Representation and Effectiveness in Latin American Democracies: Congress, Judiciary and Civil Society by Moira B MacKinnon & Ludovico Feoli

Author:Moira B MacKinnon & Ludovico Feoli [MacKinnon, Moira B & Feoli, Ludovico]
Language: eng
Format: epub
Tags: Political Science, General, Comparative Politics, American Government, Judicial Branch
ISBN: 9780415824330
Google: CmbCMgEACAAJ
Goodreads: 17071310
Publisher: Routledge
Published: 2013-01-15T13:19:41+00:00

Majoritarianism versus Representativeness

From a normative perspective, perhaps we should want judges and courts to be not majoritarian, but representative. That is, even if we accept arguments about countermajoritarianism, representativeness is consistent with countermajoritarianism. An analogy to electoral rules and the general principle of proportionality clarifies the difference. In designing electoral laws, majoritarianism stands for the idea that the will of most people—be it a plurality, simple majority, or super majority—should be followed (e.g., Lijphart 1999). The starkest example of this is the winner-take-all nature of single-member-district-plurality (SMDP) elections, where one person wins in a zero-sum contest based only on the fact that they received more votes than anyone else, even if their total is less than a majority of registered voters, and even less than a majority of the voting age population. Majoritarian electoral systems are simple, clear and efficient, but this efficiency in electoral processes comes at a cost in representativeness, a cost that can be countered with different electoral rules, for example, varieties of proportional representation, or PR (e.g., Rae 1967; Lijphart 1999; Shugart and Carey 1992). Generally, PR systems maximize representativeness by making the composition of legislative bodies proportional to the range of views expressed in the population. Thus, even if minority views are not expressed in the final policy, all views are represented, or have a voice, in the process of translating votes to seat shares in a legislative body, something that occurs less frequently in majoritarian systems.

Analogizing these trade-offs to courts, we may have normative reasons to want courts to be not majoritarian but representative. That is, in the substance of a judge’s work, it is normatively clear that courts should not simply echo the preferences of popular majorities. However, perhaps the decision making of courts should reflect all views in a society, balancing as full a range of principles and values as possible, of which the majoritarian position on a particular question is but one factor to be considered, and arriving at a reasoned conclusion based on what the law says, what would be agreeable to most people, what would benefit most, and what norms of justice and equity demand, all without sacrificing any fundamental democratic values or principles. Starkly put, we may want courts to be more representative than elected bodies.

The general principle of proportionality supports this proposition. Notions of fairness and equity inhere in proportionality. For instance, judges frequently assess the share of responsibility among parties to a dispute, weigh the severity of a punishment against the seriousness of an offense, or engage in any number of balancing analyses. Even in evaluating the resources available to litigants (in civil disputes) or between the state and the criminally accused (in criminal cases), judges evaluate the “equality of arms”—the extent to which the power distribution among parties is equitable, intervening when necessary so that it is not might that makes one right, but rightfulness itself. Thus, no matter what the electoral rules by which political offices were filled—majoritarian or proportional—courts in democratic societies must seek to level the legal playing field; that is, they must have a “PR mindset.

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