Academic journal article Northwestern University Law Review

Criminal Justice That Revives Republican Democracy

Academic journal article Northwestern University Law Review

Criminal Justice That Revives Republican Democracy

Article excerpt


I...Democracy's Disappointments and Democratic Hopes for the Judicial Branch.1508

II...In the Footsteps of Cyrus: Learning from Tyrants.1510

III...Democracy's Disappointments After War: The Case of Jammu and Kashmir.1513

IV...Democracy Causing Domination on a Wide Front.1516

V...Growing Democracy in the Judicial Branch.1519

VI...Democratically Dismantling Criminal Law's Dominations.1522



Democracy is virtuous because it can increase freedom, particularly when we conceive freedom as nondomination. Unfortunately, however, democracy often reduces freedom and has become more systematically an enabler of domination. Domination of women in criminal justice is one kind of un-freedom considered in this Essay. Criminal justice, like democracy, is systemically dangerous when it increases domination. criminal justice can be reformed to reduce the domination of women and men. Reformed republican criminal justice, however, can reduce the dominations of criminal justice and reduce the dominations of criminality, while advancing liberty through democracy. Indeed, criminal justice is a strategic institution for salvaging contemporary corrosion of democracy, unleashing the potential of democracy for advancing liberation. Electoral populism is the key risk for criminal justice becoming a tyranny of the majority. Money politics is the most poisonous risk of electoral democracy as it drives up domination instead of freedom.

one reason the judicial branch is the most hopeful branch for renewing the jaded circumstances of democracy is that the judiciary can be easier to proof against money politics and populism than the legislative or executive branches. Money power is, much more insidiously, the worm in the apple of the legislature and executive; the judicial branch can choose to use its greater freedom from money politics, power politics, and populist politics to better institutionalize freedom and enrich democracy.

I. Democracy's Disappointments and Democratic Hopes for the Judicial Branch

Democracy accumulates tarnish in the eyes of the young. Trust in democracy and its key institutions has been in decline across all the decades since trust has been measured systematically.1 This is one reason I have argued that the project of repairing a jaded democracy in the legislative and executive branches of government is a less important project than reviving democracy through the judicial branch.2 There are things we can do to rescue the legislative and executive branches from subservience to money politics and remoteness from the people that are identified here as their fundamental problems. Yet no society finds it easy to stop money from talking in politics and surveying histories of failures to do so is not the topic of this Essay.

Many political philosophers have argued that democracy is good because it advances certain values, as opposed to being good in itself. This explains our moderation in the use of democracy. If elections were so good, why not hold them annually? Why not provide every citizen a referendum app to participate in a citizens' vote on every question before legislatures? The answer is that decision by vote destabilizes in ways that can threaten other values, including truth. This is because politicians often win by being more adept at lying than their adversary.

The judicial branch can better enable deliberative democracy than other government branches because deliberation is more feasible over finite legal issues within the confines of a courtroom or restorative justice circle than it is across the many agencies of executive government and the houses of legislatures as they choose among a wide range of possible priorities. Votes are easier to buy than judicial decisions, and executive governments are easier to buy than "not guilty" verdicts. That is why everywhere in the world, with the sometime exception of Afghanistan,3 people in opinion polls perceive police to be more often corrupt than judges. …

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