The following case demonstrates that ASPL is extensionally inadequate:
Bureaucracia and Lazyland
Bureaucracia is a country with a detailed body of traffic regulations, called the Traffic Law, which regulates on which side of the road to drive, what the traffic signs have to look like and so on. Lazyland is a country in which the traffic laws of Bureaucracia are held in high esteem. In order to save time, money and manpower, Lazyland does not bother to make substantial laws in this area of legislation but simply adopts a legal norm of referral that gives legal force to the traffic laws of Bureaucracia in Lazyland. Lazyland’s Law of Traffic Rules simply states that Bureaucracia’s Traffic Law is valid in Lazyland. One day, Bureaucracia is going to make a decision about a change in its Traffic Law, namely to adopt a speed limit on highways. The people of Lazyland are strongly opposed to this idea and would like to vote against it.Footnote 13
To keep things simple, I make the following assumptions: all citizens of Bureaucracia reside within Bureaucracia; there are no children, persons with mental impairments or felons among these citizens; every person residing in Bureaucracia is also a citizen of Bureaucracia. Mutatis mutandis for Lazyland.Footnote 14
Most people, I assume, would intuitively judge that the people of Bureaucracia—the Bureaucracians—should be entitled to decide about the speed limit without including the people of Lazyland—the Lazylanders—in the decision. This judgement qualifies as a considered judgement because it finds support in the platitude that democracy is government of the people by the same people. The decision classifies as an act of government of and by the people of Bureaucracia. In virtue of Lazyland’s Law of Traffic Rules, any decision about Bureaucracia’s Traffic Law will be binding for the Lazylanders.Footnote 15 But this is so only because the Lazylanders decided voluntarily that it be so, via a decision made of and by the Lazylanders. The Bureaucracians do not presume to govern the Lazylanders.
The situation is analogous to the case of two individuals where one individual makes decisions about his life and the other individual voluntarily adopts the maxim to copy all the decisions of the first individual. Assume the first individual decides between buying a red hat or a blue one and the second has a preference for buying the blue hat but would buy the red one if the first individual decided so. It seems clear that the first individual does not have to take into account the preference of the second individual. The first individual is just exercising his autonomy and not interfering with the autonomy of the second individual.
ASPL yields the wrong answer in Bureaucracia and Lazyland. Since Lazyland’s Law of Traffic Rules makes it the case that the people of Lazyland are legally bound by Bureaucracia’s Traffic Law, ASPL implies that the Lazylanders should be entitled to participate in Bureaucracia’s decision about adding a speed limit to its Traffic Law. ASPL fails to recognize that the decision in question is part of the self-government of the people of Bureaucracia.
Let us now consider three objections. The first objection denies that Bureaucracia’s Traffic Law is legally binding for the Lazylanders. What is binding for the Lazylanders is only Lazyland’s Law of Traffic Rules, so the objection goes, whereas Bureaucracia’s Traffic Law is only needed to ascertain the contents of Lazyland’s Law of Traffic Rules.Footnote 16
This objection fails because it confuses the sources of law and the sources of legal interpretation. According to the objection, Bureaucracia’s Traffic Law is not legally binding for the Lazylanders but merely a source of legal interpretation: the Traffic Law only serves to ascertain the contents of Lazyland’s Law of Traffic Rules. From a legal perspective, however, it is clear that the legal norms referred to in legal norms of referral are legally binding (assuming that the legal norms of referral are themselves legally binding). Accordingly, there simply is no question for legal practitioners in Lazyland as to whether Bureaucracia’s Traffic Law is legally binding: of course, it is—in virtue of Lazyland’s Law of Traffic Rules, that is: because Lazyland’s Law of Traffic Rules is legally binding in Lazyland and states that Bureaucracia’s Traffic Law is legally binding there, too.Footnote 17
According to the second objection, the claim that both the Law of Traffic Rules and the Traffic Law are legally binding in Lazyland contradicts the logic of norms. The objection can be spelled out in different ways, depending on one’s understanding of legal norms and the logic of norms in general. A natural way to spell out the objection goes as follows. Assume that Bureaucracia changes its Traffic Law by including a speed limit on highways. If a Lazylander drives too fast, she has violated only one legal norm—a norm against speeding. However, by claiming that both Bureaucracia’s Traffic Law and Lazyland’s Law of Traffic Rules are legally binding in Lazyland, I seem to be committed to the claim that the Lazylander has violated two legal norms.Footnote 18
A head-on response to the objection consists in insisting that the speeding Lazylander has violated two legal norms. By claiming that the speeding Lazylander has violated only one legal norm, the objection seems to presuppose that legal norms are imperatives: the Lazylander is certainly addressed only by one legal imperative—‘don’t drive faster than … on highways!’—and if legal norms are imperatives, then the Lazylander has violated only one legal norm. However, the presupposition that legal norms are imperatives is problematic. After all, there are many legal regulations—think of H. L. A. Hart’s ‘secondary rules’—that are commonly labelled ‘legal norms’ even though they do not seem to be imperatives. Moreover, the view that the speeding Lazylander has violated two legal norms is compatible with the position that she has disobeyed only one legal imperative: one can just add that the two legal norms violated by the Lazylander—Bureaucracia’s Traffic Law and Lazyland’s Law of Traffic Rules—together entail the legal imperative not to drive faster than … on highways.
However, it is doubtful if the objection succeeds even if we assume that legal norms are imperatives and that the speeding Lazylander has violated only one legal norm. Given these assumptions, we still have to get clear on which legal norm has been violated by the Lazylander. On the face of it, it cannot be Lazyland’s Law of Traffic Rules by itself, because this law does not say anything about speed limits on highways, but merely states that Bureaucracia’s Traffic Law is legally binding in Lazyland. Two other candidate legal norms are more promising. The first candidate is Bureaucracia’s Traffic Law, which can be understood as a self-standing imperative (‘don’t drive faster than… on highways!’). Of course, the Traffic Law does not by itself apply to Lazylanders. However, the Traffic Law does apply to Lazylanders because Lazyland’s Law of Traffic Rules says so.Footnote 19 The second candidate is not codified in a single law but is the conjunction of Bureaucracia’s Traffic Law and Lazyland’s Law of Traffic Rules. The Traffic Law and the Law of Traffic Rules can each be considered incomplete legal norms while they together form a complete legal norm. Here, the conjunction is to be understood as an imperative in the following way: imperatives are, roughly, commands to do something that are addressed to somebody. Bureaucracia’s Traffic Law states one part of an imperative—viz. which behaviour is commanded—and Lazyland’s Law of Traffic Rules states (part of) another part—viz. who is addressed.
Let us turn to the third objection, which concerns the best understanding of ASPL. Advocates of ASPL might point out that the Lazylanders are bound only indirectly by Bureaucracia’s law, namely via the law of Lazyland, and argue that ASPL is meant to refer only to decisions that are directly binding for persons. ASPL would then not imply that the Lazylanders should be entitled to participate in the decision about Bureaucracia’s Traffic Law.
This suggestion fails because many legal norms are binding only indirectly but all of them need democratic authorization. If a judge pronounces a sentence, for example, then the sentence is a legal norm that is valid only in virtue of another legal norm that empowers the judge to pronounce judgment. However, the sentence is of course made in the name of the people and democracy requires an uninterrupted chain of democratic authorization that connects the judge’s sentence via the empowering norm all the way up to the legislature, which is either identical with or, in representative democracies, authorized by the people. Hence, ASPL should be understood as implying that legal norms require participation of those people who are subjected to those norms even if the norms are binding only indirectly.
A note on what I mean by ‘authorized by the people’ in the foregoing paragraph. Democracy is self-government: government of the people and by the (same) people. Public officials participate in governing the people. This means that public officials must be authorized to represent the people. This authorization, in democracies, happens in elections.Footnote 20
Here is a possible reply to my response to the third objection. According to my response, ASPL applies also to decisions that are indirectly binding but, as in the case of the judge, ASPL can be satisfied through an uninterrupted chain of democratic authorization by the people and does not require direct participation of the people. Now, does it not follow from this response that the Bureaucracians (analogously to the judge) can be considered authorized to make decisions that are indirectly binding for the Lazylanders? If so, then ASPL would not imply that the Lazylanders should be entitled to participate directly in the decision on Bureaucracia’s Traffic Law. For the Lazylanders would have authorized the Bureaucracians to make that decision without the direct participation of the Lazylanders.Footnote 21
There are three related problems with this reply. First of all, the reply assumes that Lazyland’s Law of Traffic Rules is not just a legal norm of referral but (also) an authorizing norm, which empowers the Bureaucracians. On the face of it, this assumption is problematic because authorizing norms and norms of referral are different kinds of norms from a legal point of view, and the Law of Traffic Rules does not seem to be an authorizing norm but a norm of referral. The Law of Traffic Rules does not seem to be an authorizing norm for two reasons. On the one hand, the contents of the Law of Traffic Rules are relatively ‘meagre’, in particular, the Law of Traffic Rules does not specify any rights or duties of the allegedly authorized persons—the Law of Traffic Rules merely states that the Traffic Law is valid in Lazyland. On the other hand, while Lazyland lacks jurisdiction over Bureaucracia, normally persons who are legally authorized can also be held legally responsible (to ensure, in particular, that the authorized persons do not abuse their powers).
Secondly, if we assumed that the Law of Traffic Rules is an authorizing norm, then the Law of Traffic Rules would be more problematic from a democratic point of view than it seems in fact to be. For while the judge is merely authorized to pronounce judgment on the basis of existing laws, the Bureaucracians would in effect be authorized to make laws that are binding for the Lazylanders. (Of course, the laws made by the Bureaucracians would have to be incorporated into the Traffic Law, but otherwise there would be no restrictions.) Authorizations to make laws, which would be present in the case under consideration if the reply were correct, require elections of representatives. But the Bureaucracians are not elected as representatives by the Lazylanders.
Thirdly, even if the Law of Traffic Rules were meant to authorize the Bureaucracians to make traffic laws for the Lazylanders, the Law of Traffic Rules could be invalid as an authorizing norm. It could be invalid, for example, because there might be constitutional requirements for authorizing norms in Lazyland that are not met by the Law of Traffic Rules. However, the Law of Traffic Rules would then apparently nonetheless be valid as a legal norm of referral—unless we make the question-begging assumption that a legal norm of referral just is an authorizing norm. (This assumption would not only be question-begging but also seems to be false; see the first two points of my response to the reply.) But if the Law of Traffic Rules is valid as a norm of referral and invalid as an authorizing norm, then we are again faced with the problem raised by the case of Bureaucracia and Lazyland—the reply then does not help the defender of ASPL.
In sum, ASPL delivers implausible—viz. over-inclusive—verdicts in Bureaucracia and Lazyland and in structurally similar cases that involve legal norms of referral. The verdicts are implausible in that they contradict widespread intuitive judgements. These judgements are not mere intuitions but cohere with other relevant beliefs, as required by the method of reflective equilibrium, in that the judgements can be based on the ideal of democracy as self-government: government of the people by the same people. ASPL is, hence, at odds with our considered judgements regarding democratic inclusion.