The Hammer - Fall 04 Democracy & Coercion Outline Professor...

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Fall ‘04 Democracy & Coercion Outline Professor Seidman T ABLE O F C ONTENTS The Warrant Requirement .................................................................................................................................................................. 46 The Probable Cause Requirement ...................................................................................................................................................... 47 Page 1 of 80
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Fall ‘04 Democracy & Coercion Outline Professor Seidman I. T HE N ATURE OF THE P ROBLEM : D EMOCRACY AND I NDIVIDUALISM Most Americans accept two conflicting postulates: they believe in democracy, but they also believe in individualism. Democracy implies a system of group decision-making with the majority able to enforce its will against the dissenting minority. It is a system that rests on the value of community autonomy and community self definition. Individualism implies a right of the individual to resist group decisions and to adopt one's own life plan free from interference. It is a system that rests on individual autonomy and individual self definition. How are these postulates to be reconciled? Or, to put the same question differently, under what circum- stances is a democratic state justified in utilizing coercion against individuals who are outvoted? (Perhaps this way of phrasing the question biases the answer. Why not ask in what circumstances the individual can "coerce" the community by frustrating a collective judgment that requires his cooperation in order to be effectuated?) Conflict of ideals in the US: - Individualism: people have a right to order their lives as they see fit; we are not defined by groups vs - Democracy: majority rule, equality of franchise, group decision-making (not elite decision-making, wealthy, aristocrats). Majority dictates to the minority—group limits the freedom of individuals—majority has right to command obedience (coerce) the minority that disagrees and is outvoted How do you mediate between these ideals? Situational? Hierarchical? Subquestions: 1) Why should we have democracy in the first place? Is democracy a good in itself or only instrumentally? o Two theories used to discuss democracy: Utilitarian theory is consequentialist. Good or bad based on the consequences, moral desirability of maximizing overall welfare. Everyone’s welfare counts as one. (democratic ideal) Kantian theory is nonconsequentialist. Good based on what a fully reasonable person would make for themselves. Individuals should never be treated as means, but ends in themselves. (individualism, liberalism) Which is most consistent with democratic theory and which with individual rights/individualism? 2)
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This note was uploaded on 04/30/2008 for the course LAW DemCo taught by Professor Seidman during the Spring '08 term at Georgetown.

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The Hammer - Fall 04 Democracy & Coercion Outline Professor...

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