Opinion: Carolina Journal Opinions

Is Juridical Democracy Gaining Adherents?

My wife might not believe it, but sometimes I do think. Most recently, the old brain was prodded into action by a News and Observer story about a $3,500 annual tax break given by the state to partners in businesses — including lawyers and doctors.

Harvard professor Larry Lessig’s recent highly entertaining presentation about money in American politics given at the John Locke Foundation provided further stimulation for the gray cells.

I got especially to thinking about an old term that does not seem to get much attention these days: juridical democracy. It has its roots in Locke’s Second Treatise and the 17th-century English philosopher’s call for laws to be applied equally to all — quite a radical idea for its time. A century later the French Enlightenment thinker Jean-Jacques Rousseau argued public policies should “consider subjects en masse and actions in the abstract, and never a particular person or action.”

The term was coined in the late 1960s by political scientist Ted Lowi. Lowi promoted it as an antidote to “interest group liberalism” — the idea that the political parties and elected officials did not make policy applying general, consistent, and clear principles but instead “paid off” supporters with favorable exceptions that advantaged them over others.

He argued the problem was not just that the Democrats had become a party beholden to labor and the Republicans one blindly serving the interests of business. It was that politicians favored certain industries over others and even certain firms over their direct competitors. Largesse was distributed based on politics, not the social value that it added.

To the uninitiated who could not see or understand the political machinations, the distribution of goodies seemed completely arbitrary. Why is the oil and gas industry more heavily subsidized than engineering and construction? Why are cotton and dairy farmers subsidized, but fruit and vegetable farmers not?

These questions are not answered easily by those who see policy decisions as a function of their makers’ ideology or intellect.

It wouldn’t be quite so bad if government mitigated against unfair disadvantages to equalize opportunities. But narrowly targeting subsidies and issuing contracts to your favorites is much easier than tackling broad problems.

Juridical democracy has many virtues. It is transparent in that people more easily understand public policy and how they are supposed to behave. Elected officials focus on the big concerns, the general principles that should shape a society. The principles guide policies in specific issue areas.

In a juridical democracy, Congress would produce less legislation, and members would spend their time deliberating fundamental rules. They would not have to attend to individuals’ policy concerns. Federal agencies would produce many fewer regulations.

Juridical democracy also is easy to administer. Think, for example, of the amount of money, effort, and time saved by the implementation of a flat federal income tax that has no deductions. And it is not necessarily ideological. You can have a very simple progressive tax structure, too.

Government should not decide winners and losers, particularly among competitors that are similarly situated. In the economic realm, an evenhanded, simple, and broadly applied principle like the market is consistent with juridical democracy. In politics, institutions like legislative redistricting and the Electoral College might need some work because they treat voters differently.

Unfortunately, the application of juridical democracy will not be easy. American politics traditionally are parochial, even though a strong federal system is supposed to make Washington less so. Today it still is difficult to argue with Alexis de Tocqueville’s observation made in the 1830s that Americans consider a member of Congress their proxy and “they flatter themselves that he will not be less zealous in defense of their private interests than of those of the country.”

Polls show a plurality of citizens want their representatives to attend to the needs of their districts and states before those of the nation. Despite their national constituencies, presidents have to make deals with legislators to get their agendas through Congress and therefore constantly are supporting policies that grant exceptions to privileged groups and individuals.

There are, however, some encouraging signs. Members of Congress slowly have been working toward an outright ban on earmarks — targeted spending provisions that sidestep the merit-based and transparent grant-making and procurement processes.

Democrats and Republicans alike seem to believe tax simplification is an important part of the solution to the country’s current fiscal mess. Cases for broadening the base and eliminating deductions, merging individual and corporate tax structures, and treating wage and investment income similarly if not identically clearly are resonating.

Although juridical democracy cannot be imposed on them, policymakers in Washington at least are making a start.

Carolina Journal columnist Andy Taylor is a professor of political science in the School of International and Public Affairs at N.C. State University.