the view that electoral fraud and related crimes justifies exclusion from the democratic process. Even on the assumption that it is ‘natural’ to accept any measure preventing crimes against the democratic process, it does not follow that felon disenfranchisement is an acceptable measure. The reason is that disenfranchisement is neither necessary nor sufficient to prevent crimes against democracy. The second claim evaluated in this chapter is that certain offenders have lost their ‘moral authority to vote’. This may be understood to mean that certain offenders are ‘unworthy’ due to their vile character revealed by the crime. Yet, in a political system that recognises the equal dignity of all of its members, it cannot reasonably be accepted that

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an offender forfeits his or her moral character as a result of a criminal action. Another, and ultimately more plausible, reading is that certain crimes indicate a lack of a sense of justice on the part of the offender. To the extent that a democratic system is conceived of as a vehicle for justice, there may be reason to purge the electorate of demonstrably unjust individuals. It should be remembered, though, that there are important limitations to the validity of this argument. Among them, the most important is certainly that breaking the law cannot in general be taken as indicative of a lack of a sense of justice. This proviso ensures that only a fraction of imprisoned felons could justifiably be denied access to the vote on that basis. The current practice of felon disenfranchisement, therefore, constitutes a largely unreasonable restriction on suffrage.

6 Disability, Dependence and Democracy

In Italo Calvino’s novel The Watcher, the leading character, Amerigo, is given the task of supervising polling in an institution for the mentally ill somewhere in northern Italy. While Amerigo accepts the idea of disabled people voting, he is moved by the scenes before him and is also suspicious of the ‘assistance’ offered by the nuns of the asylum. Silently for himself, Amerigo thinks that ‘if the voter couldn’t vote, too bad, then he just wouldn’t vote’ (Calvino, 1971, p. 65). The idea invoked by Amerigo is that independence should be expected by the participants of a democratic process, and while a cognitively impaired person is not always capable of acting on his or her own, it is for just this reason that this person is not competent enough to vote. The purpose of this chapter is to examine the rationale for this view and the extent to which it justifies the exclusion of people with cognitive impairments from suffrage. First, we should appreciate the fact that there are not many countries in which the story depicted in The Watcher could have taken place. In a majority of contemporary democratic nations, people with cognitive impairments are denied the right to participate in elections. In the US, mental disability and illness disqualifies a person as a voter in 44 states, leaving six states with no legal restrictions. A large number of state constitutions include provisions to the effect that ‘no idiot, or insane person, shall be entitled to the privileges of an elector’ (Schriner, Ochs and Shields, 1997, p. 76). Electoral laws in Britain authorise the exclusion of people with cognitive impairments from the voting rolls, though opportunities for participation by citizens with learning disabilities and cognitive impairments have been increasingly provided. To date, only four democratic nations – Italy, Ireland, Sweden and Canada – impose no restrictions on the vote based on mental disability or illness (Massicotte, Blais and Yoshinaka, 146

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2004, p. 27). This means that most democracies effectively exclude from political participation a variety of people, some with mere learning disabilities, others with severe brain damage, still others suffering from neurotic or psychotic conditions. The disability may be present at birth or may have developed later in life. It may be caused by genetic or environmental factors or be the result of illness or accident.1 Yet, whatever the causes of the condition may be, an individual with cognitive impairments (the term used here) is regularly considered unfit to participate in the democratic process.2 Political exclusion on the basis of cognitive impairment cannot be dispensed with as an instance of mere prejudice against disabled people. It constitutes a generally accepted principle among democratic theorists. Dahl argues that ‘persons proved to be mentally defective’ should not be included in the demos, the people ruling itself by a democratic process (Dahl, 1989, p. 129). Therefore, the basis for denying voting rights for individuals described as cognitively impaired must be traced back to the very meaning of the democratic ideal and the reasons for finding it valuable. The most obvious justification for the exclusion of cognitively impaired people seem to be related to notions of political competence. A person suffering from a serious mental disorder or born with a severe intellectual disability is likely to have difficulties in analysing and understanding political alternatives and relevant social and economic facts. Many people with cognitive impairments would, therefore, be considered politically incompetent. Assuming that competence should be a requirement for the right to vote, the exclusion of people with cognitive impairments potentially receives a justification. Although this is a frequent argument, it is associated with certain difficulties that will be explained in the first section of this chapter. The bulk of the present analysis is concerned with a distinct argument, the one echoing in Amerigo’s mind, namely that voters should be independent. At least since Rousseau, democratic citizenship has been associated with the ideal of independent political judgement. This is to say that political decisions, including the vote, should not be made on the basis of what others think, that ‘each citizen should think only his own thoughts’ (Rousseau, 1968, II, p. 3; Parry, 1995, p. 99). But thinking only your own thoughts is not always possible for people with cognitive impairments. People suffering from mental illness or born with severe intellectual disabilities may have difficulty in making up their own minds and frequently depend on others in order to receive information and to accomplish practical tasks, such as casting a ballot.

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It may seem initially that these observations call for further investigation into the legitimacy of independence as a criterion for political participation. Should we accept as consistent with democracy the exclusion from elections of people that cannot vote by themselves? The most straightforward way of answering this question is by looking for reasons for rejecting the idea of independence as a valid premise for regulating the vote. For example, it could be pointed out that the notion of independence is imbued with a sexist conception of the person, giving priority to productive activities over reproduction and care (Fraser, 2002, p. 79). Moreover, it could be argued that the idea of independence is eminently individualistic and recalls an ultimately implausible conception of the person as self-sufficient and self-made by nature (Taylor, 1985, p. 189; MacIntyre, 1999). If these criticisms are accepted, the legitimacy of conceptions of personal independence in a democratic context would be rejected, as would the case for excluding dependent people from political participation. This is not the approach followed here. The aim is not to question a particular conception of the individual but to evaluate the implications of it with regard to the right to vote for cognitively impaired people. The thesis to be defended is that the idea of independence as a basic desiderata of democratic participation does not justify the exclusion of dependent people, particularly people with cognitive impairments, from the right to vote. This conclusion is reached by maintaining a clear distinction between the conception of independence associated with a particular ideal of moral freedom and the conception of independence that relates to the idea of fair and equal political participation. As will be argued in further detail below, the precise implications of the insistence that voters should be independent for suffrage can only be determined once these reasons have been clarified.

Rules of incompetence The legal exclusion of people with cognitive impairments from political participation takes many guises. Most common is disenfranchisement as a result of a judicial decision placing the person under guardianship and declaring him or her ‘legally incompetent’ or an ‘unperson’. Such laws do not explicitly disenfranchise people with cognitive impairments but allow for it by denying voting rights to anyone that is not a ‘person’ in the legal sense and by granting public authorities the right to deprive people with cognitive impairments of this status. In other legal systems there are explicit provisions targeting the electoral behaviour of people

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that for one reason or another are considered intellectually unfit for political participation. For example, the Jamaican Constitution establishes that no ‘insane’ person or anyone ‘adjudged to be of unsound mind’ should be able to register to vote (Article V: 1). Yet another measure for exclusion is found in political systems where election officers are granted the right to deny a voter access to the polls if he or she is judged ‘to lack the necessary soundness of mind’ (e.g. Electoral Law of Norway, 1993, section 4). Whatever legal procedure is employed, it remains clear that the disenfranchisement of people with cognitive impairments cannot be implemented unless there are legally authorised standards for judging mental and cognitive health. These standards provide the basis for judgements made by public officers about the eligibility of the potential voter. It could be claimed that the criteria employed in this process are necessarily vague and, consequently, offer ample room for discretion for the public officer. Thus, a potential argument against the exclusion of people with cognitive impairments is that it creates unacceptable administrative risks that ultimately render the democratic rights of ordinary citizens arbitrary and insecure. Support for the indeterminate character of the relevant diagnosis is provided by the conflicting estimates of the prevalence of cognitive impairment in the general population. Reports of the proportion of cognitively impaired people around the world differ from 0.3 per cent to almost 3 per cent of the population (Roeleveld, Zielhuis and Gabreels, 1997). This is a difference of no less than a 1,000 per cent. For this reason, the disenfranchisement of people with cognitive impairments has been rejected as ultimately arbitrary and susceptible to abuse (Appelbaum, 2000). The problems of defining competence and the ‘fallibility of professional judgement’ have been invoked as the basis for the conclusion that existing restrictions on the vote for cognitively impaired people should be abolished (Schriner, Ochs and Shields, 1997, p. 94). At the least, these remarks should make us wary of the risks inherent in imposing legal restrictions on basic democratic rights based on vague and controversial criteria of mental competence. In order to reconstruct an argument from these observations, it seems that the first premise, a factual one, is that people with cognitive disabilities or illness ‘cannot be so easily identified’ (Weale, 1999, p. 155). However, an additional premise is required for the argument to hold. From the fact that the criteria employed in the regulation of the vote are vague and contested it does not automatically follow that they should

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be rejected. In order to reach that conclusion, it has to be assumed that the risk of mistakenly excluding people is unacceptable. This normative premise receives support from liberal writers and is of particular relevance to the subject before us. John Stuart Mill, for one, argued that denying some people the right to vote on the basis of invidious judgements of competence performed by public servants would be intolerable. Mill insisted that ‘it is better that the suffrage should be conferred indiscriminately, than it should be given to one and withheld from another at the discretion of a public officer’ (Mill, 1991, p. 175). The rights of individuals should be firmly protected and not be at the mercy of individual judgements, particularly so in relation to people such as eccentrics and originals, whose ability to thrive in society lies at the heart of Mill’s concern. This point reinforces the remark made by Immanuel Kant that a liberal attitude towards the mentally ill is recommendable due to the difficulties involved in distinguishing between them and the mere eccentric (Laor, 1984, p. 166). The argument following these observations is, consequently, justified more by individualist ideals than by a concern with the democratic rights of cognitively impaired people. A more general argument is that differential treatment with respect to fundamental political rights is justified only with reference to reasonable distinctions between people. The need for a ‘qualified justification’ is particularly pertinent in relation to discrimination based on ‘invidious judgements’ that create permanent exclusions from basic rights (Estlund, 2008, p. 37). Consider the contrasting use of standards of incompetence that serve to justify the exclusion of children and young people. These are not invidious judgements, since they are conferred on everyone below a certain age. Although the content of the rule (the age stipulated) may be considered arbitrary, its application does not require potentially arbitrary judgements of individual cases. A further contrast is that children are only temporarily denied access to the vote, whereas cognitively impaired people may be subject to exclusion for the rest of their lives. As noted by Rawls, restrictions imposed on political rights are not discriminatory if they ‘fall evenly on everyone in the normal course of life’ (Rawls, 1971, p. 224). But cognitive impairment does not ‘fall evenly’ on everyone. This fact and the notion that individious judgements are required suggest that restrictions on the vote based on incompetence are more perilous in relation to impaired people than in relation to children. Now, the claim that judgements of incompetence are precarious as the basis for excluding cognitively impaired people from the vote does not

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entail that judgements of dependency are problematic. For one thing, whereas determining a person’s competence necessarily involves invidious judgements, estimating a person’s state of dependency need not. A person may, for instance, be considered to be in a state of dependency to the extent that he or she is a resident of a psychiatric institution. No invidious judgement is entailed by such a criterion. Indeed, electoral regulations in some countries make explicit reference to the place of residence of disabled persons and stipulate that people accommodated in psychiatric institutions are under certain conditions to be disenfranchised (e.g. the Federal Electoral Law of Germany, 1997, Article 13).3 Thus, it is not clear that we have to reject ‘dependence’ as the basis for denying cognitively impaired people the vote merely because criteria of ‘competence’ are rejected. Moreover, none of the arguments addressed thus far relieves concern that cognitive impairment renders a person more vulnerable to manipulation by others in relation to electoral choices. I believe, therefore, that a more telling examination of the right to vote of cognitively impaired people must take seriously the view that dependence constitutes a democratic problem. The question to be answered is whether it is better that people dependent on assistance and guidance from others do not participate in electoral decisions at all?

Two conceptions of independence4 Prior to the introduction of ‘universal’ suffrage, the capacity for ‘personal independence’ was one of the common requirements for the vote. The requirement of independence served to exclude large portions of the population from suffrage. Servants, women, beggars, paupers and workers were not considered capable of autonomous judgement and were for that reason disqualified from political life (Katz, 1997, pp. 115, 232). Recipients of poor relief were automatically disenfranchised in many democratic countries simply because they were dependent on public funds (Keyssar, 2000, p. 611f.). In Sweden such laws remained in place until 1945. The circumstances considered as evidence for a state of dependency have in fact been highly varied. In some countries, public servants were disenfranchised by appeal to the fact that they were salaried by the government and, hence, dependent. A remnant of this notion is the stipulation in the Constitution of Brazil (1988, Article 14) that conscripts cannot register to vote ‘during their period of compulsory military service’. A more literal understanding of the requirement of independence figures in the Electoral Act (1993) of South Africa,

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according to which ‘drug dependency’ disqualifies a person as a voter. As illustrated by these examples, exclusion on the basis of dependence has, and still is, extremely widespread and does not exclusively target people with cognitive impairments. It would be a mistake, however, to treat all arguments based on dependence as identical in substance. In particular, we should distinguish between economic independence and political independence as criteria for political participation. The idea that economic dependence is a requirement for democratic participation served as the rationale for denying workers, servants and others access to the public sphere. Arguably, it is also dependence of this kind that served to justify exclusion of public officials and military personnel in some countries. The reason for regarding economic dependence with suspicion is fear of the kind of judgements people that depend for their subsistence on salaried labour, public welfare or charity would make. The suspicion nurtured by the educated and propertied classes was that these people would use the vote ‘to put their hands in other people’s pockets’ (Mill, 1991, p. 176). But using the vote for the purpose of promoting one’s own economic interests is, indeed, a particularly independent decision. Perhaps, then, fear of political independence constitutes the real basis for Mill’s insistence that ‘by becoming dependent on the remaining members of the community for actual subsistence, he abdicates his claim to equal rights with them in other respects’ (Mill, 1991, p. 178). It was not due to the submissiveness of the poor to employers, landlords and other powerful agents that Mill remained reluctant to recognise their political rights. What Mill feared was the exact opposite, namely, that the poor would use their vote in order to ‘enrich’ themselves at the expense of the wealthy. In order for the poor to use their vote for such purposes, they would, of course, need to have the capacity for independent political judgement. Lack of political independence, consequently, provides the basis for a different thesis about the appropriate conditions for political participation. It may even be inconsistent to incorporate the two notions of independence in the same argument. To exclude people that are economically ‘dependent’ because they could mobilise in ways contrary to the interests of the wealthy is implicitly to assume that these people have the potential for independent political action. This distinction is implicitly acknowledged in the sentiment, common at the time of the expansion of suffrage, that whereas wage earners were economically dependent ‘it was not evident that they would inevitably follow their employers politically’ (Bendix and Rokkan, 1971, p. 20).

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Of course, economic dependence may have the opposite effect as well. It may breed political dependence by undermining the capacity of the people to act politically on the basis of their own perceived interests. The suspicion voiced by radicals and liberals in the nineteenth century was that patrons, landlords, public authorities and care-givers would be able to influence or even manipulate the political preferences and, ultimately, the votes of those that relied on them for their subsistence. Mill expressed concern about political dependence as well, though he believed that the dangers of coerced voting were gradually fading. But what is it, more precisely, that constitutes the rationale for the idea that political independence is an essential virtue in a democratic community? A tentative answer to this question can be found in a particular understanding of the relation between individual freedom and popular rule. The link between democracy and the capacity of citizens for political independence goes back to the notion embraced by Locke, Rousseau and Kant that moral freedom is incompatible with ‘subjection to the arbitrary wills of others’ (Locke, 1988, p. 306; Rousseau, 1968, I; Kant, 1991, p. 139). A free person, in this view, is a person achieving personal autonomy understood as the ability of a person to live under principles provided by and for him- or herself. This is an ideal of moral freedom in the sense that it prescribes certain virtues of character and a certain style of reasoning. According to the ideal of moral freedom, the norms guiding individual conduct should be reflected upon in the right way. It eschews the notion that freedom merely equals the absence of servitude and coercion. Moral freedom as autonomy presumes that your life is guided by norms freely chosen and reflected upon and that your choices are not the mere product of instinct or desire. The autonomous person leads a life freed from ‘the particular attachments one is caused to have by nature or circumstance’ (Hill, 1991, p. 40f.). Now, the ideal of politics as an instrument for the realisation of moral freedom has consequences for whom to include in the democratic project. Law making must be based on the autonomous will of the electorate in order for the heteronomous will of the majority not to be superimposed upon the people as a whole. It will clearly be necessary to secure a political order that does not enforce laws and policies enacted by non-autonomous people. As the votes cast by ‘arbitrary wills’ translate into laws to which all are subject, everyone becomes a subject to ‘the arbitrary wills of others’. This precise argument was articulated by Kant in contending that ‘civil independence’ is necessary for ‘fitness to vote’ so as to avoid subjection to the ‘arbitrary wills of anyone else’

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(Kant, 1991, p. 139). That is to say, a free society is not possible unless all members of the demos have the capacity to resist impulses and to critically evaluate the self. To the extent that these features are typically lacking among people with cognitive impairments, the prospect of ever including them as active participants in the political process are meagre, on the basis of this view. Indeed, people with cognitive impairments hardly have the resources to achieve moral freedom in the sense identified by the idea of personal autonomy.5 A democratic theory premised on a moralised conception of freedom is, consequently, unlikely to justify the inclusion of people with cognitive impairments. It remains doubtful, however, whether a particular conception of moral freedom should comprise the foundation for suffrage in a democratic political system. As argued in Chapter 2, the idea of a democratic people is that all legally affected persons should be included and granted rights of political participation. Hence, to substitute moral freedom for the all affected principle as a criterion for democratic inclusion is tantamount to introducing a moralised conception of democracy. This is not the idea accepted here. The criteria for democratic inclusion should not be identified with a particular ideal of moral freedom as personal autonomy. It could be argued that personal autonomy is a reasonable ideal and that we should, therefore, be able to accept differential treatment on this basis. This claim is compatible with the requirement that any legal exceptions to ‘equal rights’ be reasonable in the sense of acceptable to all reasonable persons. However, it is far from clear that the argument is successful. The ideal of personal autonomy gives expression to a particular comprehensive doctrine that may not be able to meet with the approval of all members in a diverse and pluralistic society. Referring to the ideal of personal autonomy, Rawls insists that it would be unreasonable to expect members of the polity to accept it as the foundation for the principles informing the basic structure of society (Rawls, 1993, p. 100). There are, thus, good reasons for not debating the political rights of people with cognitive impairments on the basis of a moralised conception of democracy.

Political equality and political independence The importance of political independence might be defended in a different way that does not invoke a moralised conception of democracy. According to a familiar view, democracy involves procedures for

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collective decision-making that express the idea of all members being equal in their status as makers of the law (Beitz, 1989; Dahl, 1989). A democratic order should, hence, be understood as the embodiment of political equality. The full meaning of political equality will be explored further below; at this point it suffices to establish that the equal right to vote and to participate in the democratic process is instrumental in securing political equality. An equal distribution of the right to participate in the democratic process is, consequently, a means for the realisation of a basic democratic principle. By hypothesis, political independence has an important role to play here. In order to see how, we need to explore further the links between the idea of political equality and the right to vote. As has been pointed out, the value of political equality consists, at least in part, in the value of an equal distribution of political influence (Still, 1981; cf. Dworkin, 2000, p. 191). The claim that universal and equal suffrage is vital for political equality is, in other words, generated by the assumption that the right to vote is instrumental to an equal distribution of political power. Now, the extent to which this assumption holds true remains an open question. There may be circumstances under which ‘more’ universal suffrage (i.e. a more inclusive vote) is not to the benefit of political equality. The nature of such circumstances is not difficult to identify. Many individuals with cognitive impairments depend on assistance both in identifying a political preference and in casting their votes. Because the cognitively impaired person is not politically independent, other people may have the opportunity to influence or even to manipulate how he or she decides to vote. The votes cast by people with cognitive impairments will be ‘easily swayed by kindly helpers assisting them with absentee ballots or in the voting booth’ (Henderson and Drachman, 2002, p. 996). The votes registered in elections in which cognitively impaired voters participate and in which their votes are the result of other people’s preferences would, thereby, fail to reflect the true preferences of the electorate. From the point of view of political equality, this may seem problematic. The idea of the vote as an instrument for the realisation of equal political influence fails if some people are able to secure more than one vote and others are deprived of their one vote. For this reason, suffrage that includes people unable to act independently politically could be understood as representing a threat to the realisation of political equality. It should be appreciated that political independence operates both in the formation of electoral preferences and in the act of voting. We should distinguish manipulation of electoral preferences from

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manipulation of electoral behaviour. Let us, therefore, begin by considering the case in which the preferences of cognitively impaired people are manipulated. The basis for concern about political equality in this case rests in the following chain of reasoning. In democratic elections people are invited to express their preferences about the future direction of society. Political equality is understood to mean equal political influence, and this principle requires that the electoral preferences of everyone are given equal consideration. In the case the preferences of vulnerable voters are manipulated, some people’s electoral preferences are not considered whereas the preferences of others receive a disproportionate amount of consideration. If independent political preferences are equivalent to preferences that are not manipulated, it may be argued that political independence is a condition for the achievement of political equality. It could be objected that no clear and uncontroversial line can be drawn between ‘independent’ and ‘dependent’ preferences. The absence of manipulation may not guarantee that the electoral preferences of a voter truly reflect his or her interests. For example, a vote cast for tactical reasons means the registration of an individual preference, even though it would be a mistake to infer that this vote reflects the actual political preference of the voter (Tännsjö, 2008, p. 71). More serious is the fact that our preferences are frequently ‘adaptive’, coloured by perceptions of available alternatives and our power to change them. It may be true that these facts do not deny the possibility of achieving a ‘decent amount of real autonomy’ over the long haul (Berofsky, 2005, p. 84). But if a person may be more or less autonomous, political preferences will also be more or less autonomous and, therefore, at times not very autonomous at all. It is not clear, then, how ‘independent political preferences’ can be distinguished from ‘dependent political preferences’ of the kind relevant to political equality. Perhaps it is just too much to expect independence on the part of voters? There may be no readily available criteria for independent preferences, and, yet, a potential solution is arguably offered by the idea of a democratic process. In accordance with an institutional interpretation, the fundamental matter is not the exact nature of what goes on inside the mind of the voter but the nature of the political context in which the voter’s preferences are created. Popular rule is effective only when alternative sources of information and knowledge are available to the voter (Dahl, 1989, p. 112). That is to say, political preferences should be formed under circumstances in which a plurality of perspectives and viewpoints are present. Political preferences are ‘independent’ to the extent that they have

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been moulded under conditions characterised by a plurality of sources of information. Anyone for whom no alternative viewpoints have been furnished is, consequently, to be considered politically dependent with respect to his or her political preferences. The second incidence of political independence takes place at the moment when ballots are cast. The fact that votes cannot be legally transferred, sold or alienated in any other way illustrates the importance of the idea that each individual should not just develop independent political preferences but also act independently on the basis of these preferences. For example, the secret ballot was introduced in order to guarantee that votes could be cast without fear of intimidation or pressure from landlords, employers and others on whom the voter might depend. Political equality is, thus, preserved through a variety of rules and norms securing political independence at the ballot box (Sturgis, 2005). In sum, political independence operates at two stages. It requires, first, that a person have political preferences that are not the result of mere manipulation. Second, it involves the voter acting appropriately on his or her preference in elections. These are distinct stages, and independence at the first stage does not imply independence at the second. For example, a person with a moderate disability or mental illness may have the capability of absorbing a variety of information about political alternatives and yet fail to cast the ballot as he or she would have wished. Another person may, by contrast, be completely under the influence of care keepers in relation to the content of his or her political preferences and yet be perfectly able to complete the act of voting without assistance from others. Political independence is, thus, required both when preferences are formed and when ballots are cast in order for political equality to be secured. People with cognitive impairments frequently depend on the assistance caregivers provide. A person living under such circumstances may be left ‘completely dependent on the caregiver whose preferences differ from his or hers’ (Karlawish et. al., 2004, p. 1348). As a result, the political preferences formed by the disabled person may be far from independent. The interests taken into account by the disabled person may turn out to be those of the caregiver rather than his or her own. Moreover, many people with a cognitive impairment will face difficulties in casting the ballot by themselves. It takes resources and information to register (when necessary) and to show up at the polling station. Even when postal voting is available, at home or at an institution, a person with some cognitive impairment may need assistance in marking

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the ballot and dealing with it correctly. These are, of course, circumstances in which a less conscientious person could intervene or use a ‘helping hand’ for the purpose of cheating. We are now in a better position to assess the justifiability of laws denying access to the vote by appeal to a person’s state of dependency. A potential justification for such laws can be found in the idea, also appealed to in order to justify the disenfranchisement of felons, that restrictions on access to the vote are necessary in order to prevent electoral fraud and abuse in the electoral process. It is well understood that legislatures have a ‘compelling interest’ in securing the ‘purity of the ballot’ by combating electoral fraud. In the United States these concerns have been recognised as valid in denying the vote to people believed to be easily under the influence of others (Schriner, Ochs and Shields, 1997; cf. Notes, 1978/79; Metcalf, 1989, p. 180). In our terminology, the claim would be that political independence could legitimately be made a condition for political participation in order to guarantee that elections work as vehicle for political equality. Concern with the ‘purity of the ballot’ and the ‘integrity of elections’ typically figures in to regulations on voting by people with cognitive impairments. It constitutes the implicit premise of the view that ‘some limitations’ are required with regard to voting by cognitively impaired people in order to protect the ‘the integrity of the [electoral] process’ (Appelbaum, 2000, p. 850). The same set of concerns was present in the process behind the right to vote in the new constitution introduced in Sweden in the 1970s. At that time, the decision was made to exempt people with cognitive impairments from the right to vote. The explicit justification for the decision, found in the preparatory documents, is that people with cognitive impairments are more vulnerable to political manipulation (SOU 1986: 50, pp. 121, 186). These observations provide some support for the contention that political equality frequently serves as the justification for the decision to exclude cognitively impaired people from the vote. The question to consider is if the justification is sound. Does it make sense to exclude people from the vote for the reason that the authenticity of their votes cannot be trusted?

The wider implications of political equality Let us grant that political independence is an important condition for political equality and that cognitively impaired individuals are frequently unable to achieve political independence. Does it follow that the value of political equality justifies the exclusion of cognitively impaired

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people from democratic political participation? In what follows, I shall explain why I believe this should not be the case. The demonstration requires a fuller account of political equality and an appreciation of what I shall term its ‘wider implications’. The mark of a political system that acknowledges the importance of political equality is not just the protection of equal political rights but also the securing of the fair value of political equality. By this is meant that ‘the worth or usefulness’ of the rights and liberties should be ‘roughly equal’ (Rawls, 1993, p. 326). That is to say, a democratic government should not merely guarantee universal and equal suffrage but also the means and opportunity for all citizens to make effective use of the vote (Brighouse, 1997; Gutmann, 2003; cf. Peter, 2007, p. 375). The intuition behind this broader conception of political equality is not difficult to understand. Clearly, the value of the right to vote is diminished if the costs of going to polling stations are high and no alternative means of voting are available. The value of the vote is affected by social conditions, such as poverty, violence and illiteracy. People that suffer from malnutrition or that live in violent and insecure districts generally face higher costs for making the necessary efforts for effective political participation. Securing the conditions for effective political participation is, consequently, intimately connected to the promotion of political equality (Dahl, 1989; Thompson, 2002). It could perhaps be objected that the subjective value or ‘worth’ of political rights has nothing to do with democracy. The value of a resource for a specific individual is partly determined by what other resources are available to this person, since this is what ultimately determines the ‘opportunity costs’. Just as the value of a house varies in accordance with access to alternative accommodations, the value of a vote depends on what other political resources a person possesses. That is, the subjective value of having the right to vote varies from individual to individual according to the potential gains and losses each can expect from different political outcomes and the alternative routes to political influence available to them. If these observations are correct, and if it is also true that the ideal of political equality mandates the equalisation of the expected value of the vote, the conclusion appears to be that the material conditions of life itself ought to be equalised. Only when no one can expect more benefit than another from political participation is the value of the vote truly equal. But if this is what democracy requires, then the whole idea of democracy as a mechanism for the peaceful resolution of conflicts over the allocation of material resources becomes incoherent. It cannot simultaneously be

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claimed that differences in opinion about the distribution of economic resources should be resolved through democratic procedures and that participation in such procedures requires the equal distribution of all economic resources. Yet, this argument is taking the idea of ‘equal worth’ too far. The implications of political equality are not that each individual should receive the same value from the vote. The idea is that the costs associated with exercising this right should not be disproportionate but roughly equal. The basis for this view is that no one with an interest in political influence could reasonably accept a system whereby the barriers for exercising this influence are simply too great to overcome. To the extent that we find equal political rights acceptable, we should also recognise the need for equal opportunities in their effective use. That some people cannot vote due to excessive costs associated with voting indicates that political equality has not been achieved. The final point, then, is that what should be equalised is not the expected value of voting but the costs associated with voting (Brighouse, 2002, p. 58). There are at least two important implications of the idea that a democratic society should promote the fair value of political rights. The first is that there is an obligation to establish opportunities for each member of society to participate effectively in the political process. It can be argued that this point is of particular relevance to the political participation of cognitively impaired people. An essential mark of a just society is that public institutions are organised so as to maximise the worth of basic liberties and rights to its least advantaged members (Rawls, 1971, p. 205; cf. Kittay, 1999, p. 78). Given that cognitively impaired people are among the least advantaged with respect to democratic rights, it can be claimed that a just society should make a real effort to promote the value of their political rights. Of course, there can be conflicts of interest, given that public funds are scarce and are potentially required for the assistance of groups least advantaged in other respects. Democracies haunted by severe poverty, like India, may be faced with the painful choice whether to secure adequate assistance for disabled people on the election day or to allocate these funds for basic health care and clean water facilities for the poorest members of society.6 However, we need not resolve the issue at this point, since our main focus is on the right to vote and the considerations relevant in regulating this right. To this end, it is enough to appreciate the second implication of the wider conception of political equality. This is the principle that it would be unreasonable to deny anyone the right to political participation on the grounds that he or she

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presently lacks the opportunity to participate fully in the political process. The soundness of this implication follows from the observation that people should not be punished for failures that stem from the lack of opportunities that others are obliged to provide. That is, a person should not be denied the right to make use of a resource just because others have failed to act on the obligation to help this person in using the resource appropriately. It is essential to this argument that there is a prior obligation to assist the person in using the resource. The force of this assumption is illustrated by cases in which no such obligations exist. For example, it may seem reasonable to deny a person the right to drive an automobile if he or she is unfamiliar with the art of driving. The reason is that the value to others of travelling is placed at significant risk by allowing untrained people to drive. Voting is not like driving, however, and the difference, in accordance with this analysis, involves the fact that there is an obligation to provide everyone with the appropriate training and assistance in order to effectively make use of the vote (cf. Caplan, 2007, p. 197). All of this serves to demonstrate that people should not be disenfranchised just because they are unable to use the vote appropriately. This precise point was invoked by Mill in debating the extension of suffrage. A common argument against extending the vote to workers and poor people used to be that, since they lacked knowledge and education, they cannot make informed political decisions. In response, Mill pointed out that ‘excluding people for illiteracy when there is no public school is unjust’ (Mill, 1991, p. 174). The basic principle informing this claim appears to be that it is unfair to deny someone access to opportunities with reference to circumstances that others are obliged to rectify. Now, if this constitutes a valid principle, it should apply to the exclusion of people with cognitive impairments as well. To exclude people who are politically dependent is unfair to the extent that their dependency is a result of circumstances that others could legitimately be expected to rectify. The wider implications of political equality also demonstrate why it is questionable to exclude cognitively impaired people by appeal to the suspicion that their votes may have been manipulated by others. The reason is that we should not merely ask whether the votes registered satisfy the criteria of political equality. The additional and no less important question is whether the opportunities to vote are appropriate in terms of political equality. And the answer, in connection to people with cognitive impairment, seems quite clear. As long as a person with a cognitive disability remains susceptible to manipulation by

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other citizens, this person does not enjoy adequate opportunities for democratic participation. What is missing is the opportunity to engage in political deliberation without the corrupting intervention by others. Since the obligation to provide such an opportunity does not rest with the disabled person but with fellow citizens and the government, it is unreasonable to let the disabled person bear the full costs of the predicament by denying him or her the political rights enjoyed by others. This point is, in fact, crucial. The obligation to achieve political independence does not rest just with the individual voter, in which case the failure to act and think independently could perhaps justify exclusion from the vote. The obligation to respect and promote political independence rests, instead, with everyone participating in the democratic process. If this argument is accepted, it becomes clear that serious obstacles remain in contemporary societies with regard to the political independence of disabled people. Public attitudes and norms against interfering with the preferences and the voting behaviour of disabled people are weak. At the same time, election laws and regulations inadvertently create formidable barriers for disabled persons, in general, and for the cognitively impaired, in particular. A case in point is the norm of the secret ballot, which may constitute a substantial barrier to the effective political participation of people in need of assistance in the voting booth (Karlawish et al., 2004; Bell, McKay and Phillips, 2005). The obligation to reduce barriers to effective voting has been recognised by legislators in various places. For example, the European Parliament’s resolution on The rights and dignity of the disabled, adopted in 2003 includes the provision that all disabled persons are entitled to the ‘free and secret vote with adequate information and facilities’ (Quinn, 1995). This is, in effect, to acknowledge that voting by people with cognitive impairments could be improved without endangering political equality. Other democratic nations have gone farther in securing the fair value of political rights to cognitively impaired persons. For example, electoral regulations in Canada include the provision that friends or relatives of the disabled person may provide assistance by marking the ballot for him or her. Similar provisions have been introduced in Britain, where the presiding officer at the polling station may assist the elector in marking the ballot paper (Bell, McKay and Phillips, 2005, p. 124). As is indicated by these examples, norms of the secret ballot and traditional understandings of political equality are redefined in order to create greater correspondence between the electoral law and the demands of the wider conception of political

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equality. Of course, the objection could be made that in providing these opportunities, the conditions for political equality are reality undermined. When more than a single individual becomes involved in casting a ballot, the authenticity of the vote is open to question. In an attempt to tackle this problem, the electoral law of Canada establishes that a person assisting another in the act of voting ‘shall first take an oath’. The accompanying person must publicly declare that he or she ‘will mark the ballot in the manner directed by the elector [and] not try to influence the elector in choosing a candidate’ (Electoral law 2000, Section 155). An even more radical proposal would be to abandon norms of secret ballot. It could be argued that responsible and independent political judgment is actually encouraged by a scheme of non-secret voting for all, where political decisions are necessarily made in the open and, therefore, have to be publicly justified (Brennan and Pettit, 1990). The view that secret voting would promote self-interested decisions was common at times when secret voting was debated. At those times, the connections between independency and public voting were made explicit, such as in the following words: ‘I want to see every man an independent voter, not sneaking to the polls and hiding his expression in a secret ballot’ (Senator Lyman Trumbull, quoted in Brennan and Pettit, 1990, p. 328). The abolition of the secret vote would not just facilitate political participation by people with cognitive impairments but potentially improve the quality of the electoral choices made by the public at large. There are, in sum, a number of ways whereby voting by people with cognitive impairments can be made more independent and, consequently, less threatening to the values of political equality. In view of all this, the wholesale exclusion of all people with cognitive impairments from political participation appears unreasonable. The reason is that their exclusion does not seem necessary in order to guarantee the integrity of the democratic process. In the language of American law, we could say that the disenfranchisement of cognitively impaired people may ‘not [be] necessary to further the interest in preventing manipulation’ (Notes, 1978/79, p. 1655). Providing for assistance at the ballot station is clearly not all it takes, however. Carers and others with close ties to the cognitively impaired person also need to be encouraged and educated about the electoral process and the political alternatives that are available. Given the social isolation typical of many cognitively impaired people, the initiative for taking an active part in political life may have to come from the

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carer. In fact, there is evidence suggesting that electoral participation by the cognitively impaired may depend more on the extent to which carers encourage them to participate than on the extent to which they are capable of voting. In a survey of residential facilities for intellectually disabled persons (i.e. not including mentally ill), it turned out that although only 14 per cent of the facilities reported that none of their residents were capable of voting, almost 40 per cent replied that none of their residents did vote (Kemp, 1984). The discrepancy between these rates suggests that the level of assistance offered by carers has an important role to play. There is, thus, much agreement that carers need to be educated on how to assist disabled persons and inform them about political participation and voting (Cleland et. al., 1973; Kemp, 1984; Pavey, 2003; Karlawish et. al., 2004). In sum, there are barriers of various kinds that undermine the opportunity for cognitively impaired people to participate in the democratic process. As long as these barriers persist, we cannot reasonably say that political equality exists for the people that includes cognitively impaired people. Hence, it would be unfair to exclude them from political participation by reference to their inability to vote independently. There is a final objection available against the argument above. It could be claimed that some people will never be able to make independent political judgements due to the severity of their mental condition. If no level of assistance is likely to ensure political independence for a seriously impaired person, there would, consequently, be no reason for preserving his or her right to vote. So, it may be asked, what is wrong with denying a person the right to vote if adequate opportunities for political participation exist and the person still fails to vote independently? A case in point is the condition of people in a permanent vegetative state (PVS). Given the premises accepted above, it is unclear that any wrong is involved in excluding from the vote people who will always ‘stare in blank incomprehension’ when confronted with the task of articulating a political preference and making a choice among candidates (cf. Ackerman, 1980, p. 79). However, this objection can be countered by pointing out that the case for legal exclusion fades once adequate legal protection of the political independence of cognitively impaired people is in place. Remember, the impetus for depriving dependent people of the right to vote is that of guaranteeing democratic elections as an instrument for political equality. However, there should be no more cause for concern once the risks of manipulation, abuse and cheating have been addressed through

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improved election regulations, criminal laws, routines at poll stations and so forth. In other words, there should be no problem addressing this once adequate opportunities for effective political participation have been secured. In response to this optimism it could be pointed out that some people with cognitive impairments will never be able to form political preferences or cast votes. This is, of course, true, as the severity of some people’s disabilities or illness is likely to make them forever unable to play an active part in political life. It is not clear, though, why a person unable to participate should be denied the right to do so. The mere inability to participate hardly provides a reason for disenfranchisement. A person that cannot participate obviously constitutes no threat to the ‘integrity of the ballot’. Moreover, it does seem to be a curious understanding of the law that it should be used in order to prevent people from doing what they cannot do anyway. If people suffering from PVS cannot vote, why should they be under a legal duty not to vote?

Conclusions Individuals with cognitive impairments remain disenfranchised in most democratic nations. Their exclusion is frequently justified with reference to the alleged incapacity to vote independently and the consequent risks of endangering the equality of elections. The logic of this reasoning can be traced back to the ideal of the independent citizen embraced by theorists of democracy at least since Rousseau. The ability to think and to act independently is believed to be an essential trait of the democratic citizen and a condition for the procedural fairness of democratic elections. As a result, voting by people with cognitive impairments constitutes a potential threat to the integrity of the democratic process. In this chapter the poverty of the argument from political independence has been unravelled. It is a mistake to assume that political equality is all about guaranteeing the integrity of elections in terms of equal political influence. As has been recognised by Dahl and others, political equality is also about securing the means for effective political participation. If the obligation to secure the means for effective political participation for everyone is taken seriously, it is not acceptable that some people should be denied access to the ballot because they lack the means that others should have provided. It

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seems equally unacceptable that some people should be denied the vote simply out of fear that others may manipulate or betray their attempt to participate in the democratic process. Once these wider implications of political equality are acknowledged, it should be evident that the disenfranchisement of the cognitively impaired cannot reasonably be defended.

7 The Vote of Unborn Generations

What democracies do today have consequences for the future and will significantly affect the welfare and quality of life of coming generations. Although the achievements of the past are enormous and left for the future to enjoy, risks and costs that fall on generations to come are also incurred, potentially undermining future conditions for survival. The future will not only inherit public sector budget deficits but nuclear waste, greenhouse gases and diminished wildlife and biodiversity from their ancestors. According to some observers, a major reason for the continuation of such policies is the fact that future people are not represented by democratic institutions. The living generation can maintain policies destructive for the future because unborn generations have no ‘voice’ in the political process (WCED, 1987, p. 8; Stein, 1998, p. 426; Stern, 2006, p. 23). In order to remedy this, it has been argued that the interests of future people should be represented through democratic institutions (Kavka and Warren, 1983). In fact, it has been argued that ‘ordinary democratic cannons’ compel us to accept that the interests of future generations ought to be represented (Goodin, 2003, p. 183; Johnson, 2007, p. 69). Though it may seem difficult to imagine how to represent people that do not yet exist, a disparate bundle of proposals have been offered for the purpose of showing how this could be accomplished. It has been argued that the voices of unborn generations can be strengthened through the use of ombudsmen, financial incentives for political parties, quotas in parliaments for environmental organisations, international environmental courts, specific legal or constitutional provisions and so forth. It is not the purpose here to evaluate the realism of such proposals or even to judge the extent to which they would, in any real sense of the term, result in the ‘representation’ of future generations (cf. O’Neill, 2001; 167

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Tännsjö, 2006). Yet, the fact that they have been framed as attempts to remedy the failure of democracies to represent ‘everyone affected’ demonstrates that the problem of democratic inclusion is also pertinent from an inter-generational perspective. The central question is whether representing unborn generations would be consistent with the principles of democratic inclusion. In order to answer it, we need to know whether future generations should be considered members of the democratic people. The answer to this question could be either that people not yet born should be recognised as members of the current demos or, alternatively, that each generation is a separate people, inclusive within but not beyond itself. In relation to the framework of this study, the question is a relevant one due to the significance attached to the legal understanding of the all affected principle. As we have said all along, each legal subject should be entitled to participate in the political process in order for a political system to be maximally democratic. Transferred to the inter-generational context, the problem of inclusion is, consequently, the extent to which future people are legal subjects to, and in that sense ‘ruled by’, the government of the living generation. Are people not yet born forced to comply with the legal system their ancestors have established? These questions call for an analysis both of the requirements for being a legal subject and of the meaning of constitutionalism. Constitutions are particularly salient in this context due to the fact that they constitute the prime example of trans-temporal law. In fact, the intergenerational perspective is unique in turning the problem of inclusion into a constitutional matter. The two first sections confront these issues, and the argument that future people are not, in fact, members of the democratic people is developed. The idea of representing future people politically receives no support from the notion of democratic inclusion. In the third and final section of the chapter, the question of reasonable exclusion is raised. Even though future people are not members of the democratic people, it remains a possibility that the claim for their representation may not reasonably be rejected. However, as I will argue here, this conclusion is far from obvious.

Some preliminary issues An argument for the inclusion of unborn generations cannot be understood literally as an argument for more inclusive suffrage for the obvious reason that non-existing persons cannot vote. Future people are unable to make their voices heard and, likewise, lack the capacity to articulate

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their interests. This simple observation may be taken to indicate that there is no available justification for the claim that future generations ought to be represented through democratic institutions. Some would say that there can be no right to be heard for those unable to raise their voices, since the living cannot reasonably have obligations they are unable to discharge. In this spirit, the argument in favour of granting future generations a ‘voice’ has been portrayed as ‘illogical’ (Holden, 2002, p. 89). In case the objection is meant to argue that the interests of people that are unable to represent themselves cannot be represented by others, it is patently mistaken. A fundamental meaning of ‘representing’ is acting in the interests of someone else, and it is clearly possible to act in the interests of people (or other creatures) that are themselves unable to protect their interests. For example, it is commonly believed that the interests of other ‘mute’ humans and creatures, from infants to animals, are able to be represented through political institutions. It could be objected that the interests of people not yet born are unknown to us and that the living tend to overestimate their capacity to predict what is in the interests of coming generations (Mahoney, 2002, p. 783; O’Neill, 2001, p. 497). Instead of promoting any particular interests of unborn generations, we should leave as many options for the future open as we possibly can (Schlickeisen, 1994, p. 193). While these are important reminders, they do not demonstrate that future people’s interests should not be represented. From the fact that knowledge about some people’s interests is a point of contention, it does not follow that others should not attempt to articulate and promote what they, to the best of their knowledge, take to be in their best interest (Goodin, 1996b, p. 841). Perhaps more troubling is the claim that only existing people can have rights and that future people, therefore, can have no right to representation, since they do not presently exist. The claim would be that rights are necessarily properties of persons and that since people not yet born can have no properties, as they do not exist, they have no rights either. Now, if existence is a requirement for being a bearer of rights, it certainly follows that future people cannot be bearers of rights. But saying that we should respect the rights of future people is not necessarily to say that they are now bearers of rights, only that they one day will be and that our actions may have a significant impact on them (Elliot, 1989, p. 161; Gosseries, 2008a, p. 452). On the assumptions that future people will exist and will have rights (both of which seem plausible), it is not unlikely that their rights will be able to be violated by the

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actions of previous generations. And if this is the case, people today must choose either to respect or to ignore the rights of future people. In sum, the decisive question is not whether it is feasible to represent the interests of future generations or whether it makes sense to speak of future people’s right to be represented. The more intriguing point is whether they should be represented given the criteria of democratic inclusion. Does the current exclusion of people not yet born indicate that our political system is not as democratic as it could be?1

Are future people legal subjects? Laws enacted at one point in time typically remain in force for considerable lengths of time. From this simple observation, it follows that laws apply to people who have never had a chance to participate in their making. People born in the future are unable to influence the legislative process today, though some of them will inevitably be forced to submit to the laws it produces. Given the message of the all affected principle, that everyone subject to the laws should be able to participate in the democratic process, it can be argued that future people are entitled to participatory rights today. This is the view endorsed by Dennis Thompson and others, echoed in the argument that ‘[future people] will have to live with the consequences of the laws made by citizens of an earlier generation’ (Thompson, 2005, p. 247; Johnson, 2007, p. 74; Graham, 2002, p. 38). Though the argument appears simple and clear, a closer look reveals its complex nature. To begin with, it should be emphasised that the ‘consequences’ we are to consider pertain to the future legal validity of laws, not future causal consequences of laws, enacted today. This is, of course, not to deny that laws frequently have causal consequences for the future. For instance, it may appear that laws that permit, regulate or support the construction of nuclear plants have consequences for the future as a result of the nuclear waste, outflows of radioactivity and so forth that are created in the process. However, these consequences are not relevant in considering whether future people are subject to the legal powers of previous generations. The legal version of the all affected principle does not care about the persistence over time of potentially destructive consequences of political actions but only about the legal relations between generations. Another preliminary remark is that present and future generations have to be carefully distinguished in order not to trivialise the argument. Assume that the living generation is equal to the living members

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of the democratic people. The composition of the living generation in one country is, then, subject to a process of continuous transformation through deaths, births and migration. But since the process whereby laws are introduced and abolished follows a distinct rhythm, it seems evident that some members of the living generation are necessarily subordinated to rules enacted in the past. However, in this form the problem becomes reduced to the question of whether newcomers (children and immigrants) should be granted participatory rights at the time of entry or not. An original, inter-generational problem only appears once it can be established that the entire living generation is subject to laws created by past generations. For that to be the case, the laws to which the living generation is subject must have been created by decisions in which no now living person had the right to participate. Clearly these conditions do not necessarily hold in all circumstances and are, therefore, not so trivial. For example, in the creation of a new sovereign state, the legal system is created ab initio and is, consequently, affirmed by the living generation. Thus, no members of the democratic people are subject to laws enacted by the past generation under such, admittedly exceptional, circumstances. But is it ever correct to say that the living generation is subject to the laws of the past generation? It should be noted that it does not follow that the living are ruled by the dead simply because the laws enacted by the now dead are still effective. The claim that a past generation ‘rules’ the living generation is not validated either by the trans-temporal identity of the laws to which they are subject nor by the fact that these laws were first introduced by the now dead generation (or by the conjunction of these claims). Let us ponder a very simple example illustrating this point. Consider a person, A, living in a house and deciding that the rule ‘no one should smoke in this house’ should be observed at all times. When A dies, the house is sold to B who somehow discovers the old rule and decides to observe it at all times, just as A did. A and B are clearly following identical rules, and the rule followed by B was first introduced by A. However, this is not to say that B is ‘ruled by’ A. Analogously, it should be recognised that the living are not rendered captives of the past simply by virtue of the fact that some of their laws were first introduced by those now dead. Perhaps, though, the example does not quell the suspicion that the living generation could rule future generations. This example is not perfectly analogous to the situation of relations between generations, since future people, in contrast to B, are never offered a single opportunity to accept or reject the multiplicity of laws inherited from the past. The

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laws are already there as parts of the legal system and, hence, imposed on all new subjects even before they can contemplate whether to reform the system or not. At this point there are two avenues available. There is, first, the normative argument to the effect that legislating for future generations constitutes an illegitimate interference in future people’s right to selfdetermination. Even if the living can rule unborn generations, there may be reasons that they should not. There is, second, the conceptual argument that the living cannot rule unborn generations, given an appropriate understanding of what legal authority means. This view is born out of the idea that a necessary condition for the authority of a legal system is its affirmation by the people it rules. In the case the authority of the legal system is not recognised by future people, there can be no valid laws in that system. But the reverse is also true, according to this view, since the existence of authoritative laws indicates that the legal system has, in fact, received recognition. A legal system does not impose itself on anyone, only people are capable of imposing legal systems. Mere subjection to the laws of the past is, hence, a conceptual oxymoron. The normative and the conceptual arguments are both found in Thomas Paine’s vibrant assault on ‘trans-temporal tyranny’. Paine characterises as ‘detestable’ the notion of generations ‘exercising, at any time in the future, any species of despotism over each other’. The reason offered in support of this view is that the living generation has ‘neither the power nor the right’ to govern posterity ‘or to say how they shall govern themselves’ (quoted in Ford, 1998, p. 574). The normative argument is explicit in Paine’s claim that the living generation has no ‘right’ to ‘govern posterity’. A similar argument is found in Rawls’ notes on the conditions for inter-generational justice, where he argues that ‘all generations have their appropriate aims ... [t]hey are not subordinate to one another anymore than individuals are’ (Rawls, 1971, p. 289). This claim must be understood as normative, asserting what should be rather than what is, since it is blatantly untrue that ‘individuals’ are not ‘subordinate to one another’. The thrust of the normative argument would be that each generation ought to respect the interests of coming generations to live according to their own aims and, therefore, should resist governing for the future. In affirming this view, Rawls and Paine appear to be in agreement. But Paine also presents a claim that is more reasonably understood as a token of the conceptual argument, in asserting that the living have no ‘power’ over the future. That no power exists in relation to future events is, of course, an incredible view if understood as

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concerned with power over material resources. Paine hardly intended to deny that the living could affect future events, so he is more plausibly understood as making a conceptual claim about the meaning of legal power. The argument would be that legal authority cannot be exercised over the future, since the validity of laws necessarily depends on them being affirmed by someone. Now, if this conceptual claim is correct, it renders the normative argument superfluous. If true that the living cannot rule the future, little is added to the argument by asserting that the living should not rule the future. The conceptual argument is, therefore, the more fundamental. But is it correct? The thesis here is that a condition for the authority of a legal system is that it has been affirmed by its subjects. The question is why this should be taken to mean that future people cannot be ‘ruled’ or ‘governed’ by living people. The explication of this view is perhaps best illustrated by John Locke’s insistence that a people ‘cannot by any Compact whatsoever, bind his Children or Posterity’ (Locke, 1988, II, p. 116). In order for any rule to ‘bind’, it has to be the result of a ‘compact’, or agreement. Since an agreement necessarily involves consent, a binding rule can only be created on the basis of consensual agreement by all parties. This is also the condition for legal authority, since a legal system is constituted by a set of binding rules. The authority of a legal system is, consequently, premised on the extraction of consent from all subjects. Now, if it is further accepted that future people are unable to provide consent to any legal system before they have come into existence, it seems clear that no legal system can have authority over future people. This is why, in Locke’s analysis, it is conceptually impossible to create laws binding for ‘posterity’.2 However, though the laws created by the living generation may have no authority over future people before those people exist, they may achieve authority over future people once they do exist. In response, Locke would surely have pointed out that unless future people agree to submit to the laws created by their ancestors, these laws have no authority over them. If the laws enacted by the dead are considered to be authoritative in the future, this is indicative of the fact that future generations have consented to them. The basic idea informing the reasoning of Locke and Paine is that a democratic people is necessarily a sovereign with the power and right to decide its legal universe. In so far as each generation is a separate democratic people, the implication is that each generation is sovereign as well.3 The doctrine of popular sovereignty impels us to accept that the authority of law is not a function of history but conditioned upon the

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recognition of the sovereign, that is, the people. Basically the same idea is found in Thomas Hobbes’ writings, despite the fact that he located the sovereign body in a single individual and not in the collective of the people. Hobbes captured the relevant insight at the dawn of the modern era in the following words: ‘The sovereign is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws’ (Hobbes, 1968, p. 315). Again, a legal system maintains authority to the extent that it is currently affirmed by a sovereign body and not because it was at one time enacted by such a body. The above analysis of the conditions for political authority are of great import in understanding the implications of the all affected principle in an inter-generational setting. The all affected principle holds that anyone subject to the binding rules of a political authority should be considered a member of the democratic people and, hence, granted rights of political participation. Now, in the case that the laws enacted by the living generation are not binding for future people – because each generation is sovereign – it clearly follows that unborn generations are not members of the democratic people of the living. Hence, the idea of political representation of future people receives no support from the all affected principle. To the contrary, we have to accept that a political system that represents future generations is to that extent over-inclusive and, therefore, less democratic than it otherwise might have been.

Constitutions and constraints The preceding discussion suggests that it is a mistake to assert that future people will ‘have to live’ with the laws of the past. Now, in response to this conclusion, it could be claimed that although future people are not ‘ruled’ by the laws introduced by their ancestors, they are constrained by the constitutions inherited from them. Future majorities are not at liberty to pass new legislation at will, since the process of legislation is regulated by a constitution that is the result of political activities of their ancestors. Those presently living are in that sense limited by the ‘dead hand of past majorities’ (Thompson, 2005, p. 246). Because these constraints are constitutionalised, the strength with which they continue to limit future majorities is not primarily a function of the number of issues they cover but of the conditions for constitutional amendment. The distinction between regular law and constitutional law is basically that the latter cannot be altered by a simple majority vote but only by adherence to the procedures of constitutional amendment stipulated in the constitution itself. Thus, a constitution does not merely regulate

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the process of legislation, it regulates changes in the regulations of the process of legislation. Given the fact that the articles of constitutional amendment normally stipulate that a simple majority is not enough, it is fair to say that constitutions impose severe constraints on the legislative powers of future majorities. Now, few would deny that constitutions are necessary for the stability of a democratic political system and that they, therefore, could be considered legitimate. A constitution typically makes a democratic government possible (Holmes, 1995). However, the view that constitutions serve legitimate ends does not change the fact that they exert considerable influence over the legislative freedom of future people. For example, it is frequently noted that the US constitution, designed by people that have been dead for two centuries, imposes exceedingly strong constraints on current majorities and that, therefore, ‘the dead are able from their graves to thwart the will of a simple majority of the living’ (Otsuka, 2003, p. 133). A further indication of the future oriented ambitions of constitutions is reflected in John Finn’s remark that constitutions are always designed with the intent to remain forever valid. No act of creating a constitutional system is made for the purpose of committing the present generation alone. An illustrative example can be found in Abraham Lincoln’s first Inaugural Address, in which he declared that ‘perpetuity is implied in the fundamental law of all national governments’ (Finn, 1991, p. 4). In view of these considerations and in order to mitigate the propensity of the living to constrain future majorities, a variety of democracy preserving measures have been proposed. For instance, Thompson cautions against the expansion of constitutional law and argues that each generation should leave ‘their successors “enough and as good” sovereignty as they themselves enjoy’ (Thompson, 2005, p. 249). The constraints on majority rule, passed on to posterity, should be no more extensive than the constraints it has lived by and should be good enough so that the next generation will be able to rule itself effectively. A more curious suggestion is found in the writings of Thomas Jefferson. Jefferson argued that the validity of a constitution should automatically expire after 19 years (the calculated average duration of a generation according to Jefferson) so as to allow each generation to decide anew what constraints to live by. Jefferson insisted that there is a world of difference between the ‘power to repeal’ constitutions, which necessarily belongs to every sovereign people, and the right of a new generation to rule itself according to its own beliefs and ideals, which may be circumvented by the constraints inherited from the past (Ball, 2000, p. 69).

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There is little doubt that constitutions curb the legislative power of living majorities and that, since constitutions regularly remain in place for long periods of time, they constrain the legislative power of future majorities as well. The critical question, though, is to what extent this means that future majorities are ruled by the generation that created the constitution in the first place. Actually, it does not follow from the fact that a current majority is constrained by a constitution created by a previous generation that it is ‘ruled’ by the now dead. The constraints that prevent the current majority from introducing a particular policy can do so only to the extent that they are part of the constitutional order that is recognised as authoritative. Even if the majority is frustrated by constraints that impede its legislative ambitions, it is not necessarily the case that the majority renounces the entire constitutional order. There is, in other words, a fundamental difference between rejecting a legal command and rejecting the authority of a command within a legal system. To the extent that the majority rejects the constraint but not the authority of the constitutional order, it can be said that the majority is accepting the authority of the constraint. The constitutional constraint has authority over the majority, not because it is imposed by a constitution introduced by a previous generation but because it is part of an order the now living generation recognises as the source of legal authority. But what if the majority does, in fact, repudiate the authority of the entire constitutional order? Are we not, then, entitled to conclude that the majority is ruled by the ‘dead hand of past majorities’? A majority living under a constitutional order inherited from the past, which it does not accept as authoritative, is indeed ruled by a set of rules it has not chosen. The natural response from a majority in this situation would be to amend the constitution in order to impose its own sovereign will upon itself. But this is not always possible, as the rules of amendment may thwart the endeavour. The amendment rules of constitutions do not usually permit a simple majority (or even a qualified majority, in some places) to embark on constitutional change. For example, the amendment clause of the US Constitution (Article V) includes the provision that no changes affecting the ‘equal suffrage of the states’ can be implemented without the consent of each state. The rules regulating amendment of this part of the constitution are obviously extremely stringent, as a single state is empowered to veto any initiative to amend the provision. The protection of the equal suffrage of the states, established by Article V of the US constitution, exemplifies a de facto entrenchment.

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That is to say, amendment of the article, though not strictly forbidden, is rendered virtually impossible by the procedure devised. In some constitutions, the amendment rules are even stronger, as they may constitute a species of formal entrenchment (Schwartzberg, 2007, p. 8). The purpose of either de facto or formal entrenchment is to protect a rule from future amendment in order to ensure that the provision remains valid at all times (Suber, 1990, sec. 9). A well known incidence of formal entrenchment is found in the German Basic Law (Grundgesetz) in which Article 79 declares amendments affecting the sections of the constitution protecting a citizen’s right to dignity and the status of Germany as a ‘democratic and social federal state’ (Articles 1 and 20) to be ‘inadmissible’. In fact, most constitutions adopted in Central and Eastern Europe after the Second World War include entrenchment clauses, protecting various aspects of the constitution from amendment by future generations (Schwartzberg, 2007, p. 9). The aim of inter-temporal validity of entrenchment clauses is sometimes stated explicitly. This is the case where it is declared that the articles shall remain valid in ‘perpetuity’ or that the order ‘shall be perpetual’, as in the original Articles of Confederation adopted by the thirteen American states before the introduction of the US Constitution. On the basis of these observations, it may seem to follow that future people are at least in some circumstances held hostage to the laws enacted by a previous generation. Whenever a constitution constrains future majorities and when these constraints are entrenched, it may seem appropriate to speak of ‘inter-temporal tyranny’ (Thompson, 2005, p. 249). In order to challenge the conclusion that future people are ‘bound by’ claims of ‘perpetual validity’ inscribed into the legal system by past generations, there are two alternative arguments available. The first would be that future people are never legally forbidden from altering the constitution and are, therefore, legally entitled to change constitutions at their will. The second argument would be that future people are never fettered by the legally binding letters of the law pronounced by the dead. Accordingly, future people are free to pursue extra-legal measures to amend their constitutions. Common to these two alternatives is the view that future people literally cannot be prevented from acting as a sovereign. However, they differ as to whether the sovereignty exercised by future people necessarily implies breaking the legal rules of the game or not. The first view has been vigorously defended in Akhil Amar’s reinterpretation of the US Constitution. According to Amar, the people of the

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United States have a ‘legal right’ to change the constitution via a simple majoritarian process, despite the fact that such a process is not specified by the amendment rules in the constitution. In support of this view, Amar cites the fact that Article V does not explicitly rule out alternative modes of amendment but only specifies the mode of amendment to be followed by the US Congress (Amar, 1994, p. 459). That is, the stipulation that the equal suffrage of the states shall not be abolished without the consent of the states themselves refers to the procedure by which the Congress can initiate such a change. Although it is necessary for the Congress to observe this procedure, it is not necessary for other bodies, that is, the people themselves, to observe it. Amar proposes a distinction between rules binding the government and rules binding the people. The amendment rules of the Constitution bind the government, but they do not deny ‘the people’ the legal right to change the document or, indeed, to abolish and replace the entire constitution. After all, this is what the framers of the Constitution themselves did when, in 1787, a constitutional convention was called in order to enact the Constitution of the United States. No legal right mandating the replacement of the Articles of Confederation by means of constitutional convention existed. And yet, Amar insists, the people were implicitly granted a legal right to create a new constitution by such means. In fact, the right to alter or abolish the government is a ‘transcendent right’ (Amar, 1998, p. 46; Amar, 1994, p. 500). The second view, championed by Bruce Ackerman, is that the process that gave birth to the US Constitution can only be described as illegal, precisely because it constituted a break with the Articles of Confederation and existing state constitutions. At the same time, Ackerman is adamant that the legal ‘revolution’ represented by these events is endemic to the constitutional history of the United States. Later events, such as the so-called ‘reconstruction’ following the civil-war in the 1860s and the politics of the New Deal in the 1930s, were equally revolutionary because of the means involved. The constitutional changes pressed through at those points in time were not the result of majorities ‘playing by the rules’ but of majorities acting politically and ‘speaking in the name of We the people’ (Ackerman, 1995, p. 570). The disagreement between Amar and Ackerman concerns the legality of the founding of the US Constitution and is not particularly relevant for our purposes. More informative is the point of agreement between these authors, manifested in the view that ‘popular sovereignty’ entails the right of each generation to alter or abolish the constitution at will. Amar finds a clear articulation of this idea in the papers written by

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James Madison at the time of the constitutional convention. Following Madison, ‘the people have an indubitable, unalienable, and indefeasible right to alter or abolish their government’ (quoted in Amar, 1998, p. 27). Although ‘Madisonian democracy’ is usually contrasted with the more radical version endorsed at the times by, among others, Thomas Jefferson, they both shared the view that the people cannot be alienated from the ultimate power to shape the laws of the nation (Holmes, 1995, p. 138). In debating the Statute of Virginia for Religious Freedom, Jefferson argued that ‘to declare this act to be irrevocable would be of no effect in law’ (quoted in Katz, 1995, p. 251). The right of a people to reform government is ‘indefeasible’ and, therefore, cannot be constrained by a constitutional document. The theory of popular sovereignty affirmed by Amar and Ackerman appears to be essentially identical to the tenets advocated by Locke and Paine. The implications of this doctrine are, nevertheless, more challenging when applied to the politics of constitutional amendment. It holds that any attempt to protect the constitution from amendment, either by de facto entrenchment or by the more radical means illustrated by clauses declaring articles to be ‘inviolable’, ‘irrevocable’ or ‘valid in perpetuity’, are in the end futile when confronted with the supreme right of each generation to ‘alter or abolish’ their government by a majoritarian process. A constitution may speak of future people as subjects, with the pretence of ‘eternal’ validity, but each generation retains the ability and right to turn itself into ruler, not just of the laws but of the rules of law-making. As explained by Peter Suber, ‘if we violate the right of future generations to make and change law, then they may restore this right – revoke our limitation on their power – at will. No generation can bind its successors with categorically immutable rules’ (Suber, 1990, section 21). All people are sovereign, but not in the sense of being ‘omnipotent’, since there is obviously one thing they cannot do, namely, create binding precepts for their successors. It may be asked in what sense the power of each generation to revoke the constitution is appropriately termed a ‘right’. An alternative is to refer to it as a ‘residual power’, possessed by any people at the constitutional front (Pettit, 2006, p. 43). But even the residual power of each generation to introduce a new constitution could be termed a ‘right’ in the limited sense of being ‘ineliminable’. It is a right each living generation possesses, since it refers to a capacity for political action that no other generation can possibly emasculate. On the other hand, the power to amend the constitution can plausibly be termed a ‘right’ in a stronger sense if it refers to a resource integral to the meaning of a

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‘democratic people’. In fact, a fundamental aspect of democracy is the idea that the people ‘must have the final say’ (Dahl, 1989, p. 113). On the assumption that each generation is a people, it must, consequently, have a ‘final say’ as well. The idea of inter-generational sovereignty would, in other words, be implied by the very idea of democracy. Thus, on the assumption that we recognise as ‘rights’ the prerogatives of a democratic people, there is a basis for the description of the constitutional powers of each generation as a right. Where does this leave countries like Germany, in which ‘eternity clauses’ entrench specific parts of the constitution? The answer must invariably be that these clauses do not impose the entrenched segments of the constitution on future generations, since the German people at any point in time retain the ability and the right to convene, as a people, in order to amend or replace them. This is so, even though the German Constitutional Court would predictably declare any attempted amendment of the clauses to be ‘illegal’ (Katz, 1995, p. 269). Despite the illegality of such measures under the existing constitution, future German majorities are not prevented from amending any aspect of the German constitution – not even the ‘eternity clause’. The plausibility of this reading is indicated by the fact that the German Basic Law was originally intended as a transitional document, which is why it is named Grundgesetz and not Verfassung, a term reserved for a document potentially to be adopted at the time of unification (Kommers, 1991, p. 837). Clearly, the ‘eternity clause’ was not introduced for the purpose of preventing the enactment of a new constitution. The argument made thus far can now be summarised. From the observation that constitutions tend to remain valid across generations, some conclude that the founding generation has the ability to rule successive generations. In response to this conclusion, the argument can be made that future people always retain the power to reject the constitution and to introduce a new one. Indeed, the inalienable right of any generation to remake the legal system is comparable to the people’s right to vote – a constitutional convention is the occasion at which a people exercise suffrage as a people. Most significantly, it is a right to vote that cannot be taken away and that is in no need of formal recognition, as it is inalienable.4 The analogy helps to explain why the implications of the all affected principle for individuals do not hold for generations. According to this principle, any individual subject to a political authority should be granted participatory rights (by means of a right to vote) in order for the political system to achieve democratic inclusion. Only by recognising

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each subject as a participant in the legislative process is the symmetry between ‘rulers’ and ‘ruled’ preserved. The case is different when it comes to the relationship between a generation of people and its constitutional system. The first point is that a legal system is authoritative only by virtue of the people now living, not by the fact that it was enacted by previous generations. In response to the point that a constitution may not be very easy to change and, therefore, may appear to impose legal constraints on future majorities, it should be acknowledged that each generation is equipped with a right to vote a new constitution in force. This right bestows on every people the power to call the equivalent of a constitutional convention in order to rescind the old constitution and to assume a new one. Each generation is, therefore, ‘enfranchised’, not primarily in terms of a vote granted each individual member of the generation but as ‘a people’ authorised to exercise final control over the legal system under which it lives. These remarks help explain why the all affected principle does not corroborate the claim for the political representation of future generations. First, future generations are not ‘legal subjects’ in relation to the laws and precepts enacted by the living generation. Since unborn generations are not subjects, they cannot be considered to be members of the ‘democratic people’ and are, therefore, not entitled to participate in the decisions made by the living. Second, though the constitutional system enacted by the previous generation assumes a certain trans-temporal validity, it does so precisely because each generation is equipped with a right to participate in the transformation of this system. A generation is ‘subject’ to a constitutional system because it has the right to decide its content, and each generation, therefore, remains the ‘ruler’ of its constitutional structure. No generation is disenfranchised in relation to the constitution, and there is, consequently, no case for extending the right to participate in constitutional decisions to future people.

Reasonable representation? Is there, though, a case for giving posterity a voice anyway? In order to find out, the reasons for extending political rights to non-members would have to be examined. To the extent that there is a reasonable justification for the political representation of future generations, the overinclusiveness of the demos would in the end be acceptable. Following the contractualist idea sketched out in Chapter 2, the acceptability of regulations of the vote should be evaluated in terms of their reasonableness from the point of view of all of the parties concerned. The way

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to proceed is by exploring the extent to which the exclusion of future people could be accepted as reasonable by future people themselves. However, the contractualist approach faces particular problems in an inter-generational context. One reason for scepticism is that the contractualist device seems to depend on the possibility of evaluating the effects of alternative decisions today on the people living here tomorrow. But the policies adopted today significantly affect the composition of future generations. For this reason, the question we need to ask is an awkward one, as it refers to the conditions for the existence of the very persons we are consulting. There are no ‘necessary’ persons waiting to be born but rather a plurality of possible persons that may or may not be born, depending on the actions of the generations before them. To ask if ‘possible persons’ would or would not find acceptable the conditions for their very existence is bound to leave the living generation confused, as it is unclear that possible people could accept policies not contributing to circumstances bringing themselves to life (Solum, 2001, p. 206). There is no apparent solution to this problem, although the nature of the ‘non-identity’ of future generations has been vigorously debated (Meyer, 2003). As long as we stick to the idea that the point of view of particular individuals should be considered in the evaluation of policies, it is questionable whether inter-generational relations can be coped with, since the existence of particular individuals in the future is partly what is at stake. A potential way out of this is to surrender the very idea of ‘particular points of view’ and to speak instead of the interests of the ‘kind’ of individuals that are to live in the future (Reiman, 2007). In that way, it has been argued, we can avoid reference to the particular identities of future people and speak instead of the interests that any individual would have. A rather similar idea is that we should speak of future people in the aggregate, which is to say that we should refer to the ‘groups’ future people belong to (Page, 1999, p. 65f). It is a point of contention which groups should be considered as relevant. But in case the ‘groups’ we consider are equivalent to ‘a people’ – entire generations – the problems can be mitigated to some extent. There is but one possible generation for each future moment (though the individual members of each generation certainly represent innumerable possibilities). The identity of future generations, understood as distinct people, is, therefore, not contingent on the actions of their predecessors. Of course, the existence of future humanity may be at stake, leaving the question as to whether non-existence is contrary to the interests of future people in the air

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(Solum, 2001, p. 206). But since most policies are unlikely to affect the existence of the future generation, the contractualist device can readily be employed for the purpose of exploring the justifiability of most of what the living generations’ government should be doing. The contractualist challenge, then, is to identify policies that are justified, not in terms of the interests of particular future individuals but in terms of the interests that any future generation would have. So, can a generation have interests? Granted that ‘a generation’ can be conceived as being on a par with ‘a people’, the question might as well be whether a people can have interests. An affirmative answer is not difficult to find. It can be found in Rawls’ Law of peoples (1999) where the idea of justice between peoples separated by international rather than inter-temporal borders is explored from a contractualist perspective. Rawls portrays international justice as the contract that representatives of all peoples would establish in view of their basic interests in security, integrity and self-respect (Rawls, 1999, §3). The subject matter of justice at the global level is the interests of peoples, not of their individual members, which is why the particular identities of individuals is not at stake (cf. Pogge, 2006, p. 211). An analogous argument can be constructed in relation to the idea of inter-generational justice. The principles of justice between generations are those that constitute a reasonable object of agreement among their representatives. Just like peoples separated by political borders, peoples separated by temporal borders could reasonably insist that their basic interests be protected or at least be considered by other peoples. Curiously, this is not exactly the way Rawls characterises the inter-generational problem of justice. Although Rawls addresses ‘generations’, the major focus is really on their individual members. What is reasonable from an inter-generational perspective is judged by Rawls from the point of view of individual ‘members’ of each generation. Rawls declares that the basic question is what would be ‘reasonable for members of adjacent generations to expect from one another’ (Rawls, 1971, p. 289). Furthermore, the avowed purpose is to demonstrate that obligations of justice apply between ‘persons in different generations’ (Rawls, 1971, p. 293). A more consistent account of justice between people in different temporal locations would present the issue in terms of what generations could reasonably expect from one another and not from the vantage point of their individual members. The standard for evaluating policies and institutions from an inter-generational perspective should be their reasonableness in terms of the interests of future generations.

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Let us, for now, leave the further problems of Rawls’ view aside and instead ponder the potential for justifying the political representation of generations from a contractualist point of view. In fact, a common argument is that principles of inter-generational justice provide support for the political representation of future generations. A right to a say for the future is believed to be justified in view of the devastating impact of current economic policies on the future conditions for life on earth. Though future generations cannot represent themselves, ‘proxies’ for future peoples can participate in the democratic process (Dobson, 1996, p. 132; Ekeli, 2005). However, in order to claim that political representation of unborn generations is morally necessary, it is not enough to point out that the living may cause significant harm to future people. From a contractualist perspective, the essential question is whether the proposal is one that can be accepted as reasonable in view of the interests of all affected generations – of the living as well as of unborn generations. In order to answer this question, we need to explore whether each generation could reasonably be expected to surrender a measure of influence over their own decisions to coming generations in exchange for the same amount of influence over the decisions of previous generations. The representatives of each generation are to envisage themselves as having been represented in the past, already enjoying the benefits, and granting future generations the same benefit of representation (Gosseries, 2008b, p. 34). The idea of inter-generational democracy is the idea of an unbroken chain of generational representation. The scheme may seem vulnerable to the objection that reciprocal relations are not really possible between parties that are never contemporaneous (the living could always reap the benefits and refuse to pass them on). Yet, the objection is not really appropriate, since the obligation to represent future generations is not created by the benefits received from previous generations. It is not from a duty to reciprocate that the norms of representing future people are derived. Rather, they are justified, if at all, by the reasonableness of an inter-generational contract according to which institutions should be created that protect each generation’s vital interests. The essential question is, of course, if it is reasonable to expect the representatives of all generations to accept such obligations. The reasonableness of the proposal comes down to the advantages created by the chain of representation as compared to available alternatives. The idea of representation is typically introduced for the purpose of counteracting the bias each generation displays towards the interests of the living. A voice for posterity in the legislative process creates

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incentives for political actors to justify their policies in terms that would presumably be acceptable to their successors (Gutmann and Thompson, 1996, p. 162). As a result, the policies adopted are more likely to meet the needs of tomorrow’s people. An objection, though, is that the argument ultimately seems redundant. In order for the living to introduce institutions that represent the future, they must first acknowledge the legitimacy of future people’s interests. But once these have been acknowledged, there is no real need for institutions representing future generations, as the living would be motivated to act on the basis of the interests of future people anyway. In contrast, generations particularly in need of institutions that can mitigate the bias towards themselves are the ones least likely to ever accept them. This particular objection misses the point, however. The principles of inter-generational justice are ones that could reasonably be accepted on the basis of a motivation to act in ways that could be justified to each generation. It is one thing to identify the principles that could not reasonably be rejected for the regulation of inter-generational relations. A distinct issue is the extent to which these principles would, in fact, be adhered to by each generation. To be able to say that a generation is violating its obligations towards the future, it is first necessary to identify the contents of inter-generational justice. A more serious objection is that the contractualist justification is in the end inconclusive. Though the contractualist argument may establish that the living have specific moral obligations towards posterity, it scarcely has the capacity to confirm the exact nature of the institutions called for. In fact, the growing literature on inter-generational justice is replete with proposals for institutional reform that are frequently justified by what is essentially the same concern for the basic interests of future people. For example, a popular idea is that the living should amend their constitutions and introduce legal protections for future generations (Gosseries, 2008b, p. 36; Ekeli, 2007, p. 391; Wood, 2004, p. 412; Johnson, 2007, p. 78; Van Parijs, 1998, p. 320). In view of the rival suggestions flowing from contractualist reasoning, it can be suspected that none of them is necessarily required. The obligation justified by contractualism is that each generation seriously consider the interests of posterity, not that they are considered by means of political representation. The inconclusiveness of contractualism in this regard may seem paradoxical, given the expectation that only reasonable criteria for participation in the democratic process should be tolerated. The rules for democratic inclusion should either be reasonable or unreasonable,

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from the point of view of all affected interests. The point, though, is that the problem facing us here is not essentially one of discrimination in the distribution of equal rights among the members of the people. Future people are not members of the democratic people of the living. Their exclusion from the democratic process does not, therefore, amount to arbitrary exclusion. Rather, the problem of intergenerational justice is about protecting certain basic interests from harm. These interests may be protected by reforming the institutions of political representation. They may also be protected in other ways. The aim is not to secure reasonable criteria for the distribution of participatory rights but to identify the actions required for the protection of basic interests. What matters is that the living generation adopt some method to improve the responsiveness of political institutions to future people’s needs and interests. The political representation of future generations is one of a number of reforms that the living should consider. Yet, it remains for the future to decide whether participatory rights, constitutional protections or some other institutional innovation is necessary in accordance with the principles of intergenerational justice.

Conclusions The criteria of democratic inclusion do not mandate the political representation of future generations. Rather than a more inclusive democratic people, the representation of future generations would result in an over-inclusive demos. That is to say, a political system representing future generations would be less democratic than a political system including only the living generation. The crucial premise of this argument is that future generations are separate people, more akin to nonresident non-citizens. Just as the members of distinct communities are not subject to the rules adopted by the other, living and future peoples inhabit distinct political universes. Of course, just as political representation of non-resident non- citizens should be contemplated for reasons of justice, it is conceivable that the interests of future generations should be formally represented by the living, if genuine moral reasons can be identified. According to many, the principles of inter-generational justice demonstrate that the living generation is currently not doing enough to avoid harming the fundamental interests of future people. Reforming institutions of democracy with posterity’s interests in mind may, consequently, seem to be an appropriate response. It is a response, however, that is not self-evident from the

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point of view of contractualism. The obligations of the living generation towards the future can be discharged through a variety of actions, and it remains far from certain that a system of inter-generational representation is the most effective. In contrast to the other cases of democratic exclusion investigated in this study, the verdict in relation to future generations is, thus, indecisive.

8 Conclusion: Reasonable Inclusion and Exclusion

A common presumption is that the journey towards inclusion that took off more than a century ago has reached its final destination in contemporary democratic societies. In our times, suffrage based on universal and equal access to the vote is firmly realised and exclusions based on class, sex, race and ethnicity are now resolutely rejected in the democratic world. However, the right to vote is not afforded to everyone, not even in this day. As we know, democracies continuously enforce restrictions on the vote for young people, non-citizens, prisoners, people with cognitive impairments and, of course, the not yet born. The question dealt with in this study is to what extent the persistent exclusion of these people indicates that the journey towards democratic inclusion has some way left to go – whether the promise of inclusion is yet to be fulfilled. It is now time to summarise the findings of the present attempt to answer this question. But before this can be done we need to be reminded about the theoretical challenge raised by the project. The exploration of suffrage restrictions represents an inquiry into the conceptual universe of the democratic idea as well as of the moral reasons supporting it. The task is that of identifying the standpoint from which the frontiers of democracy ought to be evaluated. What does a fully inclusive democracy mean, and what restrictions on suffrage are reasonable? Though these are questions as old as the idea of democracy itself, precise answers are hard to find. Part of the explanation for this may be the lack of attention to the problem of inclusion, following from the misperception that this is solely a problem of the past. Another part of the explanation may be the pessimism nurtured by scholars that have attended to it. Typically, the problem of identifying the democratic people and the extension of participatory rights among its members is characterised as ‘paradoxical’ 188

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and one that is ‘never [to] be fully resolved’ (Benhabib, 2004, p. 47). The tone struck in the present study is more optimistic and the ambition is to develop a framework that permits comprehensive analysis of the problem of democratic exclusion. It is animated by the conviction that legal restrictions on suffrage can and should be held accountable by standards of democracy and justice, since it is ultimately by appeal to these ideals that the enforcement of the rules are legitimised.

The idea of democratic inclusion A major ambition of this study has been to develop a standard, or more appropriately a ‘framework’, that allows for the consistent evaluation of suffrage institutions. This has been a largely theoretical task, no doubt, and one that necessarily precedes any confrontation with the reasons for and against rules restricting the vote in contemporary democracies. In this study the standard for evaluating suffrage is constituted by a conception of the democratic people and an understanding of the basis for legitimate distinctions between society’s members in the enjoyment of fundamental political rights. Let us therefore briefly rehearse the main contours of the standard employed here. As argued in the introductory chapter, the idea of justified rules for democratic participation pays homage to two influential ideas in the democratic tradition. The first is that in a democracy, the people as a whole are entitled to participate in the process of making collectively binding decisions. The second is that the system of rules enforced by the state should not discriminate unfairly between people in the distribution of resources or legal entitlements. A political system satisfying both precepts would be one in which all members of the people are granted participatory rights and in which there are only reasonably acceptable exclusions. A virtue of this formula is that it allows for a distinction between the most ‘democratic’ and the most ‘reasonable’ extension of political rights. It is a virtue in the sense of recognising a potential source of tension between these criteria. Moreover, this approach preserves the distinction between describing the inclusiveness of a political system and evaluating it in normative terms. A specific distribution of the vote in a society is more inclusive the more it resembles a perfect symmetry between rulers and ruled. The most ‘democratic’ distribution of the vote is one where all legal subjects are entitled to participate in the political process and where everyone endowed with that right is a legal subject. This is the legal conception of the all affected principles. The principles capture a conceptual

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stipulation about the meaning of democratic inclusion, based partly on methodological considerations about the appropriateness of alternative conceptualisations of membership in the democratic community. The inferences made on the basis of this principle are primarily descriptive. The all affected principle provides a benchmark for the inclusiveness of suffrage, it does not provide a metric for evaluating its reasonableness. Of course, there are generally normative reasons speaking in favour of inclusion and against exclusion of any member of the democratic people. But these reasons need to be spelt out as there are likely to be cases in which controversy abounds. The idea of qualifications for the vote is just as old as the idea of legal provisions for national elections. Arguably, the most influential criteria for participation in the political process are related to belonging, competency and independence. A voter should belong to the community, be competent in political affairs, and be able to form independent opinions. The idea of belonging is, in fact, captured by the very idea of a democratic people. A person qualifies as a member of the people to the extent that he or she is a subject to the legal powers exercised by the state. However, the weight accorded to considerations of belonging, competency and independence must be decided by normative evaluation. The standard employed in this study is broadly contractualist in that actions are considered to be acceptable if they are justified by reasons all people concerned could reasonably accept. Equal concern for all requires that policies and institutions are motivated by reasons that could, at least in principle, be accepted by all. And in most cases, the individual members of the people could not reasonably accept anything less than equal political rights. Restrictions on the suffrage are acceptable only on the assumption that they are supported by reasons that even the people excluded could reasonable accept. To the extent that such reasons can be found, there would, thus, be a basis for ‘justified exclusions’ from the vote. The main focus here is clearly on the people excluded from the vote and the extent to which this is justifiable. Nevertheless, it is unavoidable that the status of existing inclusions is also at stake in this context. In particular, there is one aspect of current regulations on suffrage that appears problematic and a potential case of ‘unjustified inclusion’. This is the case of non-resident citizens or, as they are commonly termed, ‘expatriates’. Although not all democratic political systems grant expatriates the right to vote, there is currently a trend towards expanding suffrage to include all citizens irrespective of their country of residence. The explicit motivation for these measures is the conception

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that formal citizenship is the basic criterion for membership in the democratic people and that place of residence should be immaterial to the enjoyment of political rights. However, this view is rejected in Chapter 3. The idea of a democratic people does not appear compatible with current norms about the importance of formal citizenship in contemporary democracies. From the standpoint adopted here, a democratic people is equivalent to a legal community, limited by territorial jurisdiction. Democratic membership is, hence, to be decided on with reference to residence rather than citizenship. The very same idea invariably has implications for prevailing exclusions of resident non-citizens. Guest-workers, refugees, asylum seekers or just immigrants, are virtually everywhere denied the right to participate in national elections. The exclusion of resident non-citizens from full participatory rights is in effect turning these people into mere subjects of collectively binding decisions. They are forced to comply with legal precepts and policies but offered no corresponding right to influence the content of the public order in return. Given the view that a democratic distribution of suffrage should include all legal subjects, it has to be concluded that the exclusion of resident noncitizens reduces the degree to which contemporary democratic systems are democratic. On the basis of the conception of the democratic people accepted here, it is equally clear that prisoners, children and people with cognitive impairments should be conceived of as members. Suffrage regulations that deny individual members of these groups access to the vote should be understood as making the political system less democratic than it otherwise would be. A political system in which people are granted the right to participate in national elections irrespective of age, criminal or mental status is more democratic, since it increases the symmetry between ‘rulers’ and ‘ruled’. The approximation of the democratic idea is greater the fewer the members of the community are consigned to the status of mere subjects. A further implication of this idea is that non-members should not be granted participatory rights. The creation of an over-inclusive demos grants some people the status of ‘rulers’ that accept no obligation to be ‘ruled’ in return. For example, as argued in Chapter 7, future generations should be understood as non-members in this specific sense. Institutions representing the interests of future generations receive no support from the legal conception of the all affected principle. Guided by the idea of a democratic people alone, a political system that realises the ‘perfect demos’ would include all members and exclude all non-members.

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The idea of reasonable inclusion The way suffrage ought to be distributed cannot be decided until the reasons for and against the exclusion of particular groups have been considered in detail. There may potentially be reasons that some members of the democratic community should not be entitled to vote. As we know, when it comes to children, the dominant conception is that exclusion is justified by reference to the child’s lack of political competence. Furthermore, there may be reasons that certain non-members should be granted participatory rights, even though they are not affected in the relevant sense. This possibility is illustrated by the prevalence of rules granting non-resident citizens the right to vote in national elections back home. However, the extent to which ‘good’ reasons exist for departing from the idea of a ‘perfect demos’ can be known only by exploring what could reasonably be accepted from the perspective of all affected parties. Consider, for a start, the reasons for restricting the opportunity for prisoners to participate in the electoral process. A variety of reasons have been presented by law-makers, judges and scholars with the intent of supporting the disenfranchisement of prisoners. For example, it is commonly believed that disenfranchisement is a ‘natural’ consequence of a conviction for electoral fraud and other offences associated with contempt for democratic values. Yet, on closer scrutiny, it is rarely the case that disenfranchisement is either an effective or a necessary means for the protection of democratic values. If combating electoral fraud is a justified government aim, the measures adopted should be effective and, indeed, even necessary for its achievement. However, there is no evidence to support the contention that depriving a person of the right to vote prevents that person from disrupting democratic elections. Whereas prisons may protect the general public from criminal behaviour, rules of felon disenfranchisement hardly protect democracies from electoral fraud. A parallel lack of linkage between the ends pursued and the means adopted can be identified in relation to the legal disenfranchisement of people with cognitive impairments. While it may be desirable that a voter is able to make independent political judgements and true that this is frequently not possible for cognitively impaired people, it does not follow that excluding them is thereby justified. A variety of administrative improvements are available that could significantly increase the independence of dependent voters. Moreover, to the extent that the votes cast by cognitively impaired persons are subject to abuse, the

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appropriate response should involve sanctions against the abuser, not against the abused. A different conclusion is reached in the case of children. The argument presented in Chapter 4 is that the exclusion of children from suffrage may in the end be reasonable. In order to appreciate the rationale for this conclusion, it is essential to elaborate more fully the basis for evaluating exclusions from suffrage in terms of reasonableness. Following contractualist assumptions, a reason for action is acceptable if it can be expected to meet with the approval of any reasonable person affected by it. Though some of the complexities associated with this formula are discussed in the last section of Chapter 2, its most significant implication deserves repeating. This is the idea that the interests of the very people excluded from equal rights should be consulted in order to establish the reasonableness of the practice. Or, even more strictly, restrictions in the enjoyment of basic rights are acceptable only if supported by reasons that not even those excluded could reasonably reject. While most discriminatory practices fail to satisfy these requirements, they are compatible with the exclusion of particular groups if arguments exist that could reasonably be accepted by them. In principle, this may be the case in two distinct situations. First, a reasonable person could realise that exclusion is advantageous in terms of his or her basic interests. These are what may be termed ‘reasonable exclusions’. Second, a reasonable person could recognise that inclusion is associated with significant costs for the general public. In that case, it would be unreasonable for the person to expect others to include him or her. At this stage we have what can be called ‘unreasonable inclusions’. Thus, restricted suffrage is justified if it represents either a reasonable exclusion or an unreasonable inclusion. On either account, a condition for the justifiability of exclusion is that it seriously considers the interests of the people denied the vote. That is, restrictions of suffrage are reasonable either if they are in the best interest of the excluded people or if eliminating them creates significant burdens for others that cannot reasonably be ignored. Both versions of justified exclusion are represented in this study. Reasonable exclusion is perhaps best illustrated by the case for denying children the right to participate in the democratic process. In Chapter 4, I argue that there are reasons in terms of children’s own interests that speak against their full recognition as political subjects. The best to be said in favour of the current exclusion of children from the vote is that it protects the child’s interest in a childhood characterised

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by a minimum of real responsibilities. To the extent this is correct, age related restrictions seem to be ‘reasonable exclusions’ from the point of view of the actual people excluded. By contrast, it is argued that we should not accept the more familiar argument that children should be excluded in order to protect the interests of other members of society. It is not by appeal to the interests of the adult population, but out of concern for children’s interests that the rights of children should primarily be decided. Unreasonable inclusion is exemplified by the case of non-resident citizens. Presumably, it is in the interests of people that are either temporary or permanent residents abroad to participate in elections arranged back home. Exclusion from the vote may not appear reasonable from their personal points of view. Yet, from the residents’ point of view the political participation of non-residents is certainly less attractive. Voting rights for non-residents grants them the power to influence the laws under which residents are to live but offer no corresponding power for residents in return. A system of that kind could reasonably be rejected since it would be reasonable to reject a rule that turns you into a mere subject (unless it is associated with significant benefits to all parties, as in the case of children). Even though non-residents may have an interest in participating in elections at home, they should recognise that it would be unreasonable to expect residents to acknowledge such a right on their part. This is why non-resident citizens represent, a case for which inclusion would be unreasonable. There may, nevertheless, be exceptions to this rule. As noted in Chapter 3, non-resident citizens emigrate for a variety of reasons, some of them directly related to moments of unrest or hardship in their country of origin. When an attempt is made to achieve a new and more prosperous beginning in such a country and democratic elections are part of these endeavours, it may seem important not to deny refugees living abroad the chance to participate in the process of reconciliation. The interests served by the creation of a demos that is technically over-inclusive may in these special circumstances prove more significant than anything else. Suffrage that includes involuntary nonresident citizens may, therefore, seem to be reasonable in post-conflict societies. Less clear is the case of future generations. As argued in Chapter 7, future people are not to be conceived of as members of our democratic community. Future peoples are legal subjects to none but themselves. At the same time, there is reason to seriously contemplate the future effects of the decisions made by governments today. The political

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representation of future generations should be considered, though it is not clear that inclusion of the future is the only reasonable alternative available. The exclusion of future people is, in other words, not unreasonable, although the best solution may be to actually grant representation to the interests of future mankind in order to secure intergenerational justice. The general results achieved by combining the all affected principle and the standard of reasonableness are displayed in Table 8.1. The idea of rule by the people has inspired comprehensive reform of political institutions around the world in the past centuries. The political world has changed from one dominated by systems granting privileged classes exclusive access to political power to a world in which a majority of existing political systems recognise the equal right of each member of society to partake in public decisions. By the year 1900 only a handful of political systems were ‘democratic’, based on a generous definition of the term. In the first decade of the twenty-first century, there were 85 democratic countries based on the same standards (Dahl, 2006, p. 24).1 Despite the enormous progress of democracy, as indicated by these tables, innumerable obstacles remain for the realisation of its basic idea. Pervasive social and economic inequalities continue to distort the political opportunities available to individuals around the world. Violence, poverty, illiteracy and corruption represent just a few of the most acute problems that effectively hamper effective opportunities for political participation. Eradicating the barriers to genuine popular rule represents a tremendous challenge for democrats in our times. But at least some of the stumbling blocks for democracy could easily be remedied by the people with the powers of law-making in their hands. In particular, the barriers created by the legal rules regulating the political process itself should be amenable to reform. Thus, the rules defining the criteria for participation in the political process ought to be remedied as to make the democratic people more inclusive and the political system more justifiable to all the people affected by it. Though Table 8.1 Summary of justified inclusion/exclusions Members

Non-members

Justified inclusion

Cognitively impaired Prisoners Resident non-citizens

Future people Involuntary nonresident citizens

Justified exclusion

Children

Non-resident citizens

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the groups currently excluded are small, and though the importance of extending the franchise may be marginal in terms of electoral outcomes, it would nonetheless represent an important step in honouring the ideals of democracy and non-discrimination by which our political systems are justified. Most of all, it is an essential requirement for the purpose of fulfilling the promise of inclusion that once started off the journey of democracy.

Notes

1 Introduction: Universal Suffrage on Trial 1. The adage ‘right of right’ traces back to Kant and was later re-introduced by Hanna Arendt (Benhabib, 2004, chap. 2: Waldron, 1998). 2. Throughout the book I will refer to ‘the right to vote’, ‘suffrage’ and ‘franchise’ interchangeably, in line with conventional usage in the literature. However, this is not to deny the distinct etymology and history of these terms. As noted by Keyssar (2000, p. 9), ‘franchise’ in medieval times referred to any legal privilege granted by the state. The term ‘suffrage’ travelled from Latin into the language of the Catholic church and took on the meaning of having the privilege of being prayed for and, eventually, that privilege of raising one’s voice in serious matters. Its first use in the meaning of the political vote is found in the American Constitution of 1787. 3. The story of the struggle against racial and sexist prejudices in relation to suffrage is aptly recounted in Grofman, Handley and Niemi (1992) and DuBois (1998) respectively. 4. There is some support for reserving the term ‘borders’ (or ‘boundaries’) for the legally recognised demarcations of sovereign political systems, and to use ‘frontiers’ as to denote informal distinctions between entities of various kinds (Kratochwil, 1986, p. 36; cf. Benhabib, 2004, p. 45). The relationship between territorial boundaries (jurisdictions) and the frontiers of democracy (the right to vote) is examined in Chapter 3. 5. ‘Electoral democracy’ is the label made popular by the widely cited Freedom House world wide survey of political regimes published annually since 1972 (Freedom House, 2008). Countries that do not qualify as electoral democracies are characterised as either ‘partly free’ or ‘unfree’. The status designated each country follow an index composed by scores for respect of political rights and civil liberties in up to 16 steps for each of the seven sub-categories measuring these rights. There are a great number of alternative measures of democracy and some of them are discussed in Chapter 2. The methodological benefits and deficiencies of predominant indices of democracy are of course subject to scholarly debate (Hadenius and Teorell, 2005). 6. In Saudi Arabia there were no rules for general elections at all until the year 2000. Since then local elections have been arranged in which male citizens were exclusively allowed to participate. A further example is Bhutan where no individual voting rights existed before the first general elections in December 2007.

2

Democracy and Inclusion

1. The difficulty involved in speaking about democracy and not defining its meaning is illustrated by an example from Beitz’ study. Beitz argues that 197

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3. 4.

5. 6. 7.

8.

9.

10.

Notes definitions of democracy should be avoided ‘altogether’ while in the same breath asserting that the ‘generic idea of democracy is indeterminate’ about the institutions required in a democratic society (Beitz, 1989, p. 17). Now, the assertion that the ‘generic idea of democracy’ is ‘indeterminate’ in these regards is to ascribe a specific property to the concept of democracy. Beitz may wish to avoid defining democracy, but the argument pursued by him in effect reveals a ‘determinate’ understanding of its meaning. It is not part of the present study to investigate whether democracy is best understood as a dichotomous or graded concept. Yet, as should be clear from the reasoning in the text I certainly find a ‘graded’ terminology more congenial (see Bollen and Jackman, 1989). A more extended and somewhat different version of the argument made is found in Beckman (2008d). Elsewhere, Przeworski explains that a minimalist conception of democracy ‘merits being positively valued’ because competitive political systems allow citizens to use ‘the right to vote’ to settle social conflicts peacefully (Przeworski, 1999, p. 47). This is of course a normative rather than a methodological reason for the definition and it is therefore doubtful that it serves to justify the minimalist route in the context of empirical research. In addition, it is somewhat ironic that the right to vote is portrayed as the main virtue of a definition of democracy that does not even require universal suffrage. See also Hadenius and Teorell (2004, pp. 9, 36) for a more recent application of the conventionalist operationalisation of democratic inclusion. In later writings, Dahl (2006, p. 9) has abolished restrictions for the ‘mentally defective’ among the criteria for democratic inclusion. The symmetric relationship between rulers and ruled is also fundamental to Rousseau’s project of identifying the nature of a political system where each individual ‘may still obey himself alone, and remain as free as before’ (Rousseau, 1968, I:6). To this idea we will return later in the book, particularly in Chapter 3. Another common argument in favour of minimalist definitions is that it allows us to bracket controversial ideological issues that might otherwise poison the concept of democracy (Bernhagen, 2009, p. 26). It is doubtful though that the definition of a term should explicitly seek to avoid ideological conflict or, indeed, that people of conflicting ideological persuasion would be more attracted by such an approach. As pointed out by Luhmann (1996, p. 883), the all affected principle has its roots in Roman Law and the rule ‘Quod omnes tangit, omnibus tractari et approbari debet’ (all those affected should be heard and agree). Another version of the ‘all affected principle’ figures in the form of the ‘person affecting restriction’ according to which what is good or bad for people should be explained by reference to how they are affected by our actions (cf. Parfit, 2006, p. 315). Clearly, the person affecting restriction does not entail the causal conception of the all affected principle; it does not follow that a person should be granted a right to a say just because he or she has been affected by an action in a morally significant way by the government. What follows from the person affecting restriction is just that the action is either right or wrong.

Notes 199 11. An additional point is that because contractualism holds that the rightness or wrongness of an action is determined by the extent to which the reasons for it could reasonably be accepted, it does not allow us to accept (or reject) an action on the basis of the belief that the action is ‘just right’ (or ‘just wrong’). It is the potential for agreement that determines the rightness of an action and not the rightness of an action that determines whether it should be agreed to (Estlund, 2003, p. 403; Kumar, 2003, p. 11; cf. Kamm, 2002, p. 331).

3 Alienated From the Vote: The Case of Non-Citizens 1. For purposes of clarity I henceforth use the term ‘resident non-citizens’ although in the literature other terms are current such as ‘resident aliens’, ‘legal permanent residents’, ‘legal resident aliens’, ‘non-citizens’, ‘aliens’ or simply ‘immigrants’ (Brozovich 2001, n.1). 2. For example, there are 1.2 million resident non-citizens in Kuwait out of a total population of 2.3 million (CIA, The World Fact book, July 2005 est.). Although Kuwait scarcely qualifies as an electoral democracy it illustrates that the political rights of resident non-citizens is likely to become more acute as the process of democratisation continues. 3. The distinction between citizenship and suffrage rights is epitomised by the classical phrase ‘cives sine suffragio’ found in the laws of Rome (Pocock, 1995, p. 35; Heater, 1990, p. 55). 4. Although the convention was adopted by the UN General Assembly in 1990 it has been signed by less than 25 nations, as per June 2005, not including the US or any of the members of the EU. 5. The convention came into force in May 1997 but has to date been ratified only by Italy, Norway, the Netherlands and Sweden. 6. I have previously argued that the case for the inclusion of non-citizens follows on any particular interpretation of the all affected principle. See Beckman (2006). 7. There are also a few examples of overlapping territorial jurisdictions, illustrated by the status of foreign embassies and The Order of Malta (Caporaso, 2000, p. 7). Moreover, historically there is known to have existed ‘extraterritorial’ jurisdictions, created by the great powers of the colonial era and including ‘consular courts’ in foreign territories by which their nationals were uniquely held accountable (e.g. Britons in China were subjects of British law, not Chinese law). The practice was gradually abolished in first decades of the twentieth century (see Kayaoglu, 2007). 8. As indicated by the IDEA report, provisions for non-resident citizen voting vary widely. Some countries enfranchise only specific categories of nonresident citizens, such as military personnel and public officials on foreign missions (e.g. Ireland and India). Other restrictions include limitations on the time spent abroad and the type of elections (IDEA, 2007).

4 Too Young to Vote? Children’s Suffrage 1. Also, in recent years, the voting rights age has been lowered to 16 in the Swiss canton of Glarus (2007), in the Crown dependencies of Isle of Man

200 Notes

2.

3. 4. 5.

6.

(2006) and Jersey (2007) as well as for local elections in some German states (other countries lowering the voting rights age to 16 even earlier include Nicaragua, Brazil and Bosnia). In 2004 the UK Electoral Commission delivered a report seriously contemplating the lowering of the voting rights age, albeit finally rejecting the idea. On the other hand, the Japanese government has just begun taking steps to lower the voting rights age to 18. And in Kazakhstan (scarcely considered an electoral democracy) the voting rights age is 25. The minimum age for candidacy to political office regularly remains higher than the age of voting. Presidential systems generally impose higher age limits for candidacy than parliamentary systems, varying from 30 years (the US) up to 45 (Mongolia). Exceptions include Guyana and Slovenia where 18 is the requirement for presidential candidates. The minimum age for candidacy in parliamentary political systems is considerable lower, usually about 23 years, albeit still a few years higher than the age of voting. (See Massicotte, Blais and Yoshinaka, 2004, p. 42–52). The concept of children’s competence is explored, among others, by Alderson and Goodwin (1993). An earlier version of the argument presented in this section is found in Beckman (2008b). Additional examples of actions denied young people of various ages include, directing business; gambling; sterilisation; castration; drive any vehicle at land, sea or in the air; purchase certain medical equipment, tobacco, alcohol, pornographic material, and so on. A full exploration of age limits enforced by law is found in the investigation published by the Swedish government (SOU, 1996). The emphasis on play in child development goes back at least to Lev Vygotsky’s ‘psychology of play’ sketched out in the 1930s. Vygotsky’s theories are still inspiring empirical studies of children’s play and its importance for learning citizenry skills (e.g. Elbers, 1996).

5 Jailhouse Vote? Felon Disenfranchisement and Democratic Inclusion 1. In what follows the terms ‘felon’, ‘offender’ and ‘prisoner’ are used interchangeably unless otherwise stated. It should be noted though that a person held in custody is ‘imprisoned’ although he or she may not be convicted and consequently not an ‘offender’. Moreover, ‘felons’ are persons convicted for a felony, a more serious crime, as distinguished from ‘misdemeanours’ in the US legal system. 2. In the aftermath of the fall of communism many Eastern European countries adopted new constitutions that introduced felon disenfranchisement where none previously existed (Russia, Armenia, Hungary and Georgia) (Rottinghaus 2005). Among the 45 contracting members to the European Convention of Human Rights 18 imposes no restrictions on prisoners’ right to vote. Among the 27 states where restrictions exist 13 does not allow any prisoners to vote. 3. Another problem following felon disenfranchisement is that population counts, deciding the number of representatives in local, state and federal legislative assemblies in the US, include inmates in local prisons, even

Notes 201 though they are rarely allowed to vote. Thus, some counties gain a disproportionate level of influence because of the prisons located there. See Barry (2005, p. 102). 4. Note that this argument is analogous to the case discussed in Chapter 6 concerning the abuse of votes cast by people with cognitive impairments. 5. E.g. Nicaragua, Nigeria, Ukraine. Electoral offences also appear as disqualifying grounds for candidacy in public elections in for instance Cyprus (Const. article 40). 6. Prisoners of war can perhaps be counted as members of this category. However, prisoners of war are usually not citizens (except in civil wars) and would regularly be excluded from elections on that basis. Yet again, as argued in Chapter 3, it is hard to justify long-term exclusion from the vote by reference to lack of formal citizenship alone. In order to deny access to the franchise for prisoners of war for a longer period of time a justification would have to be similar to any valid argument for felon disenfranchisement – if such reasons exist.

6 Disability, Dependence and Democracy 1. The disabilities included by these vague descriptions are of course extremely varied and include mental retardation, emotional and mood disorders, neurotic and behavioural disorders. A systematic classification of mental and behavioural disorders is provided by the World Health Organization since 1994 (the ICD-10 standard). 2. Terminology is controversial in this context for historical reasons. I will mostly refer to ‘cognitive impairment’ which is reportedly becoming an increasingly accepted term without negative connotations (Editorial, 2005). 3. People detained or resident in hospitals could not vote in Britain before the coming into force of the Representation of the People’s Act in 2000. The formal reason was that a voting address was required in order to be introduced into the voting register and that hospitals were not allowed as voting addresses (Foster, 2002, p. 13). 4. In fact, it could be argued that some cognitive and mental conditions are not dissimilar to the traits associated with the ideal of personal autonomy. As noted by Barry the definition of personal autonomy neatly coincides with the symptoms of a person suffering from ‘identity problems’ according to the guidelines defined by the American Psychiatric Association (Barry, 2000, p. 357). 5. I am grateful to Magdalena Inkinen for pointing this out to me. 6. A first take on the issue discussed in this and the following sections is found in Beckman (2006).

7 The Vote of Unborn Generations 1. Unborn generations are not literally excluded from political participation as the property ‘being born’ is not a formal condition for voting. Yet, unborn generations are implicitly excluded by virtue of provisions such as the voting rights age, citizenship and residence requirements. Another and even more radical question is whether the suffrage is and should necessarily be limited

202 Notes to human beings. In fact, the property of being ‘human’ is not enumerated among the qualifications for the vote. Just as in the case of unborn generations it appears plausible that (non-human) animals are implicitly excluded by criteria reserving voting rights for ‘citizens’ or ‘residents’. Moreover, it is contentious that animals can be understood as legal subjects (Naffine, 2003). Though there are laws addressing animals, the law does not create legal obligations for animals while it regulates human interaction with animals (Cf. Stone, 1972). 2. As famously pointed out by David Hume, the doctrine endorsed by Locke sits uncomfortably with the idea of society as emanating out of an ‘original contract’. If the living cannot bind posterity, how could a contract established by our ancestors constitute the foundation of political society? The answer, in Locke’s analysis, is found in the fact that each people tacitly accepts their ancestor’s order by assuming the benefits of the wealth inherited from them (Holmes, 1995, p. 149). It should be noted though, that Locke thereby avoids the possibility of the past ever imposing its will on the living. Even tacit consent can be refused, however costly it may be. 3. A contrasting idea is that ‘the people’ is a trans-temporal entity, including the living, the dead and unborn generations as well. The idea is not uncommon in the history of political theory, as Stephen Holmes (1995, p. 145) reminds us, and is defended by contemporaries as well (e.g. O’Neill, 1993, p. 33). The implications of this view for the problem of democratic inclusion is not fully clear, however. Does the trans-temporal identity of the democratic people provide a reason in support of the political representation of unborn generations (as unborn generations would evidently be members of the people, albeit without a voice)? Or, does it render the case for representation unnecessary (as each member of the people, whether born or unborn, is enfranchised in due time)? 4. The thesis that popular sovereignty is an inalienable and transcendent right, is somewhat intriguing as it appears to imply that all peoples were in fact sovereign even in times when subject to monarchs, princes, and conquerors. An alternative understanding is therefore that the people’s sovereignty is legally inalienable in a system that recognises the people’s sovereignty but that it may not exist at all, legally, in a legal system built around no such recognition of ‘we the people’ (Green, 2005, p. 390). But then again, does the people retain sovereignty all the time, irrespective of political and social circumstances? This is of course not the time to enter speculations like these, but perhaps it could be said that the people always maintains the right to assert itself as a sovereign, and that if subjected by force the people retains this right even though it is legally suppressed.

8

Conclusion: Reasonable Inclusion and Exclusion

1. The number of democracies found in the world is of course partly a function of the stringency of the operational criteria employed. As noted in Chapter 1, the Freedom House survey, for which annual data exist since 1972, counts 113 electoral democracies by the year 2008. Some of the methodological issues raised by attempts to measure democracy are discussed in Chapter 2.

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Index Abizadeh, A., 80, 81 Ackerman, B., 67, 102, 103, 164, 178 Adcock, R., 29, 32 Afghanistan, 78 African Americans, 48, 122 aggregative democracy, 21 Agné, H., 43 Alderson, P., 108, 200 Alexy, R., 59, 113 all affected principle, 24, 36–52, 60–1, 66, 72, 82–3, 93–9, 119, 123–8, 143–4, 168, 170, 174, 180–1, 189, 195, 198 causal view of, 41–7, 61, 81, 124–5 incoherence of, 48–50 stakeholding and, 7, 38–41, 61 see also ruler/ruled duality Alston, P., 115 Altman, A., 122 Amar, A., 177–9 American Civil War, 48 animals, 169, 202 anti-democratic rhetoric, 6–8 Appelbaum, P., 149, 158 Applbaum, A. I., 111 Archard, D., 90, 91, 99, 103 Arendt, A., 197 Aristotle, 31 Armenia, 200 Armstrong, D. M., 45 Arnell, P., 73 Arrhenius, G., 43, 83 asylum, people seeking, 62, 80, 85, 87, 126, 127, 146, 191 August and another v. Electoral Commission and others, 121 Australia, 18, 98, 140 Austria, 18, 90 autonomy, 34, 105–6, 117–18, 151, 153–4, 156 Bader, V., 63 Baker, P., 35

balance of interests, 112–13 Ball, T., 175 Barry, B., 23, 101, 102, 103, 201 Bartelson, J., 15 Bauböck, R., 40, 94, 78 Beckman, L., 19, 198, 199, 200, 201 Beetham, D., 48 Beitz, C., 26, 56, 58, 84, 155, 197, 198 Bell, D., 162 belonging, 8, 12, 17, 19, 24, 53, 190 Bendix, R., 13, 152 Benhabib, S., 73, 189, 197 Bennett Scott, M., 130 Beran, H., 75, 83 Bergling-Åselius, E., 39, 135 Berman, P. S., 72 Bernhagen, P., 198 Bernstein, M., 104 Berofsky, B., 156 Besson, S., 74 Betram, C., 107 Bhutan, 197 Blais, A., 2, 14, 17, 18, 120, 146, 200 Bobbio, N., 30 Bojer, H., 105 Bollen, K. A., 17, 23, 198 borders, 14–15, 36, 49, 72, 80–1, 197 inter-temporal, 183 Bosnia-Herzegovina, 78 Brady, H., 5, 6 Brazil, 18 Brennan, G., 163 Brennan, S., 100, 109 Brettschneider, C., 54, 144 Briffault, R., 3, 50, 124 Brighouse, H., 159, 160 Britain, 14, 18, 63, 98, 121, 129, 162 Brock, D., 100 Brozowich, E., 67, 199 Brunei, 16 Brysk, A., 65 Buchanan, A., 100 221

222

Index

Bundesverfassungsgericht, 68 Butts, J. A., 98 Canada, 18, 146, 162, 163 Caplan, B., 110, 161 Caporaso, 199 Carens, J., 69, 70, 82 Carothers, T., 21 Catholic church, 197 causality, concept of, 43–5 Cavino, I., 146 Chan, T. W., 91, 110, 113 Cheneval, F., 58 childhood, 116 children, 8, 9, 17, 19, 31, 34, 55, 57, 90–119, 150, 169, 171, 173, 188, 193–5, 200 best interests of, 92, 104, 114–15 custody, of children, 95 see also voting rights age children’s future self, 103–6, 118 Cholbi, M. J., 142 Christiano, T., 40, 110 citizenship, 6, 11, 36, 62, 68–89, 94, 190–1, 201 ‘civil death’, 126 class, 8, 23, 36–7, 188 Clayton, M., 91, 110, 113 Clegg, R., 124, 137 Cleland, C. C., 164 Code on Good Practise in Electoral Affairs, 133 coercion, 80–1, 132 cognitive impairments, people with, 4, 8, 9, 17, 19, 28, 31, 34, 57, 146–66, 188, 192, 195, 201 Cohen, C., 37 Cohen, J., 22, 139 Collier, D., 26, 29, 32 colonialism, 75, 199 competence, 7–9, 12, 17, 91, 99, 100, 102, 107, 109, 147–51, 190 complexity, 42 compulsory voting, 140 concept formation, 25–6, 29–33 conceptual analysis, 9, 25–35 constitutional amendment, 174, 176–80 constitutional constraints, 174–81

Constitutional Court of South Africa, 121 constitutional courts, 59, 68, 121, 180 constitutions, 16, 27, 49, 53, 56, 63, 66, 74, 78, 87, 112, 174–81 of Alabama, 84 of Alaska, 135 authority of, 176 of Brazil, 151 of Canada, 122 of Germany, 177, 180 of Italy, 134 of Jamaica, 149 of United States, 65, 134, 175–9, 197 contractualism, 55–60, 103, 106–7, 181–6, 193 Convention on the Participation of Foreigners in Public Life at Local Level, 64 Coppedge, M., 2, 28 Corcoran, P. E., 6 corporations, 73 cosmopolitanism, 42, 44, 73 Council of Europe, 76 Crewe, I., 3, 17 criminal law, 56, 135, 137, 142, 165 Csikszentmihalyi, M., 116 Cyprus, 135, 201 Dahbour, O., 74 Dahl, R., 2, 6, 20, 28, 33, 34, 36, 38, 41, 42, 47, 67, 84, 91, 109, 112, 128, 136, 147, 155, 156, 159, 180, 195, 198 Darwall, S., 55, 106 Davidson, D., 44 Day, S., 65 death, 127–8 ruled by the dead, 171, 173, 175 definitions, normative v. descriptive, 34–5, 52, 54, 61 deliberative democracy, 22, 46, 139 Demleitner, N. V., 133 democracy, concept of, 5, 16, 23–35, 60–1, 90, 147, 159, 189, 198 conventionalist, 27–8, 30, 33, 35, 60 inter-generational, 184 maximalist, 28–32, 35–6, 61 minimalist, 5, 23, 26–7, 30, 32, 35, 37, 60, 198 non-democracies, 16, 71

Index 223 democracy, concept of – continued undemocratic, 23, 26, 31, 61, 67 values of, 54, 133–44, 192 democratic exclusions, 4–6, 9–10, 17–19, 22, 55, 57, 92, 120, 140, 187, 189 democratic theory, 20–2, 27, 54, 147 demos, see people Denmark, 80 Department of Constitutional Affairs, 130, 139 dependency, 8, 9, 147, 155–66 deportation, 127 Dhami, M. K., 127 dignity, 135–8, 143–4, 162, 177 disability, see cognitive impairments discrimination, 1, 90, 150, 189, 196 Dobson, A., 184 ‘doli incapax’, 97 Drachman, D. A., 155 Dryzek, J., 37, 46, 47 Duff, R. A., 116 Duit, A., 42 Dunn, J., 6, 24 Dunn v. Blumstein, 49 Dworkin, G., 103 Dworkin, R., 60, 112, 155 Earnest, D. C., 18, 63 East Timor, 18, 78 Eckersley, R., 36, 42 Ekeli, K. S., 184, 185 Elbers, E., 200 elections, 9, 20–2, 39, 79, 86, 116, 128, 131, 197 local, 64, 82 right to, 85 electoral campaigns, 124 ‘electoral democracy’, 4, 16, 197, 202 electoral fraud, 123, 128–34, 144, 158, 192 electoral law, 9, 39, 74, 83, 90, 146, 148, 151, 162–3 Elklit, J., 131 Elliot, R., 169 Elmendorf, C. S., 21 Elster, J., 108 Emiliou, N., 59, 131 Encyclopaedia Britannica, 2 Engerman, S. L., 38

England, see Britain entrenchment, 177–80 epistemic democracy, 139–42, 144 equality, 1, 12, 13, 16, 40, 48, 53–61, 138, 193 political, 14, 20, 53, 64, 86, 122, 142, 128–9, 155–66 of worth, 136–8 Eritrea, 78, 83 Estlund, D., 53, 122, 139, 140, 150, 199 ethnicity, 3, 8, 13, 20, 23, 37, 66, 68, 121, 188 Europe, 40, 62, 65 European Commission for Democracy through Law, 64, 121 European Convention on Human Rights, 63, 111, 121, 200 European Council, 120 European Court of Human Rights, 121, 130, 135, 139 European Parliament, 162 Ewald, A. C., 126, 129, 134 ex-felons, 123 expatriates, 17, 72, 76–80, 190, 192, 194, 199 experts, 109 external voting, see expatriates ‘extra votes’, 118–19 Farley, L. T., 84 Farson, R., 90, 99 Federation of Serbia, 49 Feinberg, J., 118 Fellner, M., 122, 124 felons, 4, 8, 9, 17, 19, 20, 31, 55–7, 120–45, 158, 188, 194, 192, 195, 200 see also ex-felons; prisoners of war Femia, J. V., 7 Finland, 14 Finn, J., 175 Fischer, J., 78, 83 Fitz, J., 98 Föllesdal, A., 22, 65 Ford, R. T., 72, 172 Fourteenth Amendment, 65, 134 France, 28, 73, 75 Fraser, N., 9, 24, 42, 148 freedom, concept of, 148, 153–4 Freedom House, 16, 197, 202

224 Index Freeman, C., 132 Freeman, M., 105, 116, 117, 118 Fund, J., 130 Fung, A., 54 future generations, 19, 36, 42, 167–87, 188, 191, 195, 201 see also tyranny, inter-generational future people, see future generations Gabreels, F., 149 Galaz, V., 42 generations, see future generations Georgia, 200 German Basic Law, 68, 177, 180 German Constitutional Court, 180 see also Bundesverfassungsgericht; German Basic Law Germany, 18, 28, 67, 68, 124, 129, 139, 150, 177, 180 Gerring, J., 29, 30 Ghana, 40 Gillen, J., 98 Gleditsch, K. S., 27 globalization, 44, 73 Golding, W., 114 Goldman, A., 116 Gonthier, Judge, 136 Goodin, R., 14, 20, 37, 42, 50, 51, 167, 169 Goodman, M., 108, 136 Goodwin, M., 200 Gore, A., 122 Gosseries, A., 169, 184, 185 Gould, C., 38 Grace, J., 78, 83 Graham, G., 83, 110, 170 Greece, 126 Green, M. S., 202 greenhouse gases, 167 Grofman, B., 197 guest workers, 71, 74, 191 Gurr, T., 27 Gutmann, A., 96, 159, 185 Guyana, 200 Habermas, J., 46, 47, 84 Hadenius, A., 27, 198 Hammar, T., 86 Hampton, J., 137, 138

Handley, L., 197 Harvey, A. E., 121 Heater, D., 199 Held, D., 31, 41, 42, 44, 73 Henderson, V. W., 155 High Court of Australia, 121 Hill, T. H., 153 Hinrichs, K., 90 Hirschman, A., 7 Hirst v. United Kingdom, 121, 130, 140 Hitler, A., 141 Hobbes, T., 56, 96, 174 Hobsbawm, E. J., 94 Holden, B., 169 Holmes, S., 175, 179, 202 Holt, R., 90, 94, 119 Hull, E. A., 136 human dignity, see dignity human rights, 63, 111 see also relevant legal documents and declarations humanity, 182 Hume, D., 202 Hungary, 200 Huntington, S., 31 H. v. The Netherlands, 136 Ignatieff, M., 111 illiteracy, 20, 159, 161, 195 inclusion, problem of, 10, 12, 14–15, 22, 38, 168, 188 independence, 7–9, 17, 19, 147–8, 155–66, 190 India, 40, 98 Inkinen, M., 201 integrity, 108 intellectual disability, see cognitive impairments intellectual property rights, 72 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 63 International Covenant on Civil and Political Rights (ICCPR), 2, 11, 12, 53, 63, 91, 121 International Institute for Democracy and Electoral Assistance (IDEA), 4, 76, 78, 199

Index 225 Iraq, 78 Ireland, 28, 146 Isle of Man, 199 Israel, 67 Israeli Occupied Territories of the West Bank, 75 Italy, 18, 146 Jackman, R., 198 Jacobson, D., 65 Jaggers, K., 27 Jamaica, 80 James, D. S., 20 Japan, 200 Jefferson, T., 175, 179 Jersey, 200 Jervis, R., 42 Johnson, G., 167, 169, 202 Jones, P., 130, 136 jurisdiction, 49, 50, 72–4, 80, 82, 85, 95, 127, 191, 199 justice, 5, 10, 76, 79, 102, 104, 107, 135, 138–42, 145, 183, 195 criminal, 56, 99, 125 and democracy, 15, 24, 33, 52–3, 79, 186, 189 electoral, 12 generational, 172, 184–6, 195 historical, 75 international, 183 political, 56, 100 rectificatory, 78 see also sense of justice justification, 5, 11, 24, 53–61, 91, 99–108, 136, 181, 190 of suffrage restrictions, 86–8, 110–14, 158 see also reasonableness juvenile courts, 97 Kamm, F. M., 199 Kant, I., 150, 153, 154, 197 Karlawish, J., 157, 162, 164 Karlsson, J., 46 Kassner, J., 16 Katrina, hurricane, 43, 45 Katz, E., 179, 180 Katz, R., 2, 8, 17, 18, 37, 39, 63, 65, 151 Kavka, G., 167

Kayaoglo, T., 199 Kazakhstan, 200 Kelsen, H., 47 Kemp, D., 164 Keyssar, A., 38, 39, 48, 63, 90, 93, 122, 134, 151, 197 Kim, H., 17 King, P., 96 Kirshner, A., 2, 16 Kittay, E. F., 160 Kleinig, J., 130 Knickerbocker, B., 62 Koesel, K., 35 Kommers, D., 180 Kosovo, 49 Kratochwil, F., 197 Kufeldt, K., 108 Kumar, R., 59, 199 Lamay, N., 19 Laor, N., 150 Latimer, S. B., 120 Law, 13, 47–50, 72–4, 81, 96–7, 119, 170 Lee, D. A., 17 legal person, 66, 73, 98, 148 legal system, 16, 47–8, 56, 82, 95, 97–8, 99, 119, 123, 125–7, 171–4, 176–7, 181, 200, 202 legality, 178–9 legitimacy, 15, 46, 80, 100, 102, 122, 189 Lehoucq, F., 131, 132 Leighly, J. E., 22 Lever, A., 141 Levin, M., 6, 7 Levitsky, S., 26 liberalism, 55, 113, 153 Lijphart, A., 21 Lincoln, A., 175 Lintott, A., 31 Lippke, R., 142 Locke, J., 56, 95–7, 153, 173, 202 Lopez-Guerra, C., 43, 47, 79 Ludbrook, R., 90 Luhmann, N., 198 Lundberg, E., 63 Macaulay, T., 7 Macdonald, T., 74 MacIntyre, A., 134, 148

226

Index

McKay, C., 162 Madison, J., 179 Maher, G., 97 Mahoney, J., 169 Maine, State of, 120 Mandela, N., 141 manipulation, 156, 158, 163, 166 Mansbridge, J., 136 Manza, J., 122 Marshall, Justice, 141 Massachusetts, State of, 120 Massicotte, L., 2, 14, 17, 18, 120, 146, 200 maturity, 91 Mauer, J., 122, 124 Mauretania, 78 May, J. D., 25 Mayer, R., 8 membership, 64, 66–71, 88, 190–1 mental disability, see cognitive impairments Metcalf, S., 158 Mexicans, 81–2 Meyer, L., 182 Michaels, R., 73, 82 Michelman, F. I., 39, 40 migration, 78–80, 84, 87–8, 191, 178 military service, 48, 93, 135–6, 151 Mill, J. S., 91, 93, 150, 152, 153, 161 Minow, M., 99, 114 Mitchell, O., 98 Mongolia, 200 Moore, W. H., 27 ‘moral authority to vote’, 123, 133–44 moral person, 100 moral turpitude, 134–5 morality, 15, 46, 97, 135 Moulier-Boutang, Y., 74 Munck, G., 4, 35 Murtagh, K., 130 Musharraf, Gen., 129 Naess, A., 24, 26 Naffine, N., 202 Nagel, T., 56 Näsström, S., 15 national self-determination, 86 see also popular sovereignty nation-state, 10, 40, 72–3 naturalization, 67

Nayyar, D., 62 the Netherlands, 135 Neuman, G., 68 New Caledonia, 75 New York, 39, 49 New Zeeland, 18, 63, 129 Nicaragua, 201 Niemi, R. G., 197 Nigeria, 201 nightwatcher state, 45 Noggle, R., 100, 109 non-citizens, 4, 8, 17, 31, 57, 62–89, 127, 186, 188, 194–5, 199 non-identity problem, 182 non-resident citizens, see expatriates Northern Ireland, 75 Norway, 18, 129, 144 Nozick, R., 56 Nunn, R. L., 121 Nussbaum, M., 117 Ochs, L. A., 18, 146, 149, 158 O’Donnell, T. A., 111 Olsson, S., 119 O’Neill, J., 167, 169, 202 Oppenheim, F., 31, 33, 34 Orr, G., 126, 140 ostracism, 126 Otsuka, M., 175 outlaws, 126 Page, E., 182 Paine, T., 172, 173 Pakistan, 129 parents authority of, 96 voting of, 118–19 Parfit, D., 116, 198 Parfitt, T., 132 Parry, G., 147 Pateman, C., 20 paternalism, 96, 103–4, 115 Pavey, B., 164 Paxton, P., 17, 28, 31 people, 2, 11–15, 17, 24, 36–53, 67, 168, 171, 174, 178, 180–1, 186, 189, 191, 202 see also all affected principle; future generations

Index 227 permanent vegetable state, 164–5 perpetuity, 175, 177, 179, 180 Peter, F., 159 Peterson, P. E., 119 Pettit, P., 163, 179 Phillips, D., 100 Phillips, K. J., 162 Plato, 91 play, 116–18, 200 Pocock, J. G. A., 199 Pogge, T., 58, 183 political influence, 155 polity index, 26, 27, 32 polyarchy, 28 Pope v. Williams, 67 popular sovereignty, 68, 72, 86, 173, 175, 177–9, 202 postal voting, 20 poverty, 20, 151, 159 Powers, W. A., 131 presentist view, 83 Presidential systems, 200 prisoners, see felons prisoners of war, 201 private sphere, 93 property, as criterion for right to vote, 6–8, 39, 77 proportional systems, 200 proportionality, principle of, 59–60, 121 prospectivist view, 83 proxy-decision making, 104, 184 Przeworski, A., 7, 8, 23, 27, 32, 112, 198 public good, 131, 141 publicity, 107 punishment, 56, 82, 126, 130, 132, 140, 161 see also criminal law Purdy, L., 114 ‘purity of the ballot’, 134, 158 Quinn, G., 162 race, see ethnicity rape, 142–3 Rathunde, K., 116 ‘rational basis standard’, 131 Rawls, J., 48, 53, 56, 87, 100, 101, 103, 104, 106, 107, 112, 114, 139, 150, 154, 159, 160, 172, 183

Raz, J., 48 reasonableness, concept of, 11–13, 53–61, 99–100, 123, 142, 154, 160, 181–96 distinctions, 14, 53, 55, 150 justification, 107, 119, 181 rejection, 55, 57–8, 100, 102–8, 115, 193 reciprocity, 184 referendum, 49, 75–6 refugees, 14, 78, 80, 191, 194 Reiman, J., 182 Reinicke, W., 2, 28 representation, 18–19, 39, 87, 167, 169, 174, 184, 169, 202 of future generations, 167–87 residency, 24, 69–71 resident non-citizens, see non-citizens responsibility children’s, 116–19 civic, 139 criminal, 97–8, 125 legal, 98 moral, 116 retrospectivist view, 83 Reynolds, A., 131 Richardson v. Ramirez, 121, 141 rights, 59, 60, 101, 109, 149, 179–80 Hofeldhian, 130–1 see also universal suffrage Ringen, S., 119 Roche, J., 93 Roeleveld, N., 149 Rokkan, S., 13, 152 Rome, 126 Rosanvallon, P., 26 Rosberg, G. M., 63 Rottinghaus, B., 18, 120, 200 Rousseau, J-J., 48, 56, 84, 147, 153, 165, 198 Rowe, G. S., 126 Rubio Marin, R., 37 ruler/ruled duality, 31, 47, 84, 181, 191, 198 Russia, 200 Rutherford, J., 90, 119 Saar plebiscite (1935), 84 Salter, J. T., 115

228 Index Sartori, G., 25, 28 Saudi Arabia, 16, 41, 197 Sauvé v. Canada, 121, 123, 136 Saward, M., 37 Scanlon, T., 57–9, 100 Scarre, G., 92 Schapiro, T., 116 Scheuerman, W. E., 43 Schields, T. G., 18, 146, 149, 158 Schlickeisen, R., 169 Schlozman, K., 5, 6 school system, 94–5 Schrag, F., 90, 100, 106, 125 Schriner, K., 18, 146, 149, 158 Schumpeter, J., 23, 67 Second World War, 48, 177 secret ballot, 157, 163 security, 86 sense of justice, 140, 145 sex, 3, 8, 20, 23, 37, 188 sexual conduct, 95, 114 Shafir, G., 65 Shapiro, I., 41 shareholders, 7, 38–9 Shaw, J., 65 Shoham, S., 19 Shook, J., 99 Slovenia, 200 Smith, R. M., 15 Smooha, S., 67 Smyth, C., 63 social contract, see contractualism Sokoloff, K. L., 38 Solum, L., 182, 183 SOU, Statens Offentliga Utredningar, 158 South Africa, 27, 98, 141 South America, 41 sovereignty, see popular sovereignty Soysal, Y. N., 65 Spain, 18 species, 36 see also animals Spiro, P., 77 stability, 88 state of nature, 95 Statute of Virginia for Religious Freedom, 179

Stauffenberg, C. V., 141 Stein, T., 167 Stern, N., 167 Still, J., 27, 155 Stone, C. D., 202 Sturgis, D., 157 Suber, P., 177, 179 Supreme Court of Canada, 121–2, 136 Sweden, 18, 20, 28, 39, 80, 82, 135, 146, 151, 158 Swift, A., 122 Switzerland, 26 Tännsjö, T., 38, 42, 156, 167 taxation, 38–9, 41, 48, 77, 95 Taylor, C., 1, 148 temporary residence, 81–8 Teorell, J., 197, 198 territoriality, 73 Thompson, D. F., 12, 20, 53, 80, 123, 159, 170, 174, 175, 177, 185 Ticchi, D., 93 Tilly, C., 29 tourists, 82, 85 treason, 133, 137, 141 Tribe, L., 134 Trumbull, L., 163 Turiel, E., 114 Twenty-Sixth Amendments, 90 tyranny, inter-generational, 172, 177 Uggen, C., 122 UK Electoral Commission, 200 Ukraine, 201 UN Human Rights Committee, 121 unborn, see future generations United Nations, 18, 78, 98, 114 United Nations, National Assembly, 199 United Nations Convention of the Rights of the Child, 114–15, 117 United Nations International Migration Report, 78 United Nations World Commission on Environment and Development, 18, 19, 167 United States, 18, 26, 41, 62, 73, 80, 81, 90, 93, 120–2, 134, 146, 158, 178, 200

Index 229 Universal Declaration of Human Rights, 2, 136 universal suffrage, 2–4, 6, 9, 13, 20, 27–8, 31, 37, 53, 93, 151, 159, 188 unreasonableness, see reasonableness Uruguay, 63 US Congress, 43, 44, 178 US Supreme Court, 39, 49, 67, 121, 141 Utah, State of, 120 Utzinger, A., 74 Uzbekistan, 18 vagueness, 29, 38, 149 Van Parijs, P., 185 Vanhanen, T., 2, 29 Varsanyi, M., 65 Verba, S., 4, 5, 6 Verkuilen, J., 4, 35 Vermont, State of, 120 Vickie Lee Roach v. Electoral Commission and Commonwealth of Australia, 121 Vietnam War, 93 Vindigni, A., 93 vote buying, 86 voting rights age, 90–1, 93, 194 Vreeland, J. R., 27 Vygotsky, L., 200 Waldron, J., 37, 101, 197 Wallace, R. J., 58 Walzer, M., 6, 68, 70

war, 44, 77–8, 87, 93, 178 see also prisoners of war; Second World War; Vietnam War Ward, C. V., 97 Ward, M. D., 27 Warren, V., 167 Washington v. State, 134 Weale, A., 14, 55, 74, 77, 91, 199 Weeden, L., 32 well-being, 40–1, 105, 112, 125, 136 West Samoa, 27 Whelan, F., 49, 50 White, S., 122 Wildhaber, L., 72 Wilson, J., 135 women, 14, 16, 20, 26, 37, 70, 151 Wood, P., 185 work, 95, 114 World Health Organization (WHO), 201 Yahoo, 73 Yoshinaka, B., 2, 14, 17, 18, 120, 146, 200 Young, I. M., 20, 37, 41 young people, see children Yugoslavia, Federal Republic of, 77 Yugoslavia, Socialist Federal Republic of, 78 Zakaria, F., 54 Zielhuis, G. A., 149