¹ It is obviously a matter of controversy which actual institutions, if any, deserve the name “democratic.” Thus, one can question whether a particular democratic theory supports what some call democratic institutions. When I want to be neutral about the theoretical credentials of putative democracies, I will speak of conventional democracies or of majoritarian systems or institutions.

² See, e.g., Barber, Benjamin, The Conquest of Politics (Princeton: Princeton University Press, 1988)Google Scholar, and Barber, 's earlier work, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984)Google Scholar; see also Walzer, Michael, “Philosophy and Democracy,” Political Theory 9, no. 3 (08 1981): 379–99.CrossRefGoogle Scholar

³ Barber, , The Conquest of Politics, 5–7, 18.Google Scholar

⁴ Ibid., 7.

⁵ Walzer, , “Philosophy and Democracy,” 383.Google Scholar

⁶ Ibid., 383, 385.

⁷ Barber, , The Conquest of Politics, 78–80.Google Scholar

⁸ Ibid., 90.

⁹ Walzer, , “Philosophy and Democracy,” 381.Google Scholar

¹⁰ Ibid., 386.

¹¹ Cf. Waldron, Jeremy, “A Right to Do Wrong,” Ethics 92, no. 1 (10 1981): 21–39.CrossRefGoogle Scholar

¹² Walzer, , “Philosophy and Democracy,” 389.Google Scholar

¹³ See Ely, John Hart, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980)Google Scholar; and Bork, Robert, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47, no. 1 (Fall 1971): 1–35Google Scholar. See also Bork, , The Tempting of America (New York: The Free Press, 1990).Google Scholar

¹⁴ Cohen, Joshua, “Deliberation and Democratic Legitimacy,” in The Good Polity, ed. Hamlin, Alan and Pettit, Philip (Oxford: Blackwell, 1989), 17–34Google Scholar; and Cohen, , “Procedure and Substance in Deliberative Democracy,” in Democracy and Difference, ed. Benhabib, Seyla (Princeton: Princeton University Press, 1996), 95–119.Google Scholar

¹⁵ Cohen, , “Deliberation and Democratic Legitimacy,” 17, 20.Google Scholar

¹⁶ Ibid., 21–23.

¹⁷ Gutmann, Amy and Thompson, Dennis, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 13, 39, 50.Google Scholar

¹⁸ Ibid., 4, 41.

¹⁹ Ibid., 4, 43.

²⁰ Cohen, , “Deliberation and Democratic Legitimacy,” 23Google Scholar. I take the idea to be implicit in Gutmann and Thompson's ideals of “reciprocity” and “accountability”—the former requiring that we seek “mutually acceptable” resolutions of conflicts, and the latter that we be prepared to account for our decisions to everyone. See Gutmann, and Thompson, , Democracy and Disagreement.Google Scholar

²¹ Cohen, , “Procedure and Substance in Deliberative Democracy,” 96.Google Scholar

²² Ibid., 103f.

²³ Gutmann, and Thompson, , Democracy and Disagreement, 17, 199–229.Google Scholar

²⁴ Ibid., 200, 17.

²⁵ Ibid., 35–37.

²⁶ Scanlon, T. M., “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Sen, Amartya K. and Williams, Bernard (New York: Cambridge University Press, 1982), 103–28CrossRefGoogle Scholar. Scanlon takes the idea of contractual agreement, widely invoked in political thought, as part of a basic definition of moral Tightness which he contrasts with the utilitarian conception of Tightness as maximization of the good. Scanlon defines moral Tightness in terms of principles which “no one can reasonably reject.”

²⁷ See the references in notes 46 and 49 below.

²⁸ Larmore, Charles, The Morals of Modernity (New York: Cambridge University Press, 1996), 122.CrossRefGoogle Scholar

²⁹ Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), xviii.Google Scholar

³⁰ Nagel, Thomas, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 16, no. 3 (Summer 1987): 215–40.Google Scholar

³¹ For a thoughtful critique of this idea, see Sher, George, Beyond Neutrality (New York: Cambridge University Press, 1997)CrossRefGoogle Scholar. In my view, Sher makes a better case for the view that liberal premises do not entail neutrality than for the view that we ought to abandon those premises. I might add that Nagel does not, I think, use the term “neutral,” though he certainly does accept the idea that state power should be used only in ways that can be justified appropriately even to citizens who otherwise differ radically.

³² Larmore, , The Morals of Modernity, 125Google Scholar; Nagel, , “Moral Conflict and Political Legitimacy,” 238–39Google Scholar; Rawls, , Political Liberalism, 214–15.Google Scholar

³³ Nagel, , “Moral Conflict and Political Legitimacy,” 218Google Scholar; Larmore, , The Morals of Modernity, 136f., 141Google Scholar; Rawls, , Political Liberalism, 137, 217.Google Scholar

³⁴ Cohen, , “Deliberation and Democratic Legitimacy,” 22.Google Scholar

³⁵ Gutmann, and Thompson, , Democracy and Disagreement, ch. 9Google Scholar. It is too seldom remarked how little Rawls actually says about the content of equal opportunity in the one section of A Theory of Justice actually devoted to this topic. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 83–90Google Scholar. See also Nelson, William, “Equal Opportunity,” Social Theory and Practice 10, no. 2 (Summer 1984): 157–84.CrossRefGoogle Scholar

³⁶ Gutmann, and Thompson, , Democracy and Disagreement, 39.Google Scholar

³⁷ See, for example, Scheffler, Samuel, The Rejection of Consequentialism (New York: Oxford University Press, 1994), ch. 4 and appendix 1.CrossRefGoogle Scholar

³⁸ Scanlon, , “Contractualism and Utilitarianism.”Google Scholar

³⁹ This, again, is the way Walzer sees democratic rights; and I also think that, at an abstract level, what Cohen wants to insist on is that the people should govern themselves. More generally, rights arise, as Hart once suggested, in the portion of morality that is especially concerned with the distribution of human freedom. Hart, H. L. A., “Are There Any Natural Rights?” Philosophical Review 64 (1955): 178CrossRefGoogle Scholar. I should add that, while my point is that those with rights, unlike others, are properly in a position to make certain decisions, Hart's point is that those with rights are properly in a position to determine what others may or must do.

⁴⁰ It is one of the marks of a (mature) legal system that it has rules giving such answers. See Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1961), 89–96.Google Scholar

⁴¹ I say “partly” because moral and legal rights are not limited to “claim rights,” definable in terms of the obligations of others, but include powers and immunities as well.

⁴² See Rawls, , A Theory of Justice.Google Scholar

⁴³ What I say here represents at least a change in emphasis from what I have sometimes said in earlier work. Previously, I have argued against the idea that the intrinsic fairness of procedures justifies them; and I emphasized, instead, the idea that (conventionally) democratic procedures are more likely than others to yield justifiable outcomes. But in the absence of consensus or a serious prospect thereof, I now think that a fair (but not necessarily equal) distribution of authority is more important, and I also emphasize that a variety of systems of authority that are fair overall, may contribute in different ways to justifiable outcomes. See Nelson, William, On justifying Democracy (London: Routledge and Kegan Paul, 1980).Google Scholar

⁴⁴ I suspect that Gutmann and Thompson are little interested in questions about how political rights ought to be assigned in the first place, but more interested in giving an account of how the rights we have should be exercised.

⁴⁵ Hardin, Russell, Morality within the Limits of Reason (Chicago: University of Chicago Press, 1988), 92f.Google Scholar

⁴⁶ Freeman, Samuel, “Constitutional Democracy and the Legitimacy of Judicial Review,” Law and Philosophy 9 (1990): 36.CrossRefGoogle Scholar

⁴⁷ Contrariwise, if we knew that persons would be reasonable no matter what, then, in a kind of analogy with Coase's theorem, we might conclude that it would not matter what system of rights we institute. (From the perspective of a concern with economic efficiency, Ronald Coase argues, it does not matter how we assign initial rights to property. However we assign rights, agents will trade until a Pareto-optimal distribution is reached. See Coase, , “The Problem of Social Cost,” Journal of Law and Economics 3 [1960]: 1–44.)CrossRefGoogle Scholar

⁴⁸ For this reason, I think Cohen's metaphorical idea that institutions should “mirror” the deliberative ideal is misleading.

⁴⁹ Cohen, , “Deliberation and Democratic Legitimacy,” 30–31Google Scholar. See also Mansbridge, Jane, Beyond Adversary Democracy (Chicago: University of Chicago Press, 1983)Google Scholar. In her long discussion of town-meeting democracy (pp. 39–125), Mansbridge details many factors that discourage individual participation—from lack of education to fear of conflict—as well as factors that lead to inequality.

⁵⁰ For another possibility, see Daniels, Norman and Sabin, James, “Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers,” Philosophy and Public Affairs 26, no. 4 (Fall 1997): 325, 339CrossRefGoogle ScholarPubMed. While the deliberative ideal informs their approach, they do not argue for (conventionally) democratic methods for deciding about the allocation of scarce resources. Instead, they advocate that those responsible for making decisions, in public or private delivery systems, simply make them in public, according to stated principles, and that they seek to be consistent from one case to another.

⁵¹ See Cohen, , “Procedure and Substance in Deliberative Democracy,” 103–4Google Scholar, for arguments that restrictions on religious liberty and on expressive liberties generally cannot be justified to those who care about these liberties.

⁵² See Freeman, , “Constitutional Democracy and the Legitimacy of Judicial Review.”Google Scholar

⁵³ Jane Mansbridge, if I read her correctly, raises similar concerns about the legitimacy of “real-world” democracies, despite the attractiveness of idealized conceptions, in “Using Power, Fighting Power: The Polity,” in Democracy and Difference, ed. Benhabib, , 46–66.Google Scholar