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Frank Vibert

This chapter looks at democratic political decision making in the context of ‘hierarchy’ or when disputes arrive at the top level of political choice and policy making. It identifies the special problems of distance, exclusionary voting and decision rules, and the arbitrary enumeration of powers. It describes four main accounts of how politics can overcome these problems including that provided by theories of discourse democracy, consociationalism, and the short cut approach of the source-based or associative model. The chapter describes the critical differences in the accounts they offer of how persuasion works in democratic politics in order to overcome differences. It concludes on the shortcomings of each account.

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Frank Vibert

This chapter discusses how ‘qualitative analytic’ constitutional rules, such as ‘subsidiarity’, might help democratic politics play a socially adaptive and transvaluational role in finding a path through deep differences in values and incommensurate ways of reasoning. It draws attention to how path rules can underpin a ‘logic of consequences’ that substitutes for more formal reasoning, or for the politically expedient. The path rules involve the sequencing of choices, judgements about reversibility, attention to different ways of framing choices and judgments about whether a critical juncture has been reached where choices are particularly consequential.

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Frank Vibert

This chapter explores the possible roles of new institutions to offset some of the blind spots of democratic politics analogous to the role played traditionally by Second (legislative) Chambers. It looks at how both market processes and non-market processes involve longer and more dispersed chains of intermediaries. It examines how lengthening chains affect the advantages of democratic politics in offering the widest span of association, feedback and priority selection. The analysis draws on search market theory of institutional economics. It makes an analogy with chains of intermediation in financial markets. The analysis suggests that the constitutional role can itself be defined in terms of providing for institutional support and oversight at the beginning, middle and end of the chains of intermediation. It suggests a role for referendums at the beginning of the chain, an intergenerational equity body in mid chain and a constitutional oversight body at end chain.

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Frank Vibert

This chapter examines the role of ‘rights’ in providing guidance for complex normative choices in modern democracies. It distinguishes the role of rights in guiding policy choices from their role in providing the underpinning for the legitimacy of constitutions. It draws on search market theory to discuss the role of rights as benchmarks. Benchmarks help to make choices by assembling what is relevant to a choice, facilitating comparisons and by pointing to anomalies in valuations. The analysis distinguishes between procedural rights and substantive rights applying to socio-economic and environmental conditions. It makes an analogy with the role of benchmarks in financial markets. It suggests that the problems associated with narrowing, oversupply, manipulation and moral hazard that apply to benchmarks in financial markets apply also, for different reasons, to substantive rights claims used as benchmarks in non-market choices.

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Frank Vibert

This chapter examines the role of rights in providing legitimacy to a constitution. It looks first at the pragmatic case based on compensating for the many compromises involved in drawing up constitutions. It looks secondly at the case for a more principled link between rights and ideas about the rule of law. For this purpose, it draws on Kelsen’s theory about the basic norm as a transcendental concept or ‘presupposition’ that gives ‘validity’ to lawmaking. In Kelsen’s view, only mainly procedural rights should be included to support the rule of law. The chapter turns thirdly to examine the case for rights to go beyond procedure and to provide an extensive normative foundation for constitutions including many varieties of substantive rights. It discusses the relationship between political values and moral judgments and concludes on the importance of recognizing that some moral judgments are formed outside constitutional frameworks.

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Frank Vibert

This final chapter brings together the components needed to upgrade constitutions so that they will provide the support that democracies need in the modern world. First, they need to extend their base so as to ensure common knowledge about all actors who wield authority in today’s world. Secondly, they need to provide more stringent path rules in order to bring together the content-lite reasoning of a democratic politics with the content-based reasoning of the law and expert bodies. Thirdly, they need to provide additional institutions to correct for the blind spots of democratic politics, notably a body concerned with intergenerational equity and a body concerned with constitutional oversight. Fourthly, they need to take a more parsimonious approach to assertions of rights and include mainly only procedural rights. Finally, they need to reaffirm the importance of consent through the use of referendums for policy and constitutional questions.

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Frank Vibert

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Making a 21st Century Constitution

Playing Fair in Modern Democracies

Frank Vibert

Democratic constitutions are increasingly unfit for purpose with governments facing increased pressures from populists and distrust from citizens. The only way to truly solve these problems is through reform. Within this important book, Frank Vibert sets out the key challenges to reform, the ways in which constitutions should be revitalised and provides the standards against which reform should be measured.
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Frank Vibert

This introductory chapter establishes the book’s focus on the content of the rules for a contemporary constitution. It adopts the normative perspective of a democratic society. It discusses units of observation and levels of analysis and sets out a trans-disciplinary approach. It identifies key elements in subsequent analysis including motivation, social diversity, fairness, rationality and the emotive, and chains of intermediation. It introduces the key challenges involved in upgrading contemporary constitutions.

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Frank Vibert

This chapter sets out the reasons for the (almost) universal adoption of constitutions and the different ways of summarizing their intent in a democratic context (contracts/constraints and so on). It then discusses the separation that has occurred between discussions of constitutions and discussions of democracy. Among the reasons for this separation, subsequent discussion takes up the possibility that constitutions have simply lost their relevance in modern conditions. Finally, it distinguishes between key structural elements in a constitution – the foundational, the canonical and the purposive.