Democracy All the Way Down

8/11/2019 Democracy All the Way Down

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Democracy all the way downDemocracy and Criminal Law: The Case of Social Protests1

Roberto Gargarella

Two examples

Let me begin this presentation by introducing two judicial decisions, one that was made in

Argentina in 2002, in the Schifrincase;2and the other that was written in ngland in 200!, intheAustin and Saxbycase"#

$ will %irst address the Argentinean case" $n &!!', the schoolteacher (arina )chi%rin too* part

in a demonstration in the )outh o% Argentina, in demand %or higher salaries" The

demonstration was organi+ed by school teachers, and included the participation o% students

and their parents As it was common during those years, protesters decided to bloc* roads inthis case -ational Route -" 2#'. in /ariloche, in order to ma*e their claims audible" )chi%rin

was then tried and %ound guilty, as one o% the leaders o% the protest, %or breaching the law"

Remar*ably, the decision against )chi%rin, which was written by ederal 1udge Lenidas

(oldes, included an order saying that she should abstain to participate in public

demonstrations composed o% by more than &0 people, and which too* place in inter.

jurisdictional routes, %or the %ollowing two years" The decision was then con%irmed by the

3igh 4ourt o% Appeals in 4riminal Law the Cmara Nacional de Casacin Penal. $n theopinion o% the Appeal 4ourt, the in5alidation o% 1udge (oldes6 decision would ha5e

represented7a %ormidable contribution to chaos, anarchy, and the destruction o% rights8"9

$n the central part o% its judgment, the 4ourt made re%erence to the democratic argument inorder to condemn (arina )chi%rin, a school teacher who had ta*en a leading role in the

bloc*ade" :uoting (iguel *medjin, a %amous constitutional theorist, the 4ourt maintained

that according to Argentina6s 4onstitution there was 7only one legitimate %orm %or expressing

the so5ereign will o% the people,8 which was su%%rage" Through this means it added. the

people 7accept or reject the alternati5es that the political class poses to them"8

The decision by the Argentinean Appeal 4ourt appeared in a context that was still

characteri+ed by high le5els o% go5ernmental or para.go5ernmental political repression

against demonstrators e5en though since 2002, and a%ter the death o% two young political

acti5ists ar?o)antilln@, the o%%icial discourse on the matter was one

o% no.5iolent.repression" According to a report by the 4enter %or )ocio.Legal )tudiesu%%, Albert >+ur, lena Larrauri and $an Loader %or comments on a pre5ious 5ersiono% this paper" Also, $ want to than* the Le5erhulme Trust %or a grant that allowed me to complete this research"2)chi%rin, (arina, n" #!0B , 0#C0'C20023Austin v. Commissioner of the Police for the Metroolis, D200!E F=3L B"9

)ee report by the 4enter %or )ocio.Legal )tudies ocJidsI&2JlangIesJssI2'JidcI

1
http://www.cels.org.ar/agendatematica/index.php?info=detalleDocF&ids=12&lang=es&ss=27&idc=613http://www.cels.org.ar/agendatematica/index.php?info=detalleDocF&ids=12&lang=es&ss=27&idc=613


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Let us now turn to the second case, which too* place in ngland" Kn (ay >ay, 200&, there

was a mass rally organi+ed against globali+ation, at Kx%ord 4ircus, a commercial area in the

4ity o% London" The police had in%ormation about the meeting and assumed that there would

be outbrea*s o% public disorder, as it had happened in pre5ious demonstrations in the last twoyears" Towards the end o% the demonstration, police surrounded about #000 people some o%

them who were in5ol5ed in the demonstration, and some o% them who were not. and re%used

to allow many o% them to lea5e" As a result, more than &000 people were retained against

their will %or around ' hours, without %ood, drin* or access to toilets"

Geo%%rey )axby and protester Lois Austin were among those who were then retained by the

police" -one o% them had been in5ol5ed in the exercise o% 5iolence" They sought damages

alleging depri5ation o% liberty, which was contrary to Art" B, uropean 4on5ention o% 3uman

Rights and s ' 3uman Rights Act" $n the 3igh 4ourt, Tugendhat 1 claimed that the restriction

o% rights was justi%iable under Article B"&", and that se5en hours was well within the scale o%

7promptly8 re%erred to in the Article"B$n his 5iew

7The court must allow %or the %act that it may be 5ery di%%icult %or the police to identi%y the target or predict thescale o% 5iolent disorder" $ conclude that the court should accord a high degree o% respect %or the police o%%icers6appreciation o% the ris*s o% what the members o% the crowd might ha5e done i% not contained" At the same timethe court should subject to a 5ery close scrutiny the practical e%%ect which derogating measures ha5e on

indi5idual human rights, the importance o% the rights a%%ected, and the robustness o% any sa%eguards intended tominimise the impact o% derogating members on indi5idual human rights"8

BArticle B" & reads as %ollows

Article ! " #i$ht to liberty and security%&" 5eryone has the right to liberty and security o% person" -o one shall be depri5ed o% his liberty sa5e in the%ollowing cases and in accordance with a procedure prescribed by law

a" the law%uldetentiono% a person a%ter con5ictionby a competent court;b" the law%ul arrest or detention o% a person %or non.compliance with the law%ul order o% a court or in

order to secure the %ul%ilment o% any obligation prescribed by law;c" the law%ularrestor detention o% a person e%%ected %or the purpose o% bringing him be%ore thecompetent legal authority on reasonable suspicion o% ha5ing committed an o%%ence or when it isreasonably considered necessary to pre5ent his committing an o%%ence or %leeing a%ter ha5ing done so;d" the detention o% a minor by law%ul order %or the purpose o% educational super5ision or his law%ul

detention %or the purpose o% bringing him be%ore the competent legal authority;e" the law%ul detention o% persons %or the pre5ention o% the spreading o% in%ectious diseases, o% personso% unsound mind, alcoholics or drug addicts or 5agrants;

%" the law%ul arrest or detention o% a person to pre5ent his e%%ecting an unauthorised entry into thecountry or o% a person against whom action is being ta*en with a 5iew to deportation or extradition"2" 5eryone who is arrested shall be in%ormed promptly, in a language which he or she understands, o% the

reasons %or his arrest and o% any charge against him"#" 5eryone arrested or detained in accordance with the pro5isions o% paragraph &"c o% this article shall bebrought promptly be%ore a judge or other o%%icer authorised by law to exercise judicial power and shall beentitled to trial within a reasonable time or to release pending trial" Release may be conditioned by guarantees toappear %or trial"9" 5eryone who is depri5ed o% his liberty by arrest or detention shall be entitled to ta*e proceedings by which

the law%ulness o% his detention shall be decided speedily by a court and his release ordered i% the detention is notlaw%ul"B" 5eryone who has been the 5ictim o% arrest or detention in contra5ention o% the pro5isions o% this article shallha5e an en%orceable right to compensation"

2
http://en.wikipedia.org/wiki/Detention_(imprisonment)http://en.wikipedia.org/wiki/Detention_(imprisonment)http://en.wikipedia.org/wiki/Detention_(imprisonment)http://en.wikipedia.org/wiki/Convictionhttp://en.wikipedia.org/wiki/Arresthttp://en.wikipedia.org/wiki/Arresthttp://en.wikipedia.org/wiki/Arresthttp://en.wikipedia.org/wiki/Detention_(imprisonment)http://en.wikipedia.org/wiki/Convictionhttp://en.wikipedia.org/wiki/Arrest


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The case con%irmed that the police ha5e a wide range o% powers to use 7e5en against peace%ul

protesters i% a %ew protesters are or may be disorderly8


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There are numerous reasons why $ thin* we should strengthen the lin*s between democratic

theory and 4riminal Law" irst o% all, %or those o% us who belie5e in the importance o%

democratic sel%.go5ernment, it seems clear that there are %ew problems more rele5ant than

those related to the use o% the )tate6s coerci5e powers" )econd, and more speci%ically, when

we re%er to the 4riminal Law, we are re%erring to a 5ery speci%ic and worrisome aspect o% the)tate6s coerci5e powers" $n %act, )tate 5iolence may imply the in%liction o% pain and su%%ering,

incarceration, and e5en death" $t seems ob5ious, then, that %or those who care about sel%.

go5ernment, Nuestions about the limits and scope o% this particular *ind o% )tate 5iolence

cannot escape democratic re%lection and control what is at sta*e here is all too rele5ant"

inally, $ should mention that in societies as the one in which $ inhabit emocratic Theory


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theory and 4riminal Law +ur J (irchandani 200'@, Mablo de Grei%% doing the same with

-ino6s democratic theory olo5ich pursuing a similar tas* by

using 1ohn Rawls6 theory o% justice olo5ich 2009@" $n addition to this, we %ind many other

rele5ant writings trying to tie %undamental issues o% 4riminal Law together with central

issues o% political philosophy and democratic theory" Among many other important writings

ma*ing these connections we can ma*e re%erence to the wor* by 1ohn /raithwaite, MhilipMettit and Antony >u%% ry+e*

2002; lster &!!; stlund 200!@"

$ do not want or need to propose as a regulati5e ideal an o5er.sophisticated or complex

5ersion o% deliberati5e democracy, which would only aggra5ate the le5el o% the existing

disagreements" /y contrast, $ will be herein assuming a rather simple or standard 5ersion o%

deliberati5e democracy, based on the %amous 3abermasian communicative aroach todemocracy, according to which a justi%ied public decision reNuires the deliberate agreemento% &all those otentially affected'


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Oith these clari%ications in mind, $ will now proceed to examine three areas were we %ind

promising attempts to integrate the 4riminal Law and democratic theory"

>emocracy and 4riminal Trials

$n the last %ew years, 4riminal Law and democratic theory crossed their paths in di%%erentoccasions, and these encounters were usually 5ery rich" Kne o% the most interesting areas o%

intersection is that o% criminal trials, where the wor* o% Antony >u%%, 4arlos -ino or Mablo de

Grei%% played a leading role" $n di%%erent ways, they ha5e all been ad5ocating %or

communicati5e approaches that ha5e strong implications %or the criminal process" The

communicati5e commitment aspect their approach puts their theories together with other,

more established expressi5e theories o% punishment they appear to be in a relationship o%

species and genus" 3owe5er, and e5en though communicati5e theories and so.called

expressi5e theories o% punishment are clearly inter.related, it is important to di%%erentiate one

%rom the other"

$n general terms, it could be said that the main purpose o% expressi5e theories iscommunicati5e


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Oith the support o% 1urgen 3abermas and 4arlos -ino6s wor* on democratic theory, de Grei%%

reads and interprets expressi5e theories o% punishment in a 7dialogic8 manner u%%, 7to put someone on trial, and to

punish him %or his wrongdoing, is to treat him as a member o% the normati5e community

under whose laws he is tried and punished"8 The accused has to be addressed as a 7%ellow

member o% a normati5e community whose 5alues he can be expected to understand and

accept8 u%% 200, &!@" (oreo5er, he has to ha5e a %air opportunity to be listened to, and

his 5iews ha5e to be ta*en seriously and duly weighed"

$n sum, in spite o% their u%%, -ino or de Grei%% pro5ides us with interesting examples o% how democratic theory

could intersect with 4riminal Law in order to reno5ate our thin*ing o% criminal trials" !

>emocracy and )entencing

$n the pre5ious section, we explored di%%erent suggestions coming %rom democratic theory in

relation to the organi+ation o% criminal trials, and how they could be impro5ed" 3erein, weshall explore some proposals, also deri5ed %rom democratic theory, concerning criminal

justice sentencing" $n general terms, as we shall see, ad5ocates o% deliberati5e theories o%

democracy


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it more deliberati5e and, more signi%icantly, more inclusi5e and open to ci5il society" $n this

way, they ha5e challenged traditional legal approaches, which are distinguished by their

indi5iduali+ed and juricentric %eatures" $n what %ollows, $ will %ocus on two main alternati5es

to the pre5alent sentencing process"

The %irst alternati5e that $ want to explore relates to studies on restorati5e justice" (orespeci%ically, $ will illustrate the %irst alternati5e through the inno5ati5e approach to restorati5e

justice that was de5eloped by 1ohn /raithwaite, particularly in collaboration with Mhilip

Mettit" $nspired both by a republican political philosophy and also by the enormous theoretical

and practical wor* on restorati5e justice that has been done in the last decades, 1ohn

/raithwaite and Mhilip Mettit ha5e de5eloped a complete and renewed approach to criminal

justice


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deliberation, the con%erence.method seems particularly appropriate %rom those who care

about deliberati5e democracy"&2 $n sum, community con%erences represent an attracti5e

alternati5e to pre5ailing approaches to sentencing, which properly honor the main 5alues o%

democratic deliberation, namely dialogue, inclusion, persuasion or eNuality"

Let me now examine a second alternati5e to juricentric, top.down approaches to sentencing,which comes %rom academic wor*s see*ing to re5itali+e the institution o% the jury" $n

particular, $ want to %ocus my attention on recent wor*s by Albert >+ur, who has been trying

to explicitly re.connect his studies on the jury with basic issues o% deliberati5e theory +ur

20&2@"

A harsh critic o% both penal elitism and penal populism, >+ur demonstrates how, as a

conseNuence o% these theoretical in%luences, the dominant system o% criminal justice tends to

be organi+ed around tribunals that 7produce distance8 with the public; 7impede 5ictims,

o%%enders, and members o% the public %rom recogni+ing the human su%%ering in both criminal

o%%enses and in state punishment;8 and %oster 7segregation, separation, and ultimately,

dehumani+ation8 +ur 20&2, &'.20@"

$n addition, the pre5alent situation seems to undermine the chances o% alternati5e

arrangements li*e the jury, which emphasi+es the importance o% public participation in penal

sentencing juries ha5e thus been con%ined to the margins o% the criminal justice system"

According to >+ur, in countries li*e Great /ritain the jury has been limited to only the most

serious criminal trials, while in America it 7has been on the decline %or decades as state and

%ederal jury trials ha5e shrun* in absolute members and as a percentage o% total cases +ur assumes, can promote people6s ci5ic

capacities, stressing our 7interconnectedness8 and 7relationships that lin* us together8


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sentences, which pro%oundly contrasts with the dominant model o% top.down, 5ertical,

juricentric decisions, epitomi+ed by the system o% sentencing guidelines that has gained

increasing in%luence in the Anglo.American world emocracy, $will maintain, reNuires all norms, but particularly 4riminal Law norms a5id Garland, enal welfarism dominated policy.ma*ing 7in the decades%ollowing the )econd Oorld Oar8


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about that" Oe had a pretty good idea o% what needed to be done, and we thought it was right8


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ii Penal Poulism and *emocracy

Ohile penal elitism was particularly in%luential during the &!B0s, and the years that %ollowed

the consolidation o% Oel%are )tate, the new experience o% 7law and order8 appears as a more

contemporary phenomenon, associated with neo.conser5ati5e and neo.liberal policies and,more speci%ically, to political phenomena as those that we *new as 7Thatcherism8 and

7Reaganism8 a5id Garland, penal populism re%ers to a 7new

experience8 o% 7law and order8 were experts are distrusted and legal decisions are greatly

in%luenced by popular opinion and the media eliberati5e democracy does not propose inclusi5e discussions o% publicissues out o% a pre%erence %or multitudinous meetings, but rather because it considers that well.designedcollecti5e deliberations %a5our impartiality


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leading academics wor*ing with penal populism. put it, 7penal populism8 re%ers to those

politicians and groups who claim to sea/ on behal% o% 7the people8 in relation to thede5elopment o% penal policies


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Green6s article .%ocused on the 4riminal Law, and theoretically grounded on the wor* o%

deliberati5e democrats such as 1urgen 3abermas. helps emphasi+e the pre5ious point" $n his

5iew, 7most typical conceptions o% public opinion are not based on deliberation8 +ur and (irchandani ma*e an

exhausti5e analysis o% neo.puniti5e populist policies, and demonstrate the %laws o% puniti5e

polls %rom a democratic standpoint" or them, deliberati5e decisions reNuire 7rational- oen-on$oin$ and ultimately value luralistic DdebatesE', which cannot be %ound, in anysigni%icant way, behind the adoption o% three stri*es laws +ur and (irchandani 200', &9@"

These studies, $ belie5e, ha5e been doing an important ser5ice, by urging us not to accept

mar*et polls as eNui5alent to democratic debates there is a huge di%%erence between them,

which should always be ta*en into account, and most particularly at times o% designing newpublic policies" These wor*s ha5e also come together with some interesting theoretical and

practical e%%orts directed at the promotion o% deliberati5e polls, which seem to be suitable

mechanisms %or measuring public 5iews about criminal justice issues, certainly more

promising than traditional polls


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necessary seems to me ob5ious and again, the actual practice in Austin and Saxby orSchifrinsimply con%irms this intuition" Mrotesters were reproached and %inally condemned inways that actually undermined the 5ery practice o% protesting that democrats consider 5ital

%or democracy" 4ertainly, such decisions openly hostile to democratic contestation. may be

explained by numerous reasons" 3owe5er, it is di%%icult not to lin* them with the juricentric,

top.down, indi5iduali+ed decision.ma*ing process that produced the %inal judicial decisions"Alternati5e processes we can hypothesi+e. more sensiti5e to an inclusi5e process o%

deliberation, would at least be more sensiti5e to the demands o% the less ad5antaged, which in

many occasions seem to %ind it so di%%icult to present their 5iews in public and thus enrich our

democracies"

inally, we paid attention to the penal decision.ma*ing process" $t seems clear that, without

the introduction o% democratic changes at this stage, nothing could really change in the area

%rom the democratic perspecti5e, it is clear that we need better and %airer criminal trials, and

also better sentencing process, but no impro5ements would be actually possible i% the laws to

be applied and interpreted in each case were unjust" According to our discussion so %ar,

democratic theory has been 5ery help%ul in the area, by pro5iding us with critical tools %orobjecting to both penal elitism and penal populism" The democratic critiNue o% both these

dominant penal currents is o% primary importance" 3owe5er, these objections are not enough

%or our purposes" Oe do not just need to object to the pre5alent decision.ma*ing process in

the area, which has been so dramatically elitist %or so long, but also need to start thin*ing

about democratic ways o% replacing it" Again, our initial examples pro5ide us with excellent

illustrations to what $ am saying" K% course, one way %orce certain interpretations, and show

that there are no reasons %or applying the existing normati5e in such a restricti5e way" /ut

7%inding ways out8 is not the right answer to an unjust or repressi5e legislation the problem

starts %rom the 5ery %act o% ha5ing those laws, call them Anti.terrorist Laws, li*e in ngland,

Argentina or cuador; or Anti.)edition Laws; or Anti.)ocial /eha5ior Laws" Fnder the light

o% these %indings, my conclusion is that it is both possible and desirable to in%orm and shape

the 4riminal Law with democratic theory, all the way down"

$n any case, it seems clear that in order to reach a %ull integration between the 4riminal Law

and democratic theory, there is still too much theoretical and practical wor* to be done" or

the purposes o% this paper, and gi5en the space and time constraints that limit this exploration,

$ will concentrate my attention on three issues, concerning how this integration is being

de5eloped and could be impro5ed" The %irst has to do with conse1uences o% deliberation %orthe 4riminal Law; the second has to do with the openness o% deliberati5e democracy to

conflicts-and social tensions in general; and the third has to do with issues o% democratic

authorityand 4riminal Law"

i@ 2he Criminal Law and the beni$n conse1uences of democratic deliberation " >uring manyyears, a simple


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theorists %rom the le%t to resist any aperture o% the 4riminal Law to democratic participation


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uncertainties regarding issues o% crime" Ohen properly designed, they represent arrangements

that we %ind to be %ully respect%ul o% our moral eNuality and eNual dignity" And we would

de%end these mechanisms e5en in the case that the empirical studies began to show di%%erent

results" 2#$n other words, we do not base our case %or deliberati5e democracy in the area o%

4riminal Law on the assumption that 7more deliberative modes o% criminal justice

policyma*ing would be or at least could be. conduci5e to moderate rates o% punishment8 assome authors ha5e improperly suggested


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in%luenced by hegemonic ideas, in a way that may put them in direct con%lict with other

participants8 octrinaires ha5e tended to conclude by saying that

political messages can be con5eyed in many di%%erent ways, which do not necessarily and do

not only. include 7words alone,8 written or spo*en" Thus, the action o% throwing an egg at a

politician, which may be legally and morally condemned, usually con5eys a strong message

actually a 5ery strong critical message. in political terms" To neglect that part o% the story is

to neglect a crucial part o% it"2Oe need to open up space %or the consideration o% the

illocutionary asects o% non.5erbal acts, particularly within a theory that emphasi+esdemocratic deliberation"

)econd, someone could object to what $ just said, by adding that the dissident claims


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protesters li*e to create con%lict, but simply because they need to be heard" $n modern

societies, and particularly in those characteri+ed by high le5els o% ineNuality and

impo5erished institutional systems, disad5antaged groups ha5e an unjusti%ied and

disproportionally low opportunity to ma*e their claims heard wor*in put it wor*in 200, 2B@" 2At that point,

we need to start wondering, %or example, what di%%erent rights ha5e been 5iolated, and how to

put them together, without simply assuming


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di%%iculties, %or instance concerning the right o% stri*e and situations o% 5iolence" That

experience seems to be per%ectly applicable in these circumstances" Oe *now, %or instance,

that we may per%ectly pre5ent or


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inally, one could claim that democracy reNuires the limitation, rather than the protection o%

social protests, as $ ha5e suggested here" -otably, in %act, this is what many judges

maintained, in their decisions about social protests" Remember, %or example, the judicial

response that $ Nuoted, regarding the Schifrin case" 1udges o% the Appeal 4ourt thenmaintained that according to Argentina6s 4onstitution there was 7only one legitimate %orm %or

expressing the so5ereign will o% the people,8 which was su%%rage" Through this means itadded. the people 7accept or reject the alternati5es that the political class poses to them"8

-ow, against this important claim there is an ob5ious answer, which is, by the way, one that

naturally and compellingly deri5es %rom the approach $ tried to de5elop in this paper" The

main response in the %ace o% that argument relates to this simple, basic Nuestion 7ine, but

could you be more precise and tell me what conception o% democracy you ha5e in mind, in

your appeal to democracyH8 $t seems clear to me


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o%%icials whose authority to act in these ways toward sentenced o%%enders is generally ta*en

%or granted8 olo5ich 2009, #&0@"

Fndoubtedly, the tas* o% justi%ying what the )tate does through its coerci5e powers is and

will always be a di%%icult one, but those di%%iculties should not discourage us the

impossibility o% %inding the most per%ect answer should not pre5ent us %rom trying to a5oidthe worst ones the present situation is too dramatic to simple accept it as it stands" $n the %ace

o% that drama, the democratic argument suggests that the tas* o% thin*ing about the shape,

contents and scope o% our 4riminal Law should be done collecti5ely, through an inclusi5e

process o% discussion Ohat a%%ects us all should be decided by all" (ore precisely, the idea is

that all %undamental matters about issues o% intersubjecti5e morality should be decided by 7all

those potentially a%%ected8, so as to impro5e our chances o% deciding impartially" This aim

reNuires us to ma*e a special e%%ort %or ensuring that the 5oices o% all, and particularly the

5oices o% the most a%%ected by crime and punishment


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/ar*er, " eliberating 4rime and Munishment A Oay Kut o% Get Tough 1usticeH8

Criminolo$y and Public Policy- 5ol" B, n" &, #'.99"/ar*er, " ay American Punishes 9ffenders-Kx%ord Kx%ord Fni5ersity Mress"/ar*er, " " )cott, >hy PrisonB 4ambridge 4ambridge Fni5ersity Mress"/ene*os, M" J (erlo, A"


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>u%%, A" egradation,8 9xford )ournal of Le$al Studies-5ol" 2B, n" &, &9&.&BB"

>u%%, A


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1ohnstone, G"


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Mettit, M"


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Democracy All the Way Down

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