Kristian Skagen Ekeli

The purpose of this chapter is to consider the question of how constitutional democracies can and should protect present and future interests by means of constitutional environmental rights. I will argue that constitutional democracies should constitutionalize judicially enforceable environmental rights. However, I will argue that certain procedural rights that govern legislative procedures are more desirable from a normative point of view than substantive constitutional environmental rights. One important problem with substantive rights – such as a right to a healthy environment – is that they tend to be very vague. This vagueness or indeterminacy makes the judicial enforcement of such rights problematic with regard to central democratic values and rule of law values.

The purpose of this chapter is to consider the question of whether respect for persons requires toleration of the expression of any extremist political or religious viewpoint within public discourse. The starting point of my discussion is Steven Heyman and Jonathan Quong’s interesting defences of a negative answer to this question. They argue that respect for persons requires that liberal democracies should not tolerate the public expression of extremist speech that can be regarded as recognition-denying or respect-denying speech – that is, speech or other expressive conduct that expresses viewpoints that explicitly reject that all persons should be regarded and treated as free and equal persons or citizens. According to Heyman and Quong, recognition-denying speech falls outside the scope of the right to participate in public discourse (i.e. what it is a right to). In contrast to Heyman and Quong, one can argue that a strong case can be made for viewpoint neutrality on the basis of what can be called a libertarian or Nozickean status-based theory of rights. According to this theory, toleration in a liberal democracy requires respect for the status of persons as thinking agents, and respect for thinking agents and their sovereignty over their own mind requires viewpoint neutrality – that is, a basic right to participate in public discourse as speakers and listeners free from state-imposed viewpoint-based restrictions. All persons should have a basic right to express, hear and consider any viewpoint within public discourse. This doctrine of viewpoint neutrality requires that citizens in liberal democracies ought to have a legal free speech right to do moral wrong – that is, a legal right to express and defend any viewpoint within public discourse, even if it is morally wrong to express, or expose others to, such views.

The purpose of this article is to consider the question of whether democratic legitimacy requires viewpoint neutrality with regard to political speech-including extremist political speech, such as hate speech. The starting point of my discussion is Jeremy Waldron's negative answer to this question. He argues that it is permissible for liberal democracies to ban certain extremist viewpoints such as vituperative hate speech-because such viewpoint-based restrictions protect the dignity of persons and a social and moral environment of mutual respect. According to Waldron, well-drafted narrow hate speech bans are not democratically illegitimate, and they do not undermine systemic democratic legitimacy-that is, the legitimacy of a democratic political system. In contrast to Waldron, I will argue that democratic legitimacy requires viewpoint neutrality to respect persons as thinking agents. I will defend a civil libertarian doctrine of viewpoint neutrality, and this doctrine requires that citizens in liberal democracies ought to have a legal free speech right to do moral wrong-that is, a legal right to express and defend any political viewpoint or idea, even if it is morally wrong to express, or expose others to, such views. It will be argued that any viewpoint-based restriction on public discourse (including narrow hate speech bans) is democratically illegitimate, and that such restrictions undermine systemic democratic legitimacy.

The purpose of this chapter is to present and consider two alternative models for political representation of future generations. The aim of these models is to promote more future-oriented deliberations and decisions in representative democracies, and to create more public awareness and engagement about important political issues that can have a serious impact on the living conditions of near and distant future generations. The first model has been proposed by Andrew Dobson, and it can be called the restricted franchise model. According to this model, some seats in legislative assemblies should be reserved for special representatives of future generations (hereafter F-representatives), who should be granted the same law-making powers as ordinary legislators in majority rule legislatures. These special representatives should be elected, but the rights (a) to elect F-representatives and (b) to serve as F-representatives are restricted to what Dobson calls the ‘environmental sustainability lobby’ (i.e. environmental groups and organisations).

The second model, which I have recently proposed, can be termed the submajority rule model. According to this model, a minority of at least one-third of the legislators should be granted two procedural rights in order to protect future interests. The first empowers a minority to delay legislation, while the second grants a minority the right to require referendums. In contrast to Dobson’s model, my proposal implies that legislators are selected and accountable through ordinary periodic elections, where the whole electorate can participate on equal terms. However, the submajority rule model grants special procedural rights to legislators who are elected and accountable in this way. More precisely, the model gives the right to require delays and referendums to any predefined numerical minority of future-oriented legislators – that is, legislators who are concerned for the welfare of near and distant future generations, and who wish to prevent laws that they (sincerely or in good faith) believe have a serious negative impact on posterity.

Dobson’s model and my proposal differ along at least five dimensions, and some of these are related. (1) The representatives: Who should be empowered to serve as representatives of future generations in elections and legislatures? Who should be granted special powers to represent and protect future interests in legislatures? (2) Selection of representatives: How should the representatives be selected? (3) Accountability mechanisms: How should the representatives be held accountable, and by whom (i.e. who should be the accountability-holders)? (4) Powers: What powers should the representatives have? (5) Voting rules in the legislature: What voting rules should be used in the legislature – only majority rule (Dobson’s model) or a combination of majority rule and submajority rule (my proposal)?

As compared to the status quo (i.e. existing representative democratic institutions), I believe that these two models can, in different ways, serve as useful political tools to promote more future-oriented political deliberations and decisions in representative democracies. However, I will argue that the submajority rule model has some important advantages compared with the restricted franchise model. More precisely, my proposal has more far-reaching and desirable effects with regard to processes of agenda-setting, deliberation, exchange of information and citizen involvement. The submajority rule model also provides a better future-oriented system of checks and balances.

The purpose of this paper is to consider whether it is permissible for a liberal democratic state to deny anti-liberal-democratic citizens and groups the right to run for parliament. My answer to this question is twofold. On the one hand, I will argue that it is, in principle, permissible for liberal democratic states to deny anti-liberal-democratic citizens and groups the right to run for parliament. On the other hand, I will argue that it is rarely wise (or prudent) for ripe democracies to exclude anti-liberal-democrats from parliamentary elections. There are at least two reasons for this. The first is related to the inherent stability of just institutions. The second is that exclusion can lead to group polarization and enclave deliberation that can engender political extremism and impair processes of interpersonal and intrapersonal deliberation in liberal democracies.

The purpose of this paper is to consider the following question: To what extent is it permissible for a liberal democratic state to suppress the spread of illiberal ideas (including anti-democratic ideas)? I will discuss two approaches to this question. The first can be termed the clear and imminent danger approach, and the second the preventive approach. The clear and imminent danger approach implies that it is permissible for liberal states to suppress the spread of illiberal doctrines and ideas only if they pose a clear and imminent danger to security and/or the stability of liberal democratic institutions. The preventive approach, which is the one that I will propose and defend, goes further than this: it implies that it can also be permissible for a liberal state to restrict the spread of illiberal doctrines and ideas in order to prevent certain extremist illiberal groups (which I will term offensive illiberal groups) from gaining increased popular and political support, and in order to prevent such groups from becoming significant and powerful political actors. However, the evaluation and choice of liberty-limiting suppressive measures should be guided and restricted by two principles or side-constraints: the significance principle and the least restrictive means principle.

The purpose of this paper is to propose and consider two new constitutional devices, the aim of which is to give minorities of legislators a political tool to represent and protect the interests of future generations. The common denominator of the proposed reforms is that they represent examples of submajority rules that grant defined minorities of legislators certain procedural rights. The first device empowers a minority of at least 1/3 of the legislators to demand that the final enactment of a law proposal should be delayed until a new election has been held, if they believe that the law in question can inflict serious harm upon posterity. The second implies that a minority of at least 1/3 of the legislators can require a referendum on a bill that can have a serious adverse impact on the living conditions of future people. I will argue that these submajority rules can serve as useful means to encourage more future-oriented public deliberations and decisions. Although the proposals face some important problems, it is argued that they can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy.

The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future-oriented deliberations and decisions. The second is to create more public awareness and improve the process of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy.

The purpose of this paper is to consider some aspects of the question of how difficult it should be to amend or change constitutional laws through formal amendment procedures. The point of departure of my discussion is an amendment procedure that has recently been suggested by Bruce Ackerman. He defends a three-step amendment procedure – where a re-elected president is authorised to propose amendments that must thereafter be approved first by a two-thirds majority of the legislature, and then by a simple majority of the citizens at the next two presidential elections. I propose and defend an alternative amendment procedure that can be termed the four-step procedure. According to this procedure, the right to propose amendments is granted both to legislators and voters via citizen initiatives. Thereafter, the proposed amendments should be placed before the legislature, where they must be approved by a simple majority in two successive parliaments, and there must be an interval of no less than one year between the two votes. If passed by the legislative assembly, the amendment(s) should be approved by a simple majority of the electorate in a referendum. However, a submajority of the legislators (i.e. a one-third minority) should be empowered to require an additional referendum on the proposed amendment(s), and this final referendum should be held two years after the first popular vote. In order to assess the outlined amendment procedures, I primarily focus on the following factors or criteria of evaluation, which I group under three headings: (1) Central ideas and ideals in deliberative democratic theory and the fact of persistent disagreement in modern pluralist societies (this includes considerations of how well alternative amendment procedures deal with disagreement among citizens); (2) rule of law values, stability and flexibility; and (3) the value of checks and balances that can guard against the abuse of power (or more precisely, whether the amendment procedures under consideration provide adequate checks and balances between courts, political actors and citizens).

This paper considers a guardianship model for the legal representation of future generations. According to this model, national and international courts should be given the competence to appoint guardians for future generations, if agents who care about the welfare of posterity apply for the creation of a guardianship in relation to a dispute that can be resolved by the application of law. This reform would grant guardians of future people legal standing or locus standi before courts, that is, the right to bring an action before a court of law for adjudication. Although the guardianship model faces several difficult theoretical and practical problems pertaining to the representation of different near and distant future generations, it is argued that this model - and certain other legal norms intended to protect future basic needs - can be justified on the basis of the principle of liberty.

The aim of this paper is to consider whether some seats in a democratically elected legislative assembly ought to be reserved for representatives of future generations. In order to examine this question, I will propose a new democratic model for representing posterity. It is argued that this model has several advantages compared with a model for the democratic representation of future people previously suggested by Andrew Dobson. Nevertheless, the democratic model that I propose confronts at least two difficult problems. First, it faces insoluble problems of representative legitimacy. Second, one might question whether this model provides a reasonably effective way to represent future interests compared with existing representative democratic institutions. Despite such problems, it is argued that political representation of posterity can be defended on the basis of fundamental ideas and ideals in recent theory of deliberative democracy. The first reason for this is that in a number of cases democratic decisions cannot be regarded as normatively legitimate from the point of view of deliberative democracy, unless posterity is given a voice. The second reason is that representation of posterity can contribute to more rational and impartial deliberations and decisions in legislative assemblies.

The way our decisions and actions can affect future generations is surrounded by uncertainty. This is evident in current discussions of environmental risks related to global climate change, biotechnology and the use and storage of nuclear energy. The aim of this paper is to consider more closely how uncertainty affects our moral responsibility to future generations, and to what extent moral agents can be held responsible for activities that inflict risks on future people. It is argued that our moral responsibility to posterity is limited because our ability to foresee how present decisions and activities will affect future people is limited. The reason for this is primarily that we are in a situation of ignorance regarding the pace and direction of future scientific and technological development. This ignorance reduces our responsibility in a temporal dimension because in most areas it is impossible to predict the interests and resource needs of future generations. In one area, however, we have fairly reliable knowledge about future people. It is reasonable to assume that future human beings will have the same basic physiological (physical and biological) needs as we have. On this basis, it is argued that we can be held responsible for activities causing avoidable damage to critical resources that are necessary to provide for future physiological needs. Furthermore, it is suggested that it is prima facie immoral to impose risks upon future generations in cases where the following conditions are fulfilled: (1) the risk poses a threat to the ability of future generations to meet their physiological needs, and (2) the risk assessment is supported by scientifically based harm scenarios.

Denne artikkelen tar sikte på å belyse et viktig og kontroversielt spørsmål om velgeres moralske ansvar. Spørsmålet dreier seg om hvorvidt borgere i et demokrati har en moralsk plikt til å være velinformerte om politikk hvis de velger å bruke sin stemmerett. Jeg vil forsvare følgende svar på dette spørsmålet: Hvis borgere i et demokrati velger å bruke sin stemmerett, så har de en moralsk plikt til å avlegge en rimelig velinformert og ansvarlig stemme. Borgere som er uvitende om politikk og følgene av sine politiske valg, har en moralsk plikt til å avstå fra å stemme av respekt for personer som kan berøres eller rammes av de politiske valgene de er med på å ta sammen med andre velgere. Dersom en borger velger å bruke sin juridiske stemmerett, så er politisk uvitenhet moralsk sett klanderverdig i seg selv fra et deontologisk synspunkt - uavhengig av konsekvensene av å avlegge en uinformert stemme. Politisk uvitende velgere er klanderverdig uansvarlige, og de har ingen moralsk rett til å styre over andre gjennom å bruke sin juridiske stemmerett.

Denne artikkelen tar opp følgende spørsmål om rettslig moralisme knyttet til ytringsfrihet: Har lovgivere i liberale demokratier en moralsk rett til å forby ytringer av umoralske politiske og religiøse synspunkter som ikke krenker andres grunnleggende rettigheter, for å beskytte samfunnets moralske miljø og forme moralske og siviliserte borgere?