Self-Government as Non-subordination

I'm in the process of trying to develop a final paper topic for Dworkin's seminar, and I've been bouncing around an idea about self-government as non-subordination. Here's the idea; it's not fully formed yet, but if you have any comments, I'd be happy to hear them. In the presentation that János Kis gave on judicial review, Kis discussed two components of his definition of self-government. First was the idea requirement that the law treats all members as equals, including—but not only—as participants in the system. The second was that the community must be in a special relationship with its officials—namely, that it exercises some degree of control over them. What I am most interested in is the first criterion. What does it mean for a society to treat all its members as equals?

One can conceive of equality in a purely procedural way, as equal ability to participate in the legal and political system. This view of equality recommends a Ely-esque view of judicial review: The institution should be used to protect the ability "discrete and insular minorities" to participate equally in the political process.

However, what if we put some substantive flesh on these procedural bones?



In the colloquium, somebody (I cannot tell from my notes whether it was Kis or somebody else) suggested that a society in which a particular group often or always gets the short end of the stick, despite equal ability to participate, would not properly be called self-government; self-government is a label that can only be applied to a society in which all people can accept or own the decisions as their decisions. This is the difference between government and self-government. Self-government is government by the "self" not only in the sense of the polity as a whole governing itself, but also in the sense that each member of the polity governs the polity.

This does mean that every person must agree with every decision. There are many actions of my government with which I have strong disagreement. However, I still believe that the actions of my government are my actions in absentia (and the actions of all members of the polity), filtered through the representative and democratic processes of government. This is why I was so upset with the reelection of George W. Bush in 2004; with his legitimate election, I could not look any foreign citizen in the eye and disclaim responsibility for the actions of my country. I may not have voted for the guy, but he was still my president.

However, certain actions of the government cannot be owned by all members of the polity. If the government engages in particular actions—e.g. deciding it wants to bulldoze my house with going through a process of eminent domain and just compensation—I cannot own the action, because, as the state has turned its weapons upon me, I have been subordinated to the other members of the polity. What do I mean by subordination? I draw on Ronald Dworkin here. All relationships—performative, associational, and political—involve a degree of "deference," i.e. putting yourself under the control of another for some purposes. However, the flipside of deference is duty. Any person or group to whom we defer develops duties towards us. To fail to perform these duties to cheat a person of their dignity and personhood, because you have subordinated them—treated them as less than an equal person.

The large-scale version of this relationship is government itself: We put ourselves under the control of our representatives and officers in the government, and in turn those officials develop duties towards us. In Dworkin's scheme, there are duties of respect and equality that the government owes to all citizens. If a polity fails to carry through on its duties to any one of its members, it puts him in a position of subordination. In that case, government for that person is no longer self-government. To the extent that elected representatives subordinate particular members of society, judicial review of those decisions is necessary to preserve the legitimacy of the government.

I have to note the shift I've made here. In general, we speak of "democracy" as the gold-standard for all nations. It is not. One can have democracy without true self-government, and it is self-government that is the value we want to further. Thus, perhaps democracy is incompatible with judicial review, but self-government may require it.