Table of Contents

Law and the State

Law and the State

A Political Economy Approach

New Horizons in Law and Economics series

Edited by Alain Marciano and Jean-Michel Josselin

Law and the State provides a political economy analysis of the legal functioning of a democratic state, illustrating how it builds on informational and legal constraints. It explains, in an organised and thematic fashion, how competitive information enhances democracy while strategic information endangers it, and discusses how legal constraints stress the dilemma of independence versus discretion for judges as well as the elusive role of administrators and experts.

Chapter 9: Democracy, citizens and judicial power: do judges contribute to democracy?

Sophie Harnay


Sophie Harnay* 1 INTRODUCTION A democracy can be defined as a regime in which citizens, because they are considered as the source and origin of power, choose more or less directly their representatives or public policies. Thus, in terms of agency theory, a democracy can be depicted as a regime in which the citizens, namely the principals, delegate tasks and responsibilities to some elected agents. An ongoing and important process of delegation of power has resulted in the increasing role that non-elected, also named non-majoritarian, institutions play in democratic regimes. In addition to positive justifications and explanations that it receives (see, for instance, Voigt and Salzberger 2002), such a phenomenon raises important normative questions. What is at stake here is the control of the behaviour of these non-elected and non-majoritarian ‘agents’ and the subsequent legitimacy of the decisions they make. If one takes into consideration that exit is a costly way to express oneself and voice (for instance, through vote) is ineffective on non-elected agents, the question is then how citizens give their consent to the decisions made by those non-elected agents? The question has a particular flavour when it involves judges, who are, among the many groups of non-elected agents granted with a nonnegligible rule-making power, the ones who create the biggest problems. This is clearly illustrated by the debates about the legitimacy of the choices made by the US Supreme Court or the European Court of Justice. Are the decisions these courts legitimate from the...

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