In Democratic Law, Seana Valentine Shiffrin argues that law, in its full and proper form, is essentially democratic. Shiffrin analyzes the relationship between law and democracy in intimate detail, and explores implications of that relationship for some familiar doctrinal problems in the U.S. context. The book is based on Shiffrin’s Tanner Lectures, which she gave at Berkeley in 2017, and includes an introduction by the editor of the volume, Hannah Ginsborg—which provides a beautiful orientation to the book—as well as lively and incisive commentaries from Niko Kolodny, Richard R.W. Brooks, and Anna Stilz, and a vigorous reply to them from Shiffrin.
In the first of two Parts, Shiffrin argues that each of us has a duty to recognize one another’s equal moral status and to express this recognition to one another. Her argument here builds on Rawls’s account of our fundamental moral equality as persons. For Shiffrin, we are both entitled and obligated to communicate our recognition of one another’s equality—not only discursively (since, as Brooks elaborates in his commentary, talk is cheap) but also through our commitments and actions.
We can’t possibly fulfill this communicative duty through individual interpersonal interactions, however, so we need some help. This is where law steps in. Part of the function of law, claims Shiffrin, is “to execute our collective moral duties through collective, communicative means.” (P. 19.) Because it is only through democratic processes that law can serve the moral purpose of collective communication that Shiffrin ascribes to it, “a full and proper legal system must be democratic.” (P. 19.) And this is how we get the integral relationship between law and democracy.
For Shiffrin, “democracy” is “a political system that treats all its members with equal concern, regards their lives as of equal importance, and treats all competent members of the community [as] the equal and exclusive co-authors of and co-contributors to the system.” (P. 20.) Shiffrin sidelines the familiar mechanisms that are typically emphasized in accounts of democracy—elections, referenda, and the legislative process—and instead focuses on the often-overlooked democratic aspects of other legal practices and institutions.
Particularly intriguing is her analysis of adjudication as democratic in deep and unique ways. As litigants and potential litigants, explains Shiffrin, “we each have participatory powers in the construction of law and the mode and direction of its implementation.” (P. 52.) And “[t]hose participatory powers allow the state’s expressive actions to be reasonably attributable to its citizens.” (Pp. 52-53.) In the process of adjudication, judges channel the joint commitments of the community, and through judicial opinions they communicate and solidify those commitments as binding law.
This potential that Shiffrin recognizes in litigation resonates with accounts of the adjudicative process that focus on the active participation of litigants, not only in the sense of presenting the best case for their position and thereby affecting the outcome of their dispute, but also and perhaps even more importantly in influencing the publicly articulated reasons supporting that outcome, which judges present in the form of judicial opinions.1
In the second Part of Democratic Law, Shiffrin explores some specific implications of her view for both common law and constitutional jurisprudence. Her examples “highlight the judiciary’s special role in a system of democratic law,” a role that Shiffrin insists “is neither secondary nor subordinate to the legislature’s.” (P. 63.)
I especially appreciated Shiffrin’s analysis of Northwest v. Ginsberg (2014), a case in which the Supreme Court determined that a federal statute (the Airline Deregulation Act) preempted the state common law doctrine of good faith in contracting. (P. 70.) Shiffrin faults the Court for failing to recognize a material difference between state statutory law and common law for the purposes of preemption. For Shiffrin, the common law is distinctively well situated to facilitate the development of democratic law. This is because the communication of joint moral commitments is an essential feature of democratic law, and state judicial decisions serve this communicative function by publicly articulating legal standards that derive from the community’s morality. Further, Shiffrin contends, one need not possess social or political power to affect the law through the adjudicative process; this form of lawmaking can thus help make up for democratic deficiencies in the legislative process. (P. 84.)
Further still, Shiffrin views the common law as more committed to, and capable of, trans-substantive coherence than statutory law, since rules and doctrines are interpreted according to underlying and topic-independent moral principles. In this way, says Shiffrin, “common law reasoning places greater pressure on courts to think comprehensively about how a concept’s interpretation will fit into the legal system as a whole,” and therefore has the potential “to generate greater trans-substantive unity than the more focused agenda enacted by statutes.” (P. 86.)
Ever since the Supreme Court issued its momentous decision in Erie Railroad Company v. Tompkins in 1938, the common law in the U.S. has been largely the purview of the states, which means that the common law’s democratic function is realized, to the extent it is, at the state level. This is fitting, says Shiffrin, because “[s]ome democratic legal aims are better realized when the community is . . . small enough to generate a distinctive camaraderie between citizens.” (P. 67.) On these grounds, Shiffrin suggests that state common law has a special claim to deference and protection, a claim that the Northwest Court failed to recognize. Shiffrin thus takes issue with the prevailing federal preemption jurisprudence, foreclosing as it does important “opportunities for developing distinctive communities that elicit strong affiliations.” (P. 67.)
These observations bring Shiffrin to a fascinating discussion of federal-state conflict of laws. Part of the purpose of the Erie doctrine is to protect state sovereignty by enabling states to develop their own distinctive bodies of common law. For Shiffrin, this level of control is important because state common law reflects and embodies “local social-moral culture” in a way that the alternatives—federal common law or a deregulated lawless zone (left for the market to sort out)—do not. (P. 68.) An expansive preemption jurisprudence accordingly restricts the scope and development of state case law and undermines our ability to jointly and publicly communicate our commitments through judicial decisions that contribute to our law.
As Shiffrin puts it, the preemption jurisprudence exemplified in the Northwest decision creates regrettable holes “in the moral fabric woven by the state common law.” (P. 87.) Here Shiffrin’s view echoes Ronald Dworkin’s account of law as integrity, but the former strikes me as novel in its insistence on the role of citizens as co-authors in the creation of their law (compared to Dworkin’s emphasis on the role of judges as co-authors). For both Shiffrin and Dworkin, then, adjudication is a constructive enterprise, aimed at justification and coherence. But, in foregrounding the agency and voice of citizens in the process, Shiffrin alone can rightfully claim the descriptor of democratic for her conception of law. (P. 19.)
Shiffrin’s case for a robust Erie doctrine is not motivated by familiar federalism concerns about protecting state rights and interests. But she does seem to take for granted that the state is the proper (or at least an appropriate) unit or level for distinct “local social-moral culture[s]” to emerge and coalesce. We might wonder about this. Indeed, Stilz aptly questions the importance of a state’s “distinctive local identity” in her commentary, focusing on Shiffrin’s analysis of constitutional balancing—which, like her treatment of common law and preemption, appeals to the value of unique local identity and culture at the state level. (P. 176.) I also wonder whether Shiffrin over-estimates the egalitarian potential of the litigation that produces the common law, since better off individuals are both more likely to access courts and more likely to win.
Shiffrin’s conception of law would seem to have interesting and novel implications for interpretive methodology. Although she does not explore these implications in detail in Democratic Law, she does make some observations in this direction. It should come as no surprise that Shiffrin emphatically rejects “an originalist approach to [constitutional] interpretation,” which she characterizes as “the enemy of democratic law.” (P. 206.) In her vision of democratic law, citizens are engaged, continually, in the collaborative construction of law, which involves both creating new law to meet new circumstances and also engaging in “active forms of interpretation and selective curation of the achievements of past generations.” (P. 205.) Whereas Dworkin has been criticized for demanding too much of judges, some might wonder whether ordinary citizens are up to the challenge that Shiffrin envisions for them.
I also wonder, along with Kolodny, who raises the question in his commentary, whether we can or should reasonably perceive one another’s compliance with the law as an expression of mutual equality when there are other salient reasons to comply, and especially where penalties threaten the non-compliant. As Shiffrin responds, however, people often comply with the law even when infractions have no legal consequences. And legal compliance does seem to be motivated, often and at least in part, not by fear of sanctions but rather by a felt moral obligation to obey. Consider mask mandates during the pandemic. It really does seem that people who refuse to comply—often wearing masks under their noses or even under their chins—are expressly rejecting equal regard for co-citizens in favor of personal comfort or perhaps (if we’re being generous) a prioritization of the value of individual liberty. One of the reasons why this behavior feels like a personal moral affront is that the open refusal to wear masks in public spaces, when the law requires it, expresses a disregard for our mutual obligations to one another as equals. In contrast, when people comply with mask mandates (which, as far as I can tell, are rarely enforced in any meaningful way), they communicate a commitment to equality, expressing without the need for words that we are all in this together, as equal members of the legal community.
Democratic Law is pitched at a relatively abstract level, but central claims are elucidated with vivid and memorable analogies to interpersonal interactions and relationships—for example, to academic co-authorship, and to duties and expectations of neighbors and members of community associations. In his commentary, Brooks presents an especially relatable personal anecdote of an interaction he had with an airline agent who failed to acknowledge his legal entitlements as an airline customer, even while the agent conferred the material benefits of those entitlements on him. (Pp. 156-60.) Providing a palpable illustration of the normative difference that openly communicating legal status can make, even when it would make no difference to the material outcome of an exchange, Brooks’ anecdote brings to life Shiffrin’s powerful claim that the “[p]ublic articulation [of a legal duty] forges a personal connection to the duty in a way that silent acknowledgment does not, reinforcing the duty’s role as an organizing principle for the speaker.” (P. 49.)
Shiffrin’s theory of law and democracy is an ideal one. Her aim is admirably and refreshingly “constructive,” as opposed to “diagnostic or critical.” (P. 18.) But it does throw into stark and disturbing relief the deficiencies of the version of democratic law that we have in the U.S. today, which in some aspects and instances approaches Shiffrin’s ideal but in many others falls far short. Well aware and at times overtly self-conscious about the distance between her vision of democratic law and the actual state of law and democracy in the U.S. today, Shiffrin observes that “the United States is a deeply flawed and endangered exemplar of an aspiring democratic legal system,” and that we do not currently “stand in the right relations to one another.” (Pp. 62, 182.) Her view of democratic law is accordingly aspirational and inspirational. It is a view that is well worth taking seriously, even if we can only ever hope to approximate the system that Shiffrin encourages and enables us to contemplate. As Ginsborg observes in her introduction, “[i]t is precisely at a time when democracy is under threat that an account of this kind is needed.” (P. 14.)
- See, e.g., Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 388 (1978); Christopher J. Peters, Adjudication as Representation, 97 Colum. L. Rev. 312, 320, 348, 349 (1997).
